[Title 28 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          28


          Parts 0 to 42

          Revised as of July 1, 2009


          Judicial Administration
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



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

  Title 28:
          Chapter I--Department of Justice                           3
  Finding Aids:
      Table of CFR Titles and Chapters........................     863
      Alphabetical List of Agencies Appearing in the CFR......     883
      List of CFR Sections Affected...........................     893

[[Page iv]]





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

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

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

[[Page v]]



                               EXPLANATION

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

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2009), 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 eleven 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.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed 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 Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
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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

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in the Code of Federal Regulations.

INQUIRIES

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the top of odd-numbered pages.
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ELECTRONIC SERVICES

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register. The NARA site also contains links to GPO Access.

    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2009.







[[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, 2009.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.


[[Page 1]]



                    TITLE 28--JUDICIAL ADMINISTRATION




                             (Parts 0 to 42)

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

chapter i--Department of Justice............................           0

[[Page 3]]



                    CHAPTER I--DEPARTMENT OF JUSTICE




  --------------------------------------------------------------------
Part                                                                Page
0               Organization of the Department of Justice...           5
1               Executive clemency..........................          99
2               Parole, release, supervision and 
                    recommitment of prisoners, youth 
                    offenders, and juvenile delinquents.....         102
3               Gambling devices............................         205
4               Procedure governing applications for 
                    certificates of exemption under the 
                    Labor-Management Reporting and 
                    Disclosure Act of 1959, and the Employee 
                    Retirement Income Security Act of 1974..         206
5               Administration and enforcement of Foreign 
                    Agents Registration Act of 1938, as 
                    amended.................................         210
6               Traffic in contraband articles in Federal 
                    penal and correctional institutions.....         221
7               Rewards for capture of escaped Federal 
                    prisoners...............................         221
8               FBI forfeiture authority for certain 
                    statutes................................         221
9               Regulations governing the remission or 
                    mitigation of civil and criminal 
                    forfeitures.............................         225
10              Registration of certain organizations 
                    carrying on activities within the United 
                    States..................................         237
11              Debt collection.............................         239
12              Registration of certain persons having 
                    knowledge of foreign espionage, 
                    counterespionage, or sabotage matters 
                    under the Act of August 1, 1956.........         251
13              Atomic weapons and special nuclear materials 
                    rewards regulations.....................         253
14              Administrative claims under Federal Tort 
                    Claims Act..............................         255
15              Certification and decertification in 
                    connection with certain suits based upon 
                    acts or omissions of Federal employees 
                    and other persons.......................         262
16              Production or disclosure of material or 
                    information.............................         264
17              Classified National Security Information and 
                    access to classified information........         387
18              Office of Justice Programs hearing and 
                    appeal procedures.......................         403

[[Page 4]]

19              Use of penalty mail in the location and 
                    recovery of missing children............         407
20              Criminal justice information systems........         411
21              Witness fees................................         424
22              Confidentiality of identifiable research and 
                    statistical information.................         428
23              Criminal intelligence systems operating 
                    policies................................         432
24              Implementation of the Equal Access to 
                    Justice Act in Department of Justice 
                    administrative proceedings..............         436
25              Department of Justice information systems...         441
26              Death sentences procedures..................         455
27              Whistleblower protection for Federal Bureau 
                    of Investigation employees..............         459
28              DNA identification system...................         463
29              Motor Vehicle Theft Prevention Act 
                    regulations.............................         469
30              Intergovernmental review of Department of 
                    Justice programs and activities.........         472
31              OJJDP grant programs........................         476
32              Public safety officers' death, disability, 
                    and educational assistance benefit 
                    claims..................................         496
33              Bureau of Justice Assistance grant programs.         524
34              OJJDP competition and peer review procedures         541
35              Nondiscrimination on the basis of disability 
                    in state and local government services..         546
36              Nondiscrimination on the basis of disability 
                    by public accommodations and in 
                    commercial facilities...................         586
37              Procedures for coordinating the 
                    investigation of complaints or charges 
                    of employment discrimination based on 
                    disability subject to the Americans with 
                    Disabilities Act and section 504 of the 
                    Rehabilitation Act of 1973..............         761
38              Equal treatment for faith-based 
                    organizations...........................         767
39              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Justice..............................         771
40              Standards for inmate grievance procedures...         794
41              Implementation of Executive Order 12250, 
                    nondiscrimination on the basis of 
                    handicap in federally assisted programs.         799
42              Nondiscrimination; equal employment 
                    opportunity; policies and procedures....         806


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

[[Page 5]]



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




     Subpart A_Organizational Structure of the Department of Justice

Sec.
0.1 Organizational units.

                Subpart B_Office of the Attorney General

0.5 Attorney General.
0.10 Attorney General's Advisory Committee of U.S. Attorneys.
0.11 Incentive Awards Board.
0.12 Young American Medals Committee.
0.13 Legal proceedings.

             Subpart C_Office of the Deputy Attorney General

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

          Subpart C	1_Office of the Associate Attorney General

0.19 Associate Attorney General.

                Subpart D_Office of the Solicitor General

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

             Subpart D	1_Executive Office for U.S. Attorneys

0.22 General functions.

                   Subpart D	2_Office of Legal Policy

0.23 General functions.
0.23a [Reserved]
0.23b Office of Asylum Policy and Review.

                Subpart D	3_Office of Information Policy

0.24 General functions.

                    Subpart E_Office of Legal Counsel

0.25 General functions.

              Subpart E	1_Office of International Programs

0.26 Organization.

     Subpart E	2_Office of Legislative and Intergovernmental Affairs

0.27 General functions.

                  Subpart E	3_Office of Public Affairs

0.28 General functions.

               Subpart E	4_Office of the Inspector General

0.29 Organization.
0.29a General functions.
0.29b Reporting allegations of waste, fraud, or abuse.
0.29c Reporting allegations of employee misconduct.
0.29d Whistleblower protection for FBI employees.
0.29e Relationship to other departmental units.
0.29f Confidentiality.
0.29g Reprisals.
0.29h Specific authorities of the Inspector General.
0.29i Audit, inspection, and review authority.
0.29j Law enforcement authority.

                  Subpart F_Community Relations Service

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

Subpart F-1 [Reserved]

       Subpart F	2_INTERPOL-United States National Central Bureau

0.34 General functions.

                 Subpart G_Office of the Pardon Attorney

0.35 General functions; delegation of authority.
0.36 Recommendations.

         Subpart G	1_Executive Office for United States Trustees

0.37 Organization.
0.38 Functions.

            Subpart G	2_Office of Professional Responsibility

0.39 Office of Professional Responsibility.
0.39a Functions.
0.39b Confidentiality of information.
0.39c Relationship to other departmental units.

                      Subpart H_Antitrust Division

0.40 General functions.
0.41 Special functions.

[[Page 6]]


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

                        Subpart I_Civil Division

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

                     Subpart J_Civil Rights Division

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

Appendix to Subpart J

                       Subpart K_Criminal Division

0.55 General functions.
0.56 Exclusive or concurrent jurisdiction.
0.57 Criminal prosecutions against juveniles.
0.58 Delegation respecting payment of benefits for disability or death 
          of law enforcement officers not employed by the United States.
0.59 Certain certifications under 18 U.S.C. 3331 and 3503.
0.61-0.62 [Reserved]
0.63 Delegation respecting admission and naturalization of certain 
          aliens.
0.64 [Reserved]
0.64-1 Central or Competent Authority under treaties and executive 
          agreements on mutual assistance in criminal matters.
0.64-2 Delegation respecting transfer of offenders to or from foreign 
          countries.
0.64-3 Delegation respecting designation of certain Department of 
          Agriculture employees (Tick Inspectors) to carry and use 
          firearms.
0.64-4 Delegation respecting temporary transfers, in custody, of certain 
          prisoner-witnesses from a foreign country to the United States 
          to testify in Federal or State criminal proceedings.
0.64-5 Policy with regard to bringing charges under the Economic 
          Espionage Act of 1996, Pub. L. 104-294, effective October 11, 
          1996.

Appendix to Subpart K

          Subpart L_Environment and Natural Resources Division

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

                         Subpart M_Tax Division

0.70 General functions.
0.71 Delegation respecting immunity matters.

                  Subpart N_National Security Division

0.72 National Security Division.

                  Subpart O_Justice Management Division

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

                Subpart P_Federal Bureau of Investigation

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

       Subpart P	1_Office of Justice Programs and Related Agencies

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

                       Subpart Q_Bureau of Prisons

0.95 General functions.
0.96 Delegations.
0.96a Interstate Agreement on Detainers.
0.96b Exchange of prisoners.
0.96c Cost of incarceration.
0.97 Redelegation of authority.

[[Page 7]]

0.98 Functions of Commissioner of Federal Prison Industries.
0.99 Compensation to Federal prisoners.

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

                Subpart R_Drug Enforcement Administration

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

Appendix to Subpart R--Redelegation of Functions

            Subpart S_Immigration and Naturalization Service

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

                Subpart T_United States Marshals Service

0.111 General functions.
0.111a Temporary prisoner-witness transfers.
0.111B Witness Security Program.
0.112 Special deputation.
0.113 Redelegation of authority.
0.114 Fees for services.

            Subpart U_Executive Office for Immigration Review

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

       Subpart U	1_Office of Community Oriented Policing Services

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

              Subpart U	2_Office on Violence Against Women

0.122 Office on Violence Against Women.

           Subpart U	3_Office of the Federal Detention Trustee

0.123 Federal Detention Trustee.

                Subpart V_United States Parole Commission

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

            Subpart V	1_Foreign Claims Settlement Commission

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

         Subpart V	2_Professional Responsibility Advisory Office

0.129 Professional Responsibility Advisory Office.

     Subpart W_Bureau of Alcohol, Tobacco, Firearms, and Explosives

0.130 General functions.
0.131 Specific functions.
0.132 Delegation respecting claims against the Bureau of Alcohol, 
          Tobacco, Firearms, and Explosives.
0.133 Transition and continuity of regulations.

   Subpart W	1_Additional Assignments of Functions and Designation of 
 Officials To Perform the Duties of Certain Offices in Case of Vacancy, 
  or Absence Therein or in Case of Inability or Disqualification to Act

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

     Subpart X_Authorizations With Respect to Personnel and Certain 
                         Administrative Matters

0.138 Federal Bureau of Investigation, Drug Enforcement Administration, 
          Bureau of Alcohol, Tobacco, Firearms, and Explosives, Bureau 
          of Prisons, Federal Prison Industries, Immigration and 
          Naturalization Service, United States Marshals Service, Office 
          of Justice Programs, Executive Office for Immigration Review, 
          Executive Office for United States Attorneys, Executive Office 
          for United States Trustees.

[[Page 8]]

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

      Subpart Y_Authority to Compromise and Close Civil Claims and 
     Responsibility for Judgments, Fines, Penalties, and Forfeitures

0.160 Offers that may be accepted by Assistant Attorneys General.
0.161 Acceptance of certain offers by the Deputy Attorney General or 
          Associate Attorney General, as appropriate.
0.162 Offers which may be rejected by Assistant Attorneys General.
0.163 Approval by Solicitor General of action on compromise offers in 
          certain cases.
0.164 Civil claims that may be closed by Assistant Attorneys General.
0.165 Recommendations to the Deputy Attorney General or Associate 
          Attorney General, as appropriate, that certain claims be 
          closed.
0.166 Memorandum pertaining to closed claim.
0.167 Submission to Associate Attorney General by Director of Office of 
          Alien Property of certain proposed allowances and 
          disallowances.
0.168 Redelegation by Assistant Attorneys General.
0.169 Definition of ``gross amount of the original claim''.
0.170 Interest on monetary limits.
0.171 Judgments, fines, penalties, and forfeitures.
0.172 Authority: Federal tort claims.

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

 Subpart Z_Assigning Responsibility Concerning Applications for Orders 
       Compelling Testimony or Production of Evidence by Witnesses

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

 Subpart Z	1_Prosecutions for Obstruction of Justice and Related Charges

0.179 Scope.
0.179a Enforcement responsibilities.

                Subpart AA_Orders of the Attorney General

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

                    Subpart BB_Sections and Subunits

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

                 Subpart CC_Jurisdictional Disagreements

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

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

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

    Editorial Note: Nomenclature changes to part 0 appear at 73 FR 73 FR 
54947, Sept. 24, 2008.

[[Page 9]]



     Subpart A_Organizational Structure of the Department of Justice



Sec. 0.1  Organizational units.

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

                                 Offices

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

                                Divisions

Antitrust Division.
Civil Division.
Civil Rights Division.
Criminal Division.
Environment and Natural Resources Division.
National Security Division.
Tax Division.
Justice Management Division.

                                 Bureaus

Federal Bureau of Investigation.
Bureau of Prisons.
Drug Enforcement Administration.
Office of Justice Programs (and related agencies)
United States Marshals Service.
Bureau of Alcohol, Tobacco, Firearms, and Explosives

                                 Boards

Board of Immigration Appeals.
U.S. Parole Commission.
Foreign Claims Settlement Commission.

[Order No. 900-80, 45 FR 43702, June 30, 1980]

    Editorial Note: For Federal Register citations affecting Sec. 0.1, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



                Subpart B_Office of the Attorney General



Sec. 0.5  Attorney General.

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



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

    (a) The Attorney General's Advisory Committee of U.S. Attorneys 
shall consist of fifteen U.S. Attorneys, designated by the Attorney 
General. The membership shall be selected to represent the various 
geographic areas of the Nation and both large and small offices. Members 
shall serve at the pleasure of the Attorney General, but such service 
normally shall not exceed three years and shall be subject to adjustment 
by the Attorney General so as to assure the annual rotation of 
approximately one-third of the Committee's membership.
    (b) The Committee shall make recommendations to the Attorney 
General, to the Deputy Attorney General and to the Associate Attorney 
General

[[Page 10]]

concerning any matters which the Committee believes to be in the best 
interests of justice, including, but not limited to, the following:
    (1) Establishing and modifying policies and procedures of the 
Department;
    (2) Improving management, particularly with respect to the 
relationships between the Department and the U.S. Attorneys;
    (3) Cooperating with State Attorneys General and other State and 
local officials for the purpose of improving the quality of justice in 
the United States;
    (4) Promoting greater consistency in the application of legal 
standards throughout the Nation and at the various levels of government; 
and
    (5) Aiding the Attorney General, the Deputy Attorney General and the 
Associate Attorney General in formulating new programs for improvement 
of the criminal justice system at all levels, including proposals 
relating to legislation and court rules.
    (c) The Committee shall select from its membership a chairman, a 
vice-chairman and a secretary, and shall establish such subcommittees as 
it deems necessary to carry out its objectives. United States Attorneys 
who are not members of the Committee may be included in the membership 
of subcommittees.
    (d) The Executive Office for U.S. Attorneys shall provide the 
Committee with such staff assistance and funds as are reasonably 
necessary to carry out the Committee's responsibilities.

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



Sec. 0.11  Incentive Awards Board.

    The Incentive Awards Board shall consist of the Deputy Attorney 
General or a designee of the Deputy Attorney General, who shall be the 
chairperson, and four members designated by the Attorney General from 
among the Assistant Attorneys General, bureau heads or persons of 
equivalent rank in the Department. The duties of the Board shall be:
    (a) Consider and make recommendations to the Attorney General 
concerning honorary awards and cash awards in excess of $7,500 to be 
granted for suggestions, inventions, superior accomplishment, or other 
personal effort which contributes to the efficiency, economy, or other 
improvement of Government operations or achieves a significant reduction 
in paperwork.
    (b) Consider and make recommendations to the Attorney General for 
transmittal to the Office of Personnel Management and the President for 
Presidential awards under 5 U.S.C. 4504 and 5403.
    (c) Evaluate periodically the effectiveness of the employee 
recognition program and recommend needed improvements to the Attorney 
General.

[Order No. 960-81, 46 FR 52340, Oct. 27, 1981, as amended by Order No. 
2949-2008, 73 FR 8815, Feb. 15, 2008]



Sec. 0.12  Young American Medals Committee.

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

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



Sec. 0.13  Legal proceedings.

    (a) Each Assistant Attorney General and Deputy Assistant Attorney 
General is authorized to exercise the authority of the Attorney General 
under 28 U.S.C. 515(a), in cases assigned to, conducted, handled, or 
supervised by such official, to designate Department attorneys to 
conduct any legal proceeding, civil or criminal, including

[[Page 11]]

grand jury proceedings and proceedings before committing magistrates, 
which United States attorneys are authorized by law to conduct, whether 
or not the designated attorney is a resident of the district in which 
the proceedings is brought.
    (b) Each Assistant Attorney General is authorized to redelegate to 
Section Chiefs the authority delegated by paragraph (a) of this section, 
except that such redelegation shall not apply to the designation of 
attorneys to conduct grand jury proceedings.

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



             Subpart C_Office of the Deputy Attorney General



Sec. 0.15  Deputy Attorney General.

    (a) The Deputy Attorney General is authorized to exercise all the 
power and authority of the Attorney General, unless any such power or 
authority is required by law to be exercised by the Attorney General 
personally.
    (b) The Deputy Attorney General shall advise and assist the Attorney 
General in formulating and implementing Department policies and programs 
and in providing overall supervision and direction to all organizational 
units of the Department. Subject to the general supervision of the 
Attorney General, the Deputy Attorney General shall direct the 
activities of organizational units as assigned. In addition, the Deputy 
Attorney General shall:
    (1) Except as assigned to the Associate Attorney General by Sec. 
0.19(a)(1), exercise the power and authority vested in the Attorney 
General to take final action in matters pertaining to:
    (i) The appointment, employment, pay, separation, and general 
administration of personnel, including attorneys, in the Senior 
Executive Service or the equivalent; Senior-Level and Scientific and 
Professional positions; and of attorneys and law students regardless of 
grade or pay in the Department.
    (ii) The appointment of special attorneys and special assistants to 
the Attorney General (28 U.S.C. 515(b));
    (iii) The appointment of Assistant U.S. Trustees and fixing of their 
compensation; and
    (iv) The approval of the appointment by U.S. Trustees of standing 
trustees and the fixing of their maximum annual compensation and 
percentage fees as provided in 28 U.S.C. 587(e).
    (v) The appointment, employment, separation, and general 
administration of Assistant United States Attorneys and other attorneys 
to assist United States Attorneys when the public interest so requires 
and the fixing of their salaries.
    (2) Administer the Department's recruitment programs for law 
graduates and law students.
    (3) Coordinate Departmental liaison with White House Staff and the 
Executive Office of the President.
    (4) Coordinate and control the Department's reaction to civil 
disturbances and terrorism.
    (5) Perform such other duties and functions as may be assigned from 
time to time by the Attorney General.
    (c) The Deputy Attorney General may redelegate the authority 
provided in paragraphs (b)(1)(i), (ii), (iii), (v), and paragraph (b)(2) 
of this section to take final action in matters pertaining to the:
    (1) Appointment, employment, pay, separation, and general 
administration of personnel, including attorneys, in the Senior 
Executive Service or the equivalent, and Senior-Level and Scientific and 
Professional positions;
    (2) Appointment, employment, pay, separation, and general 
administration of attorneys and law students regardless of grade or pay;
    (3) Appointment of special attorneys and special assistants to the 
Attorney General pursuant to 28 U.S.C. 515(b);
    (4) Appointment of Assistant United States Trustees and the fixing 
of their compensation;
    (5) Appointment, employment, separation, and general administration 
of Assistant United States Attorneys and other attorneys to assist 
United States Attorneys when the public interest so requires and the 
fixing of their salaries; and
    (6) Administration of the Department's recruitment programs for law 
graduates and law students.

[[Page 12]]

    (d) The Deputy Attorney General may redelegate the authority 
provided in paragraph (b)(1)(iv) of this section to take final action in 
matters pertaining to the approval of the appointment by U.S. Trustees 
of standing trustees and the fixing of their maximum annual compensation 
and percentage fees as provided in 28 U.S.C. 587(e) to the Director of 
the Executive Office for U.S. Trustees.
    (e) The officials to whom the Deputy Attorney General delegates 
authority under paragraph (c) of this section and any of the officials 
who may be otherwise authorized by the Deputy Attorney General to 
perform any other attorney personnel duties may redelegate those 
authorities and duties.
    (f) The Deputy Attorney General is authorized, and may delegate 
authority to the Director of the Asylum Policy and Review Unit within 
the Office of Legal Policy, to:
    (1) Compile and disseminate to Immigration and Naturalization 
Service (INS) officers information concerning the persecution of persons 
in countries on account of race, religion, nationality, membership in a 
particular social group, or political opinion.
    (2) Review cases decided by the Board of Immigration Appeals 
pursuant to 8 CFR 3.1(h)(1)(i);
    (3) Review INS asylum decisions in cases which the Deputy Attorney 
General directs INS to refer to him.
    (4) Assist INS in conducting training concerning asylum and assist 
in resolving questions of policy that may arise.
    (g) The Deputy Attorney General is authorized to exercise the 
authority vested in the Attorney General under section 528(a), Public 
Law 101-509, to accept from federal departments and agencies the 
services of attorneys and non-law enforcement personnel to assist the 
Department of Justice in the investigation and prosecution of fraud or 
other criminal or unlawful activity in or against any federally insured 
financial institution or the Resolution Trust Corporation, and to 
supervise such personnel in the conduct of such investigations and 
prosecutions.
    (h) [Reserved]

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

    Editorial Note: For Federal Register citations affecting Sec. 0.15, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 0.17  Office of Investigative Agency Policies.

    (a) Organization. The Office of Investigative Agency Policies is 
headed by a Director appointed by the Attorney General. The Director 
shall be responsible to, and report directly to, the Deputy Attorney 
General, and shall serve at the pleasure of the Attorney General. The 
Director shall be chosen from among the heads of the criminal 
investigative agencies of the Department, i.e., the Federal Bureau of 
Investigation, Drug Enforcement Administration, United States Marshals 
Service and Immigration and Naturalization Service. The Director shall 
serve concurrently as the Director of Investigative Agency Policies and 
as head of the agency for which he or she was nominated and confirmed. 
The Director shall be supported by a staff consisting of personnel 
detailed from the criminal investigative agencies of the Department, and 
from the Criminal Division. The staff shall be nominated by these 
various agencies, subject to the approval of the Director.
    (b) Functions. Subject to the general supervision and direction of 
the Attorney General and Deputy Attorney General, the Director shall in 
the areas of overlapping jurisdiction of the criminal investigative 
agencies:
    (1) Take all steps necessary to improve coordination among the 
criminal investigative agencies of the Department, both within the 
United States and abroad;
    (2) Assure, to the extent appropriate, consistent operational 
guidelines for the criminal investigative agencies of the Department;
    (3) Establish procedures, structures and mechanisms for coordinating 
the collection and dissemination of intelligence relating to the 
Department's law enforcement responsibilities;
    (4) Establish procedures and policies relating to procurement for 
the criminal investigative agencies of the Department, including but not 
limited to procurement of communications and computer systems;

[[Page 13]]

    (5) Determine and establish procedures for the coordination of all 
automation systems;
    (6) Determine and establish plans to ensure the effective deployment 
of criminal investigative agency task forces;
    (7) Establish procedures for coordinating the apprehension of 
fugitives;
    (8) Establish programs to coordinate training among the criminal 
investigative agencies of the Department;
    (9) Provide advice to the Attorney General and the Deputy Attorney 
General on all investigative policies, procedures and activities that 
warrant uniform treatment or coordination among the criminal 
investigative agencies of the Department;
    (10) Provide advice to the Attorney General and the Deputy Attorney 
General on the budgetary and resource requests of the criminal 
investigative agencies of the Department;
    (11) Perform such other functions as may be necessary for the 
effective policy-level coordination of criminal investigations by the 
criminal investigative agencies of the Department, particularly with 
respect to drug trafficking, fugitive apprehension, violence, and 
related areas, and for the elimination of waste and duplication in these 
functions.
    (12) Perform such special duties as may be assigned by the Attorney 
General or the Deputy Attorney General from time to time.
    (c) Cooperation. Officials of the Federal Bureau of Investigation, 
the Drug Enforcement Administration, the United States Marshals Service, 
the Immigration and Naturalization Service and all other components of 
the Department that may be requested by the Director of Investigative 
Agency Policies shall provide such information as the Director may 
request.
    (d) Review. Prior to making any decision having a significant impact 
on any criminal investigative agency of the Department, the Director 
shall consult with the head of such agency, or the designee of the head 
of such agency. Any head of a criminal investigative agency shall have 
an opportunity to seek review of any decision of the Director by the 
Deputy Attorney General or the Attorney General.
    (e) Scope. Nothing in this section shall be interpreted to alter or 
diminish the responsibilities of the Department's criminal investigative 
agencies, or of other components of the Department, including the 
Criminal Division and the United States Attorneys, in the investigation 
and prosecution of violations of federal criminal law.
    (f) Reservation. This policy is set forth solely for the purpose of 
internal Department of Justice guidance. It is not intended to, does 
not, and may not be relied upon to create any rights, substantive or 
procedural, that are enforceable at law by any party in any matter, 
civil or criminal, nor does it place any limitations on otherwise lawful 
investigative or litigative prerogatives of the Department of Justice.

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



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

    The Office of Small and Disadvantaged Business Utilization is headed 
by a Director appointed by the Attorney General, who shall be 
responsible to, and report directly to, the Deputy Attorney General. 
Subject to the general supervision and direction of the Deputy Attorney 
General, the Director shall:
    (a) Be responsible for the implementation and execution of the 
functions and duties required by sections 637 and 644 of title 15 U.S. 
Code;
    (b) Establish Department goals for the participation by small 
businesses, including small businesses owned and controlled by socially 
and economically disadvantaged individuals, in Department procurement 
contracts;
    (c) Have supervisory authority over Department personnel to the 
extent that the functions and duties of such personnel relate to the 
functions and duties described in paragraph (a) of this section;
    (d) Provide resource information and technical training and 
assistance regarding utilization of small businesses, including small 
businesses owned and controlled by socially and economically 
disadvantaged individuals, to Department personnel who perform 
procurement functions;
    (e) Assign a small business technical adviser to any Department 
offices to

[[Page 14]]

which the Small Business Administration assigns a procurement center 
representative, in accordance with section 644(k)(6) of title 15 U.S. 
Code;
    (f) Develop and implement appropriate outreach programs to include 
small minority businesses in procurement contracts;
    (g) Cooperate and consult regularly with the Small Business 
Administration with respect to the functions and duties described in 
paragraph (a) of this section;
    (h) Review, evaluate and report to the Deputy Attorney General on 
the performance of organizational units of the Department in 
accomplishing the goals for utilization of small and disadvantaged 
businesses; and
    (i) Prepare the Department's annual report to the Small Business 
Administration on the extent of participation by small and disadvantaged 
businesses in Department procurement contracts.

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



          Subpart C	1_Office of the Associate Attorney General



Sec. 0.19  Associate Attorney General.

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

[Order No. 960-81, 46 FR 52341, Oct. 27, 1981, as amended by Order No. 
1047-84, 49 FR 6485, Feb. 22, 1984; Order No. 1106-85, 50 FR 36055, 
Sept. 5, 1985; Order No. 1251-88, 53 FR 5370, Feb. 24, 1988; Order No. 
2800-2006, 71 FR 6207, Feb. 7, 2006; Order No. 2897-2007, 72 FR 41624, 
July 31, 2007]



                Subpart D_Office of the Solicitor General



Sec. 0.20  General functions.

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

[[Page 15]]

Associate Attorney General in the development of broad Department 
program policy.

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



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

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



             Subpart D	1_Executive Office for U.S. Attorneys



Sec. 0.22  General functions.

    The Executive Office for United States Attorneys shall be under the 
direction of a Director who shall:
    (a) Provide general executive assistance and supervision to the 
offices of the U.S. Attorneys, including:
    (1) Evaluating the performance of the offices of the U.S. Attorneys, 
making appropriate reports and inspections and taking corrective action 
were indicated.
    (2) Coordinating and directing the relationship of the offices of 
the U.S. Attorneys with other organizational units of the Department of 
Justice.
    (b) Publish and maintain a U.S. Attorneys' Manual and a United 
States Attorneys' Bulletin for the internal guidance of the U.S. 
Attorneys' offices and those other organizational units of the 
Department concerned with litigation.
    (c) Supervise the operation of the Office of Legal Education, the 
Attorney General's Advocacy Institute and the Legal Education Institute, 
which shall develop, conduct and authorize the training of all Federal 
legal personnel.
    (d) Provide the Attorney General's Advisory Committee of United 
States Attorneys with such staff assistance and funds as are reasonably 
necessary to carry out the Committee's responsibilities (28 CFR 
0.10(d)).
    (e) Establish policy and procedures for the satisfaction, 
collection, or recovery of criminal fines, special assessments, 
penalties, interest, bail bond forfeitures, restitution, and court costs 
in criminal cases consistent with Sec. 0.171 of this chapter.

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



                   Subpart D	2_Office of Legal Policy



Sec. 0.23  General functions.

    The Office of Legal Policy shall be headed by an Assistant Attorney 
General. The principal responsibilities of the Office shall be to plan, 
develop, and coordinate the implementation of major policy initiatives 
of high priority to the Department and to the Administration. In 
addition, the Assistant Attorney General, Office of Legal Policy, shall:
    (a) Examine and study legislation and other policy proposals and 
coordinate Departmental efforts to secure enactment of those of special 
interest to the Department and the Administration.
    (b) Assist the Attorney General and the Deputy Attorney General in 
fulfilling responsibilities of the Federal Legal Council to promote 
coordination and communication among Federal legal offices with the goal 
of achieving effective, consistent, and efficient management of legal 
resources throughout the Federal Government.
    (c) Manage and coordinate the discharge of Departmental 
responsibilities related to the Freedom of Information Act (5 U.S.C. 
552) and the Privacy Act (5 U.S.C. 552a), including coordination and 
implementation of policy development and compliance within executive 
agencies and Departmental units relative to the Freedom on Information 
Act and within Departmental units relative to the Privacy Act; and 
supervise the Office of Information and Privacy which will, except as 
otherwise directed by the Attorney General, act on appeals taken from 
Departmental denials of access to records under the Privacy Act and the 
Freedom of Information Act.
    (d) Advise and assist the Attorney General and the Deputy Attorney 
General regarding the selection and appointment of Federal judges.
    (e) Administer the Federal Justice Research Program.

[[Page 16]]

    (f) Represent the Department on the Administrative Conference of the 
United States and, as appropriate, on regulatory reform matters.
    (g) Participate, as appropriate, in internal budget hearings of the 
Department with regard to policy implications of resource allocations 
and resource implications of major policy initiatives; and advise the 
Assistant Attorney General for Administration with regard to information 
requirements for Departmental policy formulation.
    (h) Advise appropriate Departmental officials, from time to time, on 
investigation, litigation, negotiation, penal, or correctional policies 
to insure the compatibility of those policies with overall Departmental 
goals.
    (i) Perform such other duties and functions as may be specially 
assigned by the Attorney General and the Deputy Attorney General.

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

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



Sec. 0.23a  [Reserved]



Sec. 0.23b  Office of Asylum Policy and Review.

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

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



                Subpart D	3_Office of Information Policy



Sec. 0.24  General functions.

    The Office of Information Policy shall be headed by a Director 
appointed by the Attorney General. The Director shall report to the 
Associate Attorney General. The following functions are assigned to, and 
shall be conducted, handled, or supervised by the Director of the Office 
of Information Policy:
    (a) Exercising the power and performing the functions vested in the 
Attorney General under 5 U.S.C. 552(e).
    (b) Developing, coordinating, and implementing policy with regard to 
the Freedom of Information Act (``FOIA''), including publishing guidance 
and other material related to FOIA matters;
    (c) Providing legal assistance and advice to government agencies and 
organizational components of the Department on questions regarding the 
interpretation and application of the FOIA;
    (d) Undertaking, arranging, or supporting training and informational 
programs concerning the FOIA for government agencies and the Department;
    (e) Responding to initial requests made under the FOIA and the 
Privacy Act for the Office of Information Policy, as well as for the 
following Leadership Offices:
    (i) Office of the Attorney General;
    (ii) Office of the Deputy Attorney General;
    (iii) Office of the Associate Attorney General;
    (iv) Office of Legal Policy;
    (v) Office of Legislative Affairs;
    (vi) Office of Public Affairs;
    (vii) Office of Intergovernmental and Public Liaison; and
    (viii) Any other Department component that the Attorney General 
assigns to the Office of Information Policy for responding to requests 
made to such component under the FOIA and the Privacy Act.
    (f) Acting on behalf of the Attorney General on FOIA and Privacy Act 
access administrative appeals for all components of the Department, 
except that a denial of a request by the Attorney General is the final 
action of the Department on that request;
    (g) Representing government agencies in civil litigation claims 
arising under the FOIA through and under the direction of the United 
States Attorney's Office for the District of Columbia and any such other 
districts as may be designated;

[[Page 17]]

    (h) Providing staff support to the Department Review Committee, 
established by Sec. 17.14 of this chapter; and
    (i) Encouraging all Federal agencies that intend to deny FOIA 
requests raising novel issues to consult with the Office of Information 
Policy to the extent practicable.

[Order 3085-2009, 74 FR 29129, June 19, 2009]



                    Subpart E_Office of Legal Counsel



Sec. 0.25  General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Assistant Attorney General, 
Office of Legal Counsel:
    (a) Preparing the formal opinions of the Attorney General; rendering 
informal opinions and legal advice to the various agencies of the 
Government; and assisting the Attorney General in the performance of his 
functions as legal adviser to the President and as a member of, and 
legal adviser to, the Cabinet.
    (b) Preparing and making necessary revisions of proposed Executive 
orders and proclamations, and advising as to their form and legality 
prior to their transmission to the President; and performing like 
functions with respect to regulations and other similar matters which 
require the approval of the President or the Attorney General.
    (c) Rendering opinions to the Attorney General and to the heads of 
the various organizational units of the Department on questions of law 
arising in the administration of the Department.
    (d) Approving proposed orders of the Attorney General, and orders 
which require the approval of the Attorney General, as to form and 
legality and as to consistency and conformity with existing orders and 
memoranda.
    (e) Coordinating the work of the Department of Justice with respect 
to the participation of the United States in the United Nations and 
related international organizations and advising with respect to the 
legal aspects of treaties and other international agreements.
    (f) When requested, advising the Attorney General in connection with 
his review of decisions of the Board of Immigration Appeals and other 
organizational units of the Department.
    (g) Designating within the Office of Legal Counsel:
    (1) A liaison officer, and an alternate, as a representative of the 
Department in all matters concerning the filing of departmental 
documents with the Office of the Federal Register, and
    (2) A certifying officer, and an alternate, to certify copies of 
documents required to be filed with the Office of the Federal Register 
(1 CFR 16.1).
    (h) Approving certain blind trusts, as required by section 
202(f)(4)(B) of the Ethics in Government Act of 1978, 92 Stat. 1843.
    (i) Consulting with the Director of the Office of Government Ethics 
regarding the development of policies, rules, regulations, procedures 
and forms relating to ethics and conflicts of interest, as required by 
section 402 of the Ethics in Government Act of 1978, 92 Stat. 1862.
    (j) Taking actions to ensure implementation of Executive Order 12612 
(entitled ``Federalism''), including determining which Department 
policies have sufficient federalism implications to warrant preparation 
of a Federalism Assessment, reviewing Assessments for adequacy, and 
executing certifications for the Assessments.
    (k) Performing such special duties as may be assigned by the 
Attorney General, the Deputy Attorney General, or the Associate Attorney 
General from time to time.

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



              Subpart E	1_Office of International Programs



Sec. 0.26  Organization.

    There shall be within the Office of the Deputy Attorney General an 
Office of International Programs.
    (a) Director. The Office of International Programs shall be headed 
by a Director appointed by the Attorney General.

[[Page 18]]

    (b) Functions. The Director of the Office of International Programs 
shall discharge the following duties:
    (1) Coordinate all proposals for the Department of Justice, or 
Department of Justice personnel, to provide foreign countries with 
training or technical assistance in the fields of law enforcement, 
administration of justice, legislation, and economic reform and 
democratic institution-building initiatives.
    (2) Assist the Deputy Attorney General in coordinating the 
activities of the International Criminal Investigative Training 
Assistance Program and in coordinating responses to requests for 
international training and technical assistance submitted to the 
INTERPOL-U.S. National Central Bureau and other Department of Justice 
units.
    (3) Serve as the focal point, on behalf of the Deputy Attorney 
General, for administrative matters involving international activities, 
including overseas staffing, of all Department of Justice units.
    (4) Coordinate arrangements and preparations for contacts by the 
Attorney General and Deputy Attorney General with officials of foreign 
governments, foreign non-governmental organizations, and international 
organizations.
    (5) As required, advise the Deputy Attorney General on matters 
relating to non-operational foreign travel by Department of Justice 
personnel.
    (6) Serve as a primary liaison with the Department of State, with 
other appropriate federal, state and local agencies, and with 
appropriate non-governmental institutions, regarding training and 
technical assistance to foreign countries in the fields of law 
enforcement, administration of justice, legislation, and economic reform 
and democratic institution-building initiatives.
    (7) Review and coordinate all planned and ongoing training and 
technical assistance activities in the fields of law enforcement, 
administration of justice, legislation, and economic reform and 
democratic institution-building initiatives by Department of Justice 
personnel in foreign countries.
    (8) As needed, facilitate logistical arrangements for Department of 
Justice personnel to engage in approved training and technical 
assistance activities in the fields of law enforcement, administration 
of justice, legislation, and economic reform and democratic institution-
building initiatives in foreign countries.
    (9) Coordinate Department of Justice views on proposals for entities 
outside the Department, including international organizations, to 
conduct training and technical assistance activities in the fields of 
law enforcement, administration of justice, legislation, and economic 
reform and democratic institution-building initiatives in or for foreign 
countries.
    (10) Serve as a focal point, on behalf of the Deputy Attorney 
General, for resolution, within the Department of Justice, of issues 
regarding international policy.
    (11) Coordinate, on behalf of the Deputy Attorney General, 
legislation relevant to Department of Justice training and technical 
assistance activities in or for foreign countries.
    (12) Perform such other duties and functions as may be specially 
assigned by the Deputy Attorney General.
    (c) Relationship with other Departmental units. The Office of 
International Programs shall:
    (1) Maintain continual liaison with interested components of the 
Department on international matters.
    (2) Develop and administer effective mechanisms to ensure thorough 
consideration, by interested components of the Department, of all 
proposals for international training and technical assistance by 
Department personnel.
    (d) Redelegation of authority. The Director is authorized to 
redelegate to any subordinate member of the Office of International 
Programs any of the authority, functions or duties vested in the 
Director by this subpart.

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



     Subpart E	2_Office of Legislative and Intergovernmental Affairs



Sec. 0.27  General functions.

    The following-described matters are assigned to, and shall be 
conducted,

[[Page 19]]

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

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



                  Subpart E	3_Office of Public Affairs



Sec. 0.28  General functions.

    The Office of Public Affairs is headed by a Director of Public 
Affairs who shall:
    (a) Handle matters pertaining to relations with the public 
generally.
    (b) Disseminate information to the press, the radio and television 
services, the public, members of Congress, officials of Government, 
schools, colleges, and civic organizations.
    (c) Coordinate the relations of the Department of Justice with the 
news media.
    (d) Serve as a central agency for information relating to the work 
and activities of all agencies of the Department.
    (e) Prepare public statements and news releases.
    (f) Coordinate Department publications.
    (g) Assist the Attorney General and other officials of the 
Department in preparing for news conferences, interviews and other 
contacts with the news media.

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



               Subpart E	4_Office of the Inspector General

    Source: Order No. 2167-98, 63 FR 36847, July 8, 1998, unless 
otherwise noted.



Sec. 0.29  Organization.

    (a) The Office of the Inspector General consists of an immediate 
office, which is composed of the Inspector General, the Deputy Inspector 
General, and the Office of the General Counsel, and five major 
divisions, each headed by an Assistant Inspector General. The five OIG 
divisions are: Audit; Investigations; Evaluation and Inspections; 
Oversight and Review; and Management and Planning.
    (b) The OIG is headquartered in Washington, DC. Investigations Field 
Offices and Audit Regional Offices are located in Washington, DC and 
throughout the United States. For a listing of specific office 
locations, see the OIG Internet Website at http://www.usdoj.gov/oig.

[Order No. 2167-98, 63 FR 36847, July 8, 1998, as amended by Order No. 
2835-2006, 71 FR 54413, Sept. 15, 2006]



Sec. 0.29a  General functions.

    (a) The OIG is a statutorily created independent entity within the 
Department of Justice subject to the general supervision of the Attorney 
General that conducts and supervises audits, inspections, and 
investigations relating to the programs and operations of the 
Department; recommends policies to promote economy, efficiency, and 
effectiveness and to prevent and detect fraud and abuse in Departmental 
programs and operations; and keeps the Attorney General and Congress 
informed about the problems and deficiencies relating to the 
administration of the Department and the necessity for and progress of 
corrective action.

[[Page 20]]

    (b) In order to carry out its responsibilities the OIG:
    (1) Audits and inspects Department programs and operations as well 
as non-Department entities contracting with or receiving benefits from 
the Department;
    (2) Investigates allegations of criminal wrongdoing and 
administrative misconduct on the part of Department employees, as 
provided in Sec. 0.29c of this subpart;
    (3) Investigates allegations that individuals and entities outside 
of the Department have engaged in activity that adversely affects the 
Department's programs and operations;
    (4) Undertakes sensitive investigations of Department operations 
and/or personnel, often at the request of senior Department officials or 
Congress.



Sec. 0.29b  Reporting allegations of waste, fraud, or abuse.

    Employees shall report evidence and non-frivolous allegations of 
waste, fraud, or abuse relating to the programs and operations of the 
Department to the OIG or to a supervisor for referral to the OIG.



Sec. 0.29c  Reporting allegations of employee misconduct.

    (a) Reporting to the OIG. Evidence and non-frivolous allegations of 
criminal wrongdoing or serious administrative misconduct by Department 
employees shall be reported to the OIG, or to a supervisor or a 
Department component's internal affairs office for referral to the OIG, 
except as provided in paragraph (b) of this section.
    (b) Reporting to the Department's Office of Professional 
Responsibility (DOJ-OPR). Employees shall report to DOJ-OPR evidence and 
non-frivolous allegations of serious misconduct by Department attorneys 
that relate to the exercise of their authority to investigate, litigate, 
or provide legal advice. Employees shall also report to DOJ-OPR evidence 
and non-frivolous allegations of serious misconduct by Department law 
enforcement personnel that are related to allegations of misconduct by a 
Department attorney that relate to the exercise of the attorney's 
authority to investigate, litigate, or provide legal advice.
    (c) Reporting to the Drug Enforcement Administration Office of 
Professional Responsibility (DEA-OPR). Evidence and non-frivolous 
allegations of serious misconduct by employees of the Drug Enforcement 
Administration (DEA) shall be reported by the OIG to the Drug 
Enforcement Administration Office of Professional Responsibility (DEA-
OPR) or to the Deputy Attorney General.
    (d) Reporting to the Federal Bureau of Investigation Office of 
Professional Responsibility (FBI-OPR). Evidence and non-frivolous 
allegations of serious misconduct by employees of the Federal Bureau of 
Investigation (FBI) shall be reported by the OIG to the FBI-OPR except 
as provided in Sec. 0.29d of this subpart, or to the Deputy Attorney 
General.

[Order No. 2167-98, 63 FR 36847, July 8, 1998, as amended by Order No. 
2492-2001, 66 FR 37903, July 20, 2001]



Sec. 0.29d  Whistleblower protection for FBI employees.

    (a) Protected disclosures by FBI employees. Disclosures of 
information by an FBI employee that the employee reasonably believes 
evidences a violation of any law, rule, or regulation, or mismanagement, 
gross waste of funds, an abuse of authority, or a substantial and 
specific danger to public health or safety are protected disclosures 
when they are reported as provided in Sec. 27.1 of this chapter. Any 
office or official (other than the OIG or DOJ-OPR) receiving a protected 
disclosure shall promptly report such disclosure to the OIG or DOJ-OPR. 
The OIG or DOJ-OPR may refer such allegations to FBI Inspection Division 
(FBI-INSD) Internal Investigations Section for investigation unless the 
Deputy Attorney General determines that such referral shall not be made.
    (b) Allegations of retaliation against FBI employees. Allegations of 
retaliation against an employee of the FBI who makes a protected 
disclosure shall be reported to the OIG, DOJ-OPR, or the Deputy Attorney 
General.

[Order No. 2167-98, 63 FR 36847, July 8, 1998, as amended by Order No. 
2492-2001, 66 FR 37903, July 20, 2001; Order No. 2926-2008, 73 FR 1494, 
Jan. 9, 2008]

[[Page 21]]



Sec. 0.29e  Relationship to other departmental units.

    (a) The OIG works cooperatively with other Department components to 
assure that allegations of employee misconduct are investigated by the 
appropriate entity:
    (1) The OIG refers to DOJ-OPR allegations of misconduct within DOJ-
OPR's jurisdiction and may refer to another component the investigation 
of an allegation of misconduct on the part of an employee of that 
component;
    (2) The OIG may refer to a Department component's internal affairs 
office allegations of misconduct within that office's jurisdiction or 
may investigate such allegations on its own;
    (3) DOJ-OPR refers to the OIG allegations involving misconduct by 
Department attorneys or investigators that do not relate to the exercise 
of an attorney's authority to investigate, litigate, or provide legal 
advice.
    (4) The OIG and the FBI notify each other of the existence of 
criminal investigations that fall within their joint jurisdiction to 
investigate crimes involving the operations of the Department, except 
where such notification could compromise the integrity of an 
investigation;
    (5) All Department components report to the OIG all non-frivolous 
allegations of criminal wrongdoing and serious administrative misconduct 
involving any of their employees except allegations involving Department 
attorneys and investigators that relate to an attorney's authority to 
litigate, investigate, or provide legal advice.
    (6) At the request of the Inspector General, the Deputy Attorney 
General may assign to the OIG a matter within the investigative 
jurisdiction of DOJ-OPR. In such instances, the OIG shall either:
    (i) Notify DOJ-OPR of its request to the Deputy Attorney General or
    (ii) Request that the Deputy Attorney General determine that such 
notification would undermine the integrity of the investigation nor 
jeopardize the interests of the complainant.
    (7) While an issue of investigative jurisdiction or assignment is 
pending before the Deputy Attorney General, neither the OIG DOJ-OPR 
shall undertake any investigative activity without authorization from 
the Deputy Attorney General.
    (b) OIG investigations that result in findings of potential criminal 
misconduct or civil liability are referred to the appropriate 
prosecutorial or litigative office.
    (c) The OIG advises DOJ-OPR of the existence and results of any 
investigation that reflects upon the ethics, competence, or integrity of 
a Department attorney for appropriate action by DOJ-OPR.
    (d) OIG investigations that result in findings of administrative 
misconduct are reported to management for appropriate disposition.

[Order No. 2167-98, 63 FR 36847, July 8, 1998; 63 FR 40788, July 30, 
1998, as amended by Order No. 2492-2001, 66 FR 37903, July 20, 2001]



Sec. 0.29f  Confidentiality.

    The Inspector General shall not, during the pendency of an 
investigation, disclose the identity of an employee who submits a 
complaint to the OIG without the employee's consent, unless the 
Inspector General determines that such disclosure is unavoidable in the 
course of the investigation.



Sec. 0.29g  Reprisals.

    Any employee who has authority to take, direct others to take, 
recommend, or approve any personnel action shall not, with respect to 
such authority, take or threaten to take any action against any employee 
as a reprisal for the employee making a complaint or disclosing 
information to the OIG unless the complaint was made or the information 
was disclosed with knowledge that it was false or with willful disregard 
for its truth or falsity.



Sec. 0.29h  Specific authorities of the Inspector General.

    The Inspector General is authorized to:
    (a) Conduct investigations and issue reports relating to criminal 
wrongdoing and administrative misconduct of Department employees and 
administration of the programs and operations of the Department as are, 
in the judgment of the Inspector General, necessary or desirable;

[[Page 22]]

    (b) Receive and investigate complaints or information from an 
employee of the Department concerning the possible existence of an 
activity constituting a violation of law, rules, or regulations, or 
mismanagement, gross waste of funds, an abuse of authority, or a 
substantial and specific danger to the public health and safety;
    (c) Have direct and prompt access to the Attorney General when 
necessary for any purpose pertaining to the performance of the functions 
and responsibilities of the OIG;
    (d) Have access to all records, reports, audits, reviews, documents, 
papers, recommendations, or other material available to the Department 
and its components that relate to programs and operations with respect 
to which the OIG has responsibilities unless the Attorney General 
notifies the Inspector General, in writing, that such access shall not 
be available because it is necessary to prevent the disclosure of
    (1) Sensitive information concerning ongoing civil or criminal 
investigations or proceedings;
    (2) Undercover operations;
    (3) The identity of confidential sources, including protected 
witnesses;
    (4) Intelligence or counterintelligence matters; or
    (5) Other matters the disclosure of which would constitute a serious 
threat to national security or significantly impair the national 
interests of the United States;
    (e) Request such information or assistance as may be necessary for 
carrying out the duties and responsibilities of the OIG from any office, 
board, division, or component of the Department, and any Federal, State, 
or local governmental agency or unit thereof;
    (f) Issue subpoenas to individuals, and entities, other than Federal 
government agencies, for the production of information, records, data, 
and other documentary evidence necessary to carry out the functions of 
the OIG;
    (g) Obtain information from Federal government agencies by means 
other than subpoena and advise the head of such agency whenever 
information is unreasonably refused or not provided;
    (h) Select, appoint, and employ such officers and employees as may 
be necessary for carrying out the functions, powers, and duties of the 
OIG;
    (i) Employ on a temporary basis such experts and consultants as may 
be necessary to carry out the duties of the OIG;
    (j) Enter into contracts and other arrangements for audits, studies, 
analyses, and other services with public agencies and with private 
persons, and to make such payments as may be necessary to carry out the 
duties of the OIG;
    (k) Take from any person an oath, affirmation, or affidavit whenever 
necessary in the performance of the functions of the OIG.

[Order No. 2167-98, 63 FR 36847, July 8, 1998, as amended by Order No. 
2492-2001, 66 FR 37903, July 20, 2001]



Sec. 0.29i  Audit, inspection, and review authority.

    The OIG is authorized to perform audits, inspections, and reviews of 
the programs and operations of the Department of Justice and of entities 
contracting with or obtaining benefits from the Department.



Sec. 0.29j  Law enforcement authority.

    Subject to guidelines promulgated by the Attorney General, Special 
Agents of the Office of the Inspector General are authorized to:
    (a) Detect and assist in the prosecution of crimes in violation of 
the laws of the United States and to conduct such other investigations 
regarding matters that are within the jurisdiction of the Inspector 
General;
    (b) Serve legal writs, summons, complaints, and subpoenas issued by 
the Inspector General or by a Federal grand jury;
    (c) Receive, transport, and provide safekeeping of arrestees and 
other persons in the custody of the Attorney General or detained aliens;
    (d) Arrest without warrant any person for an offense against the 
United States committed in the presence of the Special Agent or whom the 
Special Agent has reasonable grounds to believe has committed or is 
committing a felony cognizable under the laws of the United States;
    (e) Seek and execute search and arrest warrants;

[[Page 23]]

    (f) Carry firearms while on-duty; and
    (g) Carry firearms while off-duty as authorized by the Inspector 
General.

[Order No. 2835-2006, 71 FR 54413, Sept. 15, 2006]



                  Subpart F_Community Relations Service



Sec. 0.30  General functions.

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

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



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

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



Sec. 0.32  Applicability of existing departmental regulations.

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

Subpart F-1--[Reserved]



       Subpart F	2 INTERPOL-United States National Central Bureau



Sec. 0.34  General functions.

    The following functions are assigned to, and shall be conducted, 
handled, or supervised by, the Chief of the United States National 
Central Bureau, International Criminal Police Organization (INTERPOL--
U.S. National Central Bureau), as authorized by statute and within 
guidelines prescribed by the Department of Justice, in conjunction with 
the Department of Treasury:
    (a) Facilitate international law enforcement cooperation as the 
United States representative with the International Criminal Police 
Organization (INTERPOL), on behalf of the Attorney General, pursuant to 
22 U.S.C. 263a.
    (b) Represent the U.S. National Central Bureau at criminal law 
enforcement and international law enforcement conferences and symposia.
    (c) Serve as a member of the Executive Committee of INTERPOL-United 
States National Central Bureau (INTERPOL-USNCB).
    (d) Transmit information of a criminal justice, humanitarian, or 
other law enforcement related nature between National Central Bureaus of 
INTERPOL member countries, and law enforcement agencies within the 
United States and abroad; and respond to requests by law enforcement 
agencies, and other legitimate requests by appropriate organizations, 
institutions and individuals, when in agreement with the INTERPOL 
constitution.
    (e) Coordinate and integrate information for investigations of an 
international nature and identify those involving patterns and trends of 
criminal activities.
    (f) Conduct analyses of patterns of international criminal 
activities, when specific patterns are observed.
    (g) Establish and collect user fees to process name checks and 
background records for licensing, humanitarian and other non-law 
enforcement purposes.

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

[[Page 24]]



                 Subpart G_Office of the Pardon Attorney

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



Sec. 0.35  General functions; delegation of authority.

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

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



Sec. 0.36  Recommendations.

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

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



         Subpart G	1_Executive Office for United States Trustees



Sec. 0.37  Organization.

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

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



Sec. 0.38  Functions.

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

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



            Subpart G	2_Office of Professional Responsibility

    Source: Order No. 2835-2006, 71 FR 54414, Sept. 15, 2006, unless 
otherwise noted.



Sec. 0.39  Office of Professional Responsibility.

    The Office of Professional Responsibility (DOJ-OPR) shall be headed 
by a Counsel, who shall be appointed by the Attorney General and subject 
to the general supervision and direction of the Attorney General or, 
whenever appropriate, the Deputy Attorney General.



Sec. 0.39a  Functions.

    (a) The Counsel shall:
    (1) Receive, review, investigate and refer for appropriate action 
allegations of misconduct involving Department attorneys that relate to 
the exercise of their authority to investigate, litigate or provide 
legal advice, as well as allegations of misconduct by law enforcement 
personnel when such allegations are related to allegations of attorney 
misconduct within the jurisdiction of DOJ-OPR;
    (2) Receive, review, investigate and refer for appropriate action;
    (i) Any allegation of reprisal against an employee or applicant who 
discloses information pursuant to paragraph (a)(1) of this section; and
    (ii) Allegations of reprisal taken against any Federal Bureau of 
Investigation employee for disclosing information pursuant to 28 CFR 
27.1;
    (3) Report to the responsible Department official the results of 
inquiries and investigations arising under paragraphs (a)(1) and (2) of 
this section, and, when appropriate, make recommendations for 
disciplinary and other corrective action;
    (4) Refer any allegation not arising under paragraphs (a)(1) or (2) 
of this section to the Inspector General or another appropriate 
Department official;

[[Page 25]]

    (5) Notify any person who has made allegations pursuant to 
paragraphs (a)(1) or (2) of this section and any person who was the 
subject of such allegations of the completion and, as appropriate, the 
results of, any inquiry or investigation undertaken, where such 
notification is permitted by law and consistent with the law enforcement 
interests of the Department;
    (6) Engage in liaison with the bar disciplinary authorities of the 
states, territories, and the District of Columbia with respect to 
professional misconduct matters;
    (7) Submit an annual report to the Attorney General summarizing the 
work of the Office;
    (8) Submit recommendations to the Attorney General and the Deputy 
Attorney General on the need for changes in policies and procedures that 
become evident during the course of the Counsel's inquiries and 
investigations;
    (9) Review proposals from Department employees to refer to 
appropriate licensing authorities apparent professional misconduct by 
attorneys outside the Department, and make such referrals where 
warranted, except that referrals made pursuant to 8 CFR 1003.106(d) do 
not require the Counsel's review; and
    (10) Perform any other responsibilities assigned by the Attorney 
General or the Deputy Attorney General.
    (b) For the purpose of paragraph (a)(2)(i) of this section, any 
disclosure by an employee or applicant to a supervisor, Professional 
Responsibility Officer, the Office of Professional Responsibility, the 
Office of the Inspector General, the Executive Office for United States 
Attorneys, or other appropriate individual or component shall constitute 
disclosure to the Attorney General or the Counsel.



Sec. 0.39b  Confidentiality of information.

    The Counsel shall not disclose the identity of any person submitting 
an allegation of misconduct or reprisal pursuant to 28 CFR 0.39a(a)(1) 
or (2) unless the person consents to the disclosure of his identity or 
the disclosure is necessary to carry out the authority of the Office of 
Professional Responsibility, including conducting an investigation or 
referring the allegation to another component.



Sec. 0.39c  Relationship to other departmental units.

    (a) Primary responsibility for assuring the maintenance of the 
highest standards of professional responsibility by Department employees 
rests with the heads of the offices, divisions, bureaus, and boards of 
the Department.
    (b) The heads of the offices, divisions, bureaus, and boards shall 
assure that any judicial finding of misconduct or serious judicial 
criticism relating to the duties described in Sec. 0.39(a)(1), or any 
nonfrivolous allegation of serious misconduct concerning an employee in 
their component and relating to those duties, is reported to the 
Counsel.
    (c) The heads of the offices, divisions, bureaus, and boards shall 
provide information and assistance requested by the Counsel in 
connection with any inquiries or investigations conducted by the Counsel 
or by the Counsel's staff. As set forth in part 45, all Department 
personnel, including the subject(s) of any inquiry or investigation, 
shall cooperate fully with any investigation conducted by the Counsel or 
his designee.



                      Subpart H_Antitrust Division



Sec. 0.40  General functions.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Antitrust 
Division:
    (a) General enforcement, by criminal and civil proceedings, of the 
Federal antitrust laws and other laws relating to the protection of 
competition and the prohibition of restraints of trade and 
monopolization, including conduct of surveys of possible violations of 
antitrust laws, conduct of grand jury proceedings, issuance and 
enforcement of civil investigative demands, civil actions to obtain 
orders and injunctions, civil actions to recover forfeitures or damages 
for injuries sustained by the United States as a result of antitrust law 
violations, proceedings to enforce compliance with final judgments in 
antitrust suits and negotiation of consent judgments in civil actions, 
civil actions to recover penalties, criminal

[[Page 26]]

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

[[Page 27]]

of the free enterprise system and when authorized participating in 
conferences and committees with foreign governments and treaty 
organizations concerned with competition and restrictive business 
practices in international trade.
    (i) Collecting fines, penalties, judgments, and forfeitures arising 
in antitrust cases.
    (j) [Reserved]
    (k) As the delegate of the Attorney General, performance of all 
functions which the Attorney General is required or authorized to 
perform by title III of Public Law 97-290 (15 U.S.C. 4011-4021) with 
respect to export trade certificates of review.

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



Sec. 0.41  Special functions.

    The following functions are assigned to, and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Antitrust 
Division:
    (a) Institution of proceedings to impose penalties for violations of 
section 202(a) of the Communications Act of 1934 (48 Stat. 1070), as 
amended (47 U.S.C. 202(a)), which prohibits common carriers by wire or 
radio from unjustly or unreasonably discriminating among persons, 
classes of persons, or localities.
    (b) Representing the United States in suits pending as of February 
28, 1975, before three-judge district courts under sections 2321-2325 of 
title 28 of the U.S. Code, to enforce, suspend, enjoin, annul, or set 
aside, in whole or in part, any order of the Interstate Commerce 
Commission. (Pub. L. 93-584, Sec. 10, 88 Stat. 1917)
    (c) Representing the United States in proceedings before courts of 
appeals to review orders of the Interstate Commerce Commission, the 
Federal Communications Commission, the Federal Maritime Commission and 
the Nuclear Regulatory Commission (28 U.S.C. 2341-2350).
    (d) Representing the Civil Aeronautics Board, and the Secretary of 
the Treasury or his delegates under the Federal Alcohol Administration 
Act, in courts of appeals reviewing their respective administrative 
orders.
    (e) Defending the Secretary of the Treasury or his delegates under 
the Federal Alcohol Administration Act, and the agencies named in 
paragraphs (c), (d) and (e) of this section or their officers against 
the injunctive actions brought in Federal courts when the matter which 
is the subject of the actions will ultimately be the subject of review 
under paragraph (c), (d), (e) or (g) of this section, or of an 
enforcement action under paragraph (b) of this section.
    (f) Seeking review of or defending judgments rendered in proceedings 
under paragraphs (a) through (e) of this section.
    (g) Acting on behalf of the Attorney General with respect to 
sections 252 and 254 of the Energy Policy and Conservation Act, 42 
U.S.C. 6272, 6274, including acting on behalf of the Attorney General 
with respect to voluntary agreements or plans of action established 
pursuant to section 252 of that Act.
    (h) [Reserved]
    (i) Acting on behalf of the Attorney General with respect to 
sections 4(b), 4(c) and 4(d) of the National Cooperative Production 
Amendments of 1993, Pub. L. No. 103-42, 107 Stat. 117 (15 U.S.C. 4305 
note).
    (j) Defending the Secretary of Commerce and the Attorney General, or 
their delegates, in actions to set aside a determination with respect to 
export trade certificates of review under section 305(a) of Public Law 
97-290 (15 U.S.C. 4015(a)).
    (k) Acting on behalf of the Attorney General with respect to section 
6 of the National Cooperative Research and Production Act of 1984, Pub. 
L. 98-462, 98 Stat. 1815, as amended by the National Cooperative 
Production Amendments of 1993, Pub. L. No. 103-42, 107 Stat. 117 (15 
U.S.C. 4305).

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

[[Page 28]]



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

                             [Memo No. 79-1]

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

[44 FR 54045, Sept. 18, 1979]



                        Subpart I_Civil Division

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



Sec. 0.45  General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Assistant Attorney General, 
Civil Division:
    (a) Admiralty and shipping cases--civil and admiralty litigation in 
any court by or against the United States, its officers and agents, 
which involves ships or shipping (except suits to enjoin final orders of 
the Federal Maritime Commission under the Shipping Act of 1916 and under 
the Intercoastal Shipping Act assigned to the Antitrust Division by 
subpart H of this part), defense of regulatory orders of the Maritime 
Administration affecting navigable waters or shipping thereon (except as 
assigned to the Environment and Natural Resources Division by Sec. 
0.65(a)), workmen's compensation, and litigation and waiver of claims 
under reciprocal-aid maritime agreements with foreign governments.
    (b) Court of claims cases--litigation by and against the United 
States in the Court of Claims, except cases assigned to the Environment 
and Natural Resources Division and the Tax Division by subparts M and N 
of this part, respectively.
    (c) International trade--all litigation before the Court of 
International Trade, including suits instituted pursuant to 28 U.S.C. 
1581(i) and suits by the United States to recover customs duties, to 
recover upon a bond relating to the importation of merchandise required 
by the laws of the United States or by the Secretary of the Treasury and 
to recover a civil penalty under sections 592, 704(i)(2), or 734(i)(2) 
of the Tariff Act of 1930, and the presentation of appeals in the Court 
of International Trade.
    (d) Fraud cases--civil claims arising from fraud on the Government 
(other than antitrust, land and tax frauds), including alleged claims 
under the False Claims Act, the Program Fraud Civil Remedies Act of 
1986, the Surplus Property Act of 1944, the Anti-Kickback Act, the 
Contract Settlement Act of 1944, the Contract Disputes Act of 1978, 19 
U.S.C. 1592 and common law fraud.
    (e) Gifts and bequests--handling matters arising out of devises and 
bequests and inter vivos gifts to the United States, except 
determinations as to the validity of title to any lands involved and 
litigation pertaining to such determinations.
    (f) Patent and allied cases and other patent matters--patent, 
copyright, and trademark litigation before the U.S. courts and the 
Patent Office, including patent and copyright infringement suits in the 
Court of Claims (28 U.S.C. 1498), suits for compensation under the 
Patent Secrecy Act where the invention was ordered to be kept secret in 
the interest of national defense (35 U.S.C. 183), suits for compensation 
for unauthorized practice of a patented invention in the furnishing of 
assistance under the Foreign Assistance Act (22 U.S.C. 2356), suits for 
compensation for the unauthorized communication of restricted data by 
the Atomic Energy Commission to other nations (42 U.S.C. 2223), 
interference proceedings (35 U.S.C. 135, 141, 142, 146), defense of the 
Register of Copyrights in his administrative acts, suits for specific 
performance to acquire title to patents, and civil patent-fraud cases.

[[Page 29]]

    (g) Tort cases--defense of tort suits against the United States 
arising under the Federal Tort Claims Act and special acts of Congress; 
similar litigation against cost-plus Government contractors and Federal 
employees whose official conduct is involved (except actions against 
Government contractors and Federal employees which are assigned to the 
Environment and Natural Resources Division by Sec. 0.65(a); prosecution 
of tort claims for damage to Government property, and actions for the 
recovery of medical expenses under Public Law 87-693 and part 43 of this 
title.
    (h) General civil matters--litigation by and against the United 
States, its agencies, and officers in all courts and administrative 
tribunals to enforce Government rights, functions, and monetary claims 
(except defense of injunctive proceedings assigned to the Antitrust 
Division by subpart H of this part, civil proceedings seeking 
exclusively equitable relief assigned to the Criminal Division by 
Sec. Sec. 0.55(i) and 0.61(d), and proceedings involving judgments, 
fines, penalties, and forfeitures assigned to other divisions by Sec. 
0.171), and to defend challenged actions of Government agencies and 
officers, not otherwise assigned, including, but not limited to, civil 
penalties and forfeitures, actions in the Court of Claims under the 
Renegotiation Act, claims against private persons or organizations for 
which the Government is, or may ultimately be, liable, except as 
provided in Sec. 0.70(c)(2), defense of actions arising under section 
2410 of title 28 of the U.S. Code whenever the United States is named as 
a party as the result of the existence of a Federal lien against 
property, defense of actions for the recovery of U.S. Government Life 
Insurance and National Service Life Insurance (38 U.S.C. 784), 
enforcement of reemployment rights in private industry pursuant to the 
Military Selective Service Act of 1967 (50 U.S.C., App. 459); 
reparations suits brought by the United States as a shipper under the 
Interstate Commerce Act; civil actions by the United States for 
penalties for violations of car service orders (49 U.S.C. 1(17a)); 
actions restraining violations of part II of the Interstate Commerce Act 
(49 U.S.C. 322(b) and 322(h); civil actions under part I of the 
Interstate Commerce Act (49 U.S.C. 6(10) and 16(9)); injunctions against 
violations of Interstate Commerce Commission orders (49 U.S.C. 16(12)); 
mandamus to compel the furnishing of information to the Interstate 
Commerce Commission (49 U.S.C. 19a(1) and 20(9)); recovery of rebates 
under the Elkins Act (49 U.S.C. 41(3)); compelling the appearance of 
witnesses before the Interstate Commerce Commission and enforcement of 
subpenas and punishment for contempt (49 U.S.C. 12(3)); suits to enforce 
final orders of the Secretary of Agriculture under the Perishable 
Agricultural Commodities Act (7 U.S.C. 499g), and the Packers and 
Stockyards Act (7 U.S.C. 216); suits to set aside orders of State 
regulatory agencies (49 U.S.C. 13(4)); and civil matters, except those 
required to be handled by the Board of Parole, under section 504(a) of 
the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 
504(a)).
    (i) Appeals under section 8(b)(1)(B) of the Contract Disputes Act of 
1978--the grant and/or legal denial of prior approval of the Attorney 
General as described in section 8(g)(1)(B) of the Contract Disputes Act 
of 1978. The Assistant Attorney General is authorized to redelegate, to 
the extent and subject to such limitations as may be deemed advisable, 
to subordinate division officials the responsibilities covered by this 
subsection and delineated in section 8(g)(1)(B) of the Contract Disputes 
Act of 1978.
    (j) Consumer litigation--All civil and criminal litigation and grand 
jury proceedings arising under the Federal Food, Drug and Cosmetic Act 
(21 U.S.C. 301 et seq.), the Federal Hazardous Substances Act (15 U.S.C. 
1261 et seq.), the Fair Packaging and Labeling Act (15 U.S.C. 1451 et 
seq.), the Automobile Information Disclosure Act (15 U.S.C. 1231 et 
seq.), the odometer requirements section and the fuel economy labeling 
section of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 
1981 et seq.), the Federal Cigarette Labeling and Advertising Act (15 
U.S.C. 1331 et seq.), the Poison Prevention Packaging Act of 1970 (15 
U.S.C. 1471 et seq.), the Federal Caustic Poison Act (15 U.S.C. 401 
note), the Consumer

[[Page 30]]

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

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

    Editorial Note: For Federal Register citations affecting Sec. 0.45, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 0.46  Certain civil litigation and foreign criminal proceedings.

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

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



Sec. 0.47  Alien property matters.

    The Office of Alien Property shall be a part of the Civil Division:
    (a) The following described matters are assigned to, and shall be 
conducted, handled, or supervised by the Assistant Attorney General in 
charge of the Civil Division, who shall also be the Director of the 
Office of Alien Property:
    (1) Exercising or performing all the authority, rights, privileges, 
powers, duties, and functions delegated to or vested in the Attorney 
General under the Trading with the Enemy Act, as amended, title II of 
the International Claims Settlement Act of 1949, as amended, the act of 
September 28, 1950, 64 Stat. 1079 (50 U.S.C. App. 40), the Philippine 
Property Act of 1946, as amended, and the Executive orders relating to 
such acts, including, but not limited to, vesting, supervising, 
controlling, administering, liquidating,

[[Page 31]]

selling, paying debt claims out of, returning, and settling of 
intercustodial disputes relating to, property subject to one or more of 
such acts.
    (2) Conducting and directing all civil litigation with respect to 
the Trading with the Enemy Act, title II of the International Claims 
Settlement Act, the Foreign Funds Control Program and the Foreign Assets 
Control Program.
    (3) Designating within the Office of Alien Property a certifying 
officer, and an alternate, to certify copies of documents issued by the 
Director, or his designee, which are required to be filed with the 
Office of the Federal Register.
    (b) The Director of the Office of Alien Property shall act for and 
on behalf of the Attorney General.
    (c) All the authority, rights, privileges, powers, duties, and 
functions of the Director of the Office of Alien Property may be 
exercised or performed by any agencies, instrumentalities, agents, 
delegates, or other personnel designated by him.
    (d) Existing delegations by the Assistant Attorney General, 
Director, Office of Alien Property, or the Director, Office of Alien 
Property, shall continue in force and effect until modified or revoked.
    (e) The Assistant Attorney General in charge of the Civil Division 
is authorized to administer and give effect to the provisions of the 
agreement entitled ``Agreement Between the United States of America and 
the Republic of Austria Regarding the Return of Austrian Property, 
Rights and Interests,'' which was concluded on January 30, 1959, and was 
ratified by the Senate of the United States on February 25, 1964.



Sec. 0.48  International trade litigation.

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

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



Sec. 0.49  International judicial assistance.

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

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



                     Subpart J_Civil Rights Division



Sec. 0.50  General functions.

    The following functions are assigned to, and shall be conducted, 
handled, or supervised by, the Assistant Attorney General, Civil Rights 
Division:
    (a) Enforcement of all Federal statutes affecting civil rights, 
including those pertaining to elections and voting, public 
accommodations, public facilities, school desegregation, employment 
(including 42 U.S.C. 2000e-(6)), housing, abortion, sterilization, 
credit, and constitutional and civil rights of Indians arising under 25 
U.S.C. 1301 et seq., and of institutionalized persons, and authorization 
of litigation in such enforcement, including criminal prosecutions and 
civil actions and proceedings on behalf of the Government and appellate 
proceedings in all such cases. Notwithstanding the provisions

[[Page 32]]

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

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

    Editorial Note: For Federal Register citations affecting Sec. 0.50, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 0.51  Leadership and coordination of nondiscrimination laws.

    (a) The Assistant Attorney General in charge of the Civil Rights 
Division shall, except as reserved herein, exercise the authority vested 
in and perform the functions assigned to the Attorney General by 
Executive Order 12250 (``Leadership and Coordination of 
Nondiscrimination Laws''). This delegation does not include the 
function, vested in the Attorney General by sections 1-101 and 1-102 of 
the Executive order, of approving agency rules, regulations, and orders 
of general applicability issued under the Civil Rights Act of 1964 and 
section 902 of the Education Amendments of 1972. Likewise, this 
delegation does not include the authority to issue those regulations 
under section 1-303 of the Executive Order which are required, by Sec. 
0.180 of this part, to be issued by the Attorney General.
    (b) Under paragraph (a) of this section, the Assistant Attorney 
General in charge of the Civil Rights Division shall be responsible for 
coordinating the implementation and enforcement by Executive agencies of 
the nondiscrimination provisions of the following laws:
    (1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (2) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.).

[[Page 33]]

    (3) Section 504 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 794).
    (4) Any other provision of Federal statutory law which provides, in 
whole or in part, that no person in the United States shall, on the 
ground of race, color, national origin, handicap, religion, or sex, be 
excluded from participation in, be denied the benefits of, or be subject 
to discrimination under any program or activity receiving Federal 
financial assistance.

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



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

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

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



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

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

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



                  Sec. Appendix to Subpart J of Part 0

                          Civil Rights Division

                               [Memo 75-2]

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

                               [Memo 78-1]

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

[[Page 34]]

                               [Memo 79-1]

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

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

[44 FR 53080, Sept. 12, 1979]

                              [Memo 92-93]

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

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

[57 FR 19377, May 6, 1992]



                       Subpart K_Criminal Division



Sec. 0.55  General functions.

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

[[Page 35]]

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

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

    Editorial Note: For Federal Register citations affecting Sec. 0.55, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 0.56  Exclusive or concurrent jurisdiction.

    The Assistant Attorney General in charge of the Criminal Division is 
authorized to determine administratively

[[Page 36]]

whether the Federal Government has exclusive or concurrent jurisdiction 
over offenses committed upon lands acquired by the United States, and to 
consider problems arising therefrom.



Sec. 0.57  Criminal prosecutions against juveniles.

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

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



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

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

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



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

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

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



Sec. Sec. 0.61-0.62  [Reserved]



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

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

[[Page 37]]

with respect to the naturalization of certain foreign intelligence 
sources.

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



Sec. 0.64  [Reserved]



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

    The Assistant Attorney General, Criminal Division, in consultation 
with the Assistant Attorney General for National Security in matters 
related to the National Security Division's activities, shall have the 
authority and perform the functions of the ``Central Authority'' or 
``Competent Authority'' (or like designation) under treaties and 
executive agreements between the United States of America and other 
countries on mutual assistance in criminal matters that designate the 
Attorney General or the Department of Justice as such authority. The 
Assistant Attorney General, Criminal Division, is authorized to re-
delegate this authority to the Deputy Assistant Attorneys General, 
Criminal Division, and to the Director and Deputy Directors of the 
Office of International Affairs, Criminal Division.

[Order No. 2865-2007, 72 FR 10065, Mar. 7, 2007]



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

    The Assistant Attorney General, Criminal Division, in consultation 
with the Assistant Attorney General for National Security in matters 
related to the National Security Division's activities, is authorized to 
exercise all of the power and authority vested in the Attorney General 
under 18 U.S.C. 4102 that has not been delegated to the Director of the 
Bureau of Prisons under 28 CFR 0.96b, including specifically the 
authority to find appropriate or inappropriate the transfer of offenders 
to or from a foreign country under a treaty as referred to in Public Law 
95-144. The Assistant Attorney General, Criminal Division is authorized 
to redelegate this authority within the Criminal Division to the Deputy 
Assistant Attorneys General, the Director of the Office of Enforcement 
Operations, and the Senior Associate Director and Associate Directors of 
the Office of Enforcement Operations.

[Order No. 2865-2007, 72 FR 10065, Mar. 7, 2007]



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

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

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



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

to testify in Federal or State criminal proceedings.

    The Assistant Attorney General, Criminal Division, in consultation 
with the Assistant Attorney General for National Security in matters 
related to the National Security Division's activities, is authorized to 
exercise all of the power and authority vested in the Attorney General 
under 18 U.S.C. 3508 that has not been delegated to the Director of the 
United States Marshals Service under 28 CFR 0.111a, including 
specifically the authority to determine whether and under what 
circumstances temporary transfer of a prisoner-witness to the United 
States is appropriate or inappropriate; to determine the point at which 
the witness should

[[Page 38]]

be returned to the transferring country; and to enter into appropriate 
agreements with the transferring country regarding the terms and 
conditions of the transfer. The Assistant Attorney General, Criminal 
Division is authorized to redelegate this authority within the Criminal 
Division to the Deputy Assistant Attorneys General and to the Director 
and Deputy Directors of the Office of International Affairs.

[Order No. 2865-2007, 72 FR 10066, Mar. 7, 2007]



Sec. 0.64-5  Policy with regard to bringing charges under the Economic 
Espionage Act of 1996, Pub. L. 104-294, effective October 11, 1996.

    The United States may not file a charge under 18 U.S.C. 1831 of the 
Economic Espionage Act of 1996 (the ``EEA'') (18 U.S.C. 1831 et seq.), 
or use a violation under section 1831 of the EEA as a predicate offense 
under any other law, without the personal approval of the Attorney 
General, the Deputy Attorney General, the Assistant Attorney General for 
National Security, or the Assistant Attorney General, Criminal Division 
(or the Acting official in each of these positions if a position is 
filled by an Acting official). Violations of this regulation are 
appropriately sanctionable and will be reported by the Attorney General 
to the Senate and House Judiciary Committees. Responsibility for 
reviewing proposed charges under section 1831 of the EEA rests with the 
Counterespionage Section of the National Security Division, which will 
consult, as necessary, with the Computer Crime and Intellectual Property 
Section of the Criminal Division. This regulation shall remain in effect 
until October 11, 2011.

[Order No. 2865-2007, 72 FR 10066, Mar. 7, 2007]



                  Sec. Appendix to Subpart K of Part 0

                            Criminal Division

                            [Directive 8-75]

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

                             [Directive 58]

          Delegation Respecting Denial of Information Requests

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

                           [Directive No. 73]

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

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

                           [Directive No. 81A]

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

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

[[Page 39]]

                           [Directive No. 81B]

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

    By virtue of the authority vested in me by 28 CFR 0.64-4, the 
authority delegated to me by that section to exercise all of the power 
and authority vested in the Attorney General under section 3508 of title 
18, United States Code, which has not been delegated to the Director, 
United States Marshals Service under 28 CFR 0.111a, is hereby 
redelegated to each of the Deputy Assistant Attorneys General, and to 
the Director and each of the Deputy Directors of the Office 
International Affairs, Criminal Division.

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



          Subpart L_Environment and Natural Resources Division

    Source: Order No. 423-69, 34 FR 20388, Dec. 31, 1969, unless 
otherwise noted. Redesignated by Order No. 2865-2007, 72 FR 10066, Mar. 
7, 2007.



Sec. 0.65  General functions.

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

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

[[Page 40]]

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

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



Sec. 0.65a  Litigation involving Environmental Protection Agency.

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

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



Sec. 0.66  Delegation respecting title opinions.

    (a) The Assistant Attorney General in charge of the Environment and 
Natural Resources Division or such members of his staff as he may 
specifically designate in writing, are authorized to sign the name of 
the Attorney General to opinions on the validity of titles to property 
acquired by or on behalf of the United States, except those which, in 
the opinion of the Assistant Attorney General involve questions of 
policy or for any other reason require the personal attention of the 
Attorney General.
    (b) Pursuant to the provisions of section 1 of Public Law 91-393, 
approved September 1, 1970, 84 Stat. 835, the Assistant Attorney General 
in charge of the Environment and Natural Resources Division is 
authorized:

[[Page 41]]

    (1) To exercise the Attorney General's power of delegating to other 
departments and agencies his (the Attorney General's) responsibility for 
approving the title to lands acquired by them,
    (2) With respect to delegations so made to other departments and 
agencies, to exercise the Attorney General's function of general 
supervision regarding the carrying out by such departments and agencies 
of the responsibility so entrusted to them, and
    (3) To promulgate regulations and any appropriate amendments thereto 
governing the approval of land titles by such departments and agencies.

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



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

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

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



Sec. 0.68  Delegation respecting mineral leasing.

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

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



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

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

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



Sec. 0.69a  Delegation respecting approval of conveyances.

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

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



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

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

[[Page 42]]

other reason require the personal attention of the Attorney General.

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



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

    (a) The authority to receive complaints served upon the Attorney 
General pursuant to section 401 of the Hazardous Waste Amendments of 
1984 (Pub. L. 616, 98th Cong.; 42 U.S.C. 6872(b)(2)(F)) is hereby 
delegated to the Assistant Attorney General, Environment and Natural 
Resources Division. Every plaintiff required to serve upon the Attorney 
General a copy of their complaint, should do so by sending a copy of the 
complaint, together with all attachments thereto required by the Federal 
Rules of Civil Procedure and the Local Rules for the Federal District 
Court in which the complaint if filed, via first class mail, to the 
Assistant Attorney General, Environment and Natural Resources Division, 
U.S. Department of Justice, NW., Washington, DC 20530.
    (b) Services pursuant to section 401 shall be deemed effective upon 
the date the complaint is received by the Assistant Attorney General.

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



                         Subpart M_Tax Division

    Source: Order No. 423-69, 34 FR 20388, Dec. 31, 1969, unless 
otherwise noted. Redesignated by Order No. 2865-2007, 72 FR 10066, Mar. 
7, 2007.



Sec. 0.70  General functions.

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

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



Sec. 0.71  Delegation respecting immunity matters.

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

[[Page 43]]



                  Subpart N_National Security Division

    Source: Order No. 2865-2007, 72 FR 10066, Mar. 7, 2007, unless 
otherwise noted.



Sec. 0.72  National Security Division.

    The following functions are assigned to and shall be conducted, 
handled, or supervised by the Assistant Attorney General for National 
Security:
    (a) General functions. (1) Advise the Attorney General, the Office 
of Management and Budget, and the White House, and brief Congress, as 
appropriate, on matters relating to the national security activities of 
the United States, and ensure that all of the Department's national 
security activities are effectively coordinated;
    (2) Develop, enforce, and supervise the application of all federal 
criminal laws related to the national counterterrorism and 
counterespionage enforcement programs, except those specifically 
assigned to other Divisions;
    (3) Represent the Department on interdepartmental boards, 
committees, and other groups dealing with national security, 
intelligence, or counterintelligence matters;
    (4) Oversee the development, coordination, and implementation of 
Department policy, in conjunction with other components of the 
Department as appropriate, with regard to intelligence, 
counterintelligence, or national security matters;
    (5) Provide legal assistance and advice, in coordination with the 
Office of Legal Counsel as appropriate, to Government agencies on 
matters of national security law and policy;
    (6) Administer the Foreign Intelligence Surveillance Act;
    (7) Prosecute Federal crimes involving national security, foreign 
relations, and terrorism, and coordinate the Department's activities and 
advice on all issues with respect to the Foreign Intelligence 
Surveillance Act of 1978, as amended, and the Classified Information 
Procedures Act arising in connection with any such prosecutions;
    (8) Prosecute and coordinate prosecutions and investigations 
targeting individuals and organizations involved in terrorist acts at 
home or against U.S. persons or interests abroad, or that assist in the 
financing of or providing support to those acts;
    (9) Except in the case of emergencies where there is an immediate 
threat to life or property, review for concurrence the Department's use 
of criminal proceedings in connection with all matters relating to 
intelligence, counterintelligence, or counterterrorism. Such criminal 
proceedings include, but are not limited to, grand jury proceedings, the 
filing of search and arrest warrants or applications for electronic 
surveillance pursuant to 18 U.S.C. 2510 et seq. and 18 U.S.C. 2701 et 
seq., the filing of complaints, the return of indictments, criminal 
forfeiture proceedings, and appeals;
    (10) Evaluate Departmental activities and existing and proposed 
domestic and foreign intelligence, counterintelligence, or national 
security activities to determine their consistency with United States 
national security policies and law;
    (11) Formulate policy alternatives and recommend action by the 
Department and other executive agencies in achieving lawful United 
States intelligence, counterintelligence, or national security 
objectives;
    (12) Analyze and interpret current statutes, executive orders, 
guidelines, and other directives pertaining to intelligence, 
counterintelligence, or national security matters;
    (13) Formulate legislative initiatives, policies, and guidelines 
relating to intelligence, counterintelligence, or national security 
matters;
    (14) Review and comment upon proposed statutes, guidelines, and 
other directives with regard to national security matters, and, in 
conjunction with the Office of Legal Counsel, review and comment upon 
the form and legality of proposed executive orders that touch upon 
matters related to the function of this Division;
    (15) Provide training for Departmental components on legal topics 
related to intelligence, counterintelligence, or national security 
matters;
    (16) Advise, assist, coordinate with, and train those in the law 
enforcement community, including federal, state, and local prosecutors, 
investigative agencies, and foreign criminal justice entities (provided 
that any training of

[[Page 44]]

foreign criminal justice entities should be conducted in coordination 
with the Criminal Division);
    (17) Provide oversight of intelligence, counterintelligence, or 
national security matters by executive branch agencies to ensure 
conformity with applicable law, executive branch regulations, and 
Departmental objectives and report to the Attorney General on such 
activities;
    (18) Supervise the preparation of the National Security Division's 
submission for the annual budget;
    (19) Serve as primary liaison to the Director of National 
Intelligence for the Department of Justice;
    (20) Represent the Department on the Committee on Foreign 
Investments in the United States; and
    (21) Perform other duties pertaining to intelligence, 
counterintelligence, counterterrorism, or national security matters as 
may be assigned by the Attorney General or the Deputy Attorney General.
    (b) Functions related to intelligence policy and operations. (1) 
Advise and assist the Attorney General in carrying out his 
responsibilities under Executive Order 12333, ``United States 
Intelligence Activities,'' and other statutes, executive orders, and 
authorities related to intelligence, counterintelligence, or national 
security matters;
    (2) Supervise the preparation of certifications and applications for 
orders under the Foreign Intelligence Surveillance Act of 1978, as 
amended, and the representation of the United States before the United 
States Foreign Intelligence Surveillance Court and the United States 
Foreign Intelligence Court of Review;
    (3) Participate in the development, implementation, and review of 
United States intelligence, counterintelligence, and national security 
policies, including procedures for the conduct of intelligence, 
counterintelligence, or national security activities;
    (4) Supervise sensitive areas of law enforcement related to the 
activities of the National Security Division, except for tasks assigned 
to other Divisions; and
    (5) Recommend action by the Department of Justice with regard to 
applications under the Foreign Intelligence Surveillance Act of 1978, as 
amended, as well as with regard to other investigative activities by 
executive branch agencies; and
    (6) To the extent deemed appropriate by the Assistant Attorney 
General for National Security, prepare periodic and special intelligence 
reports describing and evaluating domestic and foreign intelligence and 
counterintelligence activities and assessing trends or changes in these 
activities.
    (c) Functions related to counterterrorism. (1) Participate in the 
systematic collection and analysis of data and information relating to 
the investigation and prosecution of terrorism cases;
    (2) Coordinate with Government departments and agencies to 
facilitate prevention of terrorist activity through daily detection and 
analysis and to provide information and support to the Offices of the 
United States Attorneys;
    (3) Prosecute matters involving counterterrorism;
    (4) Prosecute terrorist financing matters, including material 
support cases, through the Division's counterterrorism programs;
    (5) Formulate legislative initiatives, policies, and guidelines 
relating to terrorism;
    (6) Prosecute matters involving torture, genocide, and war crimes to 
the extent such matters involve the activities of the National Security 
Division;
    (7) Assist in the foreign terrorist organization designation process 
with the Department of State, the Department of the Treasury, and the 
components of the Department of Justice; and
    (8) Provide legal advice to attorneys for the Government concerning 
federal national security statutes, including but not limited to: 
aircraft piracy and related offenses (49 U.S.C. 46501-07); aircraft 
sabotage (18 U.S.C. 32); crimes against internationally protected 
persons (18 U.S.C. 112, 878, 1116, 1201(a)(4)); sea piracy (18 U.S.C. 
1651); hostage taking (18 U.S.C. 1203); terrorist acts abroad, including 
murder, against United States nationals (18 U.S.C. 2332); acts of 
terrorism transcending national boundaries (18 U.S.C. 2332b); conspiracy 
within the United States to murder, kidnap, or maim persons or to

[[Page 45]]

damage property overseas (18 U.S.C. 956); providing material support to 
terrorists and terrorist organizations (18 U.S.C. 2339A, 2339B, 2339C); 
and using biological, nuclear, chemical or other weapons of mass 
destruction (18 U.S.C. 175, 831, 2332c, 2332a).
    (d) Functions related to internal security. (1) Enforcement of all 
criminal laws relating to subversive activities and kindred offenses 
directed against the internal security of the United States, including 
the laws relating to treason, sabotage, espionage, and sedition; 
enforcement of the Foreign Assets Control Regulations issued under the 
Trading With the Enemy Act (31 CFR 500.101 et seq.); criminal 
prosecutions under the Atomic Energy Act of 1954, the Smith Act, the 
neutrality laws, the Arms Export Control Act, the Federal Aviation Act 
of 1958 (49 U.S.C. 1523) relating to offenses involving the security 
control of air traffic, and 18 U.S.C. 799 and criminal prosecutions for 
offenses, such as perjury and false statements, arising out of offenses 
relating to national security;
    (2) Administration and enforcement of the Foreign Agents 
Registration Act of 1938, as amended; the Act of August 1, 1956, 70 
Stat. 899 (50 U.S.C. 851-857), including the determination in writing 
that the registration of any person coming within the purview of that 
Act would not be in the interest of national security; and the Voorhis 
Act (18 U.S.C. 2386);
    (3) Administration and enforcement of the Internal Security Act of 
1950, as amended;
    (4) Conduct of civil proceedings seeking exclusively equitable 
relief against laws, investigations or administrative actions designed 
to protect the national security (including without limitation personnel 
security programs and the foreign assets control program);
    (5) Interpretation of Executive Order 10450 of April 27, 1953, as 
amended, and advising other departments and agencies in connection with 
the administration of the federal employees security program, including 
the designation of organizations as required by the order; the 
interpretation of Executive Order 10501 of November 5, 1953, as amended, 
and of regulations issued thereunder in accordance with section 11 of 
that order; and the interpretation of Executive Order 10865 of February 
20, 1960;
    (6) Conduct of libels and civil penalty actions (including petitions 
for remission or mitigation of civil penalties and forfeitures, offers 
in compromise and related proceedings) arising out of violations of the 
Trading with the Enemy Act, the neutrality statutes, and the Arms Export 
Control Act;
    (7) Enforcement and administration of the provisions of 2 U.S.C. 
441e, relating to contributions by foreign nationals;
    (8) Enforcement and administration of the provisions of 18 U.S.C. 
219, relating to officers and employees of the United States acting as 
agents of foreign principals; and
    (9) Enforcement and administration of criminal matters arising under 
the Military Selective Service Act of 1967.
    (e) Relationship to other offices. Nothing in this subpart shall be 
construed as affecting the functions or overriding the authority of the 
Office of Legal Counsel as established by 28 CFR 0.25.



                  Subpart O_Justice Management Division



Sec. 0.75  Policy functions.

    The Assistant Attorney General for Administration shall head the 
Justice Management Division and shall provide advice relating to basic 
Department policy for budget and financial management, program 
evaluation, auditing, personnel management and training, procurement, 
information processing and telecommunications, security and for all 
matters pertaining to organization, management, and administration. The 
following matters are assigned to, and shall be conducted, handled, or 
supervised by, the Assistant Attorney General for Administration:
    (a) Conduct, direct, review, and evaluate management studies and 
surveys of the Department's organizational structure, functions, and 
programs, operating procedures and supporting systems, and management 
practices throughout the Department; and make recommendations to reduce 
costs and increase productivity.

[[Page 46]]

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

[[Page 47]]

and telecommunications, special intelligence, and employee health and 
safety programs and formulate and implement Department defense 
mobilization and contingency planning.
    (q) Review legislation for potential impact on the Department's 
resources.
    (r) Develop and implement a legal information coordination system 
for the use of the Department of Justice and, as appropriate, the 
Federal Government as a whole.

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



Sec. 0.76  Specific functions.

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

[[Page 48]]

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

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

    Editorial Note: For Federal Register citations affecting Sec. 0.76, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 0.77  Operational functions.

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

[[Page 49]]

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

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



Sec. 0.78  Implementation of financial disclosure requirements.

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

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



Sec. 0.79  Redelegation of authority.

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

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



                Subpart P_Federal Bureau of Investigation

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



Sec. 0.85  General functions.

    The Director of the Federal Bureau of Investigation shall:
    (a) Investigate violations of the laws, including the criminal drug 
laws, of the United States and collect evidence in cases in which the 
United States is

[[Page 50]]

or may be a party in interest, except in cases in which such 
responsibility is by statute or otherwise exclusively assigned to 
another investigative agency. The Director's authority to investigate 
violations of and collect evidence in cases involving the criminal drug 
laws of the United States is concurrent with such authority of the 
Administrator of the Drug Enforcement Administration under Sec. 0.100 
of this part. In investigating violations of such laws and in collecting 
evidence in such cases, the Director may exercise so much of the 
authority vested in the Attorney General by sections 1 and 2 of 
Reorganization Plan No. 1 of 1968, section 1 of Reorganization Plan No. 
2 of 1973 and the Comprehensive Drug Abuse Prevention and Control Act of 
1970, as amended, as he determines is necessary. He may also release FBI 
information on the same terms and for the same purposes that the 
Administrator of the Drug Enforcement Administration may disclose DEA 
information under Sec. 0.103 of this part. The Director and his 
authorized delegates may seize, forfeit and remit or mitigate the 
forfeiture of property in accordance with 21 U.S.C. 881, 21 CFR 1316.71 
through 1316.81, and 28 CFR 9.1 through 9.7.
    (b) Conduct the acquisition, collection, exchange, classification 
and preservation of fingerprints and identification records from 
criminal justice and other governmental agencies, including fingerprints 
voluntarily submitted by individuals for personal identification 
purposes; provide expert testimony in Federal, State and local courts as 
to fingerprint examinations; and provide fingerprint training and 
provide identification assistance in disasters and for other 
humanitarian purposes.
    (c) Conduct personnel investigations requisite to the work of the 
Department of Justice and whenever required by statute or otherwise.
    (d) Carry out the Presidential directive of September 6, 1939, as 
reaffirmed by Presidential directives of January 8, 1943, July 24, 1950, 
and December 15, 1953, designating the Federal Bureau of Investigation 
to take charge of investigative work in matters relating to espionage, 
sabotage, subversive activities, and related matters, including 
investigating any potential violations of the Arms Export Control Act, 
the Export Administration Act, the Trading with the Enemy Act, or the 
International Emergency Economic Powers Act, relating to any foreign 
counterintelligence matter.
    (e) Establish and conduct law enforcement training programs to 
provide training for State and local law enforcement personnel; operate 
the Federal Bureau of Investigation National Academy; develop new 
approaches, techniques, systems, equipment, and devices to improve and 
strengthen law enforcement and assist in conducting State and local 
training programs, pursuant to section 404 of the Omnibus Crime Control 
and Safe Streets Act of 1968, 82 Stat. 204.
    (f) Operate a central clearinghouse for police statistics under the 
Uniform Crime Reporting Program, and a computerized nationwide index of 
law enforcement information under the National Crime Information Center.
    (g) Operate the Federal Bureau of Investigation Laboratory to serve 
not only the Federal Bureau of Investigation, but also to provide, 
without cost, technical and scientific assistance, including expert 
testimony in Federal or local courts, for all duly constituted law 
enforcement agencies, other organizational units of the Department of 
Justice, and other Federal agencies, which may desire to avail 
themselves of the service. As provided for in procedures agreed upon 
between the Secretary of State and the Attorney General, the services of 
the Federal Bureau of Investigation Laboratory may also be made 
available to foreign law enforcement agencies and courts.
    (h) Make recommendations to the Office of Personnel Management in 
connection with applications for retirement under 5 U.S.C. 8336(c).
    (i) Investigate alleged fraudulent conduct in connection with 
operations of the Department of Housing and Urban Development and other 
alleged violations of the criminal provisions of the National Housing 
Act, including 18 U.S.C. 1010.
    (j) Exercise the power and authority vested in the Attorney General 
to approve and conduct the exchanges of identification records 
enumerated at Sec. 50.12(a) of this chapter.

[[Page 51]]

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

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

    Editorial Note: For Federal Register citations affecting Sec. 0.85, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 0.85a  Criminal justice policy coordination.

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

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



Sec. 0.86  Seizure of gambling devices.

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

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



Sec. 0.87  Representation on committee for visit-exchange.

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



Sec. 0.88  Certificates for expenses of unforeseen emergencies.

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



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

    The Director of the Federal Bureau of Investigation is authorized to 
exercise the authority conferred upon the Attorney General by section 1 
of E.O. 10863 of February 18, 1960 (25 FR 1507), relating to the seizure 
of arms and munitions of war, and other articles, pursuant to section 1 
of title VI of the act

[[Page 52]]

of June 15, 1917, 40 Stat. 223, as amended by section 1 of the Act of 
August 13, 1953, 67 Stat. 577 (22 U.S.C. 401).



Sec. 0.89a  Delegations respecting claims against the FBI.

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

[Order No. 884-80, 45 FR 22023, Apr. 3, 1980, as amended by Order No. 
1417-90, 55 FR 27808, July 6, 1990; Order No. 1551-91, 56 FR 64192, Dec. 
9, 1991; Order No. 1904-94, 59 FR 41242, Aug. 11, 1994; Order No. 2314-
2000, 65 FR 44683, July 19, 2000]



       Subpart P	1_Office of Justice Programs and Related Agencies

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



Sec. 0.90  Office of Justice Programs.

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



Sec. 0.91  Office for Victims of Crime.

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



Sec. 0.92  National Institute of Justice.

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



Sec. 0.93  Bureau of Justice Statistics.

    The Bureau of Justice Statistics is headed by a Director appointed 
by the President. Under the general authority of the Attorney General 
and reporting through the Assistant Attorney General, Office of Justice 
Programs, the Director performs functions and administers programs, 
including provision of financial assistance, under 42 U.S.C. 3731-3734, 
to provide a variety of statistical services for the criminal justice 
community.

[[Page 53]]



Sec. 0.94  Office of Juvenile Justice and Delinquency Prevention.

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



Sec. 0.94-1  Bureau of Justice Assistance.

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

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



                       Subpart Q_Bureau of Prisons

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



Sec. 0.95  General functions.

    The Director of the Bureau of Prisons shall direct all activities of 
the Bureau of Prisons including:
    (a) Management and regulation of all Federal penal and correctional 
institutions (except military or naval institutions), and prison 
commissaries.
    (b) Provision of suitable quarters for, and safekeeping, care, and 
subsistence of, all persons charged with or convicted of offenses 
against the United States or held as witnesses or otherwise.
    (c) Provision for the protection, instruction, and discipline of all 
persons charged with or convicted of offenses against the United States.
    (d) Classification, commitment, control, or treatment of persons 
committed to the custody of the Attorney General.
    (e) Payment of rewards with respect to escaped Federal prisoners (18 
U.S.C. 3059).
    (f) Certification with respect to the insanity or mental 
incompetence of a prisoner whose sentence is about to expire pursuant to 
section 4247 of title 18 of the U.S. Code.
    (g) Entering into contracts with State or territorial officials for 
the custody, care, subsistence, education, treatment, and training of 
State or territorial prisoners, upon certification with respect to the 
availability of proper and adequate treatment facilities and personnel, 
pursuant to section 5003 of title 18 of the U.S. Code.
    (h) Conduct of studies and the preparation and submission of reports 
and recommendations to committing courts respecting disposition of cases 
in which defendants have been committed for such purposes pursuant to 18 
U.S.C. 4205(c).
    (i) Conduct and prepare, or cause to be conducted and prepared, 
studies and submit reports to the court and the attorneys with respect 
to disposition of cases in which juveniles have been committed, pursuant 
to 18 U.S.C. 5037, and to contract with public or private agencies or 
individuals or community-based facilities for the observation and study 
and the custody and care of juveniles, pursuant to 18 U.S.C. 5040.
    (j) Observation, conduct of studies, and preparation of reports in 
cases in which youth offenders have been committed by the courts for 
such purposes pursuant to section 5010(e) of title 18 of the United 
States Code.

[[Page 54]]

    (k) Conduct of examinations to determine whether an offender is an 
addict and is likely to be rehabilitated through treatment, as well as 
the preparation and submission of reports to committing courts, pursuant 
to section 4252 of title 18 of the United States Code.
    (l) Transmittal of reports of boards of examiners and certificates 
to clerks of the district courts pursuant to section 4245 of title 18 of 
the U.S. Code.
    (m) Providing technical assistance to State and local governments in 
the improvement of their correctional systems (18 U.S.C. 4042).

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



Sec. 0.96  Delegations.

    The Director of the Bureau of Prisons is authorized to exercise or 
perform any of the authority, functions, or duties conferred or imposed 
upon the Attorney General by any law relating to the commitment, 
control, or treatment of persons (including insane prisoners and 
juvenile delinquents) charged with or convicted of offenses against the 
United States, including the taking of final action in the following-
described matters:
    (a) Requesting the detail of Public Health Service officers for the 
purpose of furnishing services to Federal penal and correctional 
institutions (18 U.S.C. 4005).
    (b) Consideration, determination, adjustment, and payment of claims 
in accordance with 31 U.S.C. 3722.
    (c) Designating places of imprisonment or confinement where the 
sentences of prisoners shall be served and ordering transfers from one 
institution to another, whether maintained by the Federal Government or 
otherwise, pursuant to 18 U.S.C. 4082 as it existed before the enactment 
of Pub. L. 98-473 (applicable to offenses committed prior to November 1, 
1987).
    (d) Extending the limits of the place of confinement of prisoners 
for the purposes specified, and within the limits established, by 18 
U.S.C. 4082(c) as it existed before the enactment of Public Law 98-473, 
and otherwise performing the functions of the Attorney General under 
that section (applicable to offenses committed prior to November 1, 
1987).
    (e) Designation of agents for the transportation of prisoners (18 
U.S.C. 4008).
    (f) Prescribing regulations for the use of surplus funds in 
``Commissary Funds, Federal Prisons'' to provide advances not in excess 
of $150 to prisoners at the time of their release pursuant to 18 U.S.C. 
4284 as it existed before the enactment of Public Law 98-473 (applicable 
to offenses committed prior to November 1, 1987).
    (g) Allowance, forfeiture, and restoration of all good time pursuant 
to 18 U.S.C. 4161, 4162, 4165, and 4166 as those sections existed before 
the enactment of Public Law 98-473 (applicable to offenses committed 
prior to November 1, 1987).
    (h) Release of prisoners held solely for nonpayment of fine as 
provided in 18 U.S.C. 3569 as it existed before the enactment of Public 
Law 98-473 (applicable to offenses committed prior to November 1, 1987).
    (i) Furnishing transportation, clothing, and payments to released 
prisoners pursuant to 18 U.S.C. 4281 as it existed before the enactment 
of Public Law 98-473 (applicable to offenses committed prior to November 
1, 1987).
    (j) Performing the functions of the Attorney General under the 
provisions of 18 U.S.C. chapter 313, Offenders with Mental Disease or 
Defect (18 U.S.C. 4241-4247).
    (k) Settlement of claims arising under the Federal Tort Claims Act 
as provided in 28 CFR 0.172.
    (l) Entering into reciprocal agreements with fire organizations for 
mutual aid and rendering emergency assistance in connection with 
extinguishing fires within the vicinity of a Federal correctional 
facility, as authorized by sections 2 and 3 of the Act of May 27, 1955 
(42 U.S.C. 1856a, 1856b).
    (m) Deciding upon requests by states for temporary transfers of 
custody of inmates for prosecution under Article IV of the Interstate 
Agreement on Detainers (84 Stat. 1399) and pursuant to

[[Page 55]]

other available procedures; and receiving and reviewing requests by the 
executive authority of states or the District of Columbia for, and 
authorizing the transfer of, inmates pursuant to 18 U.S.C. 4085 as it 
existed before the enactment of Public Law 98-473 (applicable to 
offenses committed prior to November 1, 1987).
    (n) Prescribing rules and regulations applicable to the carrying of 
firearms by Bureau of Prisons officers and employees (18 U.S.C. 3050).
    (o) Promulgating rules governing the control and management of 
Federal penal and correctional institutions and providing for the 
classification, government, discipline, treatment, care, rehabilitation, 
and reformation of inmates confined therein (18 U.S.C. 4001, 4041, and 
4042).
    (p) Establishing and designating Bureau of Prisons Institutions (18 
U.S.C. 4001, 4042).
    (q) Granting permits to states or public agencies for rights-of-way 
upon lands administered by the Director in accordance with the 
provisions of 43 U.S.C. 931c and 43 U.S.C. 961 (18 U.S.C. 4001, 4041, 
4042, 43 U.S.C. 931c, 961).
    (r) Authority under the provisions of 18 U.S.C. 4082(b) to provide 
law enforcement representatives with information on Federal prisoners 
who have been convicted of felony offenses and who are confined at a 
residential community treatment center located in the geographical area 
in which the requesting agency has jurisdiction (18 U.S.C. 4082).
    (s) Approving inmate disciplinary and good time regulations (18 
U.S.C. 3624).
    (t) Contracting, for a period not exceeding three years, with the 
proper authorities of any State, Territory, or political subdivision 
thereof, for the imprisonment, subsistence, care, and proper employment 
of persons convicted of offenses against the United States (18 U.S.C. 
4002).

[Order No. 1617-92, 57 FR 38772, Aug. 27, 1992, as amended by Order No. 
1884-94, 59 FR 29717, June 9, 1994; Order No. 2204-99, 64 FR 4295, Jan. 
28, 1999]



Sec. 0.96a  Interstate Agreement on Detainers.

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

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



Sec. 0.96b  Exchange of prisoners.

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

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



Sec. 0.96c  Cost of incarceration.

    (a) The Attorney General is required to establish and collect a fee 
to cover the cost of one year of incarceration. These provisions apply 
to any person who is convicted in a United States District Court and 
committed to the custody of the Attorney General, and who begins service 
of sentence on or after December 27, 1994. For the purposes of this 
subpart, revocation of parole or supervised release shall be treated as 
a separate period of incarceration for which a fee may be imposed.
    (b) The fee to cover the costs of incarceration shall be calculated 
by dividing the number representing the obligation encountered in Bureau 
of Prisons facilities (excluding activation costs) by the number of 
inmate-days incurred for the year, and by then multiplying the quotient 
by 365. The resulting figure represents the average cost to the Bureau 
for confining an inmate for one year.

[[Page 56]]

    (c) The Director of the Bureau of Prisons is delegated the authority 
to collect the fee to cover the cost of incarceration from inmates 
committed to the custody of the Attorney General and to promulgate all 
regulations concerning the collection of the fee.
    (d) The Director shall review and determine the amount of the fee 
not less than annually in accordance with the formula set forth in 
paragraph (b) of this section. The Director shall publish each year's 
fee as a Notice in the Federal Register.

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



Sec. 0.97  Redelegation of authority.

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

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



Sec. 0.98  Functions of Commissioner of Federal Prison Industries.

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



Sec. 0.99  Compensation to Federal prisoners.

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



Sec. Appendix to Subpart Q of Part 0--Confinement of Persons in District 
                  of Columbia Correctional Institutions

    By virtue of the authority vested in me by the Act of September 1, 
1916, 39 Stat. 711 (D.C. Code section 24-402), by section 11 of the Act 
of July 15, 1932, as added by the Act of June 6, 1940, 54 Stat. 244 
(D.C. Code section 24-425), and by the Act of September 10, 1965 (18 
U.S.C. 4082).
    (a) The Mayor of the District of Columbia or his authorized 
representative is hereby authorized to transfer such prisoners as may be 
in his custody and supervision, by virtue of having been placed in a 
correctional institution of the District of Columbia pursuant to the 
authority of the Attorney General, from such institution to any 
available, suitable, or appropriate institution or facility (including a 
residential community treatment center) within the District of Columbia, 
and the Mayor or his authorized representative is further authorized to 
extend the limits of the place of confinement of such prisoners for the 
purposes specified, and within the limits established, by the Act of 
September 10, 1965 (18 U.S.C. 4082).
    (b) The authority conferred by subsection (a) shall not include any 
extension of the limits of confinement for any prisoner serving a 
sentence for a crime of violence and not participating in a furlough 
program as of December 22, 1976, unless such prisoner has served at 
least twelve months, has not been denied parole, without recommendation 
for furlough, at his most recent parole hearing (whether such hearing 
was held before or after extension of the limits of his confinement was 
granted), and
    (1) Is within twelve months of the expiration of his maximum 
sentence, without reduction, or

[[Page 57]]

    (2) Is within twelve months of a date on which he will be eligible 
for parole from confinement, or
    (3) Has served at least ninety percent of his minimum sentence, 
without reduction.

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

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



                Subpart R_Drug Enforcement Administration



Sec. 0.100  General functions.

    The following-described matters are assigned to, and shall be 
conducted, handled, or supervised by, the Administrator of the Drug 
Enforcement Administration:
    (a) Functions vested in the Attorney General by sections 1 and 2 of 
Reorganization Plan No. 1 of 1968.
    (b) Except where the Attorney General has delegated authority to 
another Department of Justice official to exercise such functions, and 
except where functions under 21 U.S.C. 878(a)(5) do not relate to, arise 
from, or supplement investigations of matters concerning drugs, 
functions vested in the Attorney General by the Comprehensive Drug Abuse 
Prevention and Control Act of 1970, as amended. This will include 
functions which may be vested in the Attorney General in subsequent 
amendments to the Comprehensive Drug Abuse Prevention and Control Act of 
1970, and not otherwise specifically assigned or reserved by him.
    (c) Functions vested in the Attorney General by section 1 of 
Reorganization Plan No. 2 of 1973 and not otherwise specifically 
assigned.

[Order No. 520-73, 38 FR 18380, July 10, 1973, as amended by Order No. 
960-81, 46 FR 52348, Oct. 27, 1981; Order No. 1203-87, 52 FR 24447, July 
1, 1987; Order No. 2204-99, 64 FR 4295, Jan. 28, 1999; Order No. 2666-
2003, 68 FR 14899, Mar. 27, 2003]



Sec. 0.101  Specific functions.

    The Administrator of the Drug Enforcement Administration shall be 
responsible for:
    (a) The development and implementation of a concentrated program 
throughout the Federal Government for the enforcement of Federal drug 
laws and for cooperation with State and local governments in the 
enforcement of their drug abuse laws.
    (b) The development and maintenance of a National Narcotics 
Intelligence System in cooperation with Federal, State, and local 
officials, and the provision of narcotics intelligence to any Federal, 
State, or local official that the Administrator determines has a 
legitimate official need to have access to such intelligence.
    (c) The development and implementation of a procedure to release 
property seized under section 511 of the Controlled Substances Act (21 
U.S.C. 881) to any innocent party having an immediate right to 
possession of the property, when the Administrator, in his discretion, 
determines it is not in the interests of justice to initiate forfeiture 
proceedings against the property.
    (d) Payment of awards (including those over $10,000) under 28 U.S.C. 
524(c)(2) and purchase of evidence (including the authority to pay more 
than $100,000) under 28 U.S.C. 524(c)(1)(F).

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

[[Page 58]]



Sec. 0.102  Drug enforcement policy coordination.

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

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



Sec. 0.103  Release of information.

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

[Order No. 520-73, 38 FR 18380, July 10, 1973, as amended by Order No. 
2614-2002, 67 FR 58990, Sept. 19, 2002]



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

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

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



Sec. 0.104  Redelegation of authority.

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

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



     Sec. Appendix to Subpart R of Part 0--Redelegation of Functions

    Section 1. Scope of authority. The authority delegated by this order 
is applicable to all officers and employees of the Drug Enforcement 
Administration (DEA) and Federal Bureau of Investigation (FBI).
    Sec. 2. Supervisors. All Special Agents-in-Charge of the DEA and the 
FBI are authorized to conduct enforcement hearings under 21 U.S.C. 883, 
and to take custody of seized property under 21 U.S.C. 881. All Special 
Agents-in-Charge of the DEA and the FBI, the DEA Deputy Administrator, 
Assistant Administrators and Office Heads, and the FBI Executive 
Assistant Directors, Assistant Directors, Deputy Assistant Directors, 
and Section Chiefs, are authorized to release information pursuant to 28 
CFR 0.103(a)(1) and (2) that is obtained by the DEA and the FBI, and to 
authorize the testimony of DEA and FBI officials in response to 
prosecution subpoenas or demands under 28 CFR 0.103(a)(3). All DEA 
Laboratory Directors are authorized to release information pursuant to 
28 CFR 0.103(a)(1) and (2) that is obtained by a DEA laboratory, and to 
authorize the testimony of DEA laboratory personnel in response to 
prosecution subpoenas or demands under 28 CFR 0.103(a)(3). All DEA 
Special

[[Page 59]]

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

[[Page 60]]

products, except that any final order following a contested proposed 
rulemaking shall be issued by the Deputy Administrator of DEA.
    (h) Part 1309, incident to the registration of manufacturers, 
distributors, importers and exporters of List I chemicals, except that 
final orders in connection with suspension, denial or revocation of 
registration shall be made by the Deputy Administrator of DEA.
    (i) Part 1310, relating to records, reports and identification of 
parties to transactions in listed chemicals and certain machinery, but 
not including the authority to add and delete listed chemicals pursuant 
to 21 CFR 1310.02.
    (j) Part 1311 relating to registration of importers and exporters of 
controlled substances, except that final orders in connection with 
suspension, denial or revocation of registration shall be made by the 
Deputy Administrator of DEA.
    (k) Part 1312 relating to importation and exportation of controlled 
substances, except that all final orders following a contested proposed 
rulemaking regarding the denial of an application for an import, export 
or transshipment permit shall be made by the Deputy Administrator of 
DEA.
    (l) Part 1313, relating to the importation and exportation of 
precursors and essential chemicals, but not including the authority to 
suspend shipments under 21 CFR 1313.41.
    Sec. 8. Financial functions. The Controller of the DEA is authorized 
to settle any employee claims filed under the Military Personnel and 
Civilian Employees' Claims Act in an amount not to exceed $25,000.
    Sec. 9. Chemical Diversion Act functions. The Chief of Operations of 
the DEA, Operations Division, is authorized to furnish, or cause to be 
furnished, descriptions of persons with whom regulated transactions may 
not be completed without prior approval of the DEA; to approve such 
transactions pursuant to 21 U.S.C. 830(b) and 21 CFR 1310.05(b); and to 
approve or disapprove regular customer or regular importer status under 
21 U.S.C. 971 and 21 CFR 1313.15 and 1313.24.
    Sec. 10. Deputization of State and Local Law Enforcement Officers. 
The Chief, Investigative Support Section, Office of Operations 
Management, Operations Division, is authorized to exercise all necessary 
functions with respect to the deputization of state and local law 
enforcement officers as Task Force Officers of DEA pursuant to 21 U.S.C. 
878(a).
    Sec. 11. Cross-Designation of Federal Law Enforcement Officers. The 
Chief, Investigative Support Section, Office of Operations Management, 
Operations Division is authorized to exercise all necessary functions 
with respect to the cross-designation of Federal law enforcement 
officers to undertake title 21 drug investigations under supervision of 
the DEA pursuant to 21 U.S.C. 873(b).
    Sec. 12. All other functions. The Deputy Administrator is authorized 
to exercise all necessary functions under 21 CFR parts 1300 through 
1316, except those functions otherwise delegated within this subpart. 
This will include functions which may be vested in the Administrator in 
subsequent amendments to 21 CFR parts 1300 through 1316 and not 
otherwise specifically assigned or reserved by him.

[47 FR 43370, Oct. 1, 1982]

    Editorial Note: For Federal Register citations affecting the 
appendix to subpart R of part 0, see the List of CFR Sections Affected, 
which appears in the Finding Aids section of the printed volume and on 
GPO Access.



            Subpart S_Immigration and Naturalization Service



Sec. 0.105  General functions.

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

[[Page 61]]

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

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



Sec. 0.106  Certificates for expenses of unforeseen emergencies.

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



Sec. 0.107  Representation on committee for visit-exchange.

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



Sec. 0.108  Redelegation of authority.

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

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

[[Page 62]]



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

    The Commissioner of Immigration and Naturalization and immigration 
officers (as defined in 8 CFR 103.1(i)) are hereby designated as 
``competent national authorities'' on the part of the United States 
within the meaning of Article XXIV of the Treaty of Friendship and 
General Relations Between the United States and Spain (33 Stat. 2105, 
2117), and shall fulfill the obligations assumed by the United States 
pursuant to that Article in the manner and form prescribed.



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

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



                Subpart T_United States Marshals Service



Sec. 0.111  General functions.

    The Director of the United States Marshals Service shall direct and 
supervise all activities of the U.S. Marshals Service including:
    (a) Execution of Federal arrest warrants pursuant to rule 4 of the 
Federal Rules of Criminal Procedure, Federal parole violator warrants 
pursuant to section 4206 of title 18 U.S. Code, and Federal custodial 
and extradition warrants as directed.
    (b) The service of all civil and criminal process emanating from the 
Federal judicial system including the execution of lawful writs and 
court orders pursuant to section 569(b), title 28, U.S. Code.
    (c) Provisions for the health, safety, and welfare of Government 
witnesses and their families, including the psychological well-being and 
social adjustment of such persons, pursuant to 18 U.S.C. 3521, et seq., 
and issuance of necessary regulations for this purpose on behalf of the 
Attorney General.
    (d) Administration and implementation of courtroom security 
requirements for the Federal judiciary.
    (e) Protection of Federal jurists, court officers, and other 
threatened persons in the interests of justice where criminal 
intimidation impedes the functioning of the Federal judicial process.
    (f) Provision of assistance in the protection of Federal property 
and buildings.
    (g) Direction and supervision of a training school for United States 
Marshals Service personnel.
    (h) Disbursement of appropriated funds to satisfy Government 
obligations incurred in the administration of justice pursuant to 28 
U.S.C. 571.
    (i) Maintenance of custody, management control, and disposal of 
property and money seized or forfeited pursuant to any law enforced or 
administered by the Department of Justice, when the property is seized 
by the U.S. Marshals Service or delivered to the U.S. Marshals Service 
in accordance with regulations; and administer the Department of Justice 
Asset Forfeiture Fund.
    (j) Receipt, processing and transportation of prisoners held in the 
custody of a marshal or transported by the U.S. Marshals Service under 
cooperative or intergovernmental agreements.
    (k) Sustention of custody of Federal prisoners from the time of 
their arrest by a marshal or their remand to a marshal by the court, 
until the prisoner is committed by order of the court to the custody of 
the Attorney General for the service of sentence, otherwise released 
from custody by the court, or returned to the custody of the U.S. Parole 
Commission or the Bureau of Prisons.
    (l) Coordination and direction of the relationship of the offices of 
U.S. Marshals with the other organizational units of the Department of 
Justice.
    (m) Approval of staffing requirements of the offices of U.S. 
Marshals.
    (n) Investigation of alleged improper conduct on the part of U.S. 
Marshals Service personnel.

[[Page 63]]

    (o) Acquisition of adequate and suitable detention space, health 
care and other services and materials required to support prisoners 
under the custody of the U.S. Marshal who are not housed in Federal 
facilities.
    (p) Approval of ``other necessary expenditures in the line of duty'' 
of U.S. Marshals and Deputy U.S. Marshals under 28 U.S.C. 567(3).
    (q) Exercising the power and authority vested in the Attorney 
General under 28 U.S.C. 510 to conduct and investigate fugitive matters, 
domestic and foreign, involving escaped federal prisoners, probation, 
parole, mandatory release, and bond default violators.

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



Sec. 0.111a  Temporary prisoner-witness transfers.

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

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



Sec. 0.111B  Witness Security Program.

    (a) In connection with the protection of a witness, a potential 
witness, or an immediate family member or close associate of a witness 
or potential witness, the Director of the United States Marshals Service 
and officers of the United States Marshals Service designated by the 
Director may:
    (1) Provide suitable documents to enable the person to establish a 
new identity or otherwise protect the person;
    (2) Provide housing for the person;
    (3) Provide for the transportation of household furniture and other 
personal property to a new residence of the person;
    (4) Provide to the person a payment to meet basic living expenses in 
a sum established in accordance with regulations issued by the Director, 
for such time as the Attorney General determines to be warranted;
    (5) Assist the person in obtaining employment;
    (6) Provide other services necessary to assist the person in 
becoming self-sustaining;
    (7) Protect the confidentiality of the identify and location of 
persons subject to registration requirements as convicted offenders 
under Federal or State law, including prescribing alternative procedures 
to those otherwise provided by Federal or State law for registration and 
tracking of such persons; and
    (8) Exempt procurement for services, materials, and supplies, and 
the renovation and construction of safe sites within existing buildings 
from other provision of law as may be required to maintain the security 
of protective witnesses and the integrity of the Witness Security 
Program.
    (b) The identity or location or any other information concerning a 
person receiving protection under 18 U.S.C. 3521 et seq., or any other 
matter concerning the person or the Program,

[[Page 64]]

shall not be disclosed except at the direction of the Attorney General, 
the Assistant Attorney General in charge of the Criminal Division, or 
the Director of the Witness Security Program. However, upon request of 
State or local law enforcement officials, the Director shall, without 
undue delay, disclose to such officials the identity, location, criminal 
records, and fingerprints relating to the person relocated or protected 
when the Director knows or the request indicates that the person is 
under investigation for or has been arrested for or charged with an 
offense that is punishable by more than one year in prison or that is a 
crime of violence.

[Order No. 2511-2001, 66 FR 47383, Sept. 12, 2001]



Sec. 0.112  Special deputation.

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

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

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



Sec. 0.113  Redelegation of authority.

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

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



Sec. 0.114  Fees for services.

    (a) The United States Marshals Service shall routinely collect fees 
according to the following schedule:
    (1) For process forwarded for service from one U.S. Marshals Service 
Office or suboffice to another--$8 per item forwarded;
    (2) For process served by mail--$8 per item mailed;
    (3) For process served or executed personally--$55 per hour (or 
portion thereof) for each item served by one U.S. Marshals Service 
employee, agent, or contractor, plus travel costs and any other out-of-
pocket expenses. For each additional U.S. Marshals Service employee, 
agent, or contractor who is needed to serve process--$55 per person per 
hour for each item served, plus travel costs and any other out-of-pocket 
expenses.
    (4) For copies at the request of any party--$.10 per page;
    (5) For preparing notice of sale, bill of sale, or U.S. Marshal 
deed--$20 per item;
    (6) For keeping and advertisement of property attached--actual 
expenses incurred in seizing, maintaining, and disposing of property.
    (b) Out-of-pocket expenses include, but are not limited to, 
advertising, inventorying, storage, moving, insurance, guard hire, 
prisoner transportation and housing, and any other third-party 
expenditure incurred in executing process.
    (c) Travel costs, including mileage, shall be calculated according 
to 5 U.S.C. chapter 57.
    (d) ``Item'' is defined as all documents issued in one action which 
are served simultaneously on one person or organization.
    (e) ``Process'' is defined to include, but is not limited to, a 
summons and complaint, subpoena, writ, orders, and the execution of 
court-ordered injunctions, and civil commitments on behalf of a 
requesting party. Process may also include the execution of ancillary 
court orders (other than subpoenas issued on behalf of indigent 
defendants and arrest warrants) in criminal cases.
    (f) The United States Marshals Service shall collect the fees 
enumerated in paragraph (a) of this section, where applicable, even when 
process in returned

[[Page 65]]

to the court or the party unexecuted, as long as service is endeavored.
    (g) Pursuant to 28 U.S.C. 565, the Director of the United States 
Marshals Service is authorized to use funds appropriated for the Service 
to make payments for expenses incurred pursuant to personal services 
contracts and cooperative agreements for the service of summonses on 
complaints, subpoenas, and notices, and for security guards.
    (h) The United States Marshals Service shall collect a commission of 
3 percent of the first $1,000 collected and 1.5 percent on the excess of 
any sum over $1,000, for seizing or levying on property (including 
seizures in admiralty), disposing of such property by sale, setoff, or 
otherwise, and receiving and paying over money, except that the amount 
of commission shall not be less than $100.00 and shall not exceed 
$50,000. The U.S. Marshal's commission shall apply to all judicially 
ordered sales and/or execution sales, including but not limited to all 
private mortgage foreclosure sales. if the property is not disposed of 
by Marshal's sale, the commission shall be set by the court within the 
range established above.

[56 FR 2437, Jan 23, 1991, as amended by Order No. 2316-2000, 65 FR 
47862, Aug. 4, 2000; AG Order 3017-2008, 73 FR 69554, Nov. 19, 2008]



            Subpart U_Executive Office for Immigration Review

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



Sec. 0.115  General functions.

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

[Order No. 2180-98, 63 FR 51519, Sept. 28, 1998]



Sec. 0.116  Board of Immigration Appeals.

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

[Order 1237-87, 52 FR 44971, Nov. 24, 1987, as amended by Order 1992-95, 
60 FR 53268, Oct. 13, 1995; Order No. 2062-96, 61 FR 59305, Nov. 22, 
1996; Order No. 2180-98, 63 FR 51519, Sept. 28, 1998; Order No. 2297-
2000, 65 FR 20069, Apr. 14, 2000; Order No. 2511-2001, 66 FR 47380, 
Sept. 12, 2001]



Sec. 0.117  Office of Chief Immigration Judge.

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



Sec. 0.118  Office of Chief Administrative Hearing Officer.

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



       Subpart U	1_Office of Community Oriented Policing Services

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



Sec. 0.119  Organization.

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



Sec. 0.120  General functions.

    The Director, Office of Community Oriented Policing Services shall:

[[Page 66]]

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



Sec. 0.121  Applicability of existing departmental regulations.

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



              Subpart U	2_Office on Violence Against Women

    Source: Order No. 2811-2006, 71 FR 19827, Apr. 18, 2006, unless 
otherwise noted.



Sec. 0.122  Office on Violence Against Women.

    (a) The Director, Office on Violence Against Women, under the 
general authority of the Attorney General, shall:
    (1) Exercise the powers and perform the duties and functions 
described in section 402(3) of title IV of the 21st Century Department 
of Justice Appropriations Authorization Act (Pub. L. 107-273); and
    (2) Perform such other duties and functions relating to such duties 
as may be authorized by law or assigned or delegated by the Attorney 
General, consistent with constitutional limits on the Federal 
Government's authority to act in this area.
    (b) Departmental regulations set forth in 28 CFR part 61, Appendix 
D, applicable to the Office of Justice Programs, shall apply with equal 
force and effect to the Office on Violence Against Women, with 
references to the Office of Justice Assistance, Research and Statistics, 
and its components, in such regulations deemed to refer to the Office on 
Violence Against Women, as appropriate.



           Subpart U	3_Office of the Federal Detention Trustee

    Source: Order No. 2825-2006, 71 FR 36193, June 26, 2006, unless 
otherwise noted.



Sec. 0.123  Federal Detention Trustee.

    (a) The Office of the Federal Detention Trustee shall be headed by a 
Detention Trustee appointed by the Attorney General. The Detention 
Trustee shall exercise all powers and functions authorized by law 
related to the detention of Federal prisoners in non-Federal 
institutions or otherwise in the custody of the United States Marshals 
Service in accordance with 28 U.S.C. 530C(b)(7).
    (b) The Detention Trustee shall:
    (1) Manage funds appropriated to the Department in the exercise of 
such detention functions.
    (2) Oversee the construction of detention facilities or housing 
related to such detention.
    (3) Set policy regarding such detention, and perform such functions 
as may be necessary for the effective policy-level coordination of 
detention operations.
    (4) Oversee contracts for detention services, including, when the 
Detention Trustee deems appropriate, negotiating purchases and entering 
into contracts and intergovernmental agreements for detention services, 
and making required determinations and findings for the acquisition of 
services.
    (5) Manage the Justice Prisoner and Alien Transportation System.
    (c) This regulation sets forth the general functions of the 
Detention Trustee solely for the purpose of internal Department of 
Justice guidance. It is not intended to, does not, and may not be relied 
upon to create any rights, substantive or procedural, that are 
enforceable at law by any party in any matter, civil or criminal.

[[Page 67]]



                Subpart V_United States Parole Commission

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

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



Sec. 0.124  United States Parole Commission.

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

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



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

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



Sec. 0.126  Administrative support.

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



Sec. 0.127  Indigent prisoners.

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



            Subpart V	1_Foreign Claims Settlement Commission

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



Sec. 0.128  Organization.

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



Sec. 0.128a  General functions.

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

[[Page 68]]

War Claims Act of 1948, as amended (50 U.S.C. app. 2001-2017p).



Sec. 0.128b  Regulations.

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



         Subpart V	2_Professional Responsibility Advisory Office

    Source: Order No. 2791-2005, 70 FR 76164, Dec. 23, 2005, unless 
otherwise noted.



Sec. 0.129  Professional Responsibility Advisory Office.

    (a) The Professional Responsibility Advisory Office is headed by a 
Director appointed by the Deputy Attorney General. The Director shall be 
responsible to, and report directly to, the Deputy Attorney General and 
shall be a member of the Senior Executive Service.
    (b) The Professional Responsibility Advisory Office shall:
    (1) Advise Department of Justice attorneys on specific questions 
involving professional responsibility, including compliance with 28 
U.S.C. 530b (``Section 530B''), which requires certain federal attorneys 
to comply with state rules of ethics.
    (2) Assist or support training and informational programs for 
Department attorneys and client agencies concerning Section 530B and 
other professional responsibility requirements, including disseminating 
relevant and timely information.
    (3) Assemble, centralize and maintain ethics reference materials, 
including the codes of ethics of the District of Columbia and every 
state and territory, and any relevant interpretations thereof.
    (4) Coordinate with the relevant litigating components of the 
Department to defend attorneys in any disciplinary or other proceeding 
where it is alleged that they failed to meet their ethical obligations, 
provided that the attorney made a good-faith effort to ascertain the 
ethics requirements and made a good-faith effort to comply with those 
requirements.
    (5) Serve as a liaison with the state and federal bar associations 
in matters relating to the implementation and interpretation of Section 
530B, and amendments and revisions to the various state ethics codes.
    (6) Perform such other duties and assignments as deemed necessary 
from time to time by the Attorney General or the Deputy Attorney 
General.
    (c) Nothing in this subpart shall be construed as affecting the 
functions or overriding the authority of the Office of Legal Counsel as 
established by 28 CFR 0.25.



     Subpart W_Bureau of Alcohol, Tobacco, Firearms, and Explosives

    Source: Order No. 2650-2003, 68 FR 4926, Jan. 31, 2003, unless 
otherwise noted.



Sec. 0.130  General functions.

    Subject to the direction of the Attorney General and the Deputy 
Attorney General, the Director of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives shall:
    (a) Investigate, administer, and enforce the laws related to 
alcohol, tobacco, firearms, explosives, and arson, and perform other 
duties as assigned by the Attorney General, including exercising the 
functions and powers of the Attorney General under the following 
provisions of law:
    (1) 18 U.S.C. chapters 40 (related to explosives), 44 (related to 
firearms), 59 (related to liquor trafficking), and 114 (related to 
trafficking in contraband cigarettes);
    (2) Chapter 53 of the Internal Revenue Code of 1986, 26 U.S.C. 
chapter 53 (related to certain firearms and destructive devices);
    (3) Chapters 61 through 80, inclusive, of the Internal Revenue Code 
of 1986, 26 U.S.C. chapters 61-80, insofar as they relate to activities 
administered and enforced with respect to chapter 53 of the Internal 
Revenue Code of 1986, 26 U.S.C. chapter 53;
    (4) 18 U.S.C. 1952 and 3667, insofar as they relate to liquor 
trafficking;
    (5) 49 U.S.C. 80303 and 80304, insofar as they relate to contraband 
described in section 80302(a)(2) or 80302(a)(5); and
    (6) 18 U.S.C. 1956 and 1957, insofar as they involve violations of:

[[Page 69]]

    (i) 18 U.S.C. 844(f) or (i) (relating to explosives or arson),
    (ii) 18 U.S.C. 922(l) (relating to the illegal importation of 
firearms),
    (iii) 18 U.S.C. 924(n) (relating to illegal firearms trafficking),
    (iv) 18 U.S.C. 1952 (relating to traveling in interstate commerce in 
aid of racketeering enterprises insofar as they concern liquor on which 
Federal excise tax has not been paid);
    (v) 18 U.S.C. 2341-2346 (trafficking in contraband cigarettes);
    (vi) Section 38 of the Arms Export Control Act, as added by Public 
Law 94-329, section 212(a)(1), as amended, 22 U.S.C. 2778 (relating to 
the importation of items on the U.S. Munitions Import List), except 
violations relating to exportation, in transit, temporary import, or 
temporary export transactions;
    (vii) 18 U.S.C. 1961 insofar as the offense is an act or threat 
involving arson that is chargeable under State law and punishable by 
imprisonment for more than one year; and
    (viii) Any offense relating to the primary jurisdiction of Bureau of 
Alcohol, Tobacco, Firearms, and Explosives that the United States would 
be obligated by a multilateral treaty either to extradite the alleged 
offender or to submit the case for prosecution if the offender were 
found within the territory of the United States;
    (b) Investigate, seize, and forfeit property involved in a violation 
or attempted violation within the investigative jurisdiction set out in 
paragraph (a), under 18 U.S.C. 981 and 982;
    (c) Subject to the limitations of 3 U.S.C. 301, exercise the 
authorities of the Attorney General under section 38 of the Arms Export 
Control Act, 22 U.S.C. 2778, relating to the importation of defense 
articles and defense services, including those authorities set forth in 
27 CFR part 47; and
    (d) Perform any other function related to the investigation of 
violent crime or domestic terrorism as may be delegated to the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives by the Attorney General.



Sec. 0.131  Specific functions.

    The Director of the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives shall:
    (a) Operate laboratories in support of Bureau activities; provide, 
with or without cost, technical and scientific assistance, including 
expert testimony, to Federal, State, or local agencies; and make 
available the services of the laboratories to foreign law enforcement 
agencies and courts under procedures agreed upon by the Secretary of 
State and the Attorney General;
    (b) Operate the National Explosives Licensing Center to review 
applications for explosives licenses and permits; determine the 
eligibility of applicants; issue licenses and permits on approved 
explosives applications; coordinate with field offices the inspection of 
applicants, licensees, and permittees; and maintain an explosives 
license and permit database;
    (c) Operate the National Firearms Licensing Center to review 
applications for firearms licenses; determine the eligibility of 
applicants; issue licenses on approved firearms applications; coordinate 
with field offices the inspection of applicants and licensees; and 
maintain a firearms license database;
    (d) Maintain and operate the National Firearms Registration and 
Transfer Record (NFRTR), pursuant to section 5841 of the Internal 
Revenue Code of 1986, 26 U.S.C. 5841, as a registry of all National 
Firearms Act (NFA) firearms in the United States that are not in the 
possession or under the control of the United States;
    (e) Maintain and operate the Arson and Explosives National 
Repository, a national repository of information on incidents involving 
arson and the suspected criminal misuse of explosives, under 18 U.S.C. 
846(b);
    (f) Maintain and operate the National Tracing Center to process 
requests from Federal, State, local, and foreign law enforcement 
agencies for the tracing of crime guns; and collect and analyze trace 
data, out-of-business records, reports of firearms stolen or lost from 
the inventories of licensees or interstate shipments, and multiple sales 
reports contained in the Firearms Tracing System (FTS), under 18 U.S.C. 
chapter 44;
    (g) Establish, maintain and operate an Explosives Training and 
Research Facility to train Federal, State, and

[[Page 70]]

local law enforcement officers to investigate bombings and explosions, 
properly handle, utilize, and dispose of explosives materials and 
devices, train canines as explosives detection canines, and conduct 
research on explosives, as authorized by section 1114 of the Homeland 
Security Act of 2002;
    (h) Pay awards for information or assistance and pay for the 
purchase of evidence or information as authorized by 28 U.S.C. 524;
    (i) Subject to applicable statutory restrictions on the disclosure 
of records of information:
    (1) Release information obtained by the Bureau and Bureau 
investigative reports to Federal, State, and local officials engaged in 
the enforcement of laws related to alcohol, tobacco, arson, firearms, 
and explosives offenses;
    (2) Release information obtained by Bureau and Bureau investigative 
reports to Federal, State, and local prosecutors, and State licensing 
boards, engaged in the institution and prosecution of cases before 
courts and licensing boards related to alcohol, tobacco, arson, firearms 
and explosives offenses;
    (3) Authorize the testimony of Bureau officials in response to 
subpoenas or demands issued by the prosecution in Federal, State, or 
local criminal cases involving offenses under the jurisdiction of the 
Bureau; and
    (4) Except as provided in paragraph (i)(1) of this section, 
authorize all other production of information or testimony of Bureau 
officials in response to subpoenas or demands of courts or other 
authorities as governed by subpart B of part 16 of this chapter.



Sec. 0.132  Delegation respecting claims against the Bureau of Alcohol,
Tobacco, Firearms, and Explosives.

    (a) The Director of the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives is authorized to exercise the power and authority vested in 
the Attorney General under 28 U.S.C. 2672 to consider, ascertain, 
adjust, determine, compromise and settle any claim thereunder not 
exceeding $50,000 in any one case caused by the negligent or wrongful 
act or omission of any employee of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives.
    (b) The Director of the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives is authorized to exercise the power and authority vested in 
the Attorney General under 31 U.S.C. 3724, with regard to claims arising 
out of the lawful activities of Bureau of Alcohol, Tobacco, Firearms, 
and Explosives personnel in an amount not to exceed $50,000 in any one 
case.
    (c) The Director of the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives is authorized to redelegate the power and authority vested in 
him in paragraph (b) of this section to the Chief Counsel of the Bureau 
of Alcohol, Tobacco, Firearms, and Explosives and the Chief Counsel's 
designee within the Office of Chief Counsel. This authority shall not be 
further redelegated below the Associate Chief Counsel level.



Sec. 0.133  Transition and continuity of regulations.

    (a) Except as otherwise provided in this section, and to the extent 
applicable to the functions transferred to the Department of Justice by 
the Homeland Security Act of 2002:
    (1) The regulations contained in 27 CFR part 46, subpart F 
(Distribution of Cigarettes), part 47 (Importation of Arms, Ammunition 
and Implements of War), part 55 (Commerce in Explosives), part 178 
(Commerce in Firearms and Ammunition), and part 179 (Machine Guns, 
Destructive Devices, and Certain Other Firearms) as in effect on January 
23, 2003 (see 27 CFR chapter I, revised as of July 1, 2002), shall 
continue in effect with respect to the operations of the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives according to their terms 
until amended, modified, superseded, terminated, set aside, or revoked 
in accordance with law.
    (2) The regulations promulgated by the Department of the Treasury 
relating to the Bureau of Alcohol, Tobacco and Firearms, or by the 
Bureau of Alcohol, Tobacco and Firearms of the Department of the 
Treasury, in effect as of January 23, 2003, shall continue to apply to 
the operations of the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives until amended, modified, superseded, terminated, set aside, 
or revoked in accordance with law, unless

[[Page 71]]

the application of such regulations would be inconsistent with statutes 
or regulations applicable to the Department of Justice.
    (3) All orders, delegations, determinations, rules, personnel 
actions, permits, agreements, grants, contracts, certificates, licenses, 
registrations, and privileges of the Bureau of Alcohol, Tobacco and 
Firearms completed or in effect as of January 23, 2003, and all matters 
and proceedings pending therein on January 23, 2003, shall continue in 
effect according to their terms, to the extent that they relate to the 
authorities or functions transferred to the Department of Justice 
pursuant to the Homeland Security Act of 2002, until amended, modified, 
superseded, terminated, set aside, or revoked in accordance with law, 
unless such application would be inconsistent with statutes or 
regulations applicable to the Department of Justice.
    (4) References in such regulations, orders, delegations, 
determinations, rules, personnel actions, permits, agreements, grants, 
contracts, certificates, licenses, registrations, and privileges to the 
Secretary of Treasury, the Department of Treasury, the Director of the 
Bureau of Alcohol, Tobacco and Firearms, or the Bureau of Alcohol, 
Tobacco and Firearms or its officers, employees, agents or 
organizational units or functions shall be deemed to refer, as 
appropriate, on and after January 24, 2003, to the Attorney General, the 
Department of Justice, the Director of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives or to its officers, employees, or agents or its corresponding 
organizational units or functions, respectively.
    (b) Exceptions. Notwithstanding the provisions of paragraph (a) of 
this section, 27 CFR part 72, and 27 CFR 46.155, 178.152 and 179.182 as 
in effect on January 23, 2003, shall not be deemed applicable to the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives.



   Subpart W	1_Additional Assignments of Functions and Designation of 
 Officials To Perform the Duties of Certain Offices in Case of Vacancy, 
  or Absence Therein or in Case of Inability or Disqualification to Act



Sec. 0.135  Functions common to heads of organizational units.

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 960-81, 46 FR 52349, Oct. 
27, 1981. Redesignated by Order No. 2650-2003, 68 FR 4926, Jan. 31, 
2003]



Sec. 0.136  Designation of Acting United States Attorneys.

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

[[Page 72]]

while performing such functions and duties.

[Order No. 840-79, 44 FR 43468, July 25, 1979. Redesignated by Order No. 
2650-2003, 68 FR 4926, Jan. 31, 2003]



Sec. 0.137  Designating officials to perform the functions and duties of
certain offices in case of absence, disability or vacancy.

    (a) In case of vacancy in the office of Attorney General, or of his 
absence or disability, the Deputy Attorney General shall, pursuant to 28 
U.S.C. 508(a) perform the functions and duties of and act as Attorney 
General. When by reason of absence, disability, or vacancy in office, 
neither the Attorney General nor the Deputy Attorney General is 
available to exercise the duties of the office of Attorney General, the 
Associate Attorney General shall, pursuant to 28 U.S.C. 508(b), perform 
the functions and duties of and act as Attorney General. In the event of 
vacancy, absence, or disability in each of these offices, the Solicitor 
General shall perform the functions and duties of and act as Attorney 
General.
    (b) Every office within the Department to which appointment is 
required to be made by the President with the advice and consent of the 
Senate (``PAS office'') shall have a First Assistant within the meaning 
of the Federal Vacancies Reform Act of 1998. Where there is a position 
of Principal Deputy to the PAS office, the Principal Deputy shall be the 
First Assistant. Where there is no position of Principal Deputy to the 
PAS office, the First Assistant shall be the person whom the Attorney 
General designates in writing.
    (c) In the event of a vacancy in the office of the head of an 
organizational unit that is not covered by paragraphs (a) or (b) of this 
section, the ranking deputy (or an equivalent official) in such unit who 
is available shall perform the functions and duties of and act as such 
head, unless the Attorney General directs otherwise. Except as otherwise 
provided by law, if there is no ranking deputy available, the Attorney 
General shall designate another official of the Department to perform 
the functions and duties of and act as such head.
    (d) The head of an organizational unit of the Department not covered 
by paragraphs (a) or (b) of this section is authorized, in the case of 
absence from office or disability, to designate the ranking deputy (or 
an equivalent official) in the unit who is available to act as head. If 
there is no deputy available to act, any other official in such unit may 
be designated. Alternatively, in his discretion, the Attorney General 
may designate any official in the Department to act as head when a head 
who is not covered by paragraphs (a) or (b) of this section is absent or 
disabled.

[Order No. 755-77, 42 FR 59384, Nov. 17, 1977, as amended by Order No. 
1043-84, 49 FR 4469, Feb. 7, 1984; Order No. 1097-85, 50 FR 25708, June 
21, 1985; Order No. 1858-94, 59 FR 13883, Mar. 24, 1994; Order No. 2205-
99, 64 FR 6526, Feb. 10, 1999. Redesignated by Order No. 2650-2003, 68 
FR 4926, Jan. 31, 2003]



     Subpart X_Authorizations With Respect to Personnel and Certain 
                         Administrative Matters



Sec. 0.138  Federal Bureau of Investigation, Drug Enforcement Administration,
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Bureau of Prisons, Federal 

          Prison Industries, Immigration and Naturalization Service, 
          United States Marshals Service, Office of Justice Programs, 
          Executive Office for Immigration Review, Executive Office for 
          United States Attorneys, Executive Office for United States 
          Trustees.

    (a) The Director of the Federal Bureau of Investigation, the 
Administrator of the Drug Enforcement Administration, the Director of 
the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Director 
of the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization Service, the Director 
of the United States Marshals Service, the Assistant Attorney General 
for the Office of Justice Programs, the Director of the Executive Office 
for Immigration Review, the Director of the Executive Office for United 
States Attorneys, and the Director of the Executive Office for United 
States Trustees are, as to their respective jurisdictions, authorized to

[[Page 73]]

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

[Order No. 2250-99, 64 FR 46846, Aug. 27, 1999, as amended by Order No. 
2650-2003, 68 FR 4927, Jan. 31, 2003]



Sec. 0.139  [Reserved]



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

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 960-81, 46 FR 52350, Oct. 27, 1981; Order No. 2650-
2003, 68 FR 4927, Jan. 31, 2003]



Sec. 0.141  Audit and ledger accounts.

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 960-81, 46 FR 52350, Oct. 
27, 1981; Order No. 2650-2003, 68 FR 4927, Jan. 31, 2003]



Sec. 0.142  Per diem and travel allowances.

    The Director of the Federal Bureau of Investigation, Director of the 
Bureau of Prisons, Commissioner of Federal Prison Industries, Inc., 
Commissioner of Immigration and Naturalization Service, Administrator of 
the Drug Enforcement Administration, Director of the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives, Director of the United States 
Marshals Service, and Assistant Attorney General, Office of Justice 
Programs, as to their respective jurisdictions, and the Assistant 
Attorney General for Administration as to all other organizational units 
of the Department (including U.S. Attorneys), except as provided in 
paragraphs (f) and (g) of this section, are authorized to exercise the 
authority of the Attorney General to take final action in the following 
matters:

[[Page 74]]

    (a) Authorizing travel, subsistence, and mileage allowances under 
sections 5702-5707 of title 5 of the U.S. Code in accordance with 
regulations prescribed by the Administrator of General Services and the 
Assistant Attorney General for Administration.
    (b) Fixing rates in accordance with sections 5702-5704 and 5707 of 
title 5, U.S. Code, and regulations prescribed by the Administrator of 
General Services and the Assistant Attorney General for Administration.
    (c) Authorizing travel advances pursuant to 5 U.S.C. 5705 in 
accordance with the regulations prescribed by the Administrator of 
General Services and the Assistant Attorney General for Administration.
    (d) Authorizing travel and transportation expenses, and, when 
applicable, relocation expenses for transferred employees, new 
appointees and student trainees, in accordance with 5 U.S.C. 5721-5733 
and regulations prescribed by the Administrator of General Services and 
the Assistant Attorney General for Administration.
    (e) Authorizing or approving, for purposes of security, the use of 
compartments or other transportation accommodations superior to lowest 
first-class accommodations under applicable travel regulations subject 
to 5 U.S.C. 5731.
    (f) The heads of Offices, Boards and Divisions, in addition to the 
Bureaus, have the authority to approve the use of cash in excess of $100 
in lieu of Government Transportation Requests in emergency 
circumstances, in accordance with regulations prescribed by the 
Administrator of the General Services Administration.
    (g) The Director of the Federal Bureau of Investigation, the 
Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
and the Administrator of the Drug Enforcement Administration are 
authorized to approve travel expenses of newly appointed special agents 
and the transportation expenses of their families and household goods 
and personal effects from place of residence at time of selection to the 
first duty station, in accordance with 28 U.S.C. 530 and regulations 
prescribed by the Assistant Attorney General for Administration.

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

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



Sec. 0.143  Incentive Award Program.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Administrator of the Drug Enforcement Administration, the Director 
of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the 
Assistant Attorney General for the Office of Justice Programs, the 
Director of the Executive Office for U.S. Attorneys, the Director of the 
Executive Office for U.S. Trustees, the Director of the Executive Office 
for Immigration Review, and the Director of the U.S. Marshals Service, 
as to their respective jurisdictions, and the Assistant Attorney General 
for Administration, as to all other organizational units of the 
Department, are authorized to exercise the power and authority vested in 
the Attorney General by law with respect to the administration of the 
Incentive Award Program and to approve honorary awards and cash awards 
under such program not in excess of $7,500 for personnel in General 
Schedule grades GS-1 through GS-15, administratively determined pay 
systems, and wage board positions, but excluding all Schedule C 
positions.

[Order No. 2949-2008, 73 FR 8816, Feb. 15, 2008]



Sec. 0.144  Determination of basic workweek.

    The Director of the Federal Bureau of Investigation, Director of the 
Bureau of Prisons, Commissioner of Federal Prison Industries, Inc., 
Commissioner of the Immigration and Naturalization Service, 
Administrator of the Drug Enforcement Administration, Director of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Director of the 
Office of Justice Assistance, Research and Statistics, Director of the 
Executive Office for United States Attorneys and Director of the United 
States Marshals Service, as to their respective jurisdictions, and the 
Assistant Attorney General for Administration, as to all other 
organizational

[[Page 75]]

units of the Department, are authorized to exercise the authority vested 
in the Attorney General by 5 U.S.C. 6101(a), to determine that the 
organizational unit concerned would be seriously handicapped in carrying 
out its functions or that costs would be substantially increased except 
upon modification of the basic workweek, and when such determination is 
made to fix the basic workweek of officers and employees of the unit 
concerned.

[Order No. 960-81, 46 FR 52350, Oct. 27, 1981, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.145  Overtime pay.

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 960-81, 46 FR 52350, Oct. 27, 1981; Order No. 2650-
2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.146  Seals.

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 960-81, 46 FR 52350, Oct. 27, 1981; Order No. 2650-
2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.147  Certification of obligations.

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

[[Page 76]]

the Deputy Assistant Attorney General, Office of the Controller, Justice 
Management Division.

[Order No. 972-82, 47 FR 9823, Mar. 8, 1982, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.148  Certifying officers.

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

[Order No. 1142-86, 51 FR 25049, July 10, 1986, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.149  Cash payments.

    (a) The Director of the Federal Bureau of Investigation, the 
Director of the Bureau of Prisons, the Commissioner of the Federal 
Prison Industries, Inc., the Commissioner of the Immigration and 
Naturalization Service, the Administrator of the Drug Enforcement 
Administration, the Director of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, the Assistant Attorney General for the Office 
of Justice Programs, the Director of the United States Marshals Service, 
and the Director of the Executive Office for United States Attorneys, as 
to their respective jurisdictions, and the Assistant Attorney General 
for Administration, as to all other organizational units of the 
Department, are authorized to:
    (1) Request Department of the Treasury designation of disbursing 
employees (including cashiers),
    (2) Approve waivers of the Department of the Treasury maximum 
limitation on routine payments of cash from imprest funds, and
    (3) Approve requests to place imprest funds in depositary cash 
demand withdrawal accounts and establish the maximum amount of each 
account.
    (b) Guidelines are to be promulgated by each component for the 
establishment and maintenance of such accounts in accordance with the 
provisions set forth in the Treasury Financial Manual, Volume I, Part 4, 
Chapter 3000. Existing authorizations to request designations of 
disbursing employees shall remain in effect until terminated by the 
official who by this section would be authorized to request such 
designations.

[Order No. 1142-86, 51 FR 25049, July 10, 1986, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.150  Collection of erroneous payments.

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

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



Sec. 0.151  Administering oath of office.

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug Enforcement Administration, the Director of the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives, the Director of the Office 
of Justice Assistance, Research and Statistics, the Director of the 
Executive Office for U.S. Attorneys, and the Director of the U.S. 
Marshals Service, as to their respective jurisdictions, and the 
Assistant Attorney General for Administration, as to all other 
organizational units of the Department are authorized to designate, in 
writing, pursuant to the provisions of sections 2903(b) and 2904 of 
title 5, U.S. Code, officers or employees

[[Page 77]]

to administer the oath of office required by section 3331 of title 5, 
U.S. Code, and to administer any other oath required by law in 
connection with employment in the executive branch of the Federal 
Government.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
516-73, 38 FR 12918, May 17, 1973; Order No. 520-73, 38 FR 18380, July 
10, 1973; Order No. 772-78, 43 FR 14009, Apr. 4, 1978; Order No. 960-81, 
46 FR 52351, Oct. 27, 1981; Order No. 2650-2003, 68 FR 4928, Jan. 31, 
2003]



Sec. 0.152  Approval of funds for attendance at meetings.

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 960-81, 46 FR 52351, Oct. 
27, 1981; Order No. 2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.153  Selection and assignment of employees for training.

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

[Order No. 960-81, 46 FR 52351, Oct. 27, 1981, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 0.154  Advance and evacuation payments and special allowances.

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

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 565-74, 39 FR 15877, May 
6, 1974; Order No. 960-81, 46 FR 52351, Oct. 27, 1981; Order No. 2650-
2003, 68 FR 4928, Jan. 31, 2003]



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

    The Director of the Federal Bureau of Investigation, the Director of 
the Bureau of Prisons, the Commissioner of Federal Prison Industries, 
the Commissioner of Immigration and Naturalization, the Administrator of 
the Drug

[[Page 78]]

Enforcement Administration, the Director of the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives, and the Director of the Office of 
Justice Assistance, Research and Statistics, as to their respective 
jurisdictions, and the Assistant Attorney General for Administration as 
to all other organizational units of the Department (including U.S. 
Attorneys and Marshals) are authorized to exercise the authority under 5 
U.S.C. 5584 for the waiver of claims of the United States for erroneous 
payments of pay and allowances to employees of the Department of 
Justice.

[Order No. 514-73, 38 FR 12110, May 17, 1973, as amended by Order No. 
520-73, 38 FR 18380, July 10, 1973; Order No. 960-81, 46 FR 52351, Oct. 
27, 1981; Order No. 2650-2003, 68 FR 4928, Jan. 31, 2003; Order No. 
2735-2004, 69 FR 57640, Sept. 27, 2004]



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

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



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

    (a) Pursuant to 5 U.S.C. 3151, there is established a personnel 
system for senior personnel within the Federal Bureau of Investigation 
(FBI) and the Drug Enforcement Administration (DEA) to be known as the 
FBI-DEA Senior Executive Service (FBI-DEA SES).
    (b) Pursuant to 5 U.S.C. 3151(b)(2)(B), a career employee in the 
civil service is one who occupies, or who within the last 5 years 
occupied, a permanent position in the competitive service, a career-type 
permanent position in the excepted service, or a permanent position in 
the SES while serving under a career appointment. A career-type 
permanent position in the excepted service does not include:
    (1) A Schedule C position authorized under 5 CFR 213.3301;
    (2) A position that meets the same criteria as a Schedule C 
position; and
    (3) A position where the incumbent is traditionally removed upon a 
change in Presidential Administration.
    (c) Except as to the position of Deputy Director of the FBI (which 
remains subject to the exclusive authority of the Attorney General), the 
FBI-DEA SES is subject to the overall supervision and direction of the 
Deputy Attorney General, who shall ensure that the FBI-DEA SES is 
designed and administered in compliance with all statutory and 
regulatory requirements.
    (d) The Attorney General retains the authority to recommend members 
of the FBI-DEA SES for Presidential Rank Awards.

[Order No. 1600-92, 57 FR 31314, July 15, 1992, as amended by Order No. 
1975-95, 60 FR 35335, July 7, 1995; Order No. 2250-99, 64 FR 46846, Aug. 
27, 1999]



Sec. 0.158  [Reserved]



Sec. 0.159  Redelegation of authority.

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

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



      Subpart Y_Authority To Compromise and Close Civil Claims and 
     Responsibility for Judgments, Fines, Penalties, and Forfeitures



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

    (a) Subject to the limitations set forth in paragraph (d) of this 
section, Assistant Attorneys General are authorized, with respect to 
matters assigned to their respective divisions, to:
    (1) Accept offers in compromise of claims asserted by the United 
States in all cases in which the difference between the gross amount of 
the original claim and the proposed settlement does

[[Page 79]]

not exceed $2,000,000 or 15 percent of the original claim, whichever is 
greater;
    (2) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases in which the principal 
amount of the proposed settlement does not exceed $2,000,000; and
    (3) Accept offers in compromise in all nonmonetary cases.
    (b) Subject to the limitations set forth in paragraph (d) of this 
section, the Assistant Attorney General, Tax Division, is further 
authorized to accept offers in compromise of, or settle 
administratively, claims against the United States, regardless of the 
amount of the proposed settlement, in all cases in which the Joint 
Committee on Taxation has indicated that it has no adverse criticism of 
the proposed settlement.
    (c) Subject to the limitations set forth in paragraph (d) of this 
section, the Assistant Attorney General, Environment and Natural 
Resources Division, is further authorized to approve settlements under 
the Comprehensive Environmental Response, Compensation and Liability 
Act, 42 U.S.C. 9601 et seq., regardless of the amount of the proposed 
settlement, with:
    (1) Parties whose contribution to contamination at a hazardous waste 
site is de minimis within the meaning of 42 U.S.C. 9622(g); or
    (2) Parties whose responsibility can be equitably allocated and are:
    (A) Paying at least the allocated amount; or
    (B) Unable to pay the allocated amount as confirmed by a qualified 
financial expert.
    (d) Any proposed settlement, regardless of amount or circumstances, 
must be referred to the Deputy Attorney General or the Associate 
Attorney General, as appropriate:
    (1) When, for any reason, the compromise of a particular claim 
would, as a practical matter, control or adversely influence the 
disposition of other claims and the compromise of all the claims taken 
together would exceed the authority delegated by paragraph (a) of this 
section; or
    (2) When the Assistant Attorney General concerned is of the opinion 
that because of a question of law or policy presented, or because of 
opposition to the proposed settlement by a department or agency 
involved, or for any other reason, the proposed settlement should 
receive the personal attention of the Deputy Attorney General or the 
Associate Attorney General, as appropriate;
    (3) When the proposed settlement converts into a mandatory duty the 
otherwise discretionary authority of a department or agency to 
promulgate, revise, or rescind regulations;
    (4) When the proposed settlement commits a department or agency to 
expend funds that Congress has not appropriated and that have not been 
budgeted for the action in question, or commits a department or agency 
to seek particular appropriation or budget authorization; or
    (5) When the proposed settlement otherwise limits the discretion of 
a department or agency to make policy or managerial decisions committed 
to the department or agency by Congress or by the Constitution.

[Order No. 1958-95, 60 FR 15674, Mar. 27, 1995, as amended by Order No. 
3001-2008, 73 FR 54947, Sept. 24, 2008]



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

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

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

[[Page 80]]



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

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

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



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

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



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

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

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



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

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

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



Sec. 0.166  Memorandum pertaining to closed claim.

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



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

    In addition to the matters which he is required to submit to the 
Associate Attorney General under preceding sections of this subpart Y, 
the Director of the Office of Alien Property, shall submit to the 
Associate Attorney General for such review as he may desire to make the 
following:
    (a) Any proposed allowance by the Director, without hearing, of a 
title or debt claim.
    (b) Any final determination of a title of debt claim, whether by 
allowance or disallowance.

[[Page 81]]

    (c) Any proposed allowance or disallowance by the Director, without 
hearing, of a title claim under section 9(a) of the Trading with the 
Enemy Act, as amended, filed less than 2 years after the date of vesting 
in or transfer to the Alien Property Custodian or the Attorney General 
of the property or interest in respect of which the claim is made:

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

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



Sec. 0.168  Redelegation by Assistant Attorneys General.

    (a) Assistant Attorneys General are authorized, with respect to 
matters assigned to their respective divisions, to redelegate to 
subordinate division officials and United States Attorneys any of the 
authority delegated by Sec. Sec. 0.160 (a) and (b), 0.162, 0.164, and 
0.172(b), except that any disagreement between a United States Attorney 
or other Department attorney and a client agency over a proposed 
settlement that cannot be resolved below the Assistant Attorney General 
level must be presented to the Assistant Attorney General for 
resolution.
    (b) Redelegations of authority under this section shall be in 
writing and shall be approved by the Deputy Attorney General or the 
Associate Attorney General, as appropriate, before taking effect.
    (c) Existing delegations and redelegations of authority to 
subordinate division officials and United States Attorneys to compromise 
or close civil claims shall continue in effect until modified or revoked 
by the respective Assistant Attorneys General.
    (d) Subject to the limitations set forth in Sec. 0.160(c) and 
paragraph (a) of this section, redelegations by the Assistant Attorneys 
General to United States Attorneys may include the authority to:
    (1) Accept offers in compromise of claims asserted by the United 
States in all cases in which the gross amount of the original claim does 
not exceed $5,000,000 and in which the difference between the original 
claim and the proposed settlement does not exceed $1,000,000; and
    (2) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases in which the principal 
amount of the proposed settlement does not exceed $1,000,000.

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



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

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

[[Page 82]]

claim shall mean twenty percent of the dutiable value of the 
merchandise.

[Order No. 2343-2000, 65 FR 78414, Dec. 15, 2000]



Sec. 0.170  Interest on monetary limits.

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



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

    (a) Each United States Attorney shall be responsible for conducting, 
handling, or supervising such litigation or other actions as may be 
appropriate to accomplish the satisfaction, collection, or recovery of 
judgments, fines, penalties, and forfeitures (including bail bond 
forfeitures) imposed in his district, unless the Assistant Attorney 
General, or his delegate, of the litigating division which has 
jurisdiction of the case in which such judgment, fine, penalty or 
forfeiture is imposed notifies the United States Attorney in writing 
that the division will assume such enforcement responsibilities.
    (b) Each U.S. Attorney shall designate an Assistant U.S. Attorney, 
and such other employees as may be necessary, or shall establish an 
appropriate unit within his office, to be responsible for activities 
related to the satisfaction, collection, or recovery, as the case may 
be, of judgments, fines, penalties, and forfeitures (including bail-bond 
forfeitures).
    (c) The Director of the Executive Office for United States Attorneys 
shall be responsible for the establishment of policy and procedures and 
other appropriate action to accomplish the satisfaction, collection, or 
recovery of fines, special assessments, penalties, interest, bail bond 
forfeitures, restitution, and court costs arising from the prosecution 
of criminal cases by the Department of Justice and the United States 
Attorneys. He shall also prepare regulations required by 18 U.S.C. 
3613(c), pertaining to the application of tax lien provisions to 
criminal fines, for issuance by the Attorney General.
    (d) The United States Attorney for the judicial district in which a 
criminal monetary penalty has been imposed is authorized to receive all 
notifications of payment, certified copies of judgments or orders, and 
notifications of change of address pertaining to an unpaid fine, which 
are otherwise required to be delivered to the Attorney General pursuant 
to 18 U.S.C. 3612. If an Assistant Attorney General of a litigating 
division has notified the United States Attorney, pursuant to paragraph 
(a) of this section that such division will assume responsibility for 
enforcement of a criminal monetary penalty, the United States Attorney 
shall promptly transmit such notifications and certified copies of 
judgments or orders to such division.
    (e) With respect to cases assigned to his office, each United States 
Attorney--
    (1) Shall be responsible for collection of any unpaid fine with 
respect to which a certification has been issued as provided in 18 
U.S.C. 3612(b);
    (2) Shall provide notification of delinquency or default of any fine 
as provided in 18 U.S.C. 3612 (d) and (e);
    (3) May waive all or any part of any interest or penalty relating to 
a fine imposed under any prior law if, as determined by such United 
States Attorney, reasonable efforts to collect the interest or penalty 
are not likely to be effective; and
    (4) Is authorized to accept delivery of the amount or property due 
as restitution for transfer to the victim or person eligible under 18 
U.S.C. 3663 (or under 18 U.S.C. 3579 (f)(4) with respect to offenses 
committed prior to November 1, 1987).
    (f) With respect to offenses committed after December 31, 1984, and 
prior to November 1, 1987, each United States Attorney is authorized 
with respect to cases assigned to his office--
    (1) At his discretion, to declare the entire unpaid balance of a 
fine or penalty payable immediately in accordance with 18 U.S.C. 
3565(b)(3);
    (2) If a fine or penalty exceeds $500, to receive a certified copy 
of the judgment, otherwise required to be delivered by the clerk of the 
court to the Attorney General;
    (3) When a fine or penalty is satisfied as provided by law,

[[Page 83]]

    (i) To file with the court a notice of satisfaction of judgment if 
the defendant makes a written request to the United States Attorney for 
such filing; or,
    (ii) If the amount of the fine or penalty exceeds $500 to enter into 
a written agreement with the defendant to extend the twenty-year period 
of obligation to pay fine.
    (g) With respect to offenses committed prior to November 1, 1987, 
each United States Attorney is hereby authorized, with respect to the 
discharge of indigent prisoners under 18 U.S.C. 3569, to make a finding 
as to whether the retention by a convict of property, in excess of that 
which is by law exempt from being taken on civil process for debt, is 
reasonably necessary for the convict's support or that of his family.
    (h) The Director of the Bureau of Prisons shall take such steps as 
may be necessary to assure that the appropriate U.S. Attorney is 
notified whenever a prisoner is released prior to the payment of his 
fine.
    (i) The Pardon Attorney shall notify the appropriate U.S. Attorney 
whenever the President issues a pardon and whenever the President remits 
or commutes a fine.

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



Sec. 0.172  Authority: Federal tort claims.

    (a) The Director of the Bureau of Prisons, the Commissioner of 
Federal Prison Industries, the Commissioner of the Immigration and 
Naturalization Service, the Director of the United States Marshals 
Service, and the Administrator of the Drug Enforcement Administration 
shall have authority to adjust, determine, compromise, and settle a 
claim involving the Bureau of Prisons, Federal Prison Industries, the 
Immigration and Naturalization Service, the United States Marshals 
Service, and the Drug Enforcement Administration, respectively, under 
section 2672 of title 28, United States Code, relating to the 
administrative settlement of Federal tort claims, if the amount of a 
proposed adjustment, compromise, settlement, or award does not exceed 
$50,000. When, in the opinion of one of those officials, such a claim 
pending before him presents a novel question of law or a question of 
policy, he shall obtain the advice of the Assistant Attorney General in 
charge of the Civil Division before taking action on the claim.
    (b) Subject to the provisions of Sec. 0.160, the assistant Attorney 
General in charge of the Civil Division shall have authority to adjust, 
determine, compromise, and settle any other claim involving the 
Department under section 2672, of title 28, U.S. Code, relating to the 
administrative settlement of Federal tort claims.

[Order No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
520-73, 38 FR 18381, July 10, 1973; Order No. 565-74, 39 FR 15877, May 
6, 1974; Order No. 1149-86, 51 FR 31940, Sept. 8, 1986; Order No. 1528-
91, 56 FR 48734, Sept. 26, 1991; Order No. 2328-2000, 65 FR 60100, Oct. 
10, 2000]



  Sec. Appendix to Subpart Y of Part 0--Redelegations of Authority To 
                    Compromise and Close Civil Claims

                             Civil Division

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

                          [Directive No. 14-95]

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

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

    (a) Delegation to Deputy Assistant Attorneys General. The Deputy 
Assistant Attorneys General are authorized to act for, and to exercise 
the authority of, the Assistant Attorney General in charge of the Civil 
Division with respect to the institution of suits, the acceptance or 
rejection of compromise offers, and the closing of claims or cases, 
unless any such authority is required by law to be exercised by the 
Assistant Attorney General personally or has been specifically delegated 
to another Department official.
    (b) Delegation to United States Attorneys, Branch, Office and Staff 
Directors and Attorneys-in-Charge of Field Offices. Subject to the 
limitations imposed by 28 CFR 0.160(c),

[[Page 84]]

and 0.164(a) and section 4(c) of this directive, and the authority of 
the Solicitor General set forth in 28 CFR 0.163,
    (1) Branch, Office, and Staff Directors, and Attorneys-in-Charge of 
Field Offices with respect to matters assigned or delegated to their 
respective components are hereby delegated the authority to:
    (a) Accept offers in compromise of claims on behalf of the United 
States;
    (i) In all cases in which the gross amount of the original claim did 
not exceed $500,000; and,
    (ii) In all cases in which the gross amount of the original claim 
was between $500,000 and $5,000,000, so long as the difference between 
the gross amount of the original claim and the proposed settlement does 
not exceed $500,000 or 15 percent of the original claim, whichever is 
greater;
    (b) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases where the principal amount 
of the proposed settlement does not exceed $500,000; and,
    (c) Reject any offers.
    (2) United States Attorneys with respect to matters assigned or 
delegated to their respective components are hereby delegated the 
authority to:
    (a) Accept offers in compromise of claims on behalf of the United 
States;
    (i) In all cases in which the gross amount of the original claim did 
not exceed $1,000,000 and,
    (ii) In all cases in which the gross amount of the original claim 
does not exceed $5,000,000, and in which the difference between the 
gross amount of the original claim and the proposed settlement does not 
exceed $1,000,000;
    (b) Accept offers in compromise of, or settle administratively, 
claims against the United States in all cases where the principal amount 
of the proposed settlement does not exceed $1,000,000 and,
    (c) Reject any offers.
    (3) With respect to claims asserted in bankruptcy proceedings, the 
term gross amount of the original claim in (1) (a) and (b), and (2) (a) 
and (b) above means liquidation value. Liquidation value is the forced 
sale value of the collateral, if any, securing the claim(s) plus the 
dividend likely to be paid for the unsecured portion of the claim(s) in 
an actual or hypothetical liquidation of the bankruptcy estate.
    (c) Subject to the limitations imposed by sections 1(e) and 4(c) of 
this directive, United States Attorneys, Directors, and Attorneys-in-
Charge are authorized to file suits, counterclaims, and cross-claims, to 
close, or to take any other action necessary to protect the interests of 
the United States in all routine nonmonetary cases, in all routine loan 
collection and foreclosure cases, and in other monetary claims or cases 
where the gross amount of the original claim does not exceed $500,000, 
or in the case of United States Attorneys, $1,000,000. Such actions in 
nonmonetary cases which are other than routine will be submitted for the 
approval of the Assistant Attorney General, Civil Division.
    (d) United States Attorneys may redelegate in writing the above-
conferred compromise and suit authority to Assistant United States 
Attorneys who supervise other Assistant United States Attorneys who 
handle civil litigation.
    (e) Limitations on delegations. The authority to compromise cases, 
file suits, counter-claims, and cross-claims, to close cases, or take 
any other action necessary to protect the interests of the United 
States, delegated by paragraphs (a) and (b) of this section, may not be 
exercised, and the matter shall be submitted for resolution to the 
Assistant Attorney General, Civil Division, when:
    (1) For any reason, the proposed action, as a practical matter, will 
control or adversely influence the disposition of other claims totaling 
more than the respective amounts designated in the above paragraphs.
    (2) Because a novel question of law or a question of policy is 
presented, or for any other reason, the proposed action should, in the 
opinion of the officer or employee concerned, receive the personal 
attention of the Assistant Attorney General, Civil Division.
    (3) The agency or agencies involved are opposed to the proposed 
action. The views of an agency must be solicited with respect to any 
significant proposed action if it is a party, if it has asked to be 
consulted with respect to any such proposed action, or if such proposed 
action in a case would adversely affect any of its policies.
    (4) The U.S. Attorney involved is opposed to the proposed action and 
requests that the matter be submitted to the Assistant Attorney General 
for decision.
    (5) The case is on appeal, except as determined by the Director of 
the Appellate Staff.

                       Section 2. Action Memoranda

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

[[Page 85]]

memorandum should contain a detailed description of the matter, the 
United States Attorney's recommendation, the agency's recommendation 
where applicable, and a full statement of the reasons therefor.

          Section 3. Return of Civil Judgment Cases to Agencies

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

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

    (a) Direct reference to United States Attorneys by agencies. The 
following civil actions under the jurisdiction of the Assistant Attorney 
General, Civil Division, may be referred by the agency concerned 
directly to the appropriate United States Attorney for handling in trial 
courts, subject to the limitations imposed by paragraph (c) of this 
section. United States Attorneys are hereby delegated the authority to 
take all necessary steps to protect the interests of the United States, 
without prior approval of the Assistant Attorney General, Civil 
Division, or his representations, subject to the limitations set forth 
in section 1(e) of this directive. Agencies may, however, if special 
handling is desired, refer these cases to the Civil Division. Also, when 
constitutional questions or other significant issues arise in the course 
of such litigation, or when an appeal is taken by any party, the Civil 
Division should be consulted.
    (1) Money claims by the United States, except claims involving 
penalties and forfeitures, where the gross amount of the original claim 
does not exceed $1,000,000.
    (2) Single family dwelling house foreclosures arising out of loans 
made or insured by the Department of Housing and Urban Development, the 
Veterans Administration and the Farmers Home Administration.
    (3) Suits to enjoin violations of, and to collect penalties under, 
the Agricultural Adjustment Act of 1938, 7 U.S.C. 1376, the Packers and 
Stockyards Act, 7 U.S.C. 203, 207(g), 213, 215, 216, 222, and 228a, the 
Perishable Agricultural Commodities Act, 1930, 7 U.S.C. 499c(a) and 
499h(d), the Egg Products Inspection Act, 21 U.S.C. 1031 et seq., the 
Potato Research and Promotion Act, 7 U.S.C. 2611 et seq., the Cotton 
Research and Promotion Act of 1966, 7 U.S.C. 2101 et seq., the Federal 
Meat Inspection Act, 21 U.S.C. 601 et seq., and the Agricultural 
Marketing Agreement Act of 1937, as amended, 7 U.S.C. 601 et seq.
    (4) Suits by social security beneficiaries under the Social Security 
Act, 42 U.S.C. 402 et seq.
    (5) Social Security disability suits under 42 U.S.C. 423 et seq.
    (6) Black lung beneficiary suits under the Federal Coal Mine Health 
and Safety Act of 1969, 30 U.S.C. 921 et seq.
    (7) Suits by Medicare beneficiaries under 42 U.S.C. 1395ff.
    (8) Garnishment actions authorized by 42 U.S.C. 659 for child 
support or alimony payments and actions for general debt, 5 U.S.C. 
5520a.
    (9) Judicial review of actions of the Secretary of Agriculture under 
the food stamp program, pursuant to the provisions of 7 U.S.C. 2022 
involving retail food stores.
    (10) Cases referred by the Department of Labor for the collection of 
penalties or for injunctive action under the Fair Labor Standards Act of 
1938 and the Occupational Safety and Health Act of 1970.
    (11) Cases referred by the Department of Labor solely for the 
collection of civil penalties under the Farm Labor Contractor 
Registration Act of 1963, 7 U.S.C. 2048(b).
    (12) Cases referred by the Interstate Commerce Commission to enforce 
orders of the Interstate Commerce Commission or to enjoin or suspend 
such orders pursuant to 28 U.S.C. 1336.
    (13) Cases referred by the United States Postal Service for 
injunctive relief under the nonmailable matter laws, 39 U.S.C. 3001 et 
seq.
    (b) Delegation to United States Attorneys. Upon the recommendation 
of the appropriate Director, the Assistant Attorney General, Civil 
Division may delegate to United States Attorneys suit authority 
involving any claims or suits where the gross amount of the original 
claim does not exceed $5,000,000 where the circumstances warrant such 
delegations. United States Attorneys may compromise any case redelegated 
under this subsection in which the gross amount of the original claim 
does not exceed $5,000,000, so long as the difference between the gross 
amount of the original claim and the proposed settlement does not exceed 
$1,000,000. United States Attorneys may close cases redelegated to them 
under this subsection only upon the authorization of the appropriate 
authorized person within the Department of Justice. All delegations 
pursuant to this subsection shall be in writing and no United States 
Attorney shall have authority to compromise or close any such delegated 
case or claim except as is specified in the required written delegation 
or in section 1(c) of this directive. The limitations of section 1(e) of 
this directive also remain applicable in any case or claim delegated 
hereunder.
    (c) Cases not covered. Regardless of the amount in controversy, the 
following matters normally will not be delegated to United

[[Page 86]]

States Attorneys for handling but will be personally or jointly handled 
or monitored by the appropriate Branch or Office within the Civil 
Division:
    (1) Civil actions in the Court of Federal Claims.
    (2) Cases within the jurisdiction of the Commercial Litigation 
Branch involving patents, trademarks, copyrights, etc.
    (3) Cases before the United States Court of International Trade.
    (4) Any case involving bribery, conflict of interest, breach of 
fiduciary duty, breach of employment contract, or exploitation of public 
office.
    (5) Any fraud or False Claims Act case where the amount of single 
damages, plus civil penalties, if any, exceeds $1,000,000.
    (6) Any case involving vessel-caused pollution in navigable waters.
    (7) Cases on appeal, except as determined by the Director of the 
Appellate Staff.
    (8) Any case involving litigation in a foreign court.
    (9) Criminal proceedings arising under statutes enforced by the Food 
and Drug Administration, the Consumer Product Safety Commission, the 
Federal Trade Commission, and the National Highway Traffic Safety 
Administration (relating to odometer tampering), except as determined by 
the Director of the Office of Consumer Litigation.
    (10) Nonmonetary civil cases, including injunction suits, 
declaratory judgment actions, and applications for inspection warrants, 
and cases seeking civil penalties including but not limited to those 
arising under statutes enforced by the Food and Drug Administration, the 
Consumer Product Safety Commission, the Federal Trade Commission, and 
the National Highway Traffic Safety Administration (relating to odometer 
tampering), except as determined by the Director of the Office of 
Consumer Litigation.
    (11) Administrative claims arising under the Federal Tort Claims 
Act.

                      Section 5. Adverse Decisions

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

                         Section 6. Supersession

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

                        Section 7. Applicability

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

                            Criminal Division

                             [Memo No. 375]

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

    By virtue of the authority vested in me by part 0 of title 28 of the 
Code of Federal Regulations, particularly Sec. Sec. 0.55, 0.160, 0.162, 
0.164, 0.166, and 0.168, it is hereby ordered as follows:
    Section 1. Purpose. The purpose of this Memorandum is to prescribe 
standards and procedures for U.S. Attorneys with respect to the handling 
of the criminal aspects of agricultural marketing quota penalty cases 
which are submitted to the U.S. Attorneys by direct referral from the 
attorney in charge of the local office of the General Counsel of the 
Department of Agriculture (hereinafter in this Memorandum referred to as 
the General Counsel). Supplement No. 1 of October 26, 1955, to 
Memorandum No. 119 is hereby superseded. Attention is invited to the 
fact that Memorandum No. 374, of June 3, 1964, which superseded 
Memorandum No. 119 of December 8, 1954, deals with the civil aspects of 
agricultural marketing quota penalty cases.
    Sec. 2. Scope of authority. (a) The authority conferred by this 
Memorandum is applicable to alleged criminal violations involving the 
provisions of the Agricultural Adjustment Act of 1938, as amended (7 
U.S.C. 1311-1376), in cases in which the gross amount involved does not 
exceed $5,000.
    (b) Matters involving alleged criminal violations of the 
Agricultural Adjustment Act of 1938, as amended, shall be referred 
directly to the U.S. Attorney concerned by the attorney in charge of the 
local office of the General Counsel which has jurisdiction over any such 
matter requiring action. U.S. Attorneys may initiate criminal 
prosecution or decline to do so as they, in their judgment, may deem 
appropriate. U.S. Attorneys are, of course, urged to obtain the advice 
and assistance of this Department whenever they feel that such advice 
and assistance might be helpful.
    Sec. 3. Correspondence--(a) With the Department of Justice. 
Inquiries to the Department

[[Page 87]]

concerning any matters covered by this Memorandum should be directed to 
the attention of the Assistant Attorney General in charge of the 
Criminal Division (hereinafter in this Memorandum referred to as the 
Assistant Attorney General). Any such inquiry should be accompanied by 
copies of all pertinent correspondence and other documents, including 
the indictment if one shall have been returned, since files concerning 
these matters will not be maintained in Washington.
    (b) With the Department of Agriculture. Correspondence calling for 
additional factual details, and requests for investigations, documents, 
witnesses, and similar matters, should be directed to the General 
Counsel's attorney in charge who originated the matter. However, only 
the U.S. Attorney and his duly appointed assistants are authorized to 
exercise any control whatsoever over the handling of any such matter 
referred to the U.S. Attorney for action. The U.S. Attorney is charged 
with the entire responsibility for the manner in which such matters are 
handled.
    Sec. 4. Closing of the Prosecution. (a) U.S. Attorneys may decline 
to prosecute any case involving a matter covered by this Memorandum 
without prior consultation or approval of the Assistant Attorney 
General. If, however, prosecution has been initiated by way of 
indictment or information, the indictment or information shall not be 
dismissed until authority to do so has been obtained from the Assistant 
Attorney General or his representative unless the reason for the 
dismissal is one which does not necessitate the prior approval of the 
Criminal Division. (See U.S. Attorneys' Manual, title 2: Criminal 
Division, pages 18-20.)
    (b) In each instance in which a case is closed by a U.S. Attorney 
and in which prior approval of the Assistant Attorney General or his 
representative has not been obtained, a memorandum shall be prepared and 
placed in the file describing the action taken and the reasons therefor.
    Sec. 5. Appeals. The instructions existing with reference to 
criminal appeals shall govern appeals in cases covered by this 
Memorandum.

                  [Attorney General Order No. 1598-92]

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

    By virtue of the authority vested in me by part 0 of title 28 of the 
Code of Federal Regulations, as amended, particularly Sec. Sec. 0.160, 
0.162, 0.164, 0.168 and 0.171, it is hereby ordered as follows:
    (a)(1) Each U.S. Attorney is authorized in cases delegated to the 
Assistant Attorney General of the Criminal Division--
    (A) To accept or reject offers in compromise of--
    (i) Claims in behalf of the United States in all cases (other than 
forfeiture cases) in which the original claim did not exceed $500,000, 
and in all cases in which the original claim was between $500,000 and 
$5,000,000, so long as the difference between the gross amount of the 
original claim and the proposed settlement does not exceed 15 percent of 
the original claim; and in all civil or criminal forfeiture cases, 
except that the U.S. Attorney shall consult with the Asset Forfeiture 
Office of the Criminal Division before accepting offers in compromise or 
plea offers in forfeiture cases in which the orignial claim was 
$5,000,000 or more, and in forfeiture cases in which the original claim 
was between $500,000 and $5,000,000, when the difference between the 
gross amount of the original forfeiture sought and the proposed 
settlement exceeds 15 percent of the original claim; and
    (ii) Claims against the United States in all cases, or in 
administrative actions to settle, in which the amount of the proposed 
settlement does not exceed $500,000; and
    (B) To close (other than by compromise or entry of judgment) claims 
asserted by the United States in all cases (other than forfeiture cases) 
in which the gross amount of the original claim does not exceed 
$500,000, and in all civil or criminal forfeiture cases, except that the 
U.S. Attorney shall consult with the Asset Forfeiture Office of the 
Criminal Division before closing a forfeiture case in which the gross 
amount of the original forfeiture sought is $500,000 or more.
    (2) This subsection does not apply--
    (A) When, for any reason, the compromise or closing of a particular 
claim (other than a forfeiture case) will, as a practical matter, 
control or adversely influence the disposition of other claims, which, 
when added to the claim in question, total more than the respective 
amounts designated above;
    (B) When the U.S. Attorney is of the opinion that because of a 
question of law or policy presented, or for any other reason, the matter 
should receive the personal attention of the Assistant Attorney General;
    (C) When a settlement converts into a mandatory duty the otherwise 
discretionary authority of an agency or department to revise, amend, or 
promulgate regulations;
    (D) When a settlement commits a department or agency to expend funds 
that Congress has not appropriated and that have not been budgeted for 
the action in question, or commits a department or agency to seek a 
particular appropriation or budget authorization; or
    (E) When a settlement limits the discretion of a Secretary or agency 
administrator

[[Page 88]]

to make policy or managerial decisions committed to the Secretary or 
agency administrator by Congress or by the Constitution.
    (b) Notwithstanding the provisions of this Order, the Assistant 
Attorney General of the Criminal Division may delegate to U.S. Attorneys 
authority to compromise or close other cases, including those involving 
amounts greater than as set forth in paragraph (a) above, and up to the 
maximum limit of his authority, where the circumstances warrant such 
delegation.
    (c) All other authority delegated to me by Sec. Sec. 0.160, 0.162, 
0.164 and 0.171 of title 28 of the Code of Federal Regulations not 
falling within the limitations of paragraph (a) of this Order is hereby 
redelegated to Section Chiefs in the Criminal Division, except that--
    (1) The authority delegated to me by Sec. Sec. 0.160, 0.162, 0.164 
and 0.171 of that title relating to conducting, handling, or supervising 
civil and criminal forfeiture litigation (other than bail bond 
forfeiture), including acceptance or denial of petitions for remission 
or mitigation of forfeiture, is hereby redelegated to the Director of 
the Asset Forfeiture Office; and
    (2) When a Section Chief or the Director of the Asset Forfeiture 
Office is of the opinion that because of a question of law or policy 
presented, or for any other reason, a matter described in paragraph (c) 
should receive the personal attention of a Deputy Assistant Attorney 
General or Assistant Attorney General, he shall refer the matter to the 
appropriate Deputy Assistant Attorney General or to the Assistant 
Attorney General.
    (d) Notwithstanding any of the above redelegations, when the agency 
or agencies involved have objected in writing to the proposed closing or 
dismissal of a case, or to the acceptance or rejection of an offer in 
compromise, any such unresolved objection shall be referred to the 
Assistant Attorney General for resolution.

               Environment and Natural Resources Division

                          [Directive No. 7-76]

Redelegation Of Authority To Initiate And To Compromise Environment and 
                    Natural Resources Division Cases

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

                 Section I--Authority To Initiate Cases

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

[[Page 89]]

Administrator for Enforcement to the Assistant Attorney General, except 
that matters requiring an immediate temporary restraining order may be 
submitted by regional Administrators of the Environmental Protection 
Agency simultaneously to a U.S. Attorney and the Assistant Attorney 
General. Consequently, except for matters requiring an immediate 
temporary restraining order, U.S. Attorneys are not authorized to accept 
on a direct reference basis any matters or cases originating in any 
office of the Environmental Protection Agency.
    U.S. Attorneys are authorized to act, without prior authorization 
from the Environment and Natural Resources Division, on behalf of 
Federal departments or agencies other than the Environmental Protection 
Agency, in response to a direct request in writing from an authorized 
field officer of the department or agency concerned, in the following 
environmental cases:
    (a) Civil or criminal actions involving the filling or the deposit 
of dredged or fill material upon, or the alteration of the channels of, 
the waters of the United States, in violation of section 10 of the River 
and Harbor Act of March 3, 1899 (33 U.S.C. 403), or of section 404 of 
the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 
1344), or of both statutes;
    (b) Civil or criminal actions involving the discharge of refuse into 
the navigable waters of the United States, and, in certain cases, their 
tributaries, in violation of section 13 of the Act of March 3, 1899 (33 
U.S.C. 407), except for
    (i) In rem actions against vessels, which actions shall continue to 
be handled in the manner set forth in departmental memorandums 374 and 
376, dated June 3, 1964, and shall continue to be under the jurisdiction 
of the Civil Division; and
    (ii) Criminal actions involving the discharge either of oil or of 
hazardous substances, for which discharge a government agency either has 
imposed a civil penalty pursuant to section 311(b)(6) of the Federal 
Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1321(b)(6)), 
or has under consideration the imposition of such a penalty.
    3. Notification to Division of Direct Referral. In each case 
referred to the United States Attorneys pursuant to the authority set 
forth in Subparagraphs 1 and 2 above, the United States Attorney shall, 
prior to taking action, assure that a copy of the authorized field 
officer's written request has been forwarded to the Assistant Attorney 
General, Environment and Natural Resources Division, Department of 
Justice, Washington, DC, 20530.

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

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

[[Page 90]]

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

                          [Directive No. 90-50]

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

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

                       Authority To Initiate Cases

    The Section Chief of the Environmental Enforcement Section is hereby 
authorized to initiate civil actions on behalf of any other department 
or agency in response to a written request from an authorized official 
of the department or agency concerned, under the following environmental 
statutes:
    1. Cases under section 14 of the Federal Insecticide, Fungicide, and 
Rodenticide Act, 7 U.S.C. 136l(a), section 16 of the Toxic Substances 
Control Act, 15 U.S.C. 2615(a) and section 309(g)(9) of the Clean Water 
Act, 33 U.S.C. 309(g)(9), for collection of civil penalties previously 
assessed by the Environmental Protection Agency in a formal 
administrative proceeding.
    2. Cases under sections 112 and 113 of the Clean Air Act, 42 U.S.C. 
7412 and 7413 for violations of the national emission standards for 
asbestos hazardous air pollutants.

[[Page 91]]

    3. Cases under section 311 of the Clean Water Act, 33 U.S.C. 1321, 
for recovery of costs expended by the United States' to remove oil or 
hazardous substances discharged into or upon the navigable waters of the 
United States, adjoining shorelines, or into or upon the waters of the 
contiguous zone where such costs do not exceed $1 million, exclusive of 
interest.
    4. Cases under section 104(e) of the Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9604(e) to enforce 
requests for access to information, entry and/or inspection and samples.
    5. Cases under section 107 of the Comprehensive Environmental 
Response, Compensation and Liability Act, 42 U.S.C. 9607, for recovery 
of costs of removal or remedial action incurred by the United States 
where such costs do not exceed $1 million, exclusive of interest.
    Any case initiation under paragraphs 1-5 above, should be referred 
to the Assistant Attorney General, Environment and Natural Resources 
Division, for approval, whenever the Section Chief of the Environmental 
Enforcement Section is of the opinion that because of a question of law 
or policy presented, or for any other reason, the matter should receive 
the attention of the Assistant Attorney General, Environment and Natural 
Resources Division.

                      Authority To Compromise Cases

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

              Authority To Approve Federal Register Notices

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

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

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

[[Page 92]]

                           Date of Delegations

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

                            [Directive 1-86]

    Pursuant to the authority vested in me under 28 CFR Sec. 16.4(b) 
and Sec. 16.42(b), I delegate to the Deputy Assistant Attorney General 
who supervises the Policy, Legislation and Special Litigation Section, 
or to whoever is acting in that capacity, the authority to grant to deny 
any request for a record of the Environment and Natural Resources 
Division made pursuant to the Freedom of Information Act, 5 U.S.C. 552, 
or the Privacy Act of 1974, 5 U.S.C. 552a.
    Effective Date: January 9, 1986.

                            [Directive 6-85]

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

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

                            [Directive 6-83]

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

[[Page 93]]

    The above directive shall be effective immediately and shall be the 
interim procedure in effect until promulgation of regulations by the 
Department of Justice which address the remission and mitigation process 
in the Environment and Natural Resources Division.
    Effective Date: April 12, 1983.

                            [Directive 6-81]

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

                              Tax Division

                           [Directive No. 83]

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

                           [Directive No. 135]

    By virtue of the authority vested in me by Part 0 of Title 28 of the 
Code of Federal Regulations, particularly Sections 0.70, 0.160, 0.162, 
0.164, 0.166, and 0.168, it is hereby ordered as follows:
    Section 1. The Chiefs of the Civil Trial Sections, the Court of 
Federal Claims Section, and the Appellate Section are authorized to 
reject offers in compromise, regardless of amount, provided that such 
action is not opposed by the agency or agencies involved.
    Section 2. Subject to the conditions and limitations set forth in 
Section 10 hereof, the Chiefs of the Civil Trial Sections and the Court 
of Federal Claims Section are authorized to:
    (A) Accept offers in compromise in, settle administratively, and 
close (other than by compromise or by entry of judgment), all civil 
cases in which the amount of the Government's concession, exclusive of 
statutory interest, does not exceed $500,000;

[[Page 94]]

    (B) Accept offers in compromise in injunction or declaratory 
judgment suits against the United States in which the principal amount 
of the related liability, if any, does not exceed $500,000; and
    (C) Accept offers in compromise in all other nonmonetary cases;
provided that such action is not opposed by the agency or agencies 
involved, and provided further that the proposed compromise or 
concession is not subject to reference to the Joint Committee on 
Taxation.
    Section 3. The Chiefs of the Civil Trial Sections and the Court of 
Federal Claims Section are authorized on a case-by-case basis to 
redelegate in writing to their respective Assistant Section Chiefs or 
Reviewers the authority delegated to them in Section 1 hereof to reject 
offers, and in Section 2 hereof, to accept offers in compromise in, 
settle administratively, and close (other than by compromise or by entry 
of judgment), all civil cases in which the amount of the Government's 
concession, exclusive of statutory interest, does not exceed $250,000; 
provided that such redelegation is not made to the attorney-of-record in 
the case. The redelegations pursuant to this section shall be by 
memorandum signed by the Section Chief, which shall be placed in the 
Department of Justice file for the applicable case.
    Section 4. Subject to the conditions and limitations set forth in 
Section 10 hereof, the Chief of the Appellate Section is authorized to:
    (A) Accept offers in compromise with reference to litigating hazards 
of the issue(s) on appeal in all civil cases (other than claims for 
attorneys' fees, litigation expenses and court costs) in which the 
amount of the Government's concession, exclusive of statutory interest, 
does not exceed $500,000;
    (B) Accept offers in compromise in injunction [see sec. 2(B)] or 
declaratory judgment suits against the United States in which the 
principal amount of the related liability, if any, does not exceed 
$500,000;
    (C) Accept offers in compromise in, or settle administratively, all 
civil claims for attorneys' fees, litigation expenses and court costs in 
which the aggregate amount of the Government's concession on these 
claims does not exceed $200,000, and in which the aggregate amount of 
the Government's concession in the case, exclusive of statutory 
interest, does not exceed $500,000; and
    (D) Accept offers in compromise in all other nonmonetary cases which 
do not involve issues concerning collectibility;
provided that (i) such acceptance is not opposed by the agency or 
agencies involved or the chief of the section in which the case 
originated, and (ii) the proposed compromise is not subject to reference 
to the Joint Committee on Taxation.
    Section 5. The Chief of the Appellate Section is authorized on a 
case-by-case basis to redelegate in writing to the Appellate Section's 
Assistant Section Chiefs the authority delegated to the Chief of the 
Appellate Section in Section 1 hereof to reject offers, and in Section 4 
hereof, to:
    (A) Accept offers in compromise with reference to litigation hazards 
of the issue(s) on appeal in all civil cases (other than claims for 
attorneys' fees, litigation expenses and court costs) in which the 
amount of the Government's concession, exclusive of statutory interest, 
does not exceed $250,000; and
    (B) Accept offers in compromise in, or settle administratively, all 
civil claims for attorneys' fees, litigation expenses and court costs in 
which the aggregate amount of the Government's concession on these 
claims does not exceed $100,000, and in which the aggregate amount of 
the Government's concession in the case, exclusive of statutory 
interest, does not exceed $250,000;
provided that such redelegation is not made to the attorney-of-record in 
the case. The redelegations pursuant to this section shall be by 
memorandum signed by the Chief of the Appellate Section, which shall be 
placed in the Department of Justice file for the applicable case.
    Section 6. Subject to the conditions and limitations set forth in 
Section 10 hereof, the Chief of the Office of Review is authorized to:
    (A) Accept offers in compromise and settle administratively claims 
against the United States in all civil cases in which the amount of the 
Government's concession, exclusive of statutory interest, does not 
exceed $1,500,000; and
    (B) Accept offers in compromise and close (other than by compromise 
or by entry of judgment), claims by the United States in all civil cases 
in which the difference between the gross amount of the original claim 
and the proposed settlement does not exceed $1,500,000 or 15 percent of 
the original claim, whichever is greater;
    (C) Accept offers in compromises in all nonmonetary cases; and
    (D) Reject offers in compromise or disapprove concessions, 
regardless of amount;
provided that such action is not opposed by the agency or agencies 
involved or the chief of the section to which the case is assigned, and 
provided further that the proposed compromise or concession is not 
subject to reference to the Joint Committee on Taxation.
    Section 7. The Chief, Office of Review, is authorized on a case-by-
case basis to redelegate in writing to the offices' Assistant Section 
Chief or Reviewer the authority delegated to the Chief, Office of Review 
in Section 6 hereof to reject offers, and in Section 6 hereof, to accept 
offers in compromise in, settle administratively, and close (other than 
by compromise or by entry of judgment), all civil cases in which the 
amount of the Government's concession, exclusive of statutory interest, 
does not exceed $750,000;

[[Page 95]]

provided that such redelegation is not made to the attorney-of-record in 
the case. The redelegations pursuant to this section shall be made by 
memorandum signed by the Section Chief, which shall be placed in the 
Department of Justice file for the applicable case.
    Section 8. Subject to the conditions and limitations set forth in 
Section 10 hereof, each of the Deputy Assistant Attorneys General is 
authorized to:
    (A) Accept offers in compromise and settle administratively claims 
against the United States in all civil cases in which the amount of the 
Government's concession, exclusive of statutory interest, does not 
exceed $2,000,000;
    (B) Accept offers in compromise and close (other than by compromise 
or by entry of judgment), claims by the United States in all civil cases 
in which the difference between the gross amount of the original claim 
and the proposed settlement does not exceed $2,000,000 or 15 percent of 
the original claim, whichever is greater;
    (C) Accept offers in compromise in all nonmonetary cases; and
    (D) Reject offers in compromise or disapprove concessions, 
regardless of amount;
provided that such action is not opposed by the agency or agencies 
involved and the proposed compromise or concession is not subject to 
reference to the Joint Committee on Taxation.
    Section 9. Subject to the conditions and limitations set forth in 
Section 10 hereof, United States Attorneys are authorized to:
    (A) Reject offers in compromise of judgments in favor of the United 
States, regardless of the amount;
    (B) Accept offers in compromise of judgments in favor of the United 
States where the amount of the judgment does not exceed $300,000; and
    (C) Terminate collection activity by his or her office as to 
judgments in favor of the United States which do not exceed $300,000 if 
the United States Attorney concludes that the judgment is uncollectible;
provided that such action has the concurrence in writing of the agency 
or agencies involved, and provided further that this authorization 
extends only to judgments which have been formally referred to the 
United States Attorney for collection.
    Section 10. The authority redelegated herein shall be subject to the 
following conditions and limitations;
    (A) When, for any reason, the compromise or concession of a 
particular claim, as a practical matter, will control or adversely 
influence the disposition of other claims totaling more than the 
respective amounts designated in Sections 3, 4, 5, 6, 7, 8, and 9 
hereof, the case shall be forwarded for review at the appropriate level 
for the cumulative amount of the affected claims;
    (B) When, because of the importance of a question of law or policy 
presented, the position taken by the agency or agencies or by the United 
States Attorney involved, or any other considerations, the person 
otherwise authorized herein to take final action is of the opinion that 
the proposed disposition should be reviewed at a higher level, the case 
shall be forwarded for such review;
    (C) If the Department has previously submitted a case to the Joint 
Committee on Taxation leaving one or more issues unresolved, any 
subsequent compromise or concession in that case must be submitted to 
the Joint Committee, whether or not the overpayment exceeds the amount 
specified in Section 6405 of the Internal Revenue Code;
    (D) Nothing in this Directive shall be construed as altering any 
provision of Subpart Y of Part 0 of Title 28 of the Code of Federal 
Regulations requiring the submission of certain cases to the Attorney 
General, the Associate Attorney General, or the Solicitor General;
    (E) Authority to approve recommendations that the Government confess 
error in or to concede cases on appeal is excepted from the foregoing 
redelegations; and
    (F) The Assistant Attorney General, at any time, may withdraw any 
authority delegated by this Directive as it relates to any particular 
case or category of cases, or to any part thereof.
    Section 11. With respect to a claim by the United States (also 
sometimes referred to as a claim on behalf of the United States), the 
term ``offer in compromise'' as used in this Directive is any settlement 
of such a claim, except settlements in which the United States would 
receive nothing or virtually nothing in exchange for giving up its 
claim; and the term ``to close (other than by compromise or entry of 
judgment),'' refers to a settlement under which the United States would 
receive nothing, or virtually nothing in exchange for giving up its 
claim.
    Section 12. For a claim against the United States, the term ``offer 
in compromise'' as used in this Directive is any settlement of such a 
claim, except settlements in which the United States would receive 
nothing, or virtually nothing, in exchange for conceding the claim 
against it; and the term to ``settle administratively,'' means a 
settlement in which the United States would receive nothing, or 
virtually nothing, for conceding the claim against it.
    Section 13. This Directive supersedes Tax Division Directive No. 
105, effective June 14, 1995.
    Section 14. This Directive shall become effective on November 21, 
2007.

                   Attorney General Order No. 1147-86

    By virtue of the authority vested in the Attorney General by 18 
U.S.C. 2254, the Attorney General hereby designates the Postal Service 
with the authority to conduct civil

[[Page 96]]

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

[34 FR 20388, Dec. 31, 1969]

    Editorial Note: For Federal Register citations affecting the 
appendix to subpart Y of part 0, see the List of CFR Sections Affected, 
which appears in the Finding Aids section of the printed volume and on 
GPO Access.



 Subpart Z_Assigning Responsibility Concerning Applications for Orders 
       Compelling Testimony or Production of Evidence by Witnesses



Sec. 0.175  Judicial and administrative proceedings.

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

[Order No. 1310-88, 54 FR 297, Jan. 5, 1989, as amended by Order No. 
2865-2007, 72 FR 10068, Mar. 7, 2007]



Sec. 0.176  Congressional proceedings.

    (a) A notice of an intention to request an order from a district 
court compelling testimony or the production of information in a 
congressional

[[Page 97]]

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

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



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

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

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



Sec. 0.177a  Antitrust civil investigative demands.

    The Assistant Attorney General in charge of the Antitrust Division 
is authorized to issue orders pursuant to section 6004 of title 18, 
United States Code, to compel testimony in response to antitrust civil 
investigative demands for oral testimony. Issuance of such orders shall 
be subject to the concurrence of the Assistant Attorney General in 
charge of the Criminal Division.

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



Sec. 0.178  Redelegation of authority.

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

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



 Subpart Z	1_Prosecutions for Obstruction of Justice and Related Charges



Sec. 0.179  Scope.

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

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



Sec. 0.179a  Enforcement responsibilities.

    (a) Matters involving charges of obstruction of justice, perjury, 
fraud or false statement, as described in Sec. 0.179,

[[Page 98]]

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

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



                Subpart AA_Orders of the Attorney General

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



Sec. 0.180  Documents designated as orders.

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



Sec. 0.181  Requirements for orders.

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



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

    All orders prepared for the approval or signature of the Attorney 
General shall be submitted to the Office of Legal Counsel for approval 
as to form and legality and consistency with existing orders.



Sec. 0.183  Distribution of orders.

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



                    Subpart BB_Sections and Subunits



Sec. 0.190  Changes within organizational units.

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

[[Page 99]]

approval prior to implementation, and shall be effectuated by issuance 
of an Attorney General's order, in accordance with subpart AA of this 
part.

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



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

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

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



                 Subpart CC_Jurisdictional Disagreements



Sec. 0.195  Procedure with respect to jurisdictional disagreements.

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

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



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

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

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



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

    The Immigration and Naturalization Service (Service) shall not be 
bound, in the exercise of its authority under the immigration laws, 
through plea agreements, cooperation agreements, or other agreements 
with or for the benefit of alien defendants, witnesses, or informants, 
or other aliens cooperating with the United States Government, except by 
the authorization of the Commissioner of the Service or the 
Commissioner's delegate. Both the agreement itself and the necessary 
authorization must be in writing to be effective, and the authorization 
shall be attached to the agreement.

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



PART 1_EXECUTIVE CLEMENCY--Table of Contents




Sec.
1.1 Submission of petition; form to be used; contents of petition.
1.2 Eligibility for filing petition for pardon.
1.3 Eligibility for filing petition for commutation of sentence.
1.4 Offenses against the laws of possessions or territories of the 
          United States.
1.5 Disclosure of files.
1.6 Consideration of petitions; notification of victims; recommendations 
          to the President.
1.7 Notification of grant of clemency.
1.8 Notification of denial of clemency.
1.9 Delegation of authority.
1.10 Procedures applicable to prisoners under a sentence of death 
          imposed by a United States District Court.
1.11 Advisory nature of regulations.

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

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



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

    A person seeking executive clemency by pardon, reprieve, commutation 
of sentence, or remission of fine shall execute a formal petition. The 
petition shall be addressed to the President of the United States and 
shall be submitted to the Pardon Attorney, Department of Justice, 
Washington, DC 20530, except for petitions relating to

[[Page 100]]

military offenses. Petitions and other required forms may be obtained 
from the Pardon Attorney. Petition forms for commutation of sentence 
also may be obtained from the wardens of federal penal institutions. A 
petitioner applying for executive clemency with respect to military 
offenses should submit his or her petition directly to the Secretary of 
the military department that had original jurisdiction over the court-
martial trial and conviction of the petitioner. In such a case, a form 
furnished by the Pardon Attorney may be used but should be modified to 
meet the needs of the particular case. Each petition for executive 
clemency should include the information required in the form prescribed 
by the Attorney General.



Sec. 1.2  Eligibility for filing petition for pardon.

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



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

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



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

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



Sec. 1.5  Disclosure of files.

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



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

    (a) Upon receipt of a petition for executive clemency, the Attorney 
General shall cause such investigation to be made of the matter as he or 
she may deem necessary and appropriate, using the services of, or 
obtaining reports from, appropriate officials and agencies of the 
Government, including the Federal Bureau of Investigation.
    (b)(1) When a person requests clemency (in the form of either a 
commutation of a sentence or a pardon after serving a sentence) for a 
conviction of a felony offense for which there was a victim, and the 
Attorney General concludes from the information developed in the 
clemency case that investigation of the clemency case warrants 
contacting the victim, the Attorney General shall cause reasonable 
effort to be made to notify the victim or victims of the crime for which 
clemency is sought:
    (i) That a clemency petition has been filed;
    (ii) That the victim may submit comments regarding clemency; and
    (iii) Whether the clemency request ultimately is granted or denied 
by the President.
    (2) In determining whether contacting the victim is warranted, the 
Attorney General shall consider the seriousness and recency of the 
offense, the nature and extent of the harm to the victim, the 
defendant's overall criminal history and history of violent behavior, 
and the likelihood that clemency could be recommended in the case.
    (3) For the purposes of this paragraph (b), ``victim'' means an 
individual who:

[[Page 101]]

    (i) Has suffered direct or threatened physical, emotional, or 
pecuniary harm as a result of the commission of the crime for which 
clemency is sought (or, in the case of an individual who died or was 
rendered incompetent as a direct and proximate result of the commission 
of the crime for which clemency is sought, one of the following 
relatives of the victim (in order of preference): the spouse; an adult 
offspring; or a parent); and
    (ii) Has on file with the Federal Bureau of Prisons a request to be 
notified pursuant to 28 CFR 551.152 of the offender's release from 
custody.
    (4) For the purposes of this paragraph (b), ``reasonable effort'' is 
satisfied by mailing to the last-known address reported by the victim to 
the Federal Bureau of Prisons under 28 CFR 551.152.
    (5) The provisions of this paragraph (b) apply to clemency cases 
filed on or after September 28, 2000.
    (c) The Attorney General shall review each petition and all 
pertinent information developed by the investigation and shall determine 
whether the request for clemency is of sufficient merit to warrant 
favorable action by the President. The Attorney General shall report in 
writing his or her recommendation to the President, stating whether in 
his or her judgment the President should grant or deny the petition.

[Order No. 2323-2000, 65 FR 58223, Sept. 28, 2000]



Sec. 1.7  Notification of grant of clemency.

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



Sec. 1.8  Notification of denial of clemency.

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



Sec. 1.9  Delegation of authority.

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



Sec. 1.10  Procedures applicable to prisoners under a sentence of death
imposed by a United States District Court.

    The following procedures shall apply with respect to any request for 
clemency by a person under a sentence of death imposed by a United 
States District Court for an offense against the United States. Other 
provisions set forth in this part shall also apply to the extent they 
are not inconsistent with this section.
    (a) Clemency in the form of reprieve or commutation of a death 
sentence imposed by a United States District Court shall be requested by 
the person under the sentence of death or by the person's attorney 
acting with the person's written and signed authorization.
    (b) No petition for reprieve or commutation of a death sentence 
should be filed before proceedings on the petitioner's direct appeal of 
the judgment of conviction and first petition under 28 U.S.C. 2255 have 
terminated. A petition for commutation of sentence should be filed no 
later than 30 days after the petitioner has received notification from 
the Bureau of Prisons of the scheduled date of execution. All papers in 
support of a petition for commutation of sentence should be filed no 
later than 15 days after the filing of the

[[Page 102]]

petition itself. Papers filed by the petitioner more than 15 days after 
the commutation petition has been filed may be excluded from 
consideration.
    (c) The petitioner's clemency counsel may request to make an oral 
presentation of reasonable duration to the Office of the Pardon Attorney 
in support of the clemency petition. The presentation should be 
requested at the time the clemency petition is filed. The family or 
families of any victim of an offense for which the petitioner was 
sentenced to death may, with the assistance of the prosecuting office, 
request to make an oral presentation of reasonable duration to the 
Office of the Pardon Attorney.
    (d) Clemency proceedings may be suspended if a court orders a stay 
of execution for any reason other than to allow completion of the 
clemency proceeding.
    (e) Only one request for commutation of a death sentence will be 
processed to completion, absent a clear showing of exceptional 
circumstances.
    (f) The provisions of this Sec. 1.10 apply to any person under a 
sentence of death imposed by a United States District Court for whom an 
execution date is set on or after August 1, 2000.

[Order No. 2317-2000, 65 FR 48381, August 8, 2000]



Sec. 1.11  Advisory nature of regulations.

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

[Order No. 1798-93, 58 FR 53658, Oct. 18, 1993. Redesignated by Order 
No. 2317-2000, 65 FR 48381, August 8, 2000]



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




           Subpart A_United States Code Prisoners and Parolees

Sec.
2.1 Definitions.
2.2 Eligibility for parole; adult sentences.
2.3 Same: Narcotic Addict Rehabilitation Act.
2.4 Same: Youth offenders and juvenile delinquents.
2.5 Sentence aggregation.
2.6 Withheld and forfeited good time.
2.7 Committed fines and restitution orders.
2.8 Mental competency proceedings.
2.9 Study prior to sentencing.
2.10 Date service of sentence commences.
2.11 Application for parole; notice of hearing.
2.12 Initial hearings: Setting presumptive release dates.
2.13 Initial hearing; procedure.
2.14 Subsequent proceedings.
2.15 Petition for consideration of parole prior to date set at hearing.
2.16 Parole of prisoner in state, local, or territorial institution.
2.17 Original jurisdiction cases.
2.18 Granting of parole.
2.19 Information considered.
2.20 Paroling policy guidelines: Statement of general policy.
2.21 Reparole consideration guidelines.
2.22 Communication with the Commission.
2.23 Delegation to hearing examiners.
2.24 Review of panel recommendation by the Regional Commissioner.
2.25 Hearings by videoconference.
2.26 Appeal to National Appeals Board.
2.27 Petition for reconsideration of original jurisdiction decisions.
2.28 Reopening of cases.
2.29 Release on parole.
2.30 False information or new criminal conduct: Discovery after release.
2.31 Parole to detainers: Statement of policy.
2.32 Parole to local or immigration detainers.
2.33 Release plans.
2.34 Rescission of parole.
2.35 Mandatory release in the absence of parole.
2.36 Rescission guidelines.
2.37 Disclosure of information concerning parolees; Statement of policy.
2.38 Community supervision by U.S. Probation Officers.
2.39 Jurisdiction of the Commission.
2.40 Conditions of release.
2.41 Travel approval.
2.42 Probation officer's reports to Commission.
2.43 Early termination.
2.44 Summons to appear or warrant for retaking of parolee.
2.45 Same; youth offenders.
2.46 Execution of warrant and service of summons.
2.47 Warrant placed as a detainer and dispositional review.
2.48 Revocation: Preliminary interview.
2.49 Place of revocation hearing.

[[Page 103]]

2.50 Revocation hearing procedure.
2.51 Issuance of a subpoena for the appearance of witnesses or 
          production of documents.
2.52 Revocation decisions.
2.53 Mandatory parole.
2.54 Reviews pursuant to 18 U.S.C. 4215(c).
2.55 Disclosure of file prior to parole hearing.
2.56 Disclosure of Parole Commission file.
2.57 Special parole terms.
2.58 Prior orders.
2.59 Designation of a Commissioner to act as a hearing examiner.
2.60 Superior program achievement.
2.61 Qualifications of representatives.
2.62 Rewarding assistance in the prosecution of other offenders; 
          criteria and guidelines.
2.63 Quorum.
2.64 Youth Corrections Act.
2.65 Paroling policy for prisoners serving aggregate U.S. and D.C. Code 
          sentences.
2.66 Revocation decision without hearing.

            Subpart B_Transfer Treaty Prisoners and Parolees

2.68 Prisoners transferred pursuant to treaty.
2.69 [Reserved]

       Subpart C_District of Columbia Code: Prisoners and Parolees

2.70 Authority and functions of the U.S. Parole Commission with respect 
          to District of Columbia Code offenders.
2.71 Application for parole.
2.72 Hearing procedure.
2.73 Parole suitability criteria.
2.74 Decision of the Commission.
2.75 Reconsideration proceedings.
2.76 Reduction in minimum sentence.
2.77 Medical parole.
2.78 Geriatric parole.
2.79 Good time forfeiture.
2.80 Guidelines for D.C. Code offenders.
2.81 Reparole decisions.
2.82 Effective date of parole.
2.83 Release planning.
2.84 Release to other jurisdictions.
2.85 Conditions of release.
2.86 Release on parole; rescission for misconduct.
2.87 Mandatory release.
2.88 Confidentiality of parole records.
2.89 Miscellaneous provisions.
2.90 Prior orders of the Board of Parole.
2.91 Supervision responsibility.
2.92 Jurisdiction of the Commission.
2.93 Travel approval.
2.94 Supervision reports to Commission.
2.95 Early termination from supervision.
2.96 Order of early termination.
2.97 Withdrawal of order of release.
2.98 Summons to appear or warrant for retaking of parolee.
2.99 Execution of warrant and service of summons.
2.100 Warrant placed as detainer and dispositional review.
2.101 Probable cause hearing and determination.
2.102 Place of revocation hearing.
2.103 Revocation hearing procedure.
2.104 Issuance of subpoena for appearance of witnesses or production of 
          documents.
2.105 Revocation decisions.
2.106 Youth Rehabilitation Act.
2.107 Interstate Compact.

           Subpart D_District of Columbia Supervised Releasees

2.200 Authority, jurisdiction, and functions of the U.S. Parole 
          Commission with respect to offenders serving terms of 
          supervised release imposed by the Superior Court of the 
          District of Columbia.
2.201 Period of supervised release.
2.202 Prerelease procedures.
2.203 Certificate of supervised release.
2.204 Conditions of supervised release.
2.205 Confidentiality of supervised release records.
2.206 Travel approval and transfers of supervision.
2.207 Supervision reports to Commission.
2.208 Termination of a term of supervised release.
2.209 Order of termination.
2.210 Extension of term.
2.211 Summons to appear or warrant for retaking releasee.
2.212 Execution of warrant and service of summons.
2.213 Warrant placed as detainer and dispositional review.
2.214 Probable cause hearing and determination.
2.215 Place of revocation hearing.
2.216 Revocation hearing procedure.
2.217 Issuance of subpoena for appearance of witnesses or production of 
          documents.
2.218 Revocation decisions.
2.219 Maximum terms of imprisonment and supervised release.
2.220 Appeal.

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

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



           Subpart A_United States Code Prisoners and Parolees



Sec. 2.1  Definitions.

    As used in this part:
    (a) The term Commission refers to the U.S. Parole Commission.

[[Page 104]]

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

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



Sec. 2.2  Eligibility for parole; adult sentences.

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

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



Sec. 2.3  Same: Narcotic Addict Rehabilitation Act.

    A Federal prisoner committed under the Narcotic Addict 
Rehabilitation Act may be released on parole in the discretion of the 
Commission after completion of at least six months in treatment, not 
including any period of time for ``study'' prior to final judgment of 
the court. Before parole is ordered by the Commission, the Surgeon 
General or his designated representative must certify that the prisoner 
has made sufficient progress to warrant his release

[[Page 105]]

and the Attorney General or his designated representative must also 
report to the Commission whether the prisoner should be released. 
Recertification by the Surgeon General prior to reparole consideration 
is not required (18 U.S.C. 4254).

[48 FR 22918, May 23, 1983]



Sec. 2.4  Same: Youth offenders and juvenile delinquents.

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

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

[45 FR 44925, July 2, 1980]



Sec. 2.5  Sentence aggregation.

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

[45 FR 44925, July 2, 1980]



Sec. 2.6  Withheld and forfeited good time.

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

[43 FR 38822, Aug. 31, 1978]



Sec. 2.7  Committed fines and restitution orders.

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

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



Sec. 2.8  Mental competency proceedings.

    (a) Whenever a prisoner (or parolee) is scheduled for a hearing in 
accordance with the provisions of this part and reasonable doubt exists 
as to his mental competency, i.e., his ability to understand the nature 
of and participate in scheduled proceedings, a preliminary inquiry to 
determine his mental competency shall be conducted by the hearing panel, 
hearing examiner or other official (including a U.S. Probation Officer) 
designated by the Regional Commissioner.
    (b) The hearing examiner(s) or designated official shall receive 
oral or written psychiatric or psychological testimony and other 
evidence that may be available. A preliminary determination of mental 
competency shall be made upon the testimony, evidence, and personal 
observation of the prisoner (or parolee). If the examiner(s) or 
designated official determines that the prisoner is mentally competent, 
the previously scheduled hearing shall be held. If they determine that 
the prisoner is not mentally competent, the previously scheduled hearing 
shall be temporarily postponed.
    (c) Whenever the hearing examiner(s) or designated official 
determine that a prisoner is mentally incompetent and postpone the 
previously scheduled hearing, they shall forward the record of the 
preliminary hearing with their findings to the Regional Commissioner for 
review.
    (1) In the case of a prisoner, if the Regional Commissioner concurs 
with their findings, the Commissioner shall

[[Page 106]]

order the temporarily postponed hearing to be postponed indefinitely 
until such time as it is determined that the prisoner has recovered 
sufficiently to understand the proceedings. The Regional Commissioner 
shall require a progress report on the mental health of the prisoner at 
least every six months. When the Regional Commissioner determines that 
the prisoner has recovered sufficiently, the Commissioner shall 
reschedule the hearing for the earliest feasible date.
    (2) In the case of a parolee in a revocation proceeding, the 
Regional Commissioner shall postpone the revocation hearing and order 
that the parolee be given a mental health examination in a suitable 
facility of the Bureau of Prisons or the District of Columbia. The 
postponed revocation hearing shall be held within 60 days, or as soon as 
a satisfactory mental health report is submitted. The Regional 
Commissioner shall order that appointment of counsel be sought in any 
case where the parolee does not have counsel for the revocation hearing. 
If the parolee's mental incompetency is raised at a preliminary 
interview or probable cause hearing, the Commission (or hearing 
official) will make a determination of probable cause and, if probable 
cause is found, schedule a revocation hearing as provided in this 
paragraph.
    (d) If the Regional Commissioner disagrees with the findings of the 
hearing examiner(s) or designated official as to the mental competency 
of the prisoner, he shall take such action as he deems appropriate.
    (e) At a postponed revocation hearing under this section, the 
hearing examiner shall make a preliminary determination as to the 
parolee's mental competency, taking into account all available mental 
health reports, any evidence submitted on the parolee's behalf, any 
report from counsel as to counsel's ability to communicate with the 
parolee, and the parolee's own responses to the examiner's questioning.
    (1) If the hearing examiner determines the parolee to be mentally 
competent, the examiner shall conduct the revocation hearing. If counsel 
has previously asserted the parolee's incompetence, the examiner shall 
offer counsel a brief recess to consult with the parolee before 
proceeding.
    (2) If the hearing examiner determines the parolee to be mentally 
incompetent, the examiner shall conduct the revocation hearing, and 
shall take into full account the parolee's mental condition in 
determining the facts and recommending a decision as to revocation and 
reparole.
    (3) If the Commission revokes parole, the Commission may grant 
reparole conditioned on the parolee's acceptance into a particular type 
of mental health program prior to release from prison, or may grant 
reparole with a special condition of supervision that requires 
appropriate mental health treatment, including medication. In cases 
where no other option appears appropriate, the Commission may grant 
reparole conditioned upon the parolee's voluntary self-commitment to a 
mental health institution until such time as the parolee has 
sufficiently recovered for the Commission to permit the parolee's return 
to supervision.
    (4) If the Commission finds that the parolee did not commit the 
charged violations of parole, but also finds that the parolee is unable 
to fulfill the normal obligations of a parolee by reason of his mental 
condition, the Commission may reinstate the parolee to parole with any 
appropriate special condition, including the special condition, if 
necessary, that the parolee voluntarily commit himself to a mental 
institution until such time as the parolee has sufficiently recovered 
for the Commission to permit a return to supervision.

[44 FR 3408, Jan. 16, 1979, as amended at 68 FR 70711, Dec. 19, 2003]



Sec. 2.9  Study prior to sentencing.

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

[50 FR 36423, Sept. 6, 1985, as amended at 68 FR 41528, July 14, 2003]

[[Page 107]]



Sec. 2.10  Date service of sentence commences.

    (a) Service of a sentence of imprisonment commences to run on the 
date on which the person is received at the penitentiary, reformatory, 
or jail for service of the sentence: Provided, however, That any such 
person shall be allowed credit toward the service of his sentence for 
any days spent in custody in connection with the offense or acts for 
which sentence was imposed.
    (b) The imposition of a sentence of imprisonment for civil contempt 
shall interrupt the running of any sentence of imprisonment being served 
at the time the sentence of civil contempt is imposed, and the sentence 
or sentences so interrupted shall not commence to run again until the 
sentence of civil contempt is lifted.
    (c) Service of the sentence of a committed youth offender or person 
committed under the Narcotic Addict Rehabilitation Act commences to run 
from the date of conviction and is interrupted only when such prisoner 
or parolee:
    (1) Is on court-ordered bail;
    (2) Is in escape status;
    (3) Has absconded from parole supervision; or
    (4) Comes within the provisions of paragraph (b) of this section.

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



Sec. 2.11  Application for parole; notice of hearing.

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

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



Sec. 2.12  Initial hearings: Setting presumptive release dates.

    (a) An initial hearing shall be conducted within 120 days of a 
prisoner's arrival at a federal institution or as soon thereafter as 
practicable; except that in a case of a prisoner with a minimum term of 
parole ineligibility of ten years or more, the initial hearing will be 
conducted nine months prior to the completion of such a minimum term, or 
as soon thereafter as practicable.
    (b) Following initial hearing, the Commission shall (1) set a 
presumptive release date (either by parole or by mandatory release) 
within fifteen years of the hearing; (2) set an effective date of 
parole; or (3) continue the prisoner to a fifteen year reconsideration 
hearing pursuant to Sec. 2.14(c).

[[Page 108]]

    (c) Notwithstanding the above paragraph, a prisoner may not be 
paroled earlier than the completion of any judicially set minimum term 
of imprisonment or other period of parole ineligibility fixed by law.
    (d) A presumptive parole date shall be contingent upon an 
affirmative finding by the Commission that the prisoner has a continued 
record of good conduct and a suitable release plan and shall be subject 
to the provisions of Sec. Sec. 2.14 and 2.28. In the case of a prisoner 
sentenced under the Narcotic Addict Rehabilitation Act, 18 U.S.C. 4254, 
a presumptive parole date shall also be contingent upon certification by 
the Surgeon General pursuant to Sec. 2.3 of these rules. Consideration 
of disciplinary infractions in cases with presumptive parole dates may 
be deferred until the commencement of the next in-person hearing or the 
prerelease record review required by Sec. 2.14(b). While prisoners are 
encouraged to earn the restoration of forfeited or withheld good time, 
the Commission will consider the prisoner's overall institutional record 
in determining whether the conditions of a presumptive parole date have 
been satisfied.

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



Sec. 2.13  Initial hearing; procedure.

    (a) An initial hearing shall be conducted by a single hearing 
examiner unless the Regional Commissioner orders that the hearing be 
conducted by a panel of two examiners. The examiner shall discuss with 
the prisoner his offense severity rating and salient factor score as 
described in Sec. 2.20, his institutional conduct and, in addition, any 
other matter the examiner may deem relevant.
    (b) A prisoner may be represented at a hearing by a person of his or 
her choice. The function of the prisoner's representative shall be to 
offer a statement at the conclusion of the interview of the prisoner by 
the examiner, and to provide such additional information as the examiner 
shall request. Interested parties who oppose parole may select a 
representative to appear and offer a statement. The hearing examiner 
shall limit or exclude any irrelevant or repetitious statement.
    (c) At the conclusion of the hearing, the examiner shall discuss the 
decision to be recommended by the examiner and the reasons therefor, 
except in the extraordinary circumstance of a complex issue that 
requires further deliberation before a recommendation can be made. 
Written notice of the decision shall be mailed or transmitted to the 
prisoner within 21 days of the date of the hearing, except in 
emergencies. Whenever the Commission initially establishes a release 
date (or modifies the release date thereafter), the prisoner shall also 
receive in writing the reasons therefor.
    (d) In accordance with 18 U.S.C. 4206, the reasons for establishment 
of a release date shall include a guidelines evaluation statement 
containing the prisoner's offense severity rating and salient factor 
score (including the points credited on each item of such score) as 
described in Sec. 2.20, as well as the specific factors and information 
relied upon for any decision outside the range indicated by the 
guidelines.
    (e) No interviews with the Commission, or any representative 
thereof, shall be granted to a prisoner unless his name is docketed for 
a hearing in accordance with Commission procedures. Hearings shall not 
be open to the public.
    (f) A full and complete record of every hearing shall be retained by 
the Commission. Upon a request, pursuant to Sec. 2.56, the Commission 
shall make available to any eligible prisoner such record as the 
Commission has retained of the hearing.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 6381, Jan. 28, 1980; 47 
FR 25736, June 15, 1982; 48 FR 23183, May 24, 1983; 59 FR 45625, Sept. 
2, 1994; 68 FR 41528, July 14, 2003]



Sec. 2.14  Subsequent proceedings.

    (a) Interim proceedings. The purpose of an interim hearing required 
by 18 U.S.C. 4208(h) shall be to consider any significant developments 
or changes in the prisoner's status that may have occurred subsequent to 
the initial hearing.

[[Page 109]]

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

[46 FR 39136, July 31, 1981; 47 FR 25735, June 15, 1982, as amended at 
48 FR 9247, Mar. 4, 1983; 48 FR 44525, Sept. 29, 1983; 49 FR 34208, Aug. 
29, 1984; 55 FR 290, Jan. 4, 1990; 60 FR 51350, Oct. 2, 1995; 68 FR 
41529, July 14, 2003]

[[Page 110]]



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

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

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



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

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

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

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



Sec. 2.17  Original jurisdiction cases.

    (a) Following any hearing conducted pursuant to these rules, the 
Regional Commissioner may designate that a case should be decided as an 
original jurisdiction case. If the Regional Commissioner makes such a 
designation, the Regional Commissioner shall vote on the case and then 
refer the case to the other Commissioners for their votes. The decision 
in an original jurisdiction case shall be made on the basis of a 
majority vote of Commissioners holding office at the time of the 
decision.
    (b) The following criteria will be used in designating cases as 
original jurisdiction cases:
    (1) Prisoners who have committed serious crimes against the security 
of the Nation, e.g., espionage or aggravated subversive activity.
    (2) Prisoners whose offense behavior:
    (i) Involved an unusual degree of sophistication or planning, or
    (ii) Was part of a large scale criminal conspiracy or a continuing 
criminal enterprise.
    (3) Prisoners who have received national or unusual attention 
because of the nature of the crime, arrest, trial, or prisoner status, 
or because of the community status of the offender or his victim.
    (4) Long-term sentences. Prisoners sentenced to a maximum term of 
forty-five years (or more) or prisoners serving life sentences.
    (c)(1) Any case designated for the original jurisdiction of the 
Commission shall remain an original jurisdiction case unless designation 
is removed pursuant to this subsection.
    (2) A case found to be inappropriately designated for the 
Commission's original jurisdiction, or to no longer warrant such 
designation, may be removed from original jurisdiction under the 
procedures specified in paragraph (a) of this section following a 
regularly scheduled hearing or the reopening of the case pursuant to 
Sec. 2.28. Removal

[[Page 111]]

from original jurisdiction may also occur by majority vote of the 
Commission considering a petition for reconsideration pursuant to Sec. 
2.27. Where the circumstances warrant, a case may be redesignated as 
original jurisdiction pursuant to the provisions of paragraphs (a) and 
(b) of this section.

[42 FR 39809, Aug. 5, 1977, as amended at 42 FR 44234, Sept. 2, 1977; 48 
FR 53409, Nov. 28, 1983; 61 FR 13763, Mar. 28, 1996; 61 FR 55743, Oct. 
29, 1996; 68 FR 41529, July 14, 2003]



Sec. 2.18  Granting of parole.

    The granting of parole to an eligible prisoner rests in the 
discretion of the U.S. Parole Commission. As prerequisites to a grant of 
parole, the Commission must determine that the prisoner has 
substantially observed the rules of the institution or institutions in 
which he has been confined; and upon consideration of the nature and 
circumstances of the offense and the history and characteristics of the 
prisoner, must determine that release would not depreciate the 
seriousness of his offense or promote disrespect for the law, and that 
release would not jeopardize the public welfare (i.e., that there is a 
reasonable probability that, if released, the prisoner would live and 
remain at liberty without violating the law or the conditions of his 
parole).



Sec. 2.19  Information considered.

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

[[Page 112]]

the Commission shall resolve such dispute by the preponderance of the 
evidence standard; that is, the Commission shall rely upon such 
information only to the extent that it represents the explanation of the 
facts that best accords with reason and probability. If the Commission 
is given evidence of criminal behavior that has been the subject of an 
acquittal in a federal, state, or local court, the Commission may 
consider that evidence if:
    (1) The Commission finds that it cannot adequately determine the 
prisoner's suitability for release on parole, or to remain on parole, 
unless the evidence is taken into account;
    (2) The Commission is satisfied that the record before it is 
adequate notwithstanding the acquittal;
    (3) The prisoner has been given the opportunity to respond to the 
evidence before the Commission; and
    (4) The evidence before the Commission meets the preponderance 
standard.


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

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



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

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

[[Page 113]]

counted in the salient factor score as a prior conviction. Credit is 
given toward the guidelines for any time spent in confinement on any 
offense considered in assessing offense severity.
    (2) Exception: Where probation has been revoked on a complex 
sentence (i.e., a committed sentence of more than six months on one 
count or more of an indictment or information followed by a probation 
term on other count(s) of an indictment or information), the case shall 
be considered for guideline purposes under Sec. 2.21 as if parole 
rather than probation had been revoked.

                      Guidelines for Decisionmaking
[Guidelines for decisionmaking, customary total time to be served before
                     release (including jail time)]
------------------------------------------------------------------------
                                    Offender characteristics: Parole
                                  prognosis (salient factor score 1998)
   Offense characteristics:    -----------------------------------------
 Severity of offense behavior    Very good  Good  (7  Fair  (5  Poor  (3
                                 (10 to 8)    to 6)     to 4)     to 0)
------------------------------------------------------------------------
                                        Guideline range (months)
 
Category:
  1...........................        <==4      <==8      8-12     12-16
  2...........................        <==6     <==10     12-16     16-22
  3...........................       <==10     12-16     18-24     24-32
  4...........................       12-18     20-26     26-34     34-44
  5...........................       24-36     36-48     48-60     60-72
  6...........................       40-52     52-64     64-78    78-100
  7...........................       52-80     64-92    78-110   100-148
  8 \1\.......................        100+      120+      150+     180+
------------------------------------------------------------------------
\1\ Note: For Category Eight, no upper limits are specified due to the
  extreme variability of the cases within this category. For decisions
  exceeding the lower limit of the applicable guideline category by more
  than 48 months, the Commission will specify the pertinent case factors
  upon which it relied in reaching its decision, which may include the
  absence of any factors mitigating the offense. This procedure is
  intended to ensure that the prisoner understands that individualized
  consideration has been given to the facts of the case, and not to
  suggest that a grant of parole is to be presumed for any class of
  Category Eight offenders. However, a murder committed to silence a
  victim or witness, a contract murder, a murder by torture, the murder
  of a law enforcement officer to carry out an offense, or a murder
  committed to further the aims of an on-going criminal operation, shall
  not justify a grant of parole at any point in the prisoner's sentence
  unless there are compelling circumstances in mitigation (e.g., a
  youthful offender who participated in a murder planned and executed by
  his parent). Such aggravated crimes are considered, by definition, at
  the extreme high end of Category Eight offenses. For these cases, the
  expiration of the sentence is deemed to be a decision at the maximum
  limit of the guideline range. (The fact that an offense does not fall
  under the definition contained herein does not mean that the
  Commission is obliged to grant a parole.)

         U.S. Parole Commission Offense Behavior Severity Index

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

[[Page 114]]

    Subchapter F--Non-Governmental Bribery
    Subchapter G--Currency Offenses
Chapter Twelve Miscellaneous Offenses
Chapter Thirteen General Notes and Definitions
    Subchapter A--General Notes
    Subchapter B--Definitions

              Chapter One Offenses of General Applicability

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

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

                Chapter Two Offenses Involving the Person

                     Subchapter A--Homicide Offenses

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

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

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

                     Subchapter B--Assault Offenses

211 Assault During Commission of Another Offense
    (a) If serious bodily injury* results or if `serious bodily injury 
is the result intended'*, grade as Category Seven;
    (b) If bodily injury* results, or a weapon is fired by any offender, 
grade as Category Six;
    (c) Otherwise, grade as Category Five.
212 Assault
    (a) If serious bodily injury* results or if `serious bodily injury 
is the result intended'*, grade as Category Seven;
    (b) If bodily injury* results or a dangerous weapon is used by any 
offender, grade as Category Five;
    (c) Otherwise, grade as Category Two;
    (d) Exception: (1) If the victim was known to be a ``protected 
person'' * or law enforcement, judicial, or correctional official, grade 
conduct under (a) as Category Seven, (b) as Category six, and (c) as 
Category Three.
    (2) If an assault is committed while resisting an arrest or 
detention initiated by a law enforcement officer or a civilian acting 
under color of law, grade conduct under (a) as Category Seven, (b) as 
Category Six, and (c) as Category Three.
    213 Firing a Weapon at a Structure Where Occupants are Physically 
Present
    Grade according to the underlying offense if one can be established, 
but not less than Category Five.

              Subchapter C--Kidnaping and Related Offenses

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

                      Subchapter D--Sexual Offenses

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

    (a) Grade as Category Four, except as provided below.
    (b) If the relationship is clearly consensual and the victim is at 
least fourteen years old, and the age difference between the victim

[[Page 115]]

and offender is less than four years, grade as Category One.
    (c) If the victim is less than twelve years old, grade as Category 
Seven.
    (d) If the offender is an adult who has abused a position of trust 
(e.g., teacher, counselor, or physician), or the offense involved 
predatory sexual behavior, grade as Category Seven. Sexual behavior is 
deemed predatory when the offender repeatedly uses any trick or other 
device to attract, lure, or bribe victims into the initial contact that 
results in the offense.
233 Other Unlawful Sexual Conduct With Minors
    (a) Category Four
    (b) Exception: If the victim is less than twelve years old grade as 
Category Six.

                Subchapter E--Offenses Involving Aircraft

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

                 Subchapter F--Communication of Threats

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

                Chapter Three Offenses Involving Property

       Subchapter A--Arson and Other Property Destruction Offenses

301 Property Destruction by Fire or Explosives

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

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

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

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

                  Subchapter B--Criminal Entry Offenses

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

             Subchapter C--Robbery, Extortion, and Blackmail

321 Robbery
    (a) Category Five.
    (b) Exceptions:
    (1) If the grade of the applicable ``theft'' offense exceeds the 
grade for robbery, grade as a ``theft'' offense.
    (2) If any offender forces a victim to accompany any offender to a 
different location, or if a victim is forcibly detained by being tied, 
bound, or locked up, grade as Category Six.
    (3) Pickpocketing (stealth--no force or fear), see subchapter D.
    (c) Note: Grade purse snatching (fear or force) as robbery.
322 Extortion

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    (a) If by threat of physical injury to person or property, or 
extortionate extension of credit (loansharking), grade as Category Five;
    (b) If by use of official governmental position, grade according to 
Chapter Six, subchapter C.
    (c) If neither (a) nor (b) is applicable, grade under Chapter 
Eleven, subchapter F;
323 Blackmail [threat to injure reputation or accuse of crime]
    Grade as a ``theft'' offense according to the value of the property 
demanded, but not less than Category Three. Actual damage to reputation 
may be considered as an aggravating factor.

                Subchapter D--Theft and Related Offenses

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

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

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

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

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

            Subchapter E--Counterfeiting and Related Offenses

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

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

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Category Five. The term manufacture refers to the capacity to print or 
generate multiple copies; it does not apply to pasting together parts of 
different notes.

                    Subchapter F--Bankruptcy Offenses

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

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

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

    Chapter Four Offenses Involving Immigration, Naturalization, and 
                                Passports

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

                 Chapter Five Offenses Involving Revenue

                 Subchapter A--Internal Revenue Offenses

501 Tax Evasion [income tax or other taxes]

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

                     Subchapter B--Customs Offenses

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

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concealing invoices, grade according to (a) or (b), as applicable, but 
not less than Category Two.
512 Smuggling Goods into Foreign Countries in Violation of Foreign Law 
          (re: 18 U.S.C. 546)
    Category Two.

                   Subchapter C--Contraband Cigarettes

521 Trafficking in Contraband Cigarettes (re: 18 U.S.C. 2342)
    Grade as a tax evasion offense.

           Chapter Six Offenses Involving Governmental Process

                Subchapter A--Impersonation of Officials

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

                    Subchapter B--Obstructing Justice

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

                    Subchapter C--Official Corruption

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

                       Subchapter D--Voting Fraud

631 Voting Fraud
    Category Four.

           Chapter Seven Offenses Involving Individual Rights

              Subchapter A--Offenses Involving Civil Rights

701 Conspiracy Against Rights of Citizens (re: 18 U.S.C. 241)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
702 Deprivation of Rights Under Color of Law (re: 18 U.S.C. 242)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
703 Federally Protected Activity (re: 18 U.S.C. 245)

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    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
704 Intimidation of Persons in Real Estate Transactions Based on Racial 
          Discrimination (re: 42 U.S.C. 3631)
    (a) If death results, grade as Category Eight;
    (b) Otherwise, grade as if ``assault''.
705 Transportation of Strikebreakers (re: 18 U.S.C. 1231)
    Category Two.

                Subchapter B--Offenses Involving Privacy

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

         Chapter Eight Offenses Involving Explosives and Weapons

     Subchapter A--Explosives Offenses and Other Dangerous Articles

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

                         Subchapter B--Firearms

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

              Chapter Nine Offenses Involving Illicit Drugs

                Subchapter A--Heroin and Opiate* Offenses

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

              Subchapter B--Marihuana and Hashish Offenses

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

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    (f) If small scale (e.g., involving 10-49 pounds of marihuana/3-14.9 
pounds of hashish/.3-1.4 pounds of hash oil), grade as Category Two;
    (g) If very small scale (e.g., involving less than 10 pounds of 
marihuana/less than 3 pounds of hashish/less than .3 pounds of hash 
oil), grade as Category One.
912 Simple Possession
    Category One.

                     Subchapter C--Cocaine Offenses

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

                Subchapter D--Other Illicit Drug Offenses

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

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

                                 Heroin

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

                                 Cocaine

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

             Chapter Ten Offenses Involving National Defense

               Subchapter A--Treason and Related Offenses

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

               Subchapter B--Sabotage and Related Offenses

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

              Subchapter C--Espionage and Related Offenses

1021 Espionage
    Category Eight.

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                Subchapter D--Selective Service Offenses

1031 Failure to Register, Report for Examination or Induction
    (a) If committed during time of war or during a national defense 
emergency, grade as Category Four;
    (b) If committed when draftees are being inducted into the armed 
services, grade as Category Three;
    (c) Otherwise, grade as Category One.

              Subchapter E--Other National Defense Offenses

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

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

                 Subchapter A--Organized Crime Offenses

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

                     Subchapter B--Gambling Offenses

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

                         Subchapter C--Obscenity

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

              Subchapter D--Sexual Exploitation of Children

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

           Subchapter E--Prostitution and White Slave Traffic

1141 Interstate Transportation for Commercial Purposes

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    (a) If physical coercion, or involving person(s) of age less than 
18, grade as Category Six;
    (b) Otherwise, grade as Category Four.
    1142 Prostitution
    Category One.

                Subchapter F--Non-Governmental Corruption

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

                     Subchapter G--Currency Offenses

1161 Reports on Monetary Instrument Transactions

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

                  Subchapter H--Environmental Offenses

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

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

                  Chapter Twelve Miscellaneous Offenses

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

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

             Chapter Thirteen General Notes and Definitions

                       Subchapter A--General Notes

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

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

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

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

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

                        Subchapter B--Definitions

    1. ``Accessory after the fact'' refers to the conduct of one who, 
knowing an offense has been committed, assists the offender to avoid 
apprehension, trial, or punishment (e.g., by assisting in disposal of 
the proceeds of an offense).
    Note: Where the conduct consists of concealing an offense by making 
false statements not under oath, grade as ``misprision of felony''. 
Where the conduct consists of haboring a fugitive, grade as ``harboring 
a fugitive''.
    2. ``Assassination kit'' refers to a disguised weapon designed to 
kill without attracting attention. Unlike other weapons such as sawed-
off shotguns which can be used to intimidate, assassination kits are 
intended to be undetectable in order to make the victim and bystanders 
unaware of the threat. A typical assassination kit is usually, but not 
always, a firearm with a silencer concealed in a briefcase or similar 
disguise and fired without showing the weapon.
    3. ``Bodily injury'' refers to injury of a type normally requiring 
medical attention [e.g.,

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

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    21. ``Voluntary manslaughter'' refers to the unlawful killing of a 
human being without malice upon a sudden quarrel or heat of passion.''

                      SALIENT FACTOR SCORING MANUAL

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

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

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

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of juvenile convictions/adjudications is normally for civil purposes (to 
remove civil penalties and stigma). Such convictions/adjudications are 
to be counted for purposes of assessing parole prognosis. This also 
applies to adult convictions/adjudications which may be set aside by 
various methods (including pardon). However, convictions/adjudications 
that were set aside or pardoned on grounds of innocence are not to be 
counted.
    A.7 Convictions Reversed or Vacated on Grounds of Constitutional or 
Procedural Error. Exclude any conviction reversed or vacated for 
constitutional or procedural grounds, unless the prisoner has been 
retried and reconvicted. It is the Commission's presumption that a 
conviction/adjudication is valid, except under the limited circumstances 
described in the first note below. If a prisoner challenges such 
conviction he/she should be advised to petition for a reversal of such 
conviction in the court in which he/she was originally tried, and then 
to provide the Commission with evidence of such reversal. Note: 
Occasionally the presentence report documents facts clearly indicating 
that a conviction was unconstitutional for deprivation of counsel [this 
occurs only when the conviction was for a felony, or for a lesser 
offense for which imprisonment was actually imposed; and the record is 
clear that the defendant (1) was indigent, and (2) was not provided 
counsel, and (3) did not waive counsel]. In such case, do not count the 
conviction. Similarly, do not count a conviction if: (1) the offender 
has petitioned the appropriate court to overturn a felony conviction 
that occurred prior to 1964, or a misdemeanor/petty offense conviction 
that occurred prior to 1973 (and the offender claims he served a jail 
sentence for the non-felony conviction); (2) the offender asserts he was 
denied his right to counsel in the prior conviction; and (3) the 
offender provides evidence (e.g., a letter from the court clerk) that 
the records of the prior conviction are unavailable. Note: If a 
conviction found to be invalid is nonetheless supported by persuasive 
information that the offender committed the criminal act, this 
information may be considered as a negative indicant of parole prognosis 
(i.e., a possible reason for overriding the salient factor score).
    A.8 Ancient Prior Record. If both of the following conditions are 
met: (1) The offender's only countable convictions under Item A occurred 
at least ten years prior to the commencement of the current offense 
behavior (the date of the last countable conviction under Item A refers 
to the date of the conviction, itself, not the date of the offense 
leading to conviction), and (2) there is at least a ten year commitment 
free period in the community (including time on probation or parole) 
between the last release from a countable commitment (under Item B) and 
the commencement of the current offense behavior; then convictions/
commitments prior to the above ten year period are not to be counted for 
purposes of Item A, B, or C. Note: This provision does not preclude 
consideration of earlier behavior (e.g., repetition of particularly 
serious or assaultive conduct) as a negative indicant of parole 
prognosis (i.e., a possible reason for overriding the salient factor 
score). Similarly, a substantial crime free period in the community, not 
amounting to ten years, may, in light of other factors, indicate that 
the offender belongs in a better risk category than the salient factor 
score indicates.
    A.9 Foreign Convictions. Foreign convictions (for behavior that 
would be criminal in the United States) are counted.
    A.10 Tribal Court Convictions. Tribal court convictions are counted 
under the same terms and conditions as any other conviction.
    A.11 Forfeiture of Collateral. If the only known disposition is 
forfeiture of collateral, count as a conviction (if a conviction for 
such offense would otherwise be counted).
    A.12 Conditional/Unconditional Discharge (New York State). In N.Y. 
State, the term ``conditional discharge'' refers to a conviction with a 
suspended sentence and unsupervised probation; the term ``unconditional 
discharge'' refers to a conviction with a suspended sentence. Thus, such 
N.Y. State dispositions for countable offenses are counted as 
convictions.
    A.13 Adjudication Withheld (Florida). In Florida, the term 
``adjudication withheld'' refers to a disposition in which a formal 
conviction is not entered at the time of sentencing, the purpose of 
which is to allow the defendant to retain his civil rights and not to be 
classified as a convicted felon. Since the disposition of adjudication 
withheld is characterized by an admission of guilt and/or a finding of 
guilt before a judicial body, dispositions of ``adjudication withheld'' 
are to be counted as convictions for salient factor scoring purposes. 
However, it is not considered a conviction on which forfeiture of street 
time can be based.
    A.14 Juvenile Consent Decree (District of Columbia). A juvenile 
consent decree in the District of Columbia is a diversionary disposition 
not requiring an admission or finding of guilt. Therefore, it is not to 
be used in scoring this item.

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

    B.1 Count all prior commitments of more than thirty days (adult or 
juvenile) resulting from a conviction/adjudication listed under Item A, 
except as noted below. Also count commitments of more than thirty days 
imposed upon revocation of probation or parole

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where the original probation or parole resulted from a conviction/
adjudication counted under Item A.
    B.2 Count only commitments that were imposed prior to the commission 
of the last overt act of the current offense behavior. Commitments 
imposed after the current offense are not counted for purposes of this 
item. Concurrent or consecutive sentences (whether imposed as the same 
time or at different times) that result in a continuous period of 
confinement count as a single commitment. However, a new court 
commitment of more than thirty days imposed for an escape/attempted 
escape or for criminal behavior committed while in confinement/escape 
status counts as a separate commitment.
    B.3 Definitions. (a) This item only includes commitments that were 
actually imposed. Do not count a suspended sentence as a commitment. Do 
not count confinement pending trial or sentencing or for study and 
observation as a commitment unless the sentence is specifically to 
``time served''. If a sentence imposed is subsequently reconsidered and 
reduced, do not count as a commitment if it is determined that the total 
time served, including jail time, was 30 days or less. Count a sentence 
to intermittent confinement (e.g., weekends) totaling more than 30 days.
    (b) This item includes confinement in adult or juvenile 
institutions, community corrections centers, and other residential 
treatment centers (e.g., halfway houses and community treatment 
centers). It does not include foster home placement. Count confinement 
in a community corrections center (CCC) or other residential treatment 
center only when it is part of a committed sentence. Do not count 
confinement in a community corrections center or other residential 
treatment center when imposed as a condition of probation or parole. Do 
not count self-commitment for drug or alcohol treatment.
    (c) If a committed sentence of more than 30 days is imposed prior to 
the current offense but the offender avoids or delays service of the 
sentence (e.g., by absconding, escaping, bail pending appeal), count as 
a prior commitment. Note: Where the subject unlawfully avoids service of 
a prior commitment by escaping or failing to appear for service of 
sentence, this commitment is also to be considered in Items D and E. 
Example: An offender is sentenced to a three-year prison term, released 
on appeal bond, and commits the current offense. Count as a previous 
commitment under Item B, but not under Items D and E. To be considered 
under Items D and E, the avoidance of sentence must have been unlawful 
(e.g., escape or failure to report for service of sentence). Example: An 
offender is sentenced to a three-year prison term, escapes, and commits 
the current offense. Count as a previous commitment under Items B, D, 
and E.
    (d) District of Columbia Juvenile Commitment to Department of Human 
Services. In the District of Columbia, juvenile offenders may be 
committed to the Department of Human Services for placement ranging from 
a foster home to a secure juvenile facility. Such a commitment is 
counted only if it can be established that the juvenile was actually 
committed for more than 30 days to a secure juvenile institution or 
residential treatment center rather than a foster home.

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

    C.1 Score 3 if the subject was 26 years of age or more at the 
commencement of the current offense and has three or fewer prior 
commitments.
    C.2 Score 2 if the subject was 26 years of age or more at the 
commencement of the current offense and has four prior commitments.
    C.3 Score 1 if the subject was 26 years of age or more at the 
commencement of the current offense and has five or more prior 
commitments.
    C.4 Score 2 if the subject was 22-25 years of age at the 
commencement of the current offense and has three or fewer prior 
commitments.
    C.5 Score 1 if the subject was 22-25 years of age at the 
commencement of the current offense and has four prior commitments.
    C.6 Score 0 if the subject was 22-25 years of age at the 
commencement of the current offense and has five or more prior 
commitments.
    C.7 Score 1 if the subject was 20-21 years of age at the 
commencement of the current offense and has three or fewer prior 
commitments.
    C.8 Score 0 if the subject was 20-21 years of age at the 
commencement of the current offense and has four prior commitments.
    C.9 Score 0 if the subject was 19 years of age or less at the 
commencement of the current offense with any number of prior 
commitments.
    C.10 Definitions (a) Use the age of the commencement of the 
subject's current offense behavior, except as noted under the special 
instructions for probation/parole/confinement/escape status violators.
    (b) Prior commitment is defined under Item B.

ITEM D. RECENT COMMITMENT FREE PERIOD (THREE YEARS)

    D.1 Score 1 if the subject has no prior commitments; or if the 
subject was released to the community from his/her last prior commitment 
at least three years prior to commencement of his/her current offense 
behavior.

[[Page 128]]

    D.2 Score 0 if the subject's last release to the community from a 
prior commitment occurred less than three years prior to the current 
offense behavior; or if the subject was in confinement/escape status at 
the time of the current offense.
    D.3 Definitions. (a) Prior commitment is defined under Item B.
    (b) Confinement/escape status is defined under Item E.
    (c) Release to the community means release from confinement status 
(e.g., a person paroled through a CTC is released to the community when 
released from the CTC, not when placed in the CTC).

ITEM E. PROBATION/PAROLE/CONFINEMENT/ESCAPE STATUS VIOLATOR THIS TIME

    E.1 Score 1 if the subject was not on probation or parole, nor in 
confinement or escape status at the time of the current offense 
behavior; and was not committed as a probation, parole, confinement, or 
escape status violator this time.
    E.2 Score 0 if the subject was on probation or parole or in 
confinement or escape status at the time of the current offense 
behavior; or if the subject was committed as a probation, parole, 
confinement, or escape status violator this time.
    E.3 Definitions. (a) The term probation/parole refers to a period of 
federal, state, or local probation or parole supervision. Occasionally, 
a court disposition such as `summary probation' or `unsupervised 
probation' will be encountered. If it is clear that this disposition 
involved no attempt at supervision, it will not be counted for purposes 
of this item. Note: Unsupervised probation/parole due to deportation is 
counted in scoring this item.
    (b) The term ``parole'' includes parole, mandatory parole, 
supervised release, conditional release, or mandatory release 
supervision (i.e., any form of supervised release).
    (c) The term ``confinement/escape status'' includes institutional 
custody, work or study release, pass or furlough, community corrections 
center or other residential treatment center confinement (when such 
confinement is counted as a commitment under Item B), or escape from any 
of the above.

    Item F. Older Offenders.

    F.1 Score 1 if the offender was 41 years of age or more at the 
commencement of the current offense and the total score from Items A-E 
is 9 or less.
    F.2 Score 0 if the offender was less than 41 years of age at the 
commencement of the current offense or if the total score from Items A-E 
is 10.

           Special Instructions--Probation Violator This Time

Item A Count the original conviction that led to the sentence of 
probation as a prior conviction. Do not count the probation revocation 
as a prior conviction.
    Item B Count all prior commitments of more than thirty days which 
were imposed prior to the behavior resulting in the current probation 
revocation. If the subject is committed as a probation violator 
following a `split sentence' for which more than thirty days were 
served, count the confinement portion of the `split sentence' as a prior 
commitment. Note: The prisoner is still credited with the time served 
toward the current commitment.
    Item C Use the age at commencement of the probation violation, not 
the original offense.
    Item D Count backwards three years from the commencement of the 
probation violation.
    Item E By definition, no point is credited for this item. Exception: 
A person placed on unsupervised probation (other than for deportation) 
would not lose credit for this item.
    Item F Use the age at commencement of the probation violation, not 
the original offense.

  Special Instructions--Parole or Supervised Release Violator This Time

    Item A The conviction from which paroled or placed on supervised 
release counts as a prior conviction.
    Item B The commitment from which paroled or released to supervised 
release (including a prison term ordered for a prior supervised release 
revocation), counts as a prior commitment.
    Item C Use the age at commencement of the violation behavior 
(including new criminal behavior).
    Item D Count backwards three years from the commencement of the 
violation behavior (including new criminal behavior).
    Item E By definition, no point is credited for this item.
    Item F Use the age at commencement of the violation behavior 
(including new criminal behavior).

   Special Instructions--Confinement/Escape Status Violator With New 
              Criminal Behavior in the Community This Time

    Item A The conviction being served at the time of the confinement/
escape status violation counts as a prior conviction.
    Item B The commitment being served at the time of the confinement/
escape status violation counts as a prior commitment.
    Item C Use the age at commencement of the confinement/escape status 
violation.
    Item D By definition, no point is credited for this item.
    Item E By definition, no point is credited for this item.

[[Page 129]]

    Item F Use the age at commencement of the confinement/escape status 
violation.

(18 U.S.C. 4203(a)(1); 18 U.S.C. 4204(a)(6))

[47 FR 56336, Dec. 16, 1982]

    Editorial Note: For Federal Register citations affecting Sec. 2.20, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 2.21  Reparole consideration guidelines.

    (a)(1) If revocation is based upon administrative violation(s) only, 
grade the behavior as if a Category One offense under Sec. 2.20.
    (2) If a finding is made that the prisoner has engaged in behavior 
constituting new criminal conduct, the appropriate severity rating for 
the new criminal behavior shall be calculated. New criminal conduct may 
be determined either by a new federal, state, or local conviction or by 
an independent finding by the Commission at revocation hearing. As 
violations may be for state or local offenses, the appropriate severity 
level may be determined by analogy with listed federal offense 
behaviors.
    (b) The guidelines for parole consideration specified at 28 CFR 2.20 
shall then be applied with the salient factor score recalculated. The 
conviction and commitment from which the offender was released shall be 
counted as a prior conviction and commitment.
    (c) Time served on a new state or federal sentence shall be counted 
as time in custody for reparole guideline purposes. This does not affect 
the computation of the expiration date of the violator term as provided 
by Sec. Sec. 2.47(e) and 2.52 (c) and (d).
    (d) The above are merely guidelines. A decision outside these 
guidelines (either above or below) may be made when circumstances 
warrant.

[50 FR 40368, Oct. 3, 1985, as amended at 68 FR 41529, July 14, 2003]



Sec. 2.22  Communication with the Commission.

    Attorneys, relatives, or interested parties wishing a personal 
interview to discuss a specific case with a representative of the 
Commission must submit a written request to the appropriate office 
setting forth the nature of the information to be discussed. Such 
interview may be conducted by a Commissioner or assigned staff, and a 
written summary of each such interview shall be prepared and placed in 
the prisoner's file.

[43 FR 22707, May 28, 1978]



Sec. 2.23  Delegation to hearing examiners.

    (a) There is hereby delegated to hearing examiners the authority 
necessary to conduct hearings and to make recommendations relative to 
the grant or denial of parole or reparole, revocation or reinstatement 
of parole or mandatory release, and conditions of parole. Any hearing 
may be conducted by a single examiner or by a panel of examiners. A 
Executive Hearing Examiner shall function as a hearing examiner for the 
purpose of obtaining a panel recommendation whenever the Regional 
Commissioner has not ordered that a hearing be conducted by a panel of 
two examiners. Notwithstanding the provisions of Sec. Sec. 2.48 through 
2.51, Sec. Sec. 2.101 through 2.104, and Sec. Sec. 2.214 through 
2.217, there is also delegated to hearing examiners the authority 
necessary to make a probable cause finding, to determine the location of 
a revocation hearing, and to determine the witnesses who will attend the 
hearing, including the authority to issue subpoenas for witnesses and 
evidence.
    (b) The concurrence of two hearing examiners, or of a hearing 
examiner and the Executive Hearing Examiner, shall be required to obtain 
a panel recommendation to the Regional Commissioner. A panel 
recommendation is required in each case decided by a Regional 
Commissioner after the holding of a hearing.
    (c) An examiner panel recommendation consists of two concurring 
examiner votes. In the event of divergent votes, the case shall be 
referred to another hearing examiner (or to the Executive Hearing 
Examiner in the case of a hearing conducted by a panel of examiners) for 
another vote. If concurring votes do not result from such a referral, 
the case shall be referred to any available hearing examiner until a 
panel recommendation is obtained.

[[Page 130]]

    (d) A recommendation of a hearing examiner panel shall become an 
effective Commission decision only upon the Regional Commissioner's 
approval, and docketing at the regional office.

[44 FR 3408, Jan. 16, 1979, as amended at 45 FR 84052, Dec. 12, 1980; 59 
FR 45625, Sept. 2, 1994; 60 FR 51349, Oct. 2, 1995; 66 FR 51302, Oct. 9, 
2001]



Sec. 2.24  Review of panel recommendation by the Regional Commissioner.

    (a) Upon review of the examiner panel recommendation, the Regional 
Commissioner may make the decision by concurring with the panel 
recommendation. If the Regional Commissioner does not concur, the 
Regional Commissioner shall refer the case to another Commissioner and 
the decision shall be made on the concurring votes of two Commissioners.
    (b) Upon review of the panel recommendation, the Regional 
Commissioner may also:
    (1) Designate the case for the original jurisdiction of the 
Commission pursuant to Sec. 2.17, vote on the case, and then refer the 
case to another Commissioner for further review; or
    (2) Remand the case for a rehearing, with the notice of action 
specifying the purpose of the rehearing.

[68 FR 41529, July 14, 2003]



Sec. 2.25  Hearings by videoconference.

    The Commission may conduct a parole determination hearing (including 
a rescission hearing), a probable cause hearing, and an institutional 
revocation hearing, by a videoconference between the hearing examiner 
and the prisoner or releasee.

[72 FR 53118, Sept. 18, 2007]



Sec. 2.26  Appeal to National Appeals Board.

    (a)(1) A prisoner or parolee may submit to the National Appeals 
Board a written appeal of any decision to grant (other than a decision 
to grant parole on the date of parole eligibility), rescind, deny, or 
revoke parole, except that any appeal of a Commission decision pursuant 
to Sec. 2.17 shall be submitted as a petition for reconsideration under 
Sec. 2.27.
    (2) The appeal must be filed on a form provided for that purpose 
within 30 days from the date of entry of the decision that is the 
subject of the appeal. The appeal must include an opening paragraph that 
briefly summarizes the grounds for the appeal. The appellant shall then 
list each ground separately and concisely explain the reasons supporting 
each ground. Appeals that do not conform to the above requirements may 
be returned at the Commission's discretion, in which case the appellant 
shall have 30 days from the date the appeal is returned to submit an 
appeal that complies with the above requirements. The appellant may 
provide any additional information for the Commission to consider in an 
addendum to the appeal. Exhibits may be attached to an appeal, but the 
appellant should not attach exhibits that are copies of documents 
already in the possession of the Commission. Any exhibits that are 
copies of documents already in the Commission's files will not be 
retained by the Commission.
    (b)(1) The National Appeals Board may: Affirm the decision of a 
Regional Commissioner on the vote of a single Commissioner other than 
the Commissioner who issued the decision from which the appeal is taken; 
or modify or reverse the decision of a Regional Commissioner, or order a 
new hearing, upon the concurrence of two Commissioners. The Commissioner 
first reviewing the case may in his discretion circulate the case for 
review and vote by the other Commissioners notwithstanding his own vote 
to affirm the Regional Commissioner's decision. In such event, the case 
shall be decided by the concurrence of two out of three votes.
    (2) All Commissioners serve as members of the National Appeals 
Board, and it shall in no case be an objection to a decision of the 
Board that the Commissioner who issued the decision from which an appeal 
is taken participated as a voting member on appeal.
    (c) The National Appeals Board shall act within sixty days of 
receipt of the appellant's papers, to affirm, modify, or reverse the 
decision. Decisions of the National Appeals Board shall be final.
    (d) If no appeal is filed within thirty days of the date of entry of 
the original

[[Page 131]]

decision, such decision shall stand as the final decision of the 
Commission.
    (e) Appeals under this section may be based upon the following 
grounds:
    (1) That the guidelines were incorrectly applied as to any or all of 
the following:
    (i) Severity rating;
    (ii) Salient factor score;
    (iii) Time in custody;
    (2) That a decision outside the guidelines was not supported by the 
reasons or facts as stated;
    (3) That especially mitigating circumstances (for example, facts 
relating to the severity of the offense or the prisoner's probability of 
success on parole) justify a different decision;
    (4) That a decision was based on erroneous information, and the 
actual facts justify a different decision;
    (5) That the Commission did not follow correct procedure in deciding 
the case, and a different decision would have resulted if the error had 
not occurred;
    (6) There was significant information in existence but not known at 
the time of the hearing;
    (7) There are compelling reasons why a more lenient decision should 
be rendered on grounds of compassion.
    (f) Upon the written request of the Attorney General seeking review 
of a decision of a Regional Commissioner, which is received within 30 
days of such decision, the National Appeals Board shall reaffirm, 
modify, or reverse the Regional Commissioner's decision within 60 days 
of receipt of the Attorney General's request. The National Appeals Board 
shall inform the Attorney General and the prisoner to whom the decision 
applies in writing of its decision and the reasons therefor. In the 
event the Attorney General submits new and significant information that 
has not previously been disclosed to the prisoner prior to a hearing 
under these rules, the National Appeals Board shall act within 60 days 
to reaffirm, modify or reverse the Regional Commissioner's decision, but 
shall also remand the case for a new hearing if its decision is adverse 
to the prisoner. The prisoner shall have disclosure of the new 
information, and the opportunity to dispute that information under Sec. 
2.19(c) of this part. Following the hearing, the case shall be returned 
to the National Appeals Board, together with a recommendation from the 
hearing examiner, to render a final Commission decision as to the 
disposition of the case.

[49 FR 44098, Nov. 2, 1984, as amended at 51 FR 32785, Sept. 16, 1986; 
59 FR 40258, Aug. 8, 1994; 61 FR 55743, Oct. 29, 1996; 68 FR 41699, July 
15, 2003]



Sec. 2.27  Petition for reconsideration of original jurisdiction decisions.

    (a) A petition for reconsideration may be filed with the Commission 
in a case decided under the procedure specified in Sec. 2.17 within 
thirty days of the date of such decision. A form is provided for this 
purpose. A petition for reconsideration will be reviewed at the next 
regularly scheduled meeting of the Commission provided the petition is 
received thirty days in advance of such meeting. A petition received by 
the Commission less than thirty days in advance of a regularly scheduled 
meeting will be reviewed at the next regularly scheduled meeting. The 
previous decision made under Sec. 2.17 may be modified or reversed only 
by a majority vote of the Commissioners holding office at the time of 
the review of the petition. If a majority vote is not obtained, the 
previous decision shall stand. A decision under this rule shall be 
final.
    (b) Attorneys, relatives, and other interested parties who wish to 
submit written information concerning a petition for reconsideration 
should send such information to the National Appeals Board, United 
States Parole Commission, 5550 Friendship Boulevard, Chevy Chase, 
Maryland 20815. Petitions and all supporting material are to be 
submitted thirty days in advance of the meeting at which such petitions 
will be considered.
    (c) If no petition for reconsideration is filed within 30 days of 
the entry of a decision under Sec. 2.17, that decision shall stand as 
the final decision of the Commission.

[61 FR 13763, Mar. 28, 1996, as amended at 61 FR 55743, Oct. 29, 1996; 
68 FR 41530, July 14, 2003]

[[Page 132]]



Sec. 2.28  Reopening of cases.

    (a) Favorable information. Upon the receipt of new information of 
substantial significance favorable to the prisoner, the Regional 
Commissioner may reopen a case (including an original jurisdiction 
case), and order a special reconsideration hearing on the next available 
docket, or modify the previous decision. The advancement of a 
presumptive release date requires the concurrence of two Commissioners.
    (b) Institutional misconduct. Consideration of disciplinary 
infractions and allegations of new criminal conduct occurring after the 
setting of a parole date are subject to the provisions of Sec. 2.14 (in 
the case of a prisoner with a presumptive date) and Sec. 2.34 (in the 
case of a prisoner with an effective date of parole).
    (c) Additional sentences. If a prisoner receives an additional 
concurrent or consecutive federal sentence following his initial parole 
consideration, the Regional Commissioner shall reopen his case for a new 
initial hearing on the next regularly scheduled docket to consider the 
additional sentence and reevaluate the case. Such action shall void the 
previous presumptive or effective release date. However, a new initial 
hearing is not mandatory where the Commission has previously evaluated 
the new criminal behavior, which led to the additional federal sentence, 
at a rescission hearing under 28 CFR 2.34; except where the new sentence 
extends the mandatory release date for a prisoner previously continued 
to the expiration of his sentence.
    (d) Conviction after revocation. Upon receipt of information 
subsequent to the revocation hearing that a prisoner whose parole has 
been revoked has sustained a new conviction for conduct while on parole, 
the Regional Commissioner may reopen the case pursuant to Sec. 
2.52(c)(2) for a special reconsideration hearing on the next regularly 
scheduled docket to consider forfeiture of time spent on parole and such 
further action as may be appropriate. The entry of a new order shall 
void any presumptive or effective release date previously established.
    (e) Release planning. When an effective date of parole has been set 
by the Commission, release on that date shall be conditioned upon the 
completion of a satisfactory plan for parole supervision. The 
appropriate Regional Commissioner may on his own motion reconsider any 
case prior to release and may reopen and advance or retard an effective 
parole date for purposes of release planning. Retardation without a 
hearing may not exceed 120 days.
    (f) New adverse information. Upon receipt of new and significant 
adverse information that is not covered by paragraphs (a) through (e) of 
this section, a Commissioner may refer the case to the National 
Commissioners with his recommendation and vote to schedule the case for 
a special reconsideration hearing. Such referral shall automatically 
retard the prisoner's scheduled release date until a final decision is 
reached in the case. The decision to schedule a case for a special 
reconsideration hearing shall be based on the concurrence of two 
Commissioner votes, including the vote of the referring Commissioner. 
The hearing shall be conducted in accordance with the procedures set 
forth in Sec. Sec. 2.12 and 2.13. The entry of a new order following 
such hearing shall void the previously established release date.

[44 FR 3406, Jan. 16, 1979, as amended at 46 FR 36138, July 14, 1981; 49 
FR 44098, Nov. 2, 1984; 61 FR 55743, Oct. 29, 1996; 68 FR 41529, July 
14, 2003]



Sec. 2.29  Release on parole.

    (a) A grant of parole shall not be deemed to be operative until a 
certificate of parole has been delivered to the prisoner.
    (b) An effective date of parole shall not be set for a date more 
than nine months from the date of the hearing. Residence in a community 
corrections center as part of a parole release plan generally shall not 
exceed one hundred and twenty days.
    (c) When an effective date of parole falls on a Saturday, Sunday, or 
legal holiday, the Warden of the appropriate institution shall be 
authorized to release the prisoner on the first working day preceding 
such date.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3407, Jan. 16, 1979; 60 
FR 51350, Oct. 2, 1995; 68 FR 41530, July 14, 2003]

[[Page 133]]



Sec. 2.30  False information or new criminal conduct: Discovery after release.

    If evidence comes to the attention of the Commission after a 
prisoner's release that such prisoner has willfully provided false 
information or misrepresented information deemed significant to his 
application for parole or has engaged in any criminal conduct during the 
current sentence prior to the delivery of the parole certificate, the 
Regional Commissioner may reopen the case pursuant to the procedures of 
Sec. 2.28(f) and order the prisoner summoned or retaken for hearing 
pursuant to the procedures of Sec. Sec. 2.49 and 2.50, as applicable, 
to determine whether the order of parole should be cancelled.

[47 FR 36635, Aug. 23, 1982]



Sec. 2.31  Parole to detainers: Statement of policy.

    (a) Where a detainer is lodged against a prisoner, the Commission 
may grant parole if the prisoner in other respects meets the criteria 
set forth in Sec. 2.18. The presence of a detainer is not in itself a 
valid reason for the denial of parole.
    (b) The Commission will cooperate in working out arrangements for 
concurrent supervision with other jurisdictions where it is feasible and 
where release on parole appears to be justified.



Sec. 2.32  Parole to local or immigration detainers.

    (a) When a State or local detainer is outstanding against a prisoner 
whom the Commission wishes to parole, the Commission may order either of 
the following:
    (1) Parole to the actual physical custody of the detaining 
authorities only. In this event, release is not to be effected except to 
the detainer. When such a detainer is withdrawn, the prisoner is not to 
be released unless and until the Commission makes a new order of parole.
    (2) Parole to the actual physical custody of the detaining 
authorities or an approved plan. In this event, release is to be 
effected to the community if detaining officials withdraw the detainer 
or make no effort to assume custody of the prisoner, providing there is 
an acceptable plan for community supervision.
    (b) When the Commission wishes to parole a prisoner subject to a 
detainer filed by Federal immigration officials, the Commission shall 
order the following: Parole to the actual physical custody of the 
immigration authorities or an approved plan. In this event, release is 
to be effected regardless of whether immigration officials take the 
prisoner into custody, providing there is an acceptable plan for 
community supervision.
    (c) As used in this section ``parole to a detainer'' means release 
to the ``physical custody'' of the authorities who have lodged the 
detainer. Temporary detention in a jail in the county where the 
institution of confinement is located does not constitute release on 
parole to such detainer. If the authorities who lodged the detainer do 
not take the prisoner into custody for any reason, he shall be returned 
to the institution to await further order of the Commission.

[43 FR 38822, Aug. 31, 1978, as amended at 44 FR 3409, Jan. 16, 1979; 44 
FR 31637, June 1, 1979; 44 FR 34494, June 15, 1979; 47 FR 36635, Aug. 
23, 1982]



Sec. 2.33  Release plans.

    (a) A grant of parole is conditioned upon the approval of release 
plans by the Regional Commissioner. In general, the following factors 
are considered as elements in the prisoner's release plan:
    (1) Availability of legitimate employment and an approved residence 
for the prospective parolee; and
    (2) Availability of necessary aftercare for a parolee who is ill or 
who requires special care.
    (b) Generally, parolees will be released only to the place of their 
legal residence unless the Commission is satisfied that another place of 
residence will serve the public interest more effectively or will 
improve the probability of the applicant's readjustment.
    (c) Where the circumstances warrant, the Commission on its own 
motion, or upon recommendation of the probation officer, may require 
that an advisor who is a responsible, reputable, and law-abiding citizen 
living in or near the community in which the releasee will reside be 
available to the releasee.

[[Page 134]]

Such advisor shall serve under the direction of and in cooperation with 
the probation officer to whom the parolee is assigned.
    (d) When the prisoner has an unsatisfied fine or restitution order, 
a reasonable plan for payment [or performance of services, if so ordered 
by the court] shall, where feasible, be included in the parole release 
plan.

[42 FR 39809, Aug. 5, 1977; 42 FR 44234, Sept. 2, 1977, as amended at 50 
FR 36422, Sept. 6, 1985; 68 FR 41530, July 14, 2003]



Sec. 2.34  Rescission of parole.

    (a) When an effective date of parole has been set by the Commission, 
release on that date is conditioned upon continued satisfactory conduct 
by the prisoner. If a prisoner granted such a date has been found in 
violation of institution rules by a Discipline Hearing Officer or is 
alleged to have committed a new criminal act at any time prior to the 
delivery of the certificate of parole, the Regional Commissioner shall 
be advised promptly of such information. The prisoner shall not be 
released until the institution has been notified that no change has been 
made in the Commission's order to parole. Following receipt of such 
information, the Regional Commissioner may reopen the case and retard 
the parole date for up to 90 days without a hearing, or schedule a 
rescission hearing under this section on the next available docket at 
the institution or on the first docket following return to a federal 
institution from a community corrections center or a state or local 
halfway house.
    (b) Upon the ordering of a rescission hearing under this section, 
the prisoner shall be afforded written notice specifying the information 
to be considered at the hearing. The notice shall further state that the 
purpose of the hearing will be to decide whether rescission of the 
parole date is warranted based on the charges listed on the notice, and 
shall advise the prisoner of the procedural rights described below.
    (c) A hearing before a Discipline Hearing Officer resulting in a 
finding that the prisoner has committed a violation of disciplinary 
rules may be relied upon by the Commission as conclusive evidence of 
institutional misconduct. However, the prisoner will be afforded an 
opportunity to explain any mitigating circumstances, and to present 
documentary evidence in mitigation of the misconduct at the rescission 
hearing.
    (d) In the case of allegations of new criminal conduct committed 
prior to delivery of the parole certificate, the Commission may consider 
documentary evidence and/or written testimony presented by the prisoner, 
arresting authorities, or other persons.
    (e) The prisoner may be represented at a rescission hearing by a 
person of his choice. The function of the prisoner's representative 
shall be to offer a statement following the discussion of the charges 
with the prisoner, and to provide such additional information as the 
hearing examiner may require. However, the hearing examiner may limit or 
exclude any irrelevant or repetitious statement.
    (f) The evidence upon which the rescission hearing is to be 
conducted shall be disclosed to the prisoner upon request, subject to 
the exemptions set forth at Sec. 2.55. If the parole grant is 
rescinded, the Commission shall furnish to the prisoner a written 
statement of its findings and the evidence relied upon.

[44 FR 3406, Jan. 16, 1979, as amended at 45 FR 59871, Sept. 11, 1980; 
47 FR 2313, Jan. 15, 1982; 54 FR 15173, Apr. 17, 1989; 68 FR 41530, July 
14, 2003]



Sec. 2.35  Mandatory release in the absence of parole.

    (a) A prisoner shall be mandatorily released by operation of law at 
the end of the sentence imposed by the court less such good time 
deductions as he may have earned through his behavior and efforts at the 
institution of confinement. If released pursuant to 18 U.S.C. 4164, such 
prisoner shall be released, as if on parole, under supervision until the 
expiration of the maximum term or terms for which he was sentenced less 
180 days. If released pursuant to 18 U.S.C. 4205(f), such prisoner shall 
remain under supervision until the expiration of the maximum term or 
terms for which he was sentenced. Insofar as possible, release plans 
shall be completed before the release of any such prisoner.

[[Page 135]]

    (b) It is the Commission's interpretation of the statutory scheme 
for parole and good time that the only function of good time credits is 
to determine the point in a prisoner's sentence when, in the absence of 
parole, the prisoner is to be conditionally released on supervision, as 
described in subsection (a). Once an offender is conditionally released 
from imprisonment, either by parole or mandatory release, the good time 
earned during that period of imprisonment is of no further effect either 
to shorten the period of supervision or to shorten the period of 
imprisonment which the offender may be required to serve for violation 
of parole or mandatory release.
    (c) A prisoner committed under the Youth Corrections Act must be 
initially released conditionally under supervision not later than two 
years before the expiration of the term imposed by the court.
    (d) If the Commission orders a military prisoner who is under the 
Commission's jurisdiction for an offense committed after August 15, 2001 
continued to the expiration of his sentence (or otherwise does not grant 
parole), the Commission shall place such prisoner on mandatory 
supervision after release if the Commission determines that such 
supervision is appropriate to provide an orderly transition to civilian 
life for the prisoner and to protect the community into which such 
prisoner is released. The Commission shall presume that mandatory 
supervision is appropriate for all such prisoners unless case-specific 
factors indicate that supervision is inappropriate. A prisoner who is 
placed on mandatory supervision shall be deemed to be released as if on 
parole, and shall be subject to the conditions of release at Sec. 2.40 
until the expiration of the maximum term for which he was sentenced, 
unless the prisoner's sentence is terminated early by the appropriate 
military clemency board.

[42 FR 39809, Aug. 5, 1977, as amended at 50 FR 46283, Nov. 7, 1985; 67 
FR 67792, Nov. 7, 2002; 68 FR 16720, Apr. 7, 2003]



Sec. 2.36  Rescission guidelines.

    (a) The following guidelines shall apply to the sanctioning of 
disciplinary infractions or new criminal conduct committed by a prisoner 
during any period of confinement that is credited to his current 
sentence (whether before or after sentence is imposed), but prior to his 
release on parole; and by a parole violator during any period of 
confinement prior to or following the revocation of his parole (except 
when such period of confinement has resulted from initial parole to a 
detainer). These guidelines specify the customary time to be served for 
such behavior which shall be added to the time required by the original 
presumptive or effective date. Credit shall be given towards service of 
these guidelines for any time spent in custody on a new offense that has 
not been credited towards service of the original presumptive or 
effective date. If a new concurrent or consecutive sentence is imposed 
for such behavior, these guidelines shall also be applied at the initial 
hearing on such term.
    (1) Administrative rule infraction(s) (including alcohol abuse) 
normally can be adequately sanctioned by postponing a presumptive or 
effective date by 0-60 days per instance of misconduct, or by 0-8 months 
in the case of use or simple possession of illicit drugs or refusal to 
provide a urine sample. Escape or other new criminal conduct shall be 
considered in accordance with the guidelines set forth below.
    (2) Escape/new criminal behavior in a prison facility (including a 
community corrections center). The time required pursuant to the 
guidelines set forth in paragraphs (a)(2) (i) and (ii) of this section 
shall be added to the time required by the original presumptive or 
effective date.
    (i) Escape or attempted escape--(A) Escape or attempted escape, 
except as listed below--8-16 months.
    (B) If from non-secure custody with voluntary return in 6 days or 
less--<= 6 months.
    (C) If by fear or force applied to person(s), grade under (ii) but 
not less than Category Five.

    Notes: (1) If other criminal conduct is committed during the escape 
or during time spent in escape status, then time to be served for the 
escape/attempted escape shall be added to that assessed for the other 
new criminal conduct.
    (2) Time in escape status shall not be credited.

[[Page 136]]

    (3) Voluntary return is defined as returning voluntarily to the 
facility or voluntarily turning one's self in to a law enforcement 
authority as an escapee (not in connection with an arrest on other 
charges).
    (4) Non-secure custody refers to custody with no significant 
physical restraint [e.g., walkaway from a work detail outside the 
security perimeter of an institution; failure to return to any 
institution from a pass or unescorted furlough; or escape by stealth 
from an institution with no physical perimeter barrier (usually a camp 
or community corrections center)].

    (ii) Other new criminal behavior in a prison facility.

------------------------------------------------------------------------
   Severity rating in the new  criminal
       behavior (from Sec. 2.20)                Guideline range
------------------------------------------------------------------------
Category One.............................  <<=8 months.
Category Two.............................  <<=10 months.
Category Three...........................  12-16 months.
Category Four............................  20-26 months.
Category Five............................  36-48 months.
Category Six.............................  52-64 months.
Category Seven...........................  64-92 months.
Category Eight...........................  120+ months.
------------------------------------------------------------------------


    Note: Grade unlawful possession of a firearm or explosives in a 
prison facility, other than a community corrections center, as Category 
Six. Grade unlawful possession of a firearm in a community corrections 
center as Category Four. Grade unlawful possession of a dangerous weapon 
other than a firearm or explosives (e.g., a knife) in a prison facility 
or community corrections center as Category Three.

    (3) New criminal behavior in the community (e.g., while on pass, 
furlough, work release, or on escape). In such cases, the guidelines 
applicable to reparole violators under Sec. 2.21 shall be applied, 
using the new offense severity (from Sec. 2.20) and recalculated 
salient factor score (such score shall be recalculated as if the 
prisoner had been on parole at the time of the new criminal behavior). 
The time required pursuant to these guidelines shall be added to the 
time required by the original presumptive or effective date.

    Note: Offenses committed in a prison or in a community corrections 
center that are not limited to the confines of the prison or community 
corrections center (e.g., mail fraud of a victim outside the prison) are 
graded as new criminal behavior in the community.

    (b) The above are merely guidelines. Where the circumstances 
warrant, a decision outside the guidelines (above or below) may be 
rendered provided specific reasons are given. For example, a substantial 
period of good conduct since the last disciplinary infraction in cases 
not involving new criminal conduct may be treated as a mitigating 
circumstance.

[45 FR 59871, Sept. 11, 1980, as amended at 51 FR 32072, Sept. 9, 1986; 
52 FR 5763, Feb. 26, 1987; 52 FR 17399, May 8, 1987; 64 FR 59623, Nov. 
3, 1999; 68 FR 41530, July 14, 2003]



Sec. 2.37  Disclosure of information concerning parolees; Statement of policy.

    (a) Information concerning a parolee under the Commission's 
supervision may be disclosed to a person or persons who may be exposed 
to harm through contact with that particular parolee if such disclosure 
is deemed to be reasonably necessary to give notice that such danger 
exists.
    (b) Information concerning parolees may be released by a Chief U.S. 
Probation Officer to a law enforcement agency (1) as deemed appropriate 
for the protection of the public or the enforcement of the conditions of 
parole or (2) pursuant to a request under 18 U.S.C. 4203(e).
    (c) Information deemed to be ``public sector'' information may be 
disclosed to third parties without the consent of the file subject. 
Public sector information encompasses the following:
    (1) Name;
    (2) Register number;
    (3) Offense of conviction;
    (4) Past and current places of incarceration;
    (5) Age;
    (6) Sentence data on the Bureau of Prisons sentence computation 
record (BP-5);
    (7) Date(s) of parole and parole revocation hearings; and
    (8) The decision(s) rendered by the Commission following a parole or 
parole revocation proceeding, including the dates of continuances and 
parole dates. An inmate's designated future place of incarceration is 
not public information.

[47 FR 13521, Mar. 31, 1982, as amended at 52 FR 33408, Sept. 3, 1987; 
63 FR 25772, May 11, 1998]

[[Page 137]]



Sec. 2.38  Community supervision by U.S. Probation Officers.

    (a) Pursuant to sections 3655 and 4203(b)(4) of title 18 of the U.S. 
Code, U.S. Probation Officers shall provide such parole services as the 
Commission may request. In conformity with the foregoing, probation 
officers function as parole officers and provide supervision to persons 
released by parole or as if on parole (mandatory release) under the 
Commission's jurisdiction.
    (b) A parolee may be transferred to a new district of supervision 
with the permission of the probation officers of both the transferring 
and receiving district, provided such transfer is not contrary to 
instructions from the Commission.

[44 FR 3409, Jan. 16, 1979]



Sec. 2.39  Jurisdiction of the Commission.

    (a) Jurisdiction of the Commission over a parolee shall terminate no 
later than the date of expiration of the maximum term or terms for which 
he was sentenced, except as provided by Sec. 2.35, Sec. 2.43, or Sec. 
2.52.
    (b) The parole of any parolee shall run concurrently with the period 
of parole or probation under any other Federal, State, or local 
sentence.
    (c) Upon the termination of jurisdiction, the Commission shall issue 
a certificate of discharge to such parolee and to such other agencies as 
it may determine.

[42 FR 39809, Aug. 5, 1977, as amended at 48 FR 22919, May 23, 1983]



Sec. 2.40  Conditions of release.

    (a) General conditions of release. (1) The conditions set forth in 
Sec. 2.204(a)(3)-(6) apply for the reasons set forth in Sec. 
2.204(a)(1). These conditions are printed on the certificate of release 
issued to each releasee.
    (2)(i) The refusal of a prisoner who has been granted a parole date 
to sign the certificate of release (or any other document necessary to 
fulfill a condition of release) constitutes withdrawal of that 
prisoner's application for parole as of the date of refusal. To be 
considered for parole again, that prisoner must reapply for parole 
consideration.
    (ii) A prisoner who is released to supervision through good-time 
deduction who refuses to sign the certificate of release is nevertheless 
bound by the conditions set forth in that certificate.
    (b) Special conditions of release. (1) The Commission may impose a 
condition other than one of the general conditions of release if the 
Commission determines that such condition is necessary to protect the 
public from further crimes by the releasee and to provide adequate 
supervision of the releasee. Examples of special conditions of release 
that the Commission frequently imposes are found at Sec. 2.204(b)(2).
    (2) If the Commission requires the releasee's participation in a 
drug-treatment program, the releasee must submit to a drug test before 
release and to at least two other drug tests, as determined by the 
supervision officer. A decision not to impose this special condition, 
because available information indicates a low risk of future substance 
abuse by the releasee, shall constitute good cause for suspension of the 
drug testing requirements of 18 U.S.C. 4209(a). A grant of parole or 
reparole is contingent upon the prisoner passing all pre-release drug 
tests administered by the Bureau of Prisons.
    (c) Changing conditions of release. The provisions of Sec. 2.204(c) 
apply.
    (d) Appeal. A releasee may appeal under Sec. 2.26 an order to 
impose or modify a release condition not later than 30 days after the 
date the condition is imposed or modified.
    (e) Application of release conditions to absconder. The provisions 
of Sec. 2.204(d) apply.
    (f) Revocation for possession of a controlled substance. If the 
Commission finds after a revocation hearing that a releasee, released 
after December 31, 1988, has possessed a controlled substance, the 
Commission shall revoke parole or mandatory release. If such a releasee 
fails a drug test, the Commission shall consider appropriate 
alternatives to revocation. The Commission shall not revoke parole on 
the basis of a single, unconfirmed positive drug test, if the releasee 
challenges the test result and there is no other violation found by the 
Commission to justify revocation.
    (g) Supervision officer guidance. The provisions of Sec. 2.204(f) 
apply.

[[Page 138]]

    (h) Definitions. For purposes of this section--
    (1) The terms supervision officer, domestic violence crime, approved 
offender-rehabilitation program and firearm, as used in Sec. 2.204, 
have the meanings given those terms by Sec. 2.204(g);
    (2) The term releasee, as used in this section and in Sec. 2.204 
means a person convicted of a federal offense who has been released on 
parole or released through good-time deduction; and
    (3) The term certificate of release, as used in this section and 
Sec. 2.204, means the certificate of parole or mandatory release 
delivered to the prisoner under Sec. 2.29.

[68 FR 41699, July 15, 2003]



Sec. 2.41  Travel approval.

    (a) The probation officer may approve travel outside the district 
without approval of the Commission in the following situations:
    (1) Vacation trips not to exceed thirty days.
    (2) Trips, not to exceed thirty days, to investigate reasonably 
certain employment possibilities.
    (3) Recurring travel across a district boundary, not to exceed fifty 
miles outside the district, for purpose of employment, shopping, or 
recreation.
    (b) Specific advance approval by the Commission is required for all 
foreign travel, employment requiring recurring travel more than fifty 
miles outside the district (except employment at offshore locations), 
and vacation travel outside the district exceeding thirty days. A 
request for such permission shall be in writing and must demonstrate a 
substantial need for such travel.
    (c) A special condition imposed by the Regional Commissioner 
prohibiting certain travel shall supersede any general rules relating to 
travel as set forth above.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 48 
FR 9247, Mar. 4, 1983; 57 FR 59916, Dec. 17, 1992]



Sec. 2.42  Probation officer's reports to Commission.

    A supervision report shall be submitted by the responsible probation 
officer to the Commission for each parolee after the completion of 24 
months of continuous supervision and annually thereafter. The probation 
officer shall submit such additional reports as the Commission may 
direct.

[51 FR 11017, Apr. 1, 1986]



Sec. 2.43  Early termination.

    (a)(1) Upon its own motion or upon request of a parolee, the 
Commission may terminate a parolee's supervision, and legal custody over 
the parolee, before the sentence expires.
    (2) The Commission may terminate supervision of a committed youth 
offender after the offender serves one year on supervision. Upon 
terminating supervision before the sentence expires, the Commission 
shall set aside the committed youth offender's conviction and issue a 
certificate setting aside the conviction instead of a certificate of 
termination.
    (b) Two years after releasing a prisoner on supervision, and at 
least annually thereafter, the Commission shall review the status of the 
parolee to determine the need for continued supervision. The Commission 
shall also conduct a status review whenever the supervision officer 
recommends early termination of the parolee's supervision.
    (c) Five years after releasing a prisoner on supervision, the 
Commission shall terminate supervision over the parolee unless the 
Commission determines, after a hearing, that such supervision should not 
be terminated because there is a likelihood that the parolee will engage 
in conduct violating any criminal law. If the Commission does not 
terminate supervision under this paragraph, the parolee may request a 
hearing annually thereafter, and the Commission shall conduct an early 
termination hearing at least every two years.
    (d) In calculating the two-year and five-year periods provided in 
paragraphs (b) and (c) of this section, the Commission shall not include 
any period of parole before the most recent release, or any period 
served in confinement on any other sentence.
    (e) A parolee may appeal an adverse decision under paragraph (b) of 
this section under Sec. 2.26 or Sec. 2.27 as applicable.

[[Page 139]]

    (f) If the case is designated for the original jurisdiction of the 
Commission, a decision to terminate supervision under paragraphs (a)(2) 
and (b) of this section, or a decision to terminate or continue 
supervision under paragraph (c) of this section shall be made under the 
provisions of Sec. 2.17.
    (g)(1) In determining whether to grant early termination from 
supervision, the Commission shall consider the guidelines of this 
paragraph. The guidelines are advisory and the Commission may disregard 
the outcome indicated by the guidelines based on case-specific factors. 
Termination of supervision is indicated if the parolee:
    (i) Has a salient factor score in the very good risk category and 
has completed two continuous years of supervision free from an incident 
of new criminal behavior or serious parole violation; or
    (ii) Has a salient factor score in a risk category other than very 
good and has completed three continuous years of supervision free from 
an incident of new criminal behavior or serious parole violation.
    (2) As used in this paragraph, the term ``an incident of new 
criminal behavior or serious parole violation'' includes a new arrest or 
report of a parole violation if supported by substantial evidence of 
guilt, even if no conviction or parole revocation results. The 
Commission shall not terminate supervision of a parolee until it 
determines the disposition of a pending criminal charge.
    (h) Case-specific factors that may justify a departure either above 
or below the early termination guidelines may relate to the current 
behavior of the parolee, or to the parolee's background and criminal 
history.

[74 FR 28604, June 17, 2009; 74 FR 29940, June 24, 2009]



Sec. 2.44  Summons to appear or warrant for retaking of parolee.

    (a) If a parolee is alleged to have violated the conditions of his 
release, and satisfactory evidence thereof is presented, the Commission 
or a member thereof may:
    (1) Issue a summons requiring the offender to appear for a 
preliminary interview or local revocation hearing.
    (2) Issue a warrant for the apprehension and return of the offender 
to custody.

A summons or warrant may be issued or withdrawn only by the Commission, 
or a member thereof.
    (b) Any summons or warrant under this section shall be issued as 
soon as practicable after the alleged violation is reported to the 
Commission, except when delay is deemed necessary. Issuance of a summons 
or warrant may be withheld until the frequency or seriousness of 
violations, in the opinion of the Commission, requires such issuance. In 
the case of any parolee charged with a criminal offense and awaiting 
disposition of the charge, issuance of a summons or warrant may be 
withheld, a warrant may be issued and held in abeyance, or a warrant may 
be issued and a detainer may be placed.
    (c) A summons or warrant may be issued only within the prisoner's 
maximum term or terms except that in the case of a prisoner released as 
if on parole pursuant to 18 U.S.C. 4164, such summons or warrant may be 
issued only within the maximum term or terms, less one hundred eighty 
days. A summons or warrant shall be considered issued when signed and 
either--
    (1) Placed in the mail or
    (2) Sent by electronic transmission to the intended authorities.
    (d) The issuance of a warrant under this section operates to bar the 
expiration of the parolee's sentence. Such warrant maintains the 
Commission's jurisdiction to retake the parolee either before or after 
the normal expiration date of the sentence and to reach a final decision 
as to revocation of parole and forfeiture of time pursuant to Sec. 
2.52(c).
    (e) A summons or warrant issued pursuant to this section shall be 
accompanied by a statement of the charges against the parolee, the 
applicable procedural rights under the Commission's regulations and the 
possible actions which may be taken by the Commission. A summons shall 
specify the time and place the parolee shall appear for a revocation 
hearing. Failure to appear

[[Page 140]]

in response to a summons shall be grounds for issuance of a warrant.

[42 FR 39809, Aug. 5, 1977, as amended at 45 FR 84055, Dec. 22, 1980; 54 
FR 11688, Mar. 21, 1989; 63 FR 25771, May 11, 1998]



Sec. 2.45  Same; youth offenders.

    (a) In addition to the issuance of a summons or warrant pursuant to 
Sec. 2.44 of this part, the Commission or a member thereof, when of the 
opinion that a youth offender will be benefited by further treatment in 
an institution or other facility, may direct his return to custody or 
issue a warrant for his apprehension and return to custody.
    (b) Upon his return to custody, such youth offender shall be 
scheduled for a revocation hearing.



Sec. 2.46  Execution of warrant and service of summons.

    (a) Any officer of any Federal correctional institution or any 
Federal officer authorized to serve criminal process within the United 
States, to whom a warrant is delivered shall execute such warrant by 
taking the parolee and returning him to the custody of the Attorney 
General.
    (b) On arrest of the parolee the officer executing the warrant shall 
deliver to him a copy of the Warrant Application listing the charges 
against the parolee, the applicable procedural rights under the 
Commission's regulations and the possible actions which may be taken by 
the Commission.
    (c) If execution of the warrant is delayed pending disposition of 
local charges, for further investigation, or for some other purpose, the 
parolee is to be continued under supervision by the probation officer 
until the normal expiration of the sentence, or until the warrant is 
executed, whichever first occurs. Monthly supervision reports are to be 
submitted, and the parolee must continue to abide by all the conditions 
of release.
    (d) A summons to appear at a preliminary interview or revocation 
hearing shall be served upon the parolee in person by delivering to the 
parolee a copy of the summons. Service shall be made by any Federal 
officer authorized to serve criminal process within the United States, 
and certification of such service shall be returned to the appropriate 
regional office of the Commission.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3409, Jan. 16, 1979]



Sec. 2.47  Warrant placed as a detainer and dispositional review.

    (a) When a parolee is serving a new sentence in a federal, state or 
local institution, a parole violation warrant may be placed against him 
as a detainer.
    (1) If the prisoner is serving a new sentence in a federal 
institution, a revocation hearing shall be scheduled within 120 days of 
notification of placement of the detainer, or as soon thereafter as 
practicable, provided the prisoner is eligible for and has applied for 
an initial hearing on the new sentence, or is serving a new sentence of 
one year or less. In any other case, the detainer shall be reviewed on 
the record pursuant to paragraph (a)(2) of this section.
    (2) If the prisoner is serving a new sentence in a state or local 
institution, the violation warrant shall be reviewed by the Regional 
Commissioner not later than 180 days following notification to the 
Commission of such placement. The parolee shall receive notice of the 
pending review, and shall be permitted to submit a written application 
containing information relative to the disposition of the warrant. He 
shall also be notified of his right to request counsel under the 
provisions of Sec. 2.48(b) to assist him in completing this written 
application.
    (b) If the prisoner is serving a new federal sentence, the Regional 
Commissioner, following a dispositional record review, may:
    (1) Pursuant to the general policy of the Commission, let the 
warrant stand as a detainer and order that the revocation hearing be 
scheduled to coincide with the initial hearing on the new federal 
sentence or upon release from the new sentence, whichever comes first;
    (2) Withdraw the warrant, and either order reinstatement of the 
parolee to supervision upon release from confinement or close the case 
if the expiration date has passed.
    (c) If the prisoner is serving a new state or local sentence, the 
Regional

[[Page 141]]

Commissioner, following a dispositional record review may:
    (1) Withdraw the detainer and order reinstatement of the parolee to 
supervision upon release from custody, or close the case if the 
expiration date has passed.
    (2) Order a revocation hearing to be conducted by a hearing examiner 
or an official designated by the Regional Commissioner at the 
institution in which the parolee is confined.
    (3) Let the detainer stand and order further review at an 
appropriate time. If the warrant is not withdrawn and no revocation 
hearing is conducted while the prisoner is in state or local custody, an 
institutional revocation hearing shall be conducted after the prisoner's 
return to federal custody.
    (d) Revocation hearings pursuant to this section shall be conducted 
in accordance with the provisions governing institutional revocation 
hearings, except that a hearing conducted at a state or local facility 
may be conducted by a hearing examiner, hearing examiner panel, or other 
official designated by the Regional Commissioner. Following a revocation 
hearing conducted pursuant to this section, the Commission may take any 
action specified in Sec. 2.52.
    (e)(1) A parole violator whose parole is revoked shall be given 
credit for all time in federal, state, or local confinement on a new 
offense for purposes of satisfaction of the reparole guidelines at Sec. 
2.20 and Sec. 2.21.
    (2) However, it shall be the policy of the Commission that the 
revoked parolee's original sentence (which due to the new conviction, 
stopped running upon his last release from federal confinement on 
parole) again start to run only upon release from the confinement 
portion of the new sentence or the date of reparole granted pursuant of 
these rules, whichever comes first. This subsection does not apply to 
cases where, by law, the running of the original sentence is not 
interrupted by a new conviction (e.g., YCA; NARA; Mexican or Canadian 
treaty cases).
    (f) If a Regional Commissioner determines that additional 
information is required in order to make a decision pursuant to 
paragraph (a)(2) of this section, he may schedule a dispositional 
hearing at the state or local institution where the parolee is confined 
to obtain such information. Such hearing may be conducted by a hearing 
examiner, hearing examiner panel, or other official designated by the 
Regional Commissioner. The parolee shall have notice of such hearing, be 
allowed to testify in his behalf, and have opportunity for counsel as 
provided in Sec. 2.48(b).

[52 FR 17400, May 8, 1987, as amended at 61 FR 33657, June 28, 1996]



Sec. 2.48  Revocation: Preliminary interview.

    (a) Interviewing officer. A parolee who is retaken on a warrant 
issued by a Commissioner shall be given a preliminary interview by an 
official designated by the Regional Commissioner to enable the 
Commission to determine if there is probable cause to believe that the 
parolee has violated his parole as charged, and if so, whether a 
revocation hearing should be conducted. The official designated to 
conduct the preliminary interview may be a U.S. Probation Officer in the 
district where the prisoner is confined, provided he is not the officer 
who recommended that the warrant be issued.
    (b) Notice and opportunity to postpone interview. At the beginning 
of the preliminary interview, the interviewing officer shall ascertain 
that the Warrant Application has been given to the parolee as required 
by Sec. 2.46(b), and shall advise the parolee that he may have the 
preliminary interview postponed in order to obtain representation by an 
attorney or arrange for the attendance of witnesses. The parolee shall 
also be advised that if he cannot afford to retain an attorney he may 
apply to a U.S. District Court for appointment of counsel to represent 
him at the preliminary interview and the revocation hearing pursuant to 
18 U.S.C. 3006A. In addition, the parolee may request the Commission to 
obtain the presence of persons who have given information upon which 
revocation may be based. Such adverse witnesses shall be requested to 
attend the preliminary interview unless the parolee admits a violation 
or has been convicted of a new offense while on supervision or unless 
the interviewing officer finds good

[[Page 142]]

cause for their non-attendance. Pursuant to Sec. 2.51 a subpoena may 
issue for the appearance of adverse witnesses or the production of 
documents.
    (c) Review of the charges. At the preliminary interview, the 
interviewing officer shall review the violation charges with the 
parolee, apprise the parolee of the evidence which has been presented to 
the Commission, receive the statements of witnesses and documentary 
evidence on behalf of the parolee, and allow cross-examination of those 
witnesses in attendance. Disclosure of the evidence presented to the 
Commission shall be made pursuant to Sec. 2.50(d).
    (d) At the conclusion of the preliminary interview, the interviewing 
officer shall inform the parolee of his recommended decision as to 
whether there is probable cause to believe that the parolee has violated 
the conditions of his release, and shall submit to the Commission a 
digest of the interview together with his recommended decision.
    (1) If the interviewing officer's recommended decision is that no 
probable cause may be found to believe that the parolee has violated the 
conditions of his release, the responsible Regional Commissioner shall 
review such recommended decision and notify the parolee of his final 
decision concerning probable cause as expeditiously as possible 
following receipt of the interviewing officer's digest. A decision to 
release the parolee shall be implemented without delay.
    (2) If the interviewing officer's recommended decision is that 
probable cause may be found to believe that the parolee has violated a 
condition (or conditions) of his release, the responsible Regional 
Commissioner shall notify the parolee of his final decision concerning 
probable cause within 21 days of the date of the preliminary interview.
    (3) Notice to the parolee of any final decision of a Regional 
Commissioner finding probable cause and ordering a revocation hearing 
shall state the charges upon which probable cause has been found and the 
evidence relied upon.
    (e) Release notwithstanding probable cause. If the Commission finds 
probable cause to believe that the parolee has violated the conditions 
of his release, reinstatement to supervision or release pending further 
proceeding may nonetheless be ordered if it is determined that:
    (1) Continuation of revocation proceedings is not warranted despite 
the violations found; or
    (2) Incarceration pending further revocation proceedings is not 
warranted by the alleged frequency or seriousness of such violation or 
violations, and that the parolee is not likely to fail to appear for 
further proceedings, and that the parolee does not constitute a danger 
to himself or others.
    (f) Conviction as probable cause. Conviction of a Federal, State, or 
local crime committed subsequent to release by a parolee shall 
constitute probable cause for the purposes of this section and no 
preliminary interview shall be conducted unless otherwise ordered by the 
Regional Commissioner.
    (g) Local revocation hearing. A postponed preliminary interview may 
be conducted as a local revocation hearing by an examiner panel or other 
interviewing officer designated by the Regional Commissioner provided 
that the parolee has been advised that the postponed preliminary 
interview will constitute his final revocation hearing.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16, 
1979; 46 FR 42842, Aug. 25, 1981; 47 FR 25735, June 15, 1982]



Sec. 2.49  Place of revocation hearing.

    (a) If the parolee requests a local revocation hearing, he shall be 
given a revocation hearing reasonably near the place of the alleged 
violation(s) or arrest, if the following conditions are met:
    (1) The parolee has not been convicted of a crime committed while 
under supervision; and
    (2) The parolee denies that he has violated any condition of his 
release.
    (b) The parolee shall also be given a local revocation hearing if he 
admits (or has been convicted of) one or more charged violations, but 
denies at least one unadjudicated charge that may be determinative of 
the Commission's decision regarding revocation and/or reparole, and 
requests the presence of

[[Page 143]]

one or more adverse witnesses regarding that contested charge. If the 
appearance of such witness at the hearing is precluded by the Commission 
for good cause, a local revocation hearing shall not be ordered.
    (c) If there are two or more alleged violations, the hearing may be 
conducted near the place of the violation chiefly relied upon as a basis 
for the issuance of the warrant or summons as determined by the Regional 
Commissioner.
    (d)(1) A parolee shall be given an institutional revocation hearing 
upon the parolee's return or recommitment to an institution if the 
parolee:
    (i) Voluntarily waives the right to a local revocation hearing; or
    (ii) Admits (or has been convicted of) one or more charged 
violations without contesting any unadjudicated charge that may be 
determinative of the Commission's decision regarding revocation and/or 
reparole.
    (2) On his own motion, the Regional Commissioner may designate any 
case described in paragraph (d)(1) of this section for a local 
revocation hearing. The difference in procedures between a ``local 
revocation hearing'' and an ``institutional revocation hearing'' is set 
forth in Sec. 2.50(c).
    (e) A parolee retaken on a warrant issued by the Commission shall be 
retained in custody until final action relative to revocation of his 
release, unless otherwise ordered by the Regional Commissioner under 
Sec. 2.48(e)(2). A parolee who has been given a revocation hearing 
pursuant to the issuance of a summons under Sec. 2.44 shall remain on 
supervision pending the decision of the Commission.
    (f) A local revocation hearing shall be scheduled to be held within 
sixty days of the probable cause determination. Institutional revocation 
hearings shall be scheduled to be held within ninety days of the date of 
the execution of the violator warrant upon which the parolee was 
retaken. However, if a parolee requests and receives any postponement or 
consents to a postponed revocation proceeding, or if a parolee by his 
actions otherwise precludes the prompt conduct of such proceedings, the 
above-stated time limits may be extended. A local revocation hearing may 
be conducted by a hearing examiner, hearing examiner panel, or other 
official designated by the Regional Commissioner.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3409, Jan. 16, 
1979; 68 FR 41530, July 14, 2003]



Sec. 2.50  Revocation hearing procedure.

    (a) The purpose of the revocation hearing shall be to determine 
whether the parolee has violated the conditions of his release and, if 
so, whether his parole or mandatory release should be revoked or 
reinstated.
    (b) The alleged violator may present witnesses, and documentary 
evidence in his behalf. However, the presiding hearing officer or 
examiner panel may limit or exclude any irrelevant or repetitious 
statement or documentary evidence.
    (c) At a local revocation hearing, the Commission may on the request 
of the alleged violator or on its own motion, request the attendance of 
persons who have given statements upon which revocation may be based. 
Those witnesses who are present shall be made available for questioning 
and cross-examination in the presence of the alleged violator unless the 
presiding hearing officer or examiner panel finds good cause for their 
non-attendance. Adverse witnesses will not be requested to appear at 
institutional revocation hearings.
    (d) All evidence upon which the finding of violation may be based 
shall be disclosed to the alleged violator at or before the revocation 
hearing. The hearing officer or examiner panel may disclose documentary 
evidence by permitting the alleged violator to examine the document 
during the hearing, or where appropriate, by reading or summarizing the 
document in the presence of the alleged violator.
    (e) In lieu of an attorney, an alleged violator may be represented 
at a revocation hearing by a person of his choice. However, the role of 
such non-attorney representative shall be limited to offering a 
statement on the alleged violator's behalf with regard to reparole or 
reinstatement to supervision.

[[Page 144]]

    (f) A revocation decision may be appealed under the provisions of 
Sec. 2.26 or Sec. 2.27 as applicable.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, Jan. 16, 1979; 51 
FR 32785, Sept. 16, 1986; 52 FR 33409, Sept. 3, 1987]



Sec. 2.51  Issuance of a subpoena for the appearance of witnesses or
production of documents.

    (a)(1) Preliminary interview or local revocation hearing: If any 
person who has given information upon which revocation may be based 
refuses, upon request by the Commission to appear, the Regional 
Commissioner may issue a subpoena for the appearance of such witness. 
Such subpoena may also be issued at the discretion of the Regional 
Commissioner in the event such adverse witness is judged unlikely to 
appear as requested.
    (2) In addition, the Regional Commissioner may, upon his own motion 
or upon a showing by the parolee that a witness whose testimony is 
necessary to the proper disposition of his case will not appear 
voluntarily at a local revocation hearing or provide an adequate written 
statement of his testimony, issue a subpoena for the appearance of such 
witness at the revocation hearing.
    (3) Both such subpoenas may also be issued at the discretion of the 
Regional Commissioner if it is deemed necessary for orderly processing 
of the case.
    (b) A subpoena issued pursuant to paragraph (a) of this section 
above may require the production of documents as well as, or in lieu of, 
a personal appearance. The subpoena shall specify the time and the place 
at which the person named therein is commanded to appear, and shall 
specify any documents required to be produced.
    (c) A subpoena may be served by any Federal officer authorized to 
serve criminal process. The subpoena may be served at any place within 
the judicial district in which the place specified in the subpoena is 
located, or any place where the witness may be found. Service of a 
subpoena upon a person named therein shall be made by delivering a copy 
thereof to such person.
    (d) If a person refuses to obey such subpoena, the Commission may 
petition a court of the United States for the judicial district in which 
the parole proceeding is being conducted, or in which such person may be 
found, to require such person to appear, testify, or produce evidence. 
The court may issue an order requiring such person to appear before the 
Commission, and failure to obey such an order is punishable by contempt.



Sec. 2.52  Revocation decisions.

    (a) Whenever a parolee is summoned or retaken by the Commission, and 
the Commission finds by a preponderance of the evidence, that the 
parolee has violated a condition of the parole, the Commission may take 
any of the following actions:
    (1) Restore the parolee to supervision including where appropriate:
    (i) Reprimand;
    (ii) Modification of the parolee's conditions of release;
    (iii) Referral to a community corrections center for all or part of 
the remainder of his original sentence; or
    (2) Revoke parole.
    (b) If parole is revoked pursuant to this section, the Commission 
shall also determine, on the basis of the revocation hearing, whether 
reparole is warranted or whether the prisoner should be continued for 
further review.
    (c) A parolee whose release is revoked by the Commission will 
receive credit on service of his sentence for time spent under 
supervision, except as provided below:
    (1) If the Commission finds that such parolee intentionally refused 
or failed to respond to any reasonable request, order, summons or 
warrant of the Commission or any agent thereof, the Commission may order 
the forfeiture of the time during which the parolee so refused or failed 
to respond, and such time shall not be credited to service of the 
sentence.
    (2) It is the Commission's interpretation of 18 U.S.C. 4210(b)(2) 
that, if a parolee has been convicted of a new offense committed 
subsequent to his release on parole, which is punishable by any term of 
imprisonment, detention, or incarceration in any penal facility, 
forfeiture of time from the date of such release to the date of 
execution of the

[[Page 145]]

warrant is an automatic statutory penalty, and such time shall not be 
credited to the service of the sentence. An actual term of confinement 
or imprisonment need not have been imposed for such conviction; it 
suffices that the statute under which the parolee was convicted permits 
the trial court to impose any term of confinement or imprisonment in any 
penal facility. If such conviction occurs subsequent to a revocation 
hearing the Commission may reopen the case and schedule a further 
hearing relative to time forfeiture and such further disposition as may 
be appropriate. However, in no event shall the violator term imposed 
under this subsection, taken together with the time served before 
release, exceed the total length of the original sentence.
    (d)(1) Notwithstanding the above, prisoners committed under the 
Narcotic Addict Rehabilitation Act or the Youth Corrections Act shall 
not be subject to any forfeiture provision, but shall serve 
uninterrupted sentences from the date of conviction, except as provided 
in Sec. 2.10 (b) and (c).
    (2) The commitment of a juvenile offender under the Federal Juvenile 
Delinquency Act may not be extended past the offender's twenty-first 
birthday unless the juvenile has attained his nineteenth birthday at the 
time of his commitment, in which case his commitment shall not exceed 
the lesser of two years or the maximum term which could have been 
imposed on an adult convicted of the same offense.
    (e) In determining whether to revoke parole for non-compliance with 
a condition of fine, restitution, court costs or assessment, and/or 
court ordered child support or alimony payment, the Parole Commission 
shall consider the parolee's employment status, earning ability, 
financial resources, and any other special circumstances that may have a 
bearing on the matter. Revocation shall not be ordered unless the 
parolee is found to be deliberately evading or refusing compliance.

           Appendix to Sec. 2.52--General Statement of Policy

    In the case of any revocation hearing conducted within the Ninth 
Circuit, the Commission will exercise discretion in determining whether 
or not to order forfeiture of all or part of the time spent on parole 
pursuant to 18 U.S.C. 4210(b)(2). The Commission's policy shall be to 
consider granting credit for time on parole in the case of a parole 
violator originally classified in the very good risk category (pursuant 
to 28 CFR 2.20) if the following conditions are met. The conviction must 
not be for a felony offense. The parole violation behavior (the offense 
of conviction plus any other violations) must be non-violent, and not 
involve a repeat of the parole violator's original offense behavior. 
Further, an adequate period of reimprisonment pursuant to the reparole 
guidelines at 28 CFR 2.21, and an adequate period of renewed supervision 
following release from reimprisonment or reinstatement to supervision, 
must be available without forfeiting street time. In the case of a 
parole violator originally classified in other than the ``very good 
risk'' category, it shall be the Commission's policy to order the 
forfeiture of all time spent on parole absent extraordinary 
circumstances. In no instance will the Commission grant credit in the 
case of a repeat violator on the current sentence.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3408, 3410, Jan. 16, 
1979; 50 FR 36422, Sept. 6, 1985; 53 FR 47187, Nov. 22, 1988; 55 FR 
42185, Oct. 18, 1990; 68 FR 41530, July 14, 2003]



Sec. 2.53  Mandatory parole.

    (a) A prisoner (including a prisoner sentenced under the Narcotic 
Addict Rehabilitation Act, Federal Juvenile Delinquency Act, or the 
provisions of 5010(c) of the Youth Corrections Act) serving a term or 
terms of 5 years or longer shall be released on parole after completion 
of two-thirds of each consecutive term or terms or after completion of 
30 years of each term or terms of more than 45 years (including life 
terms), whichever comes earlier, unless pursuant to a hearing under this 
section, the Commission determines that there is a reasonable 
probability that the prisoner will commit any Federal, State, or local 
crime or that the prisoner has frequently or seriously violated the 
rules of the institution in which he is confined. If parole is denied 
pursuant to this section, such prisoner shall serve until the expiration 
of his sentence less good time.
    (b) When feasible, at least 60 days prior to the scheduled two-
thirds date, a review of the record shall be conducted by an examiner 
panel. If a mandatory parole is ordered following this review, no 
hearing shall be conducted.

[[Page 146]]

    (c) A prisoner released on mandatory parole pursuant to this section 
shall remain under supervision until the expiration of the full term of 
his sentence unless the Commission terminates parole supervision 
pursuant to Sec. 2.43 prior to the full term date of the sentence.
    (d) A prisoner whose parole has been revoked and whose parole 
violator term is 5 years or more shall be eligible for mandatory parole 
under the provisions of this section upon completion of two-thirds of 
the violator term and shall be considered for mandatory parole under the 
same terms as any other eligible prisoner.

[43 FR 38822, Aug. 31, 1978]



Sec. 2.54  Reviews pursuant to 18 U.S.C. 4215(c).

    The Attorney General, within thirty days after entry of a Regional 
Commissioner's decision, may request in writing that the National 
Appeals Board review such decision. Within sixty days of the receipt of 
the request the National Appeals Board shall, upon the concurrence of 
two members, affirm, modify, or reverse the decision, or order a 
rehearing at the institutional or regional level. The Attorney General 
and the prisoner affected shall be informed in writing of the decision, 
and the reasons therefor.

[42 FR 39821, Aug. 5, 1977, as amended at 43 FR 17470, Apr. 25, 1978; 44 
FR 3408, Jan. 16, 1979]



Sec. 2.55  Disclosure of file prior to parole hearing.

    (a) Processing disclosure requests. At least 60 days prior to a 
hearing scheduled pursuant to 28 CFR 2.12 or 2.14 each prisoner shall be 
given notice of his right to request disclosure of the reports and other 
documents to be used by the Commission in making its determination.
    (1) The Commission's file consists mainly of documents provided by 
the Bureau of Prisons. Therefore, disclosure of documents used by the 
Commission can normally be accomplished by disclosure of documents in a 
prisoner's institutional file. Requests for disclosure of a prisoner's 
institutional file will be handled under the Bureau of Prison's 
disclosure regulations. The Bureau of Prisons has 15 days from date of 
receipt of a disclosure request to respond to that request.
    (2) A prisoner may also request disclosure of documents used by the 
Commission which are contained in the Commission's regional office file 
but not in the prisoner's institutional file.
    (3) Upon the prisoner's request, a representative shall be given 
access to the presentence investigation report reasonably in advance of 
the initial hearing, interim hearing, and a 15-year reconsideration 
hearing, pursuant and subject to the regulations of the U.S. Bureau of 
Prisons. Disclosure shall not be permitted with respect to confidential 
material withheld by the sentencing court under Rule 32(c)(3)(A), 
F.R.Crim.P.
    (b) Scope of disclosure. The scope of disclosure under this section 
is limited to reports and other documents to be used by the Commission 
in making its determination. At statutory interim hearings conducted 
pursuant to 28 CFR 2.14 the Commission only considers information 
concerning significant developments or changes in the prisoner's status 
since the initial hearing or a prior interim hearing. Therefore, 
prehearing disclosure for interim hearings will be limited to such 
information.
    (c) Exemption to disclosure (18 U.S.C. 4208(c)). A document may be 
withheld from disclosure to the extent it contains:
    (1) Diagnostic opinions which, if known to the prisoner, could lead 
to a serious disruption of his institutional program;
    (2) Material which would reveal a source of information obtained 
upon a promise of confidentiality; or
    (3) Any other information which, if disclosed, might result in harm, 
physical or otherwise to any person.
    (d) Summarizing nondisclosable documents. If any document or portion 
of a document is found by the Commission, the Bureau of Prisons or the 
originating agency to fall within an exemption to disclosure, the agency 
shall:
    (1) Identify the material to be withheld; and
    (2) State the exemption to disclosure under paragraph (c) of this 
section; and
    (3) Provide the prisoner with a summary of the basic content of the 
material withheld with as much specificity

[[Page 147]]

as possible without revealing the nondisclosable information.
    (e) Waiver of disclosure. When a timely request has been made for 
disclosure, if any document or summary of a document relevant to the 
parole determination has not been disclosed 30 days prior to the 
hearing, the prisoner shall be offered the opportunity to waive 
disclosure of such document without prejudice to his right to later 
review the document or a summary of the document. The examiner panel may 
disclose the document and proceed with the hearing so long as the 
prisoner waives his right to advance disclosure. If the prisoner chooses 
not to waive prehearing disclosure, the examiner panel shall continue 
the hearing to the next docket to permit disclosure. A continuance for 
disclosure should not be extended beyond the next hearing docket.
    (f) Late received documents. If a document containing new and 
significant adverse information is received after a parole hearing but 
before all review and appellate procedures have been concluded, the 
prisoner shall be given a rehearing on the next docket. A copy of the 
document shall be forwarded to the institution for inclusion in the 
prisoner's institutional file. The Commission shall notify the prisoner 
of the new hearing and his right to request disclosure of the document 
pursuant to this section. If a late received document provides favorable 
information, merely restates already available information or provides 
insignificant information, the case will not be reopened for disclosure.
    (g) Reopened cases. Whenever a case is reopened for a new hearing 
and there is a document the Commission intends to use in making its 
determination, a copy of the document shall be forwarded for inclusion 
in the prisoner's institutional file and the prisoner shall be informed 
of his right to request disclosure of the document pursuant to this 
section.

[50 FR 40374, Oct. 3, 1985]



Sec. 2.56  Disclosure of Parole Commission file.

    (a) Procedure. Copies of disclosable records pertaining to a 
prisoner or a parolee which are contained in the subject's Parole 
Commission file may be obtained by that prisoner or parolee upon written 
request pursuant to this section. Such requests shall be answered as 
soon as possible in the order of their receipt. Other persons may obtain 
copies of such documents only upon proof of authorization from the 
prisoner or parolee concerned or to the extent permissible under the 
Freedom of Information Act or the Privacy Act of 1974.
    (b) Scope of disclosure. Disclosure under this section shall extend 
to Commission documents concerning the prisoner or parolee making the 
request. Documents which are contained in the regional file and which 
are prepared by agencies other than the Commission which are also 
subject to the provisions of the Freedom of Information Act, shall be 
referred to the appropriate agency for a response pursuant to its 
regulations, unless the document has previously been prepared for 
disclosure pursuant to Sec. 2.55, or is fully disclosable on its face, 
or has been prepared by the Bureau of Prisons. Any Bureau of Prisons 
documents in a parole file are duplicates of records in the inmate's 
institutional file. Before referring these documents to the Bureau of 
Prisons (BOP), the Commission will ask the requestor whether he also 
wants the BOP documents in his parole file processed.
    (1) Requests that are only for a copy of the tape recording of a 
hearing will be processed ahead of requests seeking multiple documents 
from the Parole Commission file (priority processing). A requester may 
limit the scope of the request to a tape recording only (or to a tape 
recording and/or up to two documents) and thereby qualify for priority 
processing. For example, a request for the tape recording and the 
examiner's summary of a hearing qualifies for priority processing.
    (2) [Reserved]
    (c) Exemptions to disclosure. A document or segregable portion 
thereof may be withheld from disclosure to the extent it contains 
material exempt from disclosure under the Freedom of Information Act. 5 
U.S.C. 552(b)(1)-(9).
    (d) Specification of documents withheld. Documents that are withheld 
pursuant to paragraph (c) of this section shall be identified for the 
requester together with the applicable exemption for

[[Page 148]]

withholding each document or portion thereof. In addition, the requester 
must be informed of the right to appeal any non-disclosure to the Office 
of the Chairman.
    (e) Hearing record. Upon request by the prisoner or parolee 
concerned, the Commission shall make available a copy of any verbatim 
record (e.g., tape recording) which it has retained of a hearing, 
pursuant to 18 U.S.C. 4208(f).
    (f) Costs. In any case in which billable costs exceed $14.00 (based 
upon the provisions and fee schedules as set forth in the Department of 
Justice regulation 28 CFR 16.10), requesters will be notified that they 
will be required to reimburse the United States for such costs before 
copies are released.
    (g) Relation to other provisions. Disclosure under this section is 
authorized by 28 CFR 16.85 under which the Parole Commission is exempt 
from the record disclosure provisions of the Privacy Act of 1974, as 
well as certain other provisions of the Act pursuant to 5 U.S.C. 
552a(j)(2). Requests submitted under the Freedom of Information Act or 
the Privacy Act for the requester's own records will be processed under 
this section. In no event will the Commission consider satisfaction of a 
request under this section, the Freedom of Information Act, or the 
Privacy Act of 1974, to be a prerequisite to an adequate parole hearing 
under 18 U.S.C. 4208 (for which disclosure is exclusively governed by 
Sec. 2.55 of this part) or to the exercise of a parole applicant's 
appeal rights under 18 U.S.C. 4215. Provisions of the Freedom of 
Information Act not specifically addressed by these regulations 
(including the reading room) are covered by 28 CFR, part 16, subpart A.
    (h) Appeals--(1) Appeals to the Chairman. When a request for access 
to Parole Commission records or a waiver of fees has been denied in 
whole or in part, or when the Commission fails to respond to a request 
within the time limits set forth in the FOIA, the requester may appeal 
the denial of the request to the Chairman of the Commission within 
thirty days from the date of the notice denying the request. An appeal 
to the Chairman shall be made in writing and addressed to the Office of 
the Chairman, U.S. Parole Commission, 5550 Friendship Boulevard, Suite 
420, Chevy Chase, Maryland 20815.
    (2) Decision on appeal. A decision affirming in whole or in part the 
denial of a request shall include a brief statement of the reason or 
reasons for the affirmance, including each FOIA exemption relied upon 
and its relation to each record withheld, and a statement that judicial 
review of the denial is available in the U.S. district court for the 
judicial district in which the requester resides or has his principal 
place of business, the judicial district in which the requested records 
are located, or in the District of Columbia. If the denial of a request 
is reversed on appeal to the Chairman, the requester shall be so 
notified and the request shall be processed promptly by Commission staff 
in accordance with the Chairman's decision on appeal.
    (i) Expedited processing of Requests. (1) The Commission will 
provide expedited processing of a request when a requester has 
demonstrated a compelling need as defined in this section and has 
presented a statement certified by such person to be true and correct to 
the best of such person's knowledge and belief. A requester may 
demonstrate ``compelling need'' by establishing one of the following:
    (i) That failure to obtain the requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (ii) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged federal government activity.
    (2) A determination as to whether to provide expedited processing 
shall be made within ten days after the date of the request. However, 
the fact of lawful imprisonment in a correctional facility or revocation 
of parole shall not be deemed to pose an imminent threat to the life or 
physical safety of an individual. The Commission shall process as soon 
as practicable any request for records to which it has granted expedited 
processing. An administrative appeal of a denial of expedited processing 
may be made to the Chairman of the Commission within thirty days from

[[Page 149]]

the date of notice denying expedited processing.

[50 FR 40375, Oct. 3, 1985, as amended at 52 FR 47921, Dec. 17, 1987; 53 
FR 24933, July 1, 1988; 53 FR 47187, Nov. 22, 1988; 54 FR 27839, June 
30, 1989; 58 FR 51780, Oct. 5, 1993; 62 FR 51602, Oct. 2, 1997]



Sec. 2.57  Special parole terms.

    (a) The Drug Abuse Prevention and Control Act, 21 U.S.C. sections 
801 to 966, provides that, on conviction of certain offenses, mandatory 
``special parole terms'' must be imposed by the court as part of the 
sentence. This term is an additional period of supervision which 
commences upon completion of any period on parole or mandatory release 
supervision from the regular sentence; or if the prisoner is released 
without supervision, commences upon such release.
    (b) At the time of release under the regular sentence, whether under 
full term expiration or under a mandatory release certificate or a 
parole certificate, a separate Special Parole Term certificate will be 
issued to the prisoner by the Bureau of Prisons.
    (c) Should a parolee be found to have violated conditions of release 
during supervision under his regular sentence, i.e., before commencement 
of the Special Parole Term, he may be returned as a violator under his 
regular sentence; the Special Parole Term will follow unaffected, as in 
paragraph (a) of this section. Should a parolee violate conditions of 
release during the Special Parole Term he will be subject to revocation 
on the Special Parole Term as provided in Sec. 2.52, and subject to 
reparole or mandatory release under the Special Parole Term. 
Notwithstanding the provisions of Sec. 2.52(c), a special parole term 
violator whose parole is revoked shall receive no credit for time spent 
on parole pursuant to 21 U.S.C. 841(c).
    (d) If a prisoner is reparoled under the revoked Special Parole Term 
a certificate of parole to Special Parole Term is issued by the 
Commission. If the prisoner is mandatorily released under the revoked 
``special parole term'' a certificate of mandatory release to Special 
Parole Term will be issued by the Bureau of Prisons.
    (e) If regular parole or mandatory release supervision is terminated 
under Sec. 2.43, the Special Parole Term commences to run at that point 
in time. Early termination from supervision from a Special Parole Term 
may occur as in the case of a regular parole term, except that the time 
periods considered shall commence from the beginning of the Special 
Parole Term.

[42 FR 39809, Aug. 5, 1977, as amended at 44 FR 3410, Jan. 16, 1979. 
Redesignated at 44 FR 26551, May 4, 1979, as amended at 54 FR 11689, 
Mar. 21, 1989]



Sec. 2.58  Prior orders.

    Any order of the United States Board of Parole entered prior to May 
14, 1976, including, but not limited to, orders granting, denying, 
rescinding or revoking parole or mandatory release, shall be a valid 
order of the United States Parole Commission according to the terms 
stated in the order.

[42 FR 39809, Aug. 5, 1977. Redesignated at 44 FR 26551, May 4, 1979]



Sec. 2.59  Designation of a Commissioner to act as a hearing examiner.

    The Chairman may designate a Commissioner, with the Commissioner's 
consent, to serve as a hearing examiner on specified hearing dockets. 
The Commissioner who serves as a hearing examiner may not vote in the 
same proceeding as a Commissioner.

[60 FR 40094, Aug. 7, 1995]



Sec. 2.60  Superior program achievement.

    (a) Prisoners who demonstrate superior program achievement (in 
addition to a good conduct record) may be considered for a limited 
advancement of the presumptive date previously set according to the 
schedule below. Such reduction will normally be considered at an interim 
hearing or pre-release review. It is to be stressed that a clear conduct 
record is expected; this reduction applies only to cases with documented 
sustained superior program achievement over a period of 9 months or more 
in custody.
    (b) Superior program achievement may be demonstrated in areas such 
as educational, vocational, industry, or counseling programs, and is to 
be considered in light of the specifics of each

[[Page 150]]

case. A report from the Bureau of Prisons based upon successful 
completion of a residential substance abuse program of at least 500 
hours will be given prompt review by the Commission for a possible 
advancement under this section.
    (c) Upon a finding of superior program achievement, a previously set 
presumptive date may be advanced. The normal maximum advancement 
permissible for superior program achievement during the prisoner's 
entire term shall be as set forth in the following schedule. It is the 
intent of the Commission that this maximum be exceeded only in the most 
clearly exceptional cases.
    (d) Partial advancements may be given (for example, a case with 
superior program achievement during only part of the term or a case with 
both superior program achievement and minor disciplinary infraction(s)). 
Advancements may be given at different times; however, the limits set 
forth in the following schedule shall apply to the total combined 
advancement.
    (e) Schedule of Permissible Reductions for Superior Program 
Achievement.

------------------------------------------------------------------------
    Total months required by  original
             presumptive date                   Permissible reduction
------------------------------------------------------------------------
14 months or less.........................  Not applicable.
15 to 22 months...........................  Up to 1 month.
23 to 30 months...........................  Up to 2 months.
31 to 36 months...........................  Up to 3 months.
37 to 42 months...........................  Up to 4 months.
43 to 48 months...........................  Up to 5 months.
49 to 54 months...........................  Up to 6 months.
55 to 60 months...........................  Up to 7 months.
61 to 66 months...........................  Up to 8 months.
67 to 72 months...........................  Up to 9 months.
73 to 78 months...........................  Up to 10 months.
79 to 84 months...........................  Up to 11 months.
85 to 90 months...........................  Up to 12 months.
91 plus months............................  Up to 13 months. \1\
------------------------------------------------------------------------
\1\ Plus up to 1 additional month for each 6 months or fraction thereof,
  by which the original date exceeds 96 months.

    (f) For cases originally continued to expiration, the statutory good 
time date (calculated under 18 U.S.C. 4161) will be used for computing 
the maximum reduction permissible and as the base from which the 
reduction is to be subtracted for prisoners serving sentences of less 
than five years. For prisoners serving sentences of five or more, the 
two-thirds date (calculated pursuant to 18 U.S.C. 4206(d)) will be used 
for these purposes. If the prisoner's presumptive release date has been 
further reduced by extra good time (18 U.S.C. 4162) and such reduction 
equals or exceeds the reduction applicable for superior program 
achievement, the Commission will not give an additional reduction for 
superior program achievement.

[44 FR 55004, Sept. 24, 1979; 44 FR 59527, Oct. 16, 1979, as amended at 
49 FR 26580, June 28, 1984; 61 FR 4351, Feb. 6, 1996]



Sec. 2.61  Qualifications of representatives.

    (a) A prisoner or parolee may select any person to appear as his or 
her representative in any proceeding, and any representative will be 
deemed qualified unless specifically disqualified under paragraph (b) or 
(c) of this section. However, an examiner or examiner panel may bar an 
otherwise qualified representative from participating in a particular 
hearing, provided good cause for such action is found and stated in the 
record (e.g., willfully disruptive conduct during the hearing by 
repeated interruption or use of abusive language). In certain 
situations, good cause may be found in advance of the hearing (e.g., 
that the proposed representative is a prisoner in disciplinary 
segregation whose presence at the hearing would pose a risk to security, 
or has a personal interest in the case which appears to conflict with 
that of the parole applicant).
    (b) The Commission may disqualify any representative from appearing 
before it for up to a five-year period if, following a hearing, the 
Commission finds that the representative has engaged in any conduct 
which demonstrates a clear lack of personal integrity or fitness to 
practice before the Commission (including, but not limited to, 
deliberate or repetitive provision of false information to the 
Commission, or solicitation of clients on the strength of purported 
personal influence with U.S. Parole Commissioners or staff).
    (c)(1) In addition to the prohibitions contained in 18 U.S.C. 207, 
no former employee of any Federal criminal justice agency (in either the 
Executive or Judicial Branch of the Government) with the exception of 
the Federal Defender Service, shall be qualified to act

[[Page 151]]

as a representative for hire in any case before the Commission for one 
year following termination of Federal employment. However, such persons 
may be employed by, or perform consulting services for, a private firm 
or other organization providing representation before the agency, to the 
extent that such employment or service does not include the performance 
of any representational act before the Commission.
    (2) No prisoner or parolee may serve as a representative before the 
Commission, at the hire of individual clients, in any case.

[48 FR 14377, Apr. 4, 1983, as amended at 48 FR 44528, Sept. 29, 1983]



Sec. 2.62  Rewarding assistance in the prosecution of other offenders;
criteria and guidelines.

    (a) The Commission may consider as a factor in the parole release 
decision-making a prisoner's assistance to law enforcement authorities 
in the prosecution of other offenders.
    (1) The assistance must have been an important factor in the 
investigation and/or prosecution of an offender other than the prisoner. 
Other significant assistance (e.g., providing information critical to 
prison security) may also be considered.
    (2) The assistance must be reported to the Commission in sufficient 
detail to permit a full evaluation. However, no promises, express or 
implied, as to a Parole Commission reward shall be given any weight in 
evaluating a recommendation for leniency.
    (3) The release of the prisoner must not threaten the public safety.
    (4) The assistance must not have been adequately rewarded by other 
official action.
    (b) If the assistance meets the above criteria, the Commission may 
consider providing a reduction of up to one year from the presumptive 
parole date that the Commission would have deemed warranted had such 
assistance not occurred. If the prisoner would have been continued to 
the expiration of sentence, any reduction will be taken from the actual 
date of the expiration of the sentence. Reductions exceeding the one 
year limit specified above may be considered only in exceptional 
circumstances.
    (c) In the case of an eligible DC Code prisoner whose assistance 
meets the criteria of this section, the Commission may consider 
deducting a point under Category V of the Point Assignment Table at 
Sec. 2.80, in addition to any other deduction for positive program 
achievement, when considering such prisoner for parole. In the case of a 
DC Code prisoner with an unserved minimum term, the Commission may 
consider filing an application under Sec. 2.76 for a reduction of up to 
one-third of such term less applicable good time.

[52 FR 44389, Nov. 19, 1987. Redesignated at 63 FR 39176, July 21, 1998, 
as amended at 64 FR 5613, Feb. 4, 1999]



Sec. 2.63  Quorum.

    Any Commission action authorized by law may be taken on a majority 
vote of the Commissioners holding office at the time the action is 
taken.

[61 FR 55743, Oct. 29, 1996. Redesignated at 63 FR 39176, July 21, 1998]



Sec. 2.64  Youth Corrections Act.

    (a) The provisions of this section only apply to offenders serving 
sentences imposed under former 18 U.S.C. section 5010 (b) and (c).
    (b) Approval of program plans. (1) The criteria outlined in 
paragraph (d) of this section (on determining successful response to 
treatment) shall be considered in determining whether a proposed program 
plan will effectively reduce the risk to the public welfare presented by 
the YCA prisoner's release.
    (2) If the prisoner's program plan has not already been approved by 
the Commission, the examiner panel shall be given the plan at a hearing 
for review and approval. The examiners shall indicate their approval or 
disapproval of the program plan (with relevant comments and 
recommendations) in the hearing summary.
    (3) If the examiners consider the plan inadequate, they will discuss 
their concerns with institutional staff. If there is still a 
disagreement on the plan, the case will be referred to the Bureau's 
regional correctional programs administrator with the recommended 
changes. Unresolved disputes concerning the

[[Page 152]]

adequacy of the program plan shall be decided by the Regional 
Commissioner and the Regional Director of the Bureau of Prisons. The 
Regional Commissioner shall render the final decision on approving or 
disapproving each program plan on behalf of the Commission. Once the 
program plan has been approved, subsequent approvals are not necessary, 
unless significant modifications are made by institutional staff.
    (c) Parole hearings and progress reports. (1) Initial hearings shall 
be conducted in accordance with Sec. Sec. 2.12 and 2.13. The examiner 
panel will discuss with the prisoner and a staff member who is 
knowledgeable about the case the program plan and the importance of good 
conduct and program participation is setting the release date.
    (2) An interim hearing must be scheduled for an inmate every nine 
months if the inmate is serving a sentence of less than seven years. If 
the inmate is serving a sentence of seven years or more, the interim 
hearing must be scheduled every twelve months. If the inmate has been 
continued to the expiration of his sentence, and he has less than twelve 
months remaining to be served prior to his release or his transfer to a 
community corrections center, no further hearing is required. In 
addition, within 60 days of receipt of any special progress report from 
the warden recommending parole, the prisoner shall be scheduled for a 
special interim hearing, unless the recommendation can be timely 
considered at a regularly scheduled interim hearing. An institutional 
staff member who has personal knowledge of the case shall be present to 
assist the examiners in their evaluation of the prisoner's conduct, 
program performance, and response to treatment.
    (3) After any interim hearing or review on the record, the 
Commission may advance the presumptive release date, let the date stand, 
or retard/rescind the date if the prisoner has committed disciplinary 
infractions or new criminal conduct.
    (4) An interim hearing will not be scheduled after receipt of a 
progress report, if the Commission decides on the record to parole the 
prisoner as soon as a release plan is approved (normally within 60 days 
of the decision).
    (5) The institution shall send a progress report to the Commission:
    (i) No more than 60 days before each interim hearing;
    (ii) Upon determining that a prisoner should be recommended for 
parole; and
    (iii) Before presumptive parole date to allow for the pre-release 
record review under Sec. 2.14(b).

The warden may forward progress reports to the Commission at other times 
in his discretion. Progress reports shall also be sent to the Commission 
every six months for prisoners who have waived interim hearings to 
enable the Commission to verify that these prisoners have satisfied the 
conditions of securing their release on an alternative parole date 
granted under the former YCA compliance plan (i.e., completion of the 
program plan) or the normal presumptive release date (i.e., obedience to 
institutional rules).
    (6) For prisoners granted earlier parole dates under former 
compliance plans in Watts v. Bleaski: A prisoner may waive interim 
hearings under this section, in which case he would retain an 
alternative parole date previously granted to him or a presumptive 
parole date granted as a result of a finding that the prisoner had 
responded to treatment. A prisoner who waives an interim hearing under 
this section may, at any time, re-apply for the hearing and be 
considered under this section in accordance with the application/waiver 
provisions at Sec. 2.11. The Commission will not review the program 
plans for prisoners who waive interim hearings pursuant to this 
paragraph, unless the prisoner subsequently is scheduled for a hearing 
to consider new criminal conduct or a rule infraction and a modification 
of the original program plan appears warranted due to the prisoner's new 
criminal offense or infraction. If the prisoner is scheduled for a 
hearing that may not be waived (e.g., an interim hearing where there has 
been a finding of a disciplinary infraction since the last hearing, or 
any hearing scheduled pursuant to Sec. 2.28 (b) through (f), this 
section will be applied at such hearing.
    (7) Warden's recommendation. Based on the completion of the program 
by the

[[Page 153]]

prisoner, and the quality of effort demonstrated by the prisoner in 
completing the plan, the warden will recommend to the Commission a 
conditional release date for its consideration. This recommendation 
shall be accompanied by a report on the prisoner's participation and 
level of achievement in different aspects of his program.
    (d) Criteria for finding successful response to treatment programs. 
(1) In determining whether a prisoner has successfully ``responded to 
treatment'' the Commission shall examine whether the prisoner has shown 
that he has received sufficient corrective training, counseling, 
education, and therapy that the public would not be endangered by his 
release. See former 18 U.S.C. 5006(f) (definition of ``treatment'' under 
the YCA). The Bureau of Prisons shall assist the Commission in this 
determination by informing the Commission when the prisoner has 
completed his program plan and by advising the Commission of the quality 
of effort demonstrated by the prisoner in completing the plan.
    (2) In determining the extent of a prisoner's positive response to 
treatment, the Commission shall examine the degree by which the prisoner 
has increased the likelihood that his release would not jeopardize 
public welfare through his program performance and conduct record. See 
18 U.S.C. 4206(a)(2). The starting report for the analysis of a 
prisoner's response to treatment will be the original parole prognosis 
reached by the use of the salient factor score, and an evaluation of the 
nature of the prisoner's prior criminal history and other 
characteristics of the prisoner. The nature of the current offense may 
also be considered in determining the risk to the public welfare 
presented by the prisoner's release. The Commission will then proceed to 
evaluate whether the prisoner's program participation and institutional 
conduct has improved the original risk prognosis and evidences an 
alteration of his valued system, including an understanding of the 
wrongfulness of his past criminal conduct. For those prisoners who have 
exhibited serious or violent criminal behavior, the Commission will 
exercise more caution in making a finding that the prisoner has 
responded to treatment to the degree that he should be released.
    (3) With regard to program performance, significant weight will be 
given to the following factors in determining a prisoner's response to 
treatment. This is not intended as an exhaustive list.
    (i) Vocational training: Where the inmate originally had few job 
skills, the acquisition of a marketable job skill through vocational 
training or an apprenticeship program.
    (ii) Education: Participation in educational programs to acquire an 
educational level at least the level of a high school graduate.
    (iii) Psychological counseling and therapy: Where the prisoner's 
behavior has shown that he may be affected by personality disorders or a 
mental illness that has hampered his ability to lead a law-abiding life, 
or that he may otherwise benefit from such programs, participation in 
psychological and/or other specialized programs which lead to a judgment 
by the therapist/counselor that the prisoner has significantly improved 
his ability to obey the law and favorably modified his value system. 
Participation in these programs will normally be required for a 
significant advancement of the presumptive release date for a prisoner 
who has either committed or attempted a crime of violence.
    (iv) Drug/alcohol abuse programs: Where the prisoner has a history 
of drug/alcohol abuse, participation in a drug/alcohol abuse program 
which leads to the judgment by the therapist/counselor that there is a 
significant likelihood that the prisoner will not revert to drug/alcohol 
abuse and has thereby significantly improved his ability to obey the 
law.
    (v) Work: Assuming the prisoner is physically and mentally able to 
do so and is not otherwise engaged in an institutional activity which 
prevents him from obtaining a job, participation in a job on a regular 
basis so as to demonstrate a stable life pattern and a favorable 
modification of his value system.
    (4) Prison misconduct (i.e., disobedience to institutional rules, 
escape)

[[Page 154]]

and new criminal conduct in the institution shall be considered in the 
decision as to whether (or to what degree) a prisoner has successfully 
responded to treatment. The rescission guidelines of 2.36 shall be used 
in retarding or rescinding the original presumptive release date set 
according to the guidelines and the factors described in 18 U.S.C. 4206. 
If the original presumptive date has been advanced based on response to 
treatment, the rescission guidelines may also be used to retard or 
rescind the new date to maintain institutional discipline, if the 
misconduct is not deemed serious enough to affect the decision that the 
prisoner has responded to treatment. But misconduct subsequent to the 
advancement of a release date based on a finding of response to 
treatment may also result in a reversal of that finding and the 
cancellation of any advancement of the original presumptive release 
date.
    (e) Setting the parole date (balancing section 4206 factors with 
response to treatment). At any hearing or review on the record, the 
presumptive release date may be advanced if it is determined that the 
prisoner has responded to a sufficient degree to his treatment programs. 
The amount of the advancement should be proportional to the degree of 
response evidenced by the prisoner. In making the advancement, no rule 
restricting the amount of the reduction--whether based on the guidelines 
(Sec. 2.20) or the rule on superior program achievement (Sec. 2.60)--
shall be used. The decision will be the result of a case-by-case 
evaluation in which response to treatment programs, the seriousness of 
the offense, and the original parole prognosis are all weighed by the 
Commission with no one factor capable of excluding all others.
    (f) Parole violators. Parole violators returned to an institution 
following a local revocation hearing shall normally be considered for 
reparole under this section at a hearing within six months of their 
arrival at the institution.
    (g) Early termination from supervision. (1) A review of the YCA 
parolee's file will be conducted at the conclusion of each year of 
supervision (following receipt of the annual progress report--Form F-3) 
and six months prior to the expiration of his sentence (after receipt of 
the final report).
    (2) A YCA parolee shall not be continued on supervision beyond the 
time periods specified in the early termination guidelines (Sec. 2.43), 
unless case-specific factors indicate further supervision is warranted. 
The guidelines at Sec. 2.43 shall not be routinely used to deny early 
discharge to a YCA parolee who has yet to complete two (or three) years 
of clean supervision.
    (3) The Commission shall consider the facts and circumstances of 
each YCA parolee's case, focusing on the risk he poses to the public and 
the benefit he may obtain from further supervision. The nature of the 
offense and parolee's past criminal record shall be taken into account 
only to evaluate the risk that the parolee may still pose to the public.
    (4) In denying early discharge, the Commission shall inform the 
probation office by letter (with a copy to the YCA parolee) of the 
reasons for continued supervision. The reasons should pertain, whenever 
possible, to the facts and circumstances of the YCA parolee's case. If 
there are no case-specific factors which indicate that discharge should 
be either granted to denied and further supervision appears warranted, 
the Commission may inform the YCA parolee that he is continued on 
supervision because of its experience with similarly situated offenders.

[53 FR 49654, Dec. 9, 1988, as amended at 55 FR 289, Jan. 4, 1990. 
Redesignated at 63 FR 39176, July 21, 1998, and amended at 68 FR 41530, 
July 14, 2003]



Sec. 2.65  Paroling policy for prisoners serving aggregate U.S. and
D.C. Code sentences.

    (a) Applicability. This regulation applies to all prisoners serving 
any combination of U.S. and D.C. Code sentences that have been 
aggregated by the U.S. Bureau of Prisons. Such individuals are 
considered for parole on the basis of a single parole eligibility and 
mandatory release date on the aggregate sentence. Pursuant to Sec. 2.5, 
every decision made by the Commission, including the grant, denial, and 
revocation of parole, is made on the basis of the aggregate sentence.

[[Page 155]]

    (b) Basic policy. The Commission shall apply the guidelines at Sec. 
2.20 to the prisoner's U.S. Code crimes, and the guidelines of the 
District of Columbia Board of Parole to the prisoner's D.C. Code crimes.
    (c) Determining the federal guideline range. The Commission shall 
first consider the U.S. Code offenses pursuant to the guidelines at 
Sec. 2.20, and shall determine the appropriate number of months to be 
served (the prisoner's ``federal time''). The Commission shall deem the 
``federal time'' to have commenced with the prisoner's initial 
commitment on the current aggregate sentence, including jail time.
    (d) Decisions above the federal guideline range. The ``federal 
time'' thus determined may be a decision within, below or above the 
federal guidelines, but it shall not exceed the limit of the U.S. Code 
sentence, i.e., the number of months that would be required by the 
statutory release date if the U.S. Code sentence is less than five 
years, or the two-thirds date if the U.S. Code sentence is five years or 
more. The D.C. Code criminal behavior may not be used as an aggravating 
offense factor, but may be used as predictive basis for exceeding the 
federal guideline range to account for the actual degree and/or 
seriousness of risk.
    (e) Scheduling the D.C. parole hearing. The Commission shall then 
schedule a D.C. parole hearing to be conducted not later than four 
months prior to the parole eligibility date, or the expiration of the 
``federal time,'' whichever is later. At the D.C. parole hearing the 
Commission shall apply the point score system of the D.C. Board of 
Parole, pursuant to the regulations of the D.C. Board of Parole, to 
determine the prisoner's suitability for release on parole.
    (f) Granting parole. In determining whether or not to grant parole 
pursuant to the point score system of the D.C. Board of Parole, and the 
length of any continuance for a rehearing if parole is denied, the 
Commission shall presume that the eligible prisoner has satisfied basic 
accountability for the D.C. Code offense behavior. However, the 
Commission retains the authority to consider any unusual offense 
circumstances pursuant to 28 DCMR 204.22 to deny parole despite a 
favorable point score, and to set a rehearing date beyond the ordinary 
schedule. The Commission shall also consider whether the totality of the 
prisoner's offense behaviors (U.S. and D.C. Code) warrants a continuance 
to reflect the true seriousness or the degree of the risk that the 
release of the prisoner would pose for the public welfare. Nonetheless, 
the Commission shall not deny parole or order a continuance, solely on 
the ground of punishment for the U.S. Code offenses standing alone, or 
on grounds that have been adequately accounted for in a decision to 
exceed the federal guideline range.
    (g) Hearings. The Commission shall, in accordance with Sec. 2.12 of 
these regulations, conduct an initial hearing to determine the federal 
time. This portion of the decision shall be subject to appeal pursuant 
to Sec. 2.26 of these regulations. A D.C. parole hearing to determine 
the prisoner's suitability for parole under the D.C. guidelines shall be 
conducted as ordered at the initial hearing. Prior to the D.C. parole 
hearing, statutory interim hearings shall be conducted pursuant to Sec. 
2.14 of these regulations, including an interim hearing at eligibility 
on the aggregate sentence if no other interim hearing would be held. 
After the D.C. parole hearing, rehearings shall be conducted pursuant to 
the rules and policy guidelines of the D.C. Board of Parole, if release 
on parole is not granted.
    (h) Revocation decisions. Violations of parole are violations on the 
aggregate sentence, and a parole violation warrant is therefore issued 
under the authority of the aggregate sentence. With regard to the 
reparole decision, the Commission shall follow the guidelines at Sec. 
2.21 of these rules, but rehearings shall be scheduled according to the 
guidelines of the D.C. Board of Parole.
    (i) Forfeiture of parole time. All time on parole shall be forfeited 
if required under Sec. 2.52(c) and Sec. 2,105(d) of this part. If not, 
the Commission shall divide the total time on parole according to the 
proportional relationship of the DC sentence to the U.S. sentence, and 
shall order the forfeiture of the portion corresponding to the DC 
sentence pursuant to Sec. 2.105(d). For example, if the parolee is 
serving a two-year DC Code sentence and a three-year U.S. Code

[[Page 156]]

sentence, the DC sentence is two fifths, or 40 percent, of the aggregate 
sentence (five years). If the parolee was on parole 100 days and parole 
is revoked for a misdemeanor conviction, a period of 40 days is subject 
to possible forfeiture under Sec. 2.105(d).

[54 FR 27842, June 30, 1989, as amended at 57 FR 41395, 41396, Sept. 10, 
1992. Redesignated at 63 FR 39176, July 21, 1998, and amended at 68 FR 
41530, July 14, 2003; 74 FR 28604, June 17, 2009; 74 FR 29940, June 24, 
2009]



Sec. 2.66  Revocation decision without hearing.

    (a) If the releasee agrees to the decision, the Commission may make 
a revocation decision without a hearing if--
    (1) The alleged violation would be graded no higher than Category 
Two under the guidelines at Sec. 2.20;
    (2) The alleged violation is in any category under the guidelines at 
Sec. 2.20 and the decision imposes the maximum sanction authorized by 
law; or
    (3) The Commission determines that the releasee has already served 
sufficient time in custody as a sanction for the violation but that 
forfeiture of time on parole is necessary to provide an adequate period 
of supervision.
    (b) A releasee who agrees to such a disposition shall indicate such 
agreement by--
    (1) Accepting the decision proposed by the Commission in the Notice 
of Eligibility for Expedited Revocation Procedure that the Commission 
sent to the releasee, thereby agreeing that the releasee does not 
contest the validity of the charge and waives a revocation hearing; or
    (2) Offering in writing, before the finding of probable cause or at 
a probable cause hearing, not to contest the validity of the charge, to 
waive a revocation hearing, and to accept a decision that is at the 
bottom of the applicable guideline range as determined by the Commission 
if the violation would be graded no higher than Category Two under the 
guidelines at Sec. 2.20, or is the maximum sanction authorized by law.
    (c) An alleged violator's agreement under this provision shall not 
preclude the Commission from taking any action authorized by law or 
limit the statutory consequences of a revocation decision.

[72 FR 53115, Sept. 18, 2007]



            Subpart B_Transfer Treaty Prisoners and Parolees



Sec. 2.68  Prisoners transferred pursuant to treaty.

    (a) Applicability, jurisdiction and statutory interpretation. (1) 
Prisoners transferred pursuant to treaty (transferees) who committed 
their offenses on or after November 1, 1987, shall receive a special 
transferee hearing pursuant to the procedures found in this section and 
18 U.S.C. 4106A. Transferees who committed their offenses prior to 
November 1, 1987, are immediately eligible for parole and shall receive 
a parole hearing pursuant to procedures found at 28 CFR 2.13. The Parole 
Commission shall treat the foreign conviction as though it were a lawful 
conviction in a United States District Court.
    (2) The jurisdiction of the Commission to set a release date and 
periods and conditions of supervised release extends until the 
transferee is released from prison or the transferee's case is otherwise 
transferred to a district court pursuant to an order of the Commission.
    (3) It is the Commission's interpretation of 18 U.S.C. 4106A that 
every transferee is entitled to a release date determination by the 
Commission after considering the applicable sentencing guidelines in 
effect at the time of the hearing. Upon release from imprisonment the 
transferee may be required to serve a period of supervised release 
pursuant to section 5D1.2 of the sentencing guidelines. The combination 
of the period of imprisonment that results from the release date set by 
the Commission and the period of supervised release shall not exceed the 
full term of the sentence imposed by the foreign court. The combined 
periods of imprisonment and supervised release may be less than the full 
term of the sentence imposed by the foreign court unless the applicable 
treaty is found to require otherwise.
    (4) The applicable offense guideline provision is determined by 
selecting the offense in the U.S. Code that is

[[Page 157]]

most similar to the offense for which the transferee was convicted in 
the foreign court. In so doing, the Commission considers itself required 
by law and treaty to respect the offense definitions contained in the 
foreign criminal code under which the prisoner was convicted, as well as 
the official documents supplied by the foreign court.
    (5) The release date that is determined by the Commission under 18 
U.S.C. 4106A(b)(1)(A) is a prison release determination and does not 
represent the imposition of a new sentence for the transferee. However, 
the release date shall be treated by the Bureau of Prisons as if it were 
the full term date of a sentence for the purpose of establishing a 
release date pursuant to 18 U.S.C. 4105(c)(1). The Bureau of Prisons 
release date shall supersede the release date established by the Parole 
Commission under 18 U.S.C. 4106A and shall be the date upon which the 
transferee's period of supervised release commences. If the Commission 
has ordered ``continue to expiration,'' the 4106A release date is the 
same as the full term date of the foreign sentence. It is the 
Commission's interpretation of 18 U.S.C. 4105(c)(1) that the deduction 
of service credits in either case does not operate to reduce the foreign 
sentence or otherwise limit the Parole Commission's authority to 
establish a period of supervised release extending from the date of 
actual release from prison to the full term date of the foreign 
sentence.
    (6) If the Commission sets a release date under 18 U.S.C. 
4106A(b)(1)(A) that is earlier than the mandatory release date 
established by the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then 
the release date set by the Commission controls. If the release date set 
by the Commission under 18 U.S.C. 4106A(b)(1)(A) is equal to or later 
than the mandatory release date established by the Bureau of Prisons 
under 18 U.S.C. 4105(c)(1), then the mandatory release date established 
by the Bureau of Prisons controls.
    (7) It is the Commission's interpretation of 18 U.S.C. 4106A that 
U.S. Code provisions for mandatory minimum terms of imprisonment and 
supervised release, as well as sentencing guideline provisions 
implementing such U.S. Code requirements (e.g., section 5G1.1(b) of the 
sentencing guidelines), were not intended by Congress to be applicable 
in an 18 U.S.C. 4106A(b)(1)(A) determination. Alternatively, it is the 
Commission's position that there is good cause in every transfer treaty 
case for a departure from any statutorily required minimum sentence 
provision in the sentencing guidelines, including section 5G1.1(b) of 
the sentencing guidelines, because Congress did not enact mandatory 
sentence laws with transferees in mind. Thus, in every transfer treaty 
case, the release date will be determined through an exercise of 
Commission discretion, according to the sentencing guideline range that 
is derived from a case-specific ``similar offense'' determination, 
rather than by reference to any provision concerning mandatory minimum 
sentences of imprisonment or terms of supervised release.
    (b) Interview upon entry. Following the transferee's entry into the 
United States, the transferee shall, without unnecessary delay, be 
interviewed by a United States Probation Officer who shall inform the 
transferee of his rights under this regulation. The transferee shall be 
given the appropriate forms for appointment of counsel pursuant to 18 
U.S.C. 3006(A) at the interview if appointment of counsel is requested.
    (c) Postsentence report. A postsentence investigation report, which 
shall include an estimated sentencing classification and sentencing 
guideline range, shall be prepared by the probation office in the 
district of entry (or the transferee's home district). Disclosure of the 
postsentence report shall be made as soon as the report is completed, by 
delivery of a copy of the report to the transferee and his or her 
counsel (if any). Confidential material contained in the postsentence 
investigation report may be withheld pursuant to the procedures of 18 
U.S.C. 4208(c). Copies of all documents provided by the transferring 
country relating to the transferee shall be appended to the postsentence 
report when disclosed to the transferee and when transmitted to the 
Commission.
    (d) Opportunity to object. The transferee (or counsel) shall have 
thirty calendar days after disclosure of the

[[Page 158]]

postsentence report to transmit any objections to the report he or she 
may have, in writing, to the Commission with a copy to the probation 
officer. The Commission shall review the objections and may request that 
additional information be submitted by the probation officer in the form 
of an addendum to the postsentence report. Any disputes of fact or 
disputes concerning application of the sentencing guidelines shall be 
resolved at the special transferee hearing.
    (e) Special transferee hearing. A special transferee hearing shall 
be conducted within 180 days from the transferee's entry into the United 
States, or as soon as is practicable following completion of the 
postsentence report along with any corrections or addendum to the report 
and appointment of counsel for an indigent transferee.
    (1) Waivers. The transferee may waive the special transferee hearing 
on a form provided for that purpose, and the Commission may either:
    (A) Set a release date that falls within 60 days of receipt of the 
waiver and establish a period and conditions of supervised release; or
    (B) Reject the waiver and schedule a hearing.
    (2) Short-term cases. In the case of a transferee who has less than 
six months from the date of his entry into the United States to his 
release date as calculated by the Bureau of Prisons under 18 U.S.C. 
4105, the Commission may, without conducting a hearing or awaiting a 
waiver, set a release date and a period and conditions of supervised 
release. In such cases, the period of supervised release shall not 
exceed the minimum necessary to satisfy the applicable sentencing 
guideline (but may extend to the full-term of the foreign sentence if 
such period is shorter than the minimum of applicable sentencing 
guideline). The transferee may petition the Commission for a more 
favorable decision within 60 days of the Commission's determination, and 
the Commission may act upon the petition regardless of whether or not 
the transferee has been released from prison.
    (f) Representation. The transferee shall have the opportunity to be 
represented by counsel (retained by the transferee or, if financially 
unable to retain counsel, counsel shall be provided pursuant to 18 
U.S.C. 3006(A)), at all stages of the proceeding set forth in this 
section. The transferee may select a non-lawyer representative as 
provided in 28 CFR 2.61.
    (g)The decisionmaking criteria. The Commission will consider the 
United States Sentencing Guidelines as advisory guidelines in making its 
decisions, as though the transferee were convicted in a United States 
District Court of a statutory offense most nearly similar to the offense 
of which the transferee was convicted in the foreign court. The 
Commission shall take into account the offense definition under foreign 
law, the length of the sentence permitted by that law, and the 
underlying circumstances of the offense behavior, to establish a 
guideline range that fairly reflects the seriousness of the offense 
behavior committed in the foreign country.
    (h) Hearing procedures. Special transferee hearings shall be 
conducted by a hearing examiner. Each special transferee hearing shall 
be recorded by the hearing examiner. The following procedures shall 
apply at a special transferee proceeding, unless waived by the 
transferee:
    (1) The examiner shall inquire whether the transferee and his 
counsel have had an opportunity to read and discuss the postsentence 
investigation report and whether the transferee is prepared to go 
forward with the hearing. If not, the transferee shall be given the 
opportunity to continue the hearing.
    (2) The transferee shall have an opportunity to present documentary 
evidence and to testify on his own behalf.
    (3) Oral testimony of interested parties may be taken with prior 
advance permission of the Regional Commissioner.
    (4) The transferee and his counsel shall be afforded the opportunity 
to comment upon the guideline estimate contained in the postsentence 
investigation report (and the addendum, if any), and to present 
arguments and information relating to the Commission's final guideline 
determination and decision.

[[Page 159]]

    (5) Disputes of material fact shall be resolved by a preponderance 
of the evidence, with written recommended findings by the examiner 
unless the examiner determines, on the record, not to take the 
controverted matter into account.
    (6) The transferee shall be notified of the examiner's recommended 
findings of fact, and the examiner's recommended determination and 
reasons therefore, at the conclusion of the hearing. The case shall 
thereafter be reviewed by the Executive Hearing Examiner pursuant to 
Sec. 2.23, and the Commission shall make its determination upon a panel 
recommendation.
    (i) Final decision. (1) The Commission shall render a decision as 
soon as practicable and without unnecessary delay. Decisions shall be 
made upon a concurrence of two votes of the National Commissioners. The 
decision shall set a release date and a period and conditions of 
supervised release. If the Commission determines that the appropriate 
release date under 18 U.S.C. 4106A is the full term date of the foreign 
sentence, the Commission will order the transferee to ``continue to 
expiration''.
    (2) Whenever the Bureau of Prisons applies service credits under 18 
U.S.C. 4105 to a release date established by the Commission, the release 
date used by the Bureau of Prisons shall be the date established by the 
Parole Commission pursuant to the sentencing guidelines and not a date 
that resulted from any adjustment made to achieve comparable punishment 
with a similarly-situated U.S. Code offender. The application of service 
credits under 18 U.S.C. 4105 shall supersede any previous release date 
set by the Commission. The Commission may, for the purpose of 
facilitating the application of service credits by the Bureau of 
Prisons, reopen any case on the record to clarify the correct release 
date to be used, and the period of supervised release to be served.
    (3) The Commission may, in its discretion, defer a decision and 
order a rehearing, provided that a statement of the reason for ordering 
a rehearing is issued to the transferee and the transferee's counsel (if 
any).
    (4) The Commission's final decision shall be supported by a 
statement of reasons explaining:
    (i) The similar offense selected as the basis for the Commission's 
decision;
    (ii) The basis for the guideline range applied; and
    (iii) The reason for making a release determination above or below 
the guideline range. If the release date is within a guideline range 
that exceeds twenty-four months, the Commission shall identify the 
reason for the release date selected.
    (j) Appeal. The transferee shall be advised of his right to appeal 
the decision of the Commission to the United States Court of Appeals 
that has jurisdiction over the district in which the transferee is 
confined.
    (k) Reopening or modification of a determination prior to transfer 
of jurisdiction. (1) A hearing and assistance of counsel will be 
provided to the transferee whenever a case is reopened under 
subparagraphs (2), (3), (4), and (5) below unless:
    (i) Waived by the transferee; or
    (ii) The action to be taken is favorable and no factual issue must 
be resolved.
    (2) The Commission may reopen and modify a determination based upon 
information which was not previously considered. Such information must, 
however, be contained in the record of the foreign sentencing court.
    (3) The Commission may reopen and modify a determination of the 
terms and conditions of supervised release. Modifications may include 
approval or disapproval of the transferee's release plan.
    (4) The Commission shall reopen and modify a determination that has 
been found on appeal to have been imposed in violation of the law, to 
have been imposed as a result of an incorrect application of the 
sentencing guidelines, or to have been unreasonable.
    (5) The Commission may reopen and modify a determination upon 
consideration of the factors listed in section 5K1.1 of the sentencing 
guidelines if the transferee provides substantial assistance to law 
enforcement authorities, and that assistance was not previously 
considered by the Commission. The Commission will treat a request from a

[[Page 160]]

foreign or a domestic law enforcement authority as the equivalent of a 
``motion of the government.''
    (6) The Commission may modify a determination based upon a clerical 
mistake or other error in accordance with Federal Rules of Criminal 
Procedure Rule 36.
    (7) The Commission may reopen and modify the release date if it 
determines that a circumstance set forth in 18 U.S.C. 3582(c) is 
satisfied.
    (l) Supervised release. (1) If a period of supervised release is 
imposed, the Commission presumes that the recommended conditions of 
supervised release in section 5D1.3(a) and (c) of the sentencing 
guidelines, a condition requiring the transferee to report to the 
probation office within 72 hours of release from the custody of the 
Bureau of Prisons, a condition that the transferee not commit another 
Federal, state or local crime, and a condition that the transferee not 
possess a firearm or other dangerous weapon are reasonably necessary in 
every case. These conditions, therefore, shall be imposed unless the 
Commission finds otherwise. The Commission may also impose special 
conditions of supervised release whenever deemed reasonably necessary in 
an individual case.
    (2) If the transferee is released pursuant to a date established by 
the Bureau of Prisons under 18 U.S.C. 4105(c)(1), then the period of 
supervised release commences upon the transferee's release from 
imprisonment.

[54 FR 27840, June 30, 1989, as amended at 55 FR 39269, Sep. 26, 1990; 
58 FR 30705, May 27, 1993; 59 FR 26425, May 20, 1994; 60 FR 18354, Apr. 
11, 1995; 61 FR 38570, July 25, 1996; 61 FR 54096, 54097, Oct. 17, 1996; 
62 FR 40270, July 28, 1997. Redesignated at 63 FR 39176, July 21, 1998, 
and amended at 67 FR 70694, Nov. 26, 2002; 73 FR 12637, Mar. 10, 2008]



Sec. 2.69  [Reserved]



       Subpart C_District of Columbia Code: Prisoners and Parolees

    Source: 65 FR 45888, July 26, 2000, unless otherwise noted.



Sec. 2.70  Authority and functions of the U.S. Parole Commission with
respect to District of Columbia Code offenders.

    (a) The U.S. Parole Commission shall exercise authority over 
District of Columbia Code offenders pursuant to section 11231 of the 
National Capital Revitalization and Self-Government Improvement Act of 
1997, Public Law 105-33, 111 Stat. 712, and D.C. Code 24-409. The rules 
in this subpart shall govern the operation of the U.S. Parole Commission 
with respect to D.C. Code offenders and shall constitute the parole 
rules of the District of Columbia, as amended and supplemented pursuant 
to section 11231(a)(1) of the Act.
    (b) The Commission shall have sole authority to grant parole, and to 
establish the conditions of release, for all District of Columbia Code 
prisoners who are serving sentences for felony offenses, and who are 
eligible for parole by statute, including offenders who have been 
returned to prison upon the revocation of parole or mandatory release. 
(D.C. Code 24-404 and 408). The above authority shall include youth 
offenders who are committed to prison for treatment and rehabilitation 
based on felony convictions under the D.C. Code. (D.C. Code 24-904(a).)
    (c) The Commission shall have authority to recommend to the Superior 
Court of the District of Columbia a reduction in the minimum sentence of 
a District of Columbia Code prisoner, if the Commission deems such 
recommendation to be appropriate. (D.C. Code 24-401(c).)
    (d) The Commission shall have authority to grant parole to a 
prisoner who is found to be geriatric, permanently incapacitated, or 
terminally ill, notwithstanding the minimum term imposed by the 
sentencing court. (D.C. Code 24-461 through 467.)
    (e) The Commission shall have authority over all District of 
Columbia Code felony offenders who have been released to parole or 
mandatory release supervision, including the authority to return such 
offenders to prison upon an order of revocation. (D.C. Code 24-406.)

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]

[[Page 161]]



Sec. 2.71  Application for parole.

    (a) A prisoner (including a committed youth offender) desiring to 
apply for parole shall execute an application form as prescribed by the 
Commission. Such forms shall be available at each institution and shall 
be provided to a prisoner who is eligible for parole consideration. The 
Commission may then conduct an initial hearing or grant an effective 
date of parole on the record. A prisoner who receives an initial hearing 
need not apply for subsequent hearings.
    (b) To the extent practicable, the initial hearing for an eligible 
adult prisoner who has applied for parole shall be held at least 180 
days prior to such prisoner's date of eligibility for parole. The 
initial hearing for a committed youth offender shall be scheduled during 
the first 120 days after admission to the institution that is 
responsible for developing his rehabilitative program.
    (c) A prisoner may knowingly and intelligently waive any parole 
consideration on a form provided for that purpose. A prisoner who 
declines either to apply for or waive parole consideration shall be 
deemed to have waived parole consideration.
    (d) A prisoner who waives parole consideration may later apply for 
parole and be heard during the next visit of the Commission to the 
institution at which the prisoner is confined, provided that the 
prisoner has applied for parole at least 60 days prior to the first day 
of the month in which such visit of the Commission occurs. In no event, 
however, shall such prisoner be heard at an earlier date than that set 
forth in paragraph (b) of this section.



Sec. 2.72  Hearing procedure.

    (a) At the initial hearing the examiner shall review with the 
prisoner the guidelines at Sec. 2.80, and shall discuss with the 
prisoner such information as the examiner deems relevant, including the 
prisoner's offense behavior, criminal history, institutional record, 
health status, release plans, and community support. If the examiner 
determines that the available file material is not adequate for this 
purpose the examiner may order the hearing to be postponed to the next 
docket so that the missing information can be requested.
    (b) A prisoner may have a representative at the hearing pursuant to 
Sec. 2.13(b) and the opportunity for prehearing disclosure of file 
material pursuant to Sec. 2.55.
    (c) A victim of a crime, or a representative of the immediate family 
of a victim if the victim has died, shall have the right:
    (1) To be present at the parole hearings of each offender who 
committed the crime, and
    (2) To testify and/or offer a written or recorded statement as to 
whether or not parole should be granted, including information and 
reasons in support of such statement. A written statement may be 
submitted at the hearing or provided separately. The prisoner may be 
excluded from the hearing room during the appearance of a victim or 
representative who gives testimony. In lieu of appearing at a parole 
hearing, a victim or representative may request permission to appear 
before an examiner (or other staff member), who shall record and 
summarize the victim's or representative's testimony. Whenever new and 
significant information is provided under this rule, the hearing 
examiner will summarize the information at the parole hearing and will 
give the prisoner an opportunity to respond. Such summary shall be 
consistent with a reasonable request for confidentiality by the victim 
or representative.
    (d) Attorneys, family members, relatives, friends of the prisoner, 
or other interested persons desiring to submit information pertinent to 
any prisoner, may do so at any time, but such information must be 
received by the Commission at least 30 days prior to a scheduled hearing 
in order to be considered at that hearing. Such persons may also request 
permission to appear at the offices of the Commission to speak to a 
Commission staff member, provided such request is received at least 30 
days prior to the scheduled hearing. The purpose of this office visit 
will be to supplement the Commission's record with pertinent factual 
information concerning the prisoner, which shall be placed in the record 
for consideration at the hearing. An office visit at a time other than 
set forth in

[[Page 162]]

this paragraph may be authorized only if the Commission finds good cause 
based upon a written request setting forth the nature of the information 
to be discussed. See Sec. 2.22.
    (e) A full and complete recording of every parole hearing shall be 
retained by the Commission. Upon a request pursuant to Sec. 2.56, the 
Commission shall make available to any eligible prisoner such record as 
the Commission has retained of the hearing.
    (f) Because parole decisions must be reached through a record-based 
hearing and voting process, no contacts shall be permitted between any 
person attempting to influence the Commission's decision-making process, 
and the examiners and Commissioners of the Commission, except as 
expressly provided in this subpart.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003; 
69 FR 5274, Feb. 4, 2004]



Sec. 2.73  Parole suitability criteria.

    (a) In accordance with D.C. Code 24-404(a), the Commission shall be 
authorized to release a prisoner on parole in its discretion after the 
prisoner has served the minimum term of the sentence imposed, if the 
following criteria are met:
    (1) The prisoner has substantially observed the rules of the 
institution;
    (2) There is a reasonable probability that the prisoner will live 
and remain at liberty without violating the law; and
    (3) In the opinion of the Commission, the prisoner's release is not 
incompatible with the welfare of society.
    (b) It is the policy of the Commission with respect to District of 
Columbia Code offenders that the minimum term imposed by the sentencing 
court presumptively satisfies the need for punishment for the crime of 
which the prisoner has been convicted, and that the responsibility of 
the Commission is to account for the degree and the seriousness of the 
risk that the release of the prisoner would entail. This responsibility 
is carried out by reference to the Salient Factor Score and the Point 
Assignment Table at Sec. 2.80. However, there may be exceptional cases 
in which the gravity of the offense is sufficient to warrant an upward 
departure from Sec. 2.80 and denial of parole.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]



Sec. 2.74  Decision of the Commission.

    (a) Following each initial or subsequent hearing, the Commission 
shall render a decision granting or denying parole, and shall provide 
the prisoner with a notice of action that includes an explanation of the 
reasons for the decision. The decision shall ordinarily be issued within 
21 days of the hearing, excluding weekends and holidays.
    (b) Whenever a decision is rendered within the applicable guideline 
established in this subpart, it will be deemed a sufficient explanation 
of the Commission's decision for the notice of action to set forth how 
the guideline was calculated. If the decision is a departure from the 
guidelines, the notice of action shall include the reasons for such 
departure.
    (c) The Commission shall resolve relevant issues of fact in 
accordance with Sec. 2.19(c). Decisions granting or denying parole 
shall be based on the concurrence of two Commissioners, except that 
three Commissioner votes shall be required if the decision differs from 
the decision recommended by the examiner panel by more than six months. 
A decision terminating a parolee early from supervision shall also be 
based on the concurrence of two Commissioners. All other decisions, 
including decisions on revocation and reparole made pursuant to Sec. 
2.105(c), shall be based on the vote of one Commissioner, except as 
otherwise provided in this subpart.

[65 FR 45888, July 26, 2000, as amended at 69 FR 68792, Nov. 26, 2004; 
74 FR 28605, June 17, 2009]



Sec. 2.75  Reconsideration proceedings.

    (a)(1) Following an initial or subsequent hearing, the Commission 
may--
    (i) Set an effective date of parole within nine months of the date 
of the hearing;
    (ii) Set a presumptive parole date at least ten months but not more 
than three years from the date of the hearing;
    (iii) Continue the prisoner to the expiration of sentence if the 
prisoner's

[[Page 163]]

mandatory release date is within three years of the date of the hearing;
    (iv) Schedule a reconsideration hearing at three years from the 
month of the hearing; or
    (v) Remand the case for a rehearing on the next available docket 
(but no later than 180 days from the date of the hearing) for the 
consideration of additional information.
    (2) Exceptions. (i) With respect to the rule on three-year 
reconsideration hearings. If the prisoner's current offense behavior 
resulted in the death of a victim and, at the time of the hearing, the 
prisoner must serve more than three years before reaching the minimum of 
the applicable guideline range, the Commission may schedule a 
reconsideration hearing at a date up to five years from the month of the 
last hearing, but not beyond the minimum of the applicable guideline 
range.
    (ii) With respect to youth offenders. Regardless of whether a 
presumptive parole date has been set, a reconsideration hearing shall be 
conducted every twelve months for a youth offender, and on the next 
available docket after the Commission is informed that the prisoner has 
completed his program plan.
    (b) When a rehearing is scheduled, the prisoner shall be given a 
rehearing during the month specified by the Commission, or on the docket 
of hearings immediately preceding that month if no docket of hearings is 
scheduled for the month specified.
    (c) At a reconsideration hearing, the Commission may take any action 
that it could take at an initial hearing. The scheduling of a 
reconsideration hearing does not imply that parole will be granted at 
such hearing.
    (d) Prior to a parole reconsideration hearing, the Commission shall 
review the prisoner's record, including an institutional progress report 
which shall be submitted 60 days prior to the hearing. Based on its 
review of the record, the Commission may grant an effective date of 
parole without conducting the scheduled hearing.
    (e) Notwithstanding a previously established reconsideration 
hearing, the Commission may reopen any case for a special 
reconsideration hearing, as provided in Sec. 2.28, upon the receipt of 
new and significant information concerning the prisoner.

[65 FR 70664, Nov. 27, 2000, as amended at 67 FR 57945, Sept. 13, 2002; 
69 FR 5274, Feb. 4, 2004]



Sec. 2.76  Reduction in minimum sentence.

    (a) A prisoner who has served three or more years of the minimum 
term of his or her sentence may request the Commission to file an 
application with the sentencing court for a reduction in the minimum 
term pursuant to D.C. Code 24-401c. The prisoner's request to the 
Commission shall be in writing and shall state the reasons that the 
prisoner believes such request should be granted. The Commission shall 
require the submission of a special progress report before approving 
such a request.
    (b) Approval of a prisoner's request under this section shall 
require the concurrence of a majority of the Commissioners holding 
office.
    (c) Pursuant to D.C. Code 24-401c, the Commission may file an 
application to the sentencing court for a reduction of a prisoner's 
minimum term if the Commission finds that:
    (1) The prisoner has completed three years of the minimum term 
imposed by the court;
    (2) The prisoner has shown, by report of the responsible prison 
authorities, an outstanding response to the rehabilitative program(s) of 
the institution;
    (3) The prisoner has fully observed the rules of each institution in 
which the prisoner has been confined;
    (4) The prisoner appears to be an acceptable risk for parole based 
on both the prisoner's pre- and post-incarceration record; and
    (5) Service of the minimum term imposed by the court does not appear 
necessary to achieve appropriate punishment and deterrence.
    (d) If the Commission approves a prisoner's request under this 
section, an application for a reduction in the prisoner's minimum term 
shall be forwarded to the U.S. Attorney for the District of Columbia for 
filing with the sentencing court. If the U.S. Attorney objects to the 
Commission's recommendation, the U.S. Attorney shall provide the 
government's objections in writing for consideration by the Commission. 
If, after consideration of the

[[Page 164]]

material submitted, the Commission declines to reconsider its previous 
decision, the U.S. Attorney shall file the application with the 
sentencing court.
    (e) If a prisoner's request under this section is denied by the 
Commission, there shall be a waiting period of two years before the 
Commission will again consider the prisoner's request, absent 
exceptional circumstances.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]



Sec. 2.77  Medical parole.

    (a) Upon receipt of a report from the institution in which the 
prisoner is confined that the prisoner is terminally ill, or is 
permanently and irreversibly incapacitated by a physical or medical 
condition that is not terminal, the Commission shall determine whether 
or not to release the prisoner on medical parole. Release on medical 
parole may be ordered by the Commission at any time, whether or not the 
prisoner has completed his or her minimum sentence. Consideration for 
medical parole shall be in addition to any other parole for which a 
prisoner may be eligible.
    (b) A prisoner may be granted a medical parole on the basis of 
terminal illness if:
    (1) The institution's medical staff has provided the Commission with 
a reasonable medical judgment that the prisoner is within six months of 
death due to an incurable illness or disease; and
    (2) The Commission finds that:
    (i) The prisoner will not be a danger to himself or others; and
    (ii) Release on parole will not be incompatible with the welfare of 
society.
    (c) A prisoner may be granted a medical parole on the basis of 
permanent and irreversible incapacitation only if the Commission finds 
that:
    (1) The prisoner will not be a danger to himself or others because 
his condition renders him incapable of continued criminal activity; and
    (2) Release on parole will not be incompatible with the welfare of 
society.
    (d) The seriousness of the prisoner's crime shall be considered in 
determining whether or not a medical parole should be granted prior to 
completion of the prisoner's minimum sentence.
    (e) A prisoner, or the prisoner's representative, may apply for a 
medical parole by submitting an application to the institution case 
management staff, who shall forward the application, accompanied by a 
medical report and any recommendations, within 15 days. The Commission 
shall render a decision within 15 days of receiving the application and 
report.
    (f) A prisoner, the prisoner's representative, or the institution 
may request the Commission to reconsider its decision on the basis of 
changed circumstances.
    (g) Notwithstanding any other provision of this section :
    (1) A prisoner who has been convicted of first degree murder or who 
has been sentenced for a crime committed while armed under D.C. Code 22-
4502, 22-4504(b), or 22-2803, shall not be eligible for medical parole 
(D.C. Code 24-467); and
    (2) A prisoner shall not be eligible for medical parole on the basis 
of a physical or medical condition that existed at the time the prisoner 
was sentenced (D.C. Code 24-462).

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]



Sec. 2.78  Geriatric parole.

    (a) Upon receipt of a report from the institution in which the 
prisoner is confined that a prisoner who is at least 65 years of age has 
a chronic infirmity, illness, or disease related to aging, the 
Commission shall determine whether or not to release the prisoner on 
geriatric parole. Release on geriatric parole may be ordered by the 
Commission at any time, whether or not the prisoner has completed his or 
her minimum sentence. Consideration for geriatric parole shall be in 
addition to any other parole for which a prisoner may be eligible.
    (b) A prisoner may be granted a geriatric parole if the Commission 
finds that:
    (1) There is a low risk that the prisoner will commit new crimes; 
and
    (2) The prisoner's release would not be incompatible with the 
welfare of society.
    (c) The seriousness of the prisoner's crime, and the age at which it 
was

[[Page 165]]

committed, shall be considered in determining whether or not a geriatric 
parole should be granted prior to completion of the prisoner's minimum 
sentence.
    (d) A prisoner, or a prisoner's representative, may apply for a 
geriatric parole by submitting an application to the institution case 
management staff, who shall forward the application, accompanied by a 
medical report and any recommendations, within 30 days. The Commission 
shall render a decision within 30 days of receiving the application and 
report.
    (e) In determining whether or not to grant a geriatric parole, the 
Commission shall consider the following factors (D.C. Code 24-465(c)(1)-
(7)):
    (1) Age of the prisoner;
    (2) Severity of illness, disease, or infirmities;
    (3) Comprehensive health evaluation;
    (4) Institutional behavior;
    (5) Level of risk for violence;
    (6) Criminal history; and
    (7) Alternatives to maintaining geriatric long-term prisoners in 
traditional prison settings.
    (f) A prisoner, the prisoner's representative, or the institution, 
may request the Commission to reconsider its decision on the basis of 
changed circumstances.
    (g) Notwithstanding any other provision of this section:
    (1) A prisoner who has been convicted of first degree murder or who 
has been sentenced for a crime committed while armed under D.C. Code 22-
4502, 22-4504(b), or 22-2803, shall not be eligible for geriatric parole 
(D.C. Code 24-467); and
    (2) A prisoner shall not be eligible for geriatric parole on the 
basis of a physical or medical condition that existed at the time the 
prisoner was sentenced (D.C. Code 24-462).

[65 FR 45888, July 26, 2000, as amended at 68 FR 41530, July 14, 2003]



Sec. 2.79  Good time forfeiture.

    Although a forfeiture of good time will not bar a prisoner from 
receiving a parole hearing, D.C. Code 24-404 permits the Commission to 
parole only those prisoners who have substantially observed the rules of 
the institution. Consequently, the Commission will consider a grant of 
parole for a prisoner with forfeited good time only after a thorough 
review of the circumstances underlying the disciplinary infraction(s). 
The Commission must be satisfied that the prisoner has served a period 
of imprisonment sufficient to outweigh the seriousness of the prisoner's 
misconduct.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003]



Sec. 2.80  Guidelines for D.C. Code offenders.

    (a)(1) Applicability in general. Except as provided below, the 
guidelines in paragraphs (b)-(n) of this section apply at an initial 
hearing or rehearing conducted for any prisoner.
    (2) Reparole decisions. Reparole decisions shall be made in 
accordance with Sec. 2.81.
    (3) Youth offenders. A prisoner sentenced under the Youth 
Rehabilitation Act shall be considered for parole under these guidelines 
pursuant to paragraph (a)(1) of this section, except that the prisoner 
shall be given rehearings in accordance with the schedule at Sec. 
2.75(a)(2)(ii) and the prisoner's program achievements shall be 
considered in the parole release decision in accordance with Sec. 
2.106. The guidelines at paragraphs (k)-(m) of this section for awarding 
superior program achievement and subtracting the award in determining 
the total guideline range shall not apply.
    (4) Prisoners considered under the guidelines of the former District 
of Columbia Board of Parole. For a prisoner whose initial hearing was 
held before August 5, 1998, the Commission shall render its decision by 
reference to the guidelines of the former D.C. Board of Parole in effect 
on August 4, 1998. However, when a decision outside such guidelines has 
been made by the Board, or is ordered by the Commission, the Commission 
may determine the appropriateness and extent of the departure by 
comparison with the guidelines of Sec. 2.80. The Commission may also 
correct any error in the calculation of the D.C. Board's guidelines.
    (5) Prisoners given initial hearings under the guidelines in effect 
from August 5, 1998 through December 3, 2000 (the guidelines formerly 
found in 28

[[Page 166]]

CFR 2.80, Appendix to Sec. 2.80 (2000)). For a prisoner given an 
initial hearing under the Sec. 2.80 guidelines in effect from August 5, 
1998 through December 3, 2000, the guidelines in paragraphs (b)-(n) of 
this section shall be applied retroactively subject to the provisions of 
paragraph (o) of this section.
    (b) Guidelines. In determining whether an eligible prisoner should 
be paroled, the Commission shall apply the guidelines set forth in this 
section. The guidelines assign numerical values to pre-and post-
incarceration factors. Decisions outside the guidelines may be made, 
where warranted, pursuant to paragraph (n) of this section.
    (c) Salient factor score and criminal record. The prisoner's Salient 
Factor Score shall be determined by reference to the Salient Factor 
Scoring Manual in Sec. 2.20. The Salient Factor Score is used to assist 
the Commission in assessing the probability that an offender will live 
and remain at liberty without violating the law. The prisoner's record 
of criminal conduct (including the nature and circumstances of the 
current offense) shall be used to assist the Commission in determining 
the probable seriousness of the recidivism that is predicted by the 
Salient Factor Score.
    (d) Disciplinary infractions. The Commission shall assess whether 
the prisoner has been found guilty of committing significant 
disciplinary infractions while under confinement for the current 
offense.
    (e) Program achievement. (1) The Commission shall assess whether the 
prisoner has demonstrated ordinary or superior achievement in the area 
of prison programs, industries, or work assignments while under 
confinement for the current offense. Superior program achievement means 
program achievement that is beyond the level that the prisoner might 
ordinarily be expected to accomplish. Credit for program achievement may 
be granted regardless of whether the guidelines for disciplinary 
infractions have been applied for misconduct during the same period. The 
guidelines in this section presume that the prisoner will have ordinary 
program achievement.
    (2) In the case of a prisoner who has declined to participate in 
institutional programming, a decision in the upper half of the 
applicable guideline range generally will be warranted, except that in 
the case of a prisoner who has a base point score of 3 or less, or who 
has a criminal record involving violence or sexual offenses and who has 
not participated in available programming to address a potential for 
criminal behavior of a violent or sexual nature, a decision above the 
guidelines may be warranted.
    (f) Base point score. Add the applicable points from Categories I-
III of the Point Assignment Table to determine the base point score.

                         Point Assignment Table
------------------------------------------------------------------------
                           Categories                             Points
------------------------------------------------------------------------
          CATEGORY I: RISK OF RECIDIVISM (Salient Factor Score)
------------------------------------------------------------------------
 
10-8 (Very Good Risk)...........................................      +0
7-6 (Good Risk).................................................      +1
5-4 (Fair Risk).................................................      +2
3-0 (Poor Risk).................................................      +3
------------------------------------------------------------------------
          CATEGORY II: CURRENT OR PRIOR VIOLENCE (Type of Risk)
 
   Note: Use the highest applicable subcategory. If no subcategory is
                         applicable, score = 0.
------------------------------------------------------------------------
 
A. Violence in current offense, and any felony violence in two        +4
 or more prior offenses.........................................
B. Violence in current offense, and any felony violence in one        +3
 prior offense..................................................
C. Violence in current offense..................................      +2
D. No violence in current offense and any felony violence in two      +2
 or more prior offenses.........................................
E. Possession of firearm in current offense if current offense        +2
 is not scored as a crime of violence...........................
F. No violence in current offense and any felony violence in one      +1
 prior offense..................................................
------------------------------------------------------------------------
          CATEGORY III: DEATH OF VICTIM OR HIGH LEVEL VIOLENCE
 
     Note: Use highest applicable subcategory. If no subcategory is
    applicable, score = 0. A current offense that involved high level
  violence must be scored under both Category II (A, B, or C) and under
                              Category III.
------------------------------------------------------------------------
 
A. Current offense involved violence (high level violence or          +3
 other violence) with death of victim resulting.................
B. Current offense involved attempted murder, conspiracy to           +2
 murder, solicitation to murder, or any willful violence in
 which the victim survived despite death having been the most
 probable result at the time the offense was committed
C. Current offense involved high level violence (other than the       +1
 behaviors described above)
------------------------------------------------------------------------
              BASE POINT SCORE (Total of Categories I-III)
------------------------------------------------------------------------

    (g) Definitions and instructions for application of point assignment 
table--(1)

[[Page 167]]

Salient factor score means the salient factor score set forth at Sec. 
2.20.
    (2) High level violence in Category III means any of the following 
offenses--
    (i) Murder;
    (ii) Voluntary manslaughter;
    (iii) Arson of a building in which a person other than the offender 
was present or likely to be present at the time of the offense;
    (iv) Forcible rape or forcible sodomy (first degree sexual abuse);
    (v) Kidnapping, hostage taking, or any armed abduction of a victim 
during a carjacking or other offense;
    (vi) Burglary of a residence while armed with any weapon if a victim 
was in the residence during the offense;
    (vii) Obstruction of justice through violence or threats of 
violence;
    (viii) Any offense involving sexual abuse of a person less than 
sixteen years of age;
    (ix) Mayhem, malicious disfigurement, or any offense defined as 
other violence in paragraph (g)(4) of this section that results in 
serious bodily injury as defined in paragraph (g)(3) of this section;
    (x) Any offense defined as other violence in paragraph (g)(4) of 
this section in which the offender intentionally discharged a firearm;
    (3) Serious bodily injury means bodily injury that involves a 
substantial risk of death, unconsciousness, extreme physical pain, 
protracted and obvious disfigurement, or protracted loss or impairment 
of the function of a bodily member, organ, or mental faculty.
    (4) Other violence means any of the following felony offenses that 
does not qualify as high level violence
    (i) Robbery;
    (ii) Residential burglary;
    (iii) Felony assault;
    (iv) Felony offenses involving a threat, or risk, of bodily harm;
    (v) Felony offenses involving sexual abuse or sexual contact;
    (vi) Involuntary manslaughter (excluding negligent homicide).
    (5) Attempts, conspiracies, and solicitations shall be scored by 
reference to the substantive offense that was the object of the attempt, 
conspiracy, or solicitation; except that Category IIIA shall apply only 
if death actually resulted.
    (6) Current offense means any criminal behavior that is either:
    (i) Reflected in the offense of conviction, or
    (ii) Is not reflected in the offense of conviction but is found by 
the Commission to be related to the offense of conviction (i.e., part of 
the same course of conduct as the offense of conviction). In probation 
violation cases, the current offense includes both the original offense 
and the violation offense, except that the original offense shall be 
scored as a prior conviction (with a prior commitment) rather than as 
part of the current offense, if the prisoner served more than six months 
in prison for the original offense before his probation commenced
    (7) Category IIE applies whenever a firearm is possessed by the 
offender during, or is used by the offender to commit, any offense that 
is not scored under Category II(A-D). Category IIE also applies when the 
current offense is felony unlawful possession of a firearm and there is 
no other current offense. Possession for purposes of Category IIE 
includes constructive possession.
    (8) Category IIIA applies if the death of a victim is:
    (i) Caused by the offender, or
    (ii) Caused by an accomplice and the killing was planned or approved 
by the offender in furtherance of a joint criminal venture.
    (h) Determining the base guideline range. Determine the base 
guideline range for adult prisoners from the following table:

------------------------------------------------------------------------
                                                         Base guideline
                   Base point score                      range (months)
------------------------------------------------------------------------
3 or less............................................                  0
4....................................................              12-18
5....................................................              18-24
6....................................................              36-48
7....................................................              54-72
8....................................................              72-96
9....................................................            110-140
10...................................................            156-192
------------------------------------------------------------------------

    (i) Months to parole eligibility. Determine the total number of 
months until parole eligibility.
    (j) Guideline range for disciplinary infractions. Determine the 
applicable guideline range from Sec. 2.36 for any significant 
disciplinary infractions since the beginning of confinement on the 
current offense in the case of an initial

[[Page 168]]

hearing, and since the last hearing in the case of a rehearing. If there 
are no significant disciplinary infractions, this step is not 
applicable.
    (k) Guidelines for superior program achievement. If superior program 
achievement is found, the award for superior program achievement shall 
be one-third of the number of months during which the prisoner 
demonstrated superior program achievement. The award is determined on 
the basis of all time in confinement on the current offense in the case 
of an initial hearing, and on the basis of time in confinement since the 
last hearing in the case of a rehearing. If superior program achievement 
is not found, this step is not applicable.
    Note: When superior program achievement is found, it is presumed 
that the award will be based on the total number of months since the 
beginning of confinement on the current offense in the case of an 
initial hearing, or since the last hearing in the case of a rehearing. 
Where, however, the Commission determines that the prisoner did not have 
superior program achievement during the entire period, it may base its 
decision solely on the number of months during which the prisoner had 
superior program achievement.
    (l) Determining the total guideline range at an initial hearing. At 
an initial hearing
    (1) Add together the minimum of the base point guideline range (from 
paragraph (h) of this section), the number of months required by the 
prisoner's parole eligibility date (from (i) of this section), and the 
minimum of the guideline range for disciplinary infractions, if 
applicable (from paragraph (j) of this section). Then subtract the award 
for superior program achievement, if applicable (from paragraph (k) of 
this section). The result is the minimum of the Total Guideline Range.
    (2) Add together the maximum of the base point guideline range (from 
paragraph (h) of this section), the number of months required by the 
prisoner's parole eligibility date (from paragraph (i) of this section), 
and the maximum of the guideline range for disciplinary infractions, if 
applicable (from paragraph (j) of this section). Then subtract the award 
for superior program achievement, if applicable (from paragraph (k) of 
this section). The result is the maximum of the Total Guideline Range.
    (m) Determining the total guideline range at a reconsideration 
hearing. At a reconsideration hearing--
    (1) Add together the minimum of the Total Guideline Range from the 
previous hearing, and the minimum of the guideline range for 
disciplinary infractions since the previous hearing, if applicable (from 
paragraph (j) of this section). Then subtract the award for superior 
program achievement, if applicable (from paragraph (k) of this section). 
The result is the minimum of the Total Guideline Range for the current 
hearing.
    (2) Add together the maximum of the Total Guideline Range from the 
previous hearing, and the maximum of the guideline range for 
disciplinary infractions since the previous hearing, if applicable (from 
paragraph (j) of this section). Then subtract the award for superior 
program achievement since the previous hearing, if applicable (from 
paragraph (k) of this section). The result is the maximum of the Total 
Guideline Range for the current hearing.
    (n) Decisions outside the guidelines. (1) The Commission may, in 
unusual circumstances, grant or deny parole to a prisoner 
notwithstanding the guidelines. Unusual circumstances are case-specific 
factors that are not fully taken into account in the guidelines, and 
that are relevant to the grant or denial of parole. In such cases, the 
Commission shall specify in the notice of action the specific factors 
that it relied on in departing from the applicable guideline or 
guideline range. If the prisoner is deemed to be a poorer or more 
serious risk than the guidelines indicate, the Commission shall 
determine what Base Point Score would more appropriately fit the 
prisoner's case, and shall render its initial and rehearing decisions as 
if the prisoner had that higher Base Point Score. It is to be noted 
that, in some cases, an extreme level of risk presented by the prisoner 
may make it inappropriate for the Commission to contemplate a parole at 
any hearing without a significant change in the prisoner's 
circumstances.

[[Page 169]]

    (2) Factors that may warrant a decision above the guidelines 
include, but are not limited to, the following:
    (i) Poorer parole risk than indicated by salient factor score. The 
offender is a poorer parole risk than indicated by the salient factor 
score because of--
    (A) Unusually persistent failure under supervision (pretrial 
release, probation, or parole);
    (B) Unusually persistent history of criminally related substance 
(drug or alcohol) abuse and resistance to treatment efforts; or
    (C) Unusually extensive prior record (sufficient to make the 
offender a poorer risk than the ``poor'' prognosis category).
    (ii) More serious parole risk. The offender is a more serious parole 
risk than indicated by the total point score because of--
    (A) Prior record of violence more extensive or serious than that 
taken into account in the guidelines;
    (B) Current offense demonstrates extraordinary criminal 
sophistication, criminal professionalism in the employment of violence 
or threats of violence, or leadership role in instigating others to 
commit a serious offense;
    (C) Unusual cruelty to the victim (beyond that accounted for by 
scoring the offense as high level violence), or predation upon extremely 
vulnerable victim;
    (D) Unusual propensity to inflict unprovoked and potentially 
homicidal violence, as demonstrated by the circumstances of the current 
offense; or
    (E) Additional serious offense(s) committed after (or while on bond 
or fugitive status from) current offense that show unusual capacity for 
sustained, repeated violent criminal activity.
    (3) Factors that may warrant a decision below the guidelines 
include, but are not limited to, the following:
    (i) Better parole risk than indicated by salient factor score. The 
offender is a better parole risk than indicated by the salient factor 
score because of (applicable only to offenders who are not already in 
the very good risk category)--
    (A) A prior criminal record resulting exclusively from minor 
offenses;
    (B) A substantial crime-free period in the community for which 
credit is not already given on the Salient Factor Score;
    (C) A change in the availability of community resources leading to a 
better parole prognosis;
    (ii) Other factors:
    (A) Unusually lengthy period of incarceration on the minimum 
sentence (in relation to the seriousness of the offense and prior 
record) that warrants an initial parole determination as if the offender 
were being considered at a rehearing;
    (B) Substantial period in custody on other sentence(s) sufficient to 
warrant a finding in paragraph (n)(3) of this section; or
    (C) Clearly exceptional program achievement.
    (o) Conversion rules for retroactive application of the Sec. 2.80 
guidelines. When the guidelines of this section are retroactively 
applied, the following conversion rules shall be used.
    (1) If the prisoner previously had any points added for negative 
institutional behavior under the guidelines formerly found in the 
Appendix to Sec. 2.80 (2000) (i.e., the guidelines in effect from 
August 5, 1998 through December 3, 2000), the total guideline range 
shall be increased by the lesser of:
    (i) The guideline range from Sec. 2.36 found to apply to the prior 
misconduct; or
    (ii) The range of months obtained when the number of points 
previously added for negative institutional behavior is multiplied by 
the rehearing range applicable under the guidelines in the former 
Appendix to Sec. 2.80 (e.g., if two points previously were added for 
misconduct and the applicable rehearing range was 18-24 months, then 36-
48 months (2 x 18-24) would be added).
    (2) If negative institutional behavior previously was sanctioned by 
the application of a guideline range at Sec. 2.36, the total guideline 
range shall be increased by that range for that behavior.
    (3) If the prisoner previously had an extra point deducted for 
superior program achievement (as opposed to ordinary program 
achievement) under the guidelines in the former Appendix to Sec. 2.80, 
the total guideline range shall be decreased by the rehearing guideline 
range applicable under the Appendix to Sec. 2.80 guidelines (e.g., if 
an extra point

[[Page 170]]

previously was subtracted for superior (not ordinary) program 
achievement and the applicable rehearing range was 18-24 months, then 
18-24 months would be subtracted).
    (4) Misconduct or superior program achievement since the last 
hearing shall be considered in accordance with the guidelines of this 
section.

[65 FR 70665, Nov. 27, 2000, as amended at 67 FR 67946, Sept. 13, 2002]



Sec. 2.81  Reparole decisions.

    (a) If the prisoner is not serving a new, parolable D.C. Code 
sentence, the Commission's decision to grant or deny reparole on the 
parole violation term shall be made by reference to the reparole 
guidelines at Sec. 2.21. The Commission shall establish a presumptive 
or effective release date pursuant to Sec. 2.12(b), and conduct interim 
hearings pursuant to Sec. 2.14.
    (b) If the prisoner is eligible for parole on a new D.C. Code felony 
sentence that has been aggregated with the prisoner's parole violation 
term, the Commission shall make a decision to grant or deny parole on 
the basis of the aggregate sentence, and in accordance with the 
guidelines at Sec. 2.80.
    (c) If the prisoner is eligible for parole on a new D.C. Code felony 
sentence but the prisoner's parole violation term has not commenced 
(i.e., the warrant has not been executed), the Commission shall make a 
single parole/reparole decision by applying the guidelines at Sec. 
2.80. The Commission shall establish an appropriate date for the 
execution of the outstanding warrant in order for the guidelines at 
Sec. 2.80 to be satisfied. In cases where the execution of the warrant 
will not result in the aggregation of the new sentence and the parole 
violation term, the Commission shall make parole and reparole decisions 
that are consistent with the guidelines at Sec. 2.80.
    (d) All reparole hearings shall be conducted according to the 
procedures set forth in Sec. 2.72, and may be combined with the holding 
of a revocation hearing if the prisoner's parole has not previously been 
revoked. If the prisoner is serving a period of imprisonment imposed 
upon revocation of his parole by the D.C. Board of Parole, the 
Commission shall consider all available and relevant information 
concerning the prisoner's conduct while on parole, including any 
allegations of criminal or administrative violations left unresolved by 
the Board, pursuant to the procedures applicable to initial hearings 
under Sec. 2.72 and Sec. 2.19(c). The same procedures shall apply in 
the case of any new information concerning criminal or administrative 
violations of parole presented to the Commission for the first time 
following the conclusion of a revocation proceeding that resulted in the 
revocation of parole and the return of the offender to prison.

[65 FR 45888, July 26, 2000, as amended at 66 FR 37137, July 17, 2001]



Sec. 2.82  Effective date of parole.

    (a) An effective date of parole may be granted up to nine months 
from the date of the hearing.
    (b) Except in the case of a medical or geriatric parole, a parole 
that is granted prior to the completion of the prisoner's minimum term 
shall not become effective until the prisoner becomes eligible for 
release on parole.

[65 FR 45888, July 26, 2000, as amended at 67 FR 57946, Sept. 13, 2002]



Sec. 2.83  Release planning.

    (a) All grants of parole shall be conditioned on the development of 
a suitable release plan and the approval of that plan by the Commission. 
A parole certificate shall not be issued until a release plan has been 
approved by the Commission. In the case of mandatory release, the 
Commission shall review each prisoner's release plan to determine 
whether the imposition of any special conditions should be ordered to 
promote the prisoner's rehabilitation and protect the public safety.
    (b) If a parole date has been granted, but the prisoner has not 
submitted a proposed release plan, the appropriate correctional or 
supervision staff shall assist the prisoner in formulating a release 
plan for investigation.
    (c) After investigation by a Supervision Officer, the proposed 
release plan shall be submitted to the Commission 30 days prior to the 
prisoner's parole or mandatory release date.

[[Page 171]]

    (d) A Commissioner may retard a parole date for purposes of release 
planning for up to 120 days without a hearing. If efforts to formulate 
an acceptable release plan prove futile by the expiration of such 
period, or if the Offender Supervision staff reports that there are 
insufficient resources to provide effective supervision for the 
individual in question, the Commission shall be promptly notified in a 
detailed report. If the Commission does not order the prisoner to be 
paroled, the Commission shall suspend the grant of parole and conduct a 
reconsideration hearing on the next available docket. Following such 
reconsideration hearing, the Commission may deny parole if it finds that 
the release of the prisoner without a suitable plan would fail to meet 
the criteria set forth in Sec. 2.73. However, if the prisoner 
subsequently presents an acceptable release plan, the Commission may 
reopen the case and issue a new grant of parole.
    (e) The following shall be considered in the formulation of a 
suitable release plan:
    (1) Evidence that the parolee will have an acceptable residence;
    (2) Evidence that the parolee will be legitimately employed as soon 
as released; provided, that in special circumstances, the requirement 
for immediate employment upon release may be waived by the Commission;
    (3) Evidence that the necessary aftercare will be available for 
parolees who are ill, or who have any other demonstrable problems for 
which special care is necessary, such as hospital facilities or other 
domiciliary care; and
    (4) Evidence of availability of, and acceptance in, a community 
program in those cases where parole has been granted conditioned upon 
acceptance or participation in a specific community program.



Sec. 2.84  Release to other jurisdictions.

    The Commission, in its discretion, may parole any prisoner to live 
and remain in a jurisdiction other than the District of Columbia.



Sec. 2.85  Conditions of release.

    (a) General conditions of release. (1) The conditions set forth in 
Sec. 2.204(a)(3)-(6) apply for the reasons set forth in Sec. 
2.204(a)(1). These conditions are printed on the certificate of release 
issued to each releasee.
    (2)(i) The refusal of a prisoner who has been granted a parole date 
to sign the certificate of release (or any other document necessary to 
fulfill a condition of release) constitutes withdrawal of that 
prisoner's application for parole as of the date of refusal. To be 
considered for parole again, the prisoner must reapply for parole 
consideration.
    (ii) A prisoner who is released to supervision through good-time 
deduction who refuses to sign the certificate of release is nevertheless 
bound by the conditions set forth in that certificate.
    (b) Special conditions of release. The Commission may impose a 
condition other than one of the general conditions of release if the 
Commission determines that such condition is necessary to protect the 
public from further crimes by the releasee and provide adequate 
supervision of the releasee. Examples of special conditions of release 
that the Commission frequently imposes are found at Sec. 2.204(b)(2).
    (c) Changing conditions of release. The provisions of Sec. 2.204(c) 
apply.
    (d) Application of release conditions to absconder. The provisions 
of Sec. 2.204(d) apply.
    (e) Supervision officer guidance. The provisions of Sec. 2.204(f) 
apply.
    (f) Definitions. For purposes of this section--
    (1) The terms supervision officer, domestic violence crime, approved 
offender-rehabilitation program and firearm, as used in Sec. 2.204, 
have the meanings given those terms by Sec. 2.204(g);
    (2) The term releasee, as used in this section and in Sec. 2.204, 
means a person convicted of an offense under the District of Columbia 
Code who has been released on parole or released through good-time 
deduction; and
    (3) The term certificate of release, as used in this section and in 
Sec. 2.204, means the certificate of parole or mandatory release 
delivered to the releasee under Sec. 2.86.

[68 FR 41700, July 15, 2003]



Sec. 2.86  Release on parole; rescission for misconduct.

    (a) When a parole effective date has been set, actual release on 
parole on

[[Page 172]]

that date shall be conditioned upon the individual maintaining a good 
conduct record in the institution or prerelease program to which the 
prisoner has been assigned.
    (b) The Commission may reconsider any grant of parole prior to the 
prisoner's actual release on parole, and may advance or retard a parole 
effective date or rescind a parole date previously granted based upon 
the receipt of any new and significant information concerning the 
prisoner, including disciplinary infractions. The Commission may retard 
a parole date for disciplinary infractions (e.g., to permit the use of 
graduated sanctions) for up to 120 days without a hearing, in addition 
to any retardation ordered under Sec. 2.83(d).
    (c) If a parole effective date is rescinded for disciplinary 
infractions, an appropriate sanction shall be determined by reference to 
Sec. 2.36.
    (d) After a prisoner has been granted a parole effective date, the 
institution shall notify the Commission of any serious disciplinary 
infractions committed by the prisoner prior to the date of actual 
release. In such case, the prisoner shall not be released until the 
institution has been advised that no change has been made in the 
Commission's order granting parole.
    (e) A grant of parole becomes operative upon the authorized delivery 
of a certificate of parole to the prisoner, and the signing of that 
certificate by the prisoner, who thereafter becomes a parolee.

[65 FR 70669, Nov. 27, 2000, as amended at 67 FR 57946, Sept. 13, 2002]



Sec. 2.87  Mandatory release.

    (a) When a prisoner has been denied parole at the initial hearing 
and all subsequent considerations, or parole consideration is expressly 
precluded by statute, the prisoner shall be released at the expiration 
of his or her imposed sentence less the time deducted for any good time 
allowances provided by statute.
    (b) Any prisoner having served his or her term or terms less 
deduction for good time shall, upon release, be deemed to be released on 
parole until the expiration of the maximum term or terms for which he or 
she was sentenced, except that if the offense of conviction was 
committed before April 11, 1987, such expiration date shall be less one 
hundred eighty (180) days. Every provision of these rules relating to an 
individual on parole shall be deemed to include individuals on mandatory 
release.



Sec. 2.88  Confidentiality of parole records.

    (a) Consistent with the Privacy Act of 1974 (5 U.S.C. 552(b)), the 
contents of parole records shall be confidential and shall not be 
disclosed outside the Commission except as provided in paragraphs (b) 
and (c) of this section.
    (b) Information that is subject to release to the general public 
without the consent of the prisoner shall be limited to the information 
specified in Sec. 2.37.
    (c) Information other than as described in Sec. 2.37 may be 
disclosed without the consent of the prisoner only pursuant to the 
provisions of the Privacy Act of 1974 (5 U.S.C. 552(b)) and Sec. 2.56.



Sec. 2.89  Miscellaneous provisions.

    Except to the extent otherwise provided by law, the following 
sections in Subpart A of this part are also applicable to District of 
Columbia Code offenders:

2.5 (Sentence aggregation)
2.7 (Committed fines and restitution orders)
2.8 (Mental competency procedures)
2.10 (Date service of sentence commences)
2.16 (Parole of prisoner in State, local, or territorial institution)
2.19 (Information considered)
2.23 (Delegation to hearing examiners)
2.25 (Hearings by video conference)
2.30 (False information or new criminal conduct; Discovery after 
release)
2.32 (Parole to local or immigration detainers)
2.56 (Disclosure of Parole Commission file)
2.62 (Rewarding assistance in the prosecution of other offenders: 
criteria and guidelines)
2.65 (Paroling policy for prisoners serving aggregated U.S. and D.C. 
Code sentences)
2.66 (Revocation Decision Without Hearing)

[65 FR 45888, July 26, 2000, as amended at 69 FR 5274, Feb. 4, 2004; 72 
FR 53116, Sept. 18, 2007]



Sec. 2.90  Prior orders of the Board of Parole.

    Any order entered by the Board of Parole of the District of Columbia

[[Page 173]]

shall be accorded the status of an order of the Parole Commission unless 
duly reconsidered and changed by the Commission at a regularly scheduled 
hearing. It shall not constitute grounds for reopening a case that the 
prisoner is subject to an order of the Board of Parole that fails to 
conform to a provision of this part.



Sec. 2.91  Supervision responsibility.

    (a) Pursuant to D.C. Code 24-133(c), the District of Columbia Court 
Services and Offender Supervision Agency (CSOSA) shall provide 
supervision, through qualified Supervision Officers, for all D.C. Code 
parolees and mandatory releasees under the jurisdiction of the 
Commission who are released to the District of Columbia. Individuals 
under the jurisdiction of the Commission who are released to districts 
outside the D.C. metropolitan area, or who are serving mixed U.S. and 
D.C. Code sentences, shall be supervised by a U.S. Probation Officer 
pursuant to 18 U.S.C. 3655.
    (b) A parolee or mandatory releasee may be transferred to a new 
district of supervision with the permission of the supervision offices 
of both the transferring and receiving district, provided such transfer 
is not contrary to instructions from the Commission.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003]



Sec. 2.92  Jurisdiction of the Commission.

    (a) The jurisdiction of the Commission over a parolee shall expire 
on the date of expiration of the maximum term or terms for which he was 
sentenced, or upon the early termination of supervision as provided in 
Sec. 2.95, subject to the provisions of this subpart relating to 
warrant issuance, time in absconder status, and the forfeiture of time 
on parole in the case of revocation.
    (b) The parole of any parolee shall run concurrently with the period 
of parole, probation, or supervised release under any other Federal, 
State, or local sentence.
    (c) When the parolee's sentence expires, the supervision officer 
shall issue a certificate of discharge to the parolee and to such other 
agencies as may be appropriate. If the Commission terminates the 
parolee's supervision early under Sec. 2.95, the Commission shall issue 
a certificate of discharge for delivery to the parolee by the 
supervision officer.
    (d) An order of revocation shall not affect the Commission's 
jurisdiction to grant and enforce any further periods of parole, up to 
the date of expiration of the offender's maximum term, or upon the early 
termination of supervision under Sec. 2.95.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003; 
74 FR 28605, June 17, 2009]



Sec. 2.93  Travel approval.

    (a) A parolee's Supervision Officer may approve travel outside the 
district of supervision without approval of the Commission in the 
following situations:
    (1) Vacation trips not to exceed thirty days.
    (2) Trips, not to exceed thirty days, to investigate reasonably 
certain employment possibilities.
    (3) Recurring travel across a district boundary, not to exceed fifty 
miles outside the district, for purpose of employment, shopping, or 
recreation.
    (b) Specific advance approval by the Commission is required for all 
foreign travel, employment requiring recurring travel more than fifty 
miles outside the district, and vacation travel outside the district of 
supervision exceeding thirty days. A request for such permission shall 
be in writing and must demonstrate a substantial need for such travel.
    (c) A special condition imposed by the Commission prohibiting 
certain travel shall apply instead of any general rules relating to 
travel as set forth in paragraph (a) of this section.
    (d) The district of supervision for a parolee under the supervision 
of the D.C. Community Supervision Office of CSOSA shall be the District 
of Columbia, except that for the purpose of travel permission under this 
section the district of supervision will include the D.C. metropolitan 
area as defined in the certificate of parole.

[[Page 174]]



Sec. 2.94  Supervision reports to Commission.

    An initial supervision report to confirm the satisfactory initial 
progress of the parolee shall be submitted to the Commission 90 days 
after the parolee's release from prison, by the officer responsible for 
the parolee's supervision. A regular supervision report shall be 
submitted to the Commission by the officer responsible for the 
supervision of the parolee after the completion of 12 months of 
continuous community supervision and annually thereafter. The 
Supervision Officer shall submit such additional reports and information 
concerning both the parolee, and the enforcement of the conditions of 
the parolee's supervision, as the Commission may direct. All reports 
shall be submitted according to the format established by the 
Commission.

    Editorial Note: At 67 FR 57946, Sept. 13, 2002, the first sentence 
of paragraph (a) of Sec. 2.94 was removed. However, paragraph (a) of 
Sec. 2.94 did not exist in the 2001 Edition of that volume.



Sec. 2.95  Early termination from supervision.

    (a) (1) Upon its own motion or upon request of a parolee, the 
Commission may terminate a parolee's supervision, and legal custody over 
the parolee, before the sentence expires. (2) The Commission may 
terminate supervision of a committed youth offender after the offender 
serves one year on supervision. Upon terminating supervision before the 
sentence expires, the Commission shall set aside the committed youth 
offender's conviction and issue a certificate setting aside the 
conviction instead of a certificate of termination.
    (b) Two years after releasing a prisoner on supervision, and at 
least annually thereafter, the Commission shall review the status of the 
parolee to determine the need for continued supervision. The Commission 
shall also conduct a status review whenever the supervision officer 
recommends early termination of the parolee's supervision.
    (c) Five years after releasing a prisoner on supervision, the 
Commission shall terminate supervision over the parolee unless the 
Commission determines, after a hearing, that such supervision should not 
be terminated because there is a likelihood that the parolee will engage 
in conduct violating any criminal law. If the Commission does not 
terminate supervision under this paragraph, the parolee may request a 
hearing annually thereafter, and the Commission shall conduct an early 
termination hearing at least every two years.
    (d) In calculating the two-year and five-year periods provided in 
paragraphs (b) and (c) of this section, the Commission shall not include 
any period of parole before the most recent release, or any period the 
parolee served in confinement on any other sentence.
    (e)(1) In determining whether to grant early termination from 
supervision, the Commission shall consider the guidelines of this 
paragraph. The guidelines are advisory and the Commission may disregard 
the outcome indicated by the guidelines based on case-specific factors. 
Termination of supervision is indicated if the parolee:
    (i) Has a salient factor score in the very good risk category and 
has completed two continuous years of supervision free from an incident 
of new criminal behavior or serious parole violation; or
    (ii) has a salient factor score in a risk category other than very 
good and has completed three continuous years of supervision free from 
an incident of new criminal behavior or serious parole violation.
    (2) As used in this paragraph, the term ``an incident of new 
criminal behavior or serious parole violation'' includes a new arrest or 
report of a parole violation if supported by substantial evidence of 
guilt, even if no conviction or parole revocation results. The 
Commission shall not terminate supervision of a parolee until it 
determines the disposition of a pending criminal charge.
    (3) Case-specific factors that may justify a departure either above 
or below the early termination guidelines may relate to the current 
behavior of the parolee, or to the parolee's background and criminal 
history.

[74 FR 28605, June 17, 2009; 74 FR 29940, June 24, 2009]

[[Page 175]]



Sec. 2.96  Order of early termination.

    When the Commission orders early termination from supervision, the 
Commission shall issue a certificate to the parolee granting a full 
discharge from the sentence. The termination and discharge shall take 
effect only upon the actual delivery of the certificate of discharge to 
the parolee by the supervision officer, and may be rescinded for good 
cause at any time before such delivery.

[74 FR 28605, June 17, 2009]



Sec. 2.97  Withdrawal of order of release.

    If, after an order for release from active supervision under former 
Sec. 2.95 has been issued by the Commission, and prior to the 
expiration date of the sentence(s) being served, the parolee commits any 
new criminal offense or engages in any conduct that might bring 
discredit to the parole system, the Commission may, in its discretion, 
do any of the following:
    (a) Issue a summons or warrant to commence the revocation process;
    (b) Withdraw the order of release from supervision and return the 
parolee to active supervision; or
    (c) Impose any special conditions to the order of release from 
supervision.

[65 FR 45888, July 26, 2000, as amended at 74 FR 28605, June 17, 2009]



Sec. 2.98  Summons to appear or warrant for retaking of parolee.

    (a) If a parolee is alleged to have violated the conditions of his 
release, and satisfactory evidence thereof is presented, the Commission 
or a member thereof may:
    (1) Issue a summons requiring the offender to appear for a probable 
cause hearing or local revocation hearing; or
    (2) Issue a warrant for the apprehension and return of the offender 
to custody.
    (b) A summons or warrant under paragraph (a)(1) of this section may 
be issued or withdrawn only by the Commission, or a member thereof.
    (c) Any summons or warrant under this section shall be issued as 
soon as practicable after the alleged violation is reported to the 
Commission, except when delay is deemed necessary. Issuance of a summons 
or warrant may be withheld until the frequency or seriousness of the 
violations, in the opinion of the Commission, requires such issuance. In 
the case of any parolee who is charged with a criminal offense and who 
is awaiting disposition of such charge, issuance of a summons or warrant 
may be:
    (1) Temporarily withheld;
    (2) Issued by the Commission and held in abeyance;
    (3) Issued by the Commission and a detainer lodged with the 
custodial authority; or
    (4) Issued for the retaking of the parolee.
    (d) A summons or warrant may be issued only within the prisoner's 
maximum term or terms, except that in the case of a prisoner who has 
been mandatorily released from a sentence imposed for an offense 
committed before April 11, 1987, such summons or warrant may be issued 
only within the maximum term or terms less one hundred eighty days. A 
summons or warrant shall be considered issued when signed and either:
    (1) Placed in the mail; or
    (2) Sent by electronic transmission to the appropriate law 
enforcement authority.
    (e) The issuance of a warrant under this section operates to bar the 
expiration of the parolee's sentence. Such warrant maintains the 
Commission's jurisdiction to retake the parolee either before or after 
the normal expiration date of the sentence and to reach a final decision 
as to the revocation of parole and the forfeiture of time pursuant to 
D.C. Code 24-406(c).
    (f) A summons or warrant issued pursuant to this section shall be 
accompanied by a warrant application (or other notice) stating:
    (1) The charges against the parolee;
    (2) The specific reports and other documents upon which the 
Commission intends to rely in determining whether a violation occurred 
and whether to revoke parole;
    (3) Notice of the Commission's intent, if the parolee is arrested 
within the District of Columbia, to hold a probable cause hearing within 
five days of the parolee's arrest;
    (4) A statement of the purpose of the probable cause hearing;

[[Page 176]]

    (5) The days of the week on which the Commission regularly holds its 
dockets of probable cause hearings at the Central Detention Facility;
    (6) The parolee's procedural rights in the revocation process; and
    (7) The possible actions that the Commission may take.
    (g) Every warrant issued by the Board of Parole of the District of 
Columbia prior to August 5, 2000, shall be deemed to be a valid warrant 
of the U.S. Parole Commission unless withdrawn by the Commission. Such 
warrant shall be executed as provided in Sec. 2.99, and every offender 
retaken upon such warrant shall be treated for all purposes as if 
retaken upon a warrant issued by the Commission.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2569, Jan. 18, 2002; 68 
FR 41531, July 14, 2003; 74 FR 28605, June 17, 2009]



Sec. 2.99  Execution of warrant and service of summons.

    (a) Any officer of any Federal or District of Columbia correctional 
institution, any Federal Officer authorized to serve criminal process, 
or any officer or designated civilian employee of the Metropolitan 
Police Department of the District of Columbia, to whom a warrant is 
delivered, shall execute such warrant by taking the parolee and 
returning him to the custody of the Attorney General.
    (b) Upon the arrest of the parolee, the officer executing the 
warrant shall deliver to the parolee a copy of the warrant application 
(or other notice provided by the Commission) containing the information 
described in Sec. 2.98 (f).
    (c) If execution of the warrant is delayed pending disposition of 
local charges, for further investigation, or for some other purpose, the 
parolee is to be continued under supervision by the Supervision Officer 
until the normal expiration of the sentence, or until the warrant is 
executed, whichever first occurs. Monthly supervision reports are to be 
submitted, and the parolee must continue to abide by all the conditions 
of release.
    (d) If any other warrant for the arrest of the parolee has been 
executed or is outstanding at the time the Commission's warrant is 
executed, the arresting officer may, within 72 hours of executing the 
Commission's warrant, release the parolee to such other warrant and 
lodge the Commission's warrant as a detainer, voiding the execution 
thereof, if such action is consistent with the instructions of the 
Commission. In other cases, a parolee may be released from an executed 
warrant whenever the Commission finds such action necessary to serve the 
ends of justice.
    (e) A summons to appear at a probable cause hearing or revocation 
hearing shall be served upon the parolee in person by delivering to the 
parolee a copy of the summons and the application therefor. Service 
shall be made by any Federal or District of Columbia officer authorized 
to serve criminal process and certification of such service shall be 
returned to the Commission.
    (f) Official notification of the issuance of a Commission warrant 
shall authorize any law enforcement officer within the United States to 
hold the parolee in custody until the warrant can be executed in 
accordance with paragraph (a) of this section.

[ 65 FR 45888, July 26, 2000, as amended at 67 FR 2569, Jan. 18, 2002]



Sec. 2.100  Warrant placed as detainer and dispositional review.

    (a) When a parolee is in the custody of other law enforcement 
authorities, or is serving a new sentence of imprisonment imposed for a 
crime committed while on parole or for a violation of some other form of 
community supervision, a parole violation warrant may be lodged against 
him as a detainer.
    (b) If the parolee is serving a new sentence of imprisonment, and is 
eligible and has applied for parole under the Commission's jurisdiction, 
a dispositional revocation hearing shall be scheduled simultaneously 
with the initial hearing on the new sentence. In such cases, the warrant 
shall not be executed except upon final order of the Commission 
following such hearing, as provided in Sec. 2.81(c). In any other 
cases, the detainer shall be reviewed on the record pursuant to 
paragraph (c) of this section.
    (c) If the parolee is serving a new sentence of imprisonment that 
does not include eligibility for parole under the

[[Page 177]]

Commission's jurisdiction, the Commission shall review the detainer upon 
the request of the parolee. Following such review, the Commission may:
    (1) Withdraw the detainer and order reinstatement of the parolee to 
supervision upon release from custody, or close the case if the 
expiration date has passed.
    (2) Order a dispositional revocation hearing to be conducted by a 
hearing examiner or an official designated by the Commission at the 
institution in which the parolee is confined. In such case, the warrant 
shall not be executed except upon final order of the Commission 
following such hearing.
    (3) Let the detainer stand until the new sentence is completed. 
Following the release of the parolee, and the execution of the 
Commission's warrant, an institutional revocation hearing shall be 
conducted after the parolee is returned to federal custody.
    (d) Dispositional revocation hearings pursuant to this section shall 
be conducted in accordance with the provisions at Sec. 2.103 governing 
institutional revocation hearings, except that a hearing conducted at a 
state or local facility may be conducted by a hearing examiner, hearing 
examiner panel, or other official designated by the Commission. 
Following a revocation hearing conducted pursuant to this section, the 
Commission may take any action specified in Sec. 2.105.
    (1) The date the violation term commences is the date the 
Commission's warrant is executed. It shall be the policy of the 
Commission that the parolee's violation term (i.e., the unexpired term 
that remained to be served at the time the parolee was last released on 
parole) shall start to run only upon his release from the confinement 
portion of the sentence for the new offense, or the date of reparole 
granted pursuant to this subpart, whichever comes first.
    (2) A parole violator whose parole is revoked shall be given credit 
for all time in confinement resulting from any new offense or violation 
that is considered by the Commission as a basis for revocation, but 
solely for the limited purpose of satisfying the time ranges in the 
reparole guidelines at Sec. 2.81. The computation of the prisoner's 
sentence, and forfeiture of time on parole pursuant to D.C. Code 24-
406(c), is not affected by such guideline credit.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003; 
74 FR 28605, June 17, 2009]



Sec. 2.101  Probable cause hearing and determination.

    (a) Hearing. A parolee who is retaken and held in custody in the 
District of Columbia on a warrant issued by the Commission, and who has 
not been convicted of a new crime, shall be given a probable cause 
hearing by an examiner of the Commission no later than five days from 
the date of such retaking. A parolee who is retaken and held in custody 
outside the District of Columbia, but within the Washington DC 
metropolitan area, and who has not been convicted of a new crime, shall 
be given a probable cause hearing by an examiner of the Commission 
within five days of the parolee's arrival at a facility where probable 
cause hearings are conducted. The purpose of a probable cause hearing is 
to determine whether there is probable cause to believe that the parolee 
has violated parole as charged, and if so, whether a local or 
institutional revocation hearing should be conducted. If the examiner 
finds probable cause, the examiner shall schedule a final revocation 
hearing to be held within 65 days of such parolee's arrest.
    (b) Notice and opportunity to postpone hearing. Prior to the 
commencement of each docket of probable cause hearings in the District 
of Columbia, a list of the parolees who are scheduled for probable cause 
hearings, together with a copy of the warrant application for each 
parolee, shall be sent to the D.C. Public Defender Service. At or before 
the probable cause hearing, the parolee (or the parolee's attorney) may 
submit a written request that the hearing be postponed for any period up 
to thirty days, and the Commission shall ordinarily grant such requests. 
Prior to the commencement of the probable cause hearing, the examiner 
shall advise the parolee that the parolee may accept representation by 
the attorney from the D.C. Public Defender Service who is assigned to 
that docket, waive the assistance of an attorney at the probable cause 
hearing, or have the probable

[[Page 178]]

cause hearing postponed in order to obtain another attorney and/or 
witnesses on his behalf. In addition, the parolee may request the 
Commission to require the attendance of adverse witnesses (i.e., 
witnesses who have given information upon which revocation may be based) 
at a postponed probable cause hearing. Such adverse witnesses may be 
required to attend either a postponed probable cause hearing, or a 
combined postponed probable cause and local revocation hearing, provided 
the parolee meets the requirements of Sec. 2.102(a) for a local 
revocation hearing. The parolee shall also be given notice of the time 
and place of any postponed probable cause hearing.
    (c) Review of the charges. At the beginning of the probable cause 
hearing, the examiner shall ascertain that the notice required by Sec. 
2.99 (b) has been given to the parolee. The examiner shall then review 
the violation charges with the parolee and shall apprise the parolee of 
the evidence that has been submitted in support of the charges. The 
examiner shall ascertain whether the parolee admits or denies each 
charge listed on the warrant application (or other notice of charges), 
and shall offer the parolee an opportunity to rebut or explain the 
allegations contained in the evidence giving rise to each charge. The 
examiner shall also receive the statements of any witnesses and 
documentary evidence that may be presented by the parolee. At a 
postponed probable cause hearing, the examiner shall also permit the 
parolee to confront and cross-examine any adverse witnesses in 
attendance, unless good cause is found for not allowing confrontation. 
Whenever a probable cause hearing is postponed to secure the appearance 
of adverse witnesses, the Commission will ordinarily order a combined 
probable cause and local revocation hearing as provided in paragraph (i) 
of this section.
    (d) Probable cause determination. At the conclusion of the probable 
cause hearing, the examiner shall determine whether probable cause 
exists to believe that the parolee has violated parole as charged, and 
shall so inform the parolee. The examiner shall then take either of the 
following actions:
    (1) If the examiner determines that no probable cause exists for any 
violation charge, the examiner shall order that the parolee be released 
from the custody of the warrant and either reinstated to parole, or 
discharged from supervision if the parolee's sentence has expired.
    (2) If the hearing examiner determines that probable cause exists on 
any violation charge, and the parolee has requested (and is eligible 
for) a local revocation hearing in the District of Columbia as provided 
by Sec. 2.102 (a), the examiner shall schedule a local revocation 
hearing for a date that is within 65 days of the parolee's arrest. After 
the probable cause hearing, the parolee (or the parolee's attorney) may 
submit a written request for a postponement. Such postponements will 
normally be granted if the request is received no later than fifteen 
days before the date of the revocation hearing. A request for a 
postponement that is received by the Commission less than fifteen days 
before the scheduled date of the revocation hearing will be granted only 
for a compelling reason. The parolee (or the parolee's attorney) may 
also request, in writing, a hearing date that is earlier than the date 
scheduled by the examiner, and the Commission will accommodate such 
request if practicable.
    (e) Institutional revocation hearing. If the parolee is not eligible 
for a local revocation hearing as provided by Sec. 2.102 (a), or has 
requested to be transferred to an institution for his revocation 
hearing, the Commission will request the Bureau of Prisons to designate 
the parolee to an appropriate institution, and an institutional 
revocation hearing shall be scheduled for a date that is within ninety 
days of the parolee's retaking.
    (f) Digest of the probable cause hearing. At the conclusion of the 
probable cause hearing, the examiner shall prepare a digest summarizing 
the evidence presented at the hearing, the responses of the parolee, and 
the examiner's findings as to probable cause.
    (g) Release notwithstanding probable cause. Notwithstanding a 
finding of probable cause, the Commission may order the parolee's 
reinstatement to

[[Page 179]]

supervision or release pending further proceedings, if it determines 
that:
    (1) Continuation of revocation proceedings is not warranted despite 
the finding of probable cause; or
    (2) Incarceration pending further revocation proceedings is not 
warranted by the frequency or seriousness of the alleged violation(s), 
and the parolee is neither likely to fail to appear for further 
proceedings, nor is a danger to himself or others.
    (h) Conviction as probable cause. Conviction of any crime committed 
subsequent to release by a parolee shall constitute probable cause for 
the purposes of this section, and no probable cause hearing shall be 
conducted unless a hearing is needed to consider additional violation 
charges that may be determinative of the Commission's decision whether 
to revoke parole.
    (i) Combined probable cause and local revocation hearing. A 
postponed probable cause hearing may be conducted as a combined probable 
cause and local revocation hearing, provided such hearing is conducted 
within 65 days of the parolee's arrest and the parolee has been notified 
that the postponed probable cause hearing will constitute his final 
revocation hearing. The Commission's policy is to conduct a combined 
probable cause and local revocation hearing whenever adverse witnesses 
are required to appear and give testimony with respect to contested 
charges.
    (j) Late received charges. If the Commission is notified of an 
additional charge after probable cause has been found to proceed with a 
revocation hearing, the Commission may:
    (1) Remand the case for a supplemental probable cause hearing if the 
new charge may be contested by the parolee and possibly result in the 
appearance of witness(es) at the revocation hearing;
    (2) Notify the parolee that the additional charge will be considered 
at the revocation hearing without conducting a supplemental probable 
cause hearing; or
    (3) Determine that the new charge shall not be considered at the 
revocation hearing.

[67 FR 2569, Jan. 18, 2002, as amended at 68 FR 3390, Jan. 24, 2003]



Sec. 2.102  Place of revocation hearing.

    (a) If the parolee requests a local revocation hearing, he shall be 
given a revocation hearing reasonably near the place of the alleged 
violation(s) or arrest, with the opportunity to contest the charges 
against him, if the following conditions are met:
    (1) The parolee has not been convicted of a crime committed while 
under supervision; and
    (2) The parolee denies all charges against him.
    (b) The parolee shall also be given a local revocation hearing if he 
admits (or has been convicted of) one or more charged violations, but 
denies at least one unadjudicated charge that may be determinative of 
the Commission's decision regarding revocation and/or reparole, and 
requests the presence of one or more adverse witnesses regarding that 
contested charge. If the appearance of such witness at the hearing is 
precluded by the Commission for good cause, a local revocation hearing 
shall not be ordered.
    (c) If there are two or more contested charges, a local revocation 
hearing may be conducted near the place of the violation chiefly relied 
upon by the Commission as a basis for the issuance of the warrant or 
summons.
    (d)(1) A parolee shall be given an institutional revocation hearing 
upon the parolee's return or recommitment to an institution if the 
parolee:
    (i) Voluntarily waives the right to a local revocation hearing; or
    (ii) Admits (or has been convicted of) one or more charged 
violations without contesting any unadjudicated charge that may be 
determinative of the Commission's decision regarding revocation and/or 
reparole.
    (2) An institutional revocation hearing may also be conducted in the 
District of Columbia jail or prison facility in which the parolee is 
being held. On his own motion, a Commissioner may designate any case 
described in paragraph (d)(1) of this section for a local revocation 
hearing. The difference in procedures between a ``local revocation 
hearing'' and an ``institutional revocation hearing'' is set forth in 
Sec. 2.103(b).

[[Page 180]]

    (e) A parolee retaken on a warrant issued by the Commission shall be 
retained in custody until final action relative to revocation of his 
parole, unless otherwise ordered by the Commission under Sec. 
2.101(e)(3). A parolee who has been given a revocation hearing pursuant 
to the issuance of a summons shall remain on supervision pending the 
decision of the Commission, unless the Commission has provided 
otherwise.
    (f) A local revocation hearing shall be held not later than sixty-
five days from the retaking of the parolee on the parole violation 
warrant. An institutional revocation hearing shall be held within ninety 
days of the retaking of the parolee on the parole violation warrant. If 
the parolee requests and receives any postponement, or consents to any 
postponement, or by his actions otherwise precludes the prompt 
completion of revocation proceedings in his case, the above-stated time 
limits shall be correspondingly extended.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2570, Jan. 18, 2002; 68 
FR 41531, July 14, 2003]



Sec. 2.103  Revocation hearing procedure.

    (a) The purpose of the revocation hearing shall be to determine 
whether the parolee has violated the conditions of his release and, if 
so, whether his parole or mandatory release should be revoked or 
reinstated.
    (b) At a local revocation hearing, the alleged violator may present 
voluntary witnesses and documentary evidence in his behalf. The alleged 
violator may also seek the compulsory attendance of any adverse 
witnesses for cross-examination, and any relevant favorable witnesses 
who have not volunteered to attend. At an institutional revocation 
hearing, the alleged violator may present voluntary witnesses and 
documentary evidence in his behalf, but may not request the Commission 
to secure the attendance of any adverse or favorable witness. At any 
hearing, the presiding hearing officer or examiner may limit or exclude 
any irrelevant or repetitious statement or documentary evidence, and may 
prohibit the parolee from contesting matters already adjudicated against 
him in other forums.
    (c) At a local revocation hearing, the Commission shall, on the 
request of the alleged violator, require the attendance of any adverse 
witnesses who have given statements upon which revocation may be based. 
The adverse witnesses who are present shall be made available for 
questioning and cross-examination in the presence of the alleged 
violator. The Commission may also require the attendance of adverse 
witnesses on its own motion, and may excuse any requested adverse 
witness from appearing at the hearing (or from appearing in the presence 
of the alleged violator) if it finds good cause for so doing. A finding 
of good cause for the non-appearance of a requested adverse witness may 
be based, for example, on a significant possibility of harm to the 
witness, the witness not being reasonably available, and/or the 
availability of documentary evidence that is an adequate substitute for 
live testimony.
    (d) All evidence upon which a finding of violation may be based 
shall be disclosed to the alleged violator before the revocation 
hearing. Such evidence shall include the Community Supervision Officer's 
letter summarizing the parolee's adjustment to parole and requesting the 
warrant, all other documents describing the charged violation or 
violations of parole, and any additional evidence upon which the 
Commission intends to rely in determining whether the charged violation 
or violations, if sustained, would warrant revocation of parole. If the 
parolee is represented by an attorney, the attorney shall be provided, 
prior to the revocation hearing, with a copy of the parolee's 
presentence investigation report, if such report is available to the 
Commission. If disclosure of any information would reveal the identity 
of a confidential informant or result in harm to any person, that 
information may be withheld from disclosure, in which case a summary of 
the withheld information shall be disclosed to the parolee prior to the 
revocation hearing.
    (e) An alleged violator may be represented by an attorney at either 
a local or an institutional revocation hearing. In lieu of an attorney, 
an alleged violator may be represented at any revocation hearing by a 
person of his choice. However, the role of such non-attorney 
representative shall be

[[Page 181]]

limited to offering a statement on the alleged violator's behalf. Only 
licensed attorneys shall be permitted to question witnesses, make 
objections, and otherwise provide legal representation for parolees, 
except in the case of law students appearing before the Commission as 
part of a court-approved clinical practice program, with the consent of 
the alleged violator, and under the personal direction of a lawyer or 
law professor who is physically present at the hearing.
    (f) At a local revocation hearing, the Commission shall secure the 
presence of the parolee's Community Supervision Officer, or a substitute 
Community Supervision Officer, who shall bring the parolee's supervision 
file, if the parolee's Community Supervision Officer is not available. 
At the request of the hearing examiner, such officer shall provide 
testimony at the hearing concerning the parolee's adjustment to parole.
    (g) After the revocation hearing, the hearing examiner shall prepare 
a summary of the hearing that includes a description of the evidence 
against the parolee and the evidence submitted by the parolee in defense 
or mitigation of the charges, a summary of the arguments against 
revocation presented by the parolee, and the examiner's recommended 
decision. The hearing examiner's summary, together with the parolee's 
file (including any documentary evidence and letters submitted on behalf 
of the parolee), shall be given to another examiner for review. When two 
hearing examiners concur in a recommended disposition, that 
recommendation, together with the parolee's file and the hearing 
examiner's summary of the hearing, shall be submitted to the Commission 
for decision.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2570, Jan. 18, 2002]



Sec. 2.104  Issuance of subpoena for appearance of witnesses or 
production of documents.

    (a)(1) If any adverse witness (i.e., a person who has given 
information upon which revocation may be based) refuses, upon request by 
the Commission, to appear at a probable cause hearing or local 
revocation hearing, a Commissioner may issue a subpoena for the 
appearance of such witness. Such subpoena may also be issued at the 
discretion of a Commissioner in the event such adverse witness is judged 
unlikely to appear as requested.
    (2) In addition, a Commissioner may, upon a showing by the parolee 
that a witness whose testimony is necessary to the proper disposition of 
his case will not appear voluntarily at a local revocation hearing or 
provide an adequate written statement of his testimony, issue a subpoena 
for the appearance of such witness at the revocation hearing.
    (3) Such subpoenas may also be issued at the discretion of a 
Commissioner if deemed necessary for the orderly processing of the case.
    (b) A subpoena issued pursuant to paragraph (a) of this section may 
require the production of documents as well as, or in lieu of, a 
personal appearance. The subpoena shall specify the time and the place 
at which the person named therein is commanded to appear, and shall 
specify any documents required to be produced.
    (c) A subpoena may be served by any Federal or District of Columbia 
officer authorized to serve criminal process. The subpoena may be served 
at any place within the judicial district in which the place specified 
in the subpoena is located, or any place where the witness may be found. 
Service of a subpoena upon a person named therein shall be made by 
delivering a copy thereof to such a person.
    (d) If a person refuses to obey such subpoena, the Commission may 
petition a court of the United States for the judicial district on which 
the parole proceeding is being conducted, or in which such person may be 
found, to require such person to appear, testify, or produce evidence. 
If the court issues an order requiring such person to appear before the 
Commission, failure to obey such an order is punishable as contempt. 18 
U.S.C. 4214 (1976).

[65 FR 45888, July 26, 2000, as amended at 67 FR 2571, Jan. 18, 2002]



Sec. 2.105  Revocation decisions.

    (a) Whenever a parolee is summoned or retaken by the Commission, and 
the Commission finds by a preponderance of the evidence that the parolee 
has

[[Page 182]]

violated one or more conditions of parole, the Commission may take any 
of the following actions:
    (1) Restore the parolee to supervision, including where appropriate:
    (i) Reprimand the parolee;
    (ii) Modify the parolee's conditions of release; or
    (iii) Refer the parolee to a residential community treatment center 
for all or part of the remainder of his original sentence; or
    (2) Revoke parole.
    (b) If parole is revoked under this section, the Commission shall 
determine whether immediate reparole is warranted or whether the parolee 
should be returned to prison. If the parolee is returned to prison, the 
Commission shall also determine whether to set a presumptive release 
date pursuant to Sec. 2.81.
    (c) Decisions under this section shall be made by one Commissioner, 
except that a decision to override an examiner panel recommendation 
shall require the concurrence of two Commissioners. The final decision 
following a local revocation hearing shall be issued within 86 days of 
the retaking of the parolee on the parole violation warrant. The final 
decision following an institutional revocation hearing shall be issued 
within 21 days of the hearing, excluding weekends and holidays.
    (d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this 
section, the Commission shall grant a revoked parolee credit toward 
completion of the sentence for all time served on parole.
    (2)(i) The Commission shall forfeit credit for the period of parole 
if a parolee is convicted of a crime committed during a period of parole 
and that is punishable by a term of imprisonment of more than one year.
    (ii) If the crime is punishable by any other term of imprisonment, 
the Commission shall forfeit credit for the period of parole unless the 
Commission determines that such forfeiture is not necessary to protect 
the public welfare. In making this decision, the Commission shall 
consider the nature and circumstances of the violation behavior, the 
history and characteristics of the offender, including the offender's 
supervision history, and other available and relevant information.
    (3) If, during the period of parole, a parolee intentionally refuses 
or fails to respond to any reasonable request, order, summons, or 
warrant of the Commission or any member or agent of the Commission, the 
Commission may order that the parolee not receive credit for the period 
of time that the Commission determines that the parolee failed or 
refused to respond to such a request, order, summons, or warrant.
    (4) The provisions of this paragraph shall apply only to any period 
of parole that is being served on or after May 20, 2009, and shall not 
apply to any period of parole that was revoked before that date.
    (e) Notwithstanding paragraphs (a) through (d) of this section, 
prisoners committed under the Federal Youth Corrections Act shall not be 
subject to forfeiture of time on parole, but shall serve uninterrupted 
sentences from the date of conviction except as provided in Sec. 
2.10(b) and (c). DC Code 24-406(c) and paragraphs (a) through (d) of 
this section are fully applicable to prisoners serving sentences under 
the DC Youth Rehabilitation Act.
    (f) In determining whether to revoke parole for non-compliance with 
a condition requiring payment of a fine, restitution, court costs or 
assessment, and/or court ordered child support or alimony payment, the 
Commission shall consider the parolee's employment status, earning 
ability, financial resources, and any other special circumstances that 
may have a bearing on the matter. Revocation shall not be ordered unless 
the parolee is found to be deliberately evading or refusing compliance.
    (g) A parolee may appeal a decision made under this section to 
revoke parole, to grant or deny reparole, or to modify the conditions of 
release. The provisions of Sec. 2.26 on the time limits for filing and 
deciding the appeal, the grounds for appeal, the format of the

[[Page 183]]

appeal, the limits regarding the submission of exhibits, and voting 
requirements apply to an appeal submitted under this paragraph.

[65 FR 45888, July 26, 2000, as amended at 67 FR 2571, Jan. 18, 2002; 68 
FR 41531, July 14, 2003; 69 FR 68793, Nov. 26, 2004; 74 FR 28605, June 
17, 2009; 74 FR 29941, June 24, 2009]



Sec. 2.106  Youth Rehabilitation Act.

    (a) Regulations governing YRA offenders and D.C. Code FYCA 
offenders. Unless the judgment and commitment order provides otherwise, 
the provisions of this section shall apply to an offender sentenced 
under the Youth Rehabilitation Act of 1985 (D.C. Code 24-901 et seq.) 
(YRA) who committed his offense before 5 p.m., August 11, 2000, and a 
D.C. Code offender sentenced under the former Federal Youth Corrections 
Act (former 18 U.S.C. 5005 et seq.) (FYCA). An offender sentenced under 
the YRA who committed his offense (or who continued to commit his 
offense) on or after 5 p.m., August 11, 2000, is not eligible for 
release on parole, but may be terminated from a term of supervised 
release before the expiration of the term and receive a certificate 
setting aside the conviction under Sec. 2.208(f). See D.C. Code 24-
904(c) and 24-906(c).
    (b) Application of this subpart to YRA offenders. All provisions of 
this subpart that apply to adult offenders also apply to YRA offenders 
unless a specific exception is made for YRA (or youth) offenders.
    (c) No further benefit finding. If there is a finding that a YRA 
offender will derive no further benefit from treatment, such prisoner 
shall be considered for parole, and for any other action, exclusively 
under the provisions of this subpart that are applicable to adult 
offenders. Such a finding may be made pursuant to D.C. Code 24-905 by 
the Department of Corrections or by the Bureau of Prisons, and shall be 
promptly forwarded to the Commission. However, if the finding is 
appealed to the sentencing judge, the prisoner will continue to be 
treated under the provisions pertaining to YRA offenders until the judge 
makes a final decision denying the appeal.
    (d)(1) Program plans and using program achievement to set the parole 
date. At a YRA prisoner's initial parole hearing, a program plan for the 
prisoner's treatment shall be submitted by institutional staff and 
reviewed by the hearing examiner. Any proposed modifications to the plan 
shall be discussed at the hearing, although further relevant information 
may be presented and considered after the hearing. The plan shall 
adequately account for the risk implications of the prisoner's current 
offense and criminal history and shall address the prisoner's need for 
rehabilitational training. The program plan shall also include an 
estimated date of completion. The criteria at Sec. 2.64(d) for 
successful response to treatment programs shall be considered by the 
Commission in determining whether the proposed program plan would 
effectively reduce the risk to the public welfare.
    (2) The youth offender's response to treatment programs and program 
achievement shall be considered with other relevant factors, such as the 
offense and parole prognosis, in determining when the youth offender 
should be conditionally released under supervision. See Sec. 2.64(e). 
The guidelines at Sec. 2.80(k)-(m) on awarding superior program 
achievement and the subtraction of any award in determining the total 
guideline range shall not be used in the decision.
    (e) Parole violators. A YRA parolee who has had his parole revoked 
shall be scheduled for a rehearing within six months of the revocation 
hearing to review the new program plan prepared by institutional staff, 
unless a parole effective date is granted after the revocation hearing. 
Such program plan shall reflect a thorough reassessment of the 
prisoner's rehabilitational needs in light of the prisoner's failure on 
parole. Decisions on reparole shall be made using the guidelines at 
Sec. 2.80. If a YRA parolee is sentenced to a new prison term of one 
year or more for a crime committed while on parole, the case shall be 
referred to correctional authorities for consideration of a ``no further 
benefit'' finding.
    (f) Unconditional discharge from supervision. (1) A YRA parolee may 
be unconditionally discharged from supervision after service of one year 
on parole supervision if the Commission

[[Page 184]]

finds that supervision is no longer needed to protect the public safety. 
A review of the parolee's file shall be conducted after the conclusion 
of each year of supervision upon receipt of an annual progress report, 
and upon receipt of a final report to be submitted by the supervision 
officer six months prior to the sentence expiration date.
    (2) In making a decision concerning unconditional discharge, the 
Commission shall consider the facts and circumstances of each case, 
focusing on the risk the parolee poses to the public and the benefit he 
may obtain from further supervision. The decision shall be made after an 
analysis of case-specific factors, including, but not limited to, the 
parolee's prior criminal history, the offense behavior that led to his 
conviction, record of drug or alcohol dependence, employment history, 
stability of residence and family relationships, and the number and 
nature of any incidents while under supervision (including new arrests, 
alleged parole violations, and criminal investigations).
    (3) An order of unconditional discharge from supervision terminates 
the YRA offender's sentence. Whenever a YRA offender is unconditionally 
discharged from supervision, the Commission shall issue a certificate 
setting aside the offender's conviction. If the YRA offender is not 
unconditionally discharged from supervision prior to the expiration of 
his sentence, a certificate setting aside the conviction may be issued 
nunc pro tunc if the Commission finds that the failure to issue the 
decision on time was due to administrative delay or error, or that the 
Supervision Officer failed to present the Commission with a progress 
report before the end of the supervision term, and the offender's own 
actions did not contribute to the absence of the final report. However, 
the offender must have deserved to be unconditionally discharged from 
supervision before the end of his supervision term for a nunc pro tunc 
certificate to issue.

[65 FR 45888, July 26, 2000, as amended at 67 FR 57946, Sept. 13, 2002; 
68 FR 41531, July 14, 2003]



Sec. 2.107  Interstate Compact.

    (a) Pursuant to D.C. Code 24-133(b)(2)(G), the Director of the Court 
Services and Offender Supervision Agency (CSOSA), or his designee, shall 
be the Compact Administrator with regard to the following individuals on 
parole supervision pursuant to the Interstate Parole and Probation 
Compact authorized by D.C. Code 24-451:
    (1) All D.C. Code parolees who are under the supervision of agencies 
in jurisdictions outside the District of Columbia; and
    (2) All parolees from other jurisdictions who are under the 
supervision of CSOSA within the District of Columbia.
    (b) Transfers of supervision pursuant to the Interstate Compact, 
where appropriate, may be arranged by the Compact Administrator, or his 
designee, and carried out with the approval of the Parole Commission. A 
D.C. Code parolee who is under the Parole Commission's jurisdiction will 
ordinarily be released or transferred to the supervision of a U.S. 
Probation Office outside the District of Columbia.
    (c) Upon receipt of a report that a D.C. Code parolee, who is under 
supervision pursuant to the Interstate Compact in a jurisdiction outside 
the District of Columbia, has violated his or her parole, the Commission 
may issue a warrant pursuant to the procedures of Sec. 2.98. The 
warrant may be executed as provided as in Sec. 2.99. A parolee who is 
arrested on such a warrant shall be considered to be a prisoner in 
federal custody, and may be returned to the District of Columbia or 
designated to a facility of the Bureau of Prisons at the request of the 
Commission.
    (d) If a parolee from another jurisdiction, who is under the 
supervision of CSOSA pursuant to the Interstate Compact, is alleged to 
have violated his or her parole, the Compact Administrator or his 
designee may issue a temporary warrant to secure the arrest of the 
parolee pending issuance of a warrant by the original paroling agency. 
If so requested, the Commission will conduct a courtesy revocation 
hearing on behalf of the original paroling agency whenever a revocation 
hearing within the District of Columbia is required.

[[Page 185]]

    (e) The term ``D.C. Code parolee'' shall include any felony offender 
who is serving a period of parole or mandatory release supervision 
pursuant to a sentence of imprisonment imposed under the District of 
Columbia Code.

[65 FR 45888, July 26, 2000, as amended at 68 FR 41531, July 14, 2003]



           Subpart D_District of Columbia Supervised Releasees

    Source: 68 FR 41700, July 15, 2003, unless otherwise noted.



Sec. 2.200  Authority, jurisdiction, and functions of the U.S. Parole 
Commission with respect to offenders serving terms of supervised 

release imposed by the 
          Superior Court of the District of Columbia.

    (a) The U.S. Parole Commission has jurisdiction, pursuant to D.C. 
Code 24-133(c)(2), over all offenders serving terms of supervised 
release imposed by the Superior Court of the District of Columbia under 
the Sentencing Reform Emergency Amendment Act of 2000.
    (b) The U.S. Parole Commission shall have and exercise the same 
authority with respect to a term of supervised release as is vested in 
the United States district courts by 18 U.S.C. 3583(d) through (i), 
except that:
    (1) The procedures followed by the Commission in exercising that 
authority shall be those set forth with respect to offenders on federal 
parole at 18 U.S.C. 4209 through 4215 (Chapter 311 of 18 United States 
Code); and
    (2) An extension of a term of supervised release under subsection 
(e)(2) of 18 U.S.C. 3583 may only be ordered by the Superior Court upon 
motion from the Commission.
    (c) Within the District of Columbia, supervision of offenders on 
terms of supervised release under the Commission's jurisdiction is 
carried out by the Community Supervision Officers of the Court Services 
and Offender Supervision Agency (CSOSA), pursuant to D.C. Code 24-
133(c)(2). Outside the District of Columbia, supervision is carried out 
by United States Probation Officers pursuant to 18 U.S.C. 3655. For the 
purpose of this subpart, any reference to a ``supervision officer'' 
shall include both a Community Supervision Officer of CSOSA and a United 
States Probation Officer in the case of a releasee who is under 
supervision outside the District of Columbia.



Sec. 2.201  Period of supervised release.

    (a) A period of supervised release that is subject to the 
Commission's jurisdiction begins to run on the day the offender is 
released from prison and continues to the expiration of the full term 
imposed by the Superior Court, unless early termination is granted by 
the Commission.
    (b) A term of supervised release shall run concurrently with any 
federal, state, or local term of probation, parole or supervised release 
for another offense, but does not run while the offender is imprisoned 
in connection with a conviction for a federal, state, or local crime 
(including a term of imprisonment resulting from a probation, parole, or 
supervised release revocation) unless the period of imprisonment is less 
than 30 days. Such interruption of the term of supervised release is 
required by D.C. Code 24-403.01(b)(5), and is not dependent upon the 
issuance of a warrant or an order of revocation by the Commission.
    (c)(1) For an offender serving multiple terms of supervised release 
imposed by the Superior Court, the duration of the Commission's 
jurisdiction over the offender shall be governed by the longest term 
imposed.
    (2) If the Commission terminates such an offender from supervision 
on the longest term imposed, this order shall have the effect of 
terminating the offender from all terms of supervised release that the 
offender is serving at the time of the order.
    (3) If the Commission issues a warrant or summons for such an 
offender, or revokes supervised release for such an offender, the 
Commission's action shall have the effect of commencing revocation 
proceedings on, or revoking, all terms that the offender is serving at 
the time of the action. In revoking supervised release the Commission 
shall impose a term of imprisonment and a further term of supervised 
release as if the Commission were revoking a single term of supervised 
release. For the purpose of calculating the maximum authorized term of 
imprisonment at first

[[Page 186]]

revocation and the original maximum authorized term of supervised 
release, the Commission shall use the unexpired supervised release term 
imposed for the offense punishable by the longest maximum term of 
imprisonment.
    (4) If such an offender is released to a further term of supervised 
release after serving a prison term resulting from a supervised release 
revocation, the Commission shall consider the offender to be serving 
only the single term of supervised release ordered after revocation.



Sec. 2.202  Prerelease procedures.

    (a) At least three months, but not more than six months, prior to 
the release of a prisoner who has been sentenced to a term or terms of 
supervised release by the Superior Court, the responsible prison 
officials shall have the prisoner's release plan forwarded to CSOSA (or 
to the appropriate U.S. Probation Office) for investigation. If the 
supervision officer believes that any special condition of supervised 
release should be imposed prior to the release of the prisoner, the 
officer shall forward a request for such condition to the Commission. 
The Commission may, upon such request or of its own accord, impose any 
special condition in addition to the standard conditions specified in 
Sec. 2.204, which shall take effect on the day the prisoner is 
released.
    (b) Upon the release of the prisoner, the responsible prison 
officials shall instruct the prisoner, in writing, to report to the 
assigned supervision office within 72 hours, and shall inform the 
prisoner that failure to report on time shall constitute a violation of 
supervised release. If the prisoner is released to the custody of other 
authorities, the prisoner shall be instructed to report to the 
supervision office within 72 hours after his release from the physical 
custody of such authorities. If the prisoner is unable to report to the 
supervision office within 72 hours of release because of an emergency, 
the prisoner shall be instructed to report to the nearest U.S. Probation 
Office and obey the instructions given by the duty officer.



Sec. 2.203  Certificate of supervised release.

    When an offender who has been released from prison to serve a term 
of supervised release reports to the supervision officer for the first 
time, the supervision officer shall deliver to the releasee a 
certificate listing the conditions of supervised release imposed by the 
Commission and shall explain the conditions to the releasee.



Sec. 2.204  Conditions of supervised release.

    (a)(1) General conditions of release and notice by certificate of 
release. The conditions set forth in paragraphs (a)(3)-(6) of this 
section apply to every releasee and are necessary to protect the public 
from further crimes by the releasee and to provide adequate supervision 
of the releasee. The certificate of release issued to each releasee by 
the Commission notifies the releasee of these conditions.
    (2) Effect of refusal to sign certificate of release. A releasee who 
refuses to sign the certificate of release is nonetheless bound by the 
conditions set forth in that certificate.
    (3) Reporting arrival. The releasee shall go directly to the 
district named in the certificate, appear in person at the supervision 
office, and report the releasee's residence address to the supervision 
officer. If the releasee is unable to appear in person at that office 
within 72 hours of release because of an emergency, the releasee shall 
report to the nearest U.S. Probation Office and obey the instructions 
given by the duty officer. A releasee who is initially released to the 
physical custody of another authority shall follow the procedures 
described in this paragraph upon release from the custody of the other 
authority.
    (4) Providing information to and cooperating with the supervision 
officer. (i) The releasee shall, between the first and third day of each 
month, make a written report to the supervision officer on a form 
provided for that purpose. The releasee shall also report to the 
supervision officer at such times and in such a manner as that officer 
directs and shall provide such information as the supervision officer 
requests.

[[Page 187]]

All information that a releasee provides to the supervision officer 
shall be complete and truthful.
    (ii) The releasee shall notify the supervision officer within two 
days of an arrest or questioning by a law-enforcement officer, a change 
in place of residence, or a change in employment.
    (iii) The releasee shall permit the supervision officer to visit the 
releasee's residence and workplace.
    (iv) The releasee shall permit the supervision officer to confiscate 
any material that the supervision officer believes may constitute 
contraband and that is in plain view in the releasee's possession, 
including in the releasee's residence, workplace, or vehicle.
    (v) The releasee shall submit to a drug or alcohol test whenever 
ordered to do so by the supervision officer.
    (5) Prohibited conduct. (i) The releasee shall not violate any law 
and shall not associate with a person who is violating any law.
    (ii) The releasee shall not possess a firearm, other dangerous 
weapon, or ammunition.
    (iii) The releasee shall not drink alcoholic beverages to excess and 
shall not illegally buy, possess, use, or administer a controlled 
substance. The releasee shall not frequent a place where a controlled 
substance is illegally sold, dispensed, used, or given away.
    (iv) The releasee shall not leave the geographic limits set by the 
certificate of release without written permission from the supervision 
officer.
    (v) The releasee shall not associate with a person who has a 
criminal record without permission from the supervision officer.
    (vi) The releasee shall not enter into an agreement to act as an 
informer or special agent for a law-enforcement agency without the prior 
approval of the Commission.
    (6) Additional conditions. (i) The releasee shall make a diligent 
effort to work regularly, unless excused by the supervision officer, and 
to support any legal dependent. The releasee shall participate in an 
employment readiness program if so directed by the supervision officer.
    (ii) The releasee shall make a diligent effort to satisfy any fine, 
restitution order, court costs or assessment, or court-ordered child 
support or alimony payment to which the releasee is subject. The 
releasee shall provide financial information relevant to the payment of 
such a financial obligation that is requested by the supervision 
officer. If unable to pay such a financial obligation in one sum, the 
releasee shall cooperate with the supervision officer to establish an 
installment-payment schedule.
    (iii) If the term of supervision results from a conviction for a 
domestic violence crime, and such conviction is the releasee's first 
conviction for such a crime, the releasee shall, as directed by the 
supervision officer, attend an approved offender-rehabilitation program 
if such a program is readily available within a 50-mile radius of the 
releasee's residence.
    (iv) The releasee shall comply with any applicable sex-offender 
reporting and registration law.
    (v) The releasee shall provide a DNA sample, as directed by the 
supervision officer, if collection of such sample is authorized by the 
DNA Analysis Backlog Elimination Act of 2000.
    (vi) If the releasee is supervised by the District of Columbia Court 
Services and Offender Supervision Agency, the releasee shall submit to 
the sanctions imposed by the supervision officer within the limits 
established by an approved schedule of graduated sanctions if the 
supervision officer finds that the releasee has tested positive for 
illegal drugs or has committed a noncriminal violation of the conditions 
of release. Notwithstanding the imposition of a graduated sanction, if 
the Commission believes the releasee is a risk to the public safety, or 
is not complying in good faith with the sanction imposed, the Commission 
may commence revocation proceedings on the alleged violation(s) upon 
which the graduated sanction was based.
    (vii) As directed by the supervision officer, the releasee shall 
notify a person of a risk of harm that may be determined from a review 
of the releasee's criminal record or personal history and 
characteristics. In addition, the supervision officer is authorized to 
make such notifications as are permitted by the Commission's rules,

[[Page 188]]

and to confirm the releasee's compliance with any notification 
directive.
    (b)(1) Special conditions of release. The Commission may impose a 
condition other than a condition set forth in paragraphs (a)(3)-(6) of 
this section if the Commission determines that such condition is 
necessary to protect the public from further crimes by the releasee and 
provide adequate supervision of the releasee.
    (2) The following are examples of special conditions frequently 
imposed by the Commission--
    (i) That the releasee reside in or participate in the program of a 
community corrections center, or both, for all or part of the period of 
supervision;
    (ii) That the releasee participate in a drug-or alcohol-treatment 
program, and abstain from all use of alcohol and other intoxicants;
    (iii) That, as an alternative to incarceration, the releasee remain 
at home during nonworking hours and have compliance with this condition 
monitored by telephone or electronic signaling devices; and
    (iv) That the releasee permit a supervision officer to conduct a 
search of the releasee's person, or of any building, vehicle, or other 
area under the control of the releasee, at such time as that supervision 
officer shall decide, and to seize contraband found thereon or therein.
    (3) If the Commission requires the releasee's participation in a 
drug-treatment program, the releasee must submit to a drug test within 
15 days of release and to at least two other drug tests, as determined 
by the supervision officer. A decision not to impose this special 
condition, because available information indicates a low risk of future 
substance abuse by the releasee, shall constitute good cause for 
suspension of the drug testing requirements of 18 U.S.C. 3583(d).
    (c) Changing conditions of release. (1) The Commission may at any 
time modify or add to the conditions of release if the Commission 
determines that such modification or addition is necessary to protect 
the public from further crimes by the releasee and provide adequate 
supervision of the releasee.
    (2)(i) Except as provided in paragraph (c)(2)(ii) of this section, 
before the Commission orders a change of condition, the releasee shall 
be notified of the proposed modification or addition and, unless waived, 
shall have 10 days from receipt of such notification to comment on the 
proposed modification or addition. Following that 10-day period, the 
Commission shall have 21 days, exclusive of holidays, to determine 
whether to order such modification or addition to the conditions of 
release.
    (ii) The 10-day notice requirement of paragraph (c)(2)(i) of this 
section does not apply to a change of condition that results from a 
revocation hearing for the releasee, a determination that the 
modification or addition must be ordered immediately to prevent harm to 
the releasee or to the public, or a request from the releasee.
    (d) Application of release conditions to absconder. A releasee who 
absconds from supervision prevents the term of supervision from expiring 
and the running of the term is tolled during the time that the releasee 
is an absconder. A releasee who absconds from supervision remains bound 
by the conditions of release, even after the date that the term of 
supervision originally was scheduled to expire. The Commission may 
revoke the term of supervision based on a violation of a release 
condition committed by such a releasee before the expiration of the term 
of supervision, as extended by the period of absconding.
    (e) Revocation for certain violations of release conditions. If the 
Commission finds after a revocation hearing that a releasee has 
possessed a controlled substance, refused to comply with drug testing, 
possessed a firearm, or tested positive for illegal controlled 
substances more than three times over the course of one year, the 
Commission shall revoke the term of supervision and impose a term of 
imprisonment as provided at Sec. 2.218. If the releasee fails a drug 
test, the Commission shall consider appropriate alternatives to 
revocation.
    (f) Supervision officer guidance. The Commission expects a releasee 
to understand the conditions of release according to the plain meaning 
of those conditions and to seek the guidance of the supervision officer 
before engaging

[[Page 189]]

in conduct that may violate a condition of release. The supervision 
officer may instruct a releasee to refrain from particular conduct, or 
take specific steps to avoid violating a condition of release, or to 
correct an existing violation of a condition of release. The releasee's 
failure to obey a directive from the supervision officer to report on 
compliance with such instructions may be considered as a violation of 
the condition described at paragraph (a)(4)(i) of this section.
    (g) Definitions. As used in this section, the term--
    (1) Releasee means a person who has been sentenced to a term of 
supervised release by the Superior Court of the District of Columbia;
    (2) Supervision officer means a Community Supervision Officer of the 
District of Columbia Court Services and Offender Supervision Agency or 
United States Probation Officer;
    (3) Domestic violence crime has the meaning given that term by 18 
U.S.C. 3561, except that the term ``court of the United States'' as used 
in that definition shall be deemed to include the District of Columbia 
Superior Court;
    (4) Approved offender-rehabilitation program means a program that 
has been approved by the District of Columbia Court Services and 
Offender Supervision Agency (or the United States Probation Office) in 
consultation with a State Coalition Against Domestic Violence or other 
appropriate experts;
    (5) Certificate of release means the certificate of supervised 
release delivered to the releasee under Sec. 2.203; and
    (6) Firearm has the meaning given by 18 U.S.C. 921.



Sec. 2.205  Confidentiality of supervised release records.

    (a) Consistent with the Privacy Act of 1974 (5 U.S.C 552a(b)), the 
contents of supervised release records shall be confidential and shall 
not be disclosed outside the Commission and CSOSA (or the U.S. Probation 
Office) except as provided in paragraphs (b) and (c) of this section.
    (b) Information pertaining to a releasee may be disclosed to the 
general public, without the consent of the releasee, as authorized by 
Sec. 2.37.
    (c) Information other than as described in Sec. 2.37 may be 
disclosed without the consent of the releasee only pursuant to the 
provisions of the Privacy Act of 1974 (5 U.S.C. 552a(b)) and the 
implementing rules of the Commission or CSOSA, as applicable.



Sec. 2.206  Travel approval and transfers of supervision.

    (a) A releasee's supervision officer may approve travel outside the 
district of supervision without approval of the Commission in the 
following situations:
    (1) Trips not to exceed thirty days for family emergencies, 
vacations, and similar personal reasons;
    (2) Trips, not to exceed thirty days, to investigate reasonably 
certain employment possibilities; and
    (3) Recurring travel across a district boundary, not to exceed fifty 
miles outside the district, for purpose of employment, shopping, or 
recreation.
    (b) Specific advance approval by the Commission is required for all 
foreign travel, employment requiring recurring travel more than fifty 
miles outside the district, and vacation travel outside the district of 
supervision exceeding thirty days. A request for such permission shall 
be in writing and must demonstrate a substantial need for such travel.
    (c) A special condition imposed by the Commission prohibiting 
certain travel shall apply instead of any general rules relating to 
travel as set forth in paragraph (a) of this section.
    (d) The district of supervision for a releasee under the supervision 
of CSOSA shall be the District of Columbia, except that for the purpose 
of travel permission under this section, the district of supervision 
shall include the D.C. metropolitan area as defined in the certificate 
of supervised release.
    (e) A supervised releasee who is under the jurisdiction of the 
Commission, and who is released or transferred to a district outside the 
District of Columbia, shall be supervised by a U.S. Probation Officer 
pursuant to 18 U.S.C. 3655.
    (f) A supervised releasee may be transferred to a new district of 
supervision with the permission of the supervision offices of both the 
transferring and receiving district, provided

[[Page 190]]

such transfer is not contrary to instructions from the Commission.



Sec. 2.207  Supervision reports to Commission.

    A regular supervision report shall be submitted to the Commission by 
the supervision officer after the completion of 12 months of continuous 
community supervision and annually thereafter. The supervision officer 
shall submit such additional reports and information concerning both the 
releasee, and the enforcement of the conditions of supervised release, 
as the Commission may direct. All reports shall be submitted according 
to the format established by the Commission.



Sec. 2.208  Termination of a term of supervised release.

    (a)(1) The Commission may terminate a term of supervised release and 
discharge the releasee from supervision after the expiration of one year 
of supervised release, if the Commission is satisfied that such action 
is warranted by the conduct of the releasee and the interest of justice.
    (2) Upon terminating supervision of a committed youth offender 
before the sentence expires, the Commission shall set aside the 
committed youth offender's conviction and issue a certificate setting 
aside the conviction instead of a certificate of discharge.
    (b) Two years after a prisoner is released on supervision, and at 
least annually thereafter, the Commission shall review the status of the 
releasee to determine the need for continued supervision. The Commission 
shall also conduct a status review whenever the supervision officer 
recommends termination of the supervised release term. If the term of 
supervised release imposed by the court is two years or less, the 
Commission shall consider termination of supervision only if recommended 
by the releasee's supervision officer.
    (c) In calculating the two-year period provided in paragraph (b) of 
this section, the Commission shall not include any period of release 
before the most recent release, or any period served in confinement on 
any other sentence.
    (d) (1) In deciding whether to terminate supervised release, the 
Commission shall consider the guidelines of this paragraph. The 
guidelines are advisory and the Commission may disregard the outcome 
indicated by the guidelines based on case specific factors. Termination 
of supervision is indicated if the releasee:
    (i) Has a salient factor score in the very good risk category and 
has completed two continuous years of supervision free from an incident 
of new criminal behavior or serious release violation; or
    (ii) Has a salient factor score in a risk category other than very 
good and has completed three continuous years of supervision free from 
an incident of new criminal behavior or serious release violation.
    (2) As used in this paragraph, the term ``an incident of new 
criminal behavior or serious release violation'' includes a new arrest 
or report of a release violation if supported by substantial evidence of 
guilt, even if no conviction or release revocation results. The 
Commission shall not terminate supervision of a releasee until it 
determines the disposition of a pending criminal charge.
    (3) Case-specific factors that may justify a departure either above 
or below the early termination guidelines may relate to the current 
behavior of the releasee, or to the releasee's background and criminal 
history.

[74 FR 28606, June 17, 2009; 74 FR 29941, June 24, 2009]



Sec. 2.209  Order of termination.

    When the Commission orders the termination of a term of supervised 
release, it shall issue a certificate to the releasee granting the 
releasee a full discharge from his term of supervised release. The 
termination and discharge shall take effect only upon the actual 
delivery of the certificate of discharge to the releasee by the 
supervision officer, and may be rescinded for good cause at any time 
prior to such delivery.



Sec. 2.210  Extension of term.

    (a) At any time during service of a term of supervised release, the 
Commission may submit to the Superior Court a motion to extend the term 
of supervised release to the maximum

[[Page 191]]

term authorized by law, if less than the maximum authorized term was 
originally imposed. If the Superior Court grants the Commission's motion 
prior to the expiration of the term originally imposed, the extension 
ordered by the court shall take effect upon issuance of the order.
    (b) The Commission may submit the motion for an extension of a term 
of supervised release if the Commission finds that the rehabilitation of 
the releasee or the protection of the public from further crimes by the 
releasee is likely to require a longer period of supervision than the 
court originally contemplated. The Commission's grounds for making such 
a finding shall be stated in the motion filed with the court.
    (c) The provisions of this section shall not apply to the 
Commission's determination of an appropriate period of further 
supervised release following revocation of a term of supervised release.



Sec. 2.211  Summons to appear or warrant for retaking releasee.

    (a) If a releasee is alleged to have violated the conditions of his 
release, and satisfactory evidence thereof is presented, a Commissioner 
may:
    (1) Issue a summons requiring the releasee to appear for a probable 
cause hearing or local revocation hearing; or
    (2) Issue a warrant for the apprehension and return of the releasee 
to custody.
    (b) A summons or warrant under paragraph (a) of this section may be 
issued or withdrawn only by a Commissioner.
    (c) Any summons or warrant under this section shall be issued as 
soon as practicable after the alleged violation is reported to the 
Commission, except when delay is deemed necessary. Issuance of a summons 
or warrant may be withheld until the frequency or seriousness of the 
violations, in the opinion of a Commissioner, requires such issuance. In 
the case of any releasee who is charged with a criminal offense and who 
is awaiting disposition of such charge, issuance of a summons or warrant 
may be:
    (1) Temporarily withheld;
    (2) Issued by the Commission and held in abeyance;
    (3) Issued by the Commission and a detainer lodged with the 
custodial authority; or
    (4) Issued for the retaking of the releasee.
    (d) A summons or warrant may be issued only within the maximum term 
or terms of the period of supervised release being served by the 
releasee, except as provided for an absconder from supervision in Sec. 
2.204(i). A summons or warrant shall be considered issued when signed 
and either:
    (1) Placed in the mail; or
    (2) Sent by electronic transmission to the appropriate law 
enforcement authority.
    (e) The issuance of a warrant under this section operates to bar the 
expiration of the term of supervised release. Such warrant maintains the 
Commission's jurisdiction to retake the releasee either before or after 
the normal expiration date of the term, and for such time as may be 
reasonably necessary for the Commission to reach a final decision as to 
revocation of the term of supervised release.
    (f) A summons or warrant issued pursuant to this section shall be 
accompanied by a warrant application (or other notice) stating:
    (1) The charges against the releasee;
    (2) The specific reports and other documents upon which the 
Commission intends to rely in determining whether a violation of 
supervised release has occurred and whether to revoke supervised 
release;
    (3) Notice of the Commission's intent, if the releasee is arrested 
within the District of Columbia, to hold a probable cause hearing within 
five days of the releasee's arrest;
    (4) A statement of the purpose of the probable cause hearing;
    (5) The days of the week on which the Commission regularly holds its 
dockets of probable cause hearings at the Central Detention Facility;
    (6) The releasee's procedural rights in the revocation process; and
    (7) The possible actions that the Commission may take.
    (g) In the case of an offender who is serving concurrent terms of 
parole and

[[Page 192]]

supervised release under the Commission's jurisdiction, the Commission 
may take any action permitted by this section on the basis of one or 
more of the terms (e.g., the Commission may issue warrants on both 
terms, and order that the first warrant should be executed, and that the 
second warrant should be placed as a detainer and executed only when the 
offender is released from the prison term that begins with the execution 
of the first warrant). The Commission may conduct separate revocation 
hearings, or consider all parole and supervised release violation 
charges in one combined hearing and make dispositions on the parole and 
supervised release terms. If the Commission conducts separate revocation 
hearings and revokes parole or supervised release at the first hearing, 
the Commission may conduct the subsequent hearing on the same violation 
behavior as an institutional hearing.



Sec. 2.212  Execution of warrant and service of summons.

    (a) Any officer of any Federal or District of Columbia correctional 
institution, any Federal Officer authorized to serve criminal process, 
or any officer or designated civilian employee of the Metropolitan 
Police Department of the District of Columbia, to whom a warrant is 
delivered, shall execute such warrant by taking the releasee and 
returning him to the custody of the Attorney General.
    (b) Upon the arrest of the releasee, the officer executing the 
warrant shall deliver to the releasee a copy of the warrant application 
(or other notice provided by the Commission) containing the information 
described in Sec. 2.211(f).
    (c) If execution of the warrant is delayed pending disposition of 
local charges, for further investigation, or for some other purpose, the 
releasee is to be continued under supervision by the supervision officer 
until the normal expiration of the sentence, or until the warrant is 
executed, whichever first occurs. Monthly supervision reports are to be 
submitted, and the releasee must continue to abide by all the conditions 
of release.
    (d) If any other warrant for the arrest of the releasee has been 
executed or is outstanding at the time the Commission's warrant is 
executed, the arresting officer may, within 72 hours of executing the 
Commission's warrant, release the arrestee to such other warrant and 
lodge the Commission's warrant as a detainer, voiding the execution 
thereof, provided such action is consistent with the instructions of the 
Commission. In other cases, the arrestee may be released from an 
executed warrant whenever the Commission finds such action necessary to 
serve the ends of justice.
    (e) A summons to appear at a probable cause hearing or revocation 
hearing shall be served upon the releasee in person by delivering to the 
releasee a copy of the summons and the application therefor. Service 
shall be made by any Federal or District of Columbia officer authorized 
to serve criminal process and certification of such service shall be 
returned to the Commission.
    (f) Official notification of the issuance of a Commission warrant 
shall authorize any law enforcement officer within the United States to 
hold the releasee in custody until the warrant can be executed in 
accordance with paragraph (a) of this section.



Sec. 2.213  Warrant placed as detainer and dispositional review.

    (a) When a releasee is a prisoner in the custody of other law 
enforcement authorities, or is serving a new sentence of imprisonment 
imposed for a crime (or for a violation of some other form of community 
supervision) committed while on supervised release, a violation warrant 
may be lodged against him as a detainer.
    (b) The Commission shall review the detainer upon the request of the 
prisoner pursuant to the procedure set forth in Sec. 2.47(a)(2). 
Following such review, the Commission may:
    (1) Withdraw the detainer and order reinstatement of the prisoner to 
supervision upon release from custody;
    (2) Order a dispositional revocation hearing to be conducted at the 
institution in which the prisoner is confined; or
    (3) Let the detainer stand until the new sentence is completed. 
Following the execution of the Commission's warrant, and the transfer of 
the prisoner to

[[Page 193]]

an appropriate federal facility, an institutional revocation hearing 
shall be conducted.
    (c) Dispositional revocation hearings pursuant to this section shall 
be conducted in accordance with the provisions at Sec. 2.216 governing 
institutional revocation hearings. A hearing conducted at a state or 
local facility may be conducted either by a hearing examiner or by any 
federal, state, or local official designated by a Commissioner. 
Following a revocation hearing conducted pursuant to this section, the 
Commission may take any action authorized by Sec. Sec. 2.218 and 2.219.
    (d) The date the violation term commences is the date the 
Commission's warrant is executed. A releasee's violation term (i.e., the 
term of imprisonment and/or further term of supervised release that the 
Commission may require the releasee to serve after revocation) shall 
start to run only upon the offender's release from the confinement 
portion of the intervening sentence.
    (e) An offender whose supervised release is revoked shall be given 
credit for all time in confinement resulting from any new offense or 
violation that is considered by the Commission as a basis for 
revocation, but solely for the purpose of satisfying the time ranges in 
the reparole guidelines at Sec. 2.21. The computation of the offender's 
sentence, and the forfeiture of time on supervised release, are not 
affected by such guideline credit.



Sec. 2.214  Probable cause hearing and determination.

    (a) Hearing. A supervised releasee who is retaken and held in 
custody in the District of Columbia on a warrant issued by the 
Commission, and who has not been convicted of a new crime, shall be 
given a probable cause hearing by an examiner of the Commission no later 
than five days from the date of such retaking. A releasee who is retaken 
and held in custody outside the District of Columbia, but within the 
Washington D.C. metropolitan area, and who has not been convicted of a 
new crime, shall be given a probable cause hearing by an examiner of the 
Commission within five days of the releasee's arrival at a facility 
where probable cause hearings are conducted. The purpose of a probable 
cause hearing is to determine whether there is probable cause to believe 
that the releasee has violated the conditions of supervised release as 
charged, and if so, whether a local or institutional revocation hearing 
should be conducted. If the examiner finds probable cause, the examiner 
shall schedule a final revocation hearing to be held within 65 days of 
the releasee's arrest.
    (b) Notice and opportunity to postpone hearing. Prior to the 
commencement of each docket of probable cause hearings in the District 
of Columbia, a list of the releasees who are scheduled for probable 
cause hearings, together with a copy of the warrant application for each 
releasee, shall be sent to the D.C. Public Defender Service. At or 
before the probable cause hearing, the releasee (or the releasee's 
attorney) may submit a written request that the hearing be postponed for 
any period up to thirty days, and the Commission shall ordinarily grant 
such requests. Prior to the commencement of the probable cause hearing, 
the examiner shall advise the releasee that the releasee may accept 
representation by the attorney from the D.C. Public Defender Service who 
is assigned to that docket, waive the assistance of an attorney at the 
probable cause hearing, or have the probable cause hearing postponed in 
order to obtain another attorney and/or witnesses on his behalf. In 
addition, the releasee may request the Commission to require the 
attendance of adverse witnesses (i.e., witnesses who have given 
information upon which revocation may be based) at a postponed probable 
cause hearing. Such adverse witnesses may be required to attend either a 
postponed probable cause hearing, or a combined postponed probable cause 
and local revocation hearing, provided the releasee meets the 
requirements of Sec. 2.215(a) for a local revocation hearing. The 
releasee shall also be given notice of the time and place of any 
postponed probable cause hearing.
    (c) Review of the charges. At the beginning of the probable cause 
hearing, the examiner shall ascertain that the notice required by Sec. 
2.212(b) has been given to the releasee. The examiner

[[Page 194]]

shall then review the violation charges with the releasee and shall 
apprise the releasee of the evidence that has been submitted in support 
of the charges. The examiner shall ascertain whether the releasee admits 
or denies each charge listed on the warrant application (or other notice 
of charges), and shall offer the releasee an opportunity to rebut or 
explain the allegations contained in the evidence giving rise to each 
charge. The examiner shall also receive the statements of any witnesses 
and documentary evidence that may be presented by the releasee. At a 
postponed probable cause hearing, the examiner shall also permit the 
releasee to confront and cross-examine any adverse witnesses in 
attendance, unless good cause is found for not allowing confrontation. 
Whenever a probable cause hearing is postponed to secure the appearance 
of adverse witnesses (or counsel in the case of a probable cause hearing 
conducted outside the District of Columbia), the Commission will 
ordinarily order a combined probable cause and local revocation hearing 
as provided in paragraph (i) of this section.
    (d) Probable cause determination. At the conclusion of the probable 
cause hearing, the examiner shall determine whether probable cause 
exists to believe that the releasee has violated the conditions of 
release as charged, and shall so inform the releasee. The examiner shall 
then take either of the following actions:
    (1) If the examiner determines that no probable cause exists for any 
violation charge, the examiner shall order that the releasee be released 
from the custody of the warrant and either reinstated to supervision, or 
discharged from supervision if the term of supervised release has 
expired.
    (2) If the hearing examiner determines that probable cause exists on 
any violation charge, and the releasee has requested (and is eligible 
for) a local revocation hearing in the District of Columbia as provided 
by Sec. 2.215(a), the examiner shall schedule a local revocation 
hearing for a date that is within 65 days of the releasee's arrest. 
After the probable cause hearing, the releasee (or the releasee's 
attorney) may submit a written request for a postponement. Such 
postponements will normally be granted if the request is received no 
later than fifteen days before the date of the revocation hearing. A 
request for a postponement that is received by the Commission less than 
fifteen days before the scheduled date of the revocation hearing will be 
granted only for a compelling reason. The releasee (or the releasee's 
attorney) may also request, in writing, a hearing date that is earlier 
than the date scheduled by the examiner, and the Commission will 
accommodate such request if practicable.
    (e) Institutional revocation hearing. If the releasee is not 
eligible for a local revocation hearing as provided by Sec. 2.215(a), 
or has requested to be transferred to an institution for his revocation 
hearing, the Commission will request the Bureau of Prisons to designate 
the releasee to an appropriate institution, and an institutional 
revocation hearing shall be scheduled for a date that is within 90 days 
of the releasee's retaking.
    (f) Digest of the probable cause hearing. At the conclusion of the 
probable cause hearing, the examiner shall prepare a digest summarizing 
the evidence presented at the hearing, the responses of the releasee, 
and the examiner's findings as to probable cause.
    (g) Release notwithstanding probable cause. Notwithstanding a 
finding of probable cause, the Commission may order the releasee's 
reinstatement to supervision or release pending further proceedings, if 
it determines that:
    (1) Continuation of revocation proceedings is not warranted despite 
the finding of probable cause; or
    (2) Incarceration pending further revocation proceedings is not 
warranted by the frequency or seriousness of the alleged violation(s), 
and the releasee is neither likely to fail to appear for further 
proceedings, nor is a danger to himself or others.
    (h) Conviction as probable cause. Conviction of any crime committed 
subsequent to the commencement of a term of supervised release shall 
constitute probable cause for the purposes of this section, and no 
probable cause hearing shall be conducted unless a hearing is needed to 
consider additional violation charges that may be determinative of

[[Page 195]]

the Commission's decision whether to revoke supervised release.
    (i) Combined probable cause and local revocation hearing. A 
postponed probable cause hearing may be conducted as a combined probable 
cause and local revocation hearing, provided such hearing is conducted 
within 65 days of the releasee's arrest and the releasee has been 
notified that the postponed probable cause hearing will constitute the 
final revocation hearing. The Commission's policy is to conduct a 
combined probable cause and local revocation hearing whenever adverse 
witnesses are required to appear and give testimony with respect to 
contested charges.
    (j) Late received charges. If the Commission is notified of an 
additional charge after probable cause has been found to proceed with a 
revocation hearing, the Commission may:
    (1) Remand the case for a supplemental probable cause hearing to 
determine if the new charge is contested by the releasee and if 
witnesses must be presented at the revocation hearing;
    (2) Notify the releasee that the additional charge will be 
considered at the revocation hearing without conducting a supplemental 
probable cause hearing; or
    (3) Determine that the new charge shall not be considered at the 
revocation hearing.



Sec. 2.215  Place of revocation hearing.

    (a) If the releasee requests a local revocation hearing, the 
releasee shall be given a revocation hearing reasonably near the place 
of the alleged violation(s) or arrest, with the opportunity to contest 
the violation charges, if the following conditions are met:
    (1) The releasee has not been convicted of a crime committed while 
under supervision; and
    (2) The releasee denies all violation charges.
    (b) The releasee shall also be given a local revocation hearing if 
the releasee admits (or has been convicted of) one or more charged 
violations, but denies at least one unadjudicated charge that may be 
determinative of the Commission's decision regarding revocation or the 
length of any new term of imprisonment, and the releasee requests the 
presence of one or more adverse witnesses regarding that contested 
charge. If the appearance of such witnesses at the hearing is precluded 
by the Commission for good cause, a local revocation hearing shall not 
be ordered.
    (c) If there are two or more contested charges, a local revocation 
hearing may be conducted near the place of the violation chiefly relied 
upon by the Commission as a basis for the issuance of the warrant or 
summons.
    (d)(1) A releasee shall be given an institutional revocation hearing 
upon the releasee's return or recommitment to an institution if the 
releasee:
    (i) Voluntarily waives the right to a local revocation hearing; or
    (ii) Admits (or has been convicted of) one or more charged 
violations without contesting any unadjudicated charge that may be 
determinative of the Commission's decision regarding revocation and/or 
imposition of a new term of imprisonment.
    (2) An institutional revocation hearing may also be conducted in the 
District of Columbia jail or prison facility in which the releasee is 
being held. On his own motion, a Commissioner may designate any case 
described in paragraph (d)(1) of this section for a local revocation 
hearing. The difference in procedures between a ``local revocation 
hearing'' and an ``institutional revocation hearing'' is set forth in 
Sec. 2.216(b).
    (e) Unless the Commission orders release notwithstanding a probable 
cause finding under Sec. 2.214(g), a releasee who is retaken on a 
warrant issued by the Commission shall remain in custody until a 
decision is made on the revocation of the term of supervised release. A 
releasee who has been given a revocation hearing pursuant to the 
issuance of a summons shall remain on supervision pending the decision 
of the Commission, unless the Commission has ordered otherwise.
    (f) A local revocation hearing shall be held not later than 65 days 
from the retaking of the releasee on a supervised release violation 
warrant. An institutional revocation hearing shall be held within 90 
days of the retaking of the releasee on a supervised release violation 
warrant. If the releasee requests and receives any postponement, or 
consents to any postponement, or by his actions otherwise precludes the 
prompt

[[Page 196]]

completion of revocation proceedings in his case, the above-stated time 
limits shall be correspondingly extended.
    (g) A local revocation hearing may be conducted by a hearing 
examiner or by any federal, state, or local official who is designated 
by a Commissioner to be the presiding hearing officer. An institutional 
revocation hearing may be conducted by a hearing examiner.



Sec. 2.216  Revocation hearing procedure.

    (a) The purpose of the revocation hearing shall be to determine 
whether the releasee has violated the conditions of the term of 
supervised release, and, if so, whether the term should be revoked or 
the releasee restored to supervised release.
    (b) At a local revocation hearing, the alleged violator may present 
voluntary witnesses and documentary evidence. The alleged violator may 
also request the Commission to compel the attendance of any adverse 
witnesses for cross-examination, and any other relevant witnesses who 
have not volunteered to attend. At an institutional revocation hearing, 
the alleged violator may present voluntary witnesses and documentary 
evidence, but may not request the Commission to secure the attendance of 
any adverse or favorable witness. At any hearing, the presiding hearing 
officer may limit or exclude any irrelevant or repetitious statement or 
documentary evidence, and may prohibit the releasee from contesting 
matters already adjudicated against him in other forums.
    (c) At a local revocation hearing, the Commission shall, on the 
request of the alleged violator, require the attendance of any adverse 
witnesses who have given statements upon which revocation may be based, 
subject to a finding of good cause as described in paragraph (d) of this 
section. The adverse witnesses who are present shall be made available 
for questioning and cross-examination in the presence of the alleged 
violator. The Commission may also require the attendance of adverse 
witnesses on its own motion.
    (d) The Commission may excuse any requested adverse witness from 
appearing at the hearing (or from appearing in the presence of the 
alleged violator) if the Commission finds good cause for so doing. A 
finding of good cause for the non-appearance of a requested adverse 
witness may be based, for example, on a significant possibility of harm 
to the witness, or the witness not being reasonably available when the 
Commission has documentary evidence that is an adequate substitute for 
live testimony.
    (e) All evidence upon which a finding of violation may be based 
shall be disclosed to the alleged violator before the revocation 
hearing. Such evidence shall include the community supervision officer's 
letter summarizing the releasee's adjustment to supervision and 
requesting the warrant, all other documents describing the charged 
violation or violations, and any additional evidence upon which the 
Commission intends to rely in determining whether the charged violation 
or violations, if sustained, would warrant revocation of supervised 
release. If the releasee is represented by an attorney, the attorney 
shall be provided, prior to the revocation hearing, with a copy of the 
releasee's presentence investigation report, if such report is available 
to the Commission. If disclosure of any information would reveal the 
identity of a confidential informant or result in harm to any person, 
that information may be withheld from disclosure, in which case a 
summary of the withheld information shall be disclosed to the releasee 
prior to the revocation hearing.
    (f) An alleged violator may be represented by an attorney at either 
a local or an institutional revocation hearing. In lieu of an attorney, 
an alleged violator may be represented at any revocation hearing by a 
person of his choice. However, the role of such non-attorney 
representative shall be limited to offering a statement on the alleged 
violator's behalf. Only licensed attorneys shall be permitted to 
question witnesses, make objections, and otherwise provide legal 
representation for supervised releasees, except in the case of law 
students appearing before the Commission as part of a court-approved 
clinical practice program. Such law students must be under the personal 
direction of a lawyer or law professor who is physically present at the

[[Page 197]]

hearing, and the examiner shall ascertain that the releasee consents to 
the procedure.
    (g) At a local revocation hearing, the Commission shall secure the 
presence of the releasee's community supervision officer, or a 
substitute community supervision officer who shall bring the releasee's 
supervision file if the releasee's community supervision officer is not 
available. At the request of the hearing examiner, such officer shall 
provide testimony at the hearing concerning the releasee's adjustment to 
supervision.
    (h) After the revocation hearing, the hearing examiner shall prepare 
a summary of the hearing that includes a description of the evidence 
against the releasee and the evidence submitted by the releasee in 
defense or mitigation of the charges, a summary of the arguments against 
revocation presented by the releasee, and the examiner's recommended 
decision. The hearing examiner's summary, together with the releasee's 
file (including any documentary evidence and letters submitted on behalf 
of the releasee), shall be given to another examiner for review. When 
two hearing examiners concur in a recommended disposition, that 
recommendation, together with the releasee's file and the hearing 
examiner's summary of the hearing, shall be submitted to the Commission 
for decision.



Sec. 2.217  Issuance of subpoena for appearance of witnesses or 
production of documents.

    (a)(1) If any adverse witness (i.e., a person who has given 
information upon which revocation may be based) refuses, upon request by 
the Commission, to appear at a probable cause hearing or local 
revocation hearing, a Commissioner may issue a subpoena for the 
appearance of such witness.
    (2) In addition, a Commissioner may, upon a showing by the releasee 
that a witness whose testimony is necessary to the proper disposition of 
his case will not appear voluntarily at a local revocation hearing or 
provide an adequate written statement of his testimony, issue a subpoena 
for the appearance of such witness at the revocation hearing.
    (3) A subpoena may also be issued at the discretion of a 
Commissioner if an adverse witness is judged unlikely to appear as 
requested, or if the subpoena is deemed necessary for the orderly 
processing of the case.
    (b) A subpoena may require the production of documents as well as, 
or in lieu of, a personal appearance. The subpoena shall specify the 
time and the place at which the person named therein is commanded to 
appear, and shall specify any documents required to be produced.
    (c) A subpoena may be served by any Federal or District of Columbia 
officer authorized to serve criminal process. The subpoena may be served 
at any place within the judicial district in which the place specified 
in the subpoena is located, or any place where the witness may be found. 
Service of a subpoena upon a person named therein shall be made by 
delivering a copy of the subpoena to such a person.
    (d) If a person refuses to obey such subpoena, the Commission may 
petition a court of the United States for the judicial district in which 
the revocation proceeding is being conducted, or in which such person 
may be found, to require such person to appear, testify, or produce 
evidence. If the court issues an order requiring such person to appear 
before the Commission, failure to obey such an order is punishable as 
contempt, as provided in 18 U.S.C. 4214(a)(2).



Sec. 2.218  Revocation decisions.

    (a) Whenever a releasee is summoned or retaken by the Commission, 
and the Commission finds by a preponderance of the evidence that the 
releasee has violated one or more conditions of supervised release, the 
Commission may take any of the following actions:
    (1) Restore the releasee to supervision, and where appropriate:
    (i) Reprimand the releasee;
    (ii) Modify the releasee's conditions of release;
    (iii) Refer the releasee to a residential community corrections 
center for all or part of the remainder of the term of supervised 
release; or
    (2) Revoke the term of supervised release.

[[Page 198]]

    (b) If supervised release is revoked, the Commission shall determine 
whether the releasee shall be returned to prison to serve a new term of 
imprisonment, and the length of that term, or whether a new term of 
imprisonment shall be imposed but limited to time served. If the 
Commission imposes a new term of imprisonment that is less than the 
applicable maximum term of imprisonment authorized by law, the 
Commission shall also determine whether to impose a further term of 
supervised release to commence after the new term of imprisonment has 
been served. If the new term of imprisonment is limited to time served, 
any further term of supervised release shall commence upon the issuance 
of the Commission's order. Notwithstanding the above, if a releasee is 
serving another term of imprisonment of 30 days or more in connection 
with a conviction for a federal, state, or local crime (including a term 
of imprisonment resulting from a probation, parole, or supervised 
release revocation), a further term of supervised release imposed by the 
Commission under this paragraph shall not commence until that term of 
imprisonment has been served.
    (c) A releasee whose term of supervised release is revoked by the 
Commission shall receive no credit for time spent on supervised release, 
including any time spent in confinement on other sentences (or in a 
halfway house as a condition of supervised release) prior to the 
execution of the Commission's warrant.
    (d) The Commission's decision regarding the imposition of a term of 
imprisonment following revocation of supervised release, and any further 
term of supervised release, shall be made pursuant to the limitations 
set forth in Sec. 2.219. Within those limitations, the appropriate 
length of any term of imprisonment shall be determined by reference to 
the guidelines at Sec. 2.21. If the term of imprisonment authorized 
under Sec. 2.219 is less than the minimum of the appropriate guideline 
range determined under Sec. 2.21, the term authorized under Sec. 2.219 
shall be the guideline range.
    (e) Whenever the Commission imposes a term of imprisonment upon 
revocation of supervised release that is less than the authorized 
maximum term of imprisonment, it shall be the Commission's general 
policy to impose a further term of supervised release that is the 
maximum term of supervised release permitted by Sec. 2.219. If the 
Commission imposes a new term of imprisonment that is equal to the 
maximum term of imprisonment authorized by law (or in the case of a 
subsequent revocation, that uses up the remainder of the maximum term of 
imprisonment authorized by law), the Commission may not impose a further 
term of supervised release.
    (f) Where deemed appropriate, the Commission may depart from the 
guidelines at Sec. 2.21 (with respect to the imposition of a new term 
of imprisonment) in order to permit the imposition of a further term of 
supervised release.
    (g) Decisions under this section shall be made upon the vote of one 
Commissioner, except that a decision to override an examiner panel 
recommendation shall require the concurrence of two Commissioners. The 
final decision following a local revocation hearing shall be issued 
within 86 days of the retaking of the releasee on a supervised release 
violation warrant. The final decision following an institutional 
revocation hearing shall be issued within 21 days of the hearing, 
excluding weekends and holidays.



Sec. 2.219  Maximum terms of imprisonment and supervised release.

    (a) Imprisonment; first revocation. When a term of supervised 
release is revoked, the maximum authorized term of imprisonment that the 
Commission may require the offender to serve, in accordance with D.C. 
Code 24-403.01(b)(7), is determined by reference to the maximum 
authorized term of imprisonment for the offense of conviction. The 
maximum authorized term of imprisonment at the first revocation shall 
be:
    (1) Five years, if the maximum term of imprisonment authorized for 
the offense is life, or if the offense is statutorily designated as a 
Class A felony;
    (2) Three years, if the maximum term of imprisonment authorized for 
the offense is 25 years or more, but less than

[[Page 199]]

life, and the offense is not statutorily designated as a Class A felony;
    (3) Two years, if the maximum term of imprisonment authorized for 
the offense is 5 years or more, but less than 25 years; or
    (4) One year, if the maximum term of imprisonment authorized for the 
offense is less than 5 years.
    (b) Further term of supervised release; first revocation. (1) When a 
term of supervised release is revoked, and the Commission imposes less 
than the maximum term of imprisonment permitted by paragraph (a) of this 
section, the Commission may also impose a further term of supervised 
release after imprisonment. A term of imprisonment is ``less than the 
maximum authorized term of imprisonment'' if the term is one day or more 
shorter than the maximum authorized term of imprisonment.
    (2) The maximum authorized length of such further term of supervised 
release shall be the original maximum term of supervised release that 
the sentencing court was authorized to impose for the offense of 
conviction, less the term of imprisonment imposed by the Commission upon 
revocation of supervised release. The original maximum authorized term 
of supervised release is as follows:
    (i) Five years if the maximum term of imprisonment authorized for 
the offense is 25 years or more;
    (ii) Three years if the maximum term of imprisonment authorized for 
the offense is more than one year but less than 25 years; and
    (iii) Life if the person is required to register for life, and 10 
years in any other case, if the offender has been sentenced for an 
offense for which registration is required by the Sex Offender 
Registration Act of 1999.
    (3) For example, if the maximum authorized term of imprisonment at 
the first revocation is three years and the original maximum authorized 
term of supervised release is five years, the Commission may impose a 
three-year term of imprisonment with no supervised release to follow, or 
any term of imprisonment of less than three years with a further term of 
supervised release of five years minus the term of imprisonment actually 
imposed (such as a one-year term of imprisonment followed by a four-year 
term of supervised release, or a two-year term of imprisonment followed 
by a three-year term of supervised release).
    (c) Reference table. The following table may be used in most cases 
as a reference to determine both the maximum authorized term of 
imprisonment at the first revocation and the original maximum authorized 
term of supervised release:

----------------------------------------------------------------------------------------------------------------
                                                                                             Maximum authorized
D.C. Code reference for conviction                                    Original  maximum     term of imprisonment
 offense (former code reference in        Offense description         authorized term of        at the first
             brackets)                                                supervised release         revocation
----------------------------------------------------------------------------------------------------------------
Title 22
    22-301 [22-401]...............  Arson.........................  3 years..............  2 years.
    22-302 [22-402]...............  Arson: own property...........  3 years..............  2 years.
    22-303 [22-403]...............  Destruction of property over    3 years..............  2 years.
                                     $200.
    22-401 [22-501]...............  Assault: with intent to kill/   3 years (10 years if   2 years.
                                     rob/poison, to commit sex       SOR).
                                     abuse (1st or 2nd degree) or
                                     child sex abuse.
    22-401, 4502 [22-501, 3202]...  Assault: with intent to kill    5 years (10 years if   5 years.
                                     etc. while armed *.             SOR).
    22-402 [22-502]...............  Assault: with a dangerous       3 years..............  2 years.
                                     weapon.
    22-403 [22-503]...............  Assault: with intent to commit  3 years..............  2 years.
                                     an offense other than those
                                     in Sec. 22-401.
    22-404(d) [22-504]............  Stalking--2nd+ offense........  3 years..............  1 year.
    22-404.01, 4502 [22-504.1,      Assault; aggravated while       5 years..............  5 years.
     3202].                          armed *.
    22-404.01(b) [22-504.1].......  Assault: aggravated...........  3 years..............  2 years.
    22-404.01(c) [22-504.1].......  Assault: attempted aggravated.  3 years..............  2 years.
    22-405(a) [22-505]............  Assault: on a police officer..  3 years..............  2 years.
    22-405(b) [22-505]............  Assault: on a police officer    3 years..............  2 years.
                                     while armed.
    22-406 [22-506]...............  Mayhem/malicious disfigurement  3 years..............  2 years.
    22-406, 4502 [22-506, 3202]...  Mayhem/malicious disfigurement  5 years..............  5 years.
                                     armed *.
    22-501 [22-601]...............  Bigamy........................  3 years..............  2 years.
    22-601 [22-3427]..............  Breaking and entering machines  3 years..............  1 year.

[[Page 200]]

 
    22-704(a).....................  Corrupt influence.............  3 years..............  2 years.
    22-712(c).....................  Bribery: public servant.......  3 years..............  2 years.
    22-713(c).....................  Bribery: witness..............  3 years..............  2 years.
    22-722(b).....................  Obstructing justice *.........  5 years..............  5 years.
    22-723(b).....................  Evidence tampering............  3 years..............  1 year.
    22-801(a) [22-1801]...........  Burglary 1st degree...........  5 years..............  3 years
    22-801(b) [22-1801]...........  Burglary 2nd degree...........  3 years..............  2 years.
    22-801, 4502 [22-1801, 3202]..  Burglary: armed *.............  5 years..............  5 years
    22-902(b)(2) [22-752].........  Counterfeiting (see statute     3 years..............  1 year.
                                     for offense circumstances).
    22-902(b)(3) [22-752].........  Counterfeiting (see statute     3 years..............  2 years.
                                     for offense circumstances).
    22-1101(a), (c)(1) [22-901]...  Cruelty to children 1st degree  3 years..............  2 years.
    22-1101(b), (c)(2) [22-901]...  Cruelty to children 2nd degree  3 years..............  2 years.
    22-1322(d) [22-1122]..........  Inciting riot (with injury)...  3 years..............  2 years
    22-1403 [22-1303].............  False personation.............  3 years..............  2 years.
    22-1404 [22-1304].............  Impersonating a public          3 years..............  1 year.
                                     official.
    22-1510 [22-1410].............  Bad checks $100 or more.......  3 years..............  1 year.
    22-1701 [22-1501].............  Illegal lottery...............  3 years..............  1 year.
    22-1704 [22-1504].............  Gaming........................  3 years..............  2 years.
    22-1710, 1711 [22-1510, 1511].  Bucketing: 2nd+ offense.......  3 years..............  2 years.
    22-1713(a) [22-1513]..........  Corrupt influence: Athletics..  3 years..............  2 years.
    22-1803 [22-103]..............  Attempted crime of violence...  3 years..............  2 years.
    22-1804 [22-104]..............  Second conviction
                                    One prior conviction..........
                                    If the underlying offense is    5 years..............  5 years.
                                     punishable by life
                                     imprisonment.
                                    If the underlying offense is    5 years..............  3 years.
                                     punishable by 16\2/3\ years
                                     or more.
                                    If the underlying offense is    3 years..............  2 years.
                                     punishable by 3\1/3\ years or
                                     more but less than 16\2/3\
                                     years.
                                    If underlying offense is        3 years..............  1 years.
                                     punishable by less than 3\1/
                                     3\ years.
                                    Two or more prior convictions.
                                    If the underlying offense is    5 years..............  5 years.
                                     punishable by life
                                     imprisonment.
                                    If the underlying offense is    5 years..............  3 years.
                                     punishable by 8\1/3\ years or
                                     more.
                                    If the underlying offense is    3 years..............  2 years.
                                     punishable by 1\2/3\ years or
                                     more but less than 8\1/3\
                                     years.
                                    If underlying offense is        3 years..............  1 year.
                                     punishable by less than 1\2/
                                     3\ years.
    22-1804a(a)(1) [22-104a]......  Three strikes for felonies *..  5 years..............  5 years.
    22-1804a(a)(2) [22-104a]......  Three strikes for violent       5 years..............  5 years.
                                     felonies *.
    22-1805 [22-105]..............  Aiding or abetting............  same as for the        same as for the
                                                                     offense aided or       offense aided or
                                                                     abetted.               abetted
    22-1805a(a) [22-105a].........  Conspiracy....................  3 years..............  2 years.
                                    If underlying offense is        3 years..............  1 year.
                                     punishable by less than 5
                                     years.
    22-1806 [22-106]..............  Accessory after the fact
                                    If the underlying offense is    3 years..............  2 years.
                                     punishable by 10 years or
                                     more.
                                    If the underlying offense is    3 years..............  1 year.
                                     punishable by more than 2
                                     years but less than 10 years.
    22-1807 [22-107]..............  Offenses not covered by D.C.    3 years..............  2 years.
                                     Code.
    22-1810 [22-2307].............  Threats (felony)..............  3 years..............  2 years.
    22-1901.......................  Incest........................  3 years (10 years if   2 years.
                                                                     SOR).
    22-2001 [22-2101].............  Kidnapping *..................  5 years..............  5 years.
    22-2201, 4502 [22-2101, 3202].  Kidnapping: armed *...........  5 years..............  5 years.
    22-2101, 2104 [22-2401, 2404].  Murder 1st degree *...........  5 years..............  5 years.
    22-2101, 2104, 4502 [22-2401,   Murder 1st degree while armed   5 years..............  5 years.
     2404, 3202].                    *.
    22-2102, 2104 [22-2402, 2404].  Murder 1st degree: obstruction  5 years..............  5 years.
                                     of railway *.
    22-2103, 2104 [22-2403, 2404].  Murder 2nd degree *...........  5 years..............  5 years.
    22-2103, 2104, 4502 [22-2403,   Murder 2nd degree while armed   5 years..............  5 years.
     2404, 3202].                    *.
    22-2105 [22-2405].............  Manslaughter..................  5 years..............  3 years.
    22-2105, 4502 [22-2405, 3202].  Manslaughter: armed *.........  5 years..............  5 years.

[[Page 201]]

 
    22-2201(e) [22-2001]..........  Obscenity: 2nd+ offense.......  3 years (10 years if   1 year.
                                                                     SOR).
    22-2402(b) [22-2511]..........  Perjury.......................  3 years..............  2 years.
    22-2403 [22-2512].............  Subornation of perjury........  3 years..............  2 years.
    22-2404(b) [22-2413]..........  False swearing................  3 years..............  1 year.
    22-2501 [22-3601].............  Possessing implements of crime  3 years..............  2 years.
                                     2nd+ offense.
    22-2601(b)....................  Escape........................  3 years..............  2 years.
    22-2603.......................  Introducing contraband into     3 years..............  2 years.
                                     prison.
    22-2704.......................  Child prostitution: abducting   3 years (10 years if   2 years.
                                     or harboring.                   SOR).
    22-2705 to 2712...............  Prostitution: arranging and     3 years (10 years if   2 years.
                                     related offenses.               child victim and
                                                                     SOR).
    22-2801 [22-2901].............  Robbery.......................  3 years..............  2 years.
    22-2801, 4502 [22-2901, 3202].  Robbery: armed *..............  5 years..............  5 years.
    22-2802 [22-2902].............  Robbery: attempted............  3 years..............  1 year.
    22-2802, 4502 [22-2902, 3202].  Robbery: attempted while armed  5 years..............  5 years.
                                     *.
    22-2803(a) [22-2903]..........  Carjacking....................  3 years..............  2 years.
    22-2803(b) [22-2903]..........  Carjacking: armed *...........  5 years..............  5 years.
    22-3002 [22-4102].............  Sex abuse 1st degree *........  5 years (life if SOR)  5 years.
    22-3002, 4502 [22-4102, 3202].  Sex abuse 1st degree while      5 years (life if SOR)  5 years.
                                     armed *.
    22-3003 [22-4103].............  Sex abuse 2nd degree..........  3 years (life if SOR)  2 years.
    22-3003, 4502 [22-4103, 3202].  Sex abuse 2nd degree while      5 years (life if SOR)  5 years.
                                     armed *.
    22-3004 [22-4104].............  Sex abuse 3rd degree..........  3 years (10 years if   2 years.
                                                                     SOR).
    22-3005 [22-4105..............  Sex abuse 4th degree..........  3 years (10 years if   2 years.
                                                                     SOR).
    22-3008 [22-4108].............  Child sex abuse 1st degree *..  5 years (life if SOR)  5 years.
    22-3008, 3020 [22-4108, 4120].  Child sex abuse 1st degree      5 years (life if SOR)  5 years.
                                     with aggravating
                                     circumstances *.
    22-3008, 4502 [22-4108, 3202].  Child sex abuse 1st degree      5 years (10 years if   5 years.
                                     while armed *.                  SOR).
    22-3009 [22-4109].............  Child sex abuse 2nd degree....  3 years (10 years if   2 years.
                                                                     SOR).
    22-3009, 4502 [22-4109, 3202].  Child sex abuse 2nd degree      5 years (10 years if   5 years.
                                     while armed *.                  SOR).
    22-3010 [22-4110].............  Enticing a child..............  3 years (10 years if   2 years.
                                                                     SOR).
    22-3013 [22-4113].............  Sex abuse ward 1st degree.....  3 years (10 years if   2 years.
                                                                     SOR).
    22-3014 [22-4114].............  Sex abuse ward 2nd degree.....  3 years (10 years if   2 years.
                                                                     SOR).
    22-3015 [22-4115].............  Sex abuse patient 1st degree..  3 years (10 years if   2 years.
                                                                     SOR).
    22-3016 [22-4116].............  Sex abuse patient 2nd degree..  3 years (10 years if   2 years.
                                                                     SOR).
    22-3018 [22-4118].............  Sex abuse: attempted 1st        3 years (life if SOR)  2 years.
                                     degree/child sex abuse 1st
                                     degree.
    22-3018 [22-4118].............  Sex abuse: other attempts
                                    If offense attempted is         3 years (life if SOR)  2 years.
                                     punishable by 10 years or
                                     more.
                                    If the offense attempted is     3 years (life if SOR)  1 year.
                                     punishable by more than 2
                                     years but less than 10 years.
    22-3020 [22-4120].............  Sex abuse 1st degree/child sex  5 years (life if SOR)  5 years.
                                     abuse 1st degree, with
                                     aggravating circumstances.
    22-3020 [22-4120].............  Sex abuse: other offenses with
                                     aggravating circumstances.
                                    If the underlying offense is    5 years (10 years if   5 years.
                                     punishable by life              SOR).
                                     imprisonment.
                                    If the underlying offense is    5 years (10 years if   3 years.
                                     punishable by 16\2/3\ years     SOR).
                                     or more.
                                    If the underlying offense is    3 years (10 years if   2 years.
                                     punishable by 3\1/3\ years or   SOR).
                                     more but less than 16\2/3\
                                     years.

[[Page 202]]

 
                                    If underlying offense is        3 years (10 years if   1 year.
                                     punishable by less than 3\1/    SOR).
                                     3\ years.
    22-3102, 3103 [22-2012, 2013..  Sex performance with minors...  3 years (10 years if   2 years.
                                                                     SOR).
    22-3153.......................  Terrorism--Act of Murder 1st    5 years..............  5 years.
                                     degree.
                                    Murder of law enforcement       5 years..............  5 years.
                                     officer or public safety
                                     employee.
                                    Murder 2nd degree.............  5 years..............  5 years.
                                    Manslaughter..................  5 years..............  5 years.
                                    Kidnapping....................  5 years..............  5 years.
                                    Assault with intent to kill...  5 years..............  3 years.
                                    Mayhem/malicious disfigurement  3 years..............  2 years.
                                    Arson.........................  3 years..............  2 years.
                                    Malicious destruction of        3 years..............  2 years.
                                     property.
                                    Attempt/conspiracy to commit    5 years..............  3 years.
                                     first degree murder, murder
                                     of law enforcement officer,
                                     second degree murder,
                                     manslaughter, kidnapping.
                                    Attempt/conspiracy to commit    3 years..............  2 years.
                                     assault with intent to kill.
                                    Attempt/conspiracy to commit    3 years..............  2 years.
                                     mayhem, malicious
                                     disfigurement, arson,
                                     malicious destruction of
                                     property.
                                    Providing or soliciting         3 years..............  2 years.
                                     material support for act of
                                     terrorism.
    22-3153, 22-4502 [22-3202]....  Commiting any of the above      5 years..............  5 years.
                                     acts of terrorism while armed
                                     *.
    22-3154.......................  Manufacture/possession of       5 years..............  5 years.
                                     weapon of mass destruction.
                                    Attempt/conspiracy to possess   5 years..............  3 years.
                                     or manufacture weapon of mass
                                     destruction.
    22-3155.......................  Use, dissemination, or          5 years..............  5 years.
                                     detonation of weapon of mass
                                     destruction.
                                    Attempt/conspiracy to use,      5 years..............  3 years.
                                     disseminate, or detonate
                                     weapon of mass destruction.
    22-3155, 22-4502 [22-3202]....  Manufacture, possession, use    5 years..............  5 years.
                                     or detonation of weapon of
                                     mass destruction while armed
                                     or attempts to commit such
                                     crimes while armed *.
    22-3212 [22-3812].............  Theft 1st degree..............  3 years..............  2 years.
    22-3214.03(d)(2) [22-3814.1]..  Deceptive labeling............  3 years..............  2 years.
    22-3215(d)(1) [22-3815].......  Vehicle: Unlawful use of        3 years..............  2 years.
                                     (private).
    22-3215(d)(2) [22-3815].......  Vehicle: Unlawful use of        3 years..............  1 year.
                                     (rental).
    22-3221(a), 3222(a) [22-3821,   Fraud 1st degree $250 or more.  3 years..............  2 years.
     3822].
    22-3221(b), 3222(b) [22-3821,   Fraud 2nd degree $250 or more.  3 years..............  1 year.
     3822].
    22-3223(d)(1) [22-3823].......  Fraud: credit card $250 or      3 years..............  2 years.
                                     more.
    22-3225.02, 3225.04(a) [22-     Fraud: insurance 1st degree...  3 years..............  2 years.
     3825.2, 3825.4].
    22-3225.03, 3225.04(b) [22-     Fraud: insurance 2nd degree...  3 years..............  2 years.
     3825.3, 3825.4].
    22-3231(d) [22-3831]..........  Stolen Property: trafficking    3 years..............  2 years.
                                     in.
    22-3232(c)(1) [22-3832].......  Stolen property: receiving      3 years..............  2 years.
                                     ($250 or more).
    22-3241, 3242 [22-3841, 3842].  Forgery:                        .....................
                                    Legal tender, public record,    2 years..............
                                     etc..                          2 years..............
                                    Token, prescription...........  1 years..............
                                    Other.........................
                                    3 years.......................
                                    3 years.......................
                                    3 years.......................
    22-3251(b) [22-3851]..........  Extortion.....................  3 years..............  2 years.
    22-3251(b), 3252(b), 4502 [22-  Extortion while armed or        5 years..............  5 years.
     3851, 3852, 3202].              blackmail with threats of
                                     violence *.
    22-3252(b) [22-3852]..........  Blackmail.....................  3 years..............  2 years.
    22-3303 [22-3103].............  Grave robbing.................  3 years..............  1 year.
    22-3305 [22-3105].............  Destruction of property by      3 years..............  2 years.
                                     explosives.
    22-3318 [22-3318].............  Water pollution (malicious)...  3 years..............  1 year.
    22-3319 [22-3119].............  Obstructing railways..........  3 years..............  2 years.
    22-3601 [22-3901].............  Senior citizen victim of
                                     robbery, attempted robbery,
                                     theft, attempted theft,
                                     extortion, and fraud.
                                    If the underlying offense is    5 years..............  5 years.
                                     punishable by life
                                     imprisonment.

[[Page 203]]

 
                                    If the underlying offense is    5 years..............  3 years.
                                     punishable by 16\2/3\ years
                                     or more.
                                    If the underlying offense is    3 years..............  2 years.
                                     punishable by 3\1/3\ years or
                                     more but less than 16\2/3\
                                     years.
                                    If the underlying offense is    3 years..............  1 year.
                                     punishable by less than 3\1/
                                     3\ years.
    22-3602 [22-3902].............  Citizen patrol victim of
                                     various violent offenses.
                                    If the underlying offense is    5 years..............  5 years.
                                     punishable by life
                                     imprisonment.
                                    If the underlying offense is    5 years..............  3 years.
                                     punishable by 16\2/3\ years
                                     or more.
                                    If the underlying offense is    3 years..............  2 years.
                                     punishable by 3\1/3\ years or
                                     more but less than 16\2/3\
                                     years.
                                    If the underlying offense is    3 years..............  1 year.
                                     punishable by less than 3\1/
                                     3\ years.
    22-3703 [22-4003].............  Bias-related crime
                                    If underlying offense is        5 years..............  5 years.
                                     punishable by life
                                     imprisonment.
                                    If underlying offense is        5 years..............  3 years.
                                     punishable by 16\2/3\ years.
                                    If underlying offense is        3 years..............  2 years.
                                     punishable by more than or
                                     equal to 3\1/3\ years but
                                     less than 16\2/3\ years.
                                    If underlying offense is        3 years..............  1 year.
                                     punishable by less than 3\1/
                                     3\ years.
    22-4015 [24-2235].............  Sex offender, failure to        3 years..............  2 years.
                                     register (2nd offense).
    22-4502 [22-3202].............  Violent crimes: committing or   5 years..............  5 years.
                                     attempting to commit while
                                     armed.
    22-4502.01 [22-3202.1]........  Gun-free zone violations
                                    If underlying offense is a      3 years..............  2 years.
                                     violation of 22-4504.
                                    If underlying offense is a      5 years..............  3 years.
                                     violation of 22-4504(b)
                                     (possession of firearm while
                                     committing crime of violence
                                     or dangerous crime).
    22-4503 [22-3203].............  Pistol: unlawful possession by  3 years..............  2 years.
                                     a felon, etc. 2nd+ offense.
    22-4504(a)(1)-(2) [22-3204]...  Pistol: carrying without a      3 years..............  2 years.
                                     license.
    22-4504(b) [22-3204]..........  Firearm: possession while       3 years..............  2 years.
                                     committing crime of violence
                                     or dangerous crime.
    22-4514 [22-3214].............  Prohibited weapon: possession   3 years..............  2 years.
                                     of 2nd+ offense.
    22-4515a [22-3215a]...........  Molotov cocktails--1st or 2nd   3 years..............  2 years.
                                     offense.
                                    3rd offense...................  5 years..............  5 years.
Title 23
    23-1327(a)(1).................  Bail Reform Act...............  3 years..............  2 years.
    23-1328(a)(1).................  Committing a felony on release  3 years..............  2 years.
Title 48
    48-904.01(a)-(b) [33-541].....  Drugs: distribute or possess
                                     with intent to distribute
                                    If schedule I or II narcotics   5 years..............  3 years.
                                     or abusive drugs (e.g.,
                                     heroin, cocaine, PCP,
                                     methamphetamine).
                                    If schedule I or II drugs       3 years..............  2 years.
                                     other than above (e.g.,
                                     marijuana/hashish), or
                                     schedule III drugs.
                                    If schedule IV drugs..........  3 years..............  1 year.
    48-904.01, 22-4502 [33-541, 22- Drugs: distribute or possess    5 years..............  5 years.
     3202].                          with intent to distribute
                                     while armed*.
    48-904.03 [33-543]............  Drugs: acquiring by fraud.....  3 years..............  1 year.
  48-904.03a [33-543a]............  Drugs: maintaining place for    5 years..............  3 years.
                                     manufacture or distribution.
    48-904.06 [33-546]............  Drugs: distribution to minors
                                    If a schedule I or II narcotic  5 years..............  3 years.
                                     drug (e.g., heroin or
                                     cocaine) or PCP.
                                    If schedule I or II drugs       3 years..............  2 years.
                                     other than above (e.g.,
                                     marijuana, hashish,
                                     methamphetamine), or schedule
                                     III or IV drugs.
                                    If schedule V drugs...........  3 years..............  1 year.
    48-904.07 [33-547]............  Drugs: enlisting minors to      3 years..............  2 years.
                                     sell.
    48-904.07a [33-547.1].........  Drugs: distribute or possess
                                     with intent to distribute in
                                     drug-free zones.
                                    If schedule I or II narcotics   5 years..............  3 years.
                                     or abusive drugs (e.g.,
                                     heroin, cocaine,
                                     methamphetamine, or PCP).
                                    If schedule I or II drugs       3 years..............  2 years.
                                     other than above (e.g.,
                                     marijuana, hashish), or
                                     schedule III or IV drugs.
                                    If schedule V drugs...........  3 years..............  1 year.
    48-904.08 [33-548]............  Drugs: 2nd+ offense

[[Page 204]]

 
        Note: This section does     If schedule I or II narcotics   5 years..............  3 years.
         not apply if the offender   or abusive drugs (e.g.,
         was sentenced under 48-     heroin, cocaine,
         904.06.                     methamphetamine, or PCP).
                                    If schedule I or II drugs       3 years..............  2 years.
                                     other than above (e.g.,
                                     marijuana, hashish), or
                                     schedule III or IV drugs.
                                    If schedule V drugs...........  3 years..............  1 year.
    48-904.09 [33-549]............  Drugs: attempt/conspiracy.....  the same as for the    the same as for the
                                                                     offense that was the   offense that was the
                                                                     object of the          object of the
                                                                     attempt or             attempt or
                                                                     conspiracy.            conspiracy.
    48-1103(b) [33-603]...........  Drugs: possession of drug       3 years..............  1 year.
                                     paraphernalia with intent to
                                     deliver or sell (2nd +
                                     offense).
    48-1103(c) [33-603]...........  Drugs: delivering drug          3 years..............  2 years.
                                     paraphernalia to a minor.
Title 50
    50-2203.01 [40-713]...........  Negligent homicide (vehicular)  3 years..............  2 years.
    50-2207.01 [40-718]...........  Smoke screens.................  3 years..............  2 years.
 
----------------------------------------------------------------------------------------------------------------
Notes: (1) An asterisk next to the offense description indicates that the offense is statutorily designated as a
  Class A felony.
(2) If the defendant must register as a sex offender, the Original Maximum Authorized Term of Supervised Release
  is the maximum period for which the offender may be required to register as a sex offender under D.C. Code 22-
  4002(a) and (b) (ten years or life). See D.C. Code 24-403.01(b)(4). Sex offender registration is required for
  crimes such as first degree sexual abuse, and these crimes are listed in this table with the notation ``10
  years if SOR'' or ``life if SOR'' as the Original Maximum Authorized Term of Supervised Release. Sex offender
  registration, however, may also be required for numerous crimes (such as burglary or murder) if a sexual act
  or contact was involved or was the offender's purpose. In such cases, the offender's status will be determined
  by the presence of an order from the sentencing judge certifying that the defendant is a sex offender.
(3) If the defendant committed the offense before 5 p.m., August 11, 2000, the maximum authorized terms of
  imprisonment and supervised release shall be determined by reference to 18 U.S.C. 3583.


    (d) Imprisonment; successive revocations. (1) When the Commission 
revokes a term of supervised release that was imposed by the Commission 
after a previous revocation of supervised release, the maximum 
authorized term of imprisonment is the maximum term of imprisonment 
permitted by paragraph (a) of this section, less the term or terms of 
imprisonment that were previously imposed by the Commission. In 
calculating such previously-imposed term or terms of imprisonment, the 
Commission shall use the term as imposed without deducting any good time 
credits that may have been earned by the offender prior to his release 
from prison. In no case shall the total of successive terms of 
imprisonment imposed by the Commission exceed the maximum authorized 
term of imprisonment at the first revocation.
    (2) For example, if the maximum authorized term of imprisonment at 
the first revocation is three years and the original maximum authorized 
term of supervised release is five years, the Commission at the first 
revocation may have imposed a one-year term of imprisonment and a 
further four-year term of supervised release. At the second revocation, 
the maximum authorized term of imprisonment will be two years, i.e., the 
maximum authorized term of imprisonment at the first revocation (three 
years) minus the one-year term of imprisonment that was imposed at the 
first revocation.
    (e) Further term of supervised release; successive revocations. (1) 
When the Commission revokes a term of supervised release that was 
imposed by the Commission following a previous revocation of supervised 
release, the Commission may also impose a further term of supervised 
release. The maximum authorized length of such a term of supervised 
release shall be the original maximum authorized term of supervised 
release permitted by paragraph (b) of this section, less the total of 
the terms of imprisonment imposed by the Commission on the same sentence 
(including the term of imprisonment imposed in the current revocation).

[[Page 205]]

    (2) For example, if the maximum authorized term of imprisonment at 
the first revocation is three years and the original maximum authorized 
term of supervised release is five years, the Commission at the first 
revocation may have imposed a one-year term of imprisonment and a four-
year further term of supervised release. If, at a second revocation, the 
Commission imposes another one-year term of imprisonment, the maximum 
authorized further term of supervised release will be three years (the 
original five-year period minus the total of two years of imprisonment).
    (f) Effect of sentencing court imposing less than the original 
maximum authorized term of supervised release. If the Commission has 
revoked supervised release, the maximum authorized period of further 
supervised release is determined by reference to the original maximum 
authorized term permitted for the offense of conviction (see paragraph 
(b) of this section), even if the sentencing court did not impose the 
original maximum authorized term permitted for the offense of 
conviction.



Sec. 2.220  Appeal.

    A supervised releasee may appeal to the Commission a decision to 
revoke supervised release, impose a term of imprisonment, or impose a 
new term of supervised release after revocation. The provisions of Sec. 
2.26 on the time limits for filing and deciding the appeal, the grounds 
for appeal, the format of the appeal, the limits regarding the 
submission of exhibits, and voting requirements apply to an appeal 
submitted under this section.



PART 3_GAMBLING DEVICES--Table of Contents




Sec.
3.1 Definition.
3.2 Assistant Attorney General, Criminal Division.
3.3 Registration.
3.4 Registration to be made by letter.
3.5 Forfeiture of gambling devices.

    Authority: 89 Stat. 379; 5 U.S.C. 301, sec. 2, Reorganization Plan 
No. 2 of 1950, 64 Stat. 1261; 3 CFR, 1949-1953 Comp.

    Cross Reference: For Organization Statement, Federal Bureau of 
Investigation, see subpart P of part 0 of this chapter.

    Source: Order No. 331-65, 30 FR 2316, Feb. 20, 1965, unless 
otherwise noted.



Sec. 3.1  Definition.

    For the purpose of this part, the term Act means the Act of January 
2, 1951, 64 Stat. 1134, as amended by the Gambling Devices Act of 1962, 
76 Stat. 1075, 15 U.S.C. 1171 et seq.



Sec. 3.2  Assistant Attorney General, Criminal Division.

    The Assistant Attorney General, Criminal Division, is authorized to 
exercise the power and authority of and to perform the functions vested 
in the Attorney General by the Act. (See also 28 CFR 0.55(i).)

(28 U.S.C. 509 and 510)

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



Sec. 3.3  Registration.

    Persons required to register pursuant to section 3 of the Act shall 
register with the Assistant Attorney General, Criminal Division, 
Department of Justice, Washington, DC 20530.



Sec. 3.4  Registration to be made by letter.

    No special forms are prescribed for the purpose of registering under 
the Act. Registration shall be accomplished by a letter addressed to the 
Assistant Attorney General, Criminal Division, setting forth the 
information required by section 3(b)(4) of the Act. Registration should 
be made by registered or certified mail inasmuch as receipt of 
registrations will not otherwise be acknowledged. The registration 
requirement of the Act is an annual requirement. Any person engaged in 
any one or more of the activities for which registration is required 
under the Act must, in conformity with the provisions of the Act, 
register in each calendar year in which he engages in such activities.



Sec. 3.5  Forfeiture of gambling devices.

    For purposes of seizure and forfeiture of gambling devices see 
section 8 of this chapter.

[Order No. 1128-86, 51 FR 8817, Mar. 17, 1986]

[[Page 206]]



    PART 4_PROCEDURE GOVERNING APPLICATIONS FOR CERTIFICATES OF 
    EXEMPTION UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE 
    
    ACT OF 1959, AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
    1974--Table of Contents




Sec.
4.1 Definitions.
4.2 Who may apply for Certificate of Exemption.
4.3 Contents of application.
4.4 Supporting affidavit; additional information.
4.5 Character endorsements.
4.6 Institution of proceedings.
4.7 Notice of hearing; postponements.
4.8 Hearing.
4.9 Representation.
4.10 Waiver of oral hearing.
4.11 Appearance; testimony; cross-examination.
4.12 Evidence which may be excluded.
4.13 Record for decision. Receipt of documents comprising record; timing 
          and extension.
4.14 Administrative law judge's recommended decision; exceptions 
          thereto; oral argument before Commission.
4.15 Certificate of Exemption.
4.16 Rejection of application.
4.17 Availability of decisions.

    Authority: Secs. 504, 606, 73 Stat. 536, 540 (29 U.S.C. 504, 526); 
and secs. 411, 507a, 88 Stat. 887, 894 (29 U.S.C. 1111, 1137).

    Cross Reference: For Organization Statement, U.S. Parole Commission, 
see subpart V of part 0 of this chapter.

    Source: 44 FR 6890, Feb. 2, 1979, unless otherwise noted.



Sec. 4.1  Definitions.

    As used in this part:
    (a) Labor Act means the Labor-Management Reporting and Disclosure 
Act of 1959 (73 Stat. 519).
    (b) Pension Act means the Employee Retirement Income Security Act of 
1974 (Pub. L. 93-406) (88 Stat. 829).
    (c) Acts means both of the above statutes.
    (d) Commission means the United States Parole Commission.
    (e) Secretary means the Secretary of Labor or his designee.
    (f) For proceedings under the ``Labor Act''
    (1) Employer means the labor organization, or person engaged in an 
industry or activity affecting commerce, or group or association of 
employers dealing with any labor organization, which an applicant under 
Sec. 4.2 desires to serve in a capacity for which he is ineligible 
under section 504(a) of the ``Labor Act''.
    (2) All other terms used in this part shall have the same meaning as 
identical or comparable terms when those terms are used in the ``Labor 
Act''.
    (g) For proceedings under the ``Pension Act''
    (1) Employer means the employee benefit plan with which an applicant 
under Sec. 4.2 desires to serve in a capacity for which he is 
ineligible under section 411(a) of the ``Pension Act'' (29 U.S.C. 
section 1111).
    (2) All other terms used in this part shall have the same meaning as 
identical or comparable terms when those terms are used in the ``Pension 
Act''.



Sec. 4.2  Who may apply for Certificate of Exemption.

    Any person who has been convicted of any of the crimes enumerated in 
section 504(a) of the ``Labor Act'' whose service, present or 
prospective, as described in that section is or would be prohibited by 
that section because of such a conviction or a prison term resulting 
therefrom; or any person who has been convicted of any of the crimes 
enumerated in section 411(a) of the ``Pension Act'' (29 U.S.C. section 
1111) whose service, present or prospective, as described in that 
section is or would be prohibited by that section because of such a 
conviction or a prison term resulting therefrom, may apply to the 
Commission for a Certificate of Exemption from such a prohibition under 
the applicable Act.



Sec. 4.3  Contents of application.

    A person applying for a Certificate of Exemption shall file with the 
Office of General Counsel, U.S. Parole Commission, 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286, a signed application under 
oath, in seven copies, which shall set forth clearly and completely the 
following information:
    (a) The name and address of the applicant and any other names used 
by the applicant and dates of such use.

[[Page 207]]

    (b) A statement of all convictions and imprisonments which prohibit 
the applicant's service under the provisions of the applicable Act.
    (c) Whether any citizenship rights were revoked as a result of 
conviction or imprisonment and if so the name of the court and date of 
judgment thereof and the extent to which such rights have been restored.
    (d) The name and location of the employer and a description of the 
office or paid position, including the duties thereof, for which a 
Certificate of Exemption is sought.
    (e) A full explanation of the reasons or grounds relied upon to 
establish that the applicant's service in the office or employment for 
which a Certificate of Exemption is sought would not be contrary to the 
purposes of the applicable Act.
    (f) A statement that the applicant does not, for the purpose of the 
proceeding, contest the validity of any conviction.

(28 U.S.C. 509 and 510, 5 U.S.C. 301)

[44 FR 6890, Feb. 2, 1979, as amended at 46 FR 52354, Oct. 27, 1981]



Sec. 4.4  Supporting affidavit; additional information.

    (a) Each application filed with the Commission must be accompanied 
by a signed affidavit, in 7 copies, setting forth the following 
concerning the personal history of the applicant:
    (1) Place and date of birth. If the applicant was not born in the 
United States, the time of first entry and port of entry, whether he is 
a citizen of the United States, and if naturalized, when, where and how 
he became naturalized and the number of his Certificate of 
Naturalization.
    (2) Extent of education, including names of schools attended.
    (3) History of marital and family status, including a statement as 
to whether any relatives by blood or marriage are currently serving in 
any capacity with any employee benefit plan, or labor organization, 
group or association of employers dealing with labor organizations or 
industrial labor relations group, or currently advising or representing 
any employer with respect to employee organizing, concerted activities, 
or collective bargaining activities.
    (4) Present employment, including office or offices held, with a 
description of the duties thereof.
    (5) History of employment, including military service, in 
chronological order.
    (6) Licenses held, at the present time or at any time in the past 
five years, to possess or carry firearms.
    (7) Veterans' Administration claim number and regional office 
handling claim, if any.
    (8) A listing (not including traffic offenses for which a fine of 
not more than $25 was imposed or collateral of not more than $25 was 
forfeited) by date and place of all arrests, convictions for felonies, 
misdemeanors, or offenses and all imprisonment or jail terms resulting 
therefrom, together with a statement of the circumstances of each 
violation which led to arrest or conviction.
    (9) Whether applicant was ever on probation or parole, and if so the 
names of the courts by which convicted and the dates of conviction.
    (10) Names and locations of all employee benefit plans, labor 
organizations or employer groups with which the applicant has ever been 
associated or employed, and all employers or employee benefit plans 
which he has advised or represented concerning employee organizing, 
concerted activities, or collective bargaining activities, together with 
a description of the duties performed in each such employment or 
association.
    (11) A statement of applicant's net worth, including all assets held 
by him or in the names of others for him, the amount of each liability 
owed by him or by him together with any other person and the amount and 
source of all income during the immediately preceding five calendar 
years plus income to date of application.
    (12) Any other information which the applicant feels will assist the 
Commission in making its determination.
    (b) The Commission may require of the applicant such additional 
information as it deems appropriate for the proper consideration and 
disposition of his application.

[[Page 208]]



Sec. 4.5  Character endorsements.

    Each application filed with the Commission must be accompanied by 
letters or other forms of statement (in three copies) from six persons 
addressed to the Chairman, U.S. Parole Commission, attesting to the 
character and reputation of the applicant. The statement as to character 
shall indicate the length of time the writer has known applicant, and 
shall describe applicant's character traits as they relate to the 
position for which the exemption is sought and the duties and 
responsibilities thereof. The statement as to reputation shall attest to 
applicant's reputation in his community or in his circle of business or 
social acquaintances. Each letter or other form of statement shall 
indicate that it has been submitted in compliance with procedures under 
the respective Act and that applicant has informed the writer of the 
factual basis of his application. The persons submitting letters or 
other forms of statement shall not include relatives by blood or 
marriage, prospective employers, or persons serving in any official 
capacity with an employee benefit plan, labor organization, group or 
association of employers dealing with labor organizations or industrial 
labor relations group.



Sec. 4.6  Institution of proceedings.

    All applications and supporting documents received by the Commission 
shall be reviewed for completeness by the Office of General Counsel of 
the Parole Commission and if complete and fully in compliance with the 
regulations of this part the Office of General Counsel shall accept them 
for filing. Applicant and/or his representative will be notified by the 
Office of General Counsel of any deficiency in the application and 
supporting documents. The amount of time allowed for deficiencies to be 
remedied will be specified in said notice. In the event such 
deficiencies are not remedied within the specified period or any 
extension thereof, granted after application to the Commission in 
writing within the specified period, the application shall be deemed to 
have been withdrawn and notice thereof shall be given to applicant.



Sec. 4.7  Notice of hearing; postponements.

    Upon the filing of an application, the Commission shall:
    (a) Set the application for a hearing on a date within a reasonable 
time after its filing and notify the applicant of such date by certified 
mail;
    (b) Give notice, as required by the respective Act, to the 
appropriate State, County, or Federal prosecuting officials in the 
jurisdiction or jurisdictions in which the applicant was convicted that 
an application for a Certificate of Exemption has been filed and the 
date for hearing thereon; and
    (c) Notify the Secretary that an application has been filed and the 
date for hearing thereon and furnish him copies of the application and 
all supporting documents.

Any party may request a postponement of a hearing date in writing from 
the Office of General Counsel at any time prior to ten (10) days before 
the scheduled hearing. No request for postponement other than the first 
for any party will be considered unless a showing is made of cause 
entirely beyond the control of the requester. The granting of such 
requests will be within the discretion of the Commission. In the event 
of a failure to appear on the hearing date as originally scheduled or 
extended, the absent party will be deemed to have waived his right to a 
hearing. The hearing will be conducted with the parties present 
participating and documentation, if any, of the absent party entered 
into the record.



Sec. 4.8  Hearing.

    The hearing on the application shall be held at the offices of the 
Commision in Washington, DC, or elsewhere as the Commission may direct. 
The hearing shall be held before the Commission, before one or more 
Commissioners, or before one or more administrative law judges appointed 
as provided by section 11 of the Administrative Procedure Act (5 U.S.C. 
3105) as the Commission by order shall determine. Hearings shall be 
conducted in accordance with sections 7 and 8 of the Administrative 
Procedure Act (5 U.S.C. 556, 557).

[[Page 209]]



Sec. 4.9  Representation.

    The applicant may be represented before the Commission by any person 
who is a member in good standing of the bar of the Supreme Court of the 
United States or of the highest court of any State or territory of the 
United States, or the District of Columbia, and who is not under any 
order of any court suspending, enjoining, restraining, or disbarring him 
from, or otherwise restricting him in, the practice of law. Whenever a 
person acting in a representative capacity appears in person or signs a 
paper in practice before the Commission, his personal appearance or 
signature shall constitute a representation to the Commission that under 
the provisions of this part and applicable law he is authorized and 
qualified to represent the particular person in whose behalf he acts. 
Further proof of a person's authority to act in a representative 
capacity may be required. When any applicant is represented by an 
attorney at law, any notice or other written communication required or 
permitted to be given to or by such applicant shall be given to or by 
such attorney. If an applicant is represented by more than one attorney, 
service by or upon any one of such attorneys shall be sufficient.



Sec. 4.10  Waiver of oral hearing.

    The Commission upon receipt of a statement from the Secretary that 
he does not object, and in the absence of any request for oral hearing 
from the others to whom notice has been sent pursuant to Sec. 4.7 may 
grant an application without receiving oral testimony with respect to 
it.



Sec. 4.11  Appearance; testimony; cross-examination.

    (a) The applicant shall appear and, except as otherwise provided in 
Sec. 4.10, shall testify at the hearing and may cross-examine 
witnesses.
    (b) The Secretary and others to whom notice has been sent pursuant 
to Sec. 4.7 shall be afforded an opportunity to appear and present 
evidence and cross-examine witnesses, at any hearing.
    (c) In the discretion of the Commission or presiding officer, other 
witnesses may testify at the hearing.



Sec. 4.12  Evidence which may be excluded.

    The Commission or officer presiding at the hearing may exclude 
irrelevant, untimely, immaterial, or unduly repetitious evidence.



Sec. 4.13  Record for decision. Receipt of documents comprising record;
timing and extension.

    (a) The application and all supporting documents, the transcript of 
the testimony and oral argument at the hearing, together with any 
exhibits received and other documents filed pursuant to these procedures 
and/or the Administrative Procedures Act shall be made parts of the 
record for decision.
    (b) At the conclusion of the hearing the presiding officer shall 
specify the time for submission of proposed findings of fact and 
conclusions of law (unless waived by the parties); transcript of the 
hearing, and supplemental exhibits, if any. He shall set a tentative 
date for the recommended decision based upon the timing of these 
preliminary steps. Extensions of time may be requested by any party, in 
writing, from the Parole Commission. Failure of any party to comply with 
the time frame as established or extended will be deemed to be a waiver 
on his part of his right to submit the document in question. The 
adjudication will proceed and the absence of said document and reasons 
therefor will be noted in the record.



Sec. 4.14  Administrative law judge's recommended decision; exceptions
thereto; oral argument before Commission.

    Whenever the hearing is conducted by an administrative law judge, at 
the conclusion of the hearing he shall submit a recommended decision to 
the Commission, which shall include a statement of findings and 
conclusions, as well as the reasons therefor. The applicant, the 
Secretary and others to whom notice has been sent pursuant to Sec. 4.7 
may file with the Commission, within 10 days after having been furnished 
a copy of the recommended decision, exceptions thereto and reasons in 
support thereof. The Commission may order the taking of additional 
evidence and may request the applicant

[[Page 210]]

and others to appear before it. The Commission may invite oral argument 
before it on such questions as it desires.



Sec. 4.15  Certificate of Exemption.

    The applicant, the Secretary and others to whom notice has been sent 
pursuant to Sec. 4.7 shall be served a copy of the Commission's 
decision and order with respect to each application. Whenever the 
Commission decision is that the application be granted, the Commission 
shall issue a Certificate of Exemption to the applicant. The Certificate 
of Exemption shall extend only to the stated employment with the 
prospective employer named in the application.



Sec. 4.16  Rejection of application.

    No application for a Certificate of Exemption shall be accepted from 
any person whose application for a Certificate of Exemption has been 
withdrawn, deemed withdrawn due to failure to remedy deficiencies in a 
timely manner, or denied by the Commission within the preceding 12 
months.



Sec. 4.17  Availability of decisions.

    The Commission's Decisions under both Acts are available for 
examination in the Office of the U.S. Parole Commission, 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286. Copies will be mailed upon 
written request to the Office of General Counsel, U.S. Parole 
Commission, at the above address at a cost of ten cents per page.

(28 U.S.C. 509 and 510, 5 U.S.C. 301)

[44 FR 6890, Feb. 2, 1979, as amended at 46 FR 52354, Oct. 27, 1981]



PART 5_ADMINISTRATION AND ENFORCEMENT OF FOREIGN AGENTS REGISTRATION
ACT OF 1938, AS AMENDED--Table of Contents




Sec.
5.1 Administration and enforcement of the Act.
5.2 Inquiries concerning application of the Act.
5.3 Filing of a registration statement.
5.4 Computation of time.
5.5 Registration fees.
5.100 Definition of terms.
5.200 Registration.
5.201 Exhibits.
5.202 Short form registration statement.
5.203 Supplemental statement.
5.204 Amendments.
5.205 Termination of registration.
5.206 Language and wording of registration statement.
5.207 Incorporation by reference.
5.208 Disclosure of foreign principals.
5.209 Information relating to employees.
5.210 Amount of detail required in information relating to registrant's 
          activities and expenditures.
5.211 Sixty-day period to be covered in initial statement.
5.300 Burden of establishing availability of exemption.
5.301 Exemption under section 3(a) of the Act.
5.302 Exemptions under sections 3(b) and (c) of the Act.
5.303 Exemption available to persons accredited to international 
          organizations.
5.304 Exemptions under sections 3(d) and (e) of the Act.
5.305 Exemption under section 3(f) of the Act.
5.306 Exemption under section 3(g) of the Act.
5.307 Exemption under 3(h) of the Act.
5.400 Filing of informational materials.
5.402 Labeling informational materials.
5.500 Maintenance of books and records.
5.501 Inspection of books and records.
5.600 Public examination of records.
5.601 Copies of records and information available.
5.800 Ten-day filing requirement.
5.801 Activity beyond 10-day period.
5.1101 Copies of the Report of the Attorney General.

    Authority: 28 U.S.C. 509, 510; Section 1, 56 Stat. 248, 257 (22 
U.S.C. 620); title I, Pub. L. 102-395, 106 Stat. 1828, 1831 (22 U.S.C. 
612 note).

    Source: Order No. 376-67, 32 FR 6362, Apr. 22, 1967, unless 
otherwise noted.



Sec. 5.1  Administration and enforcement of the Act.

    (a) The administration and enforcement of the Foreign Agents 
Registration Act of 1938, as amended (22 U.S.C. 611-621) (Act), subject 
to the general supervision and direction of the Attorney General, is 
assigned to, and conducted, handled, and supervised by, the Assistant 
Attorney General for National Security.
    (b) The Assistant Attorney General for National Security is 
authorized to prescribe such forms, in addition to or

[[Page 211]]

in lieu of those specified in the regulations in this part, as may be 
necessary to carry out the purposes of this part.
    (c) Copies of the Act, and of the rules, regulations, and forms 
prescribed pursuant to the Act, and information concerning the foregoing 
may be obtained upon request without charge from the National Security 
Division, Department of Justice, Washington, DC 20530.

[Order No. 2865-2007, 72 FR 10068, Mar. 7, 2007]



Sec. 5.2  Inquiries concerning application of the Act.

    (a) General. Any present or prospective agent of a foreign 
principal, or the agent's attorney, may request from the Assistant 
Attorney General for National Security a statement of the present 
enforcement intentions of the Department of Justice under the Act with 
respect to any presently contemplated activity, course of conduct, 
expenditure, receipt of money or thing of value, or transaction, and 
specifically with respect to whether the same requires registration and 
disclosure pursuant to the Act, or is excluded from coverage or exempted 
from registration and disclosure under any provision of the Act.
    (b) Anonymous, hypothetical, non-party and ex post facto review 
requests excluded. The entire transaction which is the subject of the 
review request must be an actual, as opposed to hypothetical, 
transaction and involve disclosed, as opposed to anonymous, agents and 
principals. Review requests must be submitted by a party to the 
transaction or the party's attorney, and have no application to a party 
that does not join in the request. A review request may not involve only 
past conduct.
    (c) Fee. All requests for statements of the Department's present 
enforcement intentions must be accompanied by a non-refundable filing 
fee submitted in accordance with Sec. 5.5.
    (d) Address. A review request must be submitted in writing to the 
Assistant Attorney General for National Security, Department of Justice, 
Washington, DC 20530.
    (e) Contents. A review request shall be specific and contain in 
detail all relevant and material information bearing on the actual 
activity, course of conduct, expenditure, receipt of money or thing of 
value, or transaction for which review is requested. There is no 
prescribed format for the request, but each request must include:
    (1) The identity(ies) of the agent(s) and foreign principal(s) 
involved;
    (2) The nature of the agent's activities for or in the interest of 
the foreign principal;
    (3) A copy of the existing or proposed written contract with the 
foreign principal or a full description of the terms and conditions of 
each existing or proposed oral agreement; and
    (4) The applicable statutory or regulatory basis for the exemption 
or exclusion claimed.
    (f) Certification. If the requesting party is an individual, the 
review request must be signed by the prospective or current agent, or, 
if the requesting party is not an individual, the review request must be 
signed on behalf of each requesting party by an officer, a director, a 
person performing the functions of an officer or a director of, or an 
attorney for, the requesting party. Each such person signing the review 
request must certify that the review request contains a true, correct 
and complete disclosure with respect to the proposed conduct.
    (g) Additional information. Each party shall provide any additional 
information or documents the National Security Division may thereafter 
request in order to review a matter. Any information furnished orally 
shall be confirmed promptly in writing, signed by the same person who 
signed the initial review request and certified to be a true, correct 
and complete disclosure of the requested information.
    (h) Outcomes. After submission of a review request, the National 
Security Division, in its discretion, may state its present enforcement 
intention under the Act with respect to the proposed conduct; may 
decline to state its present enforcement intention; or, if circumstances 
warrant, may take such other position or initiate such other action as 
it considers appropriate. Any requesting party or parties may withdraw a 
review request at any time. The National Security Division remains

[[Page 212]]

free, however, to submit such comments to the requesting party or 
parties as it deems appropriate. Failure to take action after receipt of 
a review request, documents or information, whether submitted pursuant 
to this procedure or otherwise, shall not in any way limit or stop the 
National Security Division from taking any action at such time 
thereafter as it deems appropriate. The National Security Division 
reserves the right to retain any review request, document or information 
submitted to it under this procedure or otherwise and to use any such 
request, document or information for any governmental purpose.
    (i) Time for response. The National Security Division shall respond 
to any review request within 30 days after receipt of the review request 
and of any requested additional information and documents.
    (j) Written decisions only. The requesting party or parties may rely 
only upon a written Foreign Agents Registration Act review letter signed 
by the Assistant Attorney General for National Security or his delegate.
    (k) Effect of review letter. Each review letter can be relied upon 
by the requesting party or parties to the extent the disclosure was 
accurate and complete and to the extent the disclosure continues 
accurately and completely to reflect circumstances after the date of 
issuance of the review letter.
    (l) Compliance. Neither the submission of a review request, nor its 
pendency, shall in any way alter the responsibility of the party or 
parties to comply with the Act.
    (m) Confidentiality. Any written material submitted pursuant to a 
request made under this section shall be treated as confidential and 
shall be exempt from disclosure.

[Order No. 1757-93, 58 FR 37418, July 12, 1993, as amended by Order No. 
2865-2007, 72 FR 10068, Mar. 7, 2007]



Sec. 5.3  Filing of a registration statement.

    All statements, exhibits, amendments, and other documents and papers 
required to be filed under the Act or under this part shall be submitted 
in triplicate to the Registration Unit. An original document and two 
duplicates meeting the requirements of Rule 1001(4), Federal Rules of 
Evidence (28 U.S.C. Appendix), shall be deemed to meet this requirement. 
Filing of such documents may be made in person or by mail, and they 
shall be deemed to be filed upon their receipt by the Registration Unit.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 1757-93, 58 FR 37419, July 
12, 1993]



Sec. 5.4  Computation of time.

    Sundays and holidays shall be counted in computing any period of 
time prescribed in the Act or in the rules and regulations in this part.



Sec. 5.5  Registration fees.

    (a) A registrant shall pay a registration fee with each initial 
registration statement filed under Sec. 5.200 and each supplemental 
registration statement under Sec. 5.203 at the time such registration 
statement is filed. The registration fee may be paid by cash or by check 
or money order made payable to ``FARA Registration Unit''. The 
Registration Unit, in its discretion, may require that the fee be paid 
by a certified or cashier's check or by a United States Postal money 
order.
    (b) Payment of fees shall accompany any order for copies or request 
for information, and all applicable fees shall be collected before 
copies or information will be made available. Payment may be made by 
cash or by check or money order made payable to ``FARA Registration 
Unit''. The Registration Unit, in its discretion, may require that the 
fee be paid by a certified or cashier's check or by a United States 
Postal money order.
    (c) Registration fees shall be waived in whole or in part, as 
appropriate, in the case of any individual person required to register 
under the Act who has demonstrated to the satisfaction of the 
Registration Unit that he or she is financially unable to pay the fees 
in their entirety. An individual seeking to avail himself or herself of 
this provision shall file with the registration statement a declaration 
made in compliance with section 1746 of title 28, United States Code, 
setting forth the

[[Page 213]]

information required by Form 4, Federal Rules of Appellate Procedure (28 
U.S.C. appendix).
    (d) The fees shall be as follows:
    (1) For initial registration statements (including an exhibit A for 
one foreign principal) under Sec. 5.200: $305.00;
    (2) For supplemental registration statements under Sec. 5.203: 
$305.00 per foreign principal;
    (3) For exhibit A under Sec. 5.201(a)(1): $305.00 per foreign 
principal not currently reported under Sec. 5.200 or Sec. 5.203;
    (4) For exhibit B under Sec. 5.201(a)(2): no fee;
    (5) For exhibits C and D (no forms) under Sec. 5.201: no fee;
    (6) For short-form registration statements under Sec. 5.202: no 
fee;
    (7) For amendments under Sec. 5.204; no fee;
    (8) For statements of present enforcement intentions under Sec. 
5.2: $96.00 per review request;
    (9) For each quarter hour of search time under Sec. 5.601: $4.00;
    (10) For copies of registration statements and supplements, 
amendments, exhibits thereto, dissemination reports, informational 
materials, and copies of political propaganda and other materials 
contained in the public files, under Sec. 5.601: fifty cents ($.50) per 
copy of each page of the material requested;
    (11) For copies of registration statements and supplements, 
amendments, exhibits thereto, dissemination reports, informational 
materials, and copies of political propaganda and other materials 
contained in the public files, produced by computer, such as tapes or 
printouts, under Sec. 5.601: actual direct cost of producing the copy, 
including the apportionable salary costs; and
    (12) For computer searches of records through the use of existing 
programming: Direct actual costs, including the cost of operating a 
central processing unit for that portion of operating time that is 
directly attributable to searching for records responsive to a request 
and the salary costs apportionable to the search.
    (e) The cost of delivery of any document by the Registration Unit by 
any means other than ordinary mail shall be charged to the requester at 
a rate sufficient to cover the expense to the Registration Unit.
    (f) The Assistant Attorney General is hereby authorized to adjust 
the fees established by this section from time to time to reflect and 
recover the costs of the administration of the Registration Unit under 
the Act.
    (g) Fees collected under this provision shall be available for the 
support of the Registration Unit.
    (h) Notwithstanding Sec. 5.3, no document required to be filed 
under the Act shall be deemed to have been filed unless it is 
accompanied by the applicable fee except as provided by paragraph (c) of 
this section.

[Order No. 1757-93, 58 FR 37419, July 12, 1993, as amended by Order No. 
2674-2003, 68 FR 33630, June 5, 2003]



Sec. 5.100  Definition of terms.

    (a) As used in this part:
    (1) The term Act means the Foreign Agents Registration Act of 1938, 
as amended (22 U.S.C. 611-621).
    (2) The term Attorney General means the Attorney General of the 
United States.
    (3) The term Assistant Attorney General means the Assistant Attorney 
General for National Security, Department of Justice, Washington, DC 
20530.
    (4) The term Secretary of State means the Secretary of State of the 
United States.
    (5) The term rules and regulations includes the regulations in this 
part and all other rules and regulations prescribed by the Attorney 
General pursuant to the Act and all registration forms and instructions 
thereon that may be prescribed by the regulations in this part or by the 
Assistant Attorney General for National Security.
    (6) The term registrant means any person who has filed a 
registration statement with the Registration Unit, pursuant to section 
2(a) of the Act and Sec. 5.3.
    (7) Unless otherwise specified, the term agent of a foreign 
principal means an agent of a foreign principal required to register 
under the Act.
    (8) The term foreign principal includes a person any of whose 
activities are directed or indirectly supervised, directed, controlled, 
financed, or subsidized in whole or in major part by a

[[Page 214]]

foreign principal as that term is defined in section 1(b) of the Act.
    (9) The term initial statement means the statement required to be 
filed with the Attorney General under section 2(a) of the Act.
    (10) The term supplemental statement means the supplement required 
to be filed with the Attorney General under section 2(b) of the Act at 
intervals of 6 months following the filing of the initial statement.
    (11) The term final statement means the statement required to be 
filed with the Attorney General following the termination of the 
registrant's obligation to register.
    (12) The term short form registration statement means the 
registration statement required to be filed by certain partners, 
officers, directors, associates, employees, and agents of a registrant.
    (b) As used in the Act, the term control or any of its variants 
shall be deemed to include the possession or the exercise of the power, 
directly or indirectly, to determine the policies or the activities of a 
person, whether through the ownership of voting rights, by contract, or 
otherwise.
    (c) The term agency as used in sections 1(c), 1(o), 3(g), and 4(e) 
of the Act shall be deemed to refer to every unit in the executive and 
legislative branches of the Government of the United States, including 
committees of both Houses of Congress.
    (d) The term official as used in sections 1(c), 1(o), 3(g), and 4(e) 
of the Act shall be deemed to include Members and officers of both 
Houses of Congress as well as officials in the executive branch of the 
Government of the United States.
    (e) The terms formulating, adopting, or changing, as used in section 
1(o) of the Act, shall be deemed to include any activity which seeks to 
maintain any existing domestic or foreign policy of the United States. 
They do not include making a routine inquiry of a Government official or 
employee concerning a current policy or seeking administrative action in 
a matter where such policy is not in question.
    (f) The term domestic or foreign policies of the United States, as 
used in sections 1 (o) and (p) of the Act, shall be deemed to relate to 
existing and proposed legislation, or legislative action generally; 
treaties; executive agreements, proclamations, and orders; decisions 
relating to or affecting departmental or agency policy, and the like.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003; Order No. 2865-2007, 72 FR 10068, Mar. 7, 2007]



Sec. 5.200  Registration.

    (a) Registration under the Act is accomplished by the filing of an 
initial statement together with all the exhibits required by Sec. 5.201 
and the filing of a supplemental statement at intervals of 6 months for 
the duration of the principal-agent relationship requiring registration.
    (b) The initial statement shall be filed on a form provided by the 
Registration Unit.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003]



Sec. 5.201  Exhibits.

    (a) The following described exhibits are required to be filed for 
each foreign principal of the registrant:
    (1) Exhibit A. This exhibit, which shall be filed on a form provided 
by the Registration Unit, shall set forth the information required to be 
disclosed concerning each foreign principal.
    (2) Exhibit B. This exhibit, which shall be filed on a form provided 
by the Registration Unit, shall set forth the agreement or understanding 
between the registrant and each of his foreign principals as well as the 
nature and method of performance of such agreement or understanding and 
the existing or proposed activities engaged in or to be engaged in, 
including political activities, by the registrant for the foreign 
principal.
    (b) Any change in the information furnished in exhibit A or B shall 
be reported to the Registration Unit within 10 days of such change. The 
filing of a new exhibit may then be required by the Assistant Attorney 
General.
    (c) Whenever the registrant is an association, corporation, 
organization, or any other combination of individuals,

[[Page 215]]

the following documents shall be filed as exhibit C:
    (1) A copy of the registrant's charter, articles of incorporation or 
association, or constitution, and a copy of its bylaws, and amendments 
thereto;
    (2) A copy of every other instrument or document, and a statement of 
the terms and conditions of every oral agreement, relating to the 
organization, powers and purposes of the registrant.
    (d) The requirement to file any of the documents described in 
paragraphs (c) (1) and (2) of this section may be wholly or partially 
waived upon written application by the registrant to the Assistant 
Attorney General setting forth fully the reasons why such waiver should 
be granted.
    (e) Whenever a registrant, within the United States, receives or 
collects contributions, loans, money, or other things of value, as part 
of a fund-raising campaign, for or in the interests of his foreign 
principal, he shall file as exhibit D a statement so captioned setting 
forth the amount of money or the value of the thing received or 
collected, the names and addresses of the persons from whom such money 
or thing of value was received or collected, and the amount of money or 
a description of the thing of value transmitted to the foreign principal 
as well as the manner and time of such transmission.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981; Order No. 2674-2003, 68 FR 33630, June 5, 2003]



Sec. 5.202  Short form registration statement.

    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, each partner, officer, director, associate, employee, and agent 
of a registrant is required to file a registration statement under the 
Act. Unless the Assistant Attorney General specifically directs 
otherwise, this obligation may be satisfied by the filing of a short 
form registration statement.
    (b) A partner, officer, director, associate, employee, or agent of a 
registrant who does not engage directly in registrable activity in 
furtherance of the interests of the foreign principal is not required to 
file a short form registration statement.
    (c) An employee or agent of a registrant whose services in 
furtherance of the interests of the foreign principal are rendered in a 
clerical, secretarial, or in a related or similar capacity, is not 
required to file a short form registration statement.
    (d) Whenever the agent of a registrant is a partnership, 
association, corporation, or other combination of individuals, and such 
agent is not within the exemption of paragraph (b) of this section, only 
those partners, officers, directors, associates, and employees who 
engage directly in activity in furtherance of the interests of the 
registrant's foreign principal are required to file a short form 
registration statement.
    (e) The short form registration statement shall be filed on Form 
OBD-66. Any change affecting the information furnished with respect to 
the nature of the services rendered by the person filing the statement, 
or the compensation he receives, shall require the filing of a new short 
form registration statement within 10 days after the occurrence of such 
change. There is no requirement to file exhibits or supplemental 
statements to a short form registration statement.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003]



Sec. 5.203  Supplemental statement.

    (a) Supplemental statements shall be filed on a form provided by the 
Registration Unit.
    (b) The obligation to file a supplemental statement at 6-month 
intervals during the agency relationship shall continue even though the 
registrant has not engaged during the period in any activity in the 
interests of his foreign principal.
    (c) The time within which to file a supplemental statement may be 
extended for sufficient cause shown in a

[[Page 216]]

written application to the Assistant Attorney General.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003]



Sec. 5.204  Amendments.

    (a) An initial, supplemental, or final statement which is deemed 
deficient by the Assistant Attorney General must be amended upon his 
request. Such amendment shall be filed upon a form provided by the 
Registration Unit and shall identify the item of the statement to be 
amended.
    (b) A change in the information furnished in an initial or 
supplemental statement under clauses (3), (4), (6), and (9) of section 
2(a) of the Act shall be by amendment, unless the notice which is 
required to be given of such change under section 2(b) is deemed 
sufficient by the Assistant Attorney General.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003]



Sec. 5.205  Termination of registration.

    (a) A registrant shall, within 30 days after the termination of his 
obligation to register, file a final statement on the supplemental 
statement form with the Registration Unit for the final period of the 
agency relationship not covered by any previous statement.
    (b) Registration under the Act shall be terminated upon the filing 
of a final statement, if the registrant has fully discharged all his 
obligations under the Act.
    (c) A registrant whose activities on behalf of each of his foreign 
principals become confined to those for which an exemption under section 
3 of the Act is available may file a final statement notwithstanding the 
continuance of the agency relationship with the foreign principals.
    (d) Registration under the Act may be terminated upon a finding that 
the registrant is unable to file the appropriate forms to terminate the 
registration as a result of the death, disability, or dissolution of the 
registrant or where the requirements of the Act cannot be fulfilled by a 
continuation of the registration.

(28 U.S.C. 509 and 510; 5 U.S.C. 301)

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981; Order No. 1757-93, 58 FR 37419, July 12, 1993; Order No. 2674-
2003, 68 FR 33630, June 5, 2003]



Sec. 5.206  Language and wording of registration statement.

    (a) Except as provided in the next sentence, each statement, 
amendment, exhibit, or notice required to be filed under the Act shall 
be submitted in the English language. An exhibit may be filed even 
though it is in a foreign language if it is accompanied by an English 
translation certified under oath by the translator before a notary 
public, or other person authorized by law to administer oaths for 
general purposes, as a true and accurate translation.
    (b) A statement, amendment, exhibit, or notice required to be filed 
under the Act should be typewritten, but will be accepted for filing if 
it is written legibly in ink, or if it is filed in an electronic format 
acceptable to the Registration Unit.
    (c) Copies of any document made by any of the duplicating processes 
may be filed pursuant to the Act if they are clear and legible.
    (d) A response shall be made to every item on each pertinent form, 
unless a registrant is specifically instructed otherwise in the form. 
Whenever the item is inapplicable or the appropriate response to an item 
is ``none,'' an express statement to that effect shall be made.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
2674-2003, 68 FR 33630, June 5, 2003]



Sec. 5.207  Incorporation by reference.

    (a) Each initial, supplemental, and final statement shall be 
complete in and of itself. Incorporation of information by reference to 
statements previously filed is not permissible.
    (b) Whenever insufficient space is provided for response to any item 
in a form, reference shall be made in such space to a full insert page 
or pages on

[[Page 217]]

which the item number and inquiry shall be restated and a complete 
answer given. Inserts and riders of less than full page size should not 
be used.



Sec. 5.208  Disclosure of foreign principals.

    A registrant who represents more than one foreign principal is 
required to list in the statements he files under the Act only those 
foreign principals for whom he is not entitled to claim exemption under 
section 3 of the Act.



Sec. 5.209  Information relating to employees.

    A registrant shall list in the statements he files under the Act 
only those employees whose duties require them to engage directly in 
activities in furtherance of the interests of the foreign principal.



Sec. 5.210  Amount of detail required in information relating to 
registrant's activities and expenditures.

    A statement is ``detailed'' within the meaning of clauses 6 and 8 of 
section 2 (a) of the Act when it has that degree of specificity 
necessary to permit meaningful public evaluation of each of the 
significant steps taken by a registrant to achieve the purposes of the 
agency relation.



Sec. 5.211  Sixty-day period to be covered in initial statement.

    The 60-day period referred to in clauses 5, 7, and 8 of section 2(a) 
of the Act shall be measured from the time that a registrant has 
incurred an obligation to register and not from the time that he files 
his initial statement.



Sec. 5.300  Burden of establishing availability of exemption.

    The burden of establishing the availability of an exemption from 
registration under the Act shall rest upon the person for whose benefit 
the exemption is claimed.



Sec. 5.301  Exemption under section 3(a) of the Act.

    (a) A consular officer of a foreign government shall be considered 
duly accredited under section 3(a) of the Act whenever he has received 
formal recognition as such, whether provisionally or by exequatur, from 
the Secretary of State.
    (b) The exemption provided by section 3(a) of the Act to a duly 
accredited diplomatic or consular officer is personal and does not 
include within its scope an office, bureau, or other entity.



Sec. 5.302  Exemptions under sections 3(b) and (c) of the Act.

    The exemptions provided by sections 3(b) and (c) of the Act shall 
not be available to any person described therein unless he has filed 
with the Secretary of State a fully executed Notification of Status with 
a Foreign Government (Form D.S. 394).



Sec. 5.303  Exemption available to persons accredited to international
organizations.

    Persons designated by foreign governments as their representatives 
in or to an international organization, other than nationals of the 
United States, are exempt from registration under the Act in accordance 
with the provisions of the International Organizations Immunities Act, 
if they have been duly notified to and accepted by the Secretary of 
State as such representatives, officers, or employees, and if they 
engage exclusively in activities which are recognized as being within 
the scope of their official functions.



Sec. 5.304  Exemptions under sections 3(d) and (e) of the Act.

    (a) As used in section 3(d), the term trade or commerce shall 
include the exchange, transfer, purchase, or sale of commodities, 
services, or property of any kind.
    (b) For the purpose of section 3(d) of the Act, activities of an 
agent of a foreign principal as defined in section 1(c) of the Act, in 
furtherance of the bona fide trade or commerce of such foreign 
principal, shall be considered ``private,'' even though the foreign 
principal is owned or controlled by a foreign government, so long as the 
activities do not directly promote the public or political interests of 
the foreign government.
    (c) For the purpose of section 3(d)(2) of the Act, a person engaged 
in political activities on behalf of a foreign corporation, even if 
owned in whole or

[[Page 218]]

in part by a foreign government, will not be serving predominantly a 
foreign interest where the political activities are directly in 
furtherance of the bona fide commercial, industrial, or financial 
operations of the foreign corporation, so long as the political 
activities are not directed by a foreign government or foreign political 
party and the political activities do not directly promote the public or 
political interests of a foreign government or of a foreign political 
party.
    (d) The exemption provided by section 3(e) of the Act shall not be 
available to any person described therein if he engages in political 
activities as defined in section 1(o) of the Act for or in the interests 
of his foreign principal.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
463-71, 36 FR 12212, June 29, 1971; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003]



Sec. 5.305  Exemption under section 3(f) of the Act.

    The exemption provided by section 3(f) of the Act shall not be 
available unless the President has, by publication in the Federal 
Register, designated for the purpose of this section the country the 
defense of which he deems vital to the defense of the United States.



Sec. 5.306  Exemption under section 3(g) of the Act.

    For the purpose of section 3(g) of the Act--
    (a) Attempts to influence or persuade agency personnel or officials 
other than in the course of judicial proceedings, criminal or civil law 
enforcement inquiries, investigations, or proceedings, or agency 
proceedings required by statute or regulation to be conducted on the 
record, shall include only such attempts to influence or persuade with 
reference to formulating, adopting, or changing the domestic or foreign 
policies of the United States or with reference to the political or 
public interests, policies, or relations of a government of a foreign 
country or a foreign political party; and
    (b) If an attorney engaged in legal representation of a foreign 
principal before an agency of the U.S. Government is not otherwise 
required to disclose the identity of his principal as a matter of 
established agency procedure, he must make such disclosure, in 
conformity with this section of the Act, to each of the agency's 
personnel or officials before whom and at the time his legal 
representation is undertaken. The burden of establishing that the 
required disclosure was made shall fall upon the person claiming the 
exemption.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
463-71, 36 FR 12212, June 29, 1971; Order No. 2674-2003, 68 FR 33630, 
June 5, 2003]



Sec. 5.307  Exemption under 3(h) of the Act.

    For the purpose of section 3(h) of the Act, the burden of 
establishing that registration under the Lobbying Disclosure Act of 
1995, 2 U.S.C. 1601 et seq. (LDA), has been made shall fall upon the 
person claiming the exemption. The Department of Justice will accept as 
prima facie evidence of registration a duly executed registration 
statement filed pursuant to the LDA. In no case where a foreign 
government or foreign political party is the principal beneficiary will 
the exemption under 3(h) be recognized.

[Order No. 2674-2003, 68 FR 33631, June 5, 2003]



Sec. 5.400  Filing of informational materials.

    (a) The informational materials required to be filed with the 
Attorney General under section 4(a) of the Act shall be filed with the 
Registration Unit no later than 48 hours after the beginning of the 
transmittal of the informational materials.
    (b) Whenever informational materials have been filed pursuant to 
section 4(a) of the Act, an agent of a foreign principal shall not be 
required, in the event of further dissemination of the same materials, 
to forward additional copies thereof to the Registration Unit.
    (c) Unless specifically directed to do so by the Assistant Attorney 
General, a registrant is not required to file a copy of a motion picture 
which he disseminates on behalf of his foreign principal, so long as he 
files monthly reports on its dissemination. In each such case this 
registrant shall submit

[[Page 219]]

to the Registration Unit either a film strip showing the label required 
by section 4(b) of the Act or an affidavit certifying that the required 
label has been made a part of the film.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 568-74, 39 FR 18646, May 
29, 1974; Order No. 2674-2003, 68 FR 33631, June 5, 2003]



Sec. 5.402  Labeling informational materials.

    (a) Within the meaning of this part, informational materials shall 
be deemed labeled whenever they have been marked or stamped 
conspicuously at their beginning with a statement setting forth such 
information as is required under section 4(b) of the Act.
    (b) Informational materials which are required to be labeled under 
section 4(b) of the Act and which are in the form of prints shall be 
marked or stamped conspicuously at the beginning of such materials with 
a statement in the language or languages used therein, setting forth 
such information as is required under section 4(b) of the Act.
    (c) Informational materials required to be labeled under section 
4(b) of the Act but which are not in the form of prints shall be 
accompanied by a statement setting forth such information as is required 
under section 4(b) of the Act.
    (d) Informational materials that are televised or broadcast, or 
which are caused to be televised or broadcast, by an agent of a foreign 
principal, shall be introduced by a statement which is reasonably 
adapted to convey to the viewers or listeners thereof such information 
as is required under section 4(b) of the Act.
    (e) An agent of a foreign principal who transmits or causes to be 
transmitted in the U.S. mails or by any means or instrumentality of 
interstate or foreign commerce a still or motion picture film which 
contains informational materials shall insert at the beginning of such 
film a statement which is reasonably adapted to convey to the viewers 
thereof such information as is required under section 4(b) of the Act.
    (f) For the purpose of section 4(e) of the Act, the statement that 
must preface or accompany informational materials or a request for 
information shall be in writing.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
2674-2003, 68 FR 33631, June 5, 2003]



Sec. 5.500  Maintenance of books and records.

    (a) A registrant shall keep and preserve in accordance with the 
provisions of section 5 of the Act the following books and records:
    (1) All correspondence, memoranda, cables, telegrams, teletype 
messages, and other written communications to and from all foreign 
principals and all other persons, relating to the registrant's 
activities on behalf of, or in the interest of any of his foreign 
principals.
    (2) All correspondence, memoranda, cables, telegrams, teletype 
messages, and other written communications to and from all persons, 
other than foreign principals, relating to the registrant's political 
activity, or relating to political activity on the part of any of the 
registrant's foreign principals.
    (3) Original copies of all written contracts between the registrant 
and any of his foreign principals.
    (4) Records containing the names and addresses of persons to whom 
informational materials have been transmitted.
    (5) All bookkeeping and other financial records relating to the 
registrant's activities on behalf of any of his foreign principals, 
including canceled checks, bank statements, and records of income and 
disbursements, showing names and addresses of all persons who paid 
moneys to, or received moneys from, the registrant, the specific amounts 
so paid or received, and the date on which each item was paid or 
received.
    (6) If the registrant is a corporation, partnership, association, or 
other combination of individuals, all minute books.
    (7) Such books or records as will disclose the names and addresses 
of all employees and agents of the registrant, including persons no 
longer acting as such employees or agents.
    (8) Such other books, records, and documents as are necessary 
properly to

[[Page 220]]

reflect the activities for which registration is required.
    (b) The books and records listed in paragraph (a) of this section 
shall be kept and preserved in such manner as to render them readily 
accessible for inspection pursuant to section 5 of the Act.
    (c) A registrant shall keep and preserve the books and records 
listed in paragraph (a) of this section for a period of 3 years 
following the termination of his registration under Sec. 5.205.
    (d) Upon good and sufficient cause shown in writing to the Assistant 
Attorney General, a registrant may be permitted to destroy books and 
records in support of the information furnished in an initial or 
supplemental statement which he filed 5 or more years prior to the date 
of his application to destroy.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
2674-2003, 68 FR 33631, June 5, 2003]



Sec. 5.501  Inspection of books and records.

    Officials of the National Security Division and the Federal Bureau 
of Investigation are authorized under section 5 of the Act to inspect 
the books and records listed in Sec. 5.500(a).

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 2865-2007, 72 FR 10068, 
Mar. 7, 2007]



Sec. 5.600  Public examination of records.

    Registration statements, informational materials, Dissemination 
Reports, and copies of political propaganda filed under section 4(a) of 
the Act, shall be available for public examination at the Registration 
Unit on official business days, during the posted hours of operation.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
2674-2003, 68 FR 33631, June 5, 2003]



Sec. 5.601  Copies of records and information available.

    (a) Copies of registration statements and supplements, amendments, 
exhibits thereto, informational materials, dissemination reports, and 
copies of political propaganda and other materials contained in the 
public files, may be obtained from the Registration Unit upon payment of 
a fee as prescribed in Sec. 5.5.
    (b) Information as to the fee to be charged for copies of 
registration statements and supplements, amendments, exhibits thereto, 
informational materials, dissemination reports, and copies of political 
propaganda and other materials contained in the public files, or 
research into and information therefrom, and the time required for the 
preparation of such documents or information may be obtained upon 
request to the Registration Unit. Fee rates are established in Sec. 
5.5.
    (c) The Registration Unit may, in its discretion, conduct computer 
searches of records through the use of existing programming upon written 
request. Information as to the fee for the conduct of such computer 
searches, and the time required to conduct such computer searches, may 
be obtained upon request to the Registration Unit. A written request for 
computer searches of records shall include a deposit in the amount 
specified by the Registration Unit, which shall be the Registration 
Unit's estimate of the actual fees. The Registration Unit is not 
required to alter or develop programming to conduct a search. Fee rates 
are established in Sec. 5.5.

[Order No. 1757-93, 58 FR 37420, July 12, 1993, as amended by Order No. 
2674-2003, 68 FR 33631, June 5, 2003]



Sec. 5.800  Ten-day filing requirement.

    The 10-day filing requirement provided by section 8(g) of the Act 
shall be deemed satisfied if the amendment to the registration statement 
is deposited in the U.S. mails no later than the 10th day of the period.



Sec. 5.801  Activity beyond 10-day period.

    A registrant who has within the 10-day period filed an amendment to 
his registration statement pursuant to a Notice of Deficiency given 
under section 8(g) of the Act may continue to act as an agent of a 
foreign principal beyond this period unless he receives a Notice of 
Noncompliance from the Registration Unit.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973]

[[Page 221]]



Sec. 5.1101  Copies of the Report of the Attorney General.

    Copies of the Report of the Attorney General to the Congress on the 
Administration of the Foreign Agents Registration Act of 1938, as 
amended, shall be sold to the public by the Registration Unit, as 
available, at a charge not less than the actual cost of production and 
distribution.

[Order No. 1757-93, 58 FR 37420, July 12, 1993]



PART 6_TRAFFIC IN CONTRABAND ARTICLES IN FEDERAL PENAL AND CORRECTIONAL
INSTITUTIONS--Table of Contents




    Authority: Pub. L. 772, 80th Cong.; 18 U.S.C. 1791.



Sec. 6.1  Consent of warden or superintendent required.

    The introduction or attempt to introduce into or upon the grounds of 
any Federal penal or correctional institution or the taking or attempt 
to take or send therefrom anything whatsoever without the knowledge and 
consent of the warden or superintendent of such Federal penal or 
correctional institution is prohibited.

    Cross Reference: For Organization Statement, Bureau of Prisons, see 
subpart Q of part 0 of this chapter.

[13 FR 5660, Sept. 30, 1948]



PART 7_REWARDS FOR CAPTURE OF ESCAPED FEDERAL PRISONERS--
Table of Contents




Sec.
7.1 Standing offer of reward.
7.2 Amount of reward.
7.3 Eligibility for reward.
7.4 Procedure for claiming reward.
7.5 Certification.

    Authority: 5 U.S.C. 301; 18 U.S.C. 3059.

    Cross Reference: For Organization Statement, Bureau of Prisons, see 
subpart Q of part 0 of this chapter.

    Source: 25 FR 2420, Mar. 23, 1960, unless otherwise noted.



Sec. 7.1  Standing offer of reward.

    A standing offer of reward is made for the capture, or for assisting 
in, or furnishing information leading to, the capture, of an escaped 
Federal prisoner, in accordance with the conditions stated in this part.



Sec. 7.2  Amount of reward.

    Within the discretion of the Warden or U.S. Marshal concerned, a 
reward not in excess of $200 may be granted for each capture of a 
prisoner and to more than one claimant, as determined applicable and 
appropriate. The Director of the Bureau of Prisons may in exceptional 
circumstances, as determined by him, grant rewards in excess of $200. 
Bodily harm, damage, violence, intimidation, terrorizing, risks, etc., 
will be considered in determining the appropriate amount of reward.



Sec. 7.3  Eligibility for reward.

    A reward may be paid to any person, except an official or employee 
of the Department of Justice or a law-enforcement officer of the U.S. 
Government, who personally captures and surrenders an escaped Federal 
prisoner to proper officials, or who assists in the capture, of an 
escaped Federal prisoner.



Sec. 7.4  Procedure for claiming reward.

    A person claiming a reward under this part shall present his claim, 
within six months from the date of the capture, in the form of a letter 
to the Warden or U.S. Marshal concerned. The letter shall state fully 
the facts and circumstances on which the claim is based, and shall 
include the name of each escapee captured and the time and place of the 
capture, and details as to how the arrest was made by the claimant or as 
to how assistance was rendered to others who made the arrest.



Sec. 7.5  Certification.

    The claim letter required under Sec. 7.4 shall contain the 
following certification immediately proceeding the signature of the 
claimant:

    I am not an officer or employee of the Department of Justice or a 
law-enforcement officer of the United States Government.



PART 8_FBI FORFEITURE AUTHORITY FOR CERTAIN STATUTES--
Table of Contents




Sec.
8.1 Definition.

[[Page 222]]

8.2 Designation of officials having seizure authority.
8.3 Designation of the investigative bureau having administrative 
          forfeiture authority; claims for awards, offers in compromise 
          and matters relating to bonds.
8.4 Custody of seized property, inventory and receipt.
8.5 Appraisement of property subject to forfeiture.
8.6 Quick-release authority.
8.7 Judicial forfeiture.
8.8 Advertisement and declaration of forfeiture.
8.9 Disposition of forfeited property.
8.10 Remission or mitigation of forfeiture.

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

    Source: Order No. 1128-86, 51 FR 8818, Mar. 14, 1986, unless 
otherwise noted.



Sec. 8.1  Definition.

    For the purpose of this part, the term statutes shall include the 
following statutes unless otherwise noted in this part: Interstate and 
Foreign Commerce--Gambling Devices--Transportation Prohibited, Jan. 2, 
1951, ch. 1194 section 7, 64 Stat. 1135 (codified at 15 U.S.C. 1177, 
commonly referred to as Transportation of Gambling Devices); Organized 
Crime Control Act of 1970, Public Law 91-452, title VIII, part C, 
section 803(a), 84 Stat. 937 (1970) (codified at 18 U.S.C. 1955, 
commonly referred to as Illegal Gambling Businesses); Copyrights Act, 
Public Law 94-553, title I, section 101, 90 Stat. 2768 (1976) (codified 
at 17 U.S.C. 509); Motor Vehicle Theft Law Enforcement Act of 1984, 
Public Law 98-547, title II, section 201, 98 Stat. 2754 (1984) (codified 
at 18 U.S.C. 512); Crimes and Criminal Procedure, June 25, 1948, ch. 
645, section 1, 62 Stat. 786 (codified at 18 U.S.C. 1762, commonly 
referred to as Prison-Made Goods); Child Protection Act of 1984, Public 
Law 98-292, section 6, 98 Stat. 205 (1984) (codified at 18 U.S.C. 2254); 
Omnibus Crime Control and Safe Streets Act of 1968, Public Law 90-351, 
title III, section 802, 82 Stat. 215 (1968) (codified at 18 U.S.C. 2513, 
commonly referred to as Wire Interception and Interception of Oral 
Communications); Seizure of Arms and Other Articles Intended for Export, 
June 15, 1917, ch. 30, title VI section 1, 40 Stat, 223; June 17, 1930, 
ch. 497, title IV, 523, 46 Stat. 740; Aug. 13, 1953, ch. 434, section 1, 
67 Stat. 577 (codified at 22 U.S.C. 401, commonly referred to as Illegal 
Exportation of War Materials) ; Anti-Drug Abuse Act of 1986, Public Law 
99-570, sec. 1351-1367 (1986) (codified at 18 U.S.C. 981, commonly 
referred to as Money Laundering Control Act of 1986).

[Order No. 1128-86, 51 FR 8818, Mar. 14, 1986, as amended by Order No. 
1197-87, 52 FR 24448, July 1, 1987]



Sec. 8.2  Designation of officials having seizure authority.

    The Director, Associate Director, Assistants to the Director, 
Assistant Directors, inspectors, and Agents of the Federal Bureau of 
Investigation are authorized to seize such property as may be subject to 
seizure pursuant to statutes identified in Sec. 8.1.



Sec. 8.3  Designation of the investigative bureau having administrative
forfeiture authority; claims for awards, offers in compromise and matters 

relating to  bonds.

    The Federal Bureau of Investigation is, in accordance with the 
statutes identified in Sec. 8.1, authorized and designated as the 
investigative bureau to perform various duties with respect to 
forfeiture which are comparable to the duties performed by collectors of 
customs or other persons with respect to the seizure and forfeiture of 
vessels, vehicles, merchandise, and baggage under the customs' laws. The 
Director of the Federal Bureau of Investigation or his designee is 
designated as the officer authorized to take final action under these 
statutes on claims for award of compensation to informers, offers in 
compromise, and matters relating to bonds or other security.



Sec. 8.4  Custody of seized property, inventory and receipt.

    All property seized pursuant to the statutes identified in Sec. 8.1 
shall be turned over to the U.S. Marshals Service when not held as 
evidence or to be placed into official use following forfeiture. An 
inventory shall be prepared by the Federal Bureau of Investigation of 
the seized property and a receipt given for it to the person from whom 
it was seized at the time of seizure or as soon thereafter as practical.

[[Page 223]]



Sec. 8.5  Appraisement of property subject to forfeiture.

    Seized property shall be appraised. The appraisement shall be the 
function of the Special Agent in Charge, Federal Bureau of Investigation 
or his designee having custody of the property. The value of an article 
seized shall be the price at which it or a similar article is fairly 
offered for sale at the time and place of appraisement.



Sec. 8.6  Quick-release authority.

    Where the forfeiture proceedings are administrative, the Special 
Agent in Charge, prior to forfeiture, is authorized to release property 
seized for forfeiture. The property can be quick-released when the 
Special Agent in Charge deems that there is an innocent owner having an 
immediate right to possession of the property or when the release would 
be in the best interest of justice and the Government.



Sec. 8.7  Judicial forfeiture.

    If the appraised value exceeds the monetary amount set forth in 
title 19, United States Code, section 1607, or a claim and satisfactory 
bond have been received either for property appraised at that amount or 
less, or for seized merchandise which is any monetary instrument within 
the meaning of section 5312(a)(3) of title 31 of the United States Code, 
the Special Agent in Charge of the FBI field office that seized the 
property shall transmit the claim and bond to the U.S. Attorney for the 
judicial district in which the seizure was made for the purpose of 
instituting judicial forfeiture proceedings. Also transmitted with the 
claim and bond will be a description of the property and a complete 
statement of the facts and circumstances leading to the seizure of the 
property.

[Order No. 1476-91, 56 FR 8685, Mar. 1, 1991]



Sec. 8.8  Advertisement and declaration of forfeiture.

    (a) The notice required by customs laws, section 607, Tariff Act of 
1930, as amended (19 U.S.C. 1607), of seizure and intention to forfeit 
and sell or otherwise dispose of property seized pursuant to the 
statutes identified in Sec. 8.1, shall describe the property seized, 
state the date seized, cause, and place of seizure; and state that any 
person desiring to claim the property must file with the Special Agent 
in Charge, Federal Bureau of Investigation (FBI) within 20 days from the 
date of the first publication of the notice a claim to such property and 
a bond.
    (b) The bond amount shall be $5,000 or ten percent of the value of 
the claimed property whichever is lower, but not less than $250. The 
bond posted to cover costs may be in cash, certified check, or 
satisfactory sureties. When the claim and bond are received by the 
Special Agent in Charge, he shall, after finding the documents in proper 
form and the sureties satisfactory, transmit the documents, together 
with a description of the property and a complete statement of the facts 
and circumstances surrounding the seizure, to the U.S. Attorney for the 
judicial district in which the seizure was made for purpose of 
proceeding to forfeiture of the property in a manner prescribed by law. 
If the documents are not in satisfactory condition when first received, 
a reasonable time for correction may be allowed. If correction is not 
made within a reasonable time, the documents may be treated as nugatory, 
and the administrative forfeiture shall proceed as though they had not 
been tendered. The filing of the claim and the posting of the bond does 
not entitle the claimant to possession of the property, however, it does 
stop the administrative forfeiture proceeding.
    (c) The notice for administrative forfeiture proceedings shall be 
published once each week for at least three successive weeks in a 
newspaper of general circulation in the judicial district in which the 
property was seized. If a claim is not made within the time period, the 
FBI Property Management Officer shall declare the property forfeited.

[Order No. 1128-86, 51 FR 8818, Mar. 14, 1986, as amended by Order No. 
1197-87, 52 FR 24448, July 1, 1987; Order No. 1476-91, 56 FR 8687, Mar. 
1, 1991]



Sec. 8.9  Disposition of forfeited property.

    (a) If the laws of a state in which an article of forfeited property 
is located prohibit the sale of such property or if the U.S. Marshals 
Service is of the

[[Page 224]]

opinion that it would be more advantageous to sell the forfeited 
property in another district, the property may be moved to and sold in 
such other district as the U.S. Marshals Service may direct.
    (b) If, after the administrative forfeiture of property is 
completed, it appears that the proceeds of sale will not be sufficient 
to pay the costs of sale or the proceeds will be insignificant in 
relation to the expenses involved in the forfeiture, the U.S. Marshals 
Service may order the destruction of the property. Similarly, property 
forfeited under a decree of a court may be destroyed in accordance with 
section 611, Tariff Act of 1930 (19 U.S.C. 1611). Also, if the sale or 
use of any article is prohibited under any law of the United States or 
the state where it is stored, the U.S. Marshals Service may order it 
destroyed or cause alteration of the property into an article that is 
not prohibited.
    (c) If arms and munitions are forfeited pursuant to 22 U.S.C. 
401(c), the Secretary of Defense should be contacted to determine if he 
desires this property.



Sec. 8.10  Remission or mitigation of forfeiture.

    (a) Any person claiming a legal or equitable interest in any 
property which has been forfeited pursuant to statutes identified in 
Sec. 8.1, may file, in accordance with the provisions of 28 CFR part 9, 
a petition for remission or mitigation of the forfeiture or a petition 
for restoration of the proceeds of sale or for value of the property 
placed in official use. If the foreiture proceedings are administrative, 
the petition shall be addressed to the Director of the FBI and shall be 
filed in triplicate with the Special Agent in Charge of the FBI field 
office that seized the property. It must be executed and sworn to by the 
person alleging interest in the property. If the forfeiture proceedings 
are judicial, the petition shall be addressed to the Attorney General of 
the United States and filed in triplicate with the Special Agent in 
Charge of the FBI field office that seized the property. The petition 
for a judicial forfeiture shall be sworn to by the petitioner, or by his 
or her counsel upon information and belief.
    (b) The petition shall include the following:
    (1) A complete description of the property, including model and 
serial numbers, if any, and the date and place of seizure;
    (2) The petitioner's interest in the property, which shall be 
supported by bills of sale, contracts, mortgages, or other satisfactory 
documentary evidence; and,
    (3) The facts and circumstances, established by satisfactory proof, 
relied upon by the petitioner to justify remission or mitigation of the 
forfeiture. For further information regarding the content of a petition, 
see 28 CFR 9.5.
    (c) Where the petition is for restoration of the proceeds of sale, 
or for value of the property placed in official use, it must be 
supported by satisfactory proof that the petitioner did not know of the 
seizure prior to the declaration of forfeiture and was in such 
circumstances as prevented petitioner from knowing of the same.
    (d) A petition for remission or mitigation of forfeiture should be 
filed within 30 days of the receipt of the notice of seizure. Once 
forfeited property is disposed of, a petition for remission or 
mitigation of forfeiture will no longer be accepted. A petition for 
restoration of proceeds of sale or for value of the property placed in 
official use must be filed within 90 days of the sale of the property, 
or within 90 days of the date the property is placed in official use.
    (e) Upon receipt of a petition, an appropriate investigation shall 
be conducted by the FBI. No hearing shall be held. For administrative 
forfeitures, the petition and the results of the petition investigation 
shall be forwarded to the Legal Counsel Division, FBI. Final decisions 
on petitions for property forfeited administratively shall be made by 
the Assistant Director, Legal Counsel, FBI or his designee within the 
Legal Counsel Division, FBI. For judicial forfeitures, the petition and 
the results of the petition investigation shall be forwarded to the U.S. 
Attorney who prosecuted the property. The U.S. Attorney shall forward 
the petition and

[[Page 225]]

the results of the investigation together with a recommendation as to 
allowance or denial of the petition to the Assistant Attorney General, 
Criminal Division. The matter shall be assigned to the Asset Forfeiture 
Office who shall either grant the petition by remission or mitigation of 
the forfeiture or shall deny it.
    (f) A request for reconsideration of the denial of the petition for 
an administrative forfeiture must be submitted within 10 days from 
receipt of the letter denying the petition. Such request shall be 
addressed to the Director of the FBI for referral to the FBI Legal 
Counsel Division and shall be based on evidence recently developed or 
not previously considered. Only one request for reconsideration of a 
denial of a petition shall be considered. For further information 
regarding petitions see 28 CFR part 9.



PART 9_REGULATIONS GOVERNING THE REMISSION OR MITIGATION OF CIVIL
AND CRIMINAL FORFEITURES--Table of Contents




Sec.
9.1 Authority, purpose, and scope.
9.2 Definitions.
9.3 Petitions in administrative forfeiture cases.
9.4 Petitions in judicial forfeiture cases.
9.5 Criteria governing administrative and judicial remission and 
          mitigation.
9.6 Special rules for specific petitioners.
9.7 Terms and conditions of remission and mitigation.
9.8 Provisions applicable to victims.
9.9 Miscellaneous provisions.

    Authority: 28 U.S.C. 509, 510, 515-518, 524; 8 U.S.C. 1324; 15 
U.S.C. 1177; 17 U.S.C. 509; 18 U.S.C. 512, 981, 982, 1467, 1955, 1963, 
2253, 2254, 2513; 19 U.S.C. 1613, 1618; 21 U.S.C. 853, 881; 22 U.S.C. 
401.

    Source: Order No. 2064-96, 62 FR 316, Jan. 3, 1997, unless otherwise 
noted.



Sec. 9.1  Authority, purpose, and scope.

    (a) Purpose. This part sets forth the procedures for agency 
officials to follow when considering remission or mitigation of 
administrative forfeitures under the jurisdiction of the agency, and 
civil judicial and criminal judicial forfeitures under the jurisdiction 
of the Criminal Division. The purpose of the regulations in this part is 
to provide a basis for ameliorating the effects of forfeiture through 
the partial or total remission of forfeiture for individuals who have an 
interest in the forfeited property but who did not participate in, or 
have knowledge of, the conduct that resulted in the property being 
subject to forfeiture and, where required, took all reasonable steps 
under the circumstances to ensure that such property would not be used, 
acquired, or disposed of contrary to law. Additionally, the regulations 
provide for partial or total mitigation of the forfeiture and imposition 
of alternative conditions in appropriate circumstances.
    (b) Authority to grant remission and mitigation. (1) Remission and 
mitigation functions in administrative forfeitures are performed by the 
agency seizing the property. Within the Federal Bureau of Investigation, 
authority to grant remission and mitigation is delegated to the 
Forfeiture Counsel, who is the Unit Chief, Legal Forfeiture Unit, Office 
of the General Counsel; within the Drug Enforcement Administration, 
authority to grant remission and mitigation is delegated to the 
Forfeiture Counsel, Office of Chief Counsel; within the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives, authority to grant remission 
and mitigation is delegated to the Director of the Bureau of Alcohol, 
Tobacco, Firearms, and Explosives; and within the Immigration and 
Naturalization Service, authority to grant remission and mitigation is 
delegated to the INS Regional Directors.
    (2) Remission and mitigation functions in judicial cases are 
performed by the Criminal Division of the Department of Justice. Within 
the Criminal Division, authority to grant remission and mitigation is 
delegated to the Chief, Asset Forfeiture and Money Laundering Section, 
Criminal Division.
    (3) The powers and responsibilities delegated by these regulations 
in this part may be redelegated to attorneys or managers working under 
the supervision of the designated officials.
    (c) The time periods and internal requirements established in this 
part are designed to guide the orderly administration of the remission 
and mitigation process and are not intended to create

[[Page 226]]

rights or entitlements in favor of individuals seeking remission or 
mitigation. The regulations will apply to all decisions on petitions for 
remission or mitigation made on or after February 3, 1997. The 
regulations will apply to decisions on requests for reconsideration of a 
denial of a petition under Sec. Sec. 9.3(j) and 9.4(k) only if the 
initial decision on the petition was made under the provisions of this 
part effective on February 3, 1997.
    (d) This part governs any petition for remission filed with the 
Attorney General and supersedes any Department of Justice regulation 
governing petitions for remission, to the extent such regulation is 
inconsistent with this part. In particular, this part supersedes the 
provisions of 21 CFR 1316.79 and 1316.80, which contain remission and 
mitigation procedures for property seized for narcotics violations. The 
provisions of 8 CFR 274.13 through 274.19 and 28 CFR 8.10, which concern 
non-drug related forfeitures, are also superseded by this part where 
those regulations relate to remission and mitigation.

[Order No. 2064-96, 62 FR 316, Jan. 3, 1997, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 9.2  Definitions.

    As used in this part:
    (a) The term administrative forfeiture means the process by which 
property may be forfeited by an investigative agency rather than through 
judicial proceedings.
    (b) The term appraised value means the estimated market value of an 
asset at the time and place of seizure if such or similar property was 
freely offered for sale between a willing seller and a willing buyer.
    (c) The term Assets Forfeiture Fund means the Department of Justice 
Assets Forfeiture Fund or Department of the Treasury Asset Forfeiture 
Fund, depending upon the identity of the seizing agency.
    (d) The term Attorney General means the Attorney General of the 
United States or his or her designee.
    (e) The term beneficial owner means a person with actual use of, as 
well as an interest in, the property subject to forfeiture.
    (f) The terms Chief, Asset Forfeiture and Money Laundering Section, 
and Chief, refer to the Chief of the Asset Forfeiture and Money 
Laundering Section, Criminal Division, United States Department of 
Justice.
    (g) The term general creditor means one whose claim or debt is not 
secured by a specific right to obtain satisfaction against the 
particular property subject to forfeiture.
    (h) The term judgment creditor means one who has obtained a judgment 
against the debtor but has not yet received full satisfaction of the 
judgment.
    (i) The term judicial forfeiture means either a civil or a criminal 
proceeding in a United States District Court that may result in a final 
judgment and order of forfeiture.
    (j) The term lienholder means a creditor whose claim or debt is 
secured by a specific right to obtain satisfaction against the 
particular property subject to forfeiture. A lien creditor qualifies as 
a lienholder if the lien:
    (1) Was established by operation of law or contract;
    (2) Was created as a result of an exchange of money, goods, or 
services; and
    (3) Is perfected against the specific property forfeited for which 
remission or mitigation is sought (e.g., a real estate mortgage; a 
mechanic's lien).
    (k) The term net equity means the amount of a lienholder's monetary 
interest in property subject to forfeiture. Net equity shall be computed 
by determining the amount of unpaid principal and unpaid interest at the 
time of seizure, and by adding to that sum unpaid interest calculated 
from the date of seizure through the last full month prior to the date 
of the decision on the petition. Where a rate of interest is set forth 
in a security agreement, the rate of interest to be used in this 
computation will be the annual percentage rate so specified in the 
security agreement that is the basis of the lienholder's interest. In 
this computation, however, there shall be no allowances for attorneys' 
fees, accelerated or enhanced interest charges, amounts set by contract 
as damages, unearned extended warranty fees, insurance, service contract 
charges incurred after the date of

[[Page 227]]

seizure, allowances for dealer's reserve, or any other similar charges.
    (l) The term owner means the person in whom primary title is vested 
or whose interest is manifested by the actual and beneficial use of the 
property, even though the title is vested in another. A victim of an 
offense, as defined in paragraph (v) of this section, may also be an 
owner if he or she has a present legally cognizable ownership interest 
in the property forfeited. A nominal owner of property will not be 
treated as its true owner if he or she is not its beneficial owner.
    (m) The term person means an individual, partnership, corporation, 
joint business enterprise, estate, or other legal entity capable of 
owning property.
    (n) The term petition means a petition for remission or mitigation 
of forfeiture under the regulations in this part. This definition 
includes a petition for restoration of the proceeds of sale of forfeited 
property and a petition for the value of forfeited property placed into 
official use.
    (o) The term petitioner means the person applying for remission, 
mitigation, restoration of the proceeds of sale, or for the appraised 
value of forfeited property, under the regulations in this part. A 
petitioner may be an owner as defined in Sec. 9.2(l), a lienholder as 
defined in Sec. 9.2(j), or a victim as defined in Sec. 9.2(v), subject 
to the limitations of Sec. 9.8.
    (p) The term property means real or personal property of any kind 
capable of being owned or possessed.
    (q) The term record means a series of arrests for related crimes, 
unless the arrestee was acquitted or the charges were dismissed for lack 
of evidence; a conviction for a related crime or completion of sentence 
within ten years of the acquisition of the property subject to 
forfeiture; or two convictions for a related crime at any time in the 
past.
    (r) The term related crime as used in Sec. 9.2(q) and Sec. 9.6(e) 
means any crime similar in nature to that which gives rise to the 
seizure of property for forfeiture. For example, where property is 
seized for a violation of the federal laws relating to drugs, a related 
crime would be any offense involving a violation of the federal laws 
relating to drugs or the laws of any state or political subdivision 
thereof relating to drugs.
    (s) The term related offense as used in Sec. 9.8 means:
    (1) Any predicate offense charged in a Federal Racketeer Influenced 
and Corrupt Organizations Act (RICO) count for which forfeiture was 
ordered; or
    (2) An offense committed as part of the same scheme or design, or 
pursuant to the same conspiracy, as was involved in the offense for 
which forfeiture was ordered.
    (t) The term Ruling Official means any official to whom decision 
making authority has been delegated pursuant to Sec. 9.1(b).
    (u) The term seizing agency means the federal agency that seized the 
property or adopted the seizure of another agency for federal 
forfeiture.
    (v) The term victim means a person who has incurred a pecuniary loss 
as a direct result of the commission of the offense underlying a 
forfeiture. A drug user is not considered a victim of a drug trafficking 
offense under this definition. A victim does not include one who 
acquires a right to sue the perpetrator of the criminal offense for any 
loss by assignment, subrogation inheritance, or otherwise form the 
actual victim, unless that person has acquired an actual ownership 
interest in the forfeited property.
    (w) The term violator means the person whose use or acquisition of 
the property in violation of the law subjected such property to seizure 
for forfeiture.



Sec. 9.3  Petitions in administrative forfeiture cases.

    (a) Notice of seizure. The notice of seizure and intent to forfeit 
the property shall advise any persons who may have a present ownership 
interest in the property to submit their petitions for remission or 
mitigation within thirty (30) days of the date they receive the notice 
in order to facilitate processing. Petitions shall be considered any 
time after notice until the forfeited property is placed into official 
use, sold, or otherwise disposed of according to law, except in cases 
involving petitions to restore the proceeds from the sale of forfeited 
property. A notice of seizure

[[Page 228]]

shall include the title of the seizing agency, the Ruling Official, the 
mailing and street address of the official to whom petitions should be 
sent, and an asset identifier number.
    (b) Persons who may file. A petition for remission or mitigation 
must be filed by a petitioner as defined in Sec. 9.2(o) or as 
prescribed in Sec. Sec. 9.9(g) and (h).
    (c) Contents of petition. (1) All petitions must include the 
following information in clear and concise terms:
    (i) The name, address, and social security or other taxpayer 
identification number of the person claiming an interest in the seized 
property who is seeking remission or mitigation;
    (ii) The name of the seizing agency, the asset identifier number, 
and the date and place of seizure;
    (iii) A complete description of the property, including make, model, 
and serial numbers, if any; and
    (iv) A description of the petitioner's interest in the property as 
owner, lienholder, or otherwise, supported by original or certified 
bills of sale, contracts, deeds, mortgages, or other documentary 
evidence.
    (2) Any factual recitation or documentation of any type in a 
petition must be supported by a sworn affidavit.
    (d) Releases. In addition to the contents of the petition for 
remission or mitigation set forth in paragraph (c) of this section, upon 
request, the petitioner shall also furnish the agency with an instrument 
executed by the titled or registered owner and any other known claimant 
of an interest in the property releasing interest in such property.
    (e) Filing petition with agency. (1) A petition for remission or 
mitigation subject to administrative forfeiture shall be addressed to 
the appropriate federal agency as follows:
    (i) Drug Enforcement Administration, Office of Chief Counsel, Street 
Address: 700 Army Navy Drive, Arlington, VA 22202
    Mailing Address: P.O. Box 28356, Washington, D.C. 20038.
    (ii) Federal Bureau of Investigation, Special Agent in Charge, Field 
Office that seized the property.
    (iii) Bureau of Alcohol, Tobacco, Firearms, and Explosives, Special 
Agent in Charge, Asset Forfeiture and Seized Property Branch, 650 
Massachusetts Avenue, NW., Washington, DC 20226.
    (iv) Immigration and Naturalization Service District Director, Chief 
Patrol Agent, or Regional Asset Forfeiture Office at location with 
jurisdiction over the forfeiture proceeding.
    (2) The petition is to be sent to the official address provided in 
the notice of seizure and shall be sworn to by the petitioner or by the 
petitioner's attorney upon information and belief, supported by the 
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as 
set out in Sec. 9.9(g). The Chief of the Asset Forfeiture and Money 
Laundering Section is delegated authority to amend the address of the 
official to whom petitions may be sent from time to time, as necessary, 
by publishing notice of the change of address in the Federal Register. 
Failure to publish a notice of change of address in the Federal Register 
shall not alter the authority of the Ruling Official to determine 
petitions for remission or mitigation nor the obligation of a petitioner 
to file a petition at the address provided in the notice of seizure. 
Failure to publish a notice of change of address in the Federal Register 
shall not be grounds for expanding the time for filing a petition for 
remission or mitigation under the regulations in this part.
    (f) Agency investigation. Upon receipt of a petition, the seizing 
agency shall investigate the merits of the petition and prepare a 
written report containing the results of that investigation. This report 
shall be submitted to the Ruling Official for review and consideration.
    (g) Ruling. Upon receipt of the petition and the agency report, the 
Ruling Official for the seizing agency shall review the petition and the 
report, and shall rule on the merits of the petition. No hearing shall 
be held.
    (h) Petitions granted. If the Ruling Official grants a remission or 
mitigation of the forfeiture, a copy of the decision shall be mailed to 
the petitioner or, if represented by an attorney, to the petitioner's 
attorney. A copy shall also be sent to the United States Marshals 
Service or other property custodian.

[[Page 229]]

The written decision shall include the terms and conditions, if any, 
upon which the remission or mitigation is granted and the procedures the 
petitioner must follow to obtain release of the property or the monetary 
interest therein.
    (i) Petitions denied. If the Ruling Official denies a petition, a 
copy of the decision shall be mailed to the petitioner or, if 
represented by an attorney, to the petitioner's attorney of record. A 
copy of the decision shall also be sent to the United States Marshals 
Service or other property custodian. The decision shall specify the 
reason that the petition was denied. The decision shall advise the 
petitioner that a request for reconsideration of the denial of the 
petition may be submitted to the Ruling Official in accordance with 
paragraph (j) of this section.
    (j) Request for reconsideration. (1) A request for reconsideration 
of the denial of the petition shall be considered if:
    (i) It is postmarked or received by the office of the Ruling 
Official within ten (10) days from the receipt of the notice of denial 
of the petition by the petitioner; and
    (ii) The request is based on information or evidence not previously 
considered that is material to the basis for the denial or presents a 
basis clearly demonstrating that the denial was erroneous.
    (2) In no event shall a request for reconsideration be decided by 
the same Ruling Official who ruled on the original petition.
    (3) Only one request for reconsideration of a denial of a petition 
shall be considered.
    (k) Restoration of proceeds from sale. (1) A petition for 
restoration of the proceeds from the sale of forfeited property, or for 
the appraised value of forfeited property when the forfeited property 
has been retained by or delivered to a government agency for official 
use, may be submitted by an owner or leinholder in cases in which the 
petitioner:
    (i) Did not know of the seizure prior to the entry of a declaration 
of forfeiture; and
    (ii) Could not reasonably have known of the seizure prior to the 
entry of a declaration of forfeiture.
    (2) Such a petition shall be submitted pursuant to paragraphs (b) 
through (e) of this section within ninety (90) days of the date the 
property is sold or otherwise disposed of.

[Order No. 2064-96, 62 FR 316, Jan. 3, 1997, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 9.4  Petitions in judicial forfeiture cases.

    (a) Notice of seizure. The notice of seizure and intent to forfeit 
the property shall advise any persons who may have a present ownership 
interest in the property to submit their petitions for remission or 
mitigation within thirty (30) days of the date they receive the notice 
in order to facilitate processing. Petitions shall be considered any 
time after notice until such time as the forfeited property is placed in 
official use, sold, or otherwise disposed of according to law, except in 
cases involving petitions to restore property. A notice of seizure shall 
include the title of the Ruling Official and the mailing and street 
address of the official to whom petitions should be sent, the name of 
the agency seizing the property, an asset identifier number, and the 
district court docket number.
    (b) Persons who may file. A petition for remission or mitigation 
must be filed by a petitioner as defined in Sec. 9.2(o) or as 
prescribed in Sec. Sec. 9.9 (g) and (h).
    (c) Contents of petition. (1) All petitions must include the 
following information in clear and concise terms:
    (i) The name, address, and social security or other taxpayer 
identification number of the person claiming an interest in the seized 
property who is seeking remission or mitigation;
    (ii) The name of the seizing agency, the asset identifier number, 
and the date and place of seizure;
    (iii) The district court docket number;
    (iv) A complete description of the property, including the address 
or legal description of real property, and make, model, and serial 
numbers of personal property, if any; and
    (v) A description of the petitioner's interest in the property as 
owner, lienholder, or otherwise, supported by

[[Page 230]]

original or certified bills of sale, contracts, mortgages, deeds, or 
other documentary evidence.
    (2) Any factual recitation or documentation of any type in a 
petition must be supported by a sworn affidavit.
    (d) Releases. In addition to the content of the petition for 
remission or mitigation set forth in paragraph (c) of this section, the 
petitioner, upon request, also shall furnish the agency with an 
instrument executed by the titled or registered owner and any other 
known claimant of an interest in the property releasing the interest in 
such property.
    (e) Filing petition with Department of Justice. A petition for 
remission or mitigation of a judicial forfeiture shall be addressed to 
the Attorney General; shall be sworn to by the petitioner or by the 
petitioner's attorney upon information and belief, supported by the 
client's sworn notice of representation pursuant to 28 U.S.C. 1746, as 
set forth in Sec. 9.9(g); and shall be submitted to the United States 
Attorney for the district in which the judicial forfeiture proceedings 
are brought. A petitioner also shall submit a copy of the petition to 
the seizing agency in the judicial district in which the seizure 
occurred as specified in the notice of seizure, except in Drug 
Enforcement Administration cases, where the copy shall be submitted to 
Drug Enforcement Administration Headquarters, Office of Chief Counsel, 
P.O. Box 28356, Washington, D.C. 20038, or 700 Army Navy Drive, 
Arlington, VA 22202, and except in Bureau of Alcohol, Tobacco, Firearms, 
and Explosives cases, where the copy shall be submitted to the Special 
Agent in Charge, Asset Forfeiture and Seized Property Branch, Bureau of 
Alcohol, Tobacco, Firearms, and Explosives, 650 Massachusetts Avenue, 
NW., Washington, DC 20226.
    (f) Agency investigation and recommendation; United States 
Attorney's recommendation. Upon receipt of a petition, the United States 
Attorney shall direct the seizing agency to investigate the merits of 
the petition based on the information provided by the petitioner and the 
totality of the agency's investigation of the underlying basis for 
forfeiture. The agency shall submit to the United States Attorney a 
report of its investigation and its recommendation on whether the 
petition should be granted or denied. Upon receipt of the agency's 
report and recommendation, the United States Attorney shall forward to 
the Chief, Asset Forfeiture and Money Laundering Section, the petition, 
the seizing agency's report and recommendation, and the United States 
Attorney's recommendation on whether the petition should be granted or 
denied.
    (g) Ruling. The Chief shall rule on the petition. No hearing shall 
be held. The Chief shall not rule on any petition in any case in which 
similar petition has been administratively denied by the seizing agency 
prior to the referral of the case to the United States Attorney for the 
institution of forfeiture proceedings.
    (h) Petitions under Internal Revenue Service liquor laws. The Chief 
shall accept and consider petitions submitted in judicial forfeiture 
proceedings under the Internal Revenue Service liquor laws only prior to 
the time a decree of forfeiture is entered. Thereafter, district courts 
have exclusive jurisdiction.
    (i) Petitions granted. If the Chief grants a remission or mitigates 
the forfeiture, the Chief shall mail a copy of the decision to the 
petitioner or, if represented by an attorney, to the petitioner's 
attorney, the appropriate United States Attorney, the United States 
Marshals Service or other property custodian, and the appropriate 
seizing agency. The written decision shall include the terms and 
conditions, if any, upon which the remission or mitigation is granted 
and the procedures the petitioner must follow to obtain release of the 
property or the monetary interest therein. The Chief shall advise the 
petitioner or the petitioner's attorney to consult with the United 
States Attorney as to such terms and conditions. The United States 
Attorney shall confer with the seizing agency regarding the release and 
shall coordinate disposition of the property with that office and the 
United States Marshals Service or other property custodian.
    (j) Petitions denied. If the Chief denies a petition, a copy of that 
decision shall

[[Page 231]]

be mailed to the petitioner, or if represented by an attorney, to the 
petitioner's attorney of record, to the appropriate United States 
Attorney, the United States Marshals Service or other property 
custodian, and to the appropriate seizing agency. The decision shall 
specify the reason that the petition was denied. The decision shall 
advise the petitioner that a request for reconsideration of the denial 
of the petition may be submitted to the Chief at the address provided in 
the decision, in accordance with paragraph (k) of this section.
    (k) Request for reconsideration. (1) A request for reconsideration 
of the denial shall be considered if:
    (i) It is postmarked or received by the Asset Forfeiture and Money 
Laundering Section at the address contained in the decision denying the 
petition within ten (10) days from the receipt of the notice of denial 
of the petition by the petitioner; and
    (ii) The request is based on information or evidence not previously 
considered that is material to the basis for the denial or presents a 
basis clearly demonstrating that the denial was erroneous. A copy of the 
request must be received by the appropriate United States Attorney 
within ten (10) days of the receipt of the denial by the petitioner.
    (2) In no event shall a request for reconsideration be decided by 
the Ruling Official who ruled on the original petition.
    (3) Only one request for reconsideration of a denial of a petition 
shall be considered.
    (4) Upon receipt of the request for reconsideration of the denial of 
a petition, disposition of the property will be delayed pending notice 
of the decision at the request of the Chief. If the United States 
Attorney does not receive a copy of the request for reconsideration 
within the prescribed period, the deposition of the property may 
proceed.
    (l) Restoration of proceeds from sale. (1) A petition for 
restoration of the proceeds from the sale of forfeited property, or for 
the appraised value of forfeited property when the forfeited property 
has been retained by or delivered to a government agency for official 
use, may be submitted by an owner or lienholder in cases in which the 
petitioner:
    (i) Did not know of the seizure prior to the entry of a final order 
of forfeiture; and
    (ii) Could not reasonably have known of the seizure prior to the 
entry of a final order of forfeiture.
    (2) Such a petition must be submitted pursuant to paragraphs (b) 
through (e) of this section within ninety (90) days of the date the 
property was sold or otherwise disposed of.

[Order No. 2064-96, 62 FR 316, Jan. 3, 1997, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 9.5  Criteria governing administrative and judicial remission and mitigation.

    (a) Remission. (1) The Ruling Official shall not grant remission of 
a forfeiture unless the petitioner establishes that:
    (i) The petitioner has a valid, good faith, and legally cognizable 
interest in the seized property as owner or lienholder as defined in 
this part; and
    (ii) The petitioner is innocent within the meaning of the innocent 
owner provisions of the applicable civil forfeiture statute, is a bona 
fide purchaser for value without cause to believe that the property was 
subject to forfeiture at the time of the purchase, or is one who held a 
legally cognizable interest in the seized property at the time of the 
violation underlying the forfeiture superior to that of the defendant 
within the meaning of the applicable criminal forfeiture statute, and is 
thereby entitled to recover his or her interest in the forfeited 
property by statute. (If the applicable civil forfeiture statute 
contains no innocent owner defense, the innocent owner provisions 
applicable to 21 U.S.C. 881(a)(4) shall apply.) Unless otherwise 
provided by statute, in the case of petitioners who acquired their 
interest in the property after the time of the violation underlying the 
forfeiture, the question of whether the petitioner had knowledge of the 
violation shall be determined as of the point in time when the interest 
in the property was acquired.
    (2) The knowledge and responsibilities of petitioner's 
representative,

[[Page 232]]

agent, or employee in paragraph (a)(1)(ii) of this section are imputed 
to the petitioner where the representative, agent, or employee was 
acting in the course of his or her employment and in furtherance of the 
petitioner's business.
    (3) The petitioner has the burden of establishing the basis for 
granting a petition for remission or mitigation of forfeited property, a 
restoration of proceeds of sale or appraised value of forfeited 
property, or a reconsideration of a denial of such a petition. Failure 
to provide information or documents and to submit to interviews, as 
requested, may result in a denial of the petition.
    (4) The Ruling Official shall presume a valid forfeiture and shall 
not consider whether the evidence is sufficient to support the 
forfeiture.
    (5) Willful, materially-false statements or information, made or 
furnished by the petitioner in support of a petition for remission or 
mitigation of forfeited property, the restoration of proceeds or 
appraised value of forfeited property, or the reconsideration of a 
denial of any such petition, shall be grounds for denial of such 
petition and possible prosecution for the filing of false statements.
    (b) Mitigation. (1) The Ruling Official may grant mitigation to a 
party not involved in the commission of the offense underlying 
forfeiture:
    (i) Where the petitioner has not met the minimum conditions for 
remission, but the Ruling Official finds that some relief should be 
granted to avoid extreme hardship, and that return of the property 
combined with imposition of monetary and/or other conditions of 
mitigation in lieu of a complete forfeiture will promote the interest of 
justice and will not diminish the deterrent effect of the law. 
Extenuating circumstances justifying such a finding include those 
circumstances that reduce the responsibility of the petitioner for 
knowledge of the illegal activity, knowledge of the criminal record of a 
user of the property, or failure to take reasonable steps to prevent the 
illegal use or acquisition by another for some reason, such as a 
reasonable fear of reprisal; or
    (ii) Where the minimum standards for remission have been satisfied 
but the overall circumstances are such that, in the opinion of the 
Ruling Official, complete relief is not warranted.
    (2) The Ruling Officials may in his or her discretion grant 
mitigation to a party involved in the commission of the offense 
underlying the forfeiture where certain mitigating factors exist, 
including, but not limited to: the lack of a prior record or evidence of 
similar criminal conduct; if the violation does not include drug 
distribution, manufacturing, or importation, the fact that the violator 
has taken steps, such as drug treatment, to prevent further criminal 
conduct; the fact that the violation was minimal and was not part of a 
larger criminal scheme; the fact that the violator has cooperated with 
federal, state, or local investigations relating to the criminal conduct 
underlying the forfeiture; or the fact that complete forfeiture of an 
asset is not necessary to achieve the legitimate purposes of forfeiture.
    (3) Mitigation may take the form of a monetary condition or the 
imposition of other conditions relating to the continued use of the 
property, and the return of the property, in addition to the imposition 
of any other costs that would be chargeable as a condition to remission. 
This monetary condition is considered as an item of cost payable by the 
petitioner, and shall be deposited into the Assets Forfeiture Fund as an 
amount realized from forfeiture in accordance with the applicable 
statute. If the petitioner fails to accept the Ruling Official's 
mitigation decision or any of its conditions, or fails to pay the 
monetary amount within twenty (20) days of the receipt of the decision, 
the property shall be sold, and the monetary amount imposed and other 
costs chargeable as a condition to mitigation shall be subtracted from 
the proceeds of the sale before transmitting the remainder to the 
petitioner.



Sec. 9.6  Special rules for specific petitioners.

    (a) General creditors. A general creditor may not be granted 
remission or mitigation of forfeiture unless he or she otherwise 
qualifies as petitioner under this part.
    (b) Rival claimants. If the beneficial owner of the forfeited 
property and the

[[Page 233]]

owner of a security interest in the same property each files a petition, 
and if both petitions are found to be meritorious, the claims of the 
beneficial owner shall take precedence.
    (c) Voluntary bailments. A petitioner who allows another to use his 
or her property without cost, and who is not in the business of lending 
money secured by property or of leasing or renting property for profit, 
shall be granted remission or mitigation of forfeiture in accordance 
with the provisions of Sec. 9.5.
    (d) Lessors. A person engaged in the business of leasing or renting 
real or personal property on a long-term basis with the right to 
sublease shall not be entitled to remission or mitigation of a 
forfeiture of such property unless the lessor can demonstrate compliance 
with all the requirements of Sec. 9.5.
    (e) Straw owners. A petition by any person who has acquired a 
property interest recognizable under this part, and who knew or had 
reason to believe that the interest was conveyed by the previous owner 
for the purpose of circumventing seizure, forfeiture, or the regulations 
in this part, shall be denied. A petition by a person who purchases or 
owns property for another who has a record for related crimes as defined 
in Sec. 9.2(r), or a petition by a lienholder who knows or has reason 
to believe that the purchaser or owner of record is not the real 
purchaser or owner, shall be denied unless both the purchaser of record 
and the real purchaser or owner meet the requirements of Sec. 9.5.
    (f) Judgment creditors. (1) A judgment creditor will be recognized 
as a lienholder if:
    (i) The judgment was duly recorded before the seizure of the 
property for forfeiture;
    (ii) Under applicable state or other local law, the judgment 
constitutes a valid lien on the property that attached to it before the 
seizure of the property for forfeiture; and
    (iii) The petitioner had no knowledge of the commission of any act 
or acts giving rise to the forfeiture at the time the judgment became a 
lien on the forfeited property.
    (2) A judgment creditor will not be recognized as a lienholder if 
the property in question is not property of which the judgment debtor is 
entitled to claim ownership under applicable state or other local law 
(e.g., stolen property). A judgment creditor is entitled under this part 
to no more than the amount of the judgment, exclusive of any interest, 
costs, or other fees including attorney's fees associated with the 
action that led to the judgment or its collection.
    (3) A judgment creditor's lien must be registered in the district 
where the property is located if the judgment was obtained outside the 
district.



Sec. 9.7  Terms and conditions of remission and mitigation.

    (a) Owners. (1) An owner's interest in property that has been 
forfeited is represented by the property itself or by a monetary 
interest equivalent to that interest at the time of seizure. Whether the 
property or a monetary equivalent will be remitted to an owner shall be 
determined at the discretion of the Ruling Official.
    (2) If a civil judicial forfeiture action against the property is 
pending, release of the property must await an appropriate court order.
    (3) Where the government sells or disposes of the property prior to 
the grant of the remission, the owner shall receive the proceeds of that 
sale, less any costs incurred by the government in the sale. The Ruling 
Official, at his or her discretion, may waive the deduction of costs and 
expenses incident to the forfeiture.
    (4) Where the owner does not comply with the conditions imposed upon 
release of the property by the Ruling Official, the property shall be 
sold. Following the sale, the proceeds shall be used to pay all costs of 
the forfeiture and disposition of the property, in addition to any 
monetary conditions imposed. The remaining balance shall be paid to the 
owner.
    (b) Lienholders. (1) When the forfeited property is to be retained 
for official use or transferred to a state or local law enforcement 
agency or foreign government pursuant to law, and remission or 
mitigation has been granted to a lienholder, the recipient of the 
property shall assure that:
    (i) In the case of remission, the lien is satisfied as determined 
through the petition process; or

[[Page 234]]

    (ii) In the case of mitigation, an amount equal to the net equity, 
less any monetary conditions imposed, is paid to the lienholder prior to 
the release of the property to the recipient agency of foreign 
government.
    (2) When the forfeited property is not retained for official use or 
transferred to another agency or foreign government pursuant to law, the 
lienholder shall be notified by the Ruling Official of the right to 
select either of the following alternatives:
    (i) Return of property. The lienholder may obtain possession of the 
property after paying the United States, through the Ruling Official, 
the costs and expenses incident to the forfeiture, the amount, if any, 
by which the appraised value of the property exceeds the lienholder's 
net equity in the property, and any amount specified in the Ruling 
Official's decision as a condition to remit the property. The Ruling 
Official, at his or her discretion, may waive costs and expenses 
incident to the forfeiture. The Ruling Official shall forward a copy of 
the decision, a memorandum of disposition, and the original releases to 
the United States Marshals Service or other property custodian who shall 
thereafter release the property to the lienholder; or
    (ii) Sale of property and payment to lienholder. Subject to the 
provisions of Sec. 9.9(a), upon sale of the property, the lienholder 
may receive the payment of a monetary amount up to the sum of the 
lienholder's net equity, less the expenses and costs incident to the 
forfeiture and sale of the property, and any other monetary conditions 
imposed. The Ruling Official, at his or her discretion, may waive costs 
and expenses incident to the forfeiture.
    (3) If the lienholder does not notify the Ruling Official of the 
selection of one of the two options set forth in paragraph (b)(2) of 
this section within twenty (20) days of the receipt of notification, the 
Ruling Official shall direct the United States Marshal or other property 
custodian to sell the property and pay the lienholder an amount up to 
the net equity, less the costs and expenses incurred incident to the 
forfeiture and sale, and any monetary conditions imposed. In the event a 
lienholder subsequently receives a payment of any kind on the debt owed 
for which he or she received payment as a result of the granting of 
remission or mitigation, the lienholder shall reimburse the Assets 
Forfeiture Fund to the extent of the payment received.
    (4) Where the lienholder does not comply with the conditions imposed 
upon the release of the property, the property shall be sold after 
forfeiture. From the proceeds of the sale, all costs incident to the 
forfeiture and sale shall first be deducted, and the balance up to the 
net equity, less any monetary conditions, shall be paid to the 
lienholder.



Sec. 9.8  Provisions applicable to victims.

    The provisions of this section apply to victims of an offense 
underlying the forfeiture of property, or of a related offense, who do 
not have a present ownership interest in the forfeited property (or, in 
the case of multiple victims of an offense, who do not have a present 
ownership interest in the forfeited property that is clearly superior to 
that of other petitioner victims). The provisions of this section apply 
only with respect to property forfeited pursuant to statutes that 
explicitly authorize restoration or remission of forfeited property to 
victims. Victims who have a superior present legally cognizable 
ownership interest in forfeited property may file petitions, as other 
owners, subject to the regulations set forth in Sec. 9.7(a). The claims 
of such owner victims, like those of any other owners, shall have 
priority over the claims of any non-owner victims whose claims are 
recognized pursuant to this section.
    (a) Qualification to file. A victim, as defined in Sec. 9.2(v), of 
an offense that was the underlying basis for the criminal, civil, or 
administrative forfeiture of specific property, or a victim of a related 
offense, may be granted remission of the forfeiture of that property, if 
in addition to complying with the other applicable provisions of Sec. 
9.8, the victim satisfactorily demonstrates that:
    (1) A pecuniary loss of a specific amount has been directly caused 
by the criminal offense, or related offense, that was the underlying 
basis for the

[[Page 235]]

forfeiture, and that the loss is supported by documentary evidence 
including invoices and receipts;
    (2) The pecuniary loss is the direct result of the illegal acts and 
is not the result of otherwise lawful acts that were committed in the 
course of a criminal offense;
    (3) The victim did not knowingly contribute to, participate in, 
benefit from, or act in a willfully blind manner towards the commission 
of the offense, or related offense, that was the underlying basis of the 
forfeiture;
    (4) The victim has not in fact been compensated for the wrongful 
loss of the property by the perpetrator or others; and
    (5) The victim does not have recourse reasonably available to other 
assets from which to obtain compensation for the wrongful loss of the 
property.
    (b) Pecuniary loss. The amount of the pecuniary loss suffered by a 
victim for which remission may be granted is limited to the fair market 
value of the property of which the victim was deprived as of the date of 
the occurrence of the loss. No allowance shall be made for interest 
foregone or for collateral expenses incurred to recover lost property or 
to seek other recompense.
    (c) Torts. A tort associated with illegal activity that formed the 
basis for the forfeiture shall not be a basis for remission, unless it 
constitutes the illegal activity itself, nor shall remission be granted 
for physical injuries to a petitioner or for damage to a petitioner's 
property.
    (d) Denial of petition. In the exercise of his or her discretion, 
the Ruling Official may decline to grant remission where:
    (1) There is substantial difficulty in calculating the pecuniary 
loss incurred by the victim or victims;
    (2) The amount of the remission, if granted, would be small compared 
with the amount of expenses incurred by the government in determining 
whether to grant remission; or
    (3) The total number of victims is large and the monetary amount of 
the remission so small as to make its granting impractical.
    (e) Pro rata basis. In granting remission to multiple victims 
pursuant to this section, the Ruling Official should generally grant 
remission on a pro rata basis to recognized victims when petitions 
cannot be granted in full due to the limited value of the forfeited 
property. However, the Ruling Official may consider, among others, the 
following factors in establishing appropriate priorities in individual 
cases:
    (1) The specificity and reliability of the evidence establishing a 
loss;
    (2) The fact that a particular victim is suffering an extreme 
financial hardship;
    (3) The fact that a particular victim has cooperated with the 
government in the investigation related to the forfeiture or to a 
related persecution or civil action; and
    (4) In the case of petitions filed by multiple victims of related 
offenses, the fact that a particular victim is a victim of the offense 
underlying the forfeiture.
    (f) Reimbursement. Any petitioner granted remission pursuant to this 
part shall reimburse the Assets Forfeiture Fund for the amount received 
to the extent the individual later receives compensation for the loss of 
the property from any other source. The petitioner shall surrender the 
reimbursement upon payment from any secondary source.
    (g) Claims of financial institution regulatory agencies. In cases 
involving property forfeitable under 18 U.S.C. 981(a)(1)(C) or 
(a)(1)(D), the Ruling Official may decline to grant a petition filed by 
a petitioner in whole or in part due to the lack of sufficient 
forfeitable funds to satisfy both the petition and claims of the 
financial institution regulatory agencies pursuant to 18 U.S.C. 
981(e)(3) or (7). Generally, claims of financial institution regulatory 
agencies pursuant to 18 U.S.C. 981(e)(3) or (7) shall take priority over 
claims of victims.



Sec. 9.9  Miscellaneous provisions.

    (a) Priority of payment. Except where otherwise provided in this 
part, costs incurred by the United States Marshals Service and other 
agencies participating in the forfeiture that were incident to the 
forfeiture, sale, or other disposition of the property shall be deducted 
from the amount available for

[[Page 236]]

remission or mitigation. Such costs include, but are not limited to, 
court costs, storage costs, brokerage and other sales-related costs, the 
amount of any liens and associated costs paid by the government on the 
property, costs incurred in paying the ordinary and necessary expenses 
of a business seized for forfeiture, awards for information as 
authorized by statute, expenses of trustees or other assistants pursuant 
to paragraph (c) of this section, investigative or prosecutive costs 
specially incurred incident to the particular forfeiture, and costs 
incurred incident to the processing of the petition(s) for remission or 
mitigation. The remaining balance shall be available for remission or 
mitigation. The Ruling Official shall direct the distribution of the 
remaining balance in the following order or priority, except that the 
Ruling Official may exercise discretion in determining the priority 
between petitioners belonging to classes described in paragraphs (a)(3) 
and (4) of this section in exceptional circumstances:
    (1) Owners;
    (2) Lienholders;
    (3) Federal financial institution regulatory agencies (pursuant to 
paragraph (e) of this section), not constituting owners or lienholders; 
and
    (4) Victims not constituting owners or lienholders (pursuant to 
Sec. 9.8).
    (b) Sale or disposition of property prior to ruling. If forfeited 
property has been sold or otherwise disposed of prior to a ruling, the 
Ruling Official may grant relief in the form of a monetary amount. The 
amount realized by the sale of the property is presumed to be the value 
of the property. Monetary relief shall not be greater than the appraised 
value of the property at the time of seizure and shall not exceed the 
amount realized from the sale or other disposition. The proceeds of the 
sale shall be distributed as follows:
    (1) Payment of the government's expenses incurred incident to the 
forfeiture and sale, including court costs and storage charges, if any;
    (2) Payment to the petitioner of an amount up to his or her interest 
in the property;
    (3) Payment to the Assets Forfeiture Fund of all other costs and 
expenses incident to the forfeiture;
    (4) In the case of victims, payment of any amount up to the amount 
of his or her loss; and
    (5) Payment of the balance remaining, if any, to the Assets 
Forfeiture Fund.
    (c) Trustees and other assistants. In the exercise of his or her 
discretion, the Ruling Official, with the approval of the Asset 
Forfeiture and Money Laundering Section, may use the services of a 
trustee, other government official, or appointed contractors to notify 
potential petitioners, process petitions, and make recommendations to 
the Ruling Official on the distribution of property to petitioners. The 
expense for such assistance shall be paid out of the forfeited funds.
    (d) Other agencies of the United States. Where another agency of the 
United States is entitled to remission or mitigation of forfeited assets 
because of an interest that is recognizable under this part or is 
eligible for such transfer pursuant to 18 U.S.C. 981(e)(6), such agency 
shall request the transfer in writing, in addition to complying with any 
applicable provisions of Sec. Sec. 9.3 through 9.5. The decision to 
make such transfer shall be made in writing by the Ruling Official.
    (e) Financial institution regulatory agencies. A Ruling Official may 
direct the transfer of property under 18 U.S.C. 981(e) to certain 
federal financial institution regulatory agencies or an entity acting in 
their behalf, upon receipt of a written request, in lieu of ruling on a 
petition for remission or mitigation.
    (f) Transfers to foreign governments. A Ruling Official may decline 
to grant remission to any petitioner other than an owner or lienholder 
so that forfeited assets may be transferred to a foreign government 
pursuant to 18 U.S.C. 981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 U.S.C. 
881(e)(1)(E).
    (g) Filing by attorneys. (1) A petition for remission or mitigation 
may be filed by a petitioner or by his or her attorney or legal 
guardian. If an attorney files on behalf of the petitioner, the petition 
must include a signed and sworn statement by the client-petitioner 
stating that:

[[Page 237]]

    (i) The attorney has the authority to represent the petitioner in 
this proceeding;
    (ii) The petitioner has fully reviewed the petition; and
    (iii) The petition is truthful and accurate in every respect.
    (2) Verbal notification of representation is not acceptable. 
Responses and notification of rulings shall not be sent to an attorney 
claiming to represent a petitioner unless a written notice of 
representation is filed. No extensions of time shall be granted due to 
delays in submission of the notice of representation.
    (h) Consolidated petitions. At the discretion of the Ruling Official 
in individual cases, a petition may be filed by one petitioner on behalf 
of other petitioners, provided the petitions are based on similar 
underlying facts, and the petitioner who files the petition has written 
authority to do so on behalf of the other petitioners. This authority 
must be either expressed in documents giving the petitioner the 
authority to file petitions for remission, or reasonably implied from 
documents giving the petitioner express authority to file claims or 
lawsuits related to the course of conduct in question on behalf of these 
petitioners. An insurer or an administrator of an employee benefit plan, 
for example, which itself has standing to file a petition as a 
``victim'' within the meaning of Sec. 9.2(v), may also file a petition 
on behalf of its insured or plan beneficiaries for any claims they may 
have based on co-payments made to the perpetrator of the offense 
underlying the forfeiture or the perpetrator of a ``related offense'' 
within the meaning of Sec. 9.2(s), if the authority to file claims or 
lawsuits is contained in the document or documents establishing the 
plan. Where such a petition is filed, any amounts granted as a remission 
must be transferred to the other petitioners, not the party filing the 
petition; although, in his or her discretion, the Ruling Official may 
use the actual petitioner as an intermediary for transferring the 
amounts authorized as a remission to the other petitioners.



PART 10_REGISTRATION OF CERTAIN ORGANIZATIONS CARRYING ON ACTIVITIES
WITHIN THE UNITED STATES--Table of Contents




                         Registration Statement

Sec.
10.1 Form of registration statement.
10.2 Language of registration statement.
10.3 Effect of acceptance of registration statement.
10.4 Date of filing.
10.5 Incorporation of papers previously filed.
10.6 Necessity for further registration.
10.7 Cessation of activity.

                   Supplemental Registration Statement

10.8 Information to be kept current.
10.9 Requirements for supplemental registration statement.

                  Inspection of Registration Statement

10.10 Public inspection.

    Authority: Pub. L. 772, 80th Cong.; 18 U.S.C. 2386.

    Cross References: For regulations under the Foreign Agents 
Registration Act, see part 5 of this chapter.

    For Organization Statement, Internal Security Section, see subpart K 
of part 0 of this chapter.

    Source: 6 FR 369, Jan. 15, 1941, unless otherwise noted.

                         Registration Statement



Sec. 10.1  Form of registration statement.

    Every organization required to submit a registration statement \1\ 
to the Attorney General for filing in compliance with the terms of 
section 2 of the act approved October 17, 1940, entitled, ``An act to 
require the registration of certain organizations carrying on activities 
within the United States, and for other purposes'' (Pub. L. 772, 80th 
Cong.; 18 U.S.C. 2386), and the rules and regulations issued pursuant 
thereto, shall submit such statement on such forms as are prescribed by 
the Attorney General. Every statement required to be filed with the 
Attorney General shall be subscribed under oath by all of

[[Page 238]]

the officers of the organization registering.
---------------------------------------------------------------------------

    \1\ Filed as a part of the original document. Copies may be obtained 
from the Department of Justice.
---------------------------------------------------------------------------



Sec. 10.2  Language of registration statement.

    Registration statements must be in English if possible. If in a 
foreign language they must be accompanied by an English translation 
certified under oath by the translator, before a notary public or other 
person authorized by law to administer oaths for general purposes as a 
true and adequate translation. The statements, with the exception of 
signature, must be typewritten if practicable but will be accepted if 
written legibly in ink.



Sec. 10.3  Effect of acceptance of registration statement.

    Acceptance by the Attorney General of a registration statement 
submitted for filing shall not necessarily signify a full compliance 
with the said act on the part of the registrant, and such acceptance 
shall not preclude the Attorney General from seeking such additional 
information as he deems necessary under the requirements of the said 
act, and shall not preclude prosecution as provided for in the said act 
for a false statement of a material fact, or the willful omission of a 
material fact required to be stated therein, or necessary to make the 
statements made not misleading.



Sec. 10.4  Date of filing.

    The date on which a registration statement properly executed is 
accepted by the Attorney General for filing shall be considered the date 
of the filing of such registration statement pursuant to the said act. 
All statements must be filed not later than thirty days after January 
15, 1941.



Sec. 10.5  Incorporation of papers previously filed.

    Papers and documents already filed with the Attorney General 
pursuant to the said act and regulations issued pursuant thereto may be 
incorporated by reference in any registration statement subsequently 
submitted to the Attorney General for filing, provided such papers and 
documents are adequately identified in the registration statement in 
which they are incorporated by reference.



Sec. 10.6  Necessity for further registration.

    The filing of a registration statement with the Attorney General as 
required by the act shall not operate to remove the necessity for filing 
a registration statement with the Attorney General as required by the 
act of June 8, 1938, as amended, entitled ``An act to require the 
registration of certain persons employed by agencies to disseminate 
propaganda in the United States and for other purposes'' (52 Stat. 631, 
56 Stat. 248; 22 U.S.C. 611), or for filing a notification statement 
with the Secretary of State as required by the act of June 15, 1917 (40 
Stat. 226).

[13 FR 8292, Dec. 24, 1948]



Sec. 10.7  Cessation of activity.

    The chief officer or other officer of the registrant organization 
must notify the Attorney General promptly upon the cessation of the 
activity of the organization, its branches, chapters, or affiliates by 
virtue of which registration has been required pursuant to the act.

                   Supplemental Registration Statement



Sec. 10.8  Information to be kept current.

    A supplemental statement must be filed with the Attorney General 
within thirty days after the expiration of each period of six months 
succeeding the original filing of a registration statement. Each 
supplemental statement must contain information and documents as may be 
necessary to make information and documents previously filed accurate 
and current with respect to the preceding six months' period.



Sec. 10.9  Requirements for supplemental registration statement.

    The rules and regulations in this part with respect to registration 
statements submitted to the Attorney General under section 2 of the said 
act shall apply with equal force and effect to supplemental registration 
statements required thereunder to be filed with the Attorney General.

[[Page 239]]

                  Inspection of Registration Statement



Sec. 10.10  Public inspection.

    Registration statements filed with the Attorney General pursuant to 
the said act shall be available for public inspection in the Department 
of Justice, Washington, DC, from 10 a.m. to 4 p.m. on each official 
business day.

[13 FR 8292, Dec. 24, 1948]



PART 11_DEBT COLLECTION--Table of Contents




       Subpart A_Retention of Private Counsel for Debt Collection

Sec.
11.1 Delegation of authority.
11.2 Pilot program.
11.3 Compliance with existing laws.

               Subpart B_Administration of Debt Collection

11.4 Purpose and scope.
11.5 Delegation of authority.
11.6 Definitions.
11.7 Salary adjustments.
11.8 Salary offset.
11.9 Administrative offset.

   Subpart C_IRS Tax Refund Offset Provisions for Collection of Debts

11.10 Scope.
11.11 Definitions.
11.12 Procedures.

    Authority: 5 U.S.C. 301, 28 U.S.C. 509, 510, 31 U.S.C. 3718, 3720A.

    Source: Order No. 1201-87, 52 FR 24449, July 1, 1987, unless 
otherwise noted.



       Subpart A_Retention of Private Counsel for Debt Collection



Sec. 11.1  Delegation of authority.

    The Assistant Attorney General for Administration shall exercise the 
full authority of the Attorney General to develop and administer the 
Department of Justice pilot program for debt collection by private 
counsel. This authority shall include, but is not limited to, the 
authority to set policies and procedures for the program, and to enter 
into contracts for the retention of private counsel. The Assistant 
Attorney General for Adminstration can in turn delegate authority 
regarding debt collection to subordinate officials as appropriate. 
Existing delegations of authority with respect to settlement 
determinations on disputed claims shall remain in force. See generally, 
28 CFR 0.160 et seq.



Sec. 11.2  Pilot program.

    The Assistant Attorney General for Administration, in consultation 
with the Executive Office for United States Attorneys, shall designate 
the districts that will participate in the pilot program. U.S. Attorneys 
in the districts chosen for the pilot program, shall direct the full 
cooperation and assistance of their respective offices in implementing 
the program. Among other things, the U.S. Attorneys shall designate an 
Assistant U.S. Attorney to serve as the Contracting Officer's Technical 
Representative (COTR) on the contracts with private debt collection 
lawyers in their respective districts. The COTRs will be responsible for 
assisting the contracting officer by supervising the work of the private 
counsel in their respective districts and providing necessary approvals 
with respect to the initiation or settlement of lawsuits or similar 
matters.



Sec. 11.3  Compliance with existing laws.

    The procurement of the services of private attorneys for debt 
collection shall be accomplished in accordance with the competitive 
procurement procedures mandated by Federal law, and set forth in the 
Federal Property and Administrative Services Act of 1949, 41 U.S.C. 251 
et seq. Best efforts shall be made to encourage extensive participation 
by law firms owned and controlled by socially and economically 
disadvantaged individuals in the competition for award of these 
contracts in the pilot districts. Such efforts shall include, at 
minimum, publication of the requirement for these services in the 
Commerce Business Daily and in a selection of pertinent legal 
publications likely to reach socially and economically disadvantaged 
firms, as well as sending written notice of the requirements to bar 
associations that have a significant socially and economically 
disadvantaged membership in the pilot districts. These special 
recruitment efforts will not authorize or permit preferential 
consideration to any bidders in

[[Page 240]]

selection for award of these contracts. The Department's Office of Small 
and Disadvantaged Business Utilization shall also make its resources 
available to assist in encouraging broad participation in this 
competition.



               Subpart B_Administration of Debt Collection

    Source: Order No. 1625-92, 57 FR 44107, Sept. 24, 1992, unless 
otherwise noted.



Sec. 11.4  Purpose and scope.

    (a) Purpose. The purpose of this subpart is to implement 5 U.S.C. 
5514 and 31 U.S.C. 3716, which authorize the collection by salary or 
administrative offset of debts owed by persons, organizations, or 
entities to the federal government. Generally, however, a debt may not 
be collected by such means if it has been outstanding for more than ten 
years after the agency's right to collect the debt first accrued. This 
subpart is consistent with the Office of Personnel Management (OPM) 
regulations on salary offset, codified at 5 CFR part 550, subpart K, and 
with regulations on administrative offset published jointly by the 
General Accounting Office (GAO) and the Department of Justice 
(Department), codified at 4 CFR part 102.
    (b) Scope. (1) This subpart establishes Departmental procedures for 
the collection of certain debts owed the government.
    (2) This subpart applies to collections by the Department from:
    (i) Federal employees who are indebted to the Department;
    (ii) Employees of the Department who are indebted to other agencies; 
and
    (iii) Other persons, organizations, or entities that are indebted to 
the Department.
    (3) This subpart does not apply:
    (i) To debts or claims arising under the Internal Revenue Code of 
1986 (26 U.S.C. et seq.), the Social Security Act (42 U.S.C. 301 et 
seq.), or the tariff laws of the United States;
    (ii) To a situation to which the Contract Disputes Act (41 U.S.C. 
601 et seq.) applies; or
    (iii) In any case where collection of a debt is explicitly provided 
for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 
5705 and employee training expenses in 5 U.S.C. 4108).
    (4) Nothing in this subpart precludes the compromise, suspension, or 
termination of collection actions where appropriate under the standards 
implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq.), 
namely, 4 CFR chapter II and 38 CFR 1.900-1.954).
    (5) This subpart does not govern debt collection procedures 
implemented by other agencies.



Sec. 11.5  Delegation of authority.

    Authority to conduct the following activities is hereby delegated to 
heads of Department organizations with respect to debts arising in their 
respective organizations:
    (a) Initiate and effectuate the administrative collection process.
    (b) Accept or reject compromise offers and suspend or terminate 
collection actions where the claim does not exceed $100,000 or such 
higher amount as the Attorney General may from time to time prescribe, 
exclusive of interest, administrative costs, and penalties as provided 
herein, as set forth in 311 U.S.C. 3711(a)(2).
    (c) Report to consumer reporting agencies certain data pertaining to 
delinquent debts.
    (d) Use offset procedures to effectuate collection.
    (e) Take any other action necessary to facilitate and augment 
collection in accordance with the policies contained herein and as 
otherwise provided by law.



Sec. 11.6  Definitions.

    Except where the context clearly indicates otherwise or where the 
term is otherwise defined elsewhere in this subpart, the following 
definitions shall apply to this subpart.
    (a) Agency means:
    (1) An executive agency as defined by 5 U.S.C. 105;
    (2) A military department as defined by 5 U.S.C. 102;
    (3) The United States Postal Service and the Postal Rate Commission;
    (4) An agency of the judicial branch, including a court as defined 
by 28 U.S.C. 610, the District Court for the

[[Page 241]]

Northern Mariana Islands, and the Judicial Panel on Multidistrict 
Litigation;
    (5) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (6) Other entities that are establishments of the federal 
government.
    (b) Bureau means the Bureau of Prisons, the Drug Enforcement 
Administration, the Federal Bureau of Investigation (FBI), the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives (ATF), Federal Prison 
Industries, the Immigration and Naturalization Service, the Office of 
Justice Programs, and the United States Marshals Service (USMS).
    (c) Certification means a written statement received by a paying 
agency from a creditor agency that requests the paying agency to offset 
the salary of an employee and specifies that appropriate procedural 
protections have been afforded the employee.
    (d) Components means the bureaus, offices, boards, and divisions of 
the Department.
    (e) Compromise means the forgiveness of a debt in accordance with 31 
U.S.C. 3711(a)(2) and DOJ Order No. 2120.4E. (Copies of this order are 
available in accordance with 28 CFR part 16, subpart A.)
    (f) Creditor agency means an agency of the federal government to 
which the debt is owed.
    (g) Department or Justice Department means the Department of Justice 
and its components.
    (h) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, and, in the case of an 
employee not entitled to basic pay, other authorized pay, remaining 
after the deduction of any amount required by law to be withheld. The 
Department shall allow the following deductions in determining the 
amount of disposable pay that is subject to salary offset:
    (1) Amounts withheld from benefits payable under title II of the 
Social Security Act where the withholding is required the law;
    (2) Federal employment taxes;
    (3) Amounts mandatorily withheld for the United States Soldiers' and 
Airmen's Home;
    (4) Fines and forfeiture ordered by a court-martial or by a 
commanding officer;
    (5) Amounts deducted for Medicare;
    (6) Federal, state, or local income taxes to the extent authorized 
or required by law, but no greater than would be the case if the 
employee claimed all dependents to which he or she is entitled and such 
additional amounts for which the employee presents evidence of a tax 
obligation supporting the additional withholding;
    (7) Health insurance premiums;
    (8) Normal retirement contributions (e.g., Civil Service Retirement 
deductions, Survivor Benefit Plan payments, or Retired Servicemen's 
Family Protection Plan payments), not including amounts deducted for 
supplementary coverage; and
    (9) Normal life insurance premiums (e.g., Serviceman's Group Life 
Insurance and ``Basic Life'' Federal Employee's Group Life Insurance 
premiums), not including amounts deducted for supplementary coverage.
    (i) Employee means a current employee of the Justice Department or 
other agency, including a current member of the Armed Forces or a 
Reserve of the Armed Forces of the United States.
    (j) Federal Claims Collection Standards (FCCS) means standards 
jointly published by the Department and the General Accounting Office in 
4 CFR chapter II.
    (k) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed 
and for rendering a decision on the basis of such hearing. A hearing 
official may not be under the supervision or control of the Attorney 
General when the Department is the creditor agency but may be an 
administrative law judge.
    (l) Notice of Intent to Offset or Notice of Intent means a written 
notice from a creditor agency to an employee, organization, or entity 
stating that the debtor is indebted to the creditor agency and apprising 
the debtor of certain procedural rights.
    (m) Notice of Salary Offset means a written notice from the paying 
agency to an employee after a certification has been issued by a 
creditor agency,

[[Page 242]]

informing the employee that salary offset will begin at the next 
officially established pay interval.
    (n) Organization means the bureaus individually and the offices, 
boards, and divisions collectively.
    (o) Organization head means any Director, Administrator, or 
Commissioner of the respective Department bureaus, the Director of the 
United States Trustee System, the Director of the Executive Office for 
United States Attorneys, and the Assistant Attorney General for 
Administration, who shall serve as the organization head for the 
offices, boards, and divisions.
    (p) Paying agency means the agency of the federal government that 
employs the individual who owes a debt to an agency of the federal 
government. In some cases, the Department may be both the creditor 
agency and the paying agency.
    (q)(1) Payroll office means the payroll office in the paying agency 
that is primarily responsible for the payroll records and the 
coordination of pay matters with the appropriate personnel office with 
respect to an employee.
    (2) Applicable payroll office means the Federal Bureau of 
Investigation voucher and Payroll Section with respect to FBI employees 
and the Justice Employee Data Service for all other employees of the 
Department.
    (r) Salary offset coordination officer means an official designated 
by an organization head who is responsible for coordinating the debt 
collection activities of that organization.

[Order No. 1625-92, 57 FR 44107, Sept. 24, 1992, as amended by Order No. 
2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 11.7  Salary adjustments.

    Any negative adjustment to pay arising out of an employee's election 
of coverage, or a change in coverage, under a Federal benefits program 
requiring periodic deductions from pay shall not be considered 
collection of a ``debt'' for the purposes of this subpart if the amount 
to be recovered was accumulated over four pay periods or less. In such 
cases, the Department need not comply with Sec. 11.8, but it will 
endeavor to provide a clear and concise statement in the employee's 
earnings statement advising the employee of the previous overpayment at 
the time the adjustment is made.



Sec. 11.8  Salary offset.

    (a) Notice requirements before offset. Deductions under the 
authority of 5 U.S.C. 5514 will not be made unless the creditor agency 
provides the employee with a written Notice of Intent to Offset a 
minimum of 30 calendar days before salary offset is initiated. When the 
Department is the creditor agency, this Notice of Intent shall be hand-
delivered or sent by certified mail to the Assistant Director, Justice 
Employee Data Service, or to the Section Chief, Voucher and Payroll 
Section, Administrative Services Division, FBI, who shall then transmit 
the Notice of Intent to the debtor-employee. The Notice of Intent shall 
state:
    (1) That the organization head has reviewed the records relating to 
the claim and has determined that a debt is owed, including the amount 
of the debt and the facts giving rise to the debt;
    (2) The organization head's intention to collect the debt by means 
of deduction from the employee's current disposable pay account until 
the debt and all accumulated interest is paid in full;
    (3) A repayment schedule that includes the amount, frequency, 
proposed beginning date, and duration of the intended deductions;
    (4) The opportunity for the employee to propose an alternative 
written schedule for the voluntary repayment of the debt, in lieu of 
offset, on terms acceptable to the Department. The employee shall 
include a justification in the request for the alternative schedule. The 
schedule shall be agreed to and signed by both the employee and the 
organization head;
    (5) An explanation of the Department's policy concerning interest, 
penalties, and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with the Federal 
Claims Collection Standards;
    (6) The employee's right to inspect and copy all records of the 
Department pertaining to the debt claimed or to receive copies of such 
records if the debtor is unable personally to inspect the

[[Page 243]]

records, due to geographical or other constraints;
    (7) The name, address, and telephone number of an officer or 
employee of the Department to whom requests for access to Department 
records relating to the debt must be sent;
    (8) The employee's right to a hearing conducted by an impartial 
hearing official (an administrative law judge or other hearing official 
not under the supervision or control of the Attorney General) with 
respect to the existence and amount of the debt claimed or the repayment 
schedule (i.e., the percentage of disposable pay to be deducted each pay 
period), so long as a petition is filed by the employee as prescribed in 
paragraph (c)(1) of this section.
    (9) The name, address, and telephone number of the officer or 
employee of the Department to whom a proposal for voluntary repayment 
must be sent; and the name, address, and telephone number of an officer 
or employee of the Department who may be contacted concerning procedures 
for requesting a hearing;
    (10) The method and deadline for requesting a hearing;
    (11) That the timely filing of a petition for a hearing on or before 
the 15th calendar day following receipt of the Notice of Intent will 
stay the commencement of collection proceedings;
    (12) The name and address of the office to which the petition should 
be sent;
    (13) That the Department will initiate certification procedures to 
implement a salary offset not less than 30 days from the date of receipt 
of the Notice of Intent to Offset, unless the employee files a timely 
petition for a hearing;
    (14) That a final decision on whether a hearing will be held (if one 
is requested) will be issued at the earliest practical date, but not 
later than 60 days after the filing of the petition requesting the 
hearing;
    (15) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 
CFR part 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
under any other applicable statutory authority; or
    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
under any other applicable statutory authority;
    (16) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (17) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted from debts that 
are later waived or found not to be owed to the United States will be 
promptly refunded to the employee, and
    (i) Interest shall be paid on any amount paid on or deducted from a 
debt that is found not to be owed to the United States; and
    (ii) Interest shall not be paid on any amount paid on or deducted 
from a debt that is later waived; and
    (18) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514.
    (b) Review of Departmental records related to the debt. (1) An 
employee who desires to inspect or copy Department records related to 
the debt must send a letter to the official designated in the Notice of 
Intent requesting access to the relevant records. The letter must be 
received in the office of the salary offset coordination official within 
15 days after the employee's receipt of the Notice of Intent.
    (2) In response to a timely request submitted by the debtor, the 
designated salary offset coordination official will notify the employee 
of the location and time when the employee may inspect and copy records 
related to the debt.
    (3) If the employee is unable personally to inspect the records, due 
to geographical or other constraints, the salary offset coordination 
official shall arrange to send copies of such records to the employee.
    (c) Opportunity for a hearing where the Department is the creditor 
agency--(1) Request for a hearing. (i) An employee who requests a 
hearing on the existence or amount of the debt held by the Department or 
on the offset schedule

[[Page 244]]

proposed by the Department must send such request to the office 
designated in the Notice of Intent. The request or petition for a 
hearing must be received by the designated office on or before the 15th 
calendar day following receipt by the employer of the notice.
    (ii) The employee must specify whether an oral hearing is requested. 
If an oral hearing is desired, the request should explain why the matter 
cannot be resolved by review of the documentary evidence alone. The 
request must be signed by the employee and must fully identify and 
explain with reasonable specificity all the facts, evidence, and 
witnesses, if any, that the employee believes support his or her 
position.
    (2) Failure to timely submit. If the employee files a request or 
petition for hearing after the expiration of the 15-calendar-day period 
provided for in paragraph (c)(1) of this section, the organization head 
may accept the request if the employee can show that the delay was the 
result of circumstances beyond his or her control or that he or she 
failed to receive actual notice of the filing deadline.
    (3) Obtaining the services of hearing official. (i) When the debtor 
is not a Department employee and the Department cannot provide a prompt 
and appropriate hearing before an administrative law judge or other 
hearing official, the Department may request a hearing official from an 
agent of the paying agency, as designated in 5 CFR part 581, appendix A, 
or as otherwise designated by the paying agency.
    (ii) When the debtor is a Department employee, the Department may 
contact any agent of another agency, as designated in 5 CFR part 581, 
appendix A, or as otherwise designated by the agency, to request a 
hearing official.
    (4) Procedure--(i) Notice. After the employee requests a hearing, 
the hearing official shall notify the employee of the form of the 
hearing to be provided. If the hearing will be oral, the notice shall 
set forth the date, time, and location of the hearing, which must occur 
no more than 30 days after the request is received. If the hearing will 
be conducted by examination of documents, the employee shall be notified 
within 30 days that he or she should submit evidence and arguments in 
writing to the hearing official.
    (ii) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing need 
not be an adversarial adjudication, and rules of evidence need not 
apply. Oral hearings may take the form of, but are not limited to:
    (A) Informal conferences with the hearing official in which the 
employee and agency representative are given full opportunity to present 
evidence, witnesses, and argument;
    (B) Informal meetings in which the hearing examiner interviews the 
employee; or
    (C) Formal written submissions followed by an opportunity for oral 
presentation.

Witnesses who testify in oral hearings shall do so under oath or 
affirmation.
    (iii) Documentary hearing. If the hearing official determines that 
an oral hearing is not necessary, he or she shall make the determination 
based upon a review of the written record.
    (iv) Record. The hearing official shall maintain a summary record of 
any hearing conducted under this section.
    (5) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon all evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 days after the date on which the petition 
was received by the Department, unless the hearing was delayed at the 
request of the employee, in which case the 60 day decision period shall 
be extended by the number of days by which the hearing was postponed. 
Decisions not timely rendered shall result in the waiver of penalty and 
interest costs. The decision of the hearing official shall be final.
    (6) Content of decision. The written decision shall include:
    (i) A summary of the facts concerning the origin, nature, and amount 
of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and

[[Page 245]]

    (iii) The terms of any repayment schedules, if applicable.
    (7) Failure to appear. If, in the absence of good cause shown (e.g., 
illness), the employee or the representative of the Department fails to 
appear, the hearing official shall proceed with the hearing as 
scheduled, and make his or her determination based upon the oral 
testimony presented and the documentation submitted by both parties. At 
the request of both parties, the hearing official may schedule a new 
hearing date. Both parties shall be given reasonable notice of the time 
and place of this new hearing.
    (d) Certification where the Department is the creditor agency. (1) 
The salary offset coordination officer shall provide a certification to 
the appropriate payroll office in all cases where:
    (i) The hearing official determines that a debt exists; or
    (ii) The employee admits the existence and amount of the debt by 
failing to request a hearing.
    (2) The certification must be in writing and must state:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;
    (iii) The date the government's right to collect the debt first 
accrued;
    (iv) That the Department's regulations have been approved by OPM 
pursuant to 5 CFR part 550, subpart K;
    (v) If the collection is to be made by lump-sum payment, the amount 
and data such payment will be collected;
    (vi) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment, and the 
commencing date of the first installment, if a date other than the next 
officially established pay period; and
    (vii) The date the employee was notified of the debt, the action(s) 
taken under 5 U.S.C. 5514(a), and the dates such actions were taken.
    (e) Voluntary repayment agreements as alternative to salary offset 
where the Department is the creditor agency. (1) In response to a Notice 
of Intent, an employee may propose to repay the debt in accordance with 
scheduled installment payments. Any employee who wishes to repay a debt 
without salary offset shall submit in writing a proposed agreement to 
repay the debt. The proposal shall set forth a proposed repayment 
schedule. Any proposal under this subsection must be received by the 
office of the official designated in the notice within 15 calendar days 
after receipt of the Notice of Intent.
    (2) In response to a timely proposal by the debtor, the organization 
head shall notify the employee whether the employee's proposed written 
agreement for repayment is acceptable. It is within the organization 
head's discretion to accept or reject a repayment agreement.
    (3) If the organization head decides that the proposed repayment 
agreement is unacceptable, the employee shall have 15 days from the date 
he or she received notice of the decision in which to file a petition 
for a hearing.
    (4) If the organization head decides that the proposed repayment 
agreement is acceptable, the arrangement shall be put in writing and 
signed by both the employee and the organization head.
    (f) Special review where the Department is the creditor agency. (1) 
An employee subject to salary offset or a voluntary repayment agreement 
may, at any time, request a special review by the Department of the 
amount of the salary offset or voluntary payment, based on materially 
changed circumstances, including but not limited to catastrophic 
illness, divorce, death, or disability.
    (2) In determining whether, as a result of materially changed 
circumstances, an offset would prevent the employee from meeting 
essential subsistence expenses (costs incurred for food, housing, 
clothing, transportation, and medical care), the employee shall submit a 
detailed statement and supporting documents for the employee, his or her 
spouse, and dependents indicating:
    (i) Income for all sources;
    (ii) Assets;
    (iii) Liabilities;
    (iv) Number of dependents;
    (v) Expenses for food, housing, clothing, and transportation;
    (vi) Medical expenses; and
    (vii) Exceptional expenses, if any.

[[Page 246]]

    (3) If the employee requests a special review under this paragraph, 
the employee shall file an alternative proposed offset or payment 
schedule and a statement, with supporting documents, showing why the 
current salary offset or payments result in an extreme financial 
hardship to the employee.
    (4) The organization head shall evaluate the statement and 
supporting documents and determine whether the original offset or 
repayment schedule imposes an extreme financial hardship on the 
employee. The organization head shall notify the employee in writing 
within 30 days of such determination, including, if appropriate, his or 
her acceptance of a revised offset or payment schedule.
    (5) If the special review results in a revised offset or repayment 
schedule, the salary offset coordination officer shall provide a new 
certification to the paying agency.
    (g) Notice of salary offset where the Department is the paying 
agency. (1) Upon receipt of proper certification from the creditor 
agency, the applicable payroll office shall send the employee a written 
notice of salary offset. Such notice shall advise the employee that:
    (i) The certification has been received from the creditor agency; 
and
    (ii) Salary offset will be initiated at the next officially 
established pay interval.
    (2) The applicable payroll office shall provide a copy of the notice 
to the creditor agency and advise such agency of the dollar amount to be 
offset and the pay period when the offset will begin.
    (h) Procedures for salary offset where the Department is the paying 
agency--(1) Generally. (i) The salary offset coordination officer shall 
coordinate salary deductions under this section.
    (ii) The applicable payroll office shall determine the amount of an 
employee's disposable pay and offset salary.
    (iii) Deductions shall begin the pay period following receipt by the 
applicable payroll office of the certification or as soon thereafter as 
possible.
    (2) Types of collection--(i) Lump-sum payment. If the amount of the 
debt is equal to or less than 15 percent of the employee's disposable 
pay, such debt ordinarily will be collected in one lump-sum payment.
    (ii) Installment deductions. Installment deductions will be made 
over a period not greater than the anticipated period of employment. The 
size and frequency of installment deductions will bear a reasonable 
relation to the size of the debt and the employee's ability to pay. 
However, the amount deducted from any period will not exceed 15 percent 
of the disposable pay from which the deduction is made unless the 
employee has agreed in writing to the deduction of a greater amount. The 
installment payment should normally be sufficient in size and frequency 
to liquidate the debt in no more than three years. Installment payments 
of less than $50 should be accepted only in the most unusual 
circumstances.
    (iii) Lump-sum deductions from final check. A lump-sum deduction 
exceeding 15 percent of disposable pay may be made pursuant to 31 U.S.C. 
3716 from any final salary payment due a former employee in order to 
liquidate a debt, whether the former employee was separated voluntarily 
or involuntarily.
    (iv) Lump-sum deductions from other sources. Whenever an employee 
subject to salary offset is separated from the Department, and the 
balance of the debt cannot be liquidated by offset of the final salary 
check, the Department, pursuant to 31 U.S.C. 3716, may offset any later 
payments of any kind against the balance of the debt.
    (3) Multiple debts. Where two or more creditor agencies are seeking 
salary offset, or where two or more debts are owed to a single creditor 
agency, the applicable payroll office may, at its discretion, determine 
whether one or more debts should be offset simultaneously within the 15 
percent limitation. The best interests of the government shall be the 
primary consideration in the determination by the payroll office of the 
order of the debt collection.
    (4) Precedence of salary deductions by the Department. (i) For 
Department employees, debts owed shall be paid out of disposable pay in 
the following order of precedence:
    (A) Indebtedness due the Department.
    (B) Indebtedness due other agencies.

[[Page 247]]

    (C) Garnishments for alimony and child support payments.
    (D) Court-ordered bankruptcy payments under the Bankruptcy Code.
    (E) Optional life insurance premiums.
    (F) Other voluntary deductions including allotments and assignments, 
in the order determined by the paying agency.
    (ii) In the event that a debt to the Department is certified while 
an employee is subject to salary offset to repay another agency, the 
applicable payroll office may decide whether the debt to the other 
agency should be repaid in full before collecting the Department's claim 
or whether changes should be made in the salary deduction being sent to 
the other agency. If debts owed to the Department can be collected in 
one pay period, the payroll office may suspend the salary offset to the 
other agency for that pay period in order to liquidate the Department's 
debt.
    (i) Coordinating salary offset with other agencies--(1) 
Responsibility of the Department as the creditor agency. (i) The salary 
offset coordination officer shall be responsible for:
    (A) Arranging for hearing upon proper petition by a federal 
employee;
    (B) Preparing the Notice of Intent to Offset consistent with the 
requirements of paragraph (a) of this section;
    (C) Obtaining hearing officials from other agencies pursuant to 
paragraph (c)(3) of this section; and
    (D) Ensuring that each certification of debt is sent to a paying 
agency pursuant to paragraph (d)(2) of this section.
    (ii) Upon completion of the procedures established in paragraphs (a) 
through (f) of this section, the salary offset coordination officer 
shall submit a debt claim and an installment agreement or other 
instruction on the payment schedule, if applicable, to the employee's 
paying agency.
    (iii) If the employee is in the process of separating from 
government employment, the Department shall submit its debt claim to the 
employee's paying agency for collection by lump-sum deductions from the 
employee's final check. The paying agency shall certify the total amount 
of its collection and furnish a copy of the certification to the 
Department and to the employee.
    (iv) If the employee is already separated and all payments due from 
his or her former paying agency have been paid, the Department may, 
unless otherwise prohibited, request that money due and payable to the 
employee from the federal government be administratively offset to 
collect the debt.
    (v) When an employee transfers to another paying agency, the 
Department shall not repeat the procedures described in paragraphs (a) 
through (f) of this section in order to resume collecting the debt. 
Instead, the Department shall review the debt upon receiving the former 
paying agency's notice of the employee's transfer and shall ensure the 
collection is resumed by the new paying agency.
    (2) Responsibility of the Department as the paying agency--(i) 
Complete claim. When the Department receives a certified claim from a 
creditor agency, the employee shall be given written notice of the 
certification, the date salary offset will begin, and the amount of the 
periodic deductions. Deductions shall be scheduled to begin at the next 
officially established pay interval or as soon thereafter as possible.
    (ii) Incomplete claim. When the Department receives an incomplete 
certification of debt from a creditor agency, the Department shall 
return the debt claim with notice that procedures under 5 U.S.C. 5514 
and 5 CFR 550.1104 must be followed and that a properly certified debt 
claim must be received before action will be taken to collect from the 
employee's current pay account.
    (iii) Review. The Department is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (iv) Employees who transfer from one paying agency to another. If, 
after the creditor agency has submitted the debt claim to the 
Department, the employee transfers to an agency outside the Department 
before the debt is collected in full, the Department must certify the 
total amount collected on the debt. One copy of the certification shall 
be furnished to the employee and one copy

[[Page 248]]

shall be sent to the creditor agency along with notice of the employee's 
transfer.
    (j) Interest, penalties, and administrative costs. Where the 
Department is the creditor agency, it shall assess interest, penalties, 
and administrative costs pursuant to 31 U.S.C. 3717 and 4 CFR 102.13.
    (k) Refunds. (1) Where the Department is the creditor agency, it 
shall promptly refund any amount deducted under the authority of 5 
U.S.C. 5514 when:
    (i) The debt is compromised or otherwise found not to be owing to 
the United States; or
    (ii) An administrative or judicial order directs the Department to 
make a refund.
    (2) Unless required by law or contract, refunds under this paragraph 
(k) shall not bear interest.
    (l) Request from a creditor agency for the services of a hearing 
official. (1) The Department may provide a hearing official upon request 
of the creditor agency when the debtor is employed by the Department and 
the creditor agency cannot provide a prompt and appropriate hearing 
before a hearing official furnished pursuant to another lawful 
arrangement.
    (2) The Department may provide a hearing official upon request of a 
creditor agency when the debtor works for the creditor agency and that 
agency cannot arrange for a hearing official.
    (3) The salary offset coordination officer shall arrange for 
qualified personnel to serve as hearing officials.
    (4) Services rendered under this paragraph (l) shall be provided on 
a fully reimbursable basis pursuant to 31 U.S.C. 1535.
    (m) Non-waiver of rights by payments. A debtor's payment, whether 
voluntary or involuntary, of all or any portion of a debt being 
collected pursuant to this section shall not be construed as a waiver of 
any rights that the debtor may have under any statute, regulation, or 
contract except as otherwise provided by law or contract.



Sec. 11.9  Administrative offset.

    (a) Collection. The organization head may collect a claim pursuant 
to 31 U.S.C. 3716 from a person, organization, or entity other than an 
agency of the United States Government by administrative offset of 
monies other than salaries payable by the government. Collection by 
administrative offset shall be undertaken where the claim is certain in 
amount, where offset is feasible and desirable and not otherwise 
prohibited, where the applicable statute of limitations has not expired, 
and where the offset is in the best interest of the United States.
    (b) Withholding of payment. Prior to the completion of the 
procedures described in paragraph (c) of this section, the Department 
may withhold a payment to be made to a debtor, if:
    (1) Failure to withhold payment would substantially prejudice the 
Department's ability to collect the debt; and
    (2) The time before the payment is to be made does not reasonably 
permit completion of the procedures described in paragraph (c) of this 
section. Such prior withholding shall be followed promptly by the 
completion of the procedures described in paragraph (c) of this section.
    (c) Debtor's rights. Unless the procedures described in paragraph 
(b) of this section are used, prior to collecting any claim by 
administrative offset, the organization head shall provide the debtor 
with the following:
    (1) Written notification of the nature and amount of the claim, the 
intention of the organization head to collect the claim through 
administrative offset, and a statement of the rights of the debtor under 
this paragraph;
    (2) An opportunity to inspect and copy the records of the Department 
with respect to the claim;
    (3) An opportunity to have the Department's determination of 
indebtedness reviewed by the organization head. Any request for review 
by the debtor shall be in writing and be submitted to the Department 
within 30 days of the date of the notice of the offset. The organization 
head may waive the time limit for requesting review for good cause shown 
by the debtor; and
    (4) An opportunity to enter into a written agreement for the 
repayment of the amount of the claim at the discretion of the 
Department.

[[Page 249]]


If the procedures described in paragraph (b) of this section are 
employed, the procedures described in this paragraph shall be effected 
after offset.
    (d) Interest. The Department is authorized to assess interest and 
related charges on debts that are not subject to 31 U.S.C. 3717 to the 
extent authorized under the common law or other applicable statutory 
authority.



   Subpart C_IRS Tax Refund Offset Provisions for Collection of Debts

    Source: Order No. 1792-93, 58 FR 51223, Oct. 1, 1993, unless 
otherwise noted.



Sec. 11.10  Scope.

    The provisions of 26 U.S.C. 6402(d) and 31 U.S.C. 3720A authorize 
the Secretary of the Treasury, acting through the Internal Revenue 
Service (IRS), to offset a delinquent debt owed to the United States 
Government from the tax refund due a taxpayer when other collection 
efforts have failed to recover the amount due. The purpose of these 
statutes is to improve the ability of the Government to collect money 
owed it while granting the debtor notice and certain other protections. 
This subpart authorizes the collection of debts owed to the United 
States Government by persons, organizations, and entities by means of 
offsetting any tax refunds due to the debtor by the IRS. It allows 
referral to the IRS for collection of debts that are past due and 
legally enforceable but not reduced to judgment and debts that have been 
reduced to judgment.



Sec. 11.11  Definitions.

    (a) Debt. Debt means money owed by an individual, organization or 
entity from sources which include loans insured or guaranteed by the 
United States and all other amounts due the United States from fees, 
leases, services, overpayments, civil and criminal penalties, damages, 
interest, fines, administrative costs, and all other similar sources. A 
debt becomes eligible for tax refund offset procedures if it cannot 
currently be collected pursuant to the salary offset procedures of 5 
U.S.C. 5514(a)(1) and is ineligible for administrative offset under 31 
U.S.C. 3716(a) by reason of 31 U.S.C. 3716(c)(2), or cannot currently be 
collected by administrative offset under 31 U.S.C. 3716(a) against 
amounts payable to the debtor by the Department of Justice. A non-
judgment debt is eligible for tax refund offset procedures if the 
Department's or the referring agency's right of action accrued more than 
three months but less than ten years before the offset is made. Judgment 
debts are eligible for referral at any time. Debts that have been 
referred to the Department of Justice by other agencies for collection 
are included in this definition.
    (b) Past due. All accelerated debts and all judgment debts are past 
due for purposes of this section. Such debts remain past due until paid 
in full. An accelerated debt is past due if, at the time of the notice 
required by Sec. 11.12(b), any part of the debt had been due, but not 
paid, for at least 90 days. Such an unaccelerated debt remains past due 
until paid to the current amount of indebtedness.
    (c) Notice. Notice means the information sent to the debtor pursuant 
to Sec. 11.12(b). The date of the notice is the date shown on the 
notice letter as its date of issuance.
    (d) Dispute. A dispute is a written statement supported by 
documentation or other evidence that all or part of an alleged debt is 
not past due or legally enforceable, that the amount is not the amount 
currently owed, that the outstanding debt has been satisfied, or, in the 
case of a debt reduced to judgment, that the judgment has been satisfied 
or stayed.



Sec. 11.12  Procedures.

    (a) The Department may refer any past due, legally enforceable non-
judgment debt of an individual, organization or entity to the IRS for 
offset if the Department's or the referring agency's rights of action 
accrued more than three months but less than ten years before the offset 
is made. Debts reduced to judgment may be referred at any time. Debts in 
amounts lower than $25.00 are not subject to referral.
    (b) The Department will provide the debtor with written notice of 
its intent to offset before initiating the offset. Notice will be mailed 
to the debtor at the current address of the debtor, as determined from 
information obtained

[[Page 250]]

from the IRS pursuant to 26 U.S.C. 6103(m)(2), (4), (5) or from 
information regarding the debt maintained by the Department of Justice. 
The notice sent to the debtor will state the amount of the debt and 
inform the debtor that:
    (1) The debt is past due;
    (2) The Department intends to refer the debt to the IRS for offset 
from tax refunds that may be due to the taxpayer;
    (3) The Department intends to provide information concerning the 
delinquent debt exceeding $100 to a consumer reporting bureau (credit 
bureau) unless such debt has already been disclosed; and
    (4) The debtor has 65 days from the date of notice in which to 
present evidence that all or part of the debt is not past due, that the 
amount is not the amount currently owed, that the outstanding debt has 
been satisfied, or, if a judgment debt, that the debt has been 
satisfied, or stayed, before the debt is reported to a consumer 
reporting agency, if applicable, and referred to the IRS for offset from 
tax refunds.
    (c) If the debtor neither pays the amount due nor presents evidence 
that the amount is not past due or is satisfied or stayed, the 
Department will report the debt to a consumer reporting agency at the 
end of the notice period, if applicable, and refer the debt to the IRS 
for offset from the taxpayer's federal tax refund.
    (d) A debtor may request a review by the Department if the debtor 
believes that all or part of the debt is not past due or is not legally 
enforceable, or, in the case of a judgment debt, that the debt has been 
stayed or the amount satisfied, as follows:
    (1) The debtor must send a written request for review to the address 
provided in the notice.
    (2) The request must state the amount disputed and the reasons why 
the debtor believes that the debt is not past due, is not legally 
enforceable, has been satisfied, or, if a judgment debt, has been 
satisfied or stayed.
    (3) The request must include any documents that the debtor wishes to 
be considered or state that additional information will be submitted 
within the time permitted.
    (4) If the debtor wishes to inspect records establishing the nature 
and amount of the debt, the debtor must request an opportunity for such 
an inspection in writing. The office holding the relevant records shall 
make them available for inspection during normal business hours.
    (5) The request for review and any additional information submitted 
pursuant to the request must be received by the Department at the 
address stated in the notice within 65 days of the date of issuance of 
the notice.
    (6) The Department will review disputes and shall consider its 
records and any documentation and arguments submitted by the debtor. The 
Department's decision to refer to the IRS any disputed portion of the 
debt shall be made by the Assistant Attorney General for Administration 
of his designee, who shall hold a position at least one supervisory 
level above the person who made the decision to offset the debt. The 
Department shall send a written notice of its decision to the debtor. 
There is no administrative appeal of this decision.
    (7) If the evidence presented by the debtor is considered by a non-
Departmental agent or other entities or persons acting on the 
Department's behalf, the debtor will be accorded at least 30 days from 
the date the agent or other entity or person determines that all or part 
of the debt is past-due and legally enforceable to request review by an 
officer or employee of the Department of any unresolved dispute.
    (8) Any debt that previously has been reviewed pursuant to this 
section or any other section of this part, or that has been reduced to a 
judgment, may not be disputed except on the grounds of payments made or 
events occurring subsequent to the previous review of judgment.
    (e) The Department will notify the IRS of any change in the amount 
due promptly after receipt of payments or notice of other reductions.
    (f) In the event that more than one debt is owed, the IRS refund 
offset procedure will be applied in the order in which the debts became 
past due.

[[Page 251]]



PART 12_REGISTRATION OF CERTAIN PERSONS HAVING KNOWLEDGE OF FOREIGN 
ESPIONAGE, COUNTERESPIONAGE, OR SABOTAGE MATTERS UNDER THE ACT OF

AUGUST 1, 1956--Table of Contents




Sec.
12.1 Definitions.
12.2 Administration of act.
12.3 Prior registration with the Foreign Agents Registration Unit.
12.4 Inquiries concerning application of act.
12.20 Filing of registration statement.
12.21 Time within which registration statement must be filed.
12.22 Material contents of registration statement.
12.23 Deficient registration statement.
12.24 Forms.
12.25 Amended registration statement.
12.30 Burden of establishing availability of exemptions.
12.40 Public examination.
12.41 Photocopies.
12.70 Partial compliance not deemed compliance.

    Authority: Sec. 5, 70 Stat. 900; 50 U.S.C. 854.

    Cross Reference: For Organization Statement, Internal Security 
Section, see subpart K of part 0 of this chapter.

    Source: 21 FR 5928, Aug. 8, 1956, unless otherwise noted.



Sec. 12.1  Definitions.

    As used in this part, unless the context otherwise requires:
    (a) The term act means the act of August 1, 1956, Public Law 893, 
84th Congress, 2d Session, requiring the registration of certain persons 
who have knowledge of, or have received instruction or assignment in the 
espionage, counterespionage, or sabotage service or tactics of a foreign 
government or foreign political party.
    (b) The term Attorney General means the Attorney General of the 
United States.
    (c) The term rules and regulations refers to all rules, regulations, 
registration forms, and instruction to forms made and prescribed by the 
Attorney General pursuant to the act.
    (d) The term registration statement means the registration required 
to be filed with the Attorney General under section 2 of the act.
    (e) The term registrant means the person by whom a registration 
statement is filed pursuant to the provisions of the act.



Sec. 12.2  Administration of act.

    The administration of the act is assigned to the National Security 
Division, Department of Justice. Communications with respect to the act 
shall be addressed to the National Security Division, Department of 
Justice, Washington, DC 20530. Copies of the act and the regulations 
contained in this part, including the forms mentioned therein, may be 
obtained upon request without charge.

[Order No. 2865-2007, 72 FR 10068, Mar. 7, 2007]



Sec. 12.3  Prior registration with the Foreign Agents Registration Unit.

    No person who has filed a registration statement under the terms of 
the Foreign Agents Registration Act of 1938, as amended by section 20(a) 
of the Internal Security Act of 1950, shall be required to file a 
registration statement under the act, unless otherwise determined by the 
Chief, Registration Unit.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973; Order No. 960-81, 46 FR 52355, Oct. 27, 1981]



Sec. 12.4  Inquiries concerning application of act.

    Inquiries concerning the application of the act must be accompanied 
by a detailed statement of all facts necessary for a determination of 
the question submitted, including the identity of the person on whose 
behalf the inquiry is made, the facts which may bring such person within 
the registration provisions of the act, and the identity of the foreign 
government or foreign political party concerned.



Sec. 12.20  Filing of registration statement.

    Registration statements shall be filed in duplicate with the 
National Security Division, Department of Justice, Washington, DC 20530. 
Filing may be made in person or by mail, and shall be deemed to have 
taken place upon the receipt thereof by the Division.

[Order No. 2865-2007, 72 FR 10068, Mar. 7, 2007]

[[Page 252]]



Sec. 12.21  Time within which registration statement must be filed.

    Every person who is or becomes subject to the registration 
provisions of the act after its effective date shall file a registration 
statement within fifteen days after the obligation to register arises.



Sec. 12.22  Material contents of registration statement.

    The registration statement shall include the following, all of which 
shall be regarded as material for the purposes of the act:
    (a) The registrant's name, principal business address, and all other 
business addresses in the United States or elsewhere, and all residence 
addresses.
    (b) The registrant's citizenship status and how such status was 
acquired.
    (c) A detailed statement setting forth the nature of the 
registrant's knowledge of the espionage, counterespionage, or sabotage 
service or tactics of a foreign government or foreign political party, 
and the manner in which, place where, and date when such knowledge was 
obtained.
    (d) A detailed statement as to any instruction or training received 
by the registrant in the espionage, counterespionage, or sabotage 
service or tactics of a foreign government or foreign political party, 
including a description of the type of instruction or training received, 
a description of any courses taken, the dates when such courses 
commenced and when they ceased, and the name and official title of the 
instructor or instructors under whose supervision the courses were 
received as well as the name and location of schools and other 
institutions attended, the dates of such attendance, and the names of 
the directors of the schools and institutions attended.
    (e) A detailed statement describing any assignment received in the 
espionage, counterespionage, or sabotage service or tactics of a foreign 
government or foreign political party, including the type of assignment, 
the date when each assignment began, the date of completion of each 
assignment, name and title of the person or persons under whose 
supervision the assignment was executed, and a complete description of 
the nature of the assignment and the execution thereof.
    (f) A detailed statement of any relationship which may exist at the 
time of registration, other than through employment, between the 
registrant and any foreign government or foreign political party.
    (g) Such other statements, information, or documents pertinent to 
the purposes and objectives of the act as the Attorney General, having 
due regard for the national security and the public interest, may 
require by this part or amendments thereto.



Sec. 12.23  Deficient registration statement.

    A registration statement which is determined to be incomplete, 
inaccurate, misleading, or false, by the Chief Registration Unit, may be 
returned by him to the registrant as being unacceptable for filing under 
the terms of the act.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973]



Sec. 12.24  Forms.

    (a) Every person required to register under the act shall file a 
registration statement on Form GA-1, and such other forms as may from 
time to time be prescribed by the Attorney General.
    (b) Matter contained in any part of the registration statement or 
other document may not be incorporated by reference as answer, or 
partial answer, to any other item in the registration statement required 
to be filed under the act.
    (c) Except as specifically provided otherwise, if any item on the 
form is inapplicable, or the answer is ``None,'' an express statement to 
such effect shall be made.
    (d) Every statement, amendment, and every duplicate thereof, shall 
be executed under oath and shall be sworn to before a notary public or 
other officer authorized to administer oaths.
    (e) A registration statement or amendment thereof required to be 
filed shall, if possible, be typewritten, but will be regarded as in 
substantial compliance with this regulation if written legibly in black 
ink.
    (f) Riders shall not be used. If the space on the registration 
statement or

[[Page 253]]

other form is insufficient for any answer, reference shall be made in 
the appropriate space to a full insert page or pages on which the item 
number and item shall be restated and the complete answer given.



Sec. 12.25  Amended registration statement.

    (a) An amended registration statement may be required by the Chief, 
Registration Unit, of any person subject to the registration provisions 
of the act whose original registration statement filed pursuant thereto 
is deemed to be incomplete, inaccurate, false, or misleading.
    (b) Amendments shall conform in all respects to the regulations 
herein prescribed governing execution and filing of original 
registration statements.
    (c) Amendments shall in every case make appropriate reference by 
number or otherwise to the items in original registration statements to 
which they relate.
    (d) Amendments shall be deemed to have been filed upon the receipt 
thereof by the Registration Unit.
    (e) Failure of the Chief, Registration Unit, to request any person 
described in section 2 of the act to file an amended registration 
statement shall not preclude prosecution of such person for a willfully 
false statement of a material fact, the willful omission of a material 
fact, or the willful omission of a material fact necessary to make the 
statements therein not misleading, in an original registration 
statement.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973]



Sec. 12.30  Burden of establishing availability of exemptions.

    In all matters pertaining to exemptions, the burden of establishing 
the availability of the exemption shall rest with the person for whose 
benefit the exemption is claimed.



Sec. 12.40  Public examination.

    Registration statements shall be available for public examination at 
the offices of the Registration Unit, Department of Justice, Washington, 
DC, from 10 a.m. to 4 p.m. on each official business day, except to the 
extent that the Attorney General having due regard for national security 
and public interest may withdraw such statements from public 
examination.

[Order No. 524-73, 38 FR 18235, July 9, 1973]



Sec. 12.41  Photocopies.

    (a) Photocopies of registration statements filed in accordance with 
section 2 of the act are available to the public upon payment of fifty 
cents per photocopy of each page, whether several copies of a single 
original page or one or more copies of several original pages are 
ordered.
    (b) Estimates as to prices for photocopies and the time required for 
their preparation will be furnished upon request addressed to the 
Registration Unit, Internal Security Section, Criminal Division, 
Department of Justice, Washington, DC 20530.
    (c) Payment shall accompany the order for photocopies and shall be 
made in cash, or by United States money order, or by certified bank 
check payable to the Treasurer of the United States. Postage stamps will 
not be accepted.

[21 FR 5928, Aug. 8, 1956, as amended by Order No. 524-73, 38 FR 18235, 
July 9, 1973]



Sec. 12.70  Partial compliance not deemed compliance.

    The fact that a registration statement has been filed shall not 
necessarily be deemed a full compliance with the act on the part of the 
registrant; nor shall it preclude prosecution, as provided for in the 
act, for willful failure to file a registration statement, or for a 
willfully false statement of a material fact therein, or for the willful 
omission of a material fact required to be stated therein.



PART 13_ATOMIC WEAPONS AND SPECIAL NUCLEAR MATERIALS REWARDS 
REGULATIONS--Table of Contents




Sec.
13.1 Purpose.
13.2 Policy.
13.3 Definitions.
13.4 Procedures: Responsibilities of the Attorney General.
13.5 Procedures: Responsibilities of the intra-departmental committee.
13.6 Criteria for reward.
13.7 Judicial review.


[[Page 254]]


    Authority: 50 U.S.C. 47d.

    Source: Order No. 974-82, 47 FR 11516, Mar. 17, 1982, unless 
otherwise noted.



Sec. 13.1  Purpose.

    This part implements the responsibility given to the Attorney 
General under the Atomic Weapons and Special Nuclear Materials Rewards 
Act, 50 U.S.C. 47a-47f, for determining what persons are entitled to a 
reward for furnishing certain original information to the United States 
pertaining to atomic weapons and special nuclear material.



Sec. 13.2  Policy.

    This program is intended to reward the provision of original 
information regarding situations involving an illegal diversion, an 
attempted illegal diversion, or a conspiracy to divert special nuclear 
material or atomic weapons. The broad scope of this program is to help 
guard against the loss or diversion of such material and to prevent any 
use or disposition thereof inimical to the common defense and security.



Sec. 13.3  Definitions.

    Atomic energy means all forms of energy released in the course of 
nuclear fission or nuclear transformation.
    Atomic weapon means any device utilizing atomic energy, exclusive of 
the means for transporting or propelling the device (where such means is 
a separable and divisible part of the device), the principal purpose of 
which is for use as, or for development of, a weapon, a weapon 
prototype, or a weapon test device.
    Original information means information first supplied to the Federal 
government by the applicant, which was created or compiled through his 
own skill and judgment.
    Special nuclear material means plutonium, or uranium enriched in the 
isotope 233 or in the isotope 235, or any other material which is found 
to be special nuclear material pursuant to the provisions of the Atomic 
Energy Act of 1954, 42 U.S.C. 2011 et seq.
    United States, when used in a geographical sense, includes Puerto 
Rico, all Territories and possessions of the United States and the Canal 
Zone except in Sec. 13.4(a)(4). In Sec. 13.4(a)(4), United States, 
when used in a geographical sense, means the continental United States, 
Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United 
States.



Sec. 13.4  Procedures: Responsibilities of the Attorney General.

    When a submission is made to the Department of Justice for a reward 
under the Atomic Weapons and Special Nuclear Materials Rewards Act, the 
Attorney General shall:
    (a) Refer such submission for review to an intra-departmental 
committee composed of the Assistant Attorneys General for the Land and 
Natural Resources Division, the Criminal Division, and the Office of 
Legal Counsel or their delegates;
    (b) Review the proposed finding of the review committee and 
determine whether a reward is justified and the amount of same;
    (c) Secure the approval of the President for any reward over 
$50,000;
    (d) Jointly determine (along with the Secretary of State and the 
Director of Central Intelligence), if the award is to go to an alien, 
whether the entry of such alien into the United States is in the public 
interest and whether that alien and members of his immediate family may 
receive immigrant visas and be admitted to the United States for 
permanent residence, notwithstanding the requirements of the Immigration 
and Nationality Act;
    (e) Notify any person claiming an award of the determination 
regarding the claim and the amount of the reward, if any. If no reward 
is determined to be justified, state the reasons, consistent with 
national security, for the denial;
    (f) Certify and transmit, along with the approval of the President 
if necessary, any award to be made to the Director of Central 
Intelligence for payment out of funds appropriated or available for the 
administration of the National Security Act of 1947, as amended, 50 
U.S.C. 401 et seq;
    (g) Not certify any amount over $500,000.



Sec. 13.5  Procedures: Responsibilities of the intra-departmental committee.

    When the Attorney General refers a submission for a reward to the 
intra-

[[Page 255]]

departmental committee, this committee:
    (a) Shall consult with the Nuclear Regulatory Commission and the 
Department of Energy regarding the reward;
    (b) May consult with the Central Intelligence Agency and any other 
departments or agencies it deems appropriate to aid in the determination 
of whether a reward should be given and the proper amount of the reward;
    (c) May hold hearings for the purpose of securing and evaluating 
information; a full hearing on the record with oral presentation and 
cross-examination is not required;
    (d) Shall determine whether the information submitted fits one or 
more of the rewardable categories outlined in Sec. 13.6;
    (e) Shall determine whether the applicant is eligible for the 
reward. Federal employees and military personnel whose duties include 
investigating activities covered by this Act are not eligible for a 
reward for information acquired in the course of their investigation;
    (f) Shall submit to the Attorney General a proposed finding as to 
eligibility and a recommendation for the amount of the reward within 60 
days of the date of referral from the Attorney General, unless good 
cause is shown for extending the time of review.



Sec. 13.6  Criteria for reward.

    (a) Information provided by any person to the United States for a 
reward under the Atomic Weapons and Special Nuclear Materials Rewards 
Act must be original, and must concern the unlawful:
    (1) Introduction, manufacture or acquisition, or
    (2) Attempted introduction, manufacture or acquisition of, or
    (3) Export or attempt to export, or
    (4) Conspiracy to introduce, manufacture, acquire or export special 
nuclear material or atomic weapons, or
    (5) Loss, diversion or disposal or special nuclear material or 
atomic weapons.
    (b) The amount of the reward shall depend on:
    (1) The amount of the material recovered or potentially recoverable, 
and the role the information played in the recovery, and
    (2) The danger the material posed or poses to the common defense and 
security or public health and welfare, and
    (3) The difficulty in ascertaining the information submitted to 
claim the reward, and the quality of the information, and
    (4) Any other considerations which the Attorney General or the 
intra-departmental committee deems necessary or helpful to the 
individual determination.



Sec. 13.7  Judicial review.

    The decision of the Attorney General is final and conclusive and no 
court shall have power or jurisdiction to review it.



PART 14_ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT--
Table of Contents




Sec.
14.1 Scope of regulations.
14.2 Administrative claim; when presented.
14.3 Administrative claim; who may file.
14.4 Administrative claims; evidence and information to be submitted.
14.5 Review by legal officers.
14.6 Dispute resolution techniques and limitations on agency authority.
14.7 [Reserved]
14.8 Investigation and examination.
14.9 Final denial of claim.
14.10 Action on approved claims.
14.11 Supplementing regulations.

Appendix to Part 14--Delegations of Settlement Authority

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, and 2672.

    Source: Order No. 371-66, 31 FR 16616, Dec. 29, 1966, unless 
otherwise noted.



Sec. 14.1  Scope of regulations.

    These regulations shall apply only to claims asserted under the 
Federal Tort Claims Act. The terms Federal agency and agency, as used in 
this part, include the executive departments, the military departments, 
independent establishments of the United States, and corporations 
primarily acting as instrumentalities or agencies of the United States 
but do not include any contractor with the United States.

[Order No. 960-81, 46 FR 52355, Oct. 27, 1981]

[[Page 256]]



Sec. 14.2  Administrative claim; when presented.

    (a) For purposes of the provisions of 28 U.S.C. 2401(b), 2672, and 
2675, a claim shall be deemed to have been presented when a Federal 
agency receives from a claimant, his duly authorized agent or legal 
representative, an executed Standard Form 95 or other written 
notification of an incident, accompanied by a claim for money damages in 
a sum certain for injury to or loss of property, personal injury, or 
death alleged to have occurred by reason of the incident; and the title 
or legal capacity of the person signing, and is accompanied by evidence 
of his authority to present a claim on behalf of the claimant as agent, 
executor, administrator, parent, guardian, or other representative.
    (b)(1) A claim shall be presented to the Federal agency whose 
activities gave rise to the claim. When a claim is presented to any 
other Federal agency, that agency shall transfer it forthwith to the 
appropriate agency, if the proper agency can be identified from the 
claim, and advise the claimant of the transfer. If transfer is not 
feasible the claim shall be returned to the claimant. The fact of 
transfer shall not, in itself, preclude further transfer, return of the 
claim to the claimant or other appropriate disposition of the claim. A 
claim shall be presented as required by 28 U.S.C. 2401(b) as of the date 
it is received by the appropriate agency.
    (2) When more than one Federal agency is or may be involved in the 
events giving rise to the claim, an agency with which the claim is filed 
shall contact all other affected agencies in order to designate the 
single agency which will thereafter investigate and decide the merits of 
the claim. In the event that an agreed upon designation cannot be made 
by the affected agencies, the Department of Justice shall be consulted 
and will thereafter designate an agency to investigate and decide the 
merits of the claim. Once a determination has been made, the designated 
agency shall notify the claimant that all future correspondence 
concerning the claim shall be directed to that Federal agency. All 
involved Federal agencies may agree either to conduct their own 
administrative reviews and to coordinate the results or to have the 
investigations conducted by the designated Federal agency, but, in 
either event, the designated Federal agency will be responsible for the 
final determination of the claim.
    (3) A claimant presenting a claim arising from an incident to more 
than one agency should identify each agency to which the claim is 
submitted at the time each claim is presented. Where a claim arising 
from an incident is presented to more than one Federal agency without 
any indication that more than one agency is involved, and any one of the 
concerned Federal agencies takes final action on that claim, the final 
action thus taken is conclusive on the claims presented to the other 
agencies in regard to the time required for filing suit set forth in 28 
U.S.C. 2401(b). However, if a second involved Federal agency 
subsequently desires to take further action with a view towards settling 
the claim the second Federal agency may treat the matter as a request 
for reconsideration of the final denial under 28 CFR 14.9(b), unless 
suit has been filed in the interim, and so advise the claimant.
    (4) If, after an agency final denial, the claimant files a claim 
arising out of the same incident with a different Federal agency, the 
new submission of the claim will not toll the requirement of 28 U.S.C. 
2401(b) that suit must be filed within six months of the final denial by 
the first agency, unless the second agency specifically and explicitly 
treats the second submission as a request for reconsideration under 28 
CFR 14.9(b) and so advises the claimant.
    (c) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final agency 
action or prior to the exercise of the claimant's option under 28 U.S.C. 
2675(a). Amendments shall be submitted in writing and signed by the 
claimant or his duly authorized agent or legal representative. Upon the 
timely filing of an amendment to a pending claim, the agency shall have 
six months in which to make a final disposition of the claim as amended 
and the claimant's option under 28 U.S.C. 2675(a) shall not accrue

[[Page 257]]

until six months after the filing of an amendment.

[Order No. 870-79, 45 FR 2650, Jan. 14, 1980, as amended by Order No. 
960-81, 46 FR 52355, Oct. 27, 1981; Order No. 1179-87, 52 FR 7411, Mar. 
11, 1987]



Sec. 14.3  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property, his duly authorized agent or legal 
representative.
    (b) A claim for personal injury may be presented by the injured 
person, his duly authorized agent, or legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decendent's estate, or by any other person legally 
entitled to assert such a claim in accordance with applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the 
rights of a subrogee may be presented by the insurer. A claim for loss 
partially compensated by an insurer with the rights of a subrogee may be 
presented by the parties individually as their respective interests 
appear, or jointly.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
1179-87, 52 FR 7412, Mar. 11, 1987]



Sec. 14.4  Administrative claims; evidence and information to be submitted.

    (a) Death. In support of a claim based on death, the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his monthly or yearly salary or earnings (if any), and the duration of 
his last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support upon the decedent at the time of his 
death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent upon him for support at the time of his death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payment 
for such expenses.
    (7) If damages for pain and suffering prior to death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and the 
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by his attending physician or dentist setting 
forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed by the agency or 
another Federal agency. A copy of the report of the examining physician 
shall be made available to the claimant upon the claimant's written 
request provided that he has, upon request, furnished the report 
referred to in the first sentence of this paragraph and has made or 
agrees to make available to the agency any other physician's reports 
previously or thereafter made of the physical or mental condition which 
is the subject matter of his claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from his employer showing actual time

[[Page 258]]

lost from employment, whether he is a full or part-time employee, and 
wages or salary actually lost.
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amounts of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the personal injury 
or the damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price and salvage 
value, where repair is not economical.
    (5) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the injury to or loss 
of property or the damages claimed.



Sec. 14.5  Review by legal officers.

    The authority to adjust, determine, compromise, and settle a claim 
under the provisions of section 2672 of title 28, United States Code, 
shall, if the amount of a proposed compromise, settlement, or award 
exceeds $5,000, be exercised by the head of an agency or his designee 
only after review by a legal officer of the agency.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
757-77, 42 FR 62001, Dec. 8, 1977; Order No. 960-81, 46 FR 52355, Oct. 
27, 1981]



Sec. 14.6  Dispute resolution techniques and limitations on 
agency authority.

    (a) Guidance regarding dispute resolution. The administrative 
process established pursuant to 28 U.S.C. 2672 and this part 14 is 
intended to serve as an efficient effective forum for rapidly resolving 
tort claims with low costs to all participants. This guidance is 
provided to agencies to improve their use of this administrative process 
and to maximize the benefit achieved through application of prompt, 
fair, and efficient techniques that achieve an informal resolution of 
administrative tort claims without burdening claimants or the agency. 
This section provides guidance to agencies only and does not create or 
establish any right to enforce any provision of this part on behalf of 
any claimant against the United States, its agencies, its officers, or 
any other person. This section also does not require any agency to use 
any dispute resolution technique or process.
    (1) Whenever feasible, administrative claims should be resolved 
through informal discussions, negotiations, and settlements rather than 
through the use of any formal or structured process. At the same time, 
agency personnel processing administrative tort claims should be trained 
in dispute resolution techniques and skills that can contribute to the 
prompt, fair, and efficient resolution of administrative claims.
    (2) An agency may resolve disputed factual questions regarding 
claims against the United States under the FTCA, including 28 U.S.C. 
2671-2680, through the use of any alternative dispute resolution 
technique or process if the agency specifically agrees to employ the 
technique or process, and reserves to itself the discretion to accept or 
reject the determinations made through the use of such technique or 
process.
    (3) Alternative dispute resolution techniques or processes should 
not be adopted arbitrarily but rather should be based upon a 
determination that use of a particular technique is warranted in the 
context of a particular claim or claims, and that such use will 
materially contribute to the prompt, fair, and efficient resolution of 
the claims. If alternative dispute resolution techniques will not 
materially contribute to the prompt, fair, and efficient resolution of 
claims, the dispute resolution processes otherwise used pursuant to 
these regulations shall be the preferred means of seeking resolution of 
such claims.
    (b) Alternative dispute resolution--(1) Case-by-case. In order to 
use, and before

[[Page 259]]

using, any alternative dispute resolution technique or process to 
facilitate the prompt resolution of disputes that are in excess of the 
agency's delegated authority, an agency may use the following procedure 
to obtain written approval from the Attorney General, or his or her 
designee, to compromise a claim or series of related claims.
    (i) A request for settlement authority under paragraph (b)(1) of 
this section shall be directed to the Director, Torts Branch, Civil 
Division, Department of Justice, (``Director'') and shall contain 
information justifying the request, including:
    (A) The basis for concluding that liability exists under the FTCA;
    (B) A description of the proposed alternative dispute resolution 
technique or process and a statement regarding why this proposed form of 
alternative dispute resolution is suitable for the claim or claims;
    (C) A statement reflecting the claimant's or claimants' consent to 
use of the proposed form of alternative dispute resolution, indicating 
the proportion of any additional cost to the United States from use of 
the proposed alternative dispute resolution technique or process that 
shall be borne by the claimant or claimants, and specifying the manner 
and timing of payment of that proportion to be borne by the claimant or 
claimants;
    (D) A statement of how the requested action would facilitate use of 
an alternative dispute resolution technique or process;
    (E) An explanation of the extent to which the decision rendered in 
the alternative dispute resolution proceeding would be made binding upon 
claimants; and,
    (F) An estimate of the potential range of possible settlements 
resulting from use of the proposed alternative dispute resolution 
technique.
    (ii) The Director shall forward a request for expedited settlement 
action under paragraph (b)(1)(i) of this section, along with the 
Director's recommendation as to what action should be taken, to the 
Department of Justice official who has authority to authorize settlement 
of the claim or related claims. If that official approves the request, a 
written authorization shall be promptly forwarded to the requesting 
agency.
    (2) Delegation of authority. Pursuant to, and within the limits of, 
28 U.S.C. 2672, the head of an agency or his or her designee may request 
delegations of authority to make any award, compromise, or settlement 
without the prior written approval of the Attorney General or his or her 
designee in excess of the agency's authority. In considering whether to 
delegate authority pursuant to 28 U.S.C. 2672 in excess of previous 
authority conferred upon the agency, consideration shall be given to:
    (i) The extent to which the agency has established an office whose 
responsibilities expressly include the administrative resolution of 
claims presented pursuant to the Federal Tort Claims Act;
    (ii) The agency's experience with the resolution of administrative 
claims presented pursuant to 28 U.S.C. 2672;
    (iii) The Department of Justice's experiences with regard to 
administrative resolution of tort claims arising out of the agency's 
activities.
    (c) Monetary authority. An award, compromise, or settlement of a 
claim by an agency under 28 U.S.C. 2672, in excess of $25,000 or in 
excess of the authority delegated to the agency by the Attorney General 
pursuant to 28 U.S.C. 2672, whichever is greater, shall be effected only 
with the prior written approval of the Attorney General or his or her 
designee. For purposes of this paragraph, a principal claim and any 
derivative or subrogated claim shall be treated as a single claim.
    (d) Limitations on settlement authority--(1) Policy. An 
administrative claim may be adjusted, determined, compromised, or 
settled by an agency under 28 U.S.C. 2672 only after consultation with 
the Department of Justice when, in the opinion of the agency:
    (i) A new precedent or a new point of law is involved; or
    (ii) A question of policy is or may be involved; or
    (iii) The United States is or may be entitled to indemnity or 
contribution from a third party and the agency is unable to adjust the 
third party claim; or
    (iv) The compromise of a particular claim, as a practical matter, 
will or

[[Page 260]]

may control the disposition of a related claim in which the amount to be 
paid may exceed $25,000 or may exceed the authority delegated to the 
agency by the Attorney General pursuant to 28 U.S.C. 2672, whichever is 
greater.
    (2) Litigation arising from the same incident. An administrative 
claim may be adjusted, determined, compromised, or settled by an agency 
under 28 U.S.C. 2672 only after consultation with the Department of 
Justice when the agency is informed or is otherwise aware that the 
United States or an employee, agent, or cost-plus contractor of the 
United States is involved in litigation based on a claim arising out of 
the same incident or transaction.
    (e) Procedure. When Department of Justice approval or consultation 
is required, or the advice of the Department of Justice is otherwise to 
be requested, under this section, the written referral or request of the 
Federal agency shall be directed to the Director at any time after 
presentment of a claim to the Federal agency, and shall contain:
    (1) A short and concise statement of the facts and of the reasons 
for the referral or request;
    (2) Copies of relevant portions of the agency's claim file; and
    (3) A statement of the recommendations or views of the agency.

[Order No. 1591-92, 57 FR 21738, May 22, 1992]



Sec. 14.7  [Reserved]



Sec. 14.8  Investigation and examination.

    A Federal agency may request any other Federal agency to investigate 
a claim filed under section 2672, title 28, U.S. Code, or to conduct a 
physical examination of a claimant and provide a report of the physical 
examination. Compliance with such requests may be conditioned by a 
Federal agency upon reimbursement by the requesting agency of the 
expense of investigation or examination where reimbursement is 
authorized, as well as where it is required, by statute or regulation.



Sec. 14.9  Final denial of claim.

    (a) Final denial of an administrative claim shall be in writing and 
sent to the claimant, his attorney, or legal representative by certified 
or registered mail. The notification of final denial may include a 
statement of the reasons for the denial and shall include a statement 
that, if the claimant is dissatisfied with the agency action, he may 
file suit in an appropriate U.S. District Court not later than 6 months 
after the date of mailing of the notification.
    (b) Prior to the commencement of suit and prior to the expiration of 
the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his duly 
authorized agent, or legal representative, may file a written request 
with the agency for reconsideration of a final denial of a claim under 
paragraph (a) of this section. Upon the timely filing of a request for 
reconsideration the agency shall have 6 months from the date of filing 
in which to make a final disposition of the claim and the claimant's 
option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the 
filing of a request for reconsideration. Final agency action on a 
request for reconsideration shall be effected in accordance with the 
provisions of paragraph (a) of this section.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
422-69, 35 FR 315, Jan. 8, 1970]



Sec. 14.10  Action on approved claims.

    (a) Any award, compromise, or settlement in an amount of $2,500 or 
less made pursuant to 28 U.S.C. 2672 shall be paid by the head of the 
Federal agency concerned out of the appropriations available to that 
agency. Payment of an award, compromise, or settlement in excess of 
$2,500 shall be obtained by the agency by forwarding Standard Form 1145 
to the Claims Division, General Accounting Office. When an award is in 
excess of $25,000, or in excess of the authority delegated to the agency 
by the Attorney General pursuant to 28 U.S.C. 2672, whichever is 
greater, Standard Form 1145 must be accompanied by evidence that the 
award, compromise, or settlement has been approved by the Attorney 
General or his designee. When the use of Standard Form 1145 is required, 
it shall be executed by the claimant, or it shall be accompanied by 
either a claims settlement agreement or a Standard Form 95 executed by 
the claimant. When a claimant is represented by an attorney,

[[Page 261]]

the voucher for payment shall designate both the claimant and his 
attorney as payees; the check shall be delivered to the attorney, whose 
address shall appear on the voucher.
    (b) Acceptance by the claimant, his agent, or legal representative, 
of any award, compromise or settlement made pursuant to the provisions 
of section 2672 or 2677 of title 28, United States Code, shall be final 
and conclusive on the claimant, his agent or legal representative and 
any other person on whose behalf or for whose benefit the claim has been 
presented, and shall constitute a complete release of any claim against 
the United States and against any employee of the Government whose act 
or omission gave rise to the claim, by reason of the same subject 
matter.

[Order No. 371-66, 31 FR 16616, Dec. 29, 1966, as amended by Order No. 
834-79, 44 FR 33399, June 11, 1979; Order No. 1591-92, 57 FR 21740, May 
22, 1992]



Sec. 14.11  Supplementing regulations.

    Each agency is authorized to issue regulations and establish 
procedures consistent with the regulations in this part.



      Sec. Appendix to Part 14--Delegations of Settlement Authority

      Delegation of Authority to the Secretary of Veterans Affairs

             Section 1. Authority to Compromise Tort Claims.

    (a) The Secretary of Veterans Affairs shall have the authority to 
adjust, determine, compromise, and settle a claim involving the 
Department of Veterans Affairs under section 2672 of title 28, United 
States Code, relating to the administrative settlement of federal tort 
claims, if the amount of the proposed adjustment, compromise, or award 
does not exceed $300,000. When the Secretary believes a claim pending 
before him presents a novel question of law or of policy, he shall 
obtain the advice of the Assistant Attorney General in charge of the 
Civil Division.
    (b) The Secretary may redelegate, in writing, the settlement 
authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Veterans Affairs settles any 
administrative claim pursuant to the authority granted by section 1 for 
an amount in excess of $100,000 and within the amount delegated to him 
under section 1, a memorandum fully explaining the basis for the action 
taken shall be executed. A copy of this memorandum shall be sent 
contemporaneously to the Director, FTCA Staff, Torts Branch of the Civil 
Division.

            Delegation of Authority to the Postmaster General

    Section 1. Authority to Compromise Tort Claims.
    (a) The Postmaster General shall have the authority to adjust, 
determine, compromise, and settle a claim involving the United States 
Postal Service under section 2672 of title 28, United States Code, 
relating to the administrative settlement of federal tort claims, if the 
amount of the proposed adjustment, compromise, or award does not exceed 
$300,000. When the Postmaster General believes a claim pending before 
him presents a novel question of law or of policy, he shall obtain the 
advice of the Assistant Attorney General in charge of the Civil 
Division.
    (b) The Postmaster General may redelegate, in writing, the 
settlement authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Postmaster General settles any administrative claim 
pursuant to the authority granted by section 1 for an amount in excess 
of $100,000 and within the amount delegated to him under section 1, a 
memorandum fully explaining the basis for the action taken shall be 
executed. A copy of this memorandum shall be sent contemporaneously to 
the Director, FTCA Staff, Torts Branch of the Civil Division.

           Delegation of Authority to the Secretary of Defense

             Section 1. Authority To Compromise Tort Claims.

    (a) The Secretary of Defense shall have the authority to adjust, 
determine, compromise, and settle a claim involving the Department of 
Defense under section 2672 of title 28, United States Code, relating to 
the administrative settlement of federal tort claims, if the amount of 
the proposed adjustment, compromise, or award does not exceed $300,000. 
When the Secretary believes a claim pending before him presents a novel 
question of law or of policy, he shall obtain the advice of the 
Assistant Attorney General in charge of the Civil Division.
    (b) The Secretary may redelegate, in writing, the settlement 
authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Defense settles any administrative claim 
pursuant to the authority granted by section 1 for an amount in excess 
of $100,000 and within the amount

[[Page 262]]

delegated to him under section 1, a memorandum fully explaining the 
basis for the action taken shall be executed. A copy of this memorandum 
shall be sent contemporaneously to the Director, FTCA Staff, Torts 
Branch of the Civil Division.

       Delegation of Authority to the Secretary of Transportation

             Section 1. Authority to compromise tort claims.

    (a) The Secretary of Transportation shall have the authority to 
adjust, determine, compromise and settle a claim involving the United 
States Department of Transportation under section 2672 of title 28, 
United States Code, relating to the administrative settlement of federal 
tort claims, if the amount of the proposed adjustment, compromise, or 
award does not exceed $100,000. When the Secretary of Transportation 
believes a claim pending before him presents a novel question of law or 
of policy, he shall obtain the advice of the Assistant Attorney General 
in charge of the Civil Division.
    (b) The Secretary of Transportation may redelegate in writing the 
settlement authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Transportation settles any administrative 
claim pursuant to the authority granted by section 1 for an amount in 
excess of $50,000 and within the amount delegated to him under section 
1, a memorandum fully explaining the basis for the action taken shall be 
executed. A copy of this memorandum shall be sent to the Director, FTCA 
Staff, Torts Branch of the Civil Division.

  Delegation of Authority to the Secretary of Health and Human Services

             Section 1. Authority To Compromise Tort Claims.

    (a) The Secretary of Health and Human Services shall have the 
authority to adjust, determine, compromise, and settle a claim involving 
the Department of Health and Human Services under section 2672 of title 
28, United States Code, relating to the administrative settlement of 
federal tort claims, if the amount of the proposed adjustment, 
compromise, or award does not exceed $200,000. When the Secretary of 
Health and Human Services believes a claim pending before him presents a 
novel question of law or policy, he shall obtain the advice of the 
Assistant Attorney General in charge of the Civil Division.
    (b) The Secretary of Health and Human Services may redelegate, in 
writing, the settlement authority delegated to him under this section.

                         Section 2. Memorandum.

    Whenever the Secretary of Health and Human Services settles any 
administrative claim pursuant to the authority granted by section 1 for 
an amount in excess of $100,000 and within the amount delegated to him 
under section 1, a memorandum fully explaining the basis for the action 
taken shall be executed. A copy of this memorandum shall be sent to the 
Director, FTCA Staff, Torts Branch of the Civil Division.

 Delegation of Authority to the Secretary of the Department of Homeland 
              Security Authority To Compromise Tort Claims

    (a) The Secretary of the Department of Homeland Security shall have 
the authority to adjust, determine, compromise, and settle a claim 
involving the Department of Homeland Security under Section 2672 of 
Title 28, United States Code, relating to the administrative settlement 
of federal tort claims if the amount of the proposed adjustment, 
compromise, or award does not exceed $50,000. When the Secretary 
believes a claim pending before him presents a novel question of law or 
of policy, he shall obtain the advice of the Assistant Attorney General 
in charge of the Civil Division.
    (b) The Secretary may redelegate, in writing, the settlement 
authority delegated to him under this section.

[Order No. 1302-88, 53 FR 37753, Sept. 28, 1988, as amended by Order No. 
1471-91, 56 FR 4943, Feb. 7, 1991; Order No. 1482-91, 56 FR 12846, Mar. 
28, 1991; Order No. 1583-92, 57 FR 13320, Apr. 16, 1992; 58 FR 36867, 
July 9, 1993; 61 FR 66220, Dec. 17, 1996; 68 FR 62517, Nov. 5, 2003; 73 
FR 48299, Aug. 19, 2008; 73 FR 70276, 70277, Nov. 20, 2008]



PART 15_CERTIFICATION AND DECERTIFICATION IN CONNECTION WITH CERTAIN 
SUITS BASED UPON ACTS OR OMISSIONS OF FEDERAL EMPLOYEES AND OTHER 

PERSONS--Table of Contents




Sec.
15.1 General provisions.
15.2 Expeditious delivery of process and pleadings.
15.3 Agency report.
15.4 Removal and defense of suits.

    Authority: 5 U.S.C. 301, 8477(e)(4); 10 U.S.C. 1054, 1089; 22 U.S.C. 
2702; 28 U.S.C. 509, 510, and 2679; 38 U.S.C. 7316; 42 U.S.C. 233, 2212, 
2458a, and 5055(f); and the National Swine Flu Immunization Program of 
1976, 90 Stat. 1113 (1976).

    Source: Order No. 2697-2003, 68 FR 74188, Dec. 23, 2003, unless 
otherwise noted.

[[Page 263]]



Sec. 15.1  General provisions.

    (a) This part contains the regulations of the Department of Justice 
governing the application for and the issuance of statutory 
certifications and decertifications in connection with certain suits 
based upon the acts or omissions of Federal employees and certain other 
persons as to whom the remedy provided by the Federal Tort Claims Act, 
28 U.S.C. 1346(b) and 2672, is made exclusive of any other civil action 
or proceeding for money damages by reason of the same subject matter 
against such Federal employees and other persons.
    (b) As used in this part:
    (1) Appropriate Federal agency means the Federal agency most closely 
associated with the program out of which the claim or suit arose. When 
it cannot be ascertained which Federal agency is the most closely 
associated with the program out of which the claim or suit arose, the 
responsible Director of the Torts Branch, Civil Division, Department of 
Justice, shall be consulted and will thereafter designate the 
appropriate Federal agency.
    (2) Federal employee means ``employee of the United States'' as that 
term is defined by 28 U.S.C. 2671.
    (3) Covered person means any person other than a Federal employee or 
the estate of a Federal employee as to whom Congress has provided by 
statute that the remedy provided by 28 U.S.C. 1346(b) and 2672 is made 
exclusive of any other civil action or proceeding for money damages by 
reason of the same subject matter against such person.



Sec. 15.2  Expeditious delivery of process and pleadings.

    (a) Any Federal employee against whom a civil action or proceeding 
is brought for money damages for loss or damage to property, or personal 
injury or death, on account of any act or omission in the scope of the 
employee's office or employment with the Federal Government, shall 
promptly deliver all process and pleadings served on the employee, or an 
attested true copy thereof, to the employee's immediate superior or to 
whomever is designated by the head of the employee's department or 
agency to receive such papers. In addition, if prior to the employee's 
receipt of such process or pleadings, the employee receives information 
regarding the commencement of such a civil action or proceeding, he 
shall immediately so advise his superior or the designee. If the action 
is brought against the employee's estate this procedure shall apply to 
the employee's personal representative. The superior or designee shall 
provide the United States Attorney for the district embracing the place 
where the action or proceeding is brought and the responsible Branch 
Director of the Torts Branch, Civil Division, Department of Justice, 
information concerning the commencement of such action or proceeding, 
and copies of all process and pleadings.
    (b) Any covered person against whom a civil action or proceeding is 
brought for money damages for loss or damage to property, or personal 
injury or death, on account of any act or omission, under circumstances 
in which Congress has provided by statute that the remedy provided by 
the Federal Tort Claims Act is made the exclusive remedy, shall promptly 
deliver to the appropriate Federal agency all process and pleadings 
served on the covered person, or an attested true copy thereof. In 
addition, if prior to the covered person's receipt of such process or 
pleadings, the covered person receives information regarding the 
commencement of such a civil action or proceeding, he shall immediately 
so advise the appropriate Federal agency. The appropriate Federal agency 
shall provide to the United States Attorney for the district embracing 
the place where the action or proceeding is brought, and the responsible 
Branch Director of the Torts Branch, Civil Division, Department of 
Justice, information concerning the commencement of such action or 
proceeding, and copies of all process and pleadings.



Sec. 15.3  Agency report.

    (a) The Federal employee's employing Federal agency shall submit a 
report to the United States Attorney for the district embracing the 
place where the civil action or proceeding is brought fully addressing 
whether the employee was acting within the scope of his office or 
employment with the

[[Page 264]]

Federal Government at the time of the incident out of which the suit 
arose, and a copy of the report shall be sent by the employing Federal 
agency to the responsible Branch Director of the Torts Branch, Civil 
Division, Department of Justice.
    (b) The appropriate Federal agency shall submit a report to the 
United States Attorney for the district embracing the place where the 
civil action or proceeding is brought fully addressing whether the 
person was acting as a covered person at the time of the incident out of 
which the suit arose, and a copy of the report shall be sent by the 
appropriate Federal agency to the responsible Branch Director of the 
Torts Branch, Civil Division, Department of Justice.
    (c) A report under this section shall be submitted at the earliest 
possible date, or within such time as shall be fixed upon request by the 
United States Attorney or the responsible Branch Director of the Torts 
Branch.



Sec. 15.4  Removal and defense of suits.

    (a) The United States Attorney for the district where the civil 
action or proceeding is brought, or any Director of the Torts Branch, 
Civil Division, Department of Justice, is authorized to make the 
statutory certification that the Federal employee was acting within the 
scope of his office or employment with the Federal Government at the 
time of the incident out of which the suit arose.
    (b) The United States Attorney for the district where the civil 
action or proceeding is brought, or any Director of the Torts Branch, 
Civil Division, Department of Justice, is authorized to make the 
statutory certification that the covered person was acting at the time 
of the incident out of which the suit arose under circumstances in which 
Congress has provided by statute that the remedy provided by the Federal 
Tort Claims Act is made the exclusive remedy.
    (c) A certification under this section may be withdrawn if a further 
evaluation of the relevant facts or the consideration of new or 
additional evidence calls for such action. The making, withholding, or 
withdrawing of certifications, and the removal and defense of, or 
refusal to remove or defend, such civil actions or proceedings shall be 
subject to the instructions and supervision of the Assistant Attorney 
General in charge of the Civil Division or his or her designee.



PART 16_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--
Table of Contents




  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

Sec.
16.1 General provisions.
16.2 Public reading rooms.
16.3 Requirements for making requests.
16.4 Responsibility for responding to requests.
16.5 Timing of responses to requests.
16.6 Responses to requests.
16.7 Classified information.
16.8 Business information.
16.9 Appeals.
16.10 Preservation of records.
16.11 Fees.
16.12 Other rights and services.

   Subpart B_Production or Disclosure in Federal and State Proceedings

16.21 Purpose and scope.
16.22 General prohibition of production or disclosure in Federal and 
          State proceedings in which the United States is not a party.
16.23 General disclosure authority in Federal and State proceedings in 
          which the United States is a party.
16.24 Procedure in the event of a demand where disclosure is not 
          otherwise authorized.
16.25 Final action by the Deputy or Associate Attorney General.
16.26 Considerations in determining whether production or disclosure 
          should be made pursuant to a demand.
16.27 Procedure in the event a department decision concerning a demand 
          is not made prior to the time a response to the demand is 
          required.
16.28 Procedure in the event of an adverse ruling.
16.29 Delegation by Assistant Attorneys General.

[[Page 265]]


Appendix to Subpart B--Redelegation of Authority to the Deputy Assistant 
          Attorney General for Litigation, Antitrust Division, To 
          Authorize Production or Disclosure of Material or Information

   Subpart C_Production of FBI Identification Records in Response to 
                  Written Requests by Subjects Thereof

16.30 Purpose and scope.
16.31 Definition of identification record.
16.32 Procedure to obtain an identification record.
16.33 Fee for production of identification record.
16.34 Procedure to obtain change, correction or updating of 
          identification records.

 Subpart D_Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

16.40 General provisions.
16.41 Requests for access to records.
16.42 Responsibility for responding to requests for access to records.
16.43 Responses to requests for access to records.
16.44 Classified information.
16.45 Appeals from denials of requests for access to records.
16.46 Requests for amendment or correction of records.
16.47 Requests for an accounting of record disclosures.
16.48 Preservation of records.
16.49 Fees.
16.50 Notice of court-ordered and emergency disclosures.
16.51 Security of systems of records.
16.52 Contracts for the operation of record systems.
16.53 Use and collection of social security numbers.
16.54 Employee standards of conduct.
16.55 Other rights and services.

      Subpart E_Exemption of Records Systems Under the Privacy Act

16.70 Exemption of the Office of the Attorney General System--limited 
          access.
16.71 Exemption of the Office of the Deputy Attorney General System--
          limited access.
16.72 Exemption of Office of the Associate Attorney General System--
          limited access.
16.73 Exemption of Office of Legal Policy System--limited access.
16.74 Exemption of National Security Division Systems--limited access.
16.75 Exemption of the Office of the Inspector General Systems/Limited 
          Access.
16.76 Exemption of Justice Management Division.
16.77 Exemption of U.S. Trustee Program System--limited access.
16.78 Exemption of the Special Counsel for Immigration-Related, Unfair 
          Employment Practices Systems.
16.79 Exemption of Pardon Attorney System.
16.80 Exemption of Office of Professional Responsibility System--limited 
          access.
16.81 Exemption of United States Attorneys Systems--limited access.
16.82 Exemption of the National Drug Intelligence Center Data Base--
          limited access.
16.83 Exemption of the Executive Office for Immigration Review System--
          limited access.
16.84 Exemption of Immigration Appeals System.
16.85 Exemption of U.S. Parole Commission--limited access.
16.88 Exemption of Antitrust Division Systems--limited access.
16.89 Exemption of Civil Division Systems--limited access.
16.90 Exemption of Civil Rights Division Systems.
16.91 Exemption of Criminal Division Systems--limited access, as 
          indicated.
16.92 Exemption of Environment and Natural Resources Division Systems--
          limited access.
16.93 Exemption of Tax Division Systems--limited access.
16.96 Exemption of Federal Bureau of Investigation Systems--limited 
          access.
16.97 Exemption of Bureau of Prisons Systems--limited access.
16.98 Exemption of the Drug Enforcement Administration (DEA)--limited 
          access.
16.99 Exemption of the Immigration and Naturalization Service Systems-
          limited access.
16.100 Exemption of Office of Justice Programs--limited access.
16.101 Exemption of U.S. Marshals Service Systems--limited access, as 
          indicated.
16.102 Exemption of Drug Enforcement Administration and Immigration and 
          Naturalization Service Joint System of Records.
16.103 Exemption of the INTERPOL-United States National Central Bureau 
          (INTERPOL-USNCB) System.
16.104 Exemption of Office of Special Counsel--Waco System.
16.105 Exemption of Foreign Terrorist Tracking Task Force System.
16.106 Exemption of the Bureau of Alcohol, Tobacco, Firearms, and 
          Explosives (ATF)--Limited Access.
16.130 Exemption of Department of Justice Systems: Correspondence 
          Management Systems for the Department of Justice (DOJ-003); 
          Freedom of Information Act,

[[Page 266]]

          Privacy Act and Mandatory Declassification Review Requests and 
          Administrative Appeals for the Department of Justice (DOJ-
          004).
16.131 Exemption of Department of Justice (DOJ)/Nationwide Joint 
          Automated Booking System (JABS), DOJ-005.
16.132 Exemption of Department of Justice System--Personnel 
          Investigation and Security Clearance Records for the 
          Department of Justice (DOJ), DOJ-006.
16.133 Exemption of Department of Justice Regional Data Exchange System 
          (RDEX), DOJ-012.

       Subpart F_Public Observation of Parole Commission Meetings

16.200 Definitions.
16.201 Voting by the Commissioners without joint deliberation.
16.202 Open meetings.
16.203 Closed meetings--Formal procedure.
16.204 Public notice.
16.205 Closed meetings--Informal procedures.
16.206 Transcripts, minutes, and miscellaneous documents concerning 
          Commission meetings.
16.207 Public access to nonexempt transcripts and minutes of closed 
          Commission meetings--Documents used at meetings--Record 
          retention.
16.208 Annual report.

   Subpart G_Access to Documents by Former Employees of the Department

16.300 Access to documents for the purpose of responding to an official 
          inquiry.
16.301 Limitations.

Appendix I to Part 16--Components of the Department of Justice

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.



  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

    Source: Order No. 2156-98, 63 FR 29593, June 1, 1998, unless 
otherwise noted.



Sec. 16.1  General provisions.

    (a) This subpart contains the rules that the Department of Justice 
follows in processing requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. These rules should be read 
together with the FOIA, which provides additional information about 
access to records maintained by the Department. Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, which are processed under subpart D of this part, are 
processed under this subpart also. Information routinely provided to the 
public as part of a regular Department activity (for example, press 
releases issued by the Office of Public Affairs) may be provided to the 
public without following this subpart. As a matter of policy, the 
Department makes discretionary disclosures of records or information 
exempt from disclosure under the FOIA whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption, but this 
policy does not create any right enforceable in court.
    (b) As used in this subpart, component means each separate bureau, 
office, board, division, commission, service, or administration of the 
Department of Justice.



Sec. 16.2  Public reading rooms.

    (a) The Department maintains public reading rooms that contain the 
records that the FOIA requires to be made regularly available for public 
inspection and copying. Each Department component is responsible for 
determining which of the records it generates are required to be made 
available in this way and for making those records available either in 
its own reading room or in the Department's central reading room. Each 
component shall maintain and make available for public inspection and 
copying a current subject-matter index of its reading room records. Each 
index shall be updated regularly, at least quarterly, with respect to 
newly included records.
    (b) The Department maintains public reading rooms or areas at the 
locations listed below:
    (1) Bureau of Prisons--on the Seventh Floor, 500 First Street, NW., 
Washington, DC;
    (2) Civil Rights Division--in Room 930, 320 First Street, NW., 
Washington, DC;
    (3) Community Relations Service--in Suite 2000, 600 E Street, NW., 
Washington, DC;
    (4) Drug Enforcement Administration--in Room W-7216, 700 Army Navy 
Drive, Arlington, Virginia;

[[Page 267]]

    (5) Executive Office for Immigration Review (Board of Immigration 
Appeals)--in Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia;
    (6) Federal Bureau of Investigation--at the J. Edgar Hoover 
Building, 935 Pennsylvania Avenue, NW., Washington, DC;
    (7) Foreign Claims Settlement Commission--in Room 6002, 600 E 
Street, NW., Washington, DC;
    (8) Immigration and Naturalization Service--425 I Street, NW., 
Washington, DC;
    (9) Office of Justice Programs--in Room 5430, 810 Seventh Street, 
NW., Washington, DC;
    (10) Pardon Attorney--on the Fourth Floor, 500 First Street, NW., 
Washington, DC;
    (11) Bureau of Alcohol, Tobacco, Firearms, and Explosives--650 
Massachusetts Avenue, NW., Washington, DC;
    (12) United States Attorneys and United States Marshals--at the 
principal offices of the United States Attorneys and the United States 
Marshals, which are listed in most telephone books; and
    (13) All other components of the Department of Justice--in Room 6505 
at the Main Justice Building, 950 Pennsylvania Avenue, NW., Washington, 
DC.
    (c) Components shall also make reading room records created by the 
Department on or after November 1, 1996, available electronically at the 
Department's World Wide Web site (which can be found at http://
www.usdoj.gov), through use of the Department's ``Freedom of Information 
Act Home Page.'' This includes each component's index of its reading 
room records, which will indicate which records are available 
electronically.

[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 51401, Sept. 25, 
1998, as amended by Order No. 2650-2003, 68 FR 4928, Jan. 31, 2003]



Sec. 16.3  Requirements for making requests.

    (a) How made and addressed. You may make a request for records of 
the Department of Justice by writing directly to the Department 
component that maintains those records. You may find the Department's 
``Freedom of Information Act Reference Guide''--which is available 
electronically at the Department's World Wide Web site, and is available 
in paper form as well--helpful in making your request. For additional 
information about the FOIA, you may refer directly to the statute. If 
you are making a request for records about yourself, see Sec. 16.41(d) 
for additional requirements. If you are making a request for records 
about another individual, either a written authorization signed by that 
individual permitting disclosure of those records to you or proof that 
that individual is deceased (for example, a copy of a death certificate 
or an obituary) will help the processing of your request. Your request 
should be sent to the component's FOIA office at the address listed in 
appendix I to part 16. In most cases, your FOIA request should be sent 
to a component's central FOIA office. For records held by a field office 
of the Federal Bureau of Investigation (FBI) or the Immigration and 
Naturalization Service (INS), however, you must write directly to that 
FBI or INS field office address, which can be found in most telephone 
books or by calling the component's central FOIA office. (The functions 
of each component are summarized in part 0 of this title and in the 
description of the Department and its components in the ``United States 
Government Manual,'' which is issued annually and is available in most 
libraries, as well as for sale from the Government Printing Office's 
Superintendent of Documents. This manual also can be accessed 
electronically at the Government Printing Office's World Wide Web site 
(which can be found at http://www.access.gpo.gov/su--docs).) If you 
cannot determine where within the Department to send your request, you 
may send it to the FOIA/PA Mail Referral Unit, Justice Management 
Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., 
Washington, DC 20530-0001. That office will forward your request to the 
component(s) it believes most likely to have the records that you want. 
Your request will be considered received as of the date it is received 
by the proper component's FOIA office. For the quickest possible 
handling, you should mark both your request letter and the envelope 
``Freedom of Information Act Request.''

[[Page 268]]

    (b) Description of records sought. You must describe the records 
that you seek in enough detail to enable Department 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. In addition, if you want records about a court case, you should 
provide the title of the case, the court in which the case was filed, 
and the nature of the case. If known, you should include any file 
designations or descriptions for the records that you want. As a general 
rule, the more specific you are about the records or type of records 
that you want, the more likely the Department will be able to locate 
those records in response to your request. If a component determines 
that your request does not reasonably describe records, it shall tell 
you either what additional information is needed or why your request is 
otherwise insufficient. The component also shall give you an opportunity 
to discuss your request so that you may modify it to meet the 
requirements of this section. If your request does not reasonably 
describe the records you seek, the agency's response to your request may 
be delayed.
    (c) Agreement to pay fees. If you make a FOIA request, it shall be 
considered an agreement by you to pay all applicable fees charged under 
Sec. 16.11, up to $25.00, unless you seek a waiver of fees. The 
component responsible for responding to your request ordinarily will 
confirm this agreement in an acknowledgement letter. When making a 
request, you may specify a willingness to pay a greater or lesser 
amount.

[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 51401, Sept. 25, 
1998]



Sec. 16.4  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for a record 
and has possession of that record is the component responsible for 
responding to the request. In determining which records are responsive 
to a request, a component ordinarily will include only records in its 
possession as of the date the component begins its search for them. If 
any other date is used, the component shall inform the requester of that 
date.
    (b) Authority to grant or deny requests. The head of a component, or 
the component head's designee, is authorized to grant or deny any 
request for a record of that component.
    (c) Consultations and referrals. When a component receives a request 
for a record in its possession, it shall determine whether another 
component, or another agency of the Federal Government, is better able 
to determine whether the record is exempt from disclosure under the FOIA 
and, if so, whether it should be disclosed as a matter of administrative 
discretion. If the receiving component determines that it is best able 
to process the record in response to the request, then it shall do so. 
If the receiving component determines that it is not best able to 
process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether to disclose 
it and with any other component or agency that has a substantial 
interest in it; or
    (2) Refer the responsibility for responding to the request regarding 
that record to the component best able to determine whether to disclose 
it, or to another agency that originated the record (but only if that 
agency is subject to the FOIA). Ordinarily, the component or agency that 
originated a record will be presumed to be best able to determine 
whether to disclose it.
    (d) Law enforcement information. Whenever a request is made for a 
record containing information that relates to an investigation of a 
possible violation of law and was originated by another component or 
agency, the receiving component shall either refer the responsibility 
for responding to the request regarding that information to that other 
component or agency or consult with that other component or agency.
    (e) Classified information. Whenever a request is made for a record 
containing information that has been classified, or may be appropriate 
for classification,

[[Page 269]]

by another component or agency under Executive Order 12958 or any other 
executive order concerning the classification of records, the receiving 
component shall refer the responsibility for responding to the request 
regarding that information to the component or agency that classified 
the information, should consider the information for classification, or 
has the primary interest in it, as appropriate. Whenever a record 
contains information that has been derivatively classified by a 
component because it contains information classified by another 
component or agency, the component shall refer the responsibility for 
responding to the request regarding that information to the component or 
agency that classified the underlying information.
    (f) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date the 
FOIA request initially was received by the first component or agency, 
not any later date.
    (h) Agreements regarding consultations and referrals. Components may 
make agreements with other components or agencies to eliminate the need 
for consultations or referrals for particular types of records.



Sec. 16.5  Timing of responses to requests.

    (a) In general. Components ordinarily shall respond to requests 
according to their order of receipt.
    (b) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including through limits based on the number of pages involved. 
If a component does so, it shall advise requesters in its slower 
track(s) of the limits of its faster track(s).
    (2) A component using multitrack processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the component's faster track(s). A component doing so will 
contact the requester either by telephone or by letter, whichever is 
more efficient in each case.
    (c) Unusual circumstances. (1) Where the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the component determines to extend the time 
limits on that basis, the component shall as soon as practicable notify 
the requester in writing of the unusual circumstances and of the date by 
which processing of the request can be expected to be completed. Where 
the extension is for more than ten working days, the component shall 
provide the requester with an opportunity either to modify the request 
so that it may be processed within the time limits or to arrange an 
alternative time period with the component for processing the request or 
a modified request.
    (2) Where a component reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, they 
may be aggregated. Multiple requests involving unrelated matters will 
not be aggregated.
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined that 
they involve:
    (i) 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;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there

[[Page 270]]

exist possible questions about the government's integrity which affect 
public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be received by 
the proper component. Requests based on the categories in paragraphs 
(d)(1)(i), (ii), and (iii) of this section must be submitted to the 
component that maintains the records requested. Requests based on the 
category in paragraph (d)(1)(iv) of this section must be submitted to 
the Director of Public Affairs, whose address is: Office of Public 
Affairs, U.S. Department of Justice, Room 1128, 950 Pennsylvania Avenue, 
NW., Washington DC 20530-0001. A component that receives a request that 
must be handled by the Office of Public Affairs shall forward it 
immediately to that office by hand-delivery or fax.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category in 
paragraph (d)(1)(ii) of this section, if not a full-time member of the 
news media, must establish that he or she is a person whose main 
professional activity or occupation is information dissemination, though 
it need not be his or her sole occupation. A requester within the 
category in paragraph (d)(1)(ii) of this section also must establish a 
particular urgency to inform the public about the government activity 
involved in the request, beyond the public's right to know about 
government activity generally. The formality of certification may be 
waived as a matter of administrative discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component shall decide whether to grant 
it and shall notify the requester of the decision. If a request for 
expedited treatment is granted, the request shall be given priority and 
shall be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision shall be acted on 
expeditiously.



Sec. 16.6  Responses to requests.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec. 16.3(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests. Ordinarily, a component shall have twenty 
business days from when a request is received to determine whether to 
grant or deny the request. Once a component makes a determination to 
grant a request in whole or in part, it shall notify the requester in 
writing. The component shall inform the requester in the notice of any 
fee charged under Sec. 16.11 and shall disclose records to the 
requester promptly on payment of any applicable fee. Records disclosed 
in part shall be marked or annotated to show the amount of information 
deleted unless doing so would harm an interest protected by an 
applicable exemption. The location of the information deleted also shall 
be indicated on the record, if technically feasible.
    (c) Adverse determinations of requests. A component making an 
adverse determination denying a request in any respect shall notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, consist of: a determination to withhold any 
requested record in whole or in part; a determination that a requested 
record does not exist or cannot be located; a determination that a 
record is not readily reproducible in the form or format sought by the 
requester; a determination that what has been requested is not a record 
subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver; and a denial of a 
request for expedited treatment. The denial letter shall be signed by 
the head of the component, or the component head's designee, and shall 
include:
    (1) The name and title or position of the person responsible for the 
denial;

[[Page 271]]

    (2) A brief statement of the reason(s) for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of records or information withheld, in 
number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (4) A statement that the denial may be appealed under Sec. 16.9(a) 
and a description of the requirements of Sec. 16.9(a).



Sec. 16.7  Classified information.

    In processing a request for information that is classified under 
Executive Order 12958 (3 CFR, 1996 Comp., p. 333) or any other executive 
order, the originating component shall review the information to 
determine whether it should remain classified. Information determined to 
no longer require classification shall not be withheld on the basis of 
Exemption 1 of the FOIA. On receipt of any appeal involving classified 
information, the Office of Information and Privacy shall take 
appropriate action to ensure compliance with part 17 of this title.



Sec. 16.8  Business information.

    (a) In general. Business information obtained by the Department from 
a submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Department from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the Department 
obtains business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. A component shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information wherever required under paragraph (e) of 
this section, except as provided in paragraph (h) of this section, in 
order to give the submitter an opportunity to object to disclosure of 
any specified portion of that information under paragraph (f) of this 
section. The notice shall either describe the business information 
requested or include copies of the requested records or record portions 
containing the information. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The component has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. A component will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, it is 
required to submit a detailed written statement. The statement must 
specify all grounds for withholding any portion of the information under 
any exemption of the FOIA and, in the case of Exemption 4, it must show 
why the information is a trade secret or commercial or financial 
information that is privileged or confidential. In the event that a 
submitter fails to respond to the notice within the time specified in 
it, the submitter will be considered to have no

[[Page 272]]

objection to disclosure of the information. Information provided by the 
submitter that is not received by the component until after its 
disclosure decision has been made shall not be considered by the 
component. Information provided by a submitter under this paragraph may 
itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever a component 
decides to disclose business information over the objection of a 
submitter, the component shall give the submitter written notice, which 
shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The component determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the component shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final decision 
to disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the component 
shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, the component shall also 
notify the requester(s). Whenever a component notifies a submitter of 
its intent to disclose requested information under paragraph (g) of this 
section, the component shall also notify the requester(s). Whenever a 
submitter files a lawsuit seeking to prevent the disclosure of business 
information, the component shall notify the requester(s).

[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 51401, Sept. 25, 
1998]



Sec. 16.9  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
a component's response to your request, you may appeal an adverse 
determination denying your request, in any respect, to the Office of 
Information and Privacy, U.S. Department of Justice, Flag Building, 
Suite 570, Washington, DC 20530-0001. You must make your appeal in 
writing and it must be received by the Office of Information and Privacy 
within 60 days of the date of the letter denying your request. Your 
appeal letter may include as much or as little related information as 
you wish, as long as it clearly identifies the component determination 
(including the assigned request number, if known) that you are 
appealing. For the quickest possible handling, you should mark your 
appeal letter and the envelope ``Freedom of Information Act Appeal.'' 
Unless the Attorney General directs otherwise, a Director of the Office 
of Information and Privacy will act on behalf of the Attorney General on 
all appeals under this section, except that:
    (1) In the case of an adverse determination by the Deputy Attorney 
General or the Associate Attorney General, the Attorney General or the 
Attorney General's designee will act on the appeal;
    (2) An adverse determination by the Attorney General will be the 
final action of the Department; and
    (3) An appeal ordinarily will not be acted on if the request becomes 
a matter of FOIA litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing.

[[Page 273]]

A decision affirming an adverse determination in whole or in part shall 
contain a statement of the reason(s) for the affirmance, including any 
FOIA exemption(s) applied, and will inform you of the FOIA provisions 
for court review of the decision. If the adverse determination is 
reversed or modified on appeal, in whole or in part, you will be 
notified in a written decision and your request will be reprocessed in 
accordance with that appeal decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination, you must first appeal it under this 
section.



Sec. 16.10  Preservation of records.

    Each component shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.



Sec. 16.11  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with paragraph (c) of this section, except 
where fees are limited under paragraph (d) of this section or where a 
waiver or reduction of fees is granted under paragraph (k) of this 
section. A component ordinarily shall collect all applicable fees before 
sending copies of requested records to a requester. Requesters must pay 
fees by check or money order made payable to the Treasury of the United 
States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. Components shall determine, whenever 
reasonably possible, the use to which a requester will put the requested 
records. When it appears that the requester will put the records to a 
commercial use, either because of the nature of the request itself or 
because a component has reasonable cause to doubt a requester's stated 
use, the component shall provide the requester a reasonable opportunity 
to submit further clarification.
    (2) Direct costs means those expenses that an agency actually incurs 
in searching for and duplicating (and, in the case of commercial use 
requests, 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 duplication machinery. Not 
included in direct costs are overhead expenses such as the costs of 
space and heating or lighting of the facility in which the records are 
kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others. 
Components shall honor a requester's specified preference of form or 
format of disclosure if the record is readily reproducible with 
reasonable efforts in the requested form or format by the office 
responding to the request.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scholarly 
research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that 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 in this 
category, a requester must show that the

[[Page 274]]

request is authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use but 
are sought to further scientific research.
    (6) Representative of the news media, or news media requester, means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances where they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
components shall also look to the past publication record of a requester 
in making this determination. To be in this category, a requester must 
not be seeking the requested records for a commercial use. However, a 
request for records supporting the news-dissemination function of the 
requester shall not be considered to be for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure--for 
example, doing all that is necessary to redact it and prepare it for 
disclosure. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent considering any formal 
objection to disclosure made by a business submitter under Sec. 16.8, 
but does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Components shall ensure 
that searches are done in the most efficient and least expensive manner 
reasonably possible. For example, components shall not search line-by-
line where duplicating an entire document would be quicker and less 
expensive.
    (c) Fees. In responding to FOIA requests, components shall charge 
the following fees unless a waiver or reduction of fees has been granted 
under paragraph (k) of this section:
    (1) Search. (i) Search fees shall be charged for all requests--other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media--subject to the 
limitations of paragraph (d) of this section. Components may charge for 
time spent searching even if they do not locate any responsive record or 
if they withhold the record(s) located as entirely exempt from 
disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $4.00. Where a 
search and retrieval cannot be performed entirely by clerical 
personnel--for example, where the identification of records within the 
scope of a request requires the use of professional personnel--the fee 
will be $7.00 for each quarter hour of search time spent by professional 
personnel. Where the time of managerial personnel is required, the fee 
will be $10.25 for each quarter hour of time spent by those personnel.
    (iii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, although certain requesters 
(as provided in paragraph (d)(1) of this section) will be charged no 
search fee and certain other requesters (as provided in paragraph (d)(3) 
of this section) will be entitled to the cost equivalent of two hours of 
manual search time without charge. These direct costs will include the 
cost of operating a central processing unit for that portion of 
operating time that is directly attributable to searching for responsive 
records, as well as the costs of operator/programmer salary 
apportionable to the search.

[[Page 275]]

    (2) Duplication. Duplication fees will be charged to all requesters, 
subject to the limitations of paragraph (d) of this section. For a paper 
photocopy of a record (no more than one copy of which need be supplied), 
the fee will be ten cents per page. For copies produced by computer, 
such as tapes or printouts, components will charge the direct costs, 
including operator time, of producing the copy. For other forms of 
duplication, components will charge the direct costs of that 
duplication.
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the initial 
record review--in other words, the review done when a component 
determines whether an exemption applies to a particular record or record 
portion at the initial request level. No charge will be made for review 
at the administrative appeal level for an exemption already applied. 
However, records or record portions withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies; the costs 
of that review are chargeable where it is made necessary by such a 
change of circumstances. Review fees will be charged at the same rates 
as those charged for a search under paragraph (c)(1)(ii) of this 
section.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
components will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); and
    (ii) The first two hours of search (or the cost equivalent).
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d) (3) and (4) of this section 
work together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $14.00.
    (e) Notice of anticipated fees in excess of $25.00. When a component 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, the component shall notify the 
requester of the actual or estimated amount of the fees, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. If only a portion of the fee can be estimated readily, the 
component shall advise the requester that the estimated fee may be only 
a portion of the total fee. In cases in which a requester has been 
notified that actual or estimated fees amount to more than $25.00, the 
request shall not be considered received and further work shall not be 
done on it until the requester agrees to pay the anticipated total fee. 
Any such agreement should be memorialized in writing. A notice under 
this paragraph will offer the requester an opportunity to discuss the 
matter with Department personnel in order to reformulate the request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when a component chooses as a matter of administrative 
discretion to provide a special service--such as certifying that records 
are true copies or sending them by other than ordinary mail--the direct 
costs of providing the service ordinarily will be charged.
    (g) Charging interest. Components may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until payment 
is received by the component. Components will follow the provisions of 
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.

[[Page 276]]

    (h) Aggregating requests. Where a component reasonably believes that 
a requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the component may aggregate those requests and charge accordingly. 
Components may presume that multiple requests of this type made within a 
30-day period have been made in order to avoid fees. Where requests are 
separated by a longer period, components will aggregate them only where 
there exists a solid basis for determining that aggregation is warranted 
under all the circumstances involved. Multiple requests involving 
unrelated matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, a component shall not require 
the requester to make an advance payment--in other words, a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) Where a component determines or estimates that a total fee to be 
charged under this section will be more than $250.00, it may require the 
requester to make an advance payment of an amount up to the amount of 
the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from a 
requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any component or agency within 30 days of the date 
of billing, a component may require the requester to pay the full amount 
due, plus any applicable interest, and to make an advance payment of the 
full amount of any anticipated fee, before the component begins to 
process a new request or continues to process a pending request from 
that requester.
    (4) In cases in which a component requires advance payment or 
payment due under paragraph (i)(2) or (3) of this section, the request 
shall not be considered received and further work will not be done on it 
until the required payment is received.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. Where records responsive to requests are maintained 
for distribution by agencies operating such statutorily based fee 
schedule programs, components will inform requesters of the steps for 
obtaining records from those sources so that they may do so most 
economically.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (c) of this section where 
a component determines, based on all available information, that the 
requester has demonstrated that:
    (i) 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
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
components will consider the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject of the requested records must concern identifiable operations or 
activities of the federal government, with a connection that is direct 
and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not

[[Page 277]]

be as likely to contribute to such understanding where nothing new would 
be added to the public's understanding.
    (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 a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public shall be considered. It shall be presumed that 
a representative of the news media will satisfy this consideration.
    (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 in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. Components shall not 
make value judgments about whether information that would contribute 
significantly to public understanding of the operations or activities of 
the government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
components will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Components shall consider any commercial interest 
of the requester (with reference to the definition of ``commercial use'' 
in paragraph (b)(1) of this section), or of any person on whose behalf 
the requester may be acting, that would be furthered by the requested 
disclosure. Requesters shall be given an opportunity in the 
administrative process to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: Whether any 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 justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. Components ordinarily 
shall presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily 
served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return shall not be presumed to primarily serve the public 
interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k)(2) and (3) of this section, insofar as 
they apply to each request. Components will exercise their discretion to 
consider the cost-effectiveness of their investment of administrative 
resources in this decisionmaking process, however, in deciding to grant 
waivers or reductions of fees.

[Order No. 2156-98, 63 FR 29593, June 1, 1998; 63 FR 34965, June 26, 
1998; 63 FR 36295, July 2, 1998; 63 FR 51401, Sept. 25, 1998]



Sec. 16.12  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 the FOIA.



   Subpart B_Production or Disclosure in Federal and State Proceedings

    Source: Order No. 919-80, 45 FR 83210, Dec. 18, 1980, unless 
otherwise noted.



Sec. 16.21  Purpose and scope.

    (a) This subpart sets forth procedures to be followed with respect 
to the production or disclosure of any material contained in the files 
of the Department, any information relating to material contained in the 
files of the Department, or any information acquired

[[Page 278]]

by any person while such person was an employee of the Department as a 
part of the performance of that person's official duties or because of 
that person's official status:
    (1) In all federal and state proceedings in which the United States 
is a party; and
    (2) In all federal and state proceedings in which the United States 
is not a party, including any proceedings in which the Department is 
representing a government employee solely in that employee's individual 
capacity, when a subpoena, order, or other demand (hereinafter 
collectively referred to as a ``demand'') of a court or other authority 
is issued for such material or information.
    (b) For purposes of this subpart, the term employee of the 
Department includes all officers and employees of the United States 
appointed by, or subject to the supervision, jurisdiction, or control of 
the Attorney General of the United States, including U.S. Attorneys, 
U.S. Marshals, U.S. Trustees and members of the staffs of those 
officials.
    (c) Nothing in this subpart is intended to impede the appropriate 
disclosure, in the absence of a demand, of information by Department law 
enforcement agencies to federal, state, local and foreign law 
enforcement, prosecutive, or regulatory agencies.
    (d) This subpart is intended only to provide guidance for the 
internal operations of the Department of Justice, and is not intended 
to, and does not, and may not be relied upon to create any right or 
benefit, substantive or procedural, enforceable at law by a party 
against the United States.



Sec. 16.22  General prohibition of production or disclosure in Federal
and State proceedings in which the United States is not a party.

    (a) In any federal or state case or matter in which the United 
States is not a party, no employee or former employee of the Department 
of Justice shall, in response to a demand, produce any material 
contained in the files of the Department, or disclose any information 
relating to or based upon material contained in the files of the 
Department, or disclose any information or produce any material acquired 
as part of the performance of that person's official duties or because 
of that person's official status without prior approval of the proper 
Department official in accordance with Sec. Sec. 16.24 and 16.25 of 
this part.
    (b) Whenever a demand is made upon an employee or former employee as 
described in paragraph (a) of this section, the employee shall 
immediately notify the U.S. Attorney for the district where the issuing 
authority is located. The responsible United States Attorney shall 
follow procedures set forth in Sec. 16.24 of this part.
    (c) If oral testimony is sought by a demand in any case or matter in 
which the United States is not a party, an affidavit, or, if that is not 
feasible, a statement by the party seeking the testimony or by his 
attorney, setting forth a summary of the testimony sought and its 
relevance to the proceeding, must be furnished to the responsible U.S. 
Attorney. Any authorization for testimony by a present or former 
employee of the Department shall be limited to the scope of the demand 
as summarized in such statement.
    (d) When information other than oral testimony is sought by a 
demand, the responsible U.S. Attorney shall request a summary of the 
information sought and its relevance to the proceeding.



Sec. 16.23  General disclosure authority in Federal and State proceedings
in which the United States is a party.

    (a) Every attorney in the Department of Justice in charge of any 
case or matter in which the United States is a party is authorized, 
after consultation with the ``originating component'' as defined in 
Sec. 16.24(a) of this part, to reveal and furnish to any person, 
including an actual or prospective witness, a grand jury, counsel, or a 
court, either during or preparatory to a proceeding, such testimony, and 
relevant unclassified material, documents, or information secured by any 
attorney, or investigator of the Department of Justice, as such attorney 
shall deem necessary or desirable to the discharge of the attorney's 
official duties: Provided, Such an attorney shall consider, with respect 
to any disclosure, the factors set

[[Page 279]]

forth in Sec. 16.26(a) of this part: And further provided, An attorney 
shall not reveal or furnish any material, documents, testimony or 
information when, in the attorney's judgment, any of the factors 
specified in Sec. 16.26(b) exists, without the express prior approval 
by the Assistant Attorney General in charge of the division responsible 
for the case or proceeding, the Director of the Executive Office for 
United States Trustees (hereinafter referred to as ``the EOUST''), or 
such persons' designees.
    (b) An attorney may seek higher level review at any stage of a 
proceeding, including prior to the issuance of a court order, when the 
attorney determines that a factor specified in Sec. 16.26(b) exists or 
foresees that higher level approval will be required before disclosure 
of the information or testimony in question. Upon referral of a matter 
under this subsection, the responsible Assistant Attorney General, the 
Director of EOUST, or their designees shall follow procedures set forth 
in Sec. 16.24 of this part.
    (c) If oral testimony is sought by a demand in a case or matter in 
which the United States is a party, an affidavit, or, if that is not 
feasible, a statement by the party seeking the testimony or by the 
party's attorney setting forth a summary of the testimony sought must be 
furnished to the Department attorney handling the case or matter.



Sec. 16.24  Procedure in the event of a demand where disclosure is not
otherwise authorized.

    (a) Whenever a matter is referred under Sec. 16.22 of this part to 
a U.S. Attorney or, under Sec. 16.23 of this part, to an Assistant 
Attorney General, the Director of the EOUST, or their designees 
(hereinafter collectively referred to as the ``responsible official''), 
the responsible official shall immediately advise the official in charge 
of the bureau, division, office, or agency of the Department that was 
responsible for the collection, assembly, or other preparation of the 
material demanded or that, at the time the person whose testimony was 
demanded acquired the information in question, employed such person 
(hereinafter collectively referred to as the ``originating component''), 
or that official's designee. In any instance in which the responsible 
official is also the official in charge of the originating component, 
the responsible official may perform all functions and make all 
determinations that this regulation vests in the originating component.
    (b) The responsible official, subject to the terms of paragraph (c) 
of this section, may authorize the appearance and testimony of a present 
or former Department employee, or the production of material from 
Department files if:
    (1) There is no objection after inquiry of the originating 
component;
    (2) The demanded disclosure, in the judgment of the responsible 
official, is appropriate under the factors specified in Sec. 16.26(a) 
of this part; and
    (3) None of the factors specified in Sec. 16.26(b) of this part 
exists with respect to the demanded disclosure.
    (c) It is Department policy that the responsible official shall, 
following any necessary consultation with the originating component, 
authorize testimony by a present or former employee of the Department or 
the production of material from Department files without further 
authorization from Department officials whenever possible: Provided, 
That, when information is collected, assembled, or prepared in 
connection with litigation or an investigation supervised by a division 
of the Department or by the EOUST, the Assistant Attorney General in 
charge of such a division or the Director of the EOUST may require that 
the originating component obtain the division's or the EOUST's approval 
before authorizing a responsible official to disclose such information. 
Prior to authorizing such testimony or production, however, the 
responsible official shall, through negotiation and, if necessary, 
appropriate motions, seek to limit the demand to information, the 
disclosure of which would not be inconsistent with the considerations 
specified in Sec. 16.26 of this part.
    (d)(1) In a case in which the United States is not a party, if the 
responsible U.S. attorney and the originating component disagree with 
respect to the appropriateness of demanded testimony or of a particular 
disclosure, or if they

[[Page 280]]

agree that such testimony or such a disclosure should not be made, they 
shall determine if the demand involves information that was collected, 
assembled, or prepared in connection with litigation or an investigation 
supervised by a division of this Department or the EOUST. If so, the 
U.S. attorney shall notify the Director of the EOUST or the Assistant 
Attorney General in charge of the division responsible for such 
litigation or investigation, who may:
    (i) Authorize personally or through a Deputy Assistant Attorney 
General, the demanded testimony or other disclosure of the information 
if such testimony or other disclosure, in the Assistant or Deputy 
Assistant Attorney General's judgment or in the judgment of the Director 
of the EOUST, is consistent with the factors specified in Sec. 16.26(a) 
of this part, and none of the factors specified in Sec. 16.26(b) of 
this part exists with respect to the demanded disclosure;
    (ii) Authorize, personally or by a designee, the responsible 
official, through negotiations and, if necessary, appropriate motions, 
to seek to limit the demand to matters, the disclosure of which, through 
testimony or documents, considerations specified in Sec. 16.26 of this 
part, and otherwise to take all appropriate steps to limit the scope or 
obtain the withdrawal of a demand; or
    (iii) If, after all appropriate steps have been taken to limit the 
scope or obtain the withdrawal of a demand, the Director of the EOUST or 
the Assistant or Deputy Assistant Attorney General does not authorize 
the demanded testimony or other disclosure, refer the matter, personally 
or through a Deputy Assistant Attorney General, for final resolution to 
the Deputy or Associate Attorney General, as indicated in Sec. 16.25 of 
this part.
    (2) If the demand for testimony or other disclosure in such a case 
does not involve information that was collected, assembled, or prepared 
in connection with litigation or an investigation supervised by a 
division of this Department, the originating component shall decide 
whether disclosure is appropriate, except that, when especially 
significant issues are raised, the responsible official may refer the 
matter to the Deputy or Associate Attorney General, as indicated in 
Sec. 16.25 of this part. If the originating component determines that 
disclosure would not be appropriate and the responsible official does 
not refer the matter for higher level review, the responsible official 
shall take all appropriate steps to limit the scope or obtain the 
withdrawal of a demand.
    (e) In a case in which the United States is a party, the Assistant 
General or the Director of the EOUST responsible for the case or matter, 
or such persons' designees, are authorized, after consultation with the 
originating component, to exercise the authorities specified in 
paragraph (d)(1) (i) through (iii) of this section: Provided, That if a 
demand involves information that was collected, assembled, or prepared 
originally in connection with litigation or an investigation supervised 
by another unit of the Department, the responsible official shall notify 
the other division or the EOUST concerning the demand and the 
anticipated response. If two litigating units of the Department are 
unable to resolve a disagreement concerning disclosure, the Assistant 
Attorneys General in charge of the two divisions in disagreement, or the 
Director of the EOUST and the appropriate Assistant Attorney General, 
may refer the matter to the Deputy or Associate Attorney General, as 
indicated in Sec. 16.25(b) of this part.
    (f) In any case or matter in which the responsible official and the 
originating component agree that it would not be appropriate to 
authorize testimony or otherwise to disclose the information demanded, 
even if a court were so to require, no Department attorney responding to 
the demand should make any representation that implies that the 
Department would, in fact, comply with the demand if directed to do so 
by a court. After taking all appropriate steps in such cases to limit 
the scope or obtain the withdrawal of a demand, the responsible official 
shall refer the matter to the Deputy or Associate Attorney General, as 
indicated in Sec. 16.25 of this part.

[[Page 281]]

    (g) In any case or matter in which the Attorney General is 
personally involved in the claim of privilege, the responsible official 
may consult with the Attorney General and proceed in accord with the 
Attorney General's instructions without subsequent review by the Deputy 
or Associate Attorney General.



Sec. 16.25  Final action by the Deputy or Associate Attorney General.

    (a) Unless otherwise indicated, all matters to be referred under 
Sec. 16.24 by an Assistant Attorney General, the Director of the EOUST, 
or such person's designees to the Deputy or Associate Attorney General 
shall be referred (1) to the Deputy Attorney General, if the matter is 
referred personally by or through the designee of an Assistant Attorney 
General who is within the general supervision of the Deputy Attorney 
General, or (2) to the Associate Attorney General, in all other cases.
    (b) All other matters to be referred under Sec. 16.24 to the Deputy 
or Associate Attorney General shall be referred (1) to the Deputy 
Attorney General, if the originating component is within the supervision 
of the Deputy Attorney General or is an independent agency that, for 
administrative purposes, is within the Department of Justice, or (2) to 
the Associate Attorney General, if the originating component is within 
the supervision of the Associate Attorney General.
    (c) Upon referral, the Deputy or Associate Attorney General shall 
make the final decision and give notice thereof to the responsible 
official and such other persons as circumstances may warrant.



Sec. 16.26  Considerations in determining whether production or 
disclosure should be made pursuant to a demand.

    (a) In deciding whether to make disclosures pursuant to a demand, 
Department officials and attorneys should consider:
    (1) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose, and
    (2) Whether disclosure is appropriate under the relevant substantive 
law concerning privilege.
    (b) Among the demands in response to which disclosure will not be 
made by any Department official are those demands with respect to which 
any of the following factors exist:
    (1) Disclosure would violate a statute, such as the income tax laws, 
26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury 
secrecy rule, F.R.Cr.P., Rule 6(e),
    (2) Disclosure would violate a specific regulation;
    (3) Disclosure would reveal classified information, unless 
appropriately declassified by the originating agency,
    (4) Disclosure would reveal a confidential source or informant, 
unless the investigative agency and the source or informant have no 
objection,
    (5) Disclosure would reveal investigatory records compiled for law 
enforcement purposes, and would interfere with enforcement proceedings 
or disclose investigative techniques and procedures the effectiveness of 
which would thereby be impaired,
    (6) Disclosure would improperly reveal trade secrets without the 
owner's consent.
    (c) In all cases not involving considerations specified in 
paragraphs (b)(1) through (b)(6) of this section, the Deputy or 
Associate Attorney General will authorize disclosure unless, in that 
person's judgment, after considering paragraph (a) of this section, 
disclosure is unwarranted. The Deputy or Associate Attorney General will 
not approve disclosure if the circumstances specified in paragraphs 
(b)(1) through (b)(3) of this section exist. The Deputy or Associate 
Attorney General will not approve disclosure if any of the conditions in 
paragraphs (b)(4) through (b)(6) of this section exist, unless the 
Deputy or Associate Attorney General determines that the administration 
of justice requires disclosure. In this regard, if disclosure is 
necessary to pursue a civil or criminal prosecution or affirmative 
relief, such as an injunction, consideration shall be given to:
    (1) The seriousness of the violation or crime involved,
    (2) The past history or criminal record of the violator or accused,

[[Page 282]]

    (3) The importance of the relief sought,
    (4) The importance of the legal issues presented,
    (5) Other matters brought to the attention of the Deputy or 
Associate Attorney General.
    (d) Assistant Attorneys General, U.S. Attorneys, the Director of the 
EOUST, U.S. Trustees, and their designees, are authorized to issue 
instructions to attorneys and to adopt supervisory practices, consistent 
with this subpart, in order to help foster consistent application of the 
foregoing standards and the requirements of this subpart.



Sec. 16.27  Procedure in the event a department decision concerning a
demand is not made prior to the time a response to the demand is required.

    If response to a demand is required before the instructions from the 
appropriate Department official are received, the responsible official 
or other Department attorney designated for the purpose shall appear and 
furnish the court or other authority with a copy of the regulations 
contained in this subpart and inform the court or other authority that 
the demand has been or is being, as the case may be, referred for the 
prompt consideration of the appropriate Department official and shall 
respectfully request the court or authority to stay the demand pending 
receipt of the requested instructions.



Sec. 16.28  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 16.27 of 
this chapter pending receipt of instructions, or if the court or other 
authority rules that the demand must be complied with irrespective of 
instructions rendered in accordance with Sec. Sec. 16.24 and 16.25 of 
this part not to produce the material or disclose the information 
sought, the employee or former employee upon whom the demand has been 
made shall, if so directed by the responsible Department official, 
respectfully decline to comply with the demand. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).



Sec. 16.29  Delegation by Assistant Attorneys General.

    With respect to any function that this subpart permits the designee 
of an Assistant Attorney General to perform, the Assistant Attorneys 
General are authorized to delegate their authority, in any case or 
matter or any category of cases or matters, to subordinate division 
officials or U.S. attorneys, as appropriate.



Sec. Appendix to Subpart B of Part 16--Redelegation of Authority to the 
Deputy Assistant Attorney General for Litigation, Antitrust Division, To 
      Authorize Production or Disclosure of Material or Information

    1. By virtue of the authority vested in me by 28 CFR 16.23(b)(1) the 
authority delegated to me by that section to authorize the production of 
material and disclosure of information described in 28 CFR 16.21(a) is 
hereby redelegated to the Deputy Assistant Attorney General for 
Litigation, Antitrust Division.
    2. This directive shall become effective on the date of its 
publication in the Federal Register.

[Order No. 960-81, 46 FR 52356, Oct. 27, 1981]



   Subpart C_Production of FBI Identification Records in Response to 
                  Written Requests by Subjects Thereof

    Source: Order No. 556-73, 38 FR 32806, Nov. 28, 1973, unless 
otherwise noted.



Sec. 16.30  Purpose and scope.

    This subpart contains the regulations of the Federal Bureau of 
Investigation (FBI) concerning procedures to be followed when the 
subject of an identification record requests production of that record 
to review it or to obtain a change, correction, or updating of that 
record.

[Order No. 2258-99, 64 FR 52226, Sept. 28, 1999]



Sec. 16.31  Definition of identification record.

    An FBI identification record, often referred to as a ``rap sheet,'' 
is a listing of certain information taken from fingerprint submissions 
retained by the FBI in connection with arrests and, in

[[Page 283]]

some instances, includes information taken from fingerprints submitted 
in connection with federal employment, naturalization, or military 
service. The identification record includes the name of the agency or 
institution that submitted the fingerprints to the FBI. If the 
fingerprints concern a criminal offense, the identification record 
includes the date of arrest or the date the individual was received by 
the agency submitting the fingerprints, the arrest charge, and the 
disposition of the arrest if known to the FBI. All arrest data included 
in an identification record are obtained from fingerprint submissions, 
disposition reports, and other reports submitted by agencies having 
criminal justice responsibilities. Therefore, the FBI Criminal Justice 
Information Services Division is not the source of the arrest data 
reflected on an identification record.

[Order No. 2258-99, 64 FR 52226, Sept. 28, 1999]



Sec. 16.32  Procedure to obtain an identification record.

    The subject of an identification record may obtain a copy thereof by 
submitting a written request via the U.S. mails directly to the FBI, 
Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod. 
D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306. Such request must be 
accompanied by satisfactory proof of identity, which shall consist of 
name, date and place of birth and a set of rolled-inked fingerprint 
impressions placed upon fingerprint cards or forms commonly utilized for 
applicant or law enforcement purposes by law enforcement agencies.

[Order No. 1134-86, 51 FR 16677, May 6, 1986, as amended by Order No. 
2258-99, 64 FR 52226, Sept. 28, 1999]



Sec. 16.33  Fee for production of identification record.

    Each written request for production of an identification record must 
be accompanied by a fee of $18 in the form of a certified check or money 
order, payable to the Treasury of the United States. This fee is 
established pursuant to the provisions of 31 U.S.C. 9701 and is based 
upon the clerical time beyond the first quarter hour to be spent in 
searching for, identifying, and reproducing each identification record 
requested as specified in Sec. 16.10. Any request for waiver of the fee 
shall accompany the original request for the identification record and 
shall include a claim and proof of indigency. Subject to applicable 
laws, regulations, and directions of the Attorney General of the United 
States, the Director of the FBI may from time to time determine and 
establish a revised fee amount to be assessed under this authority. 
Notice relating to revised fee amounts shall be published in the Federal 
Register.

[Order No. 1943-94, 60 FR 38, Jan. 3, 1995, as amended by Order No. 
2258-99, 64 FR 52226, Sept. 28, 1999]



Sec. 16.34  Procedure to obtain change, correction or updating of
identification records.

    If, after reviewing his/her identification record, the subject 
thereof believes that it is incorrect or incomplete in any respect and 
wishes changes, corrections or updating of the alleged deficiency, he/
she should make application directly to the agency which contributed the 
questioned information. The subject of a record may also direct his/her 
challenge as to the accuracy or completeness of any entry on his/her 
record to the FBI, Criminal Justice Information Services (CJIS) 
Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road, Clarksburg, WV 
26306. The FBI will then forward the challenge to the agency which 
submitted the data requesting that agency to verify or correct the 
challenged entry. Upon the receipt of an official communication directly 
from the agency which contributed the original information, the FBI CJIS 
Division will make any changes necessary in accordance with the 
information supplied by that agency.

[Order No. 1134-86, 51 FR 16677, May 6, 1986, as amended by Order No. 
2258-99, 64 FR 52226, Sept. 28, 1999]



 Subpart D_Protection of Privacy and Access to Individual Records Under 
                         the Privacy Act of 1974

    Source: Order No. 2156-98, 63 FR 29600, June 1, 1998, unless 
otherwise noted.

[[Page 284]]



Sec. 16.40  General provisions.

    (a) Purpose and scope. This subpart contains the rules that the 
Department of Justice follows under the Privacy Act of 1974, 5 U.S.C. 
552a. These rules should be read together with the Privacy Act, which 
provides additional information about records maintained on individuals. 
The rules in this subpart apply to all records in systems of records 
maintained by the Department that are retrieved by an individual's name 
or personal identifier. They describe the procedures by which 
individuals may request access to records about themselves, request 
amendment or correction of those records, and request an accounting of 
disclosures of those by the Department. In addition, the Department 
processes all Privacy Act requests for access to records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, following the rules 
contained in subpart A of this part, which gives requests the benefit of 
both statutes.
    (b) Definitions. As used in this subpart:
    (1) Component means each separate bureau, office, board, division, 
commission, service, or administration of the Department of Justice.
    (2) Request for access to a record means a request made under 
Privacy Act subsection (d)(1).
    (3) Request for amendment or correction of a record means a request 
made under Privacy Act subsection (d)(2).
    (4) Request for an accounting means a request made under Privacy Act 
subsection (c)(3).
    (5) Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act.
    (c) Authority to request records for a law enforcement purpose. The 
head of a component or a United States Attorney, or either's designee, 
is authorized to make written requests under subsection (b)(7) of the 
Privacy Act for records maintained by other agencies that are necessary 
to carry out an authorized law enforcement activity.

[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 51401, Sept. 25, 
1998]



Sec. 16.41  Requests for access to records.

    (a) How made and addressed. You may make a request for access to a 
Department of Justice record about yourself by appearing in person or by 
writing directly to the Department component that maintains the record. 
Your request should be sent or delivered to the component's Privacy Act 
office at the address listed in appendix I to this part. In most cases, 
a component's central Privacy Act office is the place to send a Privacy 
Act request. For records held by a field office of the Federal Bureau of 
Investigation (FBI) or the Immigration and Naturalization Service (INS), 
however, you must write directly to that FBI or INS field office 
address, which can be found in most telephone books or by calling the 
component's central Privacy Act office. (The functions of each component 
are summarized in Part 0 of this title and in the description of the 
Department and its components in the ``United States Government 
Manual,'' which is issued annually and is available in most libraries, 
as well as for sale from the Government Printing Office's Superintendent 
of Documents. This manual also can be accessed electronically at the 
Government Printing Office's World Wide Web site (which can be found at 
http://www.access.gpo.gov/su--docs). If you cannot determine where 
within the Department to send your request, you may send it to the FOIA/
PA Mail Referral Unit, Justice Management Division, U.S. Department of 
Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530-0001, and 
that office will forward it to the component(s) it believes most likely 
to have the records that you seek. For the quickest possible handling, 
you should mark both your request letter and the envelope ``Privacy Act 
Request.''
    (b) Description of records sought. You must describe the records 
that you want in enough detail to enable Department personnel to locate 
the system of records containing them with a reasonable amount of 
effort. Whenever possible, your request should describe the records 
sought, the time periods in which you believe they were compiled, and 
the name or identifying number of each system of records in which you 
believe they are kept. The Department

[[Page 285]]

publishes notices in the Federal Register that describe its components' 
systems of records. A description of the Department's systems of records 
also may be found as part of the ``Privacy Act Compilation'' published 
by the National Archives and Records Administration's Office of the 
Federal Register. This compilation is available in most large reference 
and university libraries. This compilation also can be accessed 
electronically at the Government Printing Office's World Wide Web site 
(which can be found at http://www.access.gpo.gov/su--docs).
    (c) Agreement to pay fees. If you make a Privacy Act request for 
access to records, it shall be considered an agreement by you to pay all 
applicable fees charged under Sec. 16.49, up to $25.00. The component 
responsible for responding to your request ordinarily shall confirm this 
agreement in an acknowledgement letter. When making a request, you may 
specify a willingness to pay a greater or lesser amount.
    (d) Verification of identity. 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, a law that permits statements to 
be made under penalty of perjury as a substitute for notarization. While 
no specific form is required, you may obtain forms for this purpose from 
the FOIA/PA Mail Referral Unit, Justice Management Division, U.S. 
Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 
20530-0001. In order to help the identification and location of 
requested records, you may also, at your option, include your social 
security number.
    (e) Verification of guardianship. When making a request as the 
parent or guardian of a minor or as the guardian of someone determined 
by a court to be incompetent, for access to records about that 
individual, you must establish:
    (1) The identity of the individual who is the subject of the record, 
by stating the name, current address, date and place of birth, and, at 
your option, the social security number of the individual;
    (2) Your own identity, as required in paragraph (d) of this section;
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.

[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26, 
1998; 63 FR 51401, Sept. 25, 1998]



Sec. 16.42  Responsibility for responding to requests for access to records.

    (a) In general. Except as stated in paragraphs (c), (d), and (e) of 
this section, the component that first receives a request for access to 
a record, and has possession of that record, is the component 
responsible for responding to the request. In determining which records 
are responsive to a request, a component ordinarily shall include only 
those records in its possession as of the date the component begins its 
search for them. If any other date is used, the component shall inform 
the requester of that date.
    (b) Authority to grant or deny requests. The head of a component, or 
the component head's designee, is authorized to grant or deny any 
request for access to a record of that component.
    (c) Consultations and referrals. When a component receives a request 
for access to a record in its possession, it shall determine whether 
another component, or another agency of the Federal Government, is 
better able to determine whether the record is exempt from access under 
the Privacy Act. If the receiving component determines that it is best 
able to process the record in response to the request, then it shall do 
so. If the receiving component determines that it is not best able to 
process the record, then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the component or agency best able to determine whether the record 
is exempt from access and with any other component or agency that has a 
substantial interest in it; or

[[Page 286]]

    (2) Refer the responsibility for responding to the request regarding 
that record to the component best able to determine whether it is exempt 
from access, or to another agency that originated the record (but only 
if that agency is subject to the Privacy Act). Ordinarily, the component 
or agency that originated a record will be presumed to be best able to 
determine whether it is exempt from access.
    (d) Law enforcement information. Whenever a request is made for 
access to a record containing information that relates to an 
investigation of a possible violation of law and that was originated by 
another component or agency, the receiving component shall either refer 
the responsibility for responding to the request regarding that 
information to that other component or agency or shall consult with that 
other component or agency.
    (e) Classified information. Whenever a request is made for access to 
a record containing information that has been classified by or may be 
appropriate for classification by another component or agency under 
Executive Order 12958 or any other executive order concerning the 
classification of records, the receiving component shall refer the 
responsibility for responding to the request regarding that information 
to the component or agency that classified the information, should 
consider the information for classification, or has the primary interest 
in it, as appropriate. Whenever a record contains information that has 
been derivatively classified by a component because it contains 
information classified by another component or agency, the component 
shall refer the responsibility for responding to the request regarding 
that information to the component or agency that classified the 
underlying information.
    (f) Notice of referral. Whenever a component refers all or any part 
of the responsibility for responding to a request to another component 
or agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of each component or agency to which 
the request has been referred and of the part of the request that has 
been referred.
    (g) Timing of responses to consultations and referrals. All 
consultations and referrals shall be handled according to the date the 
Privacy Act access request was initially received by the first component 
or agency, not any later date.
    (h) Agreements regarding consultations and referrals. Components may 
make agreements with other components or agencies to eliminate the need 
for consultations or referrals for particular types of records.

[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26, 
1998; 63 FR 51401, Sept. 25, 1998]



Sec. 16.43  Responses to requests for access to records.

    (a) Acknowledgements of requests. On receipt of a request, a 
component ordinarily shall send an acknowledgement letter to the 
requester which shall confirm the requester's agreement to pay fees 
under Sec. 16.41(c) and provide an assigned request number for further 
reference.
    (b) Grants of requests for access. Once a component makes a 
determination to grant a request for access in whole or in part, it 
shall notify the requester in writing. The component shall inform the 
requester in the notice of any fee charged under Sec. 16.49 and shall 
disclose records to the requester promptly on payment of any applicable 
fee. If a request is made in person, the component may disclose records 
to the requester directly, in a manner not unreasonably disruptive of 
its operations, on payment of any applicable fee and with a written 
record made of the grant of the request. If a requester is accompanied 
by another person, the requester shall be required to authorize in 
writing any discussion of the records in the presence of the other 
person.
    (c) Adverse determinations of requests for access. A component 
making an adverse determination denying a request for access in any 
respect shall notify the requester of that determination in writing. 
Adverse determinations, or denials of requests, consist of: A 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy

[[Page 287]]

Act; a determination on any disputed fee matter; and a denial of a 
request for expedited treatment. The notification letter shall be signed 
by the head of the component, or the component head's 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(s) for the denial, including any 
Privacy Act exemption(s) applied by the component in denying the 
request; and
    (3) A statement that the denial may be appealed under Sec. 16.45(a) 
and a description of the requirements of Sec. 16.45(a).



Sec. 16.44  Classified information.

    In processing a request for access to a record containing 
information that is classified under Executive Order 12958 or any other 
executive order, the originating component shall review the information 
to determine whether it should remain classified. Information determined 
to no longer require classification shall not be withheld from a 
requester on the basis of Exemption (k)(1) of the Privacy Act. On 
receipt of any appeal involving classified information, the Office of 
Information and Privacy shall take appropriate action to ensure 
compliance with part 17 of this title.



Sec. 16.45  Appeals from denials of requests for access to records.

    (a) Appeals. If you are dissatisfied with a component's response to 
your request for access to records, you may appeal an adverse 
determination denying your request in any respect to the Office of 
Information and Privacy, U.S. Department of Justice, Flag Building, 
Suite 570, Washington, DC 20530-0001. You must make your appeal in 
writing and it must be received by the Office of Information and Privacy 
within 60 days of the date of the letter denying your request. Your 
appeal letter may include as much or as little related information as 
you wish, as long as it clearly identifies the component determination 
(including the assigned request number, if known) that you are 
appealing. For the quickest possible handling, you should mark both your 
appeal letter and the envelope ``Privacy Act Appeal.'' Unless the 
Attorney General directs otherwise, a Director of the Office of 
Information and Privacy will act on behalf of the Attorney General on 
all appeals under this section, except that:
    (1) In the case of an adverse determination by the Deputy Attorney 
General or the Associate Attorney General, the Attorney General or the 
Attorney General's designee will act on the appeal;
    (2) An adverse determination by the Attorney General will be the 
final action of the Department; and
    (3) An appeal ordinarily will not be acted on if the request becomes 
a matter of litigation.
    (b) Responses to appeals. The decision on your appeal will be made 
in writing. A decision affirming an adverse determination in whole or in 
part will include a brief statement of the reason(s) for the affirmance, 
including any Privacy Act exemption applied, and will inform you of the 
Privacy Act provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal in whole or in part, you 
will be notified in a written decision and your request will be 
reprocessed in accordance with that appeal decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any adverse determination or denial of a request, you must first 
appeal it under this section.



Sec. 16.46  Requests for amendment or correction of records.

    (a) How made and addressed. Unless the record is not subject to 
amendment or correction as stated in paragraph (f) of this section, you 
may make a request for amendment or correction of a Department of 
Justice record about yourself by writing directly to the Department 
component that maintains the record, following the procedures in Sec. 
16.41. Your request should identify each particular record in question, 
state the amendment or correction that you want, and state why you 
believe that the record is not accurate, relevant, timely, or complete. 
You may submit any documentation that you think would be helpful. If you 
believe that the same record is in more than one system of records, you 
should state that and address your request to each

[[Page 288]]

component that maintains a system of records containing the record.
    (b) Component responses. Within ten working days of receiving your 
request for amendment or correction of records, a component shall send 
you a written acknowledgment of its receipt of your request, and it 
shall promptly notify you whether your request is granted or denied. If 
the component grants your request in whole or in part, it shall describe 
the amendment or correction made and shall advise you of your right to 
obtain a copy of the corrected or amended record, in disclosable form. 
If the component denies your request in whole or in part, it shall send 
you a letter signed by the head of the component, or the component 
head's designee, that shall state:
    (1) The reason(s) for the denial; and
    (2) The procedure for appeal of the denial under paragraph (c) of 
this section, including the name and business address of the official 
who will act on your appeal.
    (c) Appeals. You may appeal a denial of a request for amendment or 
correction to the Office of Information and Privacy in the same manner 
as a denial of a request for access to records (see Sec. 16.45) and the 
same procedures shall be followed. If your appeal is denied, you shall 
be advised of your right to file a Statement of Disagreement as 
described in paragraph (d) of this section and of your right under the 
Privacy Act for court review of the decision.
    (d) Statements of Disagreement. If your appeal under this section is 
denied in whole or in part, you have the right to file a Statement of 
Disagreement that states your reason(s) for disagreeing with the 
Department's denial of your request for amendment or correction. 
Statements of Disagreement must be concise, must clearly identify each 
part of any record that is disputed, and should be no longer than one 
typed page for each fact disputed. Your Statement of Disagreement must 
be sent to the component involved, which shall place it in the system of 
records in which the disputed record is maintained and shall mark the 
disputed record to indicate that a Statement of Disagreement has been 
filed and where in the system of records it may be found.
    (e) Notification of amendment/correction or disagreement. Within 30 
working days of the amendment or correction of a record, the component 
that maintains the record shall notify all persons, organizations, or 
agencies to which it previously disclosed the record, if an accounting 
of that disclosure was made, that the record has been amended or 
corrected. If an individual has filed a Statement of Disagreement, the 
component shall append a copy of it to the disputed record whenever the 
record is disclosed and may also append a concise statement of its 
reason(s) for denying the request to amend or correct the record.
    (f) Records not subject to amendment or correction. The following 
records are not subject to amendment or correction:
    (1) Transcripts of testimony given under oath or written statements 
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings, which are the official record of those 
proceedings;
    (3) Presentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from 
amendment and correction under Privacy Act, 5 U.S.C. 552a(j) or (k) by 
notice published in the Federal Register.



Sec. 16.47  Requests for an accounting of record disclosures.

    (a) How made and addressed. Except where accountings of disclosures 
are not required to be kept (as stated in paragraph (b) of this 
section), you may make a request for an accounting of any disclosure 
that has been made by the Department to another person, organization, or 
agency of any record about you. This accounting contains the date, 
nature, and purpose of each disclosure, as well as the name and address 
of the person, organization, or agency to which the disclosure was made. 
Your request for an accounting should identify each particular record in 
question and should be made by writing directly to the Department 
component that maintains the record, following the procedures in Sec. 
16.41.

[[Page 289]]

    (b) Where accountings are not required. Components are not required 
to provide accountings to you where they relate to:
    (1) Disclosures for which accountings are not required to be kept--
in other words, disclosures that are made to employees within the agency 
and disclosures that are made under the FOIA;
    (2) Disclosures made to law enforcement agencies for authorized law 
enforcement activities in response to written requests from those law 
enforcement agencies specifying the law enforcement activities for which 
the disclosures are sought; or
    (3) Disclosures made from law enforcement systems of records that 
have been exempted from accounting requirements.
    (c) Appeals. You may appeal a denial of a request for an accounting 
to the Office of Information and Privacy in the same manner as a denial 
of a request for access to records (see Sec. 16.45) and the same 
procedures will be followed.



Sec. 16.48  Preservation of records.

    Each component will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the Act.



Sec. 16.49  Fees.

    Components shall charge fees for duplication of records under the 
Privacy Act in the same way in which they charge duplication fees under 
Sec. 16.11. No search or review fee may be charged for any record 
unless the record has been exempted from access under Exemptions (j)(2) 
or (k)(2) of the Privacy Act.



Sec. 16.50  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the component 
shall make reasonable efforts to provide notice of this to the 
individual. Notice shall be given within a reasonable time after the 
component's receipt of the order--except that in a case in which the 
order is not a matter of public record, the notice shall be given only 
after the order becomes public. This notice shall be mailed to the 
individual's last known address and shall contain a copy of the order 
and a description of the information disclosed. Notice shall not be 
given if disclosure is made from a criminal law enforcement system of 
records that has been exempted from the notice requirement.
    (b) Emergency disclosures. Upon disclosing a record pertaining to an 
individual made under compelling circumstances affecting health or 
safety, the component shall notify that individual of the disclosure. 
This notice shall be mailed to the individual's last known address and 
shall state the nature of the information disclosed; the person, 
organization, or agency to which it was disclosed; the date of 
disclosure; and the compelling circumstances justifying the disclosure.

[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 51401, Sept. 25, 
1998]



Sec. 16.51  Security of systems of records.

    (a) Each component shall establish administrative and physical 
controls to prevent unauthorized access to its systems of records, to 
prevent unauthorized disclosure of records, and to prevent physical 
damage to or destruction of records. The stringency of these controls 
shall correspond to the sensitivity of the records that the controls 
protect. At a minimum, each component's administrative and physical 
controls shall ensure that:
    (1) Records are protected from public view;
    (2) The area in which records are kept is supervised during business 
hours to prevent unauthorized persons from having access to them;
    (3) Records are inaccessible to unauthorized persons outside of 
business hours; and
    (4) Records are not disclosed to unauthorized persons or under 
unauthorized circumstances in either oral or written form.
    (b) Each component shall have procedures that restrict access to 
records to

[[Page 290]]

only those individuals within the Department who must have access to 
those records in order to perform their duties and that prevent 
inadvertent disclosure of records.

[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26, 
1998]



Sec. 16.52  Contracts for the operation of record systems.

    Any approved contract for the operation of a record system will 
contain the standard contract requirements issued by the General 
Services Administration to ensure compliance with the requirements of 
the Privacy Act for that record system. The contracting component will 
be responsible for ensuring that the contractor complies with these 
contract requirements.



Sec. 16.53  Use and collection of social security numbers.

    Each component shall ensure that employees authorized to collect 
information are aware:
    (a) That individuals may not be denied any right, benefit, or 
privilege as a result of refusing to provide their social security 
numbers, unless the collection is authorized either by a statute or by a 
regulation issued prior to 1975; and
    (b) That individuals requested to provide their social security 
numbers must be informed of:
    (1) Whether providing social security numbers is mandatory or 
voluntary;
    (2) Any statutory or regulatory authority that authorizes the 
collection of social security numbers; and
    (3) The uses that will be made of the numbers.



Sec. 16.54  Employee standards of conduct.

    Each component will inform its employees of the provisions of the 
Privacy Act, including the Act's civil liability and criminal penalty 
provisions. Unless otherwise permitted by law, an employee of the 
Department of Justice shall:
    (a) Collect from individuals only the information that is relevant 
and necessary to discharge the responsibilities of the Department;
    (b) Collect information about an individual directly from that 
individual whenever practicable;
    (c) Inform each individual from whom information is collected of:
    (1) The legal authority to collect the information and whether 
providing it is mandatory or voluntary;
    (2) The principal purpose for which the Department intends to use 
the information;
    (3) The routine uses the Department may make of the information; and
    (4) The effects on the individual, if any, of not providing the 
information;
    (d) Ensure that the component maintains no system of records without 
public notice and that it notifies appropriate Department officials of 
the existence or development of any system of records that is not the 
subject of a current or planned public notice;
    (e) Maintain all records that are used by the Department in making 
any determination about an individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to the individual in the determination;
    (f) Except as to disclosures made to an agency or made under the 
FOIA, make reasonable efforts, prior to disseminating any record about 
an individual, to ensure that the record is accurate, relevant, timely, 
and complete;
    (g) Maintain no record describing how an individual exercises his or 
her First Amendment rights, unless it is expressly authorized by statute 
or by the individual about whom the record is maintained, or is 
pertinent to and within the scope of an authorized law enforcement 
activity;
    (h) When required by the Act, maintain an accounting in the 
specified form of all disclosures of records by the Department to 
persons, organizations, or agencies;
    (i) Maintain and use records with care to prevent the unauthorized 
or inadvertent disclosure of a record to anyone; and
    (j) Notify the appropriate Department official of any record that 
contains information that the Privacy Act does not permit the Department 
to maintain.

[Order No. 2156-98, 63 FR 29600, June 1, 1998; 63 FR 34965, June 26, 
1998; 63 FR 51401, Sept. 25, 1998]

[[Page 291]]



Sec. 16.55  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 the Privacy Act.



      Subpart E_Exemption of Records Systems Under the Privacy Act

    Source: Order No. 645-76, 41 FR 12640, Mar. 26, 1976, unless 
otherwise noted.



Sec. 16.70  Exemption of the Office of the Attorney General System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4); (d); (e) (1), (2) and (3), (e)(4) (G) and (H), (e)(5); and 
(g):
    (1) General Files System of the Office of the Attorney General 
(JUSTICE/OAG-001).


These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), 
(k)(2), and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department of 
Justice as well as the recipient agency. This would permit record 
subjects to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid inquiries or apprehension 
by law enforcement personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in this system 
relate to official Federal investigations. Individual access to these 
records might compromise ongoing investigations, reveal confidential 
informants or constitute unwarranted invasions of the personal privacy 
of third parties who are involved in a certain investigation. Amendment 
of the records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede the specific investigative process if it were necessary to 
assure the relevance, accuracy, timeliness and completeness of all 
information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations of duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

[Order No. 31-85, 51 FR 751, Jan. 8, 1986]



Sec. 16.71  Exemption of the Office of the Deputy Attorney General
System--limited access.

    (a) The following systems of records and exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):
    (1) Presidential Appointee Candidate Records System (JUSTICE/DAG-
006).

[[Page 292]]

    (2) Presidential Appointee Records System (JUSTICE/DAG-007).
    (3) Special Candidates for Presidential Appointments Records System 
(JUSTICE/DAG-008).
    (4) Miscellaneous Attorney Personnel Records System (JUSTICE/DAG-
011).


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for a Presidential appointee or Department 
attorney position. Access could reveal the identity of the source of the 
information and constitute a breach of the promise of confidentiality on 
the part of the Department of Justice. Such breaches ultimately would 
restrict the free flow of information vital to a determination of a 
candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
in advance what exact information may be of assistance in determining 
the qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
for a position which assists in determining whether that candidate 
should be nominated for appointment.
    (c) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (2), (3) and (5); and (g):
    (1) Drug Enforcement Task Force Evaluation and Reporting System 
(JUSTICE/DAG-003).
    (2) General Files System of the Office of the Deputy Attorney 
General (JUSTICE/DAG-013).
    (d) In addition, the Drug Enforcement Task Force Evaluation and 
Reporting System is exempt from 5 U.S.C. 552a(e)(4)(G) and (H). The 
exemptions for the Drug Enforcement Task Force Evaluation and Reporting 
System apply only to the extent that information is subject to exemption 
pursuant to 5 U.S.C. 552a(j)(2) and (K)(2). The exemptions for the 
General Files System apply only to the extent that information is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) and 
(k)(5).
    (e) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
could reveal investigative interest on the part of the Department of 
Justice, as well as the recipient agency. This would permit record 
subjects to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid inquiries or apprehension 
by law enforcement personnel. Further, making available to a record 
subject the accounting of disclosures could reveal the identity of a 
confidential source. In addition, release of an accounting of 
disclosures from the General Files System may reveal information that is 
properly classified pursuant to Executive Order 12356, and thereby cause 
damage to the national security.
    (2) From subsection (c)(4) because these systems are exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in these 
systems relate to official Federal investigations. Individual access to 
these records could compromise ongoing investigations, reveal 
confidential informants and/or sensitive investigative techniques used 
in particular investigations, or constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation. In addition, release of records from the General Files 
System may reveal information that is properly classified pursuant to 
Executive Order 12356, and thereby cause damage to the national 
security. Amendment of the records in either of these systems would 
interfere with ongoing law enforcement proceedings and impose an 
impossible administrative burden by requiring law

[[Page 293]]

enforcement investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede any investigative process, whether civil or criminal, if it 
were necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and may therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because no access to these 
records is available under subsection (d) of the Privacy Act. (This 
exemption applies only to the Drug Enforcement Task Force Evaluation and 
Reporting System.)
    (8) From subsection (g) because these systems of records are exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

[Order No. 57-91, 56 FR 58305, Nov. 19, 1991]



Sec. 16.72  Exemption of Office of the Associate Attorney General
System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4); (d); (e)(1), (2), (3) and (5); and (g):
    (1) General Files System of the Office of the Associate Attorney 
General (JUSTICE/AAG-001).


These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2) 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
could reveal investigative interest on the part of the Department of 
Justice, as well as the recipient agency. This would permit record 
subjects to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid inquiries or apprehension 
by law enforcement personnel. Further, making available to a record 
subject the accounting of disclosures could reveal the identity of a 
confidential source. In addition, release of an accounting of 
disclosures may reveal information that is properly classified pursuant 
to Executive Order 12356, and thereby cause damage to the national 
security.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j)(2), 
(k)(1), (k)(2) and (k)(5) of the Privacy Act.
    (3) From subsection (d) because the records contained in this system 
relate to official Federal investigations. Individual access to these 
records could compromise ongoing investigations, reveal confidential 
informants and/or sensitive investigative techniques used in particular 
investigations, or constitute unwarranted invasions of the personal 
privacy of third parties who are involved in a certain investigation. In 
addition, release of these records may reveal information that is 
properly classified pursuant to Executive Order 12356, and thereby cause 
damage to the national security. Amendment of the records in this system 
would interfere with ongoing law enforcement proceedings and impose an 
impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced

[[Page 294]]

the accuracy of which is unclear or which is not strictly relevant or 
necessary to a specific investigation. In the interests of effective law 
enforcement, it is appropriate to retain all information that may aid in 
establishing patterns of criminal activity. Moreover, it would impede 
any investigative process, whether civil or criminal, if it were 
necessary to assure the relevance, accuracy, timeliness and completeness 
of all information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and may therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsection (g) because this system of records is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act.

[Order No. 57-91, 56 FR 58305, Nov. 19, 1991]



Sec. 16.73  Exemption of Office of Legal Policy System--limited access.

    (a) The following system of records is exempt from 5 U.S.C 552a 
(d)(1), (2), (3) and (4); (e)(1) and (2), (e)(4)(G) and (H), (e)(5); and 
(g):
    (1) Freedom of Information and Privacy Appeals Index (JUSTICE/OLP-
001).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(2) 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsections (d)(1), (2), (3), and (4) to the extent that 
information in this record system relates to official Federal 
investigations and matters of law enforcement. Individual access to 
these records might compromise ongoing investigations, reveal 
confidential informants or constitute unwarranted invasions of the 
personal privacy of third parties who are involved in a certain 
investigation. Amendment of the records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (2) From subsections (e)(1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede the specific investigative process if it were necessary to 
assure the relevance, accuracy, timeliness, and completeness of all 
information obtained.
    (3) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (4) From subsections (e)(4)(G) and (H) because this system is exempt 
from the access provisions of subsection (d) pursuant to subsections (j) 
and (k) of the Privacy Act.
    (5) From subsection (g) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):
    (1) U.S. Judges Records System (JUSTICE/OLP-002).


[[Page 295]]



These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contracted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for a judgeship. Access could reveal the identity 
of the source of the information and constitute a breach of the promised 
confidentiality on the part of the Department. Such breaches ultimately 
would restrict the free flow of information vital to the determination 
of a candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
advance what exact information may be of assistance in determining the 
qualifications and suitability of a candidate. Information which may 
seem irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
which assists in determining whether that candidate should be nominated 
for appointment.
    (e) The following system of records is exempt from U.S.C. 552a(c) 
(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H) (e)(5); and 
(g):
    (1) General Files System of the Office of Legal Policy (JUSTICE/OLP-
003).


These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), 
and (k)(5).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department as 
well as the recipient agency. This would permit record subjects to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid inquiries or apprehension by law 
enforcement personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) because the records contained in this system 
relate to official Federal investigations. Individual access to these 
records might compromise ongoing investigations, reveal confidential 
informants, or constitute unwarranted invasions of the personal privacy 
of third parties who are involved in a certain investigation. Amendment 
of records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
since it may aid in establishing patterns of criminal activity. 
Moreover, it would impede the specific investigation process if it were 
necessary to assure the relevance, accuracy, timeliness and completeness 
of all information obtained.
    (5) From subsections (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations and duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because this system is 
exempt from the access provisions of subsection (d)

[[Page 296]]

pursuant to subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5); and 
(g):
    (1) Declassification Review System (JUSTICE/OLP-004).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552(j)(2), (k)(1), 
(k)(2), and (k)(5).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department of 
Justice as well as the recipient agency. This would permit record 
subjects to impede the investigation e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid inquiries or apprehension 
by law enforcement personnel.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From subsection (d) to the extent that information in this 
record system relates to official Federal investigations and matters of 
law enforcement and/or is properly classified pursuant to E.O. 12356. 
Individual access to these records might compromise ongoing 
investigations, reveal confidential sources or constitute unwarranted 
invasions of the personal privacy of third parties who are involved in a 
certain investigation, or jeopardize national security or foreign policy 
interests. Amendment of the records would interfere with ongoing 
criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
which may aid in establishing patterns of criminal activity. Moreover, 
it would impede the specific investigative process if it were necessary 
to assure the relevance, accuracy, timeliness, and completeness of all 
information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and would therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H), and (g) because this system 
is exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

[Order No. 34-85, 51 FR 754, Jan. 8, 1986. Redesignated by Order No. 6-
86, 51 FR 15476, Apr. 24, 1986 and further redesignated and amended by 
Order No. 19-86, 51 FR 39373, Oct. 28, 1986]



Sec. 16.74  Exemption of National Security Division Systems--limited access.

    (a) The following system of records is exempted from subsections 
(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G),(H) and (I), (5) and (8); 
(f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), (2) and (5): Foreign Intelligence and Counterintelligence 
Records System (JUSTICE/NSD-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), (2), and (5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:

[[Page 297]]

    (1) Subsection (c)(3). To provide the target of a surveillance or 
collection activity with the disclosure accounting records concerning 
him or her would hinder authorized United States intelligence activities 
by informing that individual of the existence, nature, or scope of 
information that is properly classified pursuant to Executive Order 
12958, as amended, and thereby cause damage to the national security.
    (2) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Disclosure of foreign intelligence and 
counterintelligence information would interfere with collection 
activities, reveal the identity of confidential sources, and cause 
damage to the national security of the United States. To ensure 
unhampered and effective collection and analysis of foreign intelligence 
and counterintelligence information, disclosure must be precluded.
    (4) Subsection (d)(2). Amendment of the records would interfere with 
ongoing intelligence activities thereby causing damage to the national 
security.
    (5) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (6) Subsection (e)(1). It is often impossible to determine in 
advance if intelligence records contained in this system are relevant 
and necessary, but, in the interests of national security, it is 
necessary to retain this information to aid in establishing patterns of 
activity and provide intelligence leads.
    (7) Subsection (e)(2). Although this office does not conduct 
investigations, the collection efforts of agencies that supply 
information to this office would be thwarted if the agencies were 
required to collect information with the subject's knowledge.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of collection activity and 
compromise national security. For example, a target could, once made 
aware that collection activity exists, alter his or her manner of 
engaging in intelligence or terrorist activities in order to avoid 
detection.
    (9) Subsections (e)(4)(G), (H) and (I), and (f). These subsections 
are inapplicable to the extent that this system is exempt from the 
access provisions of subsection (d).
    (10) Subsection (e)(5). It is often impossible to determine in 
advance if intelligence records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of national 
security, it is necessary to retain this information to aid in 
establishing patterns of activity and providing intelligence leads.
    (11) Subsection (e)(8). Serving notice could give persons sufficient 
warning to evade intelligence collection and anti-terrorism efforts.
    (12) Subsections (g) and (h). These subsections are inapplicable to 
the extent that this system is exempt from other specific subsections of 
the Privacy Act.

[Order No. 023-2007, 72 FR 44382, Aug. 8, 2007]



Sec. 16.75  Exemption of the Office of the Inspector General 
Systems/Limited Access.

    (a) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e)(1), (2), (3), (5), and (8), and (g) of 5 U.S.C. 552a. In addition, 
the following system of records is exempted pursuant to the provisions 
of 5 U.S.C. 552a(k)(1) and (k)(2) from subsections (c)(3), (d), and 
(e)(1) of 5 U.S.C. 552a:
    (1) Office of the Inspector General Investigative Records (JUSTICE/
OIG-001).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) 
and (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the Office of 
the Inspector General (OIG).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:

[[Page 298]]

    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIG, but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the investigation, release could result in the 
destruction of documentary evidence, improper influencing of witnesses, 
endangerment of the physical safety of confidential sources, witnesses, 
and law enforcement personnel, the fabrication of testimony, flight of 
the subject from the area, and other activities that could impede or 
compromise the investigation. In addition, accounting for each 
disclosure could result in the release of properly classified 
information which would compromise the national defense or disrupt 
foreign policy.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation, of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel, and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation, endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which would compromise the 
national defense or disrupt foreign policy. Amendment of the records 
would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the OIG for the following reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations in 
which use is made of properly classified information. Relevance and 
necessity are questions of judgment and timing, and it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established.
    (ii) During the course of any investigation, the OIG may obtain 
information concerning actual or potential violations of laws other than 
those within the scope of its jurisdiction. In the interest of effective 
law enforcement, the OIG should retain this information, as it may aid 
in establishing patterns of criminal activity, and can provide valuable 
leads for Federal and other law enforcement agencies.
    (iii) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information may be supplied to an 
investigator which relates to matters incidental to the primary purpose 
of the investigation but which may relate also to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:

[[Page 299]]

    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts, violations of rules of conduct, or 
any other misconduct must be obtained from other sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful litigation.
    (6) From subsection (e)(3) because the application of this provision 
would provide the subject of an investigation with substantial 
information which could impede or compromise the investigation. 
Providing such notice to a subject of an investigation could interfere 
with an undercover investigation by revealing its existence, and could 
endanger the physical safety of confidential sources, witnesses, and 
investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In the 
collection of information for law enforcement purposes, it is impossible 
to determine in advance what information is accurate, relevant, timely, 
and complete. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
an investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, and 
thereby impede effective law enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2) and (k)(1) and (k)(2) of the Privacy Act.
    (c) The following system of records is exempted from 5 U.S.C. 
552a(d).
    (1) Office of the Inspector General, Freedom of Information/Privacy 
Acts (FOI/PA) Records (JUSTICE/OIG-003).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), 
and (k)(2). To the extent that information in a record pertaining to an 
individual does not relate to official Federal investigations and law 
enforcement matters, the exemption does not apply. In addition, where 
compliance would not appear to interfere with or adversely affect the 
overall law enforcement process, the applicable exemption may be waived 
by the Office of the Inspector General (OIG).
    (d) Exemption from subsection (d) is justified for the following 
reasons:
    (1) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel; and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation, endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of

[[Page 300]]

properly classified information which would compromise the national 
defense or disrupt foreign policy. Amendment of the records would 
interfere with ongoing investigations and law enforcement activities and 
impose an impossible administrative burden by requiring investigations 
to be continuously reinvestigated.
    (2) [Reserved]

[Order No. 63-92, 57 FR 8263, Mar. 9, 1992, as amended by Order No. 64-
92, 57 FR 8263, Mar. 9, 1992]



Sec. 16.76  Exemption of Justice Management Division.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):
    (1) Controlled Substances Act Nonpublic Records (JUSTICE/JMD-002).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemption from subsection (d) is justified for the following 
reasons:
    (1) Access to and use of the nonpublic records maintained in this 
system are restricted by law. Section 3607(b) of Title 18 U.S.C. 
(enacted as part of the Sentencing Reform Act of 1984, Pub. L. 98-473, 
Chapter II) provides that the sole purpose of these records shall be for 
use by the courts in determining whether a person found guilty of 
violating section 404 of the Controlled Substances Act qualifies:
    (i) For the disposition available under 18 U.S.C. 3607(a) to persons 
with no prior conviction under a Federal or State law relating to 
controlled substances, or
    (ii) For an order, under 18 U.S.C. 3607(c), expunging all official 
records (except the nonpublic records to be retained by the Department 
of Justice) of the arrest and any subsequent criminal proceedings 
relating to the offense.
    (2) Information in this system consists of arrest records, including 
those of co-defendants. The records include reports of informants and 
investigations. Therefore, access could disclose investigative 
techniques, reveal the identity of confidential sources, and invade the 
privacy of third parties.
    (c) The following system of records is exempted from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), 
and (8); and (g): Federal Bureau of Investigation Whistleblower Case 
Files (Justice/JMD-023). These exemptions apply only to the extent that 
information in a record contained within this system is subject to 
exemptions pursuant to 5 U.S.C. 552a(j)(2) and (k).
    (d) Exemption from the particular subsections is justified for the 
following reasons:
    (1) Subsection (c)(3). To provide the subject with an accounting of 
disclosures of records in this system could inform that individual of 
the existence, nature, or scope of an actual or potential law 
enforcement or counterintelligence investigation, and thereby seriously 
impede law enforcement or counterintelligence efforts by permitting the 
record subject and other persons to whom he might disclose the records 
to avoid criminal penalties, civil remedies, or counterintelligence 
measures.
    (2) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Information within this record system could 
relate to official federal investigations and matters of law 
enforcement. Individual access to these records could compromise ongoing 
investigations, reveal confidential informants and/or sensitive 
investigative techniques used in particular investigations, or 
constitute unwarranted invasions of the personal privacy of third 
parties who are involved in a certain investigation. Disclosure may also 
reveal information relating to actual or potential law enforcement 
investigations. Disclosure of classified national security information 
would cause damage to the national security of the United States.
    (4) Subsection (d)(2). Amendment of these records could interfere 
with ongoing criminal or civil law enforcement proceedings and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (5) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (6) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory information contained in this

[[Page 301]]

system is accurate, relevant, timely and complete, but, in the interests 
of effective law enforcement and counterintelligence, it is necessary to 
retain this information to aid in establishing patterns of activity and 
provide investigative leads.
    (7) Subsection (e)(2). To collect information from the subject 
individual could serve to notify the subject individual that he or she 
is the subject of a criminal investigation and thereby present a serious 
impediment to such investigations.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts.
    (9) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory information contained in this system is 
accurate, relevant, timely and complete, but, in the interests of 
effective law enforcement and counterintelligence, it is necessary to 
retain this information to aid in establishing patterns of activity and 
provide investigative leads.
    (10) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts.
    (11) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
688-77, 42 FR 9999, Feb. 18, 1977; Order No. 899-80, 45 FR 43703, June 
30, 1980; Order No. 6-86, 51 FR 15476, Apr. 24, 1986; Order No. 246-
2001, 66 FR 54663, Oct. 30, 2001; Order No. 297-2002, 67 FR 70163, Nov. 
21, 2002; Order No. 019-2005, 71 FR 17, Jan. 3, 2006]



Sec. 16.77  Exemption of U.S. Trustee Program System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4); (d); (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8); (f) and (g):
    (1) U.S. Trustee Program Case Referral System, JUSTICE/UST-004.


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the nature of that investigation. This 
would permit record subjects to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid 
inquiries or apprehension by law enforcement personnel.
    (2) From subsection (c)(4) since an exemption being claimed for 
subsection (d) makes this subsection inapplicable.
    (3) From subsection (d) because access to the records contained in 
this system might compromise ongoing investigations, reveal confidential 
informants, or constitute unwarranted invasions of the personal privacy 
of third parties who are involved in a certain investigation. Amendment 
of the records would interfere with ongoing criminal law enforcement 
proceedings and impose an impossible administrative burden by requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations, information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interest of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede the specific investigative process if it were necessary to 
assure the relevance, accuracy, timeliness, and completeness of all 
information obtained.
    (5) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement because the subject of the investigation would be 
placed on notice as to the existence of the investigation and would 
therefore be able to avoid detection or apprehension, to influence 
witnesses

[[Page 302]]

improperly, to destroy evidence, or to fabricate testimony.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it would compromise the existence of a confidential 
investigation or reveal the identity of witnesses or confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the access provisions of subsection (d) pursuant 
to subsections (j) and (k).
    (8) From subsection (e)(8) because the individual notice requirement 
of this subsection could present a serious impediment to law enforcement 
in that this could interfere with the U.S. Attorney's ability to issue 
subpoenas.
    (9) From subsections (f) and (g) because this system has been 
exempted from the access provisions of subsection (d).

[Order No. 1-87, 52 FR 3631, Feb. 5, 1987]



Sec. 16.78  Exemption of the Special Counsel for Immigration-Related,
Unfair Employment Practices Systems.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (d).
    (1) Central Index File and Associated Records, JUSTICE/OSC-001.


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the nature of that investigation. This 
would permit record subjects to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid 
inquiries.
    (2) From subsection (d) because access to the records might 
compromise ongoing investigations, reveal confidential informants, or 
constitute unwarranted invasions of the personal privacy of third 
parties who are involved in a certain investigation.

[Order No. 10-88, 53 FR 7735, Mar. 10, 1988]



Sec. 16.79  Exemption of Pardon Attorney System.

    (a) The following system of records is exempt from 5 U.S.C. 552a, 
subsections (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(5): 
Executive Clemency Case Files/Executive Clemency Tracking System 
(JUSTICE/OPA-001). These exemptions apply only to the extent that 
information in this system of records is subject to exemption pursuant 
to 5 U.S.C. 552a(j)(2).
    (b) Exemption from the particular subsections is justified for the 
following reasons:
    (1) From subsection (c)(3) because:
    (i) The purpose of the creation and maintenance of the Executive 
Clemency Case Files/Executive Clemency Tracking System (JUSTICE/OPA-001) 
is to enable the Justice Department to prepare reports and 
recommendations to the President for his ultimate decisions on clemency 
matters, which are committed to exclusive discretion of the President 
pursuant to Article II, Section 2, Clause 1 of the Constitution.
    (ii) Release of the disclosure accounting, for disclosures pursuant 
to the routine uses published for this system, would permit the 
requester to obtain valuable information concerning the nature and scope 
of a clemency investigation, invade the right of candid and confidential 
communications among officials concerned with making recommendations to 
the President in clemency matters, and disclose the identity of persons 
who furnished information to the Government under an express or implied 
promise that their identities would be held in confidence.
    (2) From subsection (c)(4) because the exemption from subsections 
(d)(1), (d)(2), (d)(3), and (d)(4) will make notification of disputes 
inapplicable.
    (3) From subsections (d)(1), (d)(2), (d)(3), and (d)(4) is justified 
for the reasons stated in paragraph (b)(1) of this section.
    (4) From subsection (e)(5) is justified for the reasons stated in 
paragraph (b)(1) of this section.

[Order No. 005-2003, 68 FR 4929, Jan. 31, 2003]

[[Page 303]]



Sec. 16.80  Exemption of Office of Professional Responsibility
System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5) 
and (8), (f) and (g):
    (1) Office of Professional Responsibility Record Index (JUSTICE/OPR-
001).


These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would enable the subject of an investigation to gain 
information concerning the existence, nature and scope of the 
investigation and seriously hamper law enforcement efforts.
    (2) From subsections (c)(4), (d), (e)(4)(G) and (H), (f) and (g) 
because these provisions concern individual access to records and such 
access might compromise ongoing investigations, reveal confidential 
informants and constitute unwarranted invasions of the personal privacy 
of third persons who provide information in connection with a particular 
investigation.
    (3) From subsections (e)(1) and (5) because the collection of 
information during an investigation necessarily involves material 
pertaining to other persons or events which is appropriate in a thorough 
investigation, even though portions thereof are not ultimately connected 
to the person or event subject to the final action or recommendation of 
the Office of Professional Responsibility.
    (4) From subsection (e)(2) because collecting the information from 
the subject would thwart the investigation by placing the subject on 
notice of the investigation.
    (5) From subsections (e)(3) and (e)(8) because disclosure and notice 
would provide the subject with substantial information which could 
impede or compromise the investigation. For example, an investigatory 
subject occupying a supervisory position could, once made aware that a 
misconduct investigation was ongoing, put undue pressure on subordinates 
so as to preclude their cooperation with investigators.
    (c) The following system of records is exempted from 5 U.S.C. 
552a(d).
    (1) Freedom of Information/Privacy Act (FOI/PA) Records (JUSTICE/
OPR-002).
    This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), 
and (k)(2). To the extent that information in a record pertaining to an 
individual does not relate to national defense or foreign policy, 
official Federal investigations and/or law enforcement matters, the 
exemption does not apply. In addition, where compliance would not appear 
to interfere with or adversely affect the overall law enforcement 
process, the applicable exemption may be waived by OPR.
    (d) Exemption from subsection (d) is justified for the following 
reasons:
    (1) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel; and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation, endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which would compromise the 
national defense or disrupt foreign policy. Amendment

[[Page 304]]

of the records would interfere with ongoing investigations and law 
enforcement activities and impose an enormous administrative burden by 
requiring investigations to be continuously reinvestigated.

[Order No. 58-81, 46 FR 3509, Jan. 15, 1981, as amended by Order No. 
159-99, 64 FR 17977, Apr. 13, 1999]



Sec. 16.81  Exemption of United States Attorneys Systems--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c) (3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) 
(5) and (8), (f), and (g):
    (1) Citizen Complaint Files (JUSTICE/USA-003).
    (2) Civil Case Files (JUSTICE/USA-005).
    (3) Consumer Complaints (JUSTICE/USA-006).
    (4) Criminal Case Files (JUSTICE/USA-007).
    (5) Kline-District of Columbia and Maryland-Stock and Land Fraud 
Interrelationship Filing System (JUSTICE/USA-009).
    (6) Major Crimes Division Investigative Files (JUSTICE/USA-010).
    (7) Prosecutor's Management Information System (PROMIS) (JUSTICE/
USA-011).
    (8) United States Attorney, District of Columbia Superior Court 
Division, Criminal Files (JUSTICE/USA-013).
    (9) Pre-trial Diversion Program Files (JUSTICE/USA-014).


These exemptions apply to the extent that information in these systems 
is subject to exemption pursuant to U.S.C. 552a(j)(2), (k)(1) and 
(k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting, for disclosures pursuant to the routine uses published for 
these systems, would permit the subject of a criminal investigation and/
or civil case or matter under investigation, litigation, regulatory or 
administrative review or action, to obtain valuable information 
concerning the nature of that investigation, case or matter and present 
a serious impediment to law enforcement or civil legal activities.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
these systems would inform the subject of criminal investigation and/or 
civil investigation, matter or case of the existence of that 
investigation, provide the subject of the investigation with information 
that might enable him to avoid detection, apprehension or legal 
obligations, and present a serious impediment to law enforcement and 
other civil remedies.
    (4) From subsection (e)(1) because in the course of criminal 
investigations and/or civil investigations, cases or matters, the U.S. 
Attorneys often obtain information concerning the violation of laws or 
civil obligations other than those relating to an active case or matter. 
In the interests of effective law enforcement and civil litigation, it 
is necessary that the U.S. Attorneys retain this information since it 
can aid in establishing patterns of activity and provide valuable leads 
for other agencies and future cases that may be brought within the U.S. 
Attorneys' offices.
    (5) From subsection (e)(2) because in a criminal investigation the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection, apprehension or legal obligations 
and duties.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these systems of 
records

[[Page 305]]

are exempt from individual access pursuant to subsections (j) and (k) of 
the Privacy Act of 1974.
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the United States 
Attorneys' ability to issue subpoenas and could reveal investigative 
techniques and procedures.
    (10) From subsection (f) because these systems of records have been 
exempted from the access provisions of subsection (d).
    (11) From subsection (g) because these systems of records are 
compiled for law enforcement purposes and have been exempted from the 
access provisions of subsections (d) and (f).
    (c) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), and (g):
    (1) Freedom of Information Act/Privacy Act Files (JUSTICE/USA-008)


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).
    (d) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of a criminal investigation and/or 
civil case or matter under investigation, in litigation, or under 
regulatory or administrative review or action to obtain valuable 
information concerning the nature of that investigation, case or matter, 
and present a serious impediment to law enforcement or civil legal 
activities.
    (2) From subsection (c)(4) because an exemption is being claimed for 
subsection (d) of the Act (Access to Records), rendering this subsection 
inapplicable to the extent that this system of records is exempted from 
subsection (d).
    (3) From subsection (d) because access to the records contained in 
these systems would inform the subject of a criminal or civil 
investigation, matter or case of the existence of such, and provide the 
subject with information that might enable him to avoid detection, 
apprehension or legal obligations, and present a serious impediment to 
law enforcement and other civil remedies. Amendment of the records would 
interfere with ongoing criminal law enforcement proceedings and impose 
an impossible administrative burden by requiring criminal investigations 
to be continuously reinvestigated.
    (4) From subsection (e)(1) because in the course of criminal 
investigations and/or civil investigations, cases or matters, the U.S. 
Attorneys often obtain information concerning the violation of laws or 
civil obligations other than those relating to an active case or matter. 
In the interests of effective law enforcement and civil litigation, it 
is necessary that the U.S. Attorneys retain this information since it 
can aid in establishing patterns of activity and provide valuable leads 
for other agencies and future cases that may be brought within the U.S. 
Attorneys' offices.
    (5) From subsection (e)(2) because to collect information to the 
greatest extent possible from the subject individual of a criminal 
investigation or prosecution would present a serious impediment to law 
enforcement in that the subject of the investigation would be placed on 
notice of the existence of the investigation and would therefore be able 
to avoid detection, apprehension, or legal obligations and duties.

[[Page 306]]

    (6) From subsection (e)(3) because to provide individuals supplying 
information with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential investigation, reveal 
the identity of confidential sources of information, and endanger the 
life and physical safety of confidential informants.
    (7) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the individual access provisions of subsection 
(d) and the rules provisions of subsection (f).
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would inhibit the 
ability of trained investigator and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the U.S. Attorneys' ability 
to issue subpoenas and could reveal investigative techniques and 
procedures.
    (10) From subsection (f) because this system has been exempted from 
the individual access provisions of subsection (d).
    (11) From subsection (g) because the records in this system are 
generally compiled for law enforcement purposes and are exempt from the 
access provisions of subsections (d) and (f), rendering subsection (g) 
inapplicable.
    (e) The following systems of records are exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):
    (1) Assistant U.S. Attorneys Applicant Records System (JUSTICE/USA-
016).
    (2) Appointed Assistant U.S. Attorneys Personnel System (JUSTICE/
USA-017).


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for an Assistant U.S. Attorney position. Access 
could reveal the identity of the source of the information and 
constitute a breach of the promise of confidentiality on the part of the 
Department of Justice. Such breaches ultimately would restrict the free 
flow of information vital to a determination of a candidate's 
qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
in advance what exact information may be of assistance in determining 
the qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
for a position which assists in determining whether that candidate 
should be nominated for appointment.
    (g) The Giglio Impeachment Files (JUSTICE/USA-018) system of records 
is exempt from 5 U.S.C. 552a subsections (c)(4), (e)(2), (e)(5), and (g) 
of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), and exempt from 
subsections (c)(3), (d), (e)(1), (e)(4)(G) and (H), and (f), pursuant to 
5 U.S.C. 552a(j)(2) and (k)(2). These exemptions apply to the extent 
that information in this system is subject to exemption pursuant to 5 
U.S.C. 552a(j)(2) and (k)(2).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3); because an exemption is being claimed 
for subsection (d), this subsection will not be applicable.

[[Page 307]]

    (2) From subsection (c)(4); because an exemption is being claimed 
for subsection (d), this subsection will not be applicable.
    (3) From subsection (d); because access to the records contained in 
these systems is not necessary or may impede an ongoing investigation. 
Most information in the records is derivative from the subject's 
employing agency files, and individual access will be through the 
employing agency's files. Additionally, other information in the records 
may be related to allegations against an agent or witness that are 
currently being investigated. Providing access to this information would 
impede the ongoing investigation.
    (4) From subsection (e)(1); because in the interest of effective law 
enforcement and criminal prosecution, Giglio records will be retained 
because they could later be relevant in a different case; however, this 
relevance cannot be determined in advance.
    (5) From subsection (e)(2); because the nature of the records in 
this system, which are used to impeach or demonstrate bias of a witness, 
requires that the information be collected from others.
    (6) From subsections (e)(4)(G) and (H); because this system of 
records is exempt from individual access pursuant to subsections (j) and 
(k) of the Privacy Act of 1974.
    (7) From subsection (e)(5); because the information in these records 
is not being used to make a determination about the subject of the 
records. According to constitutional principles of fairness articulated 
by the Supreme Court in United States v. Giglio, the records are 
required to be disclosed to criminal defendants to ensure fairness of 
criminal proceedings.
    (8) From subsection (f); because records in this system have been 
exempted from the access provisions of subsection (d).
    (9) From subsection (g); because records in this system are compiled 
for law enforcement purposes and have been exempted from the access 
provisions of subsections (d) and (f).
    (i) Consistent with the legislative purpose of the Privacy Act of 
1974, the Executive Office for United States Attorneys will grant access 
to nonexempt material in records which are maintained by the U.S. 
Attorneys. Disclosure will be governed by the Department's Privacy 
regulations, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal, civil or regulatory 
violation will not be alerted to the investigation; the physical safety 
of witnesses, informants and law enforcement personnel will not be 
endangered, the privacy of third parties will not be violated; and that 
the disclosure would not otherwise impede effective law enforcement. 
Whenever possible, information of the above nature will be deleted from 
the requested documents and the balance made available. The controlling 
principle behind this limited access is to allow disclosures except 
those indicated above. The decisions to release information from these 
systems will be made on a case-by-case basis.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
716-77, 42 FR 23506, May 9, 1977; Order No. 738-77, 42 FR 38177, July 
27, 1977; Order No. 6-86, 51 FR 15476, Apr. 24, 1986; Order No. 57-91, 
56 FR 58306, Nov. 19, 1991; Order No. 224-2001, 66 FR 17809, Apr. 4, 
2001]



Sec. 16.82  Exemption of the National Drug Intelligence Center Data
Base--limited access.

    (a) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4); (d); 
(e) (1), (2), and (3); (e)(4)(I); (e) (5) and (8); and (g) of 5 U.S.C. 
552a. In addition, the following system of records is exempted pursuant 
to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections 
(c)(3), (d), and (e)(1) and (e)(4)(I) of 5 U.S.C. 552a:
    (1) National Drug Intelligence Center Data Base (JUSTICE/NDIC-001).
    (2) [Reserved]
    (b) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public

[[Page 308]]

source materials, the applicable exemption may be waived, either 
partially or totally, by the National Drug Intelligence Center (NDIC). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the same reasons that the system is 
exempted from the provisions of subsection (d).
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsection (j)(2) of the 
Privacy Act.
    (3) From subsection (d) because disclosure to the subject could 
alert the subject of an investigation pertaining to narcotic trafficking 
or related activity of the fact and nature of the investigation, and/or 
of the investigative interest of NDIC and other intelligence or law 
enforcement agencies (including those responsible for civil proceedings 
related to laws against drug trafficking); lead to the destruction of 
evidence, improper influencing of witnesses, fabrication of testimony, 
and/or flight of the subject; reveal the details of a sensitive 
investigative or intelligence technique, or the identity of a 
confidential source; or otherwise impede, compromise, or interfere with 
investigative efforts and other related law enforcement and/or 
intelligence activities. In addition, disclosure could invade the 
privacy of third parties and/or endanger the life and safety of law 
enforcement personnel, confidential informants, witnesses, and potential 
crime victims. Finally, access to records could result in the release of 
properly classified information that could compromise the national 
defense or foreign policy. Amendment of the records would interfere with 
ongoing investigations and law enforcement activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (4) From subsection (e)(1) because, in the course of its 
acquisition, collation, and analysis of information, NDIC will need to 
retain information not immediately shown to be relevant to counterdrug 
law enforcement to establish patterns of activity and to assist other 
agencies charged with the enforcement of laws and regulations regarding 
drug trafficking and charged with the acquisition of intelligence 
related to international aspects of drug trafficking. This consideration 
applies equally to information acquired from, or collated or analyzed 
for, both law enforcement agencies and agencies of the U.S. foreign 
intelligence community.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to law enforcement in that it would 
put the subject of an investigation, study or analysis on notice of the 
fact of such investigation, study, or analysis, thereby permitting the 
subject to engage in conduct intended to frustrate the activity; 
because, in some circumstances, the subject of an investigation may not 
be required to provide to investigators certain information; and because 
thorough analysis and investigation may require seeking information from 
a number of different sources.
    (6) From subsection (e)(3) (to the extent applicable) because the 
requirement that individuals supplying information be provided a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation and reveal the identity of confidential 
informants and endanger their lives and safety.
    (7) From subsection (e)(4)(I), to the extent that this subsection is 
interpreted to require more detail regarding the record sources in this 
system than have been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is necessary 
to protect the confidentiality of the sources of criminal and other law 
enforcement information and to protect the privacy and physical safety 
of witnesses and informants. Furthermore, greater specificity concerning 
the sources of properly classified records could compromise national 
defense or foreign policy.
    (8) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for law enforcement purposes does not permit 
advance determination whether such information is

[[Page 309]]

accurate or relevant, nor can such information be limited to that which 
is complete or apparently timely. Information of this type often 
requires further analysis and investigation to develop into a 
comprehensive whole that which is otherwise incomplete or even 
fragmentary. Moreover, its accuracy is continually subject to analysis 
and review, and, upon careful examination, seemingly irrelevant or 
untimely information may acquire added significance as additional 
information brings new details to light. The restrictions imposed by 
subsection (e)(5) would restrict the ability of trained investigators 
and intelligence analysts to exercise their judgment in collating and 
analyzing information and would impede the development of criminal 
intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement by revealing investigative techniques, procedures, or 
evidence.
    (10) From subsection (g) to the extent that the system is exempt 
from subsection (d).

[Order No. 78-93, 58 FR 41038, Aug. 2, 1993]



Sec. 16.83  Exemption of the Executive Office for Immigration Review 
System--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):
    (1) The Executive Office for Immigration Review's Records and 
Management Information System (JUSTICE/EOIR-001).


This exemption applies only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(k) (1) and (2).
    (b) Exemption from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d) because access to information which has been 
properly classified pursuant to an Executive Order could have an adverse 
effect on the national security. In addition, from subsection (d) 
because unauthorized access to certain investigatory material could 
compromise ongoing or potential investigations; reveal the identity of 
confidential informants; or constitute unwarranted invasions of the 
personal privacy of third parties.
    (2) From subsection (d) (2), (3), and (4) because the record of 
proceeding constitutes an official record which includes transcripts of 
quasi-judicial administrative proceedings, investigatory materials, 
evidentiary materials such as exhibits, decisional memoranda, and other 
case-related papers. Administrative due process could not be achieved by 
the ex parte ``correction'' of such materials by the individual who is 
the subject thereof.
    (c) The following system of records is exempted form 5 U.S.C. 
552a(d).
    (1) Practitioner Compliant/Disciplinary Files (JUSTICE/EOIR 003). 
This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), 
and (k)(2). To the extent that information in a record pertaining to an 
individual does not relate to national defense or foreign policy, 
official Federal investigations and/or law enforcement matters, the 
exemption does not apply. In addition, where compliance would not appear 
to interfere with or adversely affect the overall law or regulatory 
enforcement process, the applicable exemption may be waived by the 
Executive Office for Immigration Review.
    (d) Exemption from subsection (d) is justified for the following 
reasons:
    (1) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of the investigation of an actual or potential 
criminal, civil, or regulatory violation or the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to the subject's activities; of the identity of confidential 
sources, witnesses, and law enforcement personnel; and of information 
that may enable the subject to avoid detection or apprehension. These 
factors would present a serious impediment to effective law and 
regulatory 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

[[Page 310]]

of witnesses, the destruction of evidence, or the fabrication of 
testimony. In addition, granting access to such information could 
disclose security-sensitive or confidential business information or 
information that would constitute an unwarranted invasion of the 
personal privacy of third parties. Finally, access to the records could 
result in the release of properly classified information which would 
compromise the national defense or disrupt foreign policy. Amendment of 
the records would interfere with ongoing investigations and law 
enforcement activities and impose an enormous administrative burden by 
requiring investigations to be continuously reinvestigated.

[Order No. 18-86, 51 FR 32305, Sept. 11, 1986, as amended by Order No. 
180-99, 64 FR 61787, Nov. 15, 1999]



Sec. 16.84  Exemption of Immigration Appeals System.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d) 
(2), (3) and (4):
    (1) Decisions of the Board of Immigration Appeals (JUSTICE/BIA-001).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsections (d) (2), (3) and (4) because the decisions 
reflected constitute official records of opinions rendered in quasi-
judicial proceedings. Administrative due process could not be achieved 
by the ex parte ``correction'' of such opinions by the subject of the 
opinion.



Sec. 16.85  Exemption of U.S. Parole Commission--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 552a 
(c) (3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f) 
and (g):
    (1) Docket Scheduling and Control System (JUSTICE/PRC-001).
    (2) Inmate and Supervision Files System (JUSTICE/PRC-003).
    (3) Labor and Pension Case, Legal File, and General Correspondence 
System (JUSTICE/PRC-004).
    (4) Statistical, Educational and Developmental System (JUSTICE/PRC-
006).
    (5) Workload Record, Decision Result, and Annual Report System 
(JUSTICE/PRC-007).


These exemptions apply only to the extent that information in these 
systems is subject to exemptions pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because revealing disclosure of 
accountings to inmates and persons on supervision could compromise 
legitimate law enforcement activities and U.S. Parole Commission 
responsibilities.
    (2) From subsection (c)(4) because the exemption from subsection (d) 
will make notification of disputes inapplicable.
    (3) From subsection (d) because this is essential to protect 
internal processes by which Commission personnel are able to formulate 
decisions and policies with regard to federal prisoners and persons 
under supervision, to prevent disclosures of information to federal 
inmates or persons on supervision that would jeopardize legitimate 
correctional interests of security, custody, supervision, or 
rehabilitation, to permit receipt of relevant information from other 
federal agencies, state and local law enforcement agencies, and federal 
and state probation and judicial offices, to allow private citizens to 
express freely their opinions for or against parole, to allow relevant 
criminal history type information of co-defendants to be kept in files, 
to allow medical, psychiatric and sociological material to be available 
to professional staff, and to allow a candid process of fact selection, 
opinion formulation, evaluation and recommendation to be continued by 
professional staff. The legal files contain case development material 
and, in addition to other reasons, should be exempt under the attorney-
client privilege. Each labor or pension applicant has had served upon 
him the material in his file which he did not prepare and may see his 
own file at any time.

[[Page 311]]

    (4) From subsection (e)(2) because primary collection of information 
directly from federal inmates or persons on supervision about criminal 
sentence, criminal records, institutional performance, readiness for 
release from custody, or need to be returned to custody is highly 
impractical and inappropriate.
    (5) From subsection (e)(3) because application of this provision to 
the operations and collection of information by the Commission which is 
primarily from sources other than the individual, is inappropriate.
    (6) From subsections (e)(4) (G) and (H) because exemption from the 
access provisions of (d) makes publication of agency procedures under 
(d) inapplicable.
    (7) From subsection (e)(8) because the nature of the Commission's 
activities renders notice of compliance with compulsory legal process 
impractical.
    (8) From subsection (f) because exemption from the provisions of 
subsection (d) will render compliance with provisions of this subsection 
inapplicable.
    (9) From subsection (g) because exemption from the provisions of 
subsection (d) will render the provisions on suits to enforce (d) 
inapplicable.
    (c) Consistent with the legislative purpose of the Privacy Act of 
1974 the U.S. Parole Commission will initiate a procedure whereby 
present and former prisoners and parolees may obtain copies of material 
in files relating to them that are maintained by the U.S. Parole 
Commission. Disclosure of the contents will be affected by providing 
copies of documents to requesters through the mails. Disclosure will be 
made to the same extent as would be made under the substantive 
exemptions of the Parole Commission and Reorganization Act of 1976 (18 
U.S.C. 4208) and Rule 32 of the Federal Rules of Criminal Procedure. The 
procedure relating to disclosure of documents may be changed generally 
in the interest of improving the Commission's system of disclosure or 
when required by pending or future decisions and directions of the 
Department of Justice.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
14-78, 43 FR 45993, Oct. 5, 1978; Order No. 899-80, 45 FR 43703, June 
30, 1980; Order No. 6-86, 51 FR 15477, Apr. 24, 1986]



Sec. 16.88  Exemption of Antitrust Division Systems--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(4) (G) and (H), and (f):
    (1) Antitrust Caseload Evaluation System (ACES)--Monthly Report 
(JUSTICE/ATR-006).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
    (b) Exemption from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because information in this system is 
maintained in aid of ongoing antitrust enforcement investigations and 
proceedings. The release of the accounting of disclosures made under 
subsection (b) of the Act would permit the subject of an investigation 
of an actual or potential criminal or civil violation to determine 
whether he is the subject of an investigation. Disclosure of the 
accounting would therefore present a serious impediment to antitrust law 
enforcement efforts.
    (2) From subsection (d) because access to the information 
retrievable from this system and compiled for law enforcement purposes 
could result in the premature disclosure of the identity of the subject 
of an investigation of an actual or potential criminal or civil 
violation and information concerning the nature of that investigation. 
This information could enable the subject to avoid detection or 
apprehension. This would present a serious impediment to effective law 
enforcement since the subject could hinder or prevent the successful 
completion of the investigation. Further, confidential business and 
financial information, the identities of confidential sources of 
information, third party privacy information, and statutorily 
confidential

[[Page 312]]

information such as grand jury information must be protected from 
disclosure.
    (3) From subsections (e)(4)(G) and (H), and (f) because this system 
is exempt from the individual access provisions of subsection (d).
    (c) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(4)(G) and (H), and (f):
    (1) Freedom of Information/Privacy--Requester/Subject Index File 
(JUSTICE/ATR-008).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a (k)(2).
    (d) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because the release of the accounting of 
disclosures made under subsection (b) of the Act would permit the 
subject of an investigation of an actual or potential criminal or civil 
violation to determine whether he is the subject of an investigation. 
Disclosure of accounting would therefore present a serious impediment to 
antitrust law enforcement efforts.
    (2) From subsection (d) because access to information in this system 
could result in the premature disclosure of the identity of the subject 
of an investigation of an actual or potential criminal or civil 
violation and information concerning the nature of the investigation. 
This information could enable the subject to avoid detection or 
apprehension. This would present a serious impendiment to effective law 
enforcement since the subject could hinder or prevent the successful 
completion of the investigation. Further, confidential business and 
financial information, the identities of confidential sources of 
information, third party privacy information, and statutorily 
confidential information such as grand jury information must be 
protected from disclosure.
    (3) From subsections (e)(4)(G) and (H), and (f) because this system 
is exempt from the individual access provisions of subsection (d).

[Order No. 2-86, 51 FR 884, Jan. 9, 1986]



Sec. 16.89  Exemption of Civil Division Systems--limited access.

    (a) The following systems of records are exempted pursuant to 5 
U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4) (G) and (H), (e)(5), (e)(8), and (g); in addition, the 
following systems of records are exempted pursuant to 5 U.S.C. 552a 
(k)(1) and (k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G) and 
(H):
    (1) Civil Division Case File System, JUSTICE/CIV-001.
    (2) Freedom of Information/Privacy Acts File System, JUSTICE/CIV-
005.


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) 
and (k)(2).
    (b) Only that information which relates to the investigation, 
prosecution, or defense of actual or potential criminal or civil 
litigation, or which has been properly classified in the interest of 
national defense and foreign policy is exempted for the reasons set 
forth from the following subsections:
    (1) Subsection (c)(3). To provide the subject of a criminal or civil 
matter or case under investigation with an accounting of disclosures of 
records concerning him or her would inform that individual (and others 
to whom the subject might disclose the records) of the existence, 
nature, or scope of that investigation and thereby seriously impede law 
enforcement efforts by permitting the record subject and others to avoid 
criminal penalties and civil remedies.
    (2) Subsections (c)(4), (e)(4) (G) and (H), and (g). These 
provisions are inapplicable to the extent that these systems of records 
are exempted from subsection (d).
    (3) Subsection (d). To the extent that information contained in 
these systems has been properly classified, relates to the investigation 
and/or prosecution of grand jury, civil fraud, and other law enforcement 
matters, disclosure could compromise matters which should be kept secret 
in the interest of national security or foreign policy; compromise

[[Page 313]]

confidential investigations or proceedings; hamper sensitive civil or 
criminal investigations; impede affirmative enforcement actions based 
upon alleged violations of regulations or of civil or criminal laws; 
reveal the identity of confidential sources; and result in unwarranted 
invasions of the privacy of others. Amendment of the records would 
interfere with ongoing criminal law enforcement proceedings and impose 
an impossible administrative burden by requiring criminal investigations 
to be continuously reinvestigated.
    (4) Subsection (e)(1). In the course of criminal or civil 
investigations, cases, or matters, the Civil Division may obtain 
information concerning the actual or potential violation of laws which 
are not strictly within its statutory authority. In the interest of 
effective law enforcement, it is necessary to retain such information 
since it may establish patterns of criminal activity or avoidance of 
other civil obligations and provide leads for Federal and other law 
enforcement agencies.
    (5) Subsection (e)(2). To collect information from the subject of a 
criminal investigation or prosecution would present a serious impediment 
to law enforcement in that the subject (and others to whom the subject 
might be in contact) would be informed of the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6) Subsection (e)(3). To comply with this requirement during the 
course of a criminal investigation or prosecution could jeopardize the 
investigation by disclosing the existence of a confidential 
investigation, revealing the identity of witnesses or confidential 
informants, or impeding the information gathering process.
    (7) Subsection (e)(5). In compiling information for criminal law 
enforcement purposes, the accuracy, completeness, timeliness and 
relevancy of the information obtained cannot always be immediately 
determined. As new details of an investigation come to light, seemingly 
irrelevant or untimely information may acquire new significance and the 
accuracy of such information can often only be determined in a court of 
law. Compliance with this requirement would therefore restrict the 
ability of government attorneys in exercising their judgment in 
developing information necessary for effective law enforcement.
    (8) Subsection (e)(8). To serve notice would give persons sufficient 
warning to evade law enforcement efforts.
    (c) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j)(2) from subsections (c) (3) and (4), (d), (e)(1) and (e)(5); in 
addition, this system is also exempted pursuant to 5 U.S.C. 552a(k)(2) 
from subsections (c)(3), (d), and (e)(1).

Consumer Inquiry/Investigatory System, JUSTICE/CIV-006.


These exemptions apply only to the extent that information in this 
system of records is subject to exemption pursuant to 5 U.S.C. 552a 
(j)(2) and (k)(2).
    (d) Only that information compiled for criminal or civil law 
enforcement purposes is exempted for the reasons set forth from the 
following subsections:
    (1) Subsections (c)(3). This system occasionally contains 
investigatory material based on complaints of actual or alleged criminal 
or civil violations. To provide the subject of a criminal or civil 
matter or case under investigation with an accounting of disclosures of 
records concerning him/her would inform that individual of the 
existence, nature, or scope of that investigation, and thereby seriously 
impede law enforcement efforts by permitting the record subject and 
other persons to whom he might disclose the records to avoid criminal 
penalties and civil remedies.
    (2) Subsections (c)(4). This subsection is inapplicable to the 
extent that an exemption is being claimed for subsection (d).
    (3) Subsection (d). Disclosure of information relating to the 
investigation of complaints of alleged violation of criminal or civil 
law could interfere with the investigation, reveal the identity of 
confidential sources, and result in an unwarranted invasion of the 
privacy of others. Amendment of the records would interfere with ongoing 
criminal law enforcement proceedings

[[Page 314]]

and impose an impossible administrative burden by requiring criminal 
investigations to be continuously reinvestigated.
    (4) Subsection (e)(1). In the course of criminal or civil 
investigations, cases, or matters, the Civil Division may obtain 
information concerning the actual or potential violation of laws which 
are not strictly within its statutory authority. In the interest of 
effective law enforcement, it is necessary to retain such information 
since it may establish patterns of criminal activity or avoidance of 
other civil obligations and provide leads for Federal and other law 
enforcement agencies.
    (5) Subsection (e)(5). In compiling information for criminal law 
enforcement purposes, the accuracy, completeness, timeliness and 
relevancy of the information obtained cannot always be immediately 
determined. As new details of an investigation come to light, seemingly 
irrelevant or untimely information may acquire new significance and the 
accuracy of such information can often only be determined in a court of 
law. Compliance with this requirement would therefore restrict the 
ability of government attorneys in exercising their judgment in 
developing information necessary for effective law enforcement.
    (e) The following system of records is exempt pursuant to 5 U.S.C. 
552a (j)(2) and (k)(2) from subsection (d):

Congressional and Citizen Correspondence File, JUSTICE/CIV-007.


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C 552a (j)(2) and 
(k)(2).
    (f) Only that portion of the Congressional and Citizen 
Correspondence File maintained by the Communications Office which 
consists of criminal or civil investigatory information is exempted for 
the reasons set forth from the following subsection:
    (1) Subsection (d). Disclosure of investigatory information would 
jeopardize the integrity of the investigative process, disclose the 
identity of individuals who furnished information to the government 
under an express or implied promise that their identities would be held 
in confidence, and result in an unwarranted invasion of the privacy of 
others. Amendment of the records would interfere with ongoing criminal 
law enforcement proceedings and impose an impossible administrative 
burden by requiring criminal investigations to be continuously 
reinvestigated.

[Order No. 27-88, 54 FR 113, Jan. 4, 1989]



Sec. 16.90  Exemption of Civil Rights Division Systems.

    (a) The following system of records is exempted from subsections 
(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (5), and 
(8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a (j) and (k): 
Central Civil Rights Division Index File and Associated Records 
(JUSTICE/CRT-001). These exemptions apply only to the extent that 
information in a record is subject to exemption pursuant to 5 U.S.C. 
552a (j)(2), (k)(1) and (k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) Subsection (c)(3). To provide the subject of a criminal, civil, 
or administrative matter or case under investigation with an accounting 
of disclosures of records concerning him or her could inform that 
individual of the existence, nature, or scope of an actual or potential 
criminal or civil violation to gain valuable information concerning the 
nature and scope of the investigation, to determine whether he or she is 
the subject of the investigation, and seriously impede law enforcement 
efforts by permitting the record subject and other persons to whom he or 
she might disclose the records to avoid criminal penalties, civil 
remedies, or administrative measures.
    (2) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Disclosure of investigatory information could 
interfere with the investigation, reveal the identity of confidential 
sources, and result in an unwarranted invasion of the privacy of others. 
Disclosure of classified national security information would cause 
damage to the national security of the United States. In addition, these 
records may be subject to protective

[[Page 315]]

orders entered by federal courts to protect their confidentiality. 
Further, many of the records contained in this system are copies of 
documents which are the property of state agencies and were obtained 
under express or implied promises to strictly protect their 
confidentiality.
    (4) Subsection (d)(2). Amendment of the records could interfere with 
ongoing criminal or civil law enforcement proceedings and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (5) Subsection (d)(3) and (4). These subsections are inapplicable to 
the extent exemption is claimed from (d)(1) and (2).
    (6) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to aid in 
establishing patterns of activity and provide investigative leads.
    (7) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigation.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal or civil 
investigation and compromise investigative efforts.
    (9) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to aid in 
establishing patterns of activity and provide investigative leads.
    (10) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts.
    (11) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.
    (c) The following system of records is exempted from subsections 
(d)(1), (2), (3) and (4) of the Privacy Act pursuant to 5 U.S.C. 552a 
(k): ``Files on Employment Civil Rights Matters Referred by the Equal 
Employment Opportunity Commission (JUSTICE/CRT-007).'' These exemptions 
apply only to the extent that information in a record is subject to 
exemption pursuant to 5 U.S.C. 552a (k)(2).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) Subsection (d)(1). Disclosure of investigatory information could 
interfere with the investigation, reveal the identity of confidential 
sources, and result in an unwarranted invasion of the privacy of others. 
In addition, these records may be subject to protective orders entered 
by federal courts to protect their confidentiality. Further, many of the 
records contained in this system are copies of documents which are the 
property of state agencies and were obtained under express or implied 
promises to strictly protect their confidentiality.
    (2) Subsection (d)(2). Amendment of the records could interfere with 
ongoing criminal or civil law enforcement proceedings and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (3) Subsection (d)(1), (2), (3) and (4). This system contains 
investigatory material compiled by the Equal Opportunity Commission 
pursuant to its authority under 42 U.S.C. 2000e-8. Titles 42 U.S.C. 
2000e-5(b), 42 U.S.C. 2000e-8(e), and 44 U.S.C. 3508 make it unlawful to 
make public in any manner whatsoever any information obtained by the 
Commission pursuant to the authority.
    (4) Subsection (d)(3) and (4). These subsections are inapplicable to 
the extent exemption is claimed from (d)(1) and (2).

[Order No. 019-2003, 68 FR 61622, Oct. 29, 2003]



Sec. 16.91  Exemption of Criminal Division Systems--limited access,
as indicated.

    (a) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a; in addition, the following systems of records

[[Page 316]]

are exempted pursuant to the provisions of 5 U.S.C. 552a (k)(1) and 
(k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), 
and (f) of 5 U.S.C. 552a:
    (1) Central Criminal Division, Index File and Associated Records 
System of Records (JUSTICE/CRM-001)--Limited Access. This system of 
records and associated exemptions is adopted by and applies with equal 
force and effect to the National Security Division, until modified, 
superseded, or revoked in accordance with law.
    (2) General Crimes Section, Criminal Division, Central Index File 
and Associated Records System of Records (JUSTICE/CRM-004)--Limited 
Access.


These exemptions apply to the extent that information in those systems 
are subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and 
(k)(2).
    (b) The systems of records listed under paragraphs (b)(1) and (b)(2) 
of this section are exempted, for the reasons set forth, from the 
following provisions of 5 U.S.C. 552a:
    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to determine whether he is the 
subject of investigation, or to obtain valuable information concerning 
the nature of that investigation, and the information obtained, or the 
identity of witnesses and informants and would therefore present a 
serious impediment to law enforcement. In addition, disclosure of the 
accounting would amount to notice to the individual of the existence of 
a record; such notice requirement under subsection (f)(1) is 
specifically exempted for these systems of records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3). (d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation, or the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they could 
prevent the successful completion of the investigation, endanger the 
physical safety of witnesses or informants, and lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4). (e)(1). The notices of these systems of records published in 
the Federal Register set forth the basic statutory or related authority 
for maintenance of this system. However, in the course of criminal or 
other law enforcement investigations, cases, and matters, the Criminal 
Division or its components will occasionally obtain information 
concerning actual or potential violations of law that are not strictly 
within its statutory or other authority or may compile information in 
the course of an investigation which may not be relevant to a specific 
prosecution. In the interests of effective law enforcement, it is 
necessary to retain such information in these systems of records since 
it can aid in establishing patterns of criminal activity and can provide 
valuable leads for federal and other law enforcement agencies.
    (5). (e)(2). In a criminal investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6). (e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise

[[Page 317]]

the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (7). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsections (f) and (d).
    (8). (e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (9). (e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would restrict 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede the development of criminal or 
other intelligence necessary for effective law enforcement.
    (10). (e)(8). The individual notice requirements of subsection 
(e)(8) could present a serious impediment to law enforcement as this 
could interfere with the ability to issue warrants or subpoenas and 
could reveal investigative techniques, procedures, or evidence.
    (11). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal, civil, or regulatory 
investigation or prosecution must be exempted because such notice to an 
individual would be detrimental to the successful conduct and/or 
completion of an investigation or prosecution pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.
    Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules require pursuant to subsection (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (13). In addition, exemption is claimed for these systems of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in these systems are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.
    (c) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j) (2) from subsection (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e) (4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a:

Criminal Division Witness Security File System of Records(JUSTICE/CRM-
002).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).

[[Page 318]]

    (d) The system of records listed under paragraph (c) of this section 
is exempted, for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:
    (1). (c)(3) The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal violation, which may include those protected under the Witness 
Security Program, to determine whether he is the subject of a criminal 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, or the identity of 
witnesses and informants and the nature of their reports, and would 
therefore present a serious impediment to law enforcement. In addition, 
disclosure of the accounting would amount to notice to the individual of 
the existence of a record; such notice requirement under subsection 
(f)(1) is specifically exempted for these systems of records. Moreover, 
disclosure of the disclosure accounting to an individual protected under 
the Witness Security Program could jeopardize the effectiveness and 
security of the Program by revealing the methods and techniques utilized 
in relocating witnesses and could therefore jeopardize the ability to 
obtain, and to protect the confidentiality of, information compiled for 
purposes of a criminal investigation.
    (2). (c)(4) Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d) Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal violation, which may include those protected under the Witness 
Security Program, of the existence of that investigation, of the nature 
and scope of the information and evidence obtained as to his activities, 
of the identity of witnesses and informants, or would provide 
information that could enable the subject to avoid detection or 
apprehension. These factors would present a serious impediment to 
effective law enforcement because they could prevent the successful 
completion of the investigation, endanger the physical safety of 
witnesses or informants, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, access to the records in these systems to an individual 
protected under the Witness Security Program could jeopardize the 
effectiveness and security of the Program by revealing the methods and 
techniques utilized in relocating witnesses and could therefore 
jeopardize the ability to obtain, and to protect the confidentiality of, 
information compiled for purposes of a criminal investigation.
    (4). Exemption is claimed from subsection (e)(1) for the reasons 
stated in subsection (b)(4) of this section.
    (5). (e)(2) In the course of preparing a Witness Security Program 
for an individual, much of the information is collected from the 
subject. However, the requirement that the information be collected to 
the greatest extent practicable from the subject individual would 
present a serious impediment to criminal law enforcement because the 
individual himself may be the subject of a criminal investigation or 
have been a participant in, or observer of, criminal activity. As a 
result, it is necessary to seek information from other sources. In 
addition, the failure to verify the information provided from the 
individual when necessary and to seek other information could jeopardize 
the confidentiality of the Witness Security Program and lead to the 
obtaining and maintenance of incorrect and uninvestigated information on 
criminal matters.
    (6). (e)(3) The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise or reveal the identity of witnesses and informants 
protected under the Witness Security Program.
    (7). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable.
    (8). (e)(4)(I). The categories of sources of the records in these 
systems have

[[Page 319]]

been published in the Federal Register in broad generic terms in the 
belief that this is all that subsection (e)(4)(I) of the Act requires. 
In the event, however, that this subsection should be interpreted to 
require more detail as to the identity of sources of the records in the 
system, exemption from this provision is necessary in order to protect 
the confidentiality of the sources of criminal law, enforcement 
information and of witnesses and informants protected under the Witness 
Security Program.
    (9). Exemption is claimed from subsections (e)(5) and (e)(8) for the 
reasons stated in subsection (b)(9) and (b)(10) of this section.
    (10). Procedures for notice to an individual pursuant to subsection 
(f)(1) as to the existence of records contained in these systems 
pertaining to him would inform the subject of an investigation of an 
actual or potential criminal violation, which may include those 
protected under the Witness Security Program, of the existence of that 
investigation, of the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they could 
prevent the successful conduct and/or completion of an investigation 
pending or future, endanger the physical safety of witnesses or 
informants, and lead to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony. In addition, 
notices as to the existence of records contained in these systems to an 
individual protected under the Witness Security Program could jeopardize 
the effectiveness and security of the Program by revealing the methods 
and techniques utilized in relocating witnesses and could therefore 
jeopardize the ability to obtain, and to protect the confidentiality of, 
information compiled for purposes of a criminal investigation.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable.
    (11). (g) Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable 
and is exempted for the reasons set forth for those subsections.
    (e) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (4) (G), (H) and (I), (f), and (g) of 5 U.S.C. 552a:

Organized Crime and Racketeering Section, Intelligence and Special 
Services Unit, Information Request System of Records (JUSTICE/CRM-014).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (f) The system of records listed under paragraph (e) of this section 
is exempted for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:
    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an investigation of an actual or potential 
criminal violation to determine whether he is the subject of a criminal 
investigation and would therefore present a serious impediment to law 
enforcement. The records in these systems contain the names of the 
subjects of the files in question and the system is accessible by name 
of the person checking out the file and by name of the subject of the 
file. In addition, disclosure of the accounting would amount to notice 
to the individual of the existence of a record; such notice requirement 
under subsection (f)(1) is specifically exempted for these systems of 
records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal violation of the existence of that investigation.

[[Page 320]]

This would present a serious impediment to effective law enforcement 
because it could prevent the successful completion of the investigation, 
endanger the physical safety of witnesses or informants, and lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4). Exemption is claimed from subsections (e)(4) (G), (H) and (I) 
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
    (5). (f). These systems may be accessed by the name of the person 
who is the subject of the file and who may also be the subject of a 
criminal investigation. Procedures for notice to an individual pursuant 
to subsection (f)(1) as to the existence of records pertaining to him, 
which may deal with an actual or potential criminal investigation or 
prosecution, must be exempted because such notice to an individual would 
be detrimental to the successful conduct and/or completion of the 
investigation or prosecution pending or future. In addition mere notice 
of the fact of an investigation could inform the subject or others that 
their activities are under or may become the subject of an investigation 
and could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable.
    (6). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) of the Act this section is 
inapplicable and is exempted for the reasons set forth for those 
subsections.

    (g) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(4), (d), (e)(4) 
(G), (H) and (I), (f) and (g) of 5 U.S.C. 552a.

File of Names Checked to Determine If Those Individuals Have Been the 
Subject of an Electronic Surveillance System of Records (JUSTICE/CRM-
003).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (h) The system of records listed under paragraph (g) of this section 
is exempted, for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:
    (1). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (2). (d). The records contained in this system of records generally 
consist of information filed with the court in response to the request 
and made available to the requestor. To the extent that these records 
have been so filed, no exemption is sought from the provisions of this 
subsection. Occasionally, the records contain pertinent logs of 
intercepted communications and other investigative reports not filed 
with the court. These records must be exempted because access to such 
records could inform the subject of an investigation of an actual or 
potential criminal violation of the existence of that investigation and 
of the nature of the information and evidence obtained by the 
government. This would present a serious impediment to effective law 
enforcement because it could prevent the successful completion of the 
investigation, endanger the physical safety of witnesses or informants, 
and lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (3). Exemption is claimed from subsections (e)(4) (G), (H) and (I) 
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
    (4). (f). The records contained in this system of records generally 
consist of information filed with the court and made available to the 
requestor. To the extent that these records have been so filed, no 
exemption is sought from the provisions of this subsection. 
Occasionally, the records contain pertinent logs of intercepted 
communications and other investigative reports not filed with the court. 
These records must be exempted from a requirement of notification as to 
their existence because such notice to an individual would be 
detrimental to the successful conduct

[[Page 321]]

and/or completion of a criminal investigation or prosecution pending or 
future. In addition, mere notice of the existence of such logs or 
investigative reports could inform the subject or others that their 
activities are under or may become the subject of an investigation and 
could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to the extent that this system of records 
is exempted for subsection (d).
    (6). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that this system of records is exempted from subsections (d) and 
(f).
    (i) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2), and (3), (e)(4) (G), (H), and (I), (e) (5) and (8), (f) 
and (g) of 5 U.S.C. 552a:
    (1) Information File on Individuals and Commercial Entities Known or 
Suspected of Being Involved in Fraudulent Activities System of Records 
(JUSTICE/CRM-006).
    (2) The Stocks and Bonds Intelligence Control Card File System of 
Records (JUSTICE/CRM-021).
    (3) Tax Disclosure Index File and Associated Records (JUSTICE/CRM-
025).


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (j) The systems of records listed in paragraphs (i)(1), (i)(2), and 
(i)(3) of this section are exempted, for the reasons set forth, from the 
following provisions of 5 U.S.C. 552a:
    (1)(c)(3) The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal violation to determine whether he is the subject of a criminal 
investigation, to obtain valuable information concerning the nature of 
that investigation, and the information obtained, or the identity of 
witnesses and informants, and would therefore present a serious 
impediment to law enforcement. In addition, disclosure of the accounting 
would amount to notice to the individual of the existence of a record; 
such notice requirement under subsection (f)(1) is specifically exempted 
for this system of records.
    (2)(c)(4) Since an exemption is being claimed for subsection (d) of 
the act (access to records), this section is inapplicable to the extent 
that these systems of records are exempted from subsection (d).
    (3)(d) Access to the records contained in these systems would inform 
the subject of an investigation of an actual or potential criminal 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his activities, of 
the identity of witnesses and informants, or would provide information 
that could enable the subject to avoid detection or apprehension. These 
factors would present a serious impediment to effective law enforcement 
because they could prevent the successful completion of the 
investigation, endanger the physical safety of witnesses or informants, 
and lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (4) Exemption is claimed from subsections (e) (1), (2), and (3), 
(e)(4) (G), (H), and (I), (e)(5) and (e)(8) for the reasons stated in 
subsections (b)(4), (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), and (b)(10) 
of this section.
    (5)(f) Procedures for notice to an individual pursuant to subsection 
(f)(1) as to the existence of records pertaining to him dealing with an 
actual or potential criminal investigation or prosecution must be 
exempted because such notice to an individual would be detrimental to 
the successful conduct and/or completion of an investigation or 
prosecution pending or future. In addition, mere notice of the fact of 
an investigation could inform the subject or

[[Page 322]]

others that their activities are under or may become the subject of an 
investigation and could enable the subjects to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony. Since an exemption is being claimed for 
subsection (d) of the act (access to records), the rules required 
pursuant to subsection (f) (2) through (5) are inapplicable to these 
systems of records.
    (6)(g) Since an exemption is being claimed for subsections (d) 
(access to records) and (f) (Agency rules), this section is inapplicable 
and is exempted for the reasons set forth for those subsections.
    (k) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a; in addition, the following systems of records are 
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(1) from 
subsections (c) (3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) of 5 
U.S.C. 552a:

Organized Crime and Racketeering Section, Criminal Division, General 
Index File and Associated Records System of Records (JUSTICE/CRM-012).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(1).
    (l) The system of records listed under paragraph (m) \1\ of this 
section is exempted, for the reasons set forth, from the following 
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------

    \1\ Paragraph (m) was redesignated as paragraph (k) at 44 FR 54046, 
Sept. 18, 1979.
---------------------------------------------------------------------------

    (1). Exemption is claimed from subsections (c) (3) and (4) and (d) 
for the reasons stated in subsections (j)(1), (j)(2) and (j)(3) of this 
section.
    (2). (e)(1). The notice for this system of records published in the 
Federal Register sets forth the basic statutory or related authority for 
maintenance of this system. However, in the course of criminal 
investigations, cases, and matters, the Organized Crime and Racketeering 
Section will occasionally obtain information concerning actual or 
potential violations of law that are not strictly within its statutory 
or other authority, or may compile information in the course of an 
investigation which may not be relevant to a specific prosecution. In 
the interests of effective law enforcement, it is necessary to retain 
such information in this system of records since it can aid in 
establishing patterns of criminal activity and can provide valuable 
leads for federal and other law enforcement agencies.
    (3). Exemption is claimed from subsections (e) (2) and (3), (e)(4) 
(G), (H) and (I), (e) (5) and (8), (f) and (g) for the reasons stated in 
subsections (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), (b)(10), (b)(11) and 
(b)(12) of this section.
    (4). In addition, exemption is claimed for this system of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in this system are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

    (m) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (2) and (3), (e) (4) (G), (H) and (I), (e) (8), (f) and (g) of 5 
U.S.C. 552a:

Requests to the Attorney General For Approval of Applications to Federal 
Judges For Electronic Interceptions System of Records (JUSTICE/CRM-019).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (n) The system of records listed in paragraph (m) of this section is 
exempted for the reasons set forth, from the following provisions of 5 
U.S.C. 552a:
    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an electronic interception to obtain 
valuable information concerning the interception, including information

[[Page 323]]

as to whether he is the subject of a criminal investigation, by means 
other than those provided for by statute. Such information could 
interfere with the successful conduct and/or completion of a criminal 
investigation, and would therefore present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would amount to 
notice to the individual of the existence of a record; such notice 
requirement under subsection (f)(1) is specifically exempted for these 
systems of records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d). Access to the records contained in these systems would 
inform the subject of an electronic interception of the existence of 
such surveillance including information as to whether he is the subject 
of a criminal investigation by means other than those provided for by 
statute. This could interfere with the successful conduct and/or 
completion of a criminal investigation and therefore present a serious 
impediment to law enforcement.
    (4). (e)(2). In the context of an electronic interception, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and this would therefore destroy the efficacy of the 
interception.
    (5). (e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential electronic interception 
or reveal the identity of witnesses or confidential informants.
    (6). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable.
    (7). Exemption is claimed from subsections (e)(4)(I) and (e)(8) for 
the reasons stated in subsections (b)(8) and (b)(10) of this section.
    (8). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an electronic interception other than pursuant to statute 
must be exempted because such notice to an individual would be 
detrimental to the successful conduct and/or completion of an 
investigation pending or future. In addition, mere notice of the fact of 
an electronic interception could inform the subject or others that their 
activities are under or may become the subject of an investigation and 
could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f)(2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (9). (g). Since an exemption is being claimed for subsection (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsection (d) 
and (f).
    (o) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (2) and (3), (e) (4) (G), (H), and (I), (e)(8), (f) and (g) of 5 
U.S.C. 552a; in addition the following system of records is exempted 
pursuant to the provisions of 5 U.S.C. 552a(k)(1) and (k)(2) from 
subsections (c)(3), (d), (e)(4) (G), (H) and (I), and (f) of 5 U.S.C. 
552a:

Witness Immunity Records System of Records (JUSTICE/CRM-022).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(1) and (k)(2).

[[Page 324]]

    (p) The system of records listed under paragraph (q) \2\ of this 
section is exempted, for the reasons set forth, from the following 
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------

    \2\ Paragraph (q) was redesignated as paragraph (o) at 44 FR 54046, 
Sept. 18, 1979.
---------------------------------------------------------------------------

    (1). (c)(3). Release of the accounting of disclosures made pursuant 
to subsection (b) of the Act, including those permitted under the 
routine uses published for this system of records, (a) as to a witness 
for whom immunity has been proposed, would inform the individual of the 
existence of the proposed immunity prematurely, thus creating a serious 
impediment to effective law enforcement in that the witness could flee, 
destroy evidence, or fabricate testimony; and (b) as to a witness to 
whom immunity has been granted, or for whom it has been denied, would 
reveal the nature and scope of the activities, if any, of the witness 
known to the government, which would also create a serious impediment to 
effective law enforcement.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (3). (d). Access to the records contained in this system (a) as to a 
witness for whom immunity has been proposed, would inform the individual 
of the existence of the proposed immunity prematurely, thus presenting a 
serious impediment to effective law enforcement in that the witness 
could flee, destroy evidence, or fabricate testimony; and (b) as to a 
witness to whom immunity has been granted, or for whom it has been 
denied, would reveal the nature and scope of the activities, if any, of 
the witness known to the government, which would also create a serious 
impediment to effective law enforcement.
    (4). (e)(2). In a witness immunity request matter, the requirement 
that information be collected to the greatest extent practicable from 
the subject individual would present a serious impediment to law 
enforcement because the subject of the immunity request and often the 
subject of the underlying investigation or prosecution would be placed 
on notice as to the existence of the investigation and would therefore 
be able to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony.
    (5). Exemption is claimed from subsections (e)(3), (e)(4)(G), (H) 
and (I), and (e)(8) for the reasons stated in subsections (b)(6), 
(b)(7), (b)(8) and (b)(10) of this section.
    (6). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him (a) 
as to a witness for whom immunity has been proposed, would inform the 
individual of the existence of the proposed immunity prematurely, thus 
presenting a serious impediment to effective law enforcement in that the 
witness could flee, destroy evidence, or fabricate testimony; and (b) as 
to a witness to whom immunity has been granted, or for whom it has been 
denied, would reveal the nature and scope of the activity, if any, of 
the witness known to the government, which would also create a serious 
impediment to effective law enforcement.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f)(2) 
through (5) are inapplicable to this system of records to the extent 
that this system of records is exempted from subsection (d).
    (7). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that this system of records is exempted for subsections (d) and 
(f).
    (8). In addition, exemption is claimed for this system of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in this system are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.
    (q) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4),

[[Page 325]]

(d), (e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), 
(f), and (g):
    (1) Freedom of Information/Privacy Act Records (JUSTICE/CRM-024)


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).
    (r) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, it is exempted for the 
reasons set forth from the following provisions of 5 U.S.C. 552a:
    (1)(c)(3). The release of the disclosure accounting would present a 
serious impediment to law enforcement by permitting the subject of an 
investigation of an actual or potential criminal, civil, or regulatory 
violation to determine whether he is the subject of investigation, or to 
obtain valuable information concerning the nature of that investigation 
and the information obtained, or to identify witnesses and informants.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records), this subsection is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (3)(d). Access to records contained in this system would enable the 
subject of an investigation of an actual or potential criminal or civil 
case or regulatory violation to determine whether he or she is the 
subject of investigation, to obtain valuable information concerning the 
nature and scope of the investigation, and information or evidence 
obtained as to his/her activities, to identify witnesses and informants, 
or to avoid detection or apprehension. Such results could prevent the 
successful completion of the investigation, endanger the physical safety 
of witnesses or informants, lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony, 
and thereby present a serious impediment to effective law enforcement. 
Amendment of the records would interfere with ongoing criminal law 
enforcement proceedings and impose an impossible administrative burden 
by requiring criminal investigations to be continuously reinvestigated.
    (4)(e)(1). In the course of criminal or other law enforcement 
investigations, cases, and matters, the Criminal Division will 
occasionally obtain information concerning actual or potential 
violations of law that are not strictly within its statutory or other 
authority, or it may compile information in the course of an 
investigation which may not be relevant to a specific prosecution. In 
the interests of effective law enforcement, it is necessary to retain 
such information since it can aid in establishing patterns of criminal 
activity and can provide valuable leads for Federal and other law 
enforcement agencies.
    (5)(e)(2). To collect information to the greatest extent practicable 
from the subject individual of a criminal investigation or prosecution 
would present a serious impediment to law enforcement. The nature of 
criminal and other investigative activities is such that vital 
information about an individual can only be obtained from other persons 
who are familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (6) (e)(3). To provide individuals supplying information with a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation or reveal the identity of witnesses or 
confidential informants.
    (7)(e)(4) (G) and (H). These subsections are inapplicable to the 
extent that this system is exempt from the access provisions of 
subsection (d) and the rules provisions of subsection (f).
    (8)(e)(4)(I). The categories of sources of the records in this 
system have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary to 
protect the confidentiality of the sources of criminal

[[Page 326]]

and other law enforcement information. Such exemption is further 
necessary to protect the privacy and physical safety of witnesses and 
informants.
    (9) (e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would inhibit 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede the development of criminal or 
other intelligence necessary for effective law enforcement.
    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). This subsection is inapplicable to the extent that this 
system is exempt from the access provisions of subsection (d).
    (12)(g). Because some of the records in this system contain 
information which was compiled for law enforcement purposes and have 
been exempted from the access provisions of subsection (d), subsection 
(g) is inapplicable.
    (s) The following system of records is exempted from 5 U.S.C. 
552a(d).

Office of Special Investigations Displaced Persons Listings (JUSTICE/
CRM-027).


This exemption applies to the extent that the records in this system are 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (t) Exemption from subsection (d) is justified for the following 
reasons:
    (1) Access to records contained in this system could inform the 
subject of the identity of witnesses or informants. The release of such 
information could present a serious impediment to effective law 
enforcement by endangering the physical safety of witnesses or 
informants; by leading to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony; or by 
otherwise preventing the successful completion of an investigation.
    (u) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j) and/or (k) from subsections (c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and (8); and (g) 
of 5 U.S.C. 552a: Organized Crime Drug Enforcement Task Force Fusion 
Center System (JUSTICE/CRM-028). These exemptions apply only to the 
extent that information in this system is subject to exemption pursuant 
to 5 U.S.C. 552a(j) and/or (k).
    (v) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to provide the subject with an 
accounting of disclosures of records in this system could inform that 
individual of the existence, nature, or scope of an actual or potential 
law enforcement or counterintelligence investigation by the Organized 
Crime Drug Enforcement Task Force Fusion Center or the recipient agency, 
and could permit that individual to take measures to avoid detection or 
apprehension, to learn the identity of witnesses and informants, or to 
destroy evidence, and would therefore present a serious impediment to 
law enforcement or counterintelligence efforts. In addition, disclosure 
of the accounting would amount to notice to the individual of the 
existence of a record. Moreover, release of an accounting may reveal 
information that is properly classified pursuant to Executive Order 
12958 (or successor or prior Executive Order) or a statute and could 
compromise the national defense or foreign policy.
    (2) From subsection (c)(4) because this subsection is inapplicable 
to the extent that an exemption is being claimed for subsection (d)(1), 
(2), (3), and (4).
    (3) From subsection (d)(1) because disclosure of records in the 
system could alert the subject of an actual or potential criminal, 
civil, or regulatory

[[Page 327]]

violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his activities, of 
the identity of confidential witnesses and informants, of the 
investigative interest of Organized Crime Drug Enforcement Task Force 
Fusion Center and other intelligence or law enforcement agencies 
(including those responsible for civil proceedings related to laws 
against drug trafficking or related financial crimes); lead to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; reveal the details of a 
sensitive investigative or intelligence technique, or the identity of a 
confidential source; or otherwise impede, compromise, or interfere with 
investigative efforts and other related law enforcement and/or 
intelligence activities. In addition, disclosure could invade the 
privacy of third parties and/or endanger the life, health, and physical 
safety of law enforcement personnel, confidential informants, witnesses, 
and potential crime victims. Access to records could also result in the 
release of information properly classified pursuant to Executive Order 
12958 (or successor or prior Executive Order) or by statute, thereby 
compromising the national defense or foreign policy.
    (4) From subsection (d)(2) because amendment of the records thought 
to be incorrect, irrelevant, or untimely would also interfere with 
ongoing investigations, criminal or civil law enforcement proceedings, 
and other law enforcement activities and impose an impossible 
administrative burden by requiring investigations, analyses, and reports 
to be continuously reinvestigated and revised.
    (5) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (6) From subsection (e)(1) because, in the course of its 
acquisition, collation, and analysis of information under the statutory 
authority granted to it, the Organized Crime Drug Enforcement Task Force 
Fusion Center will occasionally obtain information concerning actual or 
potential violations of law that are not strictly within its statutory 
or other authority or may compile information in the course of an 
investigation which may not be relevant to a specific prosecution. It is 
impossible to determine in advance what information collected during an 
investigation will be important or crucial to the apprehension of 
fugitives. In the interests of effective law enforcement, it is 
necessary to retain such information in this system of records because 
it can aid in establishing patterns of criminal activity and can provide 
valuable leads for federal and other law enforcement agencies. This 
consideration applies equally to information acquired from, or collated 
or analyzed for, both law enforcement agencies and agencies of the U.S. 
foreign intelligence community and military community.
    (7) From subsection (e)(2) because in a criminal, civil, or 
regulatory investigation, prosecution, or proceeding, the requirement 
that information be collected to the greatest extent practicable from 
the subject individual would present a serious impediment to law 
enforcement because the subject of the investigation, prosecution, or 
proceeding would be placed on notice as to the existence and nature of 
the investigation, prosecution, and proceeding and would therefore be 
able to avoid detection or apprehension, to influence witnesses 
improperly, to destroy evidence, or to fabricate testimony. Moreover, 
thorough and effective investigation and prosecution may require seeking 
information from a number of different sources.
    (8) From subsection (e)(3) (to the extent applicable) because the 
requirement that individuals supplying information be provided a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation or reveal the identity of witnesses or 
confidential informants and endanger their lives, health, and physical 
safety. The individual could seriously interfere with undercover 
investigative techniques and could take appropriate steps to evade the 
investigation or flee a specific area.
    (9) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for law enforcement purposes from various 
agencies does not

[[Page 328]]

permit a determination in advance or a prediction of what information 
will be matched with other information and thus whether it is accurate, 
relevant, timely and complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significance as 
further investigation brings new details to light and the accuracy of 
such information can often only be determined in a court of law. The 
restrictions imposed by subsection (e)(5) would restrict the ability of 
trained investigators, intelligence analysts, and government attorneys 
to exercise their judgment in collating and analyzing information and 
would impede the development of criminal or other intelligence necessary 
for effective law enforcement.
    (10) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement by revealing investigative techniques, procedures, 
evidence, or interest and interfering with the ability to issue warrants 
or subpoenas, and could give persons sufficient warning to evade 
investigative efforts.
    (11) From subsection (g) because this subsection is inapplicable to 
the extent that the system is exempt from other specific subsections of 
the Privacy Act.
    (12) In addition, exemption is claimed for this system of records 
from compliance with the following provisions of 5 U.S.C. 552a pursuant 
to the provisions of 5 U.S.C. 552a(k): subsections (c)(3), (d), (e)(1), 
to the extent that the records contained in this system are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
659-76, 41 FR 32423, Aug. 3, 1976; Order No. 11-78, 43 FR 38386, Aug. 
28, 1978; Order No. 30-79, 44 FR 54046, Sept. 18, 1979; Order Nos. 6-86, 
7-86, 51 FR 15475, 15477, Apr. 24, 1986; Order No. 018-2004, 69 FR 
72114, Dec. 13, 2004; Order No. 015-2006, 71 FR 58278, Oct. 3, 2006]



Sec. 16.92  Exemption of Environment and Natural Resources Division
Systems--limited access.

    (a)(1) The following system of records is exempted pursuant to 5 
U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (e)(2), 
(e)(3), (e)(5), (e)(8), (f) and (g); in addition, the following systems 
of records are exempted pursuant to 5 U.S.C. 552a(k)(1) and (k)(2) from 
subsections (c)(3), (d), and (e)(1):
    (i) Environment and Natural Resources Division Case and Related 
Files System, JUSTICE/ENRD-003.
    (ii) [Reserved]
    (2) These exemptions apply only to the extent that information in 
this system relates to the investigation, prosecution or defense of 
actual or potential criminal or civil litigation, or which has been 
properly classified in the interest of national defense and foreign 
policy, and therefore is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2), (k)(1) and (k)(2). To the extent that information in a 
record pertaining to an individual does not relate to national defense 
or foreign policy, official Federal investigations, and/or law 
enforcement matters, the exemption does not apply. In addition, where 
compliance would not appear to interfere with or adversely affect the 
overall law or regulatory enforcement process, the applicable exemption 
may be waived by the Environment and Natural Resources Division.
    (b) Only that information that relates to the investigation, 
prosecution or defense of actual or potential criminal or civil 
litigation, or which has been properly classified in the interest of 
national defense and foreign policy is exempted for the reasons set 
forth from the following subsections:
    (1) Subsection (c)(3). Subsection (c)(3) requires an agency to 
provide an accounting of disclosures of records concerning an 
individual. To provide the subject of a criminal or civil matter or case 
under investigation with an accounting of disclosures of records would 
inform that individual (and others to whom the subject might disclose 
the records) of the existence, nature, or scope of that investigation 
and thereby seriously impede law enforcement efforts by permitting the 
record subject and others to avoid criminal penalties and civil 
remedies.
    (2) Subsections (c)(4) (requiring an agency to inform individuals 
about any corrections made to a record that has been disclosed) and (g) 
(providing for civil remedies when an agency fails to comply with these 
provisions). These provisions are

[[Page 329]]

inapplicable to the extent that this system of records is exempted from 
subsection (d).
    (3) Subsection (d). Subsection (d) requires an agency to allow 
individuals to gain access to a record about him or herself; to dispute 
the accuracy, relevance, timeliness or completeness of such records; and 
to have an opportunity to amend his or her record or seek judicial 
review. To the extent that information contained in this system has been 
properly classified, relates to the investigation and/or prosecution of 
grand jury, civil fraud, and other law enforcement matters, disclosure 
could compromise matters which should be kept secret in the interest of 
national security or foreign policy; compromise confidential 
investigations or proceedings; impede affirmative enforcement actions 
based upon alleged violations of regulations or of civil or criminal 
laws; reveal the identity of confidential sources; and result in 
unwarranted invasions of the privacy of others. Amendment of the records 
would interfere with ongoing criminal law enforcement proceedings and 
impose an impossible administrative burden by requiring criminal 
investigations to be continuously reinvestigated.
    (4) Subsection (e)(1). Subsection (e)(1) requires an agency to 
maintain in its records only such information about an individual that 
is relevant and necessary to accomplish the agency's purpose. In the 
course of criminal or civil investigations, cases, or other matters, the 
Environment and Natural Resources Division may obtain information 
concerning the actual or potential violation of laws which are not 
strictly within its statutory authority. In the interest of effective 
law enforcement, it is necessary to retain such information since it may 
establish patterns of criminal activity or avoidance of other civil 
obligations and provide leads for Federal and other law enforcement 
agencies.
    (5) Subsection (e)(2). Subsection (e)(2) requires an agency to 
collect information to the greatest extent practicable from the subject 
individual when the information may result in adverse determinations 
about an individual's rights, benefits and privileges under Federal 
programs. To collect information from the subject of a criminal 
investigation or prosecution would present a serious impediment to law 
enforcement in that the subject (and others with whom the subject might 
be in contact) would be informed of the existence of the investigation 
and would therefore be able to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.
    (6) Subsection (e)(3). Subsection (e)(3) requires an agency to 
inform each individual whom it asks to supply information, on a form 
that can be retained by the individual, the authority which authorizes 
the solicitation, the principal purpose for the information, the routine 
uses of the information, and the effects on the individual of not 
providing the requested information. To comply with this requirement 
during the course of a criminal investigation or prosecution could 
jeopardize the investigation by disclosing the existence of a 
confidential investigation, revealing the identity of witnesses or 
confidential informants, or impeding the information gathering process.
    (7) Subsection (e)(5). Subsection (e)(5) requires an agency to 
maintain records with such accuracy, relevance, timeliness, and 
completeness as is reasonably necessary to assure fairness to the 
individual. In compiling information for criminal law enforcement 
purposes, the accuracy, completeness, timeliness and relevancy of the 
information obtained cannot always be immediately determined. As new 
details of an investigation come to light, seemingly irrelevant or 
untimely information may acquire new significance and the accuracy of 
such information can often only be determined in a court of law. 
Compliance with this requirement would therefore restrict the ability of 
government attorneys in exercising their judgment in developing 
information necessary for effective law enforcement.
    (8) Subsection (e)(8). Subsection (e)(8) requires agencies to make 
reasonable efforts to serve notice on an individual when any record on 
the individual is made available to any person under compulsory legal 
process. To serve notice would give persons sufficient warning to evade 
law enforcement efforts.

[[Page 330]]

    (9) Subsections (f) and (g). Subsection (f) requires an agency to 
establish procedures to allow an individual to have access to 
information about him or herself and to contest information kept by an 
agency about him or herself. Subsection (g) provides for civil remedies 
against agencies who fail to comply with the Privacy Act requirements. 
These provisions are inapplicable to the extent that this system is 
exempt from the access and amendment provisions of subsection (d).
    (c) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (d):
    (1) Freedom of Information/Privacy Act Records System. (Justice/LDN-
005).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c) (3) because that portion of the Freedom of 
Information/Privacy Act Records System that consists of investigatory 
materials compiled for law enforcement purposes is being exempted from 
access and contest; the provision for disclosure of accounting is not 
applicable.
    (2) From subsection (d) because of the need to safeguard the 
identity of confidential informants and avoid interference with ongoing 
investigations or law enforcement activities by preventing premature 
disclosure of information relating to those efforts.

[Order No. 688-77, 42 FR 10000, Feb. 18, 1977, as amended by Order No. 
207-2000, 65 FR 75158, Dec. 1, 2000]



Sec. 16.93  Exemption of Tax Division Systems--limited access.

    (a) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a (j)(2) from subsections (c)(3), (c)(4), 
(d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f) and (g) of 5 U.S.C. 552a:
    (1) Tax Division Central Classification Cards, Index Docket Cards, 
and Associated Records--Criminal Tax Cases (JUSTICE/TAX-001)--Limited 
Access.
    (2) These exemptions apply to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) The system of records listed under paragraph (a)(1) of this 
section is exempted for the reasons set forth below, from the following 
provisions of 5 U.S.C. 552a:
    (1)(c)(3). The release of the disclosure accounting, for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for those systems of records, would 
enable the subject of an investigation of an actual or potential 
criminal tax case to determine whether he or she is the subject of 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, and to determine the 
identity of witnesses or informants. Such access to investigative 
information would, accordingly, present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would constitute 
notice to the individual of the existence of a record even though such 
notice requirement under subsection (f)(1) is specifically exempted for 
these systems of records.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3) (d)(1); (d)(2); (d)(3); (d)(4). Access to the records contained 
in these systems would inform the subject of an actual or potential 
criminal tax investigation of the existence of that investigation, of 
the nature and scope of the information and evidence obtained as to his 
or her activities, and of the identity of witnesses or informants. Such 
access would, accordingly, provide information that could enable the 
subject to avoid detection, apprehension and prosecution. This result, 
therefore, would constitute a serious impediment to effective law 
enforcement not only because it would prevent the successful completion 
of the investigation but also because it could endanger the physical 
safety of witnesses or informants, lead to the improper influencing

[[Page 331]]

of witnesses, the destruction of evidence, or the fabrication of 
testimony.
    (4)(e)(1). The notices for these systems of records published in the 
Federal Register, set forth the basic statutory or related authority for 
maintenance of these systems. However, in the course of criminal tax and 
related law enforcement investigations, cases, and matters, the Tax 
Division will occasionally obtain information concerning actual or 
potential violations of law that may not be technically within its 
statutory or other authority or may compile information in the course of 
an investigation which may not be relevant to a specific prosecution. In 
the interests of effective law enforcement, it is necessary to retain 
some or all of such information in these systems of records since it can 
aid in establishing patterns of criminal activity and can provide 
valuable leads for Federal and other law enforcement agencies.
    (5)(e)(2). In a criminal tax investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, influence witnesses improperly, destroy evidence, or 
fabricate testimony.
    (6)(e)(3). The requirement that individuals supplying information be 
provided with a form stating the requirements of subsection (e)(3) would 
constitute a serious impediment to law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (7)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsection (f) and (d).
    (8)(e)(4)(I). The categories of sources of the records in the 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal tax and 
related law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (9)(e)(5). In the collection of information for criminal tax 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. Furthermore, the accuracy of such information can often only be 
determined in a court of law. The restrictions of subsection (e)(5) 
would restrict the ability of government attorneys in exercising their 
judgment in reporting on information and investigations and impede the 
development of criminal tax information and related data necessary for 
effective law enforcement.
    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal tax, civil tax, or 
regulatory investigation or prosecution must be exempted because such 
notice to an individual would be detrimental to the successful conduct 
and/or completion or an investigation or prosecution pending or future. 
In addition, mere notice of the fact of an investigation could inform 
the subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.

[[Page 332]]

    Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12)(g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (c) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d)(1), 
(d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G, (e)(4)(H, (e)(4)(I) and (f) of 
5 U.S.C. 552a:
    (1) Tax Division Central Classification Cards, Index Docket Cards, 
and Associated Records--Civil Tax Cases (JUSTICE/TAX-002)--Limited 
Access.


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (d) The system of records listed under paragraph (c)(1) is exempted 
for the reasons set forth below, from the following provisions of 5 
U.S.C. 552a:
    (1)(c)(3). The release of the disclosure accounting, for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for this system of records, would 
enable the subject of an investigation of an actual or potential civil 
tax case to determine whether he or she is the subject of investigation, 
to obtain valuable information concerning the nature of that 
investigation and the information obtained, and to determine the 
identity of witnesses or informants. Such access to investigative 
information would, accordingly, present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would constitute 
notice to the individual of the existence of a record even though such 
notice requirement under subsection (f)(1) is specifically exempted for 
this system of records.
    (2) (d)(1); (d)(2); (d)(3); (d)(4). Access to the records contained 
in this system would inform the subject of an actual or potential civil 
tax investigation of the existence of that investigation, of the nature 
and scope of the information and evidence obtained as to his or her 
activities and of the identity of witnesses or informants. Such access 
would, accordingly, provide information that could enable the subject to 
avoid detection. This result, therefore, would constitute a serious 
impediment to effective law enforcement not only because it would 
prevent the successful completion of the investigation but also because 
it could endanger the physical safety of witnesses or informants, lead 
to the improper influencing of witnesses, the destruction of evidence, 
or the fabrication of testimony.
    (3)(e)(1). The notices for this system of records published in the 
Federal Register set forth the basic statutory or related authority for 
maintenance of this system. However, in the course of civil tax and 
related law enforcement investigations, cases and matters, the Tax 
Division will occasionally obtain information concerning actual or 
potential violations of law that are not strictly or technically within 
its statutory or other authority or may compile information in the 
course of an investigation which may not be relevant to a specific case. 
In the interests of effective law enforcement, it is necessary to retain 
some or all of such information in this system of records since it can 
aid in establishing patterns of tax compliance and can provide valuable 
leads for Federal and other law enforcement agencies.
    (4)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that this system of 
records is exempted from subsection (f) and (d).
    (5)(e)(4)(I). The categories of sources of the records in this 
system have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary in 
order to protect

[[Page 333]]

the confidentiality of the sources of civil tax and related law 
enforcement information. Such exemption is further necessary to protect 
the privacy and physical safety of witnesses and informants.
    (6)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to existence of records pertaining to the 
individual dealing with an actual or potential criminal tax, civil tax, 
or regulatory investigation or prosecution must be exempted because such 
notice to an individual would be detrimental to the successful conduct 
and/or completion of an investigation or case, pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection, to influence witnesses improperly, to destroy evidence, or to 
fabricate testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to this system of records to the extent 
that this system of records is exempted from subsection (d).
    (e) The following system of records is exempt from subsections 
(c)(3) and (d)(1) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(5): 
Files of Applicants for Attorney and Non-Attorney Positions with the Tax 
Division, Justice/TAX-003. These exemptions apply only to the extent 
that information in a record is subject to exemption pursuant to 5 
U.S.C. 552a(k)(5).
    (f) Exemption from the particular subsections is justified for the 
following reasons:
    (1) From subsection (c)(3) because an accounting could reveal the 
identity of confidential sources and result in an unwarranted invasion 
of the privacy of others. Many persons are contacted who, without an 
assurance of anonymity, refuse to provide information concerning an 
applicant for a position with the Tax Division. Disclosure of an 
accounting could reveal the identity of a source of information and 
constitutes a breach of the promise of confidentiality by the Tax 
Division. This would result in the reduction in the free flow of 
information vital to a determination of an applicant's qualifications 
and suitability for federal employment.
    (2) From subsection (d)(1) because disclosure of records in the 
system could reveal the identity of confidential sources and result in 
an unwarranted invasion of the privacy of others. Many persons are 
contacted who, without an assurance of anonymity, refuse to provide 
information concerning an applicant for a Tax Division position. Access 
could reveal the identity of the source of the information and 
constitute a breach of the promise of confidentiality on the part of the 
Tax Division. Such breaches ultimately would restrict the free flow of 
information vital to a determination of an applicant's qualifications 
and suitability.

[Order No. 742-77, 42 FR 40906, Aug. 12, 1977, as amended by Order No. 
6-86, 51 FR 15478, Apr. 24, 1986; Order No. 003-2006, 71 FR 11309, Mar. 
7, 2006]



Sec. 16.96  Exemption of Federal Bureau of Investigation Systems--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G) and (H), (e)(5), 
(e)(8), (f) and (g):
    (1) Central Records System (CRS) (JUSTICE/FBI-002).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552(j) and (k). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, the applicable exemption may be 
waived by the FBI.
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only the FBI, but also by the 
recipient agency. This would permit the record subject to take 
appropriate measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses or flee the area to avoid the 
thrust of the investigation.

[[Page 334]]

    (2)(i) From subsections (d), (e)(4) (G) and (H), (f) and (g) because 
these provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information classified 
in the interest of national security, interfere with the overall law 
enforcement process by revealing a pending sensitive investigation, 
possibly identify a confidential source or disclose information which 
would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety to law enforcement 
personnel.
    (ii) Also, individual access to non-criminal investigative records, 
e.g., civil investigations and administrative inquiries, as described in 
subsection (k) of the Privacy Act, could also compromise classified 
information related to national security, interfere with a pending 
investigation or internal inquiry, constitute an unwarranted invasion of 
privacy, reveal a confidential source or sensitive investigative 
technique, or pose a potential threat to law enforcement personnel. In 
addition, disclosure of information collected pursuant to an employment 
suitability or similar inquiry could reveal the identity of a source who 
provided information under an express promise of confidentiality, or 
could compromise the objectivity or fairness of a testing or examination 
process.
    (iii) In addition, from paragraph (d)(2) of this section, because to 
require the FBI to amend information thought to be incorrect, irrelevant 
or untimely, because of the nature of the information collected and the 
essential length of time it is maintained, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations attempting to resolve 
questions of accuracy, etc.
    (3) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal or 
other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) In any investigation the FBI might obtain information 
concerning violations of law not under its jurisdiction, but in the 
interest of effective law enforcement, dissemination will be made to the 
agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (4) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can only be obtained from other persons who are familiar with 
such individual and his/her activities. In such investigations it is not 
feasible to rely upon information furnished by the individual concerning 
his own activities.
    (5) From subsection (e)(3) because disclosure would provide the 
subject with substantial information which could impede or compromise 
the investigation. The individual could seriously interfere with 
undercover investigative activities and could take appropriate steps to 
evade the investigation or flee a specific area.
    (6) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by subsection (e)(5) would limit the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement. In 
addition, because many of these records come from other federal, state, 
local, joint,

[[Page 335]]

foreign, tribal, and international agencies, it is administratively 
impossible to ensure compliance with this provision.
    (7) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (c) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), (g) and (m):
    (1) Electronic Surveillance (Elsur) Indices (JUSTICE/FBI-006).


These exemptions apply only to the extent that information in the system 
is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of accounting 
disclosures would place the subject of an investigation on notice that 
he is under investigation and provide him with significant information 
concerning the nature of the investigation, resulting in a serious 
impediment to law enforcement.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records which 
concern him and such access to records in this system would compromise 
ongoing investigations, reveal investigatory techniques and confidential 
informants, and invade the privacy of private citizens who provide 
information in connection with a particular investigation.
    (3) From subsection (e)(1) because these indices must be maintained 
in order to provide the information as described in the ``routine uses'' 
of this particular system.
    (4) From subsections (e) (2) and (3) because compliance is not 
feasible given the subject matter of the indices.
    (5) From subsection (e)(5) because this provision is not applicable 
to the indices in view of the ``routine uses'' of the indices. For 
example, it is impossible to predict when it will be necessary to 
utilize information in the system and, accordingly it is not possible to 
determine when the records are timely.
    (6) From subsection (e)(8) because the notice requirement could 
present a serious impediment to law enforcement by revealing 
investigative techniques, procedures and the existence of confidential 
investigations.
    (7) From subsection (m) for the reasons stated in subsection (b)(7) 
of this section.
    (e) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), and (g):
    (1) Identification Division Records System (JUSTICE/FBI-009).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the reasons stated in subsection 
(d)(1) of this section.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), (f) and (g) 
because these provisions concern an individual's access to records which 
concern him. Such access is directed at allowing the subject of a record 
to correct inaccuracies in it. Although an alternate system of access 
has been provided in 28 CFR 16.30 to 34 and 28 CFR 20.34, the vast 
majority of records in this system concern local arrests which it would 
be inappropriate for the FBI to undertake to correct.
    (3) From subsection (e)(1) because it is impossible to state with 
any degree of certainty that all information on these records is 
relevant to accomplish a purpose of the FBI, even though acquisition of 
the records from state and local law enforcement agencies is based on a 
statutory requirement. In view of the number of records in the system it 
is impossible to review them for relevancy.
    (4) From subsection (e)(2) because the records in the system are 
necessarily furnished by criminal justice agencies due to their very 
nature.
    (5) From subsection (e)(3) because compliance is not feasible due to 
the nature of the records.
    (6) From subsection (e)(5) because the vast majority of these 
records come from local criminal justice agencies

[[Page 336]]

and it is administratively impossible to ensure that the records comply 
with this provision. Submitting agencies are, however, urged on a 
continuing basis to ensure that their records are accurate and include 
all dispositions.
    (7) From subsection (e)(8) because the FBI has no logical manner to 
ascertain whether process has been made public and compliance with this 
provision would in any case, provide an impediment to law enforcement by 
interfering with the ability to issue warrants or subpoenas and by 
revealing investigative techniques, procedures or evidence.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G) and (H), (e)(5), 
(e)(8), (f), and (g):
    (1) National Crime Information Center (NCIC) (JUSTICE/FBI-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) and (k)(3).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) for the reasons stated in subsection 
(d)(1) of this section.
    (2) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) for 
the reasons stated in subsection (d)(2) of this section. When records 
are properly subject to access by the individual, an alternate means of 
access is provided in subsection (i) of this section.
    (3) From subsection (e)(1) because information contained in this 
system is primarily from state and local records, and it is for the 
official use of agencies outside the Federal Government in accordance 
with 28 U.S.C. 534.
    (4) From subsections (e) (2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system.
    (5) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by subsection (e)(5) would limit the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement. In 
addition, the vast majority of these records come from other federal, 
state, local, joint, foreign, tribal, and international agencies and it 
is administratively impossible to ensure that the records comply with 
this provision. Submitting agencies are, however, urged on a continuing 
basis to ensure that their records are accurate and include all 
dispositions.
    (6) From subsection (e)(8) for the reasons stated in subsection 
(d)(6) of this section.
    (i) Access to computerized criminal history records in the National 
Crime Information Center is available to the individual who is the 
subject of the record pursuant to procedures and requirements specified 
in the Notice of Systems of Records compiled by the National Archives 
and Records Service and published under the designation:
    (j) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4)(G) and (H), (e)(5), (f) and (g):
    (1) National Center for the Analysis of Violent Crime (NCAVC) 
(JUSTICE/FBI-015).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(2).
    (k) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because providing the accounting of 
disclosures to the subject could prematurely reveal investigative 
interest by the FBI and other law enforcement agencies, thereby 
providing the individual an opportunity to impede an active 
investigation, destroy or alter evidence, and possibly render harm to 
violent crime victims and/or witnesses.
    (2) From subsections (d), (e)(4) (G) and (H), and (f) because 
disclosure to the subject could interfere with enforcement proceedings 
of a criminal justice agency, reveal the identity of a

[[Page 337]]

confidential source, result in an unwarranted invasion of another's 
privacy, reveal the details of a sensitive investigative technique, or 
endanger the life and safety of law enforcement personnel, potential 
violent crime victims, and witnesses. Disclosure also could prevent the 
future apprehension of a violent or exceptionally dangerous criminal 
fugitive should he or she modify his or her method of operation in order 
to evade law enforcement. Also, specifically from subsection (d)(2), 
which permits an individual to request amendment of a record, because 
the nature of the information in the system is such that an individual 
criminal offender would frequently demand amendment of derogatory 
information, forcing the FBI to continuously retrograde its criminal 
investigations in an attempt to resolve questions of accuracy, etc.
    (3) From subsection (g) because the system is exempt from the access 
and amendment provisions of subsection (d).
    (4) From subsection (e)(1) because it is not always possible to 
establish relevance and necessity of the information at the time it is 
obtained or developed. Information, the relevance and necessity of which 
may not be readily apparent, frequently can prove to be of investigative 
value at a later date and time.
    (5) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by subsection (e)(5) would limit the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement. In 
addition, because many of these records come from other federal, state, 
local, joint, foreign, tribal, and international agencies, it is 
administratively impossible to ensure compliance with this provision.
    (l) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3), (c)(4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g).
    (1) FBI Counterdrug Information Indices System (CIIS) (JUSTICE/FBI--
016)
    (2) [Reserved]
    (m) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest by not only the FBI, but also by the 
recipient agency. This would permit the record subject to take 
appropriate measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses or flee the area to avoid the 
thrust of the investigation.
    (2) From subsection (c)(4) to the extent it is not applicable 
because an exemption is being claimed from subsection (d).
    (3)(i) From subsections (d), (e)(4) (G) and (H) because these 
provisions concern individual access to records, compliance with which 
could compromise sensitive information, interfere with the overall law 
enforcement process by revealing a pending sensitive investigation, 
possibly identify a confidential source or disclose information which 
would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety of law enforcement 
personnel.
    (ii) In addition, from paragraph (d), because to require the FBI to 
amend information thought to be incorrect, irrelevant or untimely, 
because of the nature of the information collected and the essential 
length of time it is maintained, would create an impossible 
administrative and investigative burden by forcing the agency to 
continuously retrograde its investigations attempting to resolve 
questions of accuracy, etc.

[[Page 338]]

    (4)(i) From subsection (e)(1) because it is not possible in all 
instances to determine relevancy or necessity of specific information in 
the early stages of a criminal or other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed otherwise. It is only after the information is assessed that its 
relevancy and necessity in a specified investigative activity can be 
established.
    (iii) In any investigation the FBI might obtain information 
concerning violations of law not under its jurisdiction, but in the 
interest of effective law enforcement, dissemination will be made to the 
agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigations or to 
an investigative activity under the jurisdiction of another agency.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual often can only be obtained from other persons who are 
familiar with such individual and his/her activities. In such 
investigations it is not feasible to principally rely upon information 
furnished by the individual concerning his own activities.
    (6) From subsection (e)(3) because disclosure would provide the 
subject with information which could impede or compromise the 
investigation. The individual could seriously interfere with undercover 
investigative activities and could take appropriate steps to evade the 
investigation or flee a specific area.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (8) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (9) From subsection (f) to the extent that this system is exempt 
from the provisions of subsection (d).
    (10) From subsection (g) to the extent that this system of records 
is exempt from the provisions of subsection (d).
    (n) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4); (d); (e) (1), (2), and 3; (e)(4) (G) and (H); (e) (5) and 
(8); and (g):
    (1) National DNA Index System (NDIS) (JUSTICE/FBI-017).
    (2) [Reserved]
    (o) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available the accounting 
of disclosures of records to the subject of the record would prematurely 
place the subject on notice of the investigative interest of law 
enforcement agencies, provide the subject with significant information 
concerning the nature of the investigation, or permit the subject to 
take measures to impede the investigation (e.g., destroy or alter 
evidence, intimidate potential witnesses, or flee the area to avoid 
investigation and prosecution), and result in a serious impediment to 
law enforcement.
    (2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g) 
because these provisions concern an individual's access to records which 
concern him/her and access to records in this system would compromise 
ongoing investigations. Such access is directed at allowing the subject 
of the record to correct inaccuracies in it. The vast majority of 
records in this system are from the DNA records of local and State NDIS 
agencies which would be inappropriate

[[Page 339]]

and not feasible for the FBI to undertake to correct. Nevertheless, an 
alternate method to access and/or amend records in this system is 
available to an individual who is the subject of a record pursuant to 
procedures and requirements specified in the Notice of Systems of 
Records compiled by the National Archives and Records Administration and 
published in the Federal Register under the designation: National DNA 
Index System (NDIS) (JUSTICE/FBI-017)
    (ii) In addition, from paragraph (d)(2) of this section, because to 
require the FBI to amend information thought to be incorrect, 
irrelevant, or untimely, because of the nature of the information 
collected and the essential length of time it is maintained, would 
create an impossible administrative and investigative burden by forcing 
the agency to continuously retrograde investigations attempting to 
resolve questions of accuracy, etc.
    (iii) In addition, from subsection (g) to the extent that the system 
is exempt from the access and amendment provisions of subsection (d).
    (3) From subsection (e)(1) because:
    (i) Information in this system is primarily from State and local 
records and it is for the official use of agencies outside the Federal 
Government.
    (ii) It is not possible in all instances to determine the relevancy 
or necessity of specific information in the early stages of the criminal 
investigative process.
    (iii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary, and vice versa. It is only after the information is 
assessed that its relevancy in a specific investigative activity can be 
established.
    (iv) Although the investigative process could leave in doubt the 
relevancy and necessity of evidence which had been properly obtained, 
the same information could be relevant to another investigation or 
investigative activity under the jurisdiction of the FBI or another law 
enforcement agency.
    (4) From subsections (e)(2) and (3) because it is not feasible to 
comply with these provisions given the nature of this system. Most of 
the records in this system are necessarily furnished by State and local 
criminal justice agencies and not by individuals due to the very nature 
of the records and the system.
    (5) From subsection (e)(5) because the vast majority of these 
records come from State and local criminal justice agencies and because 
it is administratively impossible for them and the FBI to insure that 
the records comply with this provision. Submitting agencies are urged 
and make every effort to insure records are accurate and complete; 
however, since it is not possible to predict when information in the 
indexes of the system (whether submitted by State and local criminal 
justice agencies or generated by the FBI) will be matched with other 
information, it is not possible to determine when most of them are 
relevant or timely.
    (6) From subsection (e)(8) because the FBI has no logical manner to 
determine whenever process has been made public and compliance with this 
provision would provide an impediment to law enforcement by interfering 
with ongoing investigations.
    (p) The National Instant Criminal Background Check System (NICS), 
(JUSTICE/FBI-018), a Privacy Act system of records, is exempt:
    (1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and 
(4); (d); (e) (1), (2) and (3); (e)(4) (G) and (H); (e) (5) and (8); and 
(g); and
    (2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections 
(c)(3), (d), (e)(1), and (e)(4) (G) and (H).
    (q) 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)(2), and (k)(3). Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) because the release of the accounting of 
disclosures would place the subject on notice that the subject is or has 
been the subject of investigation and result in a serious impediment to 
law enforcement.
    (2) From subsection (c)(4) to the extent that it is not applicable 
since an exemption is claimed from subsection (d).

[[Page 340]]

    (3)(i) From subsections (d) and (e)(4) (G) and (H) because these 
provisions concern an individual's access to records which concern the 
individual and such access to records in the system would compromise 
ongoing investigations, reveal investigatory techniques and confidential 
informants, invade the privacy of persons who provide information in 
connection with a particular investigation, or constitute a potential 
danger to the health or safety of law enforcement personnel.
    (ii) In addition, from subsection (d)(2) because, to require the FBI 
to amend information thought to be not accurate, timely, relevant, and 
complete, because of the nature of the information collected and the 
essential length of time it is maintained, would create an impossible 
administrative burden by forcing the agency to continuously update its 
investigations attempting to resolve these issues.
    (iii) Although the Attorney General is exempting this system from 
subsections (d) and (e)(4) (G) and (H), an alternate method of access 
and correction has been provided in 28 CFR, part 25, subpart A.
    (4) From subsection (e)(1) because it is impossible to state with 
any degree of certainty that all information in these records is 
relevant to accomplish a purpose of the FBI, even though acquisition of 
the records from state and local law enforcement agencies is based on a 
statutory requirement. In view of the number of records in the system, 
it is impossible to review them for relevancy.
    (5) From subsections (e) (2) and (3) because the purpose of the 
system is to verify information about an individual. It would not be 
realistic to rely on information provided by the individual. In 
addition, much of the information contained in or checked by this system 
is from Federal, State, and local criminal history records.
    (6) From subsection (e)(5) because it is impossible to predict when 
it will be necessary to use the information in the system, and, 
accordingly, it is not possible to determine in advance when the records 
will be timely. Since most of the records are from State and local or 
other Federal agency records, it would be impossible to review all of 
them to verify that they are accurate. In addition, an alternate 
procedure is being established in 28 CFR, part 25, subpart A, so the 
records can be amended if found to be incorrect.
    (7) From subsection (e)(8) because the notice requirement could 
present a serious impediment to law enforcement by revealing 
investigative techniques and confidential investigations.
    (8) From subsection (g) to the extent that, pursuant to subsections 
(j)(2), (k)(2), and (k)(3), the system is exempted from the other 
subsections listed in paragraph (p) of this section.
    (r) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), 
and (8); and (g):
    (1) Terrorist Screening Records System (TSRS) (JUSTICE/FBI-019).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the counterterrorism purposes of this system, and 
the overall law enforcement process, the applicable exemption may be 
waived by the FBI in its sole discretion.
    (s) 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 specifically reveal any investigative interest in the individual. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts to investigate a known or suspected terrorist by 
notifying the record subject that he/she is under investigation. This 
information could also permit the record subject to take measures to 
impede the investigation, e.g., destroy evidence, intimidate potential 
witnesses, or flee the area to avoid or impede the investigation. 
Similarly, disclosing this information to individuals who have been 
misidentified as known or suspected terrorists due to a close name 
similarity could reveal the Government's investigative interest in a 
terrorist suspect, because it could

[[Page 341]]

make known the name of the individual who actually is the subject of the 
Government's interest. Consequently, the Government has as great an 
interest in protecting the confidentiality of identifying information of 
misidentified persons as it does in protecting the confidentiality of 
the identities of known or suspected terrorists.
    (2) From subsection (c)(4) because this system is exempt from the 
access and amendment provisions of subsection (d).
    (3) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of records 
contained in this system, which consists of counterterrorism, 
investigatory and intelligence records. Compliance with these provisions 
could alert the subject of a terrorism investigation of the fact and 
nature of the investigation, and/or the investigative interest of the 
FBI and/or other intelligence or law enforcement agencies; compromise 
sensitive information classified in the interest of national security; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; could identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative or intelligence technique; or constitute a potential 
danger to the health or safety of law enforcement personnel, 
confidential informants, and witnesses. Amendment of these records would 
interfere with ongoing counterterrorism investigations and analysis 
activities and impose an impossible administrative burden by requiring 
investigations, analyses, and reports to be continuously reinvestigated 
and revised. Similarly, compliance with these provisions with respect to 
records on individuals who have been misidentified as known or suspected 
terrorists due to a close name similarity could reveal the Government's 
investigative interest in a terrorist suspect, because it could make 
known the name of the individual who actually is the subject of the 
Government's interest.
    (4) From subsection (e)(1) because it is not always possible for TSC 
to know in advance what information is relevant and necessary for it to 
complete an identity comparison between the individual being screened 
and a known or suspected terrorist. Also, because TSC and the FBI may 
not always know what information about an encounter with a known or 
suspected terrorist will be relevant to law enforcement for the purpose 
of conducting an operational response.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism efforts in that 
it would put the subject of an investigation, study or analysis on 
notice of that fact, thereby permitting the subject to engage in conduct 
designed to frustrate or impede that activity. The nature of 
counterterrorism investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (6) From subsection (e)(3), to the extent that this subsection is 
interpreted to require TSC to provide notice to an individual if TSC 
receives information about that individual from a third party. Should 
the subsection be so interpreted, exemption from this provision is 
necessary to avoid impeding counterterrorism efforts by putting the 
subject of an investigation, study or analysis on notice of that fact, 
thereby permitting the subject to engage in conduct intended to 
frustrate or impede that activity.
    (7) From subsection (e)(5) because many of the records in this 
system are derived from other domestic and foreign agency record systems 
and therefore it is not possible for the FBI and the TSC to vouch for 
their compliance with this provision; however, the TSC has implemented 
internal quality assurance procedures to ensure that TSC terrorist 
screening data is as thorough, accurate, and current as possible. In 
addition, TSC supports but does not

[[Page 342]]

conduct investigations; therefore, it must be able to collect 
information related to terrorist identities and encounters for 
distribution to law enforcement and intelligence agencies that do 
conduct terrorism investigations. In the collection of information for 
law enforcement, counterterrorism, and intelligence purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significance as 
further investigation brings new details to light. The restrictions 
imposed by (e)(5) would limit the ability of those agencies' trained 
investigators and intelligence analysts to exercise their judgment in 
conducting investigations and impede the development of intelligence 
necessary for effective law enforcement and counterterrorism efforts. 
The TSC has, however, implemented internal quality assurance procedures 
to ensure that TSC terrorist screening data is as thorough, accurate, 
and current as possible. The FBI also is exempting the TSRS from the 
requirements of subsection (e)(5) in order to prevent the use of a 
challenge under subsection (e)(5) as a collateral means to obtain access 
to records in the TSRS. The FBI has exempted TSRS records from the 
access and amendment requirements of subsection (d) of the Privacy Act 
in order to protect the integrity of counterterrorism investigations. 
Exempting the TSRS from subsection (e)(5) serves to prevent the 
assertion of challenges to a record's accuracy, timeliness, 
completeness, and/or relevance under subsection (e)(5) to circumvent the 
exemption claimed from subsection (d).
    (8) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on the FBI and the TSC and could alert 
the subjects of counterterrorism, law enforcement, or intelligence 
investigations to the fact of those investigations when not previously 
known.
    (9) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.
    (t) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (5) and 
(8); and (g) of the Privacy Act:
    (1) Law Enforcement National Data Exchange (N-DEx), (JUSTICE/FBI-
020).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Where compliance would not appear to interfere with or adversely affect 
the law enforcement purposes of this system, or the overall law 
enforcement process, the applicable exemption may be waived by the FBI 
in its sole discretion.
    (u) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because this system is exempt from the 
access provisions of subsection (d). Also, because making available to a 
record subject the accounting of disclosures from records concerning 
him/her would specifically reveal any investigative interest in the 
individual. Revealing this information may thus compromise ongoing law 
enforcement efforts. Revealing this information may also permit the 
record subject to take measures to impede the investigation, such as 
destroying evidence, intimidating potential witnesses or fleeing the 
area to avoid the investigation.
    (2) From subsection (c)(4) because this system is exempt from the 
access and amendment provisions of subsection (d).
    (3) From subsections (d)(1), (2), (3), and (4), because these 
provisions concern individual access to and amendment of investigatory 
records, compliance with which could alert the subject of an 
investigation of the fact and nature of the investigation, and/or the 
investigative interest of the FBI and other law enforcement agencies; 
interfere with the overall law enforcement process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; possibly identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigative or intelligence technique; or constitute a potential 
danger to the health

[[Page 343]]

or safety of law enforcement personnel, confidential informants, and 
witnesses. Amendment of these records would interfere with ongoing 
investigations and other law enforcement activities and impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised.
    (4) From subsection (e)(1) because it is not always possible to know 
in advance what information is relevant and necessary for law 
enforcement purposes and, in fact, a major tenet of the N-DEx 
information sharing system is that the relevance of certain information 
may not always be evident in the absence of the ability to correlate 
that information with other existing law enforcement data.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to efforts to solve crimes and 
improve homeland security in that it would put the subject of an 
investigation on notice of that fact, thereby permitting the subject to 
engage in conduct intended to frustrate or impede that activity.
    (6) From subsection (e)(3) because disclosure would put the subject 
of an investigation on notice of that fact and would permit the subject 
to engage in conduct intended to thwart that activity.
    (7)(i) From subsection (e)(5) because many of the records in this 
system are records contributed by other agencies and the restrictions 
imposed by (e)(5) would limit the utility of the N-DEx system. All data 
contributors are expected to ensure that information they share is 
relevant, timely, complete and accurate. In fact, rules for use of the 
N-DEx system will require that information be updated periodically and 
not be used as a basis for action or disseminated beyond the recipient 
without the recipient first obtaining permission from the record owner/
contributor. These rules will be enforced through robust audit 
procedures. The existence of these rules should ameliorate any perceived 
concerns about the integrity of the information in the N-DEx system. 
Nevertheless, exemption from this provision is warranted in order to 
reduce the administrative burden on the FBI to vouch for compliance with 
the provision by all N-DEx data contributors and to encourage those 
contributors to share information the significance of which may only 
become apparent when combined with other information in the N-DEx 
system.
    (ii) The FBI is also exempting the N-DEx from subsection (e)(5) in 
order to block the use of a challenge under subsection (e)(5) as a 
collateral means to obtain access to records in the N-DEx. The FBI has 
exempted these records from the access and amendment requirements of 
subsection (d) of the Privacy Act in order to protect the integrity of 
law enforcement investigations. Exempting the N-DEx system from 
subsection (e)(5) complements this exemption and will provide the FBI 
with the ability to prevent the assertion of challenges to a record's 
accuracy, timeliness, completeness and/or relevance under subsection 
(e)(5) to circumvent the exemption claimed from subsection (d).
    (8) From subsection (e)(8), because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on the FBI and may alert the subjects 
of law enforcement investigations to the fact of those investigations, 
when not previously known.
    (9) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.

[Order No. 40-80, 45 FR 5301, Jan. 23, 1980]

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



Sec. 16.97  Exemption of Bureau of Prisons Systems--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 552a 
(c) (3) and (4), (d), (e) (2) and (3), (e)(4) (H), (e)(8), (f) and (g):
    (1) Custodial and Security Record System (JUSTICE/BOP-001).
    (2) Industrial Inmate Employment Record System (JUSTICE/BOP-003).
    (3) Inmate Administrative Remedy Record System (JUSTICE/BOP-004).
    (4) Inmate Central Record System (JUSTICE/BOP-005).

[[Page 344]]

    (5) Inmate Commissary Accounts Record System (JUSTICE/BOP-006).
    (6) Inmate Physical and Mental Health Record System (JUSTICE/BOP-
007).
    (7) Inmate Safety and Accident Compensation Record System (JUSTICE/
BOP-008).
    (8) Federal Tort Claims Act Record System (JUSTICE/BOP-009).


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(j).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because inmates will not be permitted to 
gain access or to contest contents of these record systems under the 
provisions of subsection (d) of 5 U.S.C. 552a. Revealing disclosure 
accountings can compromise legitimate law enforcement activities and 
Bureau of Prisons responsibilities.
    (2) From subsection (c)(4) because exemption from provisions of 
subsection (d) will make notification of formal disputes inapplicable.
    (3) From subsection (d) because exemption from this subsection is 
essential to protect internal processes by which Bureau personnel are 
able to formulate decisions and policies with regard to federal 
prisoners, to prevent disclosure of information to federal inmates that 
would jeopardize legitimate correctional interests of security, custody, 
or rehabilitation, and to permit receipt of relevant information from 
other federal agencies, state and local law enforcement agencies, and 
federal and state probation and judicial offices.
    (4) From subsection (e)(2) because primary collection of information 
directly from federal inmates about criminal sentences or criminal 
records is highly impractical and inappropriate.
    (5) From subsection (e)(3) because in view of the Bureau of Prisons' 
responsibilities, application of this provision to its operations and 
collection of information is inappropriate.
    (6) From subsection (e)(4)(H) because exemption from provisions of 
subsection (d) will make publication of agency procedures under this 
subsection inapplicable.
    (7) From subsection (e)(8) because the nature of Bureau of Prisons 
law enforcement activities renders notice of compliance with compulsory 
legal process impractical.
    (8) From subsection (f) because exemption from provisions of 
subsection (d) will render compliance with provisions of this subsection 
inapplicable.
    (9) From subsection (g) because exemption from provisions of 
subsection (d) will render provisions of this subsection inapplicable.
    (c) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3), 
(e)(5) and (e)(8), and (g). In addition, the following system of records 
is exempted pursuant to 5 U.S.C. 552a(k)(2) from subsections (c)(3), 
(d), and (e)(1):

Bureau of Prisons Access Control Entry/Exit, (JUSTICE/BOP-010).

    (d) These exemptions apply only to the extent that information in 
these systems is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) or 
(k)(2). Where compliance would not appear to interfere with or adversely 
affect the law enforcement process, and/or where it may be appropriate 
to permit individuals to contest the accuracy of the information 
collected, e.g. public source materials, or those supplied by third 
parties, the applicable exemption may be waived, either partially or 
totally, by the BOP. Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) for similar reasons as those enumerated 
in paragraph (3).
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) will make notification of corrections or notations of 
disputes inapplicable.
    (3) From the access provisions of subsection (d) to the extent that 
exemption from this subsection may appear to be necessary to prevent 
access by record subjects to information that may jeopardize the 
legitimate correctional interests of safety, security, and good order of 
Bureau of Prisons facilities; to protect the privacy of third

[[Page 345]]

parties; and to protect access to relevant information received from 
third parties, such as other Federal State, local and foreign law 
enforcement agencies, Federal and State probation and judicial offices, 
the disclosure of which may permit a record subject to evade 
apprehension, prosecution, etc.; and/or to otherwise protect 
investigatory or law enforcement information, whether received from 
other third parties, or whether developed internally by the BOP.
    (4) From the amendment provisions of subsection (d) because 
amendment of the records would interfere with law enforcement operations 
and impose an impossible administrative burden. In addition to efforts 
to ensure accuracy so as to withstand possible judicial scrutiny, it 
would require that law enforcement and investigatory information be 
continuously reexamined, even where the information may have been 
collected from the record subject. Also, where records are provided by 
other Federal criminal justice agencies or other State, local and 
foreign jurisdictions, it may be administratively impossible to ensure 
compliance with this provision.
    (5) From subsection (e)(1) to the extent that the BOP may collect 
information that may be relevant to the law enforcement operations of 
other agencies. In the interests of overall, effective law enforcement, 
such information should be retained and made available to those agencies 
with relevant responsibilities.
    (6) From subsection (e)(2) because primary collection of information 
directly from the record subject is often highly impractical, 
inappropriate and could result in inaccurate information.
    (7) From subsection (e)(3) because compliance with this subsection 
may impede the collection of information that may be valuable to law 
enforcement interests.
    (8) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Data which may seem unrelated, irrelevant or incomplete when 
collected may take on added meaning or significance as an investigation 
progresses or with the passage of time, and could be relevant to future 
law enforcement decisions.
    (9) From subsection (e)(8) because the nature of BOP law enforcement 
activities renders notice of compliance with compulsory legal process 
impractical and could seriously jeopardize institution security and 
personal safety and/or impede overall law enforcement efforts.
    (10) From subsection (g) to the extent that the system is exempted 
from subsection (d).
    (e) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4), (d), (e) (2) and (3), (e)(5) and (e)(8), (f) and (g):

Telephone Activity Record System (JUSTICE/BOP-011).

    (f) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) 
and/or (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the BOP. Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) to the extent that this system of records 
is exempt from subsection (d), and for such reasons as those cited for 
subsection (d) in paragraph (f)(3) below.
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) makes this exemption inapplicable.
    (3) From the access provisions of subsection (d) because exemption 
from this subsection is essential to prevent access of information by 
record subjects that may invade third party privacy; frustrate the 
investigative process; jeopardize the legitimate correctional interests 
of safety, security, and good order to prison facilities; or otherwise 
compromise, impede, or interfere with BOP or other law enforcement 
agency activities.
    (4) From the amendment provisions from subsection (d) because 
amendment of the records may interfere with law enforcement operations 
and would

[[Page 346]]

impose an impossible administrative burden by requiring that, in 
addition to efforts to ensure accuracy so as to withstand possible 
judicial scrutiny, it would require that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject. Also, some of these records come from 
other Federal criminal justice agencies or State, local and foreign 
jurisdictions, or from Federal and State probation and judicial offices, 
and it is administratively impossible to ensure that the records comply 
with this provision.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can be obtained from other persons who are familiar with such 
individual and his/her activities. In such investigations it is not 
feasible to rely solely upon information furnished by the individual 
concerning his/her own activities since it may result in inaccurate 
information.
    (6) From subsection (e)(3) because in view of BOP's operational 
responsibilities, application of this provision to the collection of 
information is inappropriate. Application of this provision could 
provide the subject with substantial information which may in fact 
impede the information gathering process or compromise an investigation.
    (7) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Material which may seem unrelated, irrelevant or incomplete 
when collected may take on added meaning or significance at a later date 
or as an investigation progresses. Also, some of these records may come 
from other Federal, State, local and foreign law enforcement agencies, 
and from Federal and State probation and judicial offices and it is 
administratively impossible to ensure that the records comply with this 
provision. It would also require that law enforcement information be 
continuously reexamined even where the information may have been 
collected from the record subject.
    (8) From subsection (e)(8) because the nature of BOP law enforcement 
activities renders impractical the notice of compliance with compulsory 
legal process. This requirement could present a serious impediment to 
law enforcement such as revealing investigative techniques or the 
existence of confidential investigations, jeopardize the security of 
third parties, or otherwise compromise law enforcement efforts.
    (9)-(10) [Reserved]
    (11) From subsections (f) and (g) to the extent that this system is 
exempt from the access and amendment provisions of subsection (d).
    (g) The following system of records is exempt pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2), and (3), (e)(5) and (e)(8), and (g) of 5 U.S.C. 552a. In 
addition, the following system of records is exempt pursuant to the 
provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections (c)(3), 
(d), and (e)(1) of 5 U.S.C. 552a:

Bureau of Prisons, Office of Internal Affairs Investigative Records, 
JUSTICE/BOP-012

    (h) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the Office of 
Internal Affairs (OIA). Exemptions from the particular subsections are 
justified for the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIA but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the

[[Page 347]]

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.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
provide the subject of an investigation with information concerning law 
enforcement activities such as that relating to an actual or potential 
criminal, civil or regulatory violation; the existence of an 
investigation; the nature and scope of the information and evidence 
obtained as to his activities; the identity of confidential sources, 
witnesses, and law enforcement personnel; and information that may 
enable the subject to avoid detection or apprehension. Such disclosure 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation; endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel; and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which could compromise the 
national defense or disrupt foreign policy. Amendment of the records 
would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the OIA for the following reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations in 
which use is made of properly classified information. Relevance and 
necessity are questions of judgment and timing, and it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established.
    (ii) During the course of any investigation, the OIA may obtain 
information concerning actual or potential violations of laws other than 
those within the scope of its jurisdiction. In the interest of effective 
law enforcement, the OIA should retain this information as it may aid in 
establishing patterns of criminal activity, and can provide valuable 
leads for Federal and other law enforcement agencies.
    (iii) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information may be supplied to an 
investigator which relates to matters incidental to the primary purpose 
of the investigation but which may relate also to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts, violations of

[[Page 348]]

rules of conduct, or any other misconduct must be obtained from other 
sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful litigation.
    (6) From subsection (e)(3) because the application of this provision 
would provide the subject of an investigation with substantial 
information which could impede or compromise the investigation. 
Providing such notice to a subject of an investigation could interfere 
with an undercover investigation by revealing its existence, and could 
endanger the physical safety of confidential sources, witnesses, and 
investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In the 
collection of information for law enforcement purposes, it is impossible 
to determine in advance what information is accurate, relevant, timely, 
and complete. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
an investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigation report, and 
thereby impede effective law enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigation techniques, 
procedures, and/or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1), and (k)(2) of the Privacy Act.
    (i) Consistent with the legislative purpose of the Privacy Act of 
1974 (Pub. L. 93-579) the BOP has initiated a procedure whereby federal 
inmates in custody may gain access and review their individual prison 
files maintained at the institution of incarceration. Access to these 
files will be limited only to the extent that the disclosure of records 
to the inmate would jeopardize internal decision-making or policy 
determinations essential to the effective operation of the Bureau of 
Prisons; to the extent that disclosure of the records to the inmate 
would jeopardize privacy rights of others, or a legitimate correctional 
interest of security, custody, or rehabilitation; and to the extent 
information is furnished with a legitimate expectation of 
confidentiality. The Bureau of Prisons will continue to provide access 
to former inmates under existing regulations as is consistent with the 
interests listed above. Under present Bureau of Prisons regulations, 
inmates in federal institutions may file administrative complaints on 
any subject under the control of the Bureau. This would include 
complaints pertaining to information contained in these systems of 
records.
    (j) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j) from subsections (e)(1) and (e)(5): Bureau of Prisons Inmate 
Central Records System, (Justice/BOP-005).
    (k) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j). Where 
compliance would not appear to interfere with or adversely affect the 
law enforcement process, and/or where it may be appropriate to permit 
individuals to contest the accuracy of the information collected, e.g. 
public source materials, or those supplied by third parties, the 
applicable exemption may be waived, either partially or totally, by the 
Bureau. Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (e)(1) to the extent that the Bureau may collect 
information that may be relevant to the law enforcement operations of 
other agencies. In the interests of overall, effective law enforcement, 
such information should be retained and made available to those agencies 
with relevant responsibilities.
    (2) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate,

[[Page 349]]

relevant, timely and complete. Data which may seem unrelated, irrelevant 
or incomplete when collected may take on added meaning or significance 
during the course of an investigation or with the passage of time, and 
could be relevant to future law enforcement decisions. In addition, 
because many of these records come from the courts and other state and 
local criminal justice agencies, it is administratively impossible for 
them and the Bureau to ensure compliance with this provision. The 
restrictions of subsection (e)(5) would restrict and delay trained 
correctional managers from timely exercising their judgment in managing 
the inmate population and providing for the safety and security of the 
prisons and the public.
    (l) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j) from subsections (e)(1) and (e)(5): Bureau of Prisons Inmate 
Trust Fund Accounts and Commissary Record System, (Justice/BOP-006).
    (m) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j). Where 
compliance would not appear to interfere with or adversely affect the 
law enforcement process, and/or where it may be appropriate to permit 
individuals to contest the accuracy of the information collected, e.g. 
public source materials, or those supplied by third parties, the 
applicable exemption may be waived, either partially or totally, by the 
Bureau. Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (e)(1) to the extent that the Bureau may collect 
information that may be relevant to the law enforcement operations of 
other agencies. In the interests of overall, effective law enforcement, 
such information should be retained and made available to those agencies 
with relevant responsibilities.
    (2) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Data which may seem unrelated, irrelevant or incomplete when 
collected may take on added meaning or significance as an investigation 
progresses or with the passage of time, and could be relevant to future 
law enforcement decisions. In addition, amendment of the records may 
interfere with law enforcement operations and would impose an impossible 
administrative burden by requiring that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject or other criminal justice agencies. 
The restrictions of subsection (e)(5) would restrict and delay trained 
correctional managers from timely exercising their judgment in managing 
the inmate population and providing for the safety and security of the 
prisons and the public.
    (n) The following system of records is exempted pursuant to 5 U.S.C. 
552a(j) from subsections (e)(1) and (e)(5): Bureau of Prisons Inmate 
Physical and Mental Health Records System, (Justice/BOP-007).
    (o) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j). Where 
compliance would not appear to interfere with or adversely affect the 
law enforcement process, and/or where it may be appropriate to permit 
individuals to contest the accuracy of the information collected, e.g. 
public source materials, or those supplied by third parties, the 
applicable exemption may be waived, either partially or totally, by the 
Bureau. Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (e)(1) to the extent that the Bureau may collect 
information that may be relevant to the law enforcement operations of 
other agencies. In the interests of overall, effective law enforcement, 
such information should be retained and made available to those agencies 
with relevant responsibilities.
    (2) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Data which may seem unrelated, irrelevant or incomplete when 
collected may take

[[Page 350]]

on added meaning or significance during the course of an investigation 
or with the passage of time, and could be relevant to future law 
enforcement decisions. In addition, because many of these records come 
from sources outside the Bureau of Prisons, it is administratively 
impossible for them and the Bureau to ensure compliance with this 
provision. The restrictions of subsection (e)(5) would restrict and 
delay trained correctional managers from timely exercising their 
judgment in managing the inmate population and providing for the health 
care of the inmates and the safety and security of the prisons and the 
public.
    (p) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4), (d)(1)-(4), (e)(2) and (3), (e)(5), and (g):
    Inmate Electronic Message Record System (JUSTICE /BOP-013).
    (q) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) 
and/or (k)(2). Where compliance would not appear to interfere with or 
adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, the applicable exemption may be waived, either 
partially or totally, by the BOP. Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) to the extent that this system of records 
is exempt from subsection (d), and for such reasons as those cited for 
subsection (d) in paragraph (q)(3) below.
    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) makes this exemption inapplicable.
    (3) From the access provisions of subsection (d) because exemption 
from this subsection is essential to prevent access of information by 
record subjects that may invade third party privacy; frustrate the 
investigative process; jeopardize the legitimate correctional interests 
of safety, security and good order to prison facilities; or otherwise 
compromise, impede, or interfere with BOP or other law enforcement 
agency activities.
    (4) From the amendment provisions of subsection (d) because 
amendment of the records may interfere with law enforcement operations 
and would impose an impossible administrative burden by requiring that, 
in addition to efforts to ensure accuracy so as to withstand possible 
judicial scrutiny, it would require that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject. Also, some of these records come from 
other Federal criminal justice agencies or State, local and foreign 
jurisdictions, or from Federal and State probation and judicial offices, 
and it is administratively impossible to ensure that records comply with 
this provision.
    (5) From subsection (e)(2) because the nature of criminal and other 
investigative activities is such that vital information about an 
individual can be obtained from other persons who are familiar with such 
individual and his/her activities. In such investigations it is not 
feasible to rely solely upon information furnished by the individual 
concerning his/her own activities since it may result in inaccurate 
information and compromise ongoing criminal investigations or 
correctional management decisions.
    (6) From subsection (e)(3) because in view of BOP's operational 
responsibilities, application of this provision to the collection of 
information is inappropriate. Application of this provision could 
provide the subject with substantial information which may in fact 
impede the information gathering process or compromise ongoing criminal 
investigations or correctional management decisions.
    (7) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely and 
complete. Material which may seem unrelated, irrelevant or incomplete 
when collected may take on added meaning or significance at a later date 
or as an investigation progresses. Also, some of these records may come 
from other Federal, State, local and foreign law enforcement agencies, 
and from Federal and State probation and judicial offices and it is 
administratively impossible to ensure that the records comply with this 
provision. It would also require that law

[[Page 351]]

enforcement information be continuously reexamined even where the 
information may have been collected from the record subject.
    (8) From subsection (g) to the extent that this system is exempted 
from other provisions of the Act.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976]

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



Sec. 16.98  Exemption of the Drug Enforcement Administration (DEA)--limited access.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (d):
    (1) Automated Records and Consummated Orders System/Diversion 
Analysis and Detection System (ARCOS/DADS) (Justice/DEA-003)
    (2) Controlled Substances Act Registration Records (Justice/DEA-005)
    (3) Registration Status/Investigatory Records (Justice/DEA-012)
    (b) These exemptions apply only to the extent that information in 
these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of the disclosure 
accounting would enable the subject of an investigation to gain valuable 
information concerning the nature and scope of the investigation and 
seriously hamper the regulatory functions of the DEA.
    (2) From subsection (d) because access to records contained in these 
systems may provide the subject of an investigation information that 
could enable him to avoid compliance with the Drug Abuse Prevention and 
Control Act of 1970 (Pub. L. 91-513).
    (c) Systems of records identified in paragraphs (c)(1) through 
(c)(7) below are exempted pursuant to the provisions of 5 U.S.C. 552a 
(j)(2) from subsections (c)(3) and (4); (d)(1), (2). (3) and (4); 
(e)(1), (2) and (3), (e)(5), (e)(8); and (g) of 5 U.S.C. 552a. In 
addition, systems of records identified in paragraphs (c)(1), (c)(2), 
(c)(3), (c)(4), (c)(5), and (c)(6) below are also exempted pursuant to 
the provisions of 5 U.S.C. 552a (k)(1) from subsections (c)(3); (d)(1), 
(2), (3) and (4); and (e)(1):
    (1) Air Intelligence Program (Justice/DEA-001)
    (2) Clandestine Laboratory Seizure System (CLSS) (Justice/DEA-002)
    (3) Investigative Reporting and Filing System (Justice/DEA-008)
    (4) Planning and Inspection Division Records (Justice/DEA-010)
    (5) Operation Files (Justice/DEA-011)
    (6) Security Files (Justice/DEA-013)
    (7) System to Retrieve Information from Drug Evidence (STRIDE/
Ballistics) (Justice/DEA-014)
    (d) Exemptions apply to the following systems of records only to the 
extent that information in the systems is subject to exemption pursuant 
to 5 U.S.C. 552a (j)(2), (k)(1), and (k)(2): Air Intelligence Program 
(Justice/DEA-001); Clandestine Laboratory Seizure System (CLSS) 
(Justice/DEA-002); Planning and Inspection Division Records (Justice/
DEA-010); and Security Files (Justice/DEA-013). Exemptions apply to the 
Investigative Reporting and Filing System (Justice/DEA-008) only to the 
extent that information in the system is subject to exemption pursuant 
to 5 U.S.C. 552a(j) (2) and (k)(1). Exemptions apply to the Operations 
Files (Justice/DEA-011) only to the extent that information in the 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and 
(k)(2). Exemptions apply to the System to Retrieve Information from Drug 
Evidence (STRIDE/Ballistics) (Justice/DEA-014) only to the extent that 
information in the system is subject to exemption pursuant to 5 U.S.C. 
552a(j)(2). Exemption from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
would provide to the subjects of an investigation significant 
information concerning the nature of the investigation and thus would 
present the same impediments to law enforcement as those enumerated in 
paragraph (d)(3) regarding exemption from subsection (d).
    (2) From subsection (c)(4) to the extent that it is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From the access provisions of subsection (d) because access to 
records in

[[Page 352]]

this system of records would present a serious impediment to law 
enforcement. Specifically, it could inform the record subject of an 
actual or potential criminal, civil, or regulatory investigation of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to his activities; of the identity 
of confidential sources, witnesses, and law enforcement personnel; and 
of information that may enable the subject to avoid detection or 
apprehension. Similarly, it may alert collateral suspects yet 
unprosecuted in closed cases. It could prevent the successful completion 
of the investigation; endanger the life, health, or physical safety of 
confidential sources, witnesses, and law enforcement personnel, and/or 
lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony; or it may simply reveal a 
sensitive investigative technique. In addition, granting access to such 
information could result in the disclosure of confidential/security-
sensitive or other information that would constitute an unwarranted 
invasion of the personal privacy of third parties. Finally, access to 
the records could result in the release of properly classified 
information which would compromise the national defense or disrupt 
foreign policy. From the amendment provisions of subsection (d) because 
amendment of the records would interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the DEA for the following reasons:
    (i) It is not possible to detect relevance or necessity of specific 
information in the early stages of a civil, criminal or other law 
enforcement investigation, case, or matter, including investigations 
during which DEA may obtain properly classified information. Relevance 
and necessity are questions of judgment and timing, and it is only after 
the information is evaluated that the relevance and necessity of such 
information can be established.
    (ii) During the DEA's investigative activities DEA may detect the 
violation of either drug-related or non-drug related laws. In the 
interests of effective law enforcement, it is necessary that DEA retain 
all information obtained because it can aid in establishing patterns of 
activity and provide valuable leads for Federal and other law 
enforcement agencies or otherwise assist such agencies in discharging 
their law enforcement responsibilities. Such information may include 
properly classified information, the retention of which could be in the 
interests of national defense and/or foreign policy.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts must be obtained from other 
sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful prosecution.
    (6) From subsection (e)(3) because the requirements thereof would 
constitute a serious impediment to law enforcement in that they could 
compromise the existence of an actual or potential confidential 
investigation and/or permit the record subject to speculate on the 
identity of a potential confidential source, and endanger the life, 
health or physical safety or either actual or potential confidential 
informants and witnesses, and of investigators/law enforcement 
personnel. In addition, the notification requirement of subsection 
(e)(3) could impede collection of that information from the record 
subject, making it necessary to collect the information solely from 
third party

[[Page 353]]

sources and thereby inhibiting law enforcement efforts.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions imposed by subsection (e)(5) would 
restrict the ability of trained investigators and intelligence analysts 
to exercise their judgment in reporting on investigations and impede the 
development of criminal intelligence necessary for effective law 
enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
    (e) The following systems of records are exempt from 5 U.S.C. 552a 
(d)(1) and (e)(1):
    (1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
    (2) DEA Applicant Investigations (Justice/DEA-018).
    (f) These exemptions apply only to the extent that information in 
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning an applicant for a grant of confidentiality with DEA. By 
permitting access to information which may reveal the identity of the 
source of that information--after a promise of confidentiality has been 
given--DEA would breach the promised confidentiality. Ultimately, such 
breaches would restrict the free flow of information which is vital to a 
determination of an applicant's qualifications for a grant.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluation purposes, it is impossible to determine 
in advance what exact information may be of assistance in determining 
the qualifications and suitability of a candidate. Information which may 
appear irrelevant, when combined with other apparently irrelevant 
information, can on occasion provide a composite picture of an applicant 
which assists in determining whether a grant of confidentiality is 
warranted.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5), and 
(8); and (g): El Paso Intelligence Center (EPIC) Seizure System (ESS) 
(JUSTICE/DEA-022). These exemptions apply only to the extent that 
information in this system is subject to exemption pursuant to 5 U.S.C. 
552a (j)(2), (k)(1), and (k)(2). Where compliance would not appear to 
interfere with or adversely affect the law enforcement and counter-drug 
purposes of this system, and the overall law enforcement process, the 
applicable exemption may be waived by the DEA in its sole discretion.
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would potentially reveal any investigative interest in the individual. 
Revealing this information would permit the subject of an investigation 
of an actual or potential criminal, civil, or regulatory violation to 
determine whether he is the subject of investigation, or to obtain 
valuable information concerning the nature of that investigation, and 
the information obtained, or the identity of witnesses and informants. 
Similarly, disclosing this information could reasonably be expected to 
compromise ongoing investigatory efforts by notifying the record subject 
that he/she is under investigation. This information could also permit 
the record subject to

[[Page 354]]

take measures to impede the investigation, e.g., destroy evidence, 
intimidate potential witnesses, or flee the area to avoid or impede the 
investigation.
    (2) From subsection (c)(4) because this system is exempt from the 
access and amendment provisions of subsection (d).
    (3) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of records 
contained in this system, which consists of counter-drug and criminal 
investigatory records. Compliance with these provisions could alert the 
subject of an investigation of an actual or potential criminal, civil, 
or regulatory violation of the existence of that investigation, of the 
nature and scope of the information and evidence obtained as to his 
activities, of the identity of witnesses and informants, or would 
provide information that could enable the subject to avoid detection or 
apprehension. These factors would present a serious impediment to 
effective law enforcement because they could prevent the successful 
completion of the investigation; endanger the physical safety of 
witnesses or informants; or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony.
    (4) From subsection (e)(1) because it is not always possible to know 
in advance what information is relevant and necessary to complete an 
identity comparison between the individual being screened and a known or 
suspected criminal or terrorist. Also, it may not always be known what 
information will be relevant to law enforcement for the purpose of 
conducting an operational response or on-going investigation.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to law enforcement and counter-drug 
efforts in that it would put the subject of an investigation, study or 
analysis on notice of that fact, thereby permitting the subject to 
engage in conduct designed to frustrate or impede that activity. The 
nature of counter-drug investigations is such that vital information 
about an individual frequently can be obtained only from other persons 
who are familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (6) From subsection (e)(3) because the requirements thereof would 
constitute a serious impediment to law enforcement in that they could 
compromise the existence of an actual or potential confidential 
investigation and/or permit the record subject to speculate on the 
identity of a potential confidential source, and endanger the life, 
health or physical safety of either actual or potential confidential 
informants and witnesses, and of investigators/law enforcement 
personnel. In addition, the notification requirement of subsection 
(e)(3) could impede collection of that information from the record 
subject, making it necessary to collect the information solely from 
third party sources and thereby inhibiting law enforcement efforts.
    (7) From subsection (e)(5) because many of the records in this 
system are derived from other domestic record systems and therefore it 
is not possible for the DEA and EPIC to vouch for their compliance with 
this provision. In addition, EPIC supports but does not conduct 
investigations; therefore, it must be able to collect information 
related to illegal drug and other criminal activities and encounters for 
distribution to law enforcement and intelligence agencies that do 
conduct counter-drug investigations. In the collection of information 
for law enforcement and counter-drug purposes, it is impossible to 
determine in advance what information is accurate, relevant, timely, and 
complete. With the passage of time, seemingly irrelevant or untimely 
information may acquire new significance as further investigation brings 
new details to light. The restrictions imposed by (e)(5) would limit the 
ability of those agencies' trained investigators and intelligence 
analysts to exercise their judgment in conducting investigations and 
impede the development of intelligence necessary for effective law 
enforcement and counterterrorism efforts. EPIC has, however, implemented 
internal quality assurance procedures to ensure that ESS data is as 
thorough, accurate, and current as possible. ESS is also exempt

[[Page 355]]

from the requirements of subsection (e)(5) in order to prevent the use 
of a challenge under subsection (e)(5) as a collateral means to obtain 
access to records in the ESS. ESS records are exempt from the access and 
amendment requirements of subsection (d) of the Privacy Act in order to 
protect the integrity of investigations. Exempting ESS from subsection 
(e)(5) serves to prevent the assertion of challenges to a record's 
accuracy, timeliness, completeness, and/or relevance under subsection 
(e)(5) to circumvent the exemption claimed from subsection (d).
    (8) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on the DEA and EPIC and could alert the 
subjects of counter-drug, counterterrorism, law enforcement, or 
intelligence investigations to the fact of those investigations when not 
previously known. Additionally, compliance could present a serious 
impediment to law enforcement as this could interfere with the ability 
to issue warrants or subpoenas and could reveal investigative 
techniques, procedures, or evidence.
    (9) From subsection (g) to the extent that the system is exempt from 
other specific subsections of the Privacy Act.

[Order No. 88-94, 59 FR 29717, June 9, 1994, as amended by Order No. 
127-97, 62 FR 2903, Jan. 21, 1997; Order No. 009-2003, 68 FR 14140, Mar. 
24, 2003; 72 FR 54825, Sept. 27, 2007]



Sec. 16.99  Exemption of the Immigration and Naturalization Service Systems-limited access.

    (a) The following systems of records of the Immigration and 
Naturalization Service are exempt from 5 U.S.C. 552a (c) (3) and (4), 
(d), (e) (1), (2) and (3), (e) (4)(G) and (H), (e) (5) and (8), and (g):
    (1) The Immigration and Naturalization Service Alien File (A-File) 
and Central Index System (CIS), JUSTICE/INS-001A.
    (2) The Immigration and Naturalization Service Index System, 
JUSTICE/INS-001 which consists of the following subsystems:
    (i) Agency Information Control Record Index.
    (ii) Alien Enemy Index.
    (iii) Congressional Mail Unit Index.
    (iv) Air Detail Office Index.
    (v) Anti-smuggling Index (general).
    (vi) Anti-smuggling Information Centers Systems for Canadian and 
Mexican Borders.
    (vii) Border Patrol Sectors General Index System.
    (viii) Contact Index.
    (ix) Criminal, Narcotic, Racketeer and Subversive Indexes.
    (x) Enforcement Correspondence Control Index System.
    (xi) Document Vendors and Alterers Index.
    (xii) Informant Index.
    (xiii) Suspect Third Party Index.
    (xiv) Examination Correspondence Control Index.
    (xv) Extension Training Enrollee Index.
    (xvi) Intelligence Index.
    (xvii) Naturalization and Citizenship Indexes.
    (xviii) Personnel Investigations Unit Indexes.
    (xix) Service Look-Out Subsystem.
    (xx) White House and Attorney General Correspondence Control Index.
    (xxi) Fraudulent Document Center Index.
    (xxii) Emergency Reassignment Index.
    (xxiii) Alien Documentation, Identification, and Telecommunication 
(ADIT) System.


The exemptions apply to the extent that information in these subsystems 
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
    (3) The Immigration and Naturalization Service ``National Automated 
Immigration Lookout System (NAILS) JUSTICE/INS-032.'' The exemptions 
apply only to the extent that records in the system are subject to 
exemptions pursuant to 5 U.S.C. 552a(j)(2) and (k)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure pursuant to the routine uses published for 
these subsystems would permit the subject of a criminal or civil 
investigation to obtain valuable information concerning the nature of 
that investigation and present a serious impediment to law enforcement.

[[Page 356]]

    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
these subsystems would inform the subject of a criminal or civil 
investigation of the existence of that investigation, provide the 
subject of the investigation with information that might enable him to 
avoid detection or apprehension, and present a serious impediment to law 
enforcement.
    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction. In 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal or civil 
investigation, the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be placed on notice of the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life or physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these subsystems of 
records are exempt from individual access pursuant to subsection (j) of 
the Privacy Act of 1974.
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the Immigration and 
Naturalization Service's ability to issue administrative subpoenas and 
could reveal investigative techniques and procedures.
    (10) From subsection (g) because these subsystems of records are 
compiled for law enforcement purposes and have been exempted from the 
access provisions of subsections (d) and (f).
    (11) In addition, these systems of records are exempt from 
subsections (c)(3), (d), (e)(1), (e)(4) (G) and (H) to the extent they 
are subject to exemption pursuant to 5 U.S.C. 552a(k)(1). To permit 
access to records classified pursuant to Executive Order would violate 
the Executive Order protecting classified information.
    (c) The Border Patrol Academy Index Subsystem is exempt from 5 
U.S.C. 552a (d) and (f).

This exemption applies only to the extent that information in this 
subsystem is subject to exemption pursuant to 5 U.S.C. 552a(k).
    (d) Exemptions for the particular subsections are justified for the 
following reasons.
    (1) From subsection (d) because exemption is claimed only for those 
testing and examination materials used to determine an individual's 
qualifications for retention and promotion in the Immigration and 
Naturalization Service. This is necessary to protect the integrity of 
testing materials and

[[Page 357]]

to insure fair and uniform examinations.
    (2) From subsection (f) because the subsystem of records has been 
exempted from the access provisions of subsection (d).
    (e) The Orphan Petitioner Index and Files (Justice/INS-007) system 
of records is exempt from 5 U.S.C. 552a(d). This exemption applies only 
to the extent that information in this system is subject to exemption 
pursuant to 5 U.S.C. 552a(k)(1).
    (f) Exemption from paragraph (d) of this section is claimed solely 
because of the possibility of receipt of classified information during 
the course of INS investigation of prospective adoptive parents.

Although it would be rare, prospective adoptive parents may originally 
be from foreign countries (for example) and information received on them 
from their native countries may require classification under Executive 
Order 12356 which safeguards national security information. If such 
information is relevant to the INS determination with respect to 
adoption, the information would be kept in the file and would be 
classified accordingly. Therefore, access could not be granted to the 
record subject under the Privacy Act without violating E.O. 12356.
    (g) The Office of Internal Audit Investigations Index and Records 
(Justice/INS-002) system of records is exempt under the provisions of 5 
U.S.C. 552a(j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5) and (8); and (g), but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in the system are subject to exemption therefrom. In 
addition, this system of records is also exempt under the provisions of 
5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only 
to the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (h) The following justification apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure could permit the subject of an actual or 
potential criminal or civil investigation to obtain valuable information 
concerning the existence and nature of the investigation, the fact that 
individuals are subjects of the investigation, and present a serious 
impediment to law enforcement.
    (2) From subsection (c)(4) to the extent that the exemption from 
subsection (d) is applicable. Subsection (c)(4) will not be applicable 
to the extent that records in the system are properly withholdable under 
subsection (d).
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the existence 
of that investigation; of the nature and scope of the information and 
evidence obtained as to their activities; of the identity of 
confidential sources, witnesses and law enforcement personnel; and of 
information that may enable the subject to avoid detection or 
apprehension. Such disclosures would present a serious impediment to 
effective law enforcement where they prevent the successful completion 
of the investigation; endanger the physical safety of confidential 
sources, witnesses, and law enforcement personnel; and/or lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony. In addition, granting access to these records 
could result in a disclosure that would constitute an unwarranted 
invasion of the privacy of third parties. Amendment of the records would 
interfere with ongoing investigations and law enforcement activities and 
impose an impossible administrative burden by requiring investigations 
to be continuously reinvestigated.
    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction, in 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable

[[Page 358]]

leads for those law enforcement agencies that are charged with enforcing 
other segments of the criminal law.
    (5) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment of criminal 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identify of confidential sources 
of information and endanger the life or physical safety of confidential 
informants.
    (7) From subsection (e)(5) because in the collection of information 
for criminal law enforcement purposes it is impossible to determine in 
advance what information is accurate, relevant, timely, and complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further investigation brings new details 
to light and the accuracy of such information can only be determined in 
a court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (8) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
criminal law enforcement as this could interfere with the Immigration 
and Naturalization Service's ability to issue administrative subpoenas 
and could reveal investigative techniques and procedures.
    (9) From subsection (g) for those portions of this system of records 
that were compiled for criminal law enforcement purposes and which are 
subject to exemption from the access provisions of subsections (d) 
pursuant to subsection (j)(2).
    (i) The Law Enforcement Support Center Database (LESC) (Justice/INS-
023) system of records is exempt under the provisions of 5 U.S.C. 
552a(j)(2) from subsections (c) (3) and (4); (d); (e) (1), (2), (3), 
(5), (8) and (g); but only to the extent that this system contains 
records within the scope of subsection (j)(2), and to the extent that 
records in the system are subject to exemption therefrom. In addition, 
this system of records is also exempt in part under the provisions of 5 
U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only to 
the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (j) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of 
this section.
    (2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of 
this section.
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the existence 
of that investigation; of the nature and scope of the information and 
evidence obtained as to their activities; and of information that may 
enable the subject to avoid detection or apprehension. Such disclosures 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation or other law 
enforcement operation such as deportation or exclusion. In addition, 
granting access to these records could result in a disclosure that would 
constitute an unwarranted invasion of the privacy of third parties. 
Amendment of the records would interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of 
this section.

[[Page 359]]

    (5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of 
this section.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to criminal 
law enforcement in that it could compromise the existence of a 
confidential investigation.
    (7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of 
this section.
    (8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of 
this section.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d).
    (k) The Attorney/Representative Complaint/Petition File (JUSTICE/
INS-022) system of records is exempt under the provisions of 5 U.S.C. 
552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), 
and (8); and (g); but only to the extent that this system contains 
records within the scope of subsection (j)(2), and to the extent that 
records in this system are subject to exemption therefrom. In addition, 
this system of records is also exempt in part under the provisions of 5 
U.S.C. 552a (k)(2) from subsections (c)(3); (d); and (e)(1), but only to 
the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in this system are 
subject to exemption therefrom.
    (l) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of 
this section.
    (2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of 
this section.
    (3) From the access and amendment provisions of subsection (d) for 
reasons stated in paragraph (h)(3) of this section.
    (4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of 
this section.
    (5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of 
this section.
    (6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of 
this section.
    (7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of 
this section.
    (8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of 
this section.
    (9) From subsection (g) to the extent that the system is exempt from 
the access and amendment provisions of subsection (d).
    (m) The Worksite Enforcement Activity and Records Index (LYNX) 
(JUSTICE/INS-025) system of records is exempt under the provisions of 5 
U.S.C. 552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5), and (8); and (g); but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in this system are subject to exemption therefrom. 
In addition, this system of records is also exempt in part under the 
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and 
(e)(1), but only to the extent that this system contains records within 
the scope of subsection (k)(2), and to the extent that records in this 
system are subject to exemption therefrom.
    (n) The following justifications apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) for reasons started in paragraph (h)(1) 
of this section.
    (2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of 
this section.
    (3) From the access and amendment provisions of subsection (d) for 
reasons sated in paragraph (h)(3) of this section.
    (4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of 
this section.
    (5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of 
this section.
    (6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of 
this section.
    (7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of 
this section.

[[Page 360]]

    (8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of 
this section.
    (9) From subsection (g) to the extent that the system is exempt from 
the access and amendment provisions of subsection (d).

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
688-77, 42 FR 10001, Feb. 18, 1977; Order No. 6-84, 49 FR 20812, May 17, 
1984; Order No. 25-88, 53 FR 41161, Oct. 20, 1988; Order No. 137-97, 62 
FR 34169, June 25, 1997; Order No. 142-97, 62 FR 44083, Aug. 19, 1997; 
Order No. 196-2000, 65 FR 21139, Apr. 20, 2000; Order No. 197-2000, 65 
FR 21140, Apr. 20, 2000]



Sec. 16.100  Exemption of Office of Justice Programs--limited access.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):
    (1) The Civil Rights Investigative System (JUSTICE/OJP-008).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (b) Exemption from subsection (d) is claimed since access to 
information in the Civil Rights Investigative System prior to final 
administrative resolution will deter conciliation and compliance 
efforts. Consistent with the legislative purpose of the Privacy Act of 
1974, decisions to release information from the system will be made on a 
case-by-case basis and information will be made available where it does 
not compromise the complaint and compliance process. In addition, where 
explicit promises of confidentiality must be made to a source during an 
investigation, disclosure will be limited to the extent that the 
identity of such confidential sources will not be compromised.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
5-78, 43 FR 36439, Aug. 17, 1978; Order No. 43-80, 45 FR 6780, Jan. 30, 
1980; Order No. 6-86, 51 FR 15479, Apr. 24, 1986; Order NO. 6-236-2001, 
66 FR 35374, July 5, 2001]



Sec. 16.101  Exemption of U.S. Marshals Service Systems--limited access, as indicated.

    (a) The following system of records is exempt from 5 U.S.C. 
552(a)(c) (3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), 
(e)(5), (e)(8), (f) and (g):
    (1) Warrant Information System (JUSTICE/USM-007).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of disclosure 
accounting for disclosure made pursuant to subsection (b) of the Act, 
including those permitted under routine uses published for this system 
of records would permit a person to determine whether he is the subject 
of a criminal investigation, and to determine whether a warrant has been 
issued against him, and therefore present a serious impediment to law 
enforcement.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d) of the Act, this section is inapplicable.
    (3) From subsection (d) because access to records would inform a 
person for whom a federal warrant has been issued of the nature and 
scope of information obtained as to his activities, of the identity of 
informants, and afford the person sufficient information to enable the 
subject to avoid apprehension. These factors would present a serious 
impediment to law enforcement in that they would thwart the warrant 
process and endanger lives of informants etc.
    (4) From subsections (e)(1) and (e)(5) because the requirements of 
these subsections would present a serious impediment to law enforcement 
in that it is impossible to determine in advance what information 
collected during an investigation will be important or crucial to the 
apprehension of Federal fugitives. In the interest of effective law 
enforcement, it is appropriate in a thorough investigation to retain 
seemingly irrelevant, untimely, or inaccurate information which, with 
the passage of time, would aid in establishing patterns of activity and 
provide investigative leads toward fugitive apprehension and assist in 
law enforcement activities of other agencies.
    (5) From subsection (e)(2) because the requirement that information 
be collected to the greatest extent practical from the subject 
individual would

[[Page 361]]

present a serious impediment to law enforcement because the subject of 
the investigation or prosecution would be placed on notice as to the 
existence of the warrant and would therefore be able to avoid detection 
or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation or reveal identity of confidential informants.
    (7) From subsections (e)(4) (G) and (H) since an exemption is being 
claimed for subsections (f) and (d) of the Act, these subsections are 
inapplicable.
    (8) From subsection (e)(8) because the individual notice requirement 
of this subsection would present a serious impediment to law enforcement 
in that it would give persons sufficient warning to avoid warrants, 
subpoena, etc.
    (9) From subsection (f) because procedures for notice to an 
individual pursuant to subsection (f)(1) as to existence of records 
pertaining to him dealing with warrants must be exempted because such 
notice to individuals would be detrimental to the successful service of 
a warrant. Since an exemption is being claimed for subsection (d) of the 
Act the rules required pursuant to subsections (f) (2) through (5) are 
inapplicable to this system of records.
    (10) From subsection (g) since an exemption is being claimed for 
subsection (d) and (f) this section is inapplicable and is exempted for 
the reasons set forth for these subsections.
    (c) The following system of records is exempt from 5 U.S.C. 552a (c) 
(3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f)(2) 
and (g):
    (1) Witness Security System (JUSTICE/USM-008).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosures made pursuant to subsection (b) of the Act 
including those permitted under routine uses published for this system 
of records would hamper the effective functioning of the Witness 
Security Program which by its very nature requires strict 
confidentiality vis-a-vis the records.
    (2) From subsection (c)(4) for the reason stated in (b)(2) of this 
section.
    (3) From subsection (d) because the U.S. Marshals Service Witness 
Security Program aids efforts of law enforcement officials to prevent, 
control or reduce crime. Access to records would present a serious 
impediment to effective law enforcement through revelation of 
confidential sources and through disclosure of operating procedures of 
the program, and through increased exposure of the program to the 
public.
    (4) From subsection (e)(2) because in the Witness Security Program 
the requirement that information be collected to the greatest extent 
possible from the subject individual would constitute an impediment to 
the program, which is sometimes dependent on sources other than the 
subject witness for verification of information pertaining to the 
witness.
    (5) From subsection (e)(3) for the reason stated in (b)(6) of this 
section.
    (6) From subsection (e)(4) (G) and (H) for the reason stated in 
(b)(7) of this section.
    (7) From subsection (e)(8) for the reason stated in (b)(8) of this 
section.
    (8) From subsection (f)(2) since an exemption is being claimed for 
subsection (d) of the Act the rules required pursuant to subsection (f) 
(2) through (5) are inapplicable to this system of records.
    (9) From subsection (g) for the reason stated in (b)(10) of this 
section.
    (e) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5), 
(e)(8), (f) and (g).
    (1) Internal Affairs System (JUSTICE/USM-002)--Limited access. These 
exemptions apply only to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(2) or (k)(5). 
Where compliance would not interfere with or adversely affect the law 
enforcement

[[Page 362]]

process, the USMS may waive the exemptions, either partially or totally.
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsections (c)(3) and (d) to the extent that release of 
the disclosure accounting may impede or interfere with civil or criminal 
law enforcement efforts, reveal a source who furnished information to 
the Government in confidence, and/or result in an unwarranted invasion 
of the personal privacy of collateral record subjects or other third 
party individuals.
    (2) From subsection (c)(4) for the reason stated in (b)(2) of this 
section.
    (3) From subsection (e)(1) to the extent that it is necessary to 
retain all information in order not to impede, compromise, or interfere 
with civil or criminal law enforcement efforts, e.g., where the 
significance of the information may not be readily determined and/or 
where such information may provide leads or assistance to Federal and 
other law agencies in discharging their law enforcement 
responsibilities.
    (4) From subsection (e)(2) because the requirement that information 
be collected to the greatest extent practicable from the subject 
individual would present a serious impediment to law enforcement because 
the subject of the investigation or prosecution would be placed on 
notice as to the existence of the investigation and would therefore be 
able to compromise the investigation and avoid detection or 
apprehension.
    (5) From subsection (e)(3) for the reason stated in (b)(6) of this 
section.
    (6) From subsections (e)(4) (G) and (H) for the reason stated in 
(b)(7) of this section.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance and the accuracy of such information can only 
be determined in a court of law. The restrictions imposed by subsection 
(e)(5) would restrict the ability to collect information for law 
enforcement purposes and interfere with the preparation of a complete 
investigative report or otherwise impede effective law enforcement.
    (8) From subsection (e)(8) because the individual notice requirement 
of this subsection would present a serious impediment to law enforcement 
in that the subject of the investigation would be alerted as to the 
existence of the investigation and therefore be able to compromise the 
investigation and avoid detection, subpoena, etc.
    (9) From subsection (f) because procedures for notice to an 
individual pursuant to subsection (f)(1) as to the existence of records 
dealing with investigations of criminal or civil law violations would 
enable the individual to compromise the investigation and evade 
detection or apprehension. Since an exemption is being claimed for 
subsection (d) of the Act, the rules required pursuant to subsections 
(f)(2) through (f)(5) are not applicable to this system.
    (10) From subsection (g) for the reason stated in (b)(10) of this 
section.
    (g) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g):
    (1) U.S. Marshals Service Threat Analysis Information System 
(JUSTICE/USM-009).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit a person to determine whether he or she has been 
identified as a specific threat to USMS protectees and to determine the 
need for countermeasures to USMS protective activities and thereby 
present a serious impediment to law enforcement.
    (2) From subsection (c)(4) because it is inapplicable since an 
exemption is being claimed for subsection (d).
    (3) From subsection (d) because to permit access to records would 
inform a person of the nature and scope of information obtained as to 
his or her threat-related activities and of the

[[Page 363]]

identity of confidential sources, and afford the person sufficient 
information to develop countermeasures to thwart protective arrangements 
and endanger lives of USMS protectees, informants, etc. To permit 
amendment of the records would interfere with ongoing criminal law 
enforcement and impose an impossible administrative burden requiring 
criminal investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because the collection of 
investigatory information used to assess the existence, extent and 
likelihood of a threat situation necessarily includes material from 
which it is impossible to identify and segregate information which may 
not be important to the conduct of a thorough assessment. It is often 
impossible to determine in advance if all information collected is 
accurate, relevant, timely and complete but, in the interests of 
developing effective protective measures, it is necessary that the U.S. 
Marshals Service retain this information in order to establish patterns 
of activity to aid in accurately assessing threat situations. The 
restrictions of subsections (e) (1) and (5) would impede the protective 
responsibilities of the Service and could result in death or serious 
injury to Marshals Service protectees.
    (5) From subsection (e)(2) because to collect information from the 
subject individual would serve notice that he or she is identified as a 
specific threat to USMS protectees and would enable the subject 
individual to develop countermeasures to protective activities and 
thereby present a serious impediment to law enforcement.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection would enable the subject individual to develop 
countermeasures to USMS protective arrangements or identify confidential 
sources and thereby present a serious impediment to law enforcement.
    (7) From subsections (e)(4) (G) and (H) because they are 
inapplicable since an exemption is being claimed for subsections (d) and 
(f) of the Act.
    (8) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to develop countermeasures to protective 
arrangements and thereby present a serious impediment to law enforcement 
through compromise of protective procedures, etc.
    (9) From subsection (f) because this system of records is exempt 
from the provisions of subsection (d).
    (10) From subsection (g) because it is inapplicable since an 
exemption is being claimed for subsections (d) and (f).
    (i) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (d):
    (1) Judicial Facility Security Index System (JUSTICE/USM-010)


These exemptions apply only to the extent that information in this 
system is exempt pursuant to 5 U.S.C. 552a(k)(5).
    (j) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) only to the extent that release of the 
disclosure accounting would reveal the identity of a confidential 
source.
    (2) From subsection (d) only to the extent that access to 
information would reveal the identity of a confidential source.
    (k) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G) and (H), (e)(5), 
(e)(8), (f) and (g):
    (1) U.S. Marshals Service Freedom of Information/Privacy Act (FOIA/
PA) Files (JUSTICE/USM-012).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(2) 
and (k)(5).
    (l) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the existence and nature of the 
investigation and present a serious impediment to law enforcement.
    (2) From subsection (c)(4) because that portion of this system which 
consists of investigatory records compiled for law enforcement purposes 
is being

[[Page 364]]

exempted from the provisions of subsection (d), rendering this provision 
not applicable.
    (3) From subsection (d) because to permit access to investigatory 
records would reveal the identity of confidential sources and impede 
ongoing investigative or law enforcement activities by the premature 
disclosure of information related to those efforts. To permit amendment 
of the records would interfere with ongoing criminal law enforcement and 
impose an impossible administrative burden by requiring criminal 
investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because it is often impossible 
to determine in advance if investigatory records contained in this 
system are accurate, relevant, timely and complete but, in the interests 
of effective law enforcement, it is necessary to retain this information 
to aid in establishing patterns of activity and provide leads in 
criminal investigations.
    (5) From subsection (e)(2) because to collect information from the 
subject individual would serve notice that he or she is the subject of 
criminal investigative or law enforcement activity and thereby present a 
serious impediment to law enforcement.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection would enable the subject individual to identify 
confidential sources, reveal the existence of an investigation, and 
compromise law enforcement efforts.
    (7) From subsections (e)(4) (G) and (H) because they are 
inapplicable since an exemption is being claimed for subsections (d) and 
(f) for investigatory records contained in this system.
    (8) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to evade law enforcement efforts.
    (9) From subsection (f) because investigatory records contained in 
this system are exempt from the provisions of subsection (d).
    (10) From subsection (g) because it is inapplicable since an 
exemption is being claimed for subsections (d) and (f).
    (m) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (2) and (3), (e)(4) (G) and (H), (e)(8), (f) and 
(g):
    (1) U.S. Marshals Service Administrative Proceedings, Claims and 
Civil Litigation Files (JUSTICE/USM-013).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2) or 
(k)(5).
    (n) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting for disclosures pursuant to the routine uses published for 
this system would permit the subject of a criminal or civil case or 
matter under investigation, or a case or matter in litigation, or under 
regulatory or administrative review or action, to obtain valuable 
information concerning the nature of that investigation, case or matter, 
and present a serious impediment to law enforcement or civil legal 
activities, or reveal a confidential source.
    (2) From subsection (c)(4) because the exemption claimed for 
subsection (d) will make this section inapplicable.
    (3) From subsection (d) because to permit access to records 
contained in this system would provide information concerning litigation 
strategy, or case development, and/or reveal the nature of the criminal 
or civil case or matter under investigation or administrative review, or 
in litigation, and present a serious impediment to law enforcement or 
civil legal activities, or reveal a confidential source.
    (4) From subsection (e)(2) because effective legal representation, 
defense, or claim adjudication necessitates collecting information from 
all individuals having knowledge of the criminal or civil case or 
matter. To collect information primarily from the subject individual 
would present a serious impediment to law enforcement or civil legal 
activities.
    (5) From subsection (e)(3) because to inform the individuals as 
required by this subsection would permit the subject of a criminal or 
civil matter under investigation or administrative review to compromise 
that investigation or administrative review and thereby impede law 
enforcement efforts or civil legal activities.

[[Page 365]]

    (6) From subsections (e)(4) (G) and (H) because these provisions are 
inapplicable since this system is exempt from subsections (d) and (f) of 
the Act.
    (7) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to compromise a criminal or civil 
investigation or administrative review and thereby impede law 
enforcement of civil legal activities.
    (8) From subsection (f) because this system of records is exempt 
from the provisions of subsection (d).
    (9) From subsection (g) because it is inapplicable since an 
exemption is claimed for subsections (d) and (f).
    (o) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), (5) and (g):
    (1) U.S. Marshals Service Prisoner Transportation System (JUSTICE/
USM-003).

    These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (p) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) where the release of the disclosure 
accounting for disclosures made pursuant to subsection (b) of the Act 
would reveal a source who furnished information to the Government in 
confidence.
    (2) From subsection (c)(4) to the extent that the system is exempt 
from subsection (d).
    (3) From subsection (d) because access to records would reveal the 
names and other information pertaining to prisoners, including sensitive 
security information such as the identities and locations of 
confidential sources, e.g., informants and protected witnesses; and 
disclose access codes, data entry codes and message routing symbols used 
in law enforcement communications systems to schedule and effect 
prisoner movements. Thus, such a compromise of law enforcement 
communications systems would subject law enforcement personnel and other 
prisoners to harassment and possible danger, and present a serious 
threat to law enforcement activities. To permit amendment of the records 
would interfere with ongoing criminal law enforcement and impose an 
impossible administrative burden by requiring that information affecting 
the prisoner's security classification be continuously reinvestigated 
when contested by the prisoner, or by anyone on his behalf.
    (4) From subsections (e) (1) and (5) because the security 
classification of prisoners is based upon information collected during 
official criminal investigations; and, in the interest of ensuring safe 
and secure prisoner movements it may be necessary to retain information 
the relevance, necessity, accuracy, timeliness, and completeness of 
which cannot be readily established, but which may subsequently prove 
useful in establishing patterns of criminal activity or avoidance, and 
thus be essential to assigning an appropriate security classification to 
the prisoner. The restrictions of subsection (e) (1) and (5) would 
impede the information collection responsibilities of the USMS, and the 
lack of all available information could result in death or serious 
injury to USMS and other law enforcement personnel, prisoners in 
custody, and members of the public.
    (5) From subsection (e)(2) because the requirement to collect 
information from the subject individual would impede the information 
collection responsibilities of the USMS in that the USMS is often 
dependent upon sources other than the subject individual for 
verification of information pertaining to security risks posed by the 
individual prisoner.
    (6) From subsection (g) to the extent that the system is exempt from 
subsection (d).
    (q) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (2), (3), (e)(5) and (e)(8) and (g):
    (1) U.S. Marshals Service Prisoner Processing and Population 
Management System (JUSTICE/USM-005).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (r) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit the subject of a criminal proceeding to 
determine the extent or nature of law enforcement authorities'

[[Page 366]]

knowledge regarding his/her alleged misconduct or criminal activities. 
The disclosure of such information could alert the subject to devise 
ways in which to conceal his/her activities and/or prevent law 
enforcement from learning additional information about his/her 
activities, or otherwise inhibit law enforcement efforts. In addition, 
where the individual is the subject of an ongoing or potential inquiry/
investigation, such release could reveal the nature thereof prematurely, 
and may also enable the subject to determine the identity of witnesses 
and informants. Such disclosure could compromise the ongoing or 
potential inquiry/investigation, endanger the lives of witnesses and 
informants, or otherwise impede or thwart law enforcement efforts.
    (2) From subsection (c)(4) to the extent that the system is exempt 
from subsection (d).
    (3) From subsection (d) because to permit unlimited access would 
permit the subject of a criminal proceeding to determine the extent or 
nature of law enforcement authorities' knowledge regarding his/her 
alleged misconduct or criminal activities. The disclosure of such 
information could alert the subject to devise ways in which to conceal 
his/her activities and/or prevent law enforcement from learning 
additional information about his/her activities, or otherwise inhibit 
law enforcement efforts. Disclosure would also allow the subject to 
obtain sensitive information concerning the existence and nature of 
security measures and jeopardize the safe and secure transfer of the 
prisoner, the safety and security of other prisoners, informants and 
witnesses, law enforcement personnel, and the public. In addition, 
disclosure may enable the subject to learn prematurely of an ongoing or 
potential inquiry/investigation, and may also permit him/her to 
determine the identities of confidential sources, informants, or 
protected witnesses. Such disclosure could compromise the ongoing or 
potential inquiry/investigation, endanger the lives of witnesses and 
informants, or otherwise impede or thwart law enforcement efforts. 
Disclosure may also constitute an unwarranted invasion of the personal 
privacy of third parties. Further, disclosure would reveal access codes, 
data entry codes and message routing symbols used in law enforcement 
communications systems. Access to such codes and symbols would permit 
the subject to impede the flow of law enforcement communications and 
compromise the integrity of law enforcement information, and thus 
present a serious threat to law enforcement activities. To permit 
amendment of the records would expose security matters, and would impose 
an impossible administrative burden by requiring that security 
precautions, and information pertaining thereto, be continuously 
reevaluated if contested by the prisoner, or by anyone on his or her 
behalf. Similarly, to permit amendment could interfere with ongoing or 
potential inquiries/investigations by requiring that such inquiries/
investigations be continuously reinvestigated, or that information 
collected (the relevance and accuracy of which cannot readily be 
determined) be subjected to continuous change.
    (4) From subsections (e)(1) and (5) because the system may contain 
investigatory information or information which is derived from 
information collected during official criminal investigations. In the 
interest of effective law enforcement and litigation, of securing the 
prisoner and of protecting the public, it may be necessary to retain 
information the relevance, necessity, accuracy, timeliness and 
completeness of which cannot be readily established. Such information 
may nevertheless provide investigative leads to other Federal or law 
enforcement agencies, or prove necessary to establish patterns of 
criminal activity or behavior, and/or prove essential to the safe and 
secure detention (and movement) of prisoners. Further, the provisions of 
(e)(1) and (e)(5) would restrict the ability of the USMS in exercising 
its judgment in reporting information during investigations or during 
the development of appropriate security measures, and thus present a 
serious impediment to law enforcement efforts.
    (5) From subsection (e)(2) because the requirement to collect 
information from the subject individual would impede the information 
collection responsibilities of the USMS which is often dependent upon 
sources other than the

[[Page 367]]

subject individual for verification of information pertaining to 
security risks posed by the individual prisoner, to alleged misconduct 
or criminal activity of the prisoner, or to any matter affecting the 
safekeeping and disposition of the individual prisoner.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection could impede the information gathering process, 
reveal the existence of an ongoing or potential inquiry/investigation or 
security procedure, and compromise law enforcement efforts.
    (7) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to compromise an ongoing or potential 
inquiry/investigation and thereby evade and impede law enforcement and 
security efforts.
    (8) From subsection (g) to the extent that the system is exempt from 
subsection (d).
    (s) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), (3), (e) (5) and (e) (8) and (g):

            Joint Automated Booking Stations, Justice/USM-014

    (t) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Where compliance would not interfere with or adversely affect the law 
enforcement process, the USMS may waive the exemptions, either partially 
or totally. Exemption from the particular subsections are justified for 
the following reasons:
    (1) From subsections (c)(3) and (d) to the extent that access to 
records in this system of records may impede or interfere with law 
enforcement efforts, result in the disclosure of information that would 
constitute and unwarranted invasion of the personal privacy of 
collateral record subjects or other third parties, and/or jeopardize the 
health and/or safety of third parties.
    (2) Where access to certain records may be appropriate, exemption 
from the amendment provisions of subsection (d)(2) in necessary to the 
extent that the necessary and appropriate justification, together with 
proof of record inaccuracy, is not provided, and/or to the extent that 
numerous, frivolous requests to amend could impose an impossible 
administrative burden by requiring agencies to continuously review 
booking and arrest data, much of which is collected from the arrestee 
during the arrest.
    (3) From subsection (e)(1) to the extent that it is necessary to 
retain all information in order not to impede, compromise, or interfere 
with law enforcement efforts, e.g., where the significance of the 
information may not be readily determined and/or where such information 
may provide leads or assistance to Federal and other law enforcement 
agencies in discharging their law enforcement responsibilities.
    (4) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement since it may be necessary to obtain and verify information 
from a variety of sources other than the record subject to ensure 
safekeeping, security, and effective law enforcement. For example, it 
may be necessary that medical and psychiatric personnel provide 
information regarding the subject's behavior, physical health, or mental 
stability, etc. To ensure proper care while in custody, or it may be 
necessary to obtain information from a case agent or the court to ensure 
proper disposition of the subject individual.
    (5) From subsection (e)(3) because the requirement that agencies 
inform each individual whom it asks to supply information of such 
information as is required by subsection (e)(3) may, in some cases, 
impede the information gathering process or otherwise interfere with or 
compromise law enforcement efforts, e.g., the subject may deliberately 
withhold information, or give erroneous information.
    (6) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance and the accuracy of such information can only 
be determined in a court of law. The restrictions imposed by subsection 
(e)(5) would restrict the ability

[[Page 368]]

to collect information for law enforcement purposes and may prevent the 
eventual development of the necessary criminal intelligence or otherwise 
impede effective law enforcement.
    (7) From subsection (e)(8) to the extent that such notice may 
impede, interfere with, or otherwise compromise law enforcement and 
security efforts.
    (8) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d).
    (u) Consistent with the legislative purpose of the Privacy Act of 
1974, the United States Marshals Service will grant access to nonexempt 
material in records which are maintained by the Service. Disclosure will 
be governed by the Department's Privacy Regulations, but will be limited 
to the extent that the identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
criminal, civil or regulatory violation will not be alerted to the 
investigation; the physical safety of witnesses, informants and law 
enforcement personnel will not be endangered; the privacy of third 
parties will not be violated; and that the disclosure would not 
otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
8-83, 48 FR 19024, Apr. 27, 1983; Order No. 10-86, 51 FR 20275, June 4, 
1986; Order No. 11-86, 51 FR 20277, June 4, 1986; Order No. 61-92, 57 FR 
3284, Jan. 29, 1992; Order No. 66-92, 57 FR 20654, May 14, 1992; Order 
No. 105-95, 60 FR 30467, June 9, 1995; Order No. 212-2001, 66 FR 6470, 
Jan. 22, 2001]



Sec. 16.102  Exemption of Drug Enforcement Administration and 
Immigration and Naturalization Service Joint System of Records.

    (a) The following system of records is exempted pursuant to 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H), and (I), (e)(5) and (8), (f), 
(g), and (h) of 5 U.S.C. 552a; in addition the following system of 
records is exempted pursuant to the provisions of 5 U.S.C. 552 (k)(1) 
and (k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and 
(I), and (f) of 5 U.S.C. 552a.
    (1) Automated Intelligence Record System (Pathfinder), JUSTICE/DEA-
INS-111.


These exemptions apply to the extent that information in those systems 
is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1) and 
(k)(2).
    (b) The system of records listed under paragraph (a) of this section 
is exempted, for the reasons set forth from the following provisions of 
5 U.S.C. 552a:
    (1)(c)(3). The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to determine whether he is the 
subject of investigation, or to obtain valuable information concerning 
the nature of that investigation, and the information obtained, or the 
identity of witnesses and informants and would therefore present a 
serious impediment to law enforcement. In addition, disclosure of the 
accounting would amount to notice to the individual of the existence of 
a record; such notice requirement under subsection (f)(1) is 
specifically exempted for these systems of records.
    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3)(d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation, or the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they

[[Page 369]]

could prevent the successful completion of the investigation, endanger 
the physical safety of witnesses or informants, and lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4)(e)(1). The notices of these systems of records published in the 
Federal Register set forth the basic statutory or related authority for 
maintenance of this system. However, in the course of criminal or other 
law enforcement investigations, cases, and matters, the Immigration and 
Naturalization Service or the Drug Enforcement Administration will 
occasionally obtain information concerning actual or potential 
violations of law that are not strictly within its statutory or other 
authority or may compile information in the course of an investigation 
which may not be relevant to a specific prosecution. In the interests of 
effective law enforcement, it is necessary to retain such information in 
these systems of records since it can aid in establishing patterns of 
criminal activity and can provide valuable leads for federal and other 
law enforcement agencies.
    (5)(e)(2). In a criminal investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6)(e)(3). The requirement that individuals supplying information be 
provided with a form stating the requirements of subsection (e)(3) would 
constitute a serious impediment to law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (7)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsections (f) and (d).
    (8)(e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (9)(e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would restrict 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede the development of criminal or 
other intelligence necessary for effective law enforcement.
    (10)(e)(8). The individual notice requirements of subsection (e)(8) 
could present a serious impediment to law enforcement as this could 
interfere with the ability to issue warrants or subpoenas and could 
reveal investigative techniques, procedures, or evidence.
    (11)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal, civil, or regulatory 
investigation or prosecution must be exempted because such notice to an 
individual would be detrimental to the successful conduct and/or 
completion of an investigation or prosecution pending or future. In 
addition, mere notice of the fact of an investigation could inform

[[Page 370]]

the subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsections (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12)(g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (13)(h). Since an exemption is being claimed for subsection (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (14) In addition, exemption is claimed for these systems of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) to 
the extent that the records contained in these systems are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

[Order No. 742-77, 42 FR 40907, Aug. 12, 1977]



Sec. 16.103  Exemption of the INTERPOL-United States National Central 
Bureau (INTERPOL-USNCB) System.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5) and 
(8), (f) and (g):
    (1) The INTERPOL-United States National Central Bureau (INTERPOL-
USNCB) (Department of Justice) INTERPOL-USNCB Records System (JUSTICE/
INTERPOL-001).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(2), 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of accounting 
disclosures would place the subject of an investigation on notice that 
he is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement.
    (2) From subsections (c)(4), (d), (e)(4) (G), and (H), (f) and (g) 
because these provisions concern individual access to records and such 
access might compromise ongoing investigations reveal investigatory 
techniques and confidential informants, and invade the privacy of 
private citizens who provide information in connection with a particular 
investigation.
    (3) From subsection (e)(1) because information received in the 
course of an international criminal investigation may involve a 
violation of state or local law, and it is beneficial to maintain this 
information to provide investigative leads to state and local law 
enforcement agencies.
    (4) From subsection (e)(2) because collecting information from the 
subject of criminal investigations would thwart the investigation by 
placing the subject on notice.
    (5) From subsection (e)(3) because supplying an individual with a 
statement of the intended use of the requested information could 
compromise the existence of a confidential investigation, and may 
inhibit cooperation.
    (6) From subsection (e)(5) because the vast majority of these 
records come from local criminal justice agencies and it is 
administratively impossible to ensure that the records comply with this 
provision. Submitting agencies are, however, urged on a continuing basis 
to ensure that their records are accurate and include all dispositions.
    (7) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, and

[[Page 371]]

the existence of confidential investigations.

[Order No. 8-82, 47 FR 44255, Oct. 7, 1982, as amended by Order No. 6-
86, 51 FR 15479, Apr. 24, 1986]



Sec. 16.104  Exemption of Office of Special Counsel--Waco System.

    (a) The following system of records is exempted from subsections 
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5) and 
(8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k): 
CaseLink Document Database for Office of Special Counsel--Waco, JUSTICE/
OSCW-001. These exemptions apply only to the extent that information in 
a record is subject to exemption pursuant to 5 U.S.C. 552a(j) and (k).
    (b) Only that portion of this system which consists of criminal or 
civil investigatory information is exempted for the reasons set forth 
from the following subsections:
    (1) Subsection (c)(3). To provide the subject of a criminal or civil 
matter or case under investigation with an accounting of disclosures of 
records concerning him or her would inform that individual of the 
existence, nature, or scope of that investigation and thereby seriously 
impede law enforcement efforts by permitting the record subject and 
other persons to whom he might disclose the records to avoid criminal 
penalties and civil remedies.
    (2) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Disclosure of investigatory information could 
interfere with the investigation, reveal the identity of confidential 
sources, and result in an unwarranted invasion of the privacy of others.
    (4) Subsection (d)(2). Amendment of the records would interfere with 
ongoing criminal law enforcement proceedings and impose an impossible 
administrative burden by requiring criminal investigations to be 
continuously reinvestigated.
    (5) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (6) Subsections (e)(1) and (5). It is often impossible to determine 
in advance if investigatory records contained in this system are 
accurate, relevant, timely and complete; but, in the interests of 
effective law enforcement, it is necessary to retain this information to 
aid in establishing patterns of activity and provide leads in criminal 
investigations.
    (7) Subsection (e)(2). To collect information from the subject 
individual would serve notice that he or she is the subject of criminal 
investigative or law enforcement activity and thereby present a serious 
impediment to law enforcement.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection would reveal the existence of an investigation and compromise 
law enforcement efforts.
    (9) Subsection (e)(8). To serve notice would give persons sufficient 
warning to evade law enforcement efforts.
    (10) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.

[Order No. 208-2000, 65 FR 75160, Dec. 1, 2000]



Sec. 16.105  Exemption of Foreign Terrorist Tracking Task Force System.

    (a) The following system of records is exempt from 5 U.S.C. 552a, 
subsections (c)(3), (d)(1), (2), (3) and (4), and (e)(1) and (4)(I): 
Flight Training Candidates File System (JUSTICE/FTTTF-001). This 
exemption applies only to the extent that information is subject to 
exemption pursuant to 5 U.S.C. 552a(k)(1).
    (b) Exemption from the particular subsections is justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures could reveal information that is 
classified in the interest of national security.
    (2) From subsection (d)(1), (2), (3) and (4) because access to and 
amendment of certain portions of records within the system would tend to 
reveal or compromise information classified in the interest of national 
security.
    (3) From subsection (e)(1) because it is often impossible to 
determine in advance if information obtained will be relevant for the 
purposes of conducting the risk analysis for flight training candidates.

[[Page 372]]

    (4) From subsection (e)(4)(I) to the extent that this subsection is 
interpreted to require more detail regarding the record sources in this 
system than have been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is necessary 
because greater specificity concerning the sources of these records 
could compromise national security.

[Order No. 278-2002, 67 FR 51756, Aug. 9, 2002]



Sec. 16.106  Exemption of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF)--Limited Access.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d)(1), (2), (3) and (4), (e)(1), (2), and (3), 
(e)(4)(G), (H) and (I), (e)(5) and (8), (f) and (g).
    (1) Criminal Investigation Report System (JUSTICE/ATF-003).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (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 not only of ATF, but also of the 
recipient agency. This would permit the record subject to take measures 
to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses or flee the area to avoid the thrust of the 
investigation.
    (2) From subsection (c)(4) because an exemption being claimed for 
subsection (d) makes this subsection inapplicable.
    (3) From subsections (d)(1), (e)(4)(G) and (H), (f) and (g) because 
these provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information, interfere 
with the overall law enforcement process by revealing a pending 
sensitive investigation, possibly identify a confidential source or 
disclose information, including actual or potential tax information, 
which would constitute an unwarranted invasion of another individual's 
personal privacy, reveal a sensitive investigative technique, or 
constitute a potential danger to the health or safety of law enforcement 
personnel.
    (4) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    (5) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (6) From subsection (e)(1) because: (i) It is not possible in all 
instances to determine relevancy or necessity of specific information in 
the early stages of a criminal or other investigation.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) In any investigation, ATF might obtain information concerning 
violations of law not under its jurisdiction, but in the interest of 
effective law enforcement, dissemination will be made to the agency 
charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (7) 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

[[Page 373]]

furnished by the individual concerning his own activities.
    (8) From subsection (e)(3) because disclosure would provide the 
subject with substantial information that could impede or compromise the 
investigation. The individual could seriously interfere with undercover 
investigative activities and could take steps to evade the investigation 
or flee a specific area.
    (9) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (10) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light. The restrictions imposed by subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (11) From subsection (e)(8) because the notice requirements of this 
provision could seriously interfere with a law enforcement activity by 
alerting the subject of a criminal or other investigation of existing 
investigative interest.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Internal Security Record System (JUSTICE/ATF-006).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2) and 
(k)(5). Where compliance would not appear to interfere with or adversely 
affect the overall law enforcement process, ATF may waive the applicable 
exemption.
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to provide the subject with an 
accounting of disclosures of records in this system could inform that 
individual of the existence, nature, or scope of an actual or potential 
law enforcement investigation, and thereby seriously impede law 
enforcement efforts by permitting the record subject and other persons 
to whom he might disclose the records to avoid criminal penalties, civil 
remedies, or other measures.
    (2) From subsection (d)(1) because disclosure of records in the 
system could reveal the identity of confidential sources and result in 
an unwarranted invasion of the privacy of others. Disclosure may also 
reveal information relating to actual or potential criminal 
investigations. Such breaches would restrict the free flow of 
information which is vital to the law enforcement process and the 
determination of an applicant's qualifications.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).

[[Page 374]]

    (5) From subsection (e)(1) because it is often impossible to 
determine in advance if investigative records contained in this system 
are accurate, relevant, timely, complete, or of some assistance to 
either effective law enforcement investigations, or to the determination 
of the qualifications and suitability of an applicant. It also is 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. Information that may appear 
irrelevant, when combined with other apparently irrelevant information, 
can on occasion provide a composite picture of a subject or an applicant 
which assists the law enforcement process and the determination of an 
applicant's suitability qualifications.
    (6) From subsection (e)(4)(G) and (H), and (f) because these 
provisions concern individual access to investigative records, 
compliance with which could compromise sensitive information, interfere 
with the overall law enforcement or qualification process by revealing a 
pending sensitive investigation, possibly identify a confidential source 
or disclose information which would constitute an unwarranted invasion 
of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel. In addition, disclosure of 
information collected pursuant to an employment suitability or similar 
inquiry could reveal the identity of a source who provided information 
under an express promise of confidentiality, or could compromise the 
objectivity or fairness of a testing or examination process.
    (7) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (e) The following system of records is exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Personnel Record System (JUSTICE/ATF-007).
    (2) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal the existence, nature, or scope of an actual or potential 
personnel action. This would permit the record subject to take measures 
to hamper or impede such actions.
    (2) From subsections (d)(1), (e)(4)(G) and (H), and (f) because many 
persons are contacted who, without an assurance of anonymity, refuse to 
provide information concerning a candidate for a position with ATF. 
Access could reveal the identity of the source of the information and 
constitute a breach of the promise of confidentiality on the part of 
ATF. Such breaches ultimately would restrict the free flow of 
information vital to a determination of a candidate's qualifications and 
suitability.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations attempting to resolve questions of accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of

[[Page 375]]

specific information in the early stages of a personnel-related action.
    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative activity can be 
established.
    (iii) ATF might obtain information concerning violations of law not 
under its jurisdiction, but in the interest of effective law 
enforcement, dissemination will be made to the agency charged with 
enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or to 
an investigative activity under the jurisdiction of another agency.
    (6) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. Such 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (g) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (H) and (I), 
and (f).
    (1) Regulatory Enforcement Record System (JUSTICE/ATF-008).
    (2) Technical and Scientific Services Record System (JUSTICE/ATF-
009).
    (3) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). 
Where compliance would not appear to interfere with or adversely affect 
the overall law enforcement process, ATF may waive the applicable 
exemption.
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest, whether civil, criminal or 
regulatory, not only of ATF, but also of the recipient agency. This 
would permit the record subject to take measures to impede the 
investigation, e.g., destroy evidence, intimidate potential witnesses or 
flee the area to avoid the thrust of the investigation thus seriously 
hampering the regulatory and law enforcement functions of ATF.
    (2) From subsections (d)(1), (e)(4)(G) and (H), and (f) because 
these provisions concern individual access to investigative and 
compliance records, disclosure of which could compromise sensitive 
information, interfere with the overall law enforcement and regulatory 
process by revealing a pending sensitive investigation, possibly 
identify a confidential source or disclose information, including actual 
or potential tax information, which would constitute an unwarranted 
invasion of another individual's personal privacy, reveal a sensitive 
investigative technique, or constitute a potential danger to the health 
or safety of law enforcement personnel.
    (3) From subsection (d)(2) because, due to the nature of the 
information collected and the essential length of time it is maintained, 
to require ATF to amend information thought to be incorrect, irrelevant 
or untimely, would create an impossible administrative and investigative 
burden by forcing the agency to continuously retrograde its 
investigations and compliance actions attempting to resolve questions of 
accuracy, etc.
    (4) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (5) From subsection (e)(1) because:
    (i) It is not possible in all instances to determine relevancy or 
necessity of specific information in the early stages of a criminal, 
civil, regulatory, or other investigation.

[[Page 376]]

    (ii) Relevance and necessity are questions of judgment and timing; 
what appears relevant and necessary when collected ultimately may be 
deemed unnecessary. It is only after the information is assessed that 
its relevancy and necessity in a specific investigative or regulatory 
activity can be established.
    (iii) In any investigation or compliance action ATF might obtain 
information concerning violations of law not under its jurisdiction, but 
in the interest of effective law enforcement, dissemination will be made 
to the agency charged with enforcing such law.
    (iv) In interviewing individuals or obtaining other forms of 
evidence during an investigation, information could be obtained, the 
nature of which would leave in doubt its relevancy and necessity. Such 
information, however, could be relevant to another investigation or 
compliance action or to an investigative activity under the jurisdiction 
of another agency.
    (6) From subsection (e)(4)(I) because the categories of sources of 
the records in these systems have been published in the Federal Register 
in broad generic terms in the belief that this is all that subsection 
(e)(4)(I) of the Act requires. In the event, however, that this 
subsection should be interpreted to require more detail as to the 
identity of sources of the records in these systems, exemption from this 
provision is necessary in order to protect the confidentiality of the 
sources of criminal, regulatory, and other law enforcement information. 
Such exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.

[Order No. 002-2003, 68 FR 3393, Jan. 24, 2003]



Sec. 16.130  Exemption of Department of Justice Systems: Correspondence
Management Systems for the Department of Justice (DOJ-003); Freedom of

Information Act, Privacy Act and Mandatory Declassification Review 
Requests and  Administrative Appeals for the Department of Justice (DOJ-
          004).

    (a) The following Department of Justice systems of records are 
exempted from subsections (c)(3) and (4); (d)(1), (2), (3) and (4); 
(e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act pursuant to 5 
U.S.C. 552a(j) and (k). These exemptions apply only to the extent that 
information in a record is subject to exemption pursuant to 5 U.S.C. 
552a(j) and (k).
    (1) Correspondence Management Systems (CMS) for the Department of 
Justice (DOJ), DOJ/003.
    (2) Freedom of Information Act, Privacy Act, and Mandatory 
Declassification Review Requests and Administrative Appeals for the 
Department of Justice (DOJ), DOJ/004.
    (b) These systems are exempted for the reasons set forth from the 
following subsections:
    (1) Subsection (c)(3). To provide the subject of a criminal, civil, 
or counterintelligence matter or case under investigation with an 
accounting of disclosures of records concerning him or her could inform 
that individual of the existence, nature, or scope of that 
investigation, and thereby seriously impede law enforcement or 
counterintelligence efforts by permitting the record subject and other 
persons to whom he might disclose the records to avoid criminal 
penalties, civil remedies, or counterintelligence measures.
    (2) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Disclosure of investigatory information could 
interfere with the investigation, reveal the identity of confidential 
sources, and result in an unwarranted invasion of the privacy of others. 
Disclosure of classified national security information would cause 
damage to the national security of the United States.
    (4) Subsection (d)(2). Amendment of the records would interfere with 
ongoing criminal or civil law enforcement proceedings and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (5) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (6) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and

[[Page 377]]

complete, but, in the interests of effective law enforcement and 
counterintelligence, it is necessary to retain this information to aid 
in establishing patterns of activity and provide investigative leads.
    (7) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts.
    (9) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to aid in 
establishing patterns of activity and provide investigative leads.
    (10) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts.
    (11) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.

[Order No. 241-2001, 66 FR 41445, Aug. 8, 2001; 66 FR 43308, Aug. 17, 
2001]



Sec. 16.131  Exemption of Department of Justice (DOJ)/Nationwide Joint
Automated Booking System (JABS), DOJ-005.

    (a) The following system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4), (d), (e)(1), (2), (3), (4)(G) and (H), (e)(5) and 
(8), (f) and (g): Nationwide Joint Automated Booking System, Justice/
DOJ-005. 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) and 
(k)(2). Where compliance would not interfere with or adversely affect 
the law enforcement process, the DOJ may waive the exemptions, either 
partially or totally.
    (b) Exemption from the particular subsections are justified for the 
following reasons:
    (1) From subsections (c)(3), (c)(4), and (d) to the extent that 
access to records in this system of records may impede or interfere with 
law enforcement efforts, result in the disclosure of information that 
would constitute an unwarranted invasion of the personal privacy of 
collateral record subjects or other third parties, and/or jeopardize the 
health and/or safety of third parties.
    (2) From subsection (e)(1) to the extent that it is necessary to 
retain all information in order not to impede, compromise, or interfere 
with law enforcement efforts, e.g., where the significance of the 
information may not be readily determined and/or where such information 
may provide leads or assistance to Federal and other law enforcement 
agencies in discharging their law enforcement responsibilities.
    (3) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement since it may be necessary to obtain and verify information 
from a variety to sources other than the record subject to ensure 
safekeeping, security, and effective law enforcement. For example, it 
maybe necessary that medical and psychiatric personnel provide 
information regarding the subject's behavior, physical. health, or 
mental stability, etc. to ensure proper care while in custody, or it may 
be necessary to obtain information from a case agent or the court to 
ensure proper disposition of the subject individual.
    (4) From subsection (e)(3) because the requirement that agencies 
inform each individual whom it asks to supply information of such 
information as is required by subsection (e)(3) may, in some cases, 
impede the information gathering process or otherwise interfere with or 
compromise law enforcement efforts, e.g., the subject may deliberately 
withhold information, or give erroneous information.
    (5) From subsection (4)(G) and(H) because the application of these 
provisions would present a serious impediment to law enforcement 
efforts.
    (6) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time,

[[Page 378]]

seemingly irrelevant or untimely information may acquire new 
significance and the accuracy of such information can only be determined 
in a court of law. The restrictions imposed by subsection (e)(5) would 
restrict the ability to collect information for law enforcement 
purposes, may prevent the eventual development of the necessary criminal 
intelligence, or otherwise impede law enforcement or delay trained law 
enforcement personnel from timely exercising their judgment in managing 
the arrestee.
    (7) From subsection (e)(8) to the extent that such notice may 
impede, interfere with, or otherwise compromise law enforcement and 
security efforts.
    (8) From subsection 5 U.S.C. 552a(f) to the extent that compliance 
with the requirement for procedures providing individual access to 
records, compliance could impede, compromise, or interfere with law 
enforcement efforts.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d).

[Order No. 242-2001, 66 FR 41445, Aug. 8, 2001; 66 FR 44308, Aug. 17, 
2001]



Sec. 16.132  Exemption of Department of Justice System--Personnel 
Investigation and Security Clearance Records for the Department of

Justice (DOJ), DOJ-006.

    (a) The following Department of Justice system of records is 
exempted from subsections (c)(3) and (4); (d)(1), (2), (3) and (4); 
(e)(1),(2),(3),(5) and (8); and (g) of the Privacy Act pursuant to 5 
U.S.C. 552a(j) and (k): Personnel Investigation and Security Clearance 
Records for the Department of Justice (DOJ), DOJ-006. These exemptions 
apply only to the extent that information in a record is subject to 
exemption pursuant to 5 U.S.C. 552a(j) and (k).
    (b) Exemption from the particular subsections is justified for the 
following reasons:
    (1) Subsection (c)(3). To provide the subject with an accounting of 
disclosures of records in this system could inform that individual of 
the existence, nature, or scope of an actual or potential law 
enforcement or counterintelligence investigation, and thereby seriously 
impede law enforcement or counterintelligence efforts by permitting the 
record subject and other persons to whom he might disclose the records 
to avoid criminal penalties, civil remedies, or counterintelligence 
measures.
    (2) Subsection (c)(4). This subsection is inapplicable to the extent 
that an exemption is being claimed for subsection (d).
    (3) Subsection (d)(1). Disclosure of records in the system could 
reveal the identity of confidential sources and result in an unwarranted 
invasion of the privacy of others. Disclosure may also reveal 
information relating to actual or potential criminal investigations. 
Disclosure of classified national security information would cause 
damage to the national security of the United States.
    (4) Subsection (d)(2). Amendment of the records could interfere with 
ongoing criminal or civil law enforcement proceedings and impose an 
impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (5) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (6) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement and counterintelligence, it is necessary to retain this 
information to aid in establishing patterns of activity and provide 
investigative leads.
    (7) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations.
    (8) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts.
    (9) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to

[[Page 379]]

retain this information to aid in establishing patterns of activity and 
provide investigative leads.
    (10) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts.
    (11) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the Privacy 
Act.

[Order No. 297-2002, 67 FR 70163, Nov. 21, 2002]



Sec. 16.133  Exemption of Department of Justice Regional Data Exchange
System (RDEX), DOJ-012.

    (a) The Department of Justice Regional Data Exchange System (RDEX), 
DOJ-012, is exempted from subsections (c)(3) and (4); (d)(1), (2), (3), 
and (4); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act 
pursuant to 5 U.S.C. 552a(j)(2). These exemptions apply only to the 
extent that information in a record is subject to exemption pursuant to 
5 U.S.C. 552a(j)(2).
    (b) This system is exempted from the following subsections for the 
reasons set forth below:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures of criminal law enforcement 
records concerning him or her could inform that individual of the 
existence, nature, or scope of an investigation, or could otherwise 
seriously impede law enforcement efforts.
    (2) From subsection (c)(4) because this system is exempt from 
subsections (d)(1), (2), (3), and (4).
    (3) From subsection (d)(1) because disclosure of criminal law 
enforcement information could interfere with an investigation, reveal 
the identity of confidential sources, and result in an unwarranted 
invasion of the privacy of others.
    (4) From subsection (d)(2) because amendment of the records would 
interfere with ongoing criminal law enforcement proceedings and impose 
an impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (5) From subsections (d)(3) and (4) because these subsections are 
inapplicable to the extent that exemption is claimed from subsections 
(d)(1) and (2).
    (6) From subsection (e)(1) because it is often impossible to 
determine in advance if criminal law enforcement records contained in 
this system are relevant and necessary, but, in the interests of 
effective law enforcement, it is necessary to retain this information to 
aid in establishing patterns of activity and provide investigative 
leads.
    (7) From subsection (e)(2) because collecting information from the 
subject individual could serve notice that he or she is the subject of a 
criminal law enforcement matter and thereby present a serious impediment 
to law enforcement efforts. Further, because of the nature of criminal 
law enforcement matters, vital information about an individual 
frequently can be obtained only from other persons who are familiar with 
the individual and his or her activities and it often is not practicable 
to rely on information provided directly by the individual.
    (8) From subsection (e)(3) because informing individuals as required 
by this subsection could reveal the existence of a criminal law 
enforcement matter and compromise criminal law enforcement efforts.
    (9) From subsection (e)(5) because it is often impossible to 
determine in advance if criminal law enforcement records contained in 
this system are accurate, relevant, timely, and complete, but, in the 
interests of effective law enforcement, it is necessary to retain this 
information to aid in establishing patterns of activity and obtaining 
investigative leads.
    (10) From subsection (e)(8) because serving notice could give 
persons sufficient warning to evade criminal law enforcement efforts.
    (11) From subsection (g) to the extent that this system is exempt 
from other specific subsections of the Privacy Act.

[Order No. 007-2005, 70 FR 49870, Aug. 25, 2005]



       Subpart F_Public Observation of Parole Commission Meetings

    Source: 42 FR 14713, Mar. 16, 1977, unless otherwise noted.



Sec. 16.200  Definitions.

    As used in this part:

[[Page 380]]

    (a) The term Commission means the U.S. Parole Commision and any 
subdivision thereof authorized to act on its behalf.
    (b) The term meeting refers to the deliberations of at least the 
number of Commissioners required to take action on behalf of the 
Commission where such deliberations determine or result in the joint 
conduct or disposition of official Commission business.
    (c) Specifically included in the term meeting are;
    (1) Meetings of the Commission required to be held by 18 U.S.C. 
4203(a);
    (2) Special meetings of the Commission called pursuant to 18 U.S.C. 
4204(a)(1);
    (3) Meetings of the National Commissioners in original jurisdiction 
cases pursuant to 28 CFR 2.17(a);
    (4) Meetings of the entire Commission to determine original 
jurisdiction appeal cases pursuant to 28 CFR 2.27; and
    (5) Meetings of the National Appeals Board pursuant to 28 CFR 2.26.
    (6) Meetings of the Commission to conduct a hearing on the record in 
conjunction with applications for certificates of exemption under 
section 504(a) of the Labor-Management Reporting and Disclosure Act of 
1959, and section 411 of the Employee Retirement Income Security Act of 
1974 (28 CFR 4.1-17 and 28 CFR 4a.1-17). \1\
---------------------------------------------------------------------------

    \1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
---------------------------------------------------------------------------

    (d) Specifically excluded from the term meeting are:
    (1) Determination made through independent voting of the 
Commissioners without the joint deliberation of the number of 
Commissioners required to take such action, pursuant to Sec. 16.201;
    (2) Original jurisdiction cases determined by sequential vote 
pursuant to 28 CFR 2.17;
    (3) Cases determined by sequential vote pursuant to 28 CFR 2.24 and 
2.25;
    (4) National Appeals Board cases determined by sequential vote 
pursuant to 28 CFR 2.26;
    (5) Meetings of special committees of Commissioners not constituting 
a quorum of the Commission, which may be established by the Chairman to 
report and make recommendations to the Commission or the Chairman on any 
matter.
    (6) Determinations required or permitted by these regulations to 
open or close a meeting, or to withhold or disclose documents or 
information pertaining to a meeting.
    (e) All other terms used in this part shall be deemed to have the 
same meaning as identical terms used in chapter I, part 2 of this title.

[42 FR 14713, Mar. 16, 1977, as amended at 43 FR 4978, Feb. 7, 1978]



Sec. 16.201  Voting by the Commissioners without joint deliberation.

    (a) Whenever the Commission's Chairman so directs, any matter which 
(1) does not appear to require joint deliberation among the members of 
the Commission, or (2) by reason of its urgency, cannot be scheduled for 
consideration at a Commission meeting, may be disposed of by 
presentation of the matter separately to each of the members of the 
Commission. After consideration of the matter each Commission member 
shall report his vote to the Chairman.
    (b) Whenever any member of the Commission so requests, any matter 
presented to the Commissioners for disposition pursuant to paragraph (a) 
of this section shall be withdrawn and scheduled instead for 
consideration at a Commission meeting.
    (c) The provisions of Sec. 16.206(a) of these rules shall apply in 
the case of any Commission determination made pursuant to this section.



Sec. 16.202  Open meetings.

    (a) Every portion of every meeting of the Commission shall be open 
to public observation unless closed to the public pursuant to the 
provisions of Sec. 16.203 (Formal Procedure) or Sec. 16.205 (Informal 
Procedure).
    (b) The attendance of any member of the public is conditioned upon 
the orderly demeanor of such person during the conduct of Commission 
business. The public shall be permitted to observe and to take notes, 
but unless prior permission is granted by the Commission, shall not be 
permitted to record or photograph by means of any mechanical or 
electronic device any

[[Page 381]]

portion of meetings which are open to the public.
    (c) The Commission shall be responsible for arranging a suitable 
site for each open Commission meeting so that ample seating, visibility, 
and acoustics are provided to the public and ample security measures are 
employed for the protection of Commissioners and Staff. The Commission 
shall be responsible for recording or developing the minutes of 
Commission meetings.
    (d) Public notice of open meetings shall be given as prescribed in 
Sec. 16.204(a), and a record of votes kept pursuant to Sec. 16.206(a).



Sec. 16.203  Closed meetings--Formal procedure.

    (a) The Commission, by majority vote, may close to public 
observation any meeting or portion thereof, and withhold from the public 
announcement concerning such meeting any information, if public 
observation or the furnishing of such information is likely to:
    (1) Disclose matters:
    (i) Specifically authorized under criteria established by an 
executive order to be kept secret in the interests of national defense 
or foreign policy and
    (ii) In fact properly classified pursuant to such executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission or any agency of the Government of the United States;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552, or the Federal Rules of Criminal 
Procedure): Provided, That such statute or rule (i) requires that the 
matters be withheld in such a manner as to leave no discretion on the 
issue, or (ii) establishes particular criteria for withholding or refers 
to particular types of matters to be withheld, including exempted 
material under the Privacy Act of 1974 or the Commission's Alternate 
Means of Access under the Privacy Act of 1974, as set forth at 28 CFR 
16.85;
    (4) Disclose a trade secret or commercial or financial information 
obtained from any person, corporation, business, labor or pension 
organization, which is privileged or obtained upon a promise of 
confidentiality, including information concerning the financial 
condition or funding of labor or pension organizations, or the financial 
condition of any individual, in conjunction with applications for 
exemption under 29 U.S.C. 504 and 1111, and information concerning 
income, assets and liabilities of inmates, and persons on supervision;
    (5) Involve accusing any person of a crime or formally censuring any 
person;
    (6) Disclose information of a personal nature, where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose an investigatory record compiled for law enforcement 
purposes, or information derived from such a record, which describes the 
criminal history or associations of any person under the Commission's 
jurisdiction or which describes the involvement of any person in the 
commission of a crime, but only to the extent that the production of 
such records or information would:
    (i) Interfere with enforcement proceedings;
    (ii) Deprive a person of a right to a fair trail or an impartial 
adjudication;
    (iii) Constitute an unwarranted invasion of personal privacy;
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information, the premature disclosure of which would be 
likely to significantly frustrate implementation of proposed Commission 
action except where
    (i) The Commission has already publicly disclosed the content or 
nature of its proposed action or
    (ii) The Commission is required by law to make such disclosure on 
its own initiative prior to taking final Commission action on such 
proposal;

[[Page 382]]

    (9) Specifically concern the Commission's issuance of subpoena or 
participation in a civil action or proceeding; or
    (10) Specifically concern the initiation, conduct, or disposition of 
a particular case of formal adjudication pursuant to the procedures in 5 
U.S.C. 554, or of any case involving a determination on the record after 
opportunity for a hearing. Included under the above terms are:
    (i) Record review hearings following opportunity for an in-person 
hearing pursuant to the procedures of 28 CFR 4.1 through 4.17 and 28 CFR 
4a.1 through 4a.17 \1\ (governing applications for certificates of 
exemption under the Labor-Management Reporting and Disclosure Act of 
1959 and the Employee Retirement Income Security Act of 1974), and
---------------------------------------------------------------------------

    \1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
---------------------------------------------------------------------------

    (ii) The initiation, conduct, or disposition by the Commission of 
any matter pursuant to the procedures of 28 CFR 2.1 through 2.58 
(parole, release, supervision, and recommitment of prisoners, youth 
offenders, and juvenile delinquents).
    (b) Public interest provision. Notwithstanding the exemptions at 
paragraphs (a)(1) through (a)(10) of this section, the Commission may 
conduct a meeting or portion of a meeting in public when the Commission 
determines, in its discretion, that the public interest in an open 
meeting clearly outweighs the need for confidentiality.
    (c) Nonpublic matter in announcements. The Commission may delete 
from any announcement or notice required in these regulations 
information the disclosure of which would be likely to have any of the 
consequences described in paragraphs (a)(1) through (a)(10) of this 
section, including the name of any individual considered by the 
Commission in any case of formal or informal adjudication.
    (d) Voting and certification. (1) A separate recorded vote of the 
Commission shall be taken with respect to each meeting or portion 
thereof which is proposed to be closed, and with respect to any 
information which is proposed to be withheld pursuant to this section. 
Voting by proxy shall not be permitted. In the alternative, the 
Commission may, by a single majority vote, close to public observation a 
series of meetings, or portion(s) thereof or withhold information 
concerning such series of meetings, provided that:
    (i) Each meeting in such series involves the same particular 
matters, and
    (ii) Each meeting is scheduled to be held no more than thirty days 
after the initial meeting in the series.
    (2) Upon the request of any Commissioner, the Commission shall make 
a determination as to closure pursuant to this subsection if any person 
whose interests may be directly affected by a portion of a meeting 
requests the Commission to close such portion or portions to the public 
observation for any of the grounds specified in paragraph (a) (5), (6) 
or (7) of this section.
    (3) The determination to close any meeting to public observation 
pursuant to this section shall be made at least one week prior to the 
meeting or the first of a series of meetings as the case may be. If a 
majority of the Commissioners determines by recorded vote that agency 
business requires the meeting to take place at any earlier date, the 
closure determination and announcement thereof shall be made at the 
earliest practicable time. Within one day of any vote taken on whether 
to close a meeting under this section, the Commission shall make 
available to the public a written record reflecting the vote of each 
Commissioner on the question, including a full written explanation of 
its action in closing the meeting, portion(s) thereof, or series of 
meetings, together with a list of all persons expected to attend the 
meeting(s) or portion(s) thereof and their affiliation, subject to the 
provisions of paragraph (c) of this section.
    (4) For every meeting or series of meetings closed pursuant to this 
section, the General Counsel of the Parole Commission shall publicly 
certify that, in Counsel's opinion, the meeting may be closed to the 
public and shall state each relevant exemptive provision.



Sec. 16.204  Public notice.

    (a) Requirements. Every open meeting and meeting closed pursuant to 
Sec. 16.203

[[Page 383]]

shall be preceded by a public announcement posted before the main 
entrance to the Chairman's Office at the Commission's headquarters, 5550 
Friendship Boulevard, Chevy Chase, Maryland 20815-7286, and, in the case 
of a meeting held elsewhere, in a prominent place at the location in 
which the meeting will be held. Such announcement shall be transmitted 
to the Federal Register for publication and, in addition, may be issued 
through the Department of Justice, Office of Public Affairs, as a press 
release, or by such other means as the Commission shall deem reasonable 
and appropriate. The announcement shall furnish:
    (1) A brief description of the subject matter to be discussed;
    (2) The date, place, and approximate time of the meeting;
    (3) Whether the meeting will be open or closed to public 
observation; and
    (4) The name and telephone number of the official designated to 
respond to requests for information concerning the meeting. See Sec. 
16.205(d) for the notice requirement applicable to meetings closed 
pursuant to that section.
    (b) Time of notice. The announcement required by this section shall 
be released to the public at least one week prior to the meeting 
announced therein except where a majority of the members of the 
Commission determines by a recorded vote that Commission business 
requires earlier consideration. In the event of such a determination, 
the announcement shall be made at the earliest practicable time.
    (c) Amendments to notice. The time or place of a meeting may be 
changed following the announcement only if the Commission publicly 
announces such change at the earliest practicable time. The subject 
matter of a meeting, or determination of the Commission to open or close 
a meeting, or portion of a meeting, to the public may be changed 
following the announcement only if:
    (1) A majority of the entire membership of the Commission determines 
by a recorded vote that Commission business so requires and that no 
earlier announcement of the change was possible, and
    (2) The Commission publicly announces such change and the vote of 
each member upon such change at the earliest practicable time: Provided, 
That individual items which have been announced for Commission 
consideration at a closed meeting may be deleted without notice.

[42 FR 14713, Mar. 16, 1977 as amended by Order No. 960-81, 46 FR 52357, 
Oct. 27, 1981]



Sec. 16.205  Closed meetings--Informal procedures.

    (a) Finding. Based upon a review of the meetings of the U.S. Parole 
Commission since the effective date of the Parole Commission and 
Reorganization Act (May 14, 1976), the regulations issued pursuant 
thereto (28 CFR part 2) the experience of the U.S. Board of Parole, and 
the regulations pertaining to the Commission's authority under 29 U.S.C. 
504 and 29 U.S.C. 1111 (28 CFR parts 4 and 4a), the Commission finds 
that the majority of its meetings may properly be closed to the public 
pursuant to 5 U.S.C. 552 (d)(4) and (c)(10). The major part of normal 
Commission business lies in the adjudication of individual parole cases, 
all of which proceedings commence with an initial parole or revocation 
hearing and are determined on the record thereof.

Original jurisdiction cases are decided at bi-monthly meetings of the 
National Commissioners (28 CFR 2.17) and by the entire Commission in 
conjunction with each business meeting of the Commission (held at least 
quarterly) (28 CFR 2.27).

The National Appeals Board normally decides cases by sequential vote on 
a daily basis, but may meet from time to time for joint deliberations. 
In the period from October, 1975 through September, 1976, the National 
Appeals Board made 2,072 Appellate decisions.

Finally, over the last two years the Commission determined eleven cases 
under the Labor and Pension Acts, which are proceedings pursuant to 5 
U.S.C. 554. The only meetings of the Commission not of an adjudicative 
nature involving the most sensitive inquiry into the personal background 
and behavior of the individual concerned, or involving sensitive 
financial information concerning the parties before the Commission, are 
the normal business meetings of the Commission, which are held at least 
quarterly.

[[Page 384]]

    (b) Meetings to which applicable. The following types of meetings 
may be closed in the event that a majority of the Commissioners present 
at the meeting, and authorized to act on behalf of the Commission, votes 
by recorded vote at the beginning of each meeting or portion thereof, to 
close the meeting or portions thereof:
    (1) Original jurisdiction initial and appellate case deliberations 
conducted pursuant to 28 CFR 2.17 and 2.27;
    (2) National Appeals Board deliberations pursuant to 28 CFR 2.26;
    (3) Meetings of the Commission to conduct a hearing on the record 
regarding applications for certificates of exemption pursuant to the 
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 504, 
and the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1111 
(28 CFR 4.1-17 and 29 CFR 4a.1-17). \1\
---------------------------------------------------------------------------

    \1\ Part 4a was removed at 44 FR 6890, Feb. 2, 1979.
---------------------------------------------------------------------------

    (c) Written record of action to close meeting. In the case of a 
meeting or portion of a meeting closed pursuant to this section, the 
Commission shall make available to the public as soon as practicable:
    (1) A written record reflecting the vote of each member of the 
Commission to close the meeting; and
    (2) A certification by the Commission's General Counsel to the 
effect that in Counsel's opinion, the meeting may be closed to the 
public, which certification shall state each relevant exemptive 
provision.
    (d) Public notice. In the case of meetings closed pursuant to this 
section the Commission shall make a public announcement of the subject 
matter to be considered, and the date, place, and time of the meeting. 
The announcement described herein shall be released to the public at the 
earliest practicable time.



Sec. 16.206  Transcripts, minutes, and miscellaneous documents concerning
Commission meetings.

    (a) In the case of any Commission meeting, whether open or closed, 
the Commission shall maintain and make available for public inspection a 
record of the final vote of each member on rules, statements of policy, 
and interpretations adopted by it: 18 U.S.C. 4203(d).
    (b) The Commission shall maintain a complete transcript or 
electronic recording adequate to record fully the proceedings of each 
meeting, or portion of a meeting, closed to the public pursuant to Sec. 
16.203. In the case of a meeting, or portion of a meeting, closed to the 
public pursuant to Sec. 16.205 of these regulations, the Commission may 
maintain either the transcript or recording described above, or a set of 
minutes unless a recording is required by title 18 U.S.C. 4208(f). The 
minutes required by this section shall fully and clearly describe all 
matters discussed and shall provide a full and accurate summary of any 
actions taken, and the reasons therefor, including a description of each 
of the views expressed on any item and the record of any rollcall vote 
(reflecting the vote of each Commissioner on the question). All 
documents considered in connection with any action shall be identified 
in such minutes.
    (c) The Commission shall retain a copy of every certification 
executed by the General Counsel's Office pursuant to these regulations, 
together with a statement from the presiding officer of the meeting, or 
portion of a meeting to which the certification applies, setting forth 
the time and place of the meeting, and the persons present.
    (d) Nothing herein shall affect any other provision in Commission 
procedures or regulations requiring the preparation and maintenance of a 
record of all official actions of the Commission.



Sec. 16.207  Public access to nonexempt transcripts and minutes of closed
Commission meetings--Documents used at meetings--Record retention.

    (a) Public access to records. Within a reasonable time after any 
closed meeting, the Commission shall make available to the public, in 
the Commission's Public Reading Room located at 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286, the transcript, electronic 
recording, or minutes of the discussion of any item on the agenda, or of 
any item of the testimony of any witness received at such meeting, 
maintained hereunder, except for such

[[Page 385]]

item or items of such discussion or testimony which contain information 
exempt under any provision of the Government in the Sunshine Act (Pub. 
L. 94-409), or of any amendment thereto. Copies of nonexempt 
transcripts, or minutes, or a transcription of such recording disclosing 
the identity of each speaker, shall be furnished to any person at the 
actual cost of duplication or transcription.
    (b) Access to documents identified or discussed in any Commission 
meeting, open or closed, shall be governed by Department of Justice 
regulations at this part 16, subparts C and D. The Commission reserves 
the right to invoke statutory exemptions to disclosure of such documents 
under 5 U.S.C. 552 and 552a, and applicable regulations. The exemptions 
provided in 5 U.S.C. 552b(c) shall apply to any request made pursuant to 
5 U.S.C. 552 or 552a to copy and inspect any transcripts, recordings or 
minutes prepared or maintained pursuant hereto.
    (c) Retention of records. The Commission shall maintain a complete 
verbatim copy of the transcript, or a complete copy of the minutes, or a 
complete electronic recording of each meeting, or portion of a meeting, 
closed to the public, for a period of at least two years after such 
meeting, or until one year after the conclusion of any Commission 
proceeding with respect to which the meeting or portion thereof was 
held, whichever occurs later.

[42 FR 14713, Mar. 16, 1977, as amended by Order No. 960-81, 46 FR 
52357, Oct. 27, 1981]



Sec. 16.208  Annual report.

    The Commission shall report annually to Congress regarding its 
compliance with Sunshine Act requirements, including a tabulation of the 
total number of meetings open to the public, the total number of 
meetings closed to the public, the reasons for closing such meetings, 
and a description of any litigation brought against the Commission under 
this section, including any costs assessed against the Commission in 
such litigation and whether or not paid.



   Subpart G_Access to Documents by Former Employees of the Department

    Source: Order No. 2333-2000, 65 FR 68892, Nov. 15, 2000, unless 
otherwise noted.



Sec. 16.300  Access to documents for the purpose of responding to an 
official inquiry.

    (a) To the extent permitted by law, former employees of the 
Department shall be given access to documents that they originated, 
reviewed, or signed while employees of the Department, for the purpose 
of responding to an official inquiry by a federal, state, or local 
government entity or professional licensing authority. Documents include 
memoranda, drafts, reports, notes, written communications, and documents 
stored electronically that are in the possession of the Department. 
Access ordinarily will be provided on government premises.
    (b) Requests for access to documents under this section must be 
submitted in writing to the head of the component where the employee 
worked when originating, reviewing, or signing the documents. If the 
employee requesting access was the Attorney General, Deputy Attorney 
General, or Associate Attorney General, the request may be granted by 
the Assistant Attorney General for Administration. This authority may 
not be delegated below the level of principal deputy component head.
    (c) The written request should describe with specificity the 
documents to which access is sought (including time periods wherever 
possible), the reason for which access is sought (including the timing 
of the official inquiry involved), and any intended disclosure of any of 
the information contained in the documents.
    (d) The requester must agree in writing to safeguard the information 
from unauthorized disclosure and not to further disclose the 
information, by any means of communication, or to make copies, without 
the permission of the Department. Determinations regarding any further 
disclosure of information or removal of copies shall be made in 
accordance with applicable standards and procedures.

[[Page 386]]



Sec. 16.301  Limitations.

    (a) The Department may deny or limit access under this subpart where 
providing the requested access would be unduly burdensome.
    (b) Access under this subpart to classified information is governed 
by Executive Order 12958 and 28 CFR 17.46. Requests for access to 
classified information must be submitted to (or will be referred to) the 
Department Security Officer and may be granted by the Department 
Security Officer in consultation with the appropriate component head.
    (c) Nothing in this subpart shall be construed to supplant the 
operation of other applicable prohibitions against disclosure.
    (d) This subpart is not intended to, does not, and may not be relied 
upon to, create any right or benefit, substantive or procedural, 
enforcecable at law by a party against the United States.



   Sec. Appendix I to Part 16--Components of the Department of Justice

    Unless a separate address is listed below, the address for each 
component is: [component name], U.S. Department of Justice, 950 
Pennsylvania Avenue, NW., Washington, DC 20530-0001. For all components 
marked by an asterisk, FOIA and Privacy Act requests should be sent to 
the Office of Information and Privacy, U.S. Department of Justice, Flag 
Bldg., Suite 570, Washington, DC 20530-0001. The components are:

                                    A

Office of the Attorney General *
Office of the Deputy Attorney General *
Office of the Associate Attorney General *
Office of the Solicitor General

                                    B

Office of Information and Privacy *
Office of the Inspector General
Office of the Intelligence Policy and Review
Office of Intergovernmental Affairs *
Office of Investigative Agency Policies
Office of Legal Counsel
Office of Legislative Affairs *
Office of Policy Development *
Office of Professional Responsibility
Office of Public Affairs *

                                    C

Antitrust Division, U.S. Department of Justice, LPB Bldg., Suite 200, 
Washington, DC 20530-0001
Civil Division, U.S. Department of Justice, 901E Bldg., Room 808, 
Washington, DC 20530-0001
Civil Rights Division, U.S. Department of Justice, NYAV Bldg., Room 
8000B, Washington, DC 20530-0001
Criminal Division, U.S. Department of Justice, WCTR Bldg., Suite 1075, 
Washington, DC 20530-0001
Environment and Natural Resources Division, U.S. Department of Justice, 
Post Office Box 4390, Washington, DC 20044-4390
Justice Management Division
Tax Division, U.S. Department of Justice, JCB Bldg., Room 6823, 
Washington, DC 20530-0001
Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of 
Justice, Washington, DC 20226
Bureau of Prisons, U.S. Department of Justice, HOLC Bldg., Room 738, 320 
First Street, NW., Washington, DC 20534-0001
Community Relations Service, U.S. Department of Justice, BICN Bldg., 
Suite 2000, Washington, DC 20530-0001
Drug Enforcement Administration, U.S. Department of Justice, Washington, 
DC 20537-0001
Executive Office for Immigration Review, U.S. Department of Justice, 
Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041-0001
Executive Office for United States Attorneys, U.S. Department of 
Justice, BICN Bldg., Room 7100, Washington, DC 20530-0001
Executive Office for United States Trustees, U.S. Department of Justice, 
901E Bldg., Room 780, Washington, DC 20530-0001
Federal Bureau of Investigation, U.S. Department of Justice, 935 
Pennsylvania Avenue, NW., Washington, DC 20535-0001 (for field offices, 
consult your telephone book)
Foreign Claims Settlement Commission, U.S. Department of Justice, BICN 
Bldg., Room 6002, 600 E Street, NW., Washington, DC 20579-0001
Immigration and Naturalization Service, U.S. Department of Justice, CAB 
Bldg., 425 Eye Street, NW., Washington, DC 20536-0001 (for field 
offices, consult your telephone book)
INTERPOL-U.S. National Central Bureau, U.S. Department of Justice, 
Washington, DC 20530-0001
National Drug Intelligence Center, U.S. Department of Justice, Fifth 
Floor, 319 Washington Street, Johnstown, PA 15901-1622
Office of Community Oriented Policing Services, U.S. Department of 
Justice, VT1 Bldg., Twelfth Floor, Washington, DC 20530-0001
Office of Justice Programs, U.S. Department of Justice, Room 5337, 810 
Seventh Street, NW., Washington, DC 20531-0001
Pardon Attorney, U.S. Department of Justice, FRST Bldg., Fourth Floor, 
Washington, DC 20530-0001

[[Page 387]]

United States Marshals Service, U.S. Department of Justice, Lincoln 
Place, Room 1250, CSQ3, 600 Army Navy Drive, Arlington, VA 22202-4210

[Order No. 2156-98, 63 FR 29604, June 1, 1998; 63 FR 34965, June 26, 
1998; 63 FR 51401, Sept. 25, 1998; Order No. 2650-2003, 68 FR 4928, Jan. 
31, 2003]



PART 17_CLASSIFIED NATIONAL SECURITY INFORMATION AND ACCESS TO 
CLASSIFIED INFORMATION--Table of Contents




Sec.
17.1 Purpose.
17.2 Scope.
17.3 Definitions.

                        Subpart A_Administration

17.11 Authority of the Assistant Attorney General for Administration.
17.12 Component head responsibilities.
17.13 National Security Division; interpretation of Executive Orders.
17.14 Department Review Committee.
17.15 Access Review Committee.
17.16 Violations of classified information requirements.
17.17 Judicial proceedings.
17.18 Prepublication review.

                    Subpart B_Classified Information

17.21 Classification and declassification authority.
17.22 Classification of information; limitations.
17.23 Emergency classification requests.
17.24 Duration of classification.
17.25 Identification and markings.
17.26 Derivative classification.
17.27 Declassification and downgrading.
17.28 Automatic declassification.
17.29 Documents of permanent historical value.
17.30 Classification challenges.
17.31 Mandatory review for declassification requests.
17.32 Notification of classification changes.

               Subpart C_Access to Classified Information

17.41 Access to classified information.
17.42 Positions requiring financial disclosure.
17.43 Reinvestigation requirements.
17.44 Access eligibility.
17.45 Need-to-know.
17.46 Access by persons outside the Executive Branch.
17.47 Denial or revocation of eligibility for access to classified 
          information.

    Authority: 28 U.S.C. 501, 509, 510, 515-519; 5 U.S.C. 301; E.O. 
12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 60 FR 40245, 
3 CFR, 1995 Comp., p. 391; 32 CFR part 2001.

    Source: Order No. 2091-97, 62 FR 36984, July 10, 1997, unless 
otherwise noted.



Sec. 17.1  Purpose.

    The purpose of this part is to ensure that information within the 
Department of Justice (the ``Department'') relating to the national 
security is classified, protected, and declassified pursuant to the 
provisions of Executive Orders 12958 (3 CFR, 1995 Comp., p. 333) and 
12968 (3 CFR, 1995 Comp., p. 391) and implementing directives from the 
Information Security Oversight Office of the National Archives and 
Records Administration (``ISOO''). Executive Orders 12958 and 12968 made 
numerous substantive changes in the system of classification, 
declassification, and downgrading of classified National Security 
Information and the criteria for access to this information. 
Accordingly, this part is a revision of the Department's classified 
information security rules.
    (a) Subpart A of this part prescribes the implementation of 
Executive Orders 12958 and 12968 within the Department through the 
Assistant Attorney General for Administration, as the senior responsible 
agency official. Subpart A of this part also provides for certain 
relationships within the Department between the Assistant Attorney 
General for Administration, other component heads, and the National 
Security Division.
    (b) Subpart B of this part prescribes an orderly and progressive 
system for ensuring that every necessary safeguard and procedure is in 
place to assure that information is properly classified and that 
classified information is protected from unauthorized disclosure. 
Subpart B of this part requires original classification authorities to 
make classification decisions based on specific criteria; provides that 
most newly created classified information be considered for 
declassification after 10 years; provides that historically valuable 
information that is more than 25 years old (including information 
classified under prior Executive Orders) be

[[Page 388]]

automatically declassified, with appropriate exceptions; and establishes 
procedures for authorized holders of classified information to challenge 
the classification of information.
    (c) Subpart C of this part establishes substantive standards and 
procedures for granting, denying, and revoking, and for appealing 
decisions to deny access to classified information with an emphasis on 
ensuring the consistent, cost-effective, and efficient protection of 
classified information. Subpart C of this part provides a process that 
is fair and equitable to those with whom classified information is 
entrusted and, at the same time, assures the security of the classified 
information.

[Order No. 2091-97, 62 FR 36984, July 10, 1997, as amended by Order No. 
2865-2007, 72 FR 10069, Mar. 7, 2007]



Sec. 17.2  Scope.

    (a) All employees, contractors, grantees, and others granted access 
to classified information by the Department are governed by this part, 
and by the standards in Executive Order 12958, Executive Order 12968, 
and directives promulgated under those Executive Orders. If any portion 
of this part conflicts with any portion of Executive Order 12958, 
Executive Order 12968, or any successor Executive Order, the Executive 
Order shall apply. This part supersedes the former rule and any 
Department internal operating policy or directive that conflicts with 
any portion of this part.
    (b) This part applies to non-contractor personnel outside of the 
Executive Branch and to contractor personnel or employees who are 
entrusted with classified national security information originated 
within or in the custody of the Department. This part does not affect 
the operation of the Department's participation in the National 
Industrial Security Program under Executive Order 12829 (3 CFR, 1993 
Comp., p. 570).
    (c) This part is independent of and does not affect any 
classification procedures or requirements of the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2011 et seq).
    (d) This part does not, and is not intended to, create any right to 
judicial review, or any other right or benefit or trust responsibility, 
substantive or procedural, enforceable by a party against the United 
States, its agencies or instrumentalities, its officers or employees, or 
any other person. This part creates limited rights to administrative 
review of decisions pursuant to Sec. Sec. 17.30, 17.31, and 17.47. This 
part does not, and is not intended to, create any right to judicial 
review of administrative action under Sec. Sec. 17.14, 17.15, 17.18, 
17.27, 17.30, 17.31 and 17.50.



Sec. 17.3  Definitions.

    The terms defined or used in Executive Order 12958 and Executive 
Order 12968, and the implementing directives in 32 CFR 2001, are 
applicable to this part.



                        Subpart A_Administration



Sec. 17.11  Authority of the Assistant Attorney General for Administration.

    (a) The Assistant Attorney General for Administration is designated 
as the senior agency official as required by Sec. 5.6(c) of Executive 
Order 12958, and Sec. 6.1(a) of Executive Order 12968 and, except as 
specifically provided elsewhere in this part, is authorized to 
administer the Department's national security information program 
pursuant to Executive Order 12958. The Assistant Attorney General for 
Administration shall appoint a Department Security Officer and may 
delegate to the Department Security Officer those functions under 
Executive Orders 12958 and 12968 that may be delegated by the senior 
agency official. The Department Security Officer may redelegate such 
functions when necessary to effectively implement this part.
    (b) The Assistant Attorney General for Administration shall, among 
other actions:
    (1) Oversee and administer the Department's program established 
under Executive Order No. 12958;
    (2) Establish and maintain Department-wide security education and 
training programs;
    (3) Establish and maintain an ongoing self-inspection program 
including the periodic review and assessment of the Department's 
classified product;

[[Page 389]]

    (4) Establish procedures to prevent unnecessary access to classified 
information, including procedures that:
    (i) Require that a need for access to classified information is 
established before initiating administrative procedures to grant access; 
and
    (ii) Ensure that the number of persons granted access to classified 
information is limited to the minimum necessary for operational and 
security requirements and needs;
    (5) Develop special contingency plans for the safeguarding of 
classified information used in or near hostile or potentially hostile 
areas;
    (6) Assure that the performance contract or other system used to 
rate personnel performance includes the management of classified 
information as a critical element or item to be evaluated in the rating 
of:
    (i) Original classification authorities;
    (ii) Security managers or security specialists; and
    (iii) All other personnel whose duties significantly involve the 
creation or handling of classified information;
    (7) Account for the costs associated with implementing this part and 
report the cost to the Director of the ISOO;
    (8) Assign in a prompt manner personnel to respond to any request, 
appeal, challenge, complaint, or suggestion concerning Executive Order 
12958 that pertains to classified information that originated in a 
component of the Department that no longer exists and for which there is 
no clear successor in function;
    (9) Cooperate, under the guidance of the Security Policy Board, with 
other agencies to achieve practical, consistent, and effective 
adjudicative training and guidelines;
    (10) Conduct periodic evaluations of the Department's implementation 
and administration of Executive Orders 12958 and 12968;
    (11) Establish a plan for compliance with the automatic 
declassification provisions of Executive Order 12958 and oversee the 
implementation of that plan; and
    (12) Maintain a list of specific files series of records exempted 
from automatic declassification by the Attorney General pursuant to 
section 3.4(c) of Executive Order 12958.
    (c) The Department Security Officer may grant, deny, suspend, or 
revoke employee access to classified information pursuant to and in 
accordance with Executive Order 12968. The Department Security Officer 
may delegate the authority under this paragraph to qualified Security 
Programs Managers when the operational need justifies the delegation and 
when the Department Security Officer is assured that such officials will 
apply all access criteria in a uniform and correct manner in accord with 
the provisions of Executive Order 12968 and subpart C of this part. The 
fact that a delegation has been made pursuant to this section does not 
waive the Department Security Officer's authority to make any 
determinations that have been delegated.
    (d) The Department Security Officer shall maintain a current list of 
all officials authorized pursuant to this part to originally classify or 
declassify documents.
    (e) The Department Security Officer shall promulgate criteria and 
security requirements for the marking and safeguarding of information, 
transportation and transfer of information, preparation of 
classification guides, reporting of communications related to national 
security by persons granted access to classified information, reporting 
of information that raises doubts as to whether another employee's 
continued eligibility for access to classified information is clearly 
consistent with the national security, and other matters necessary to 
the administration of the Executive Orders, the implementing regulations 
of the ISOO, and this part.



Sec. 17.12  Component head responsibilities.

    The head of each component shall appoint and oversee a Security 
Programs Manager to implement this regulation. The Security Programs 
Managers shall:
    (a) Observe, enforce, and implement security regulations or 
procedures pertaining to the classification, declassification, 
safeguarding, handling, and storage of classified national security 
information;

[[Page 390]]

    (b) Report violations of the provisions of this regulation to the 
Department Security Officer;
    (c) Ensure that all employees acquire adequate security education 
and training as required by the provisions of the Department security 
regulations and procedures for classified information;
    (d) Continuously review the requirements for personnel access to 
classified information as a part of the continuous need-to-know 
evaluation, and initiate action to administratively withdraw or reduce 
the level of access authorized, as appropriate; and
    (e) Cooperate fully with any request from the Department Security 
Officer for assistance in the implementation of this part.



Sec. 17.13  National Security Division; interpretation of Executive Orders.

    (a) The Assistant Attorney General for National Security or a 
designee shall represent the Attorney General at interagency meetings on 
matters of general interest concerning national security information.
    (b) The Assistant Attorney General for National Security shall 
provide advice and interpretation on any issues that arise under 
Executive Orders 12958 and 12968 and shall refer such questions to the 
Office of Legal Counsel, as appropriate.
    (c) Any request for interpretation of Executive Order 12958 or 
Executive Order 12968, pursuant to section 6.1(b) of Executive Order 
12958, and section 7.2(b) of Executive Order 12968, shall be referred to 
the Assistant Attorney General for National Security, who shall refer 
such questions to the Office of Legal Counsel, as appropriate.

[Order No. 2865-2007, 72 FR 10069, Mar. 7, 2007]



Sec. 17.14  Department Review Committee.

    (a) The Department Review Committee (DRC) is established to:
    (1) Resolve all issues, except those related to the compromise of 
classified information, that concern the implementation and 
administration of Executive Order 12958, implementing directives from 
the ISOO, and subpart B of this part, including those issues concerning 
over-classification, failure to declassify, classification challenges, 
and delays in declassification not otherwise resolved;
    (2) Review all appeals from denials of requests for records made 
under section 3.6 of Executive Order 12958 and the Freedom of 
Information Act (5 U.S.C. 552), when the proposed denial is based on 
their continued classification under Executive Order 12958;
    (3) Recommend to the Attorney General appropriate administrative 
sanctions to correct the abuse or violation of any provision of 
Executive Order 12958, the implementing directives or subpart B of this 
part, except as it relates to the compromise of classified national 
security information; and
    (4) Review, on appeal, challenges to classification actions and 
mandatory review requests.
    (b)(1) The DRC shall consist of a senior representative designated 
by the:
    (i) Deputy Attorney General;
    (ii) Assistant Attorney General, Office of Legal Counsel;
    (iii) Assistant Attorney General, Criminal Division;
    (iv) Assistant Attorney General, Civil Division;
    (v) Assistant Attorney General for National Security;
    (vi) Assistant Attorney General for Administration; and
    (vii) Director, Federal Bureau of Investigation.
    (2) Each such official shall also designate in writing an alternate 
to serve in the absence of his or her representative. Four 
representatives shall constitute a quorum of the DRC. The Attorney 
General shall designate the Chairman of the DRC from among its members.
    (c) The Office of Information and Privacy (OIP) shall provide the 
necessary administrative staff support for the DRC.

[Order No. 2091-97, 62 FR 36984, July 10, 1997, as amended by Order No. 
2865-2007, 72 FR 10069, Mar. 7, 2007]



Sec. 17.15  Access Review Committee.

    (a) The Access Review Committee (ARC) is hereby established to 
review all appeals from denials or revocations of eligibility for access 
to classified information under Executive Order 12968. Unless the 
Attorney General requests recommendations from the ARC and

[[Page 391]]

personally exercises appeal authority, the ARC's decisions shall be 
final.
    (b) The ARC shall consist of the Deputy Attorney General or a 
designee, the Assistant Attorney General for National Security or a 
designee, and the Assistant Attorney General for Administration or a 
designee. Designations must be approved by the Attorney General.
    (c) The Department Security Officer shall provide the necessary 
administrative staff support for the ARC.

[Order No. 2091-97, 62 FR 36984, July 10, 1997, as amended by Order No. 
2865-2007, 72 FR 10069, Mar. 7, 2007]



Sec. 17.16  Violations of classified information requirements.

    (a) Any person who suspects or has knowledge of a violation of this 
part, including the known or suspected loss or compromise of national 
security information, shall promptly report and confirm in writing the 
circumstances to the Department Security Officer. Any person who makes 
such a report to the Department Security Officer shall promptly furnish 
a copy of such report:
    (1) If the suspected violation involves a Department attorney 
(including an Assistant United States Attorney or Special Assistant 
United States Attorney) while engaged in litigation, grand jury 
proceedings, or giving legal advice, or a law enforcement officer 
assisting an attorney engaged in such activity, to the Office of 
Professional Responsibility;
    (2) If the suspected violation involves an employee of the Federal 
Bureau of Investigation (FBI) or the Drug Enforcement Administration, 
other than a law enforcement officer in paragraph (a)(1) of this 
section, to the Office of Professional Responsibility in that component; 
or
    (3) In any other circumstance, to the Office of the Inspector 
General.
    (b) Department employees, contractors, grantees, or consultants may 
be reprimanded, suspended without pay, terminated from classification 
authority, suspended from or denied access to classified information, or 
subject to other sanctions in accordance with applicable law and 
Department regulation if they:
    (1) Knowingly, willfully, or negligently disclose to unauthorized 
persons information classified under Executive Order 12958 or 
predecessor orders;
    (2) Knowingly, willfully, or negligently classify or continue the 
classification of information in violation of Executive Order 12958 or 
its implementing directives; or
    (3) Knowingly, willfully, or negligently violate any other provision 
of Executive Order 12958, or knowingly and wilfully grant eligibility 
for, or allow access to, classified information in violation of 
Executive Order 12968, or its implementing directives, this part, or 
security requirements promulgated by the Department Security Officer.



Sec. 17.17  Judicial proceedings.

    (a)(1) Any Department official or organization receiving an order or 
subpoena from a federal or state court to produce classified 
information, required to submit classified information for official 
Department litigative purposes, or receiving classified information from 
another organization for production of such in litigation, shall 
immediately determine from the agency originating the classified 
information whether the information can be declassified. If 
declassification is not possible, the Department official or 
organization and the assigned Department attorney in the case shall take 
all appropriate action to protect such information pursuant to the 
provisions of this section.
    (2) If a determination is made to produce classified information in 
a judicial proceeding in any manner, the assigned Department attorney 
shall take all steps necessary to ensure the cooperation of the court 
and, where appropriate, opposing counsel in safeguarding and retrieving 
the information pursuant to the provisions of this regulation.
    (b) The Classified Information Procedures Act (CIPA), Pub. L. 96-
456, 94 Stat. 2025, 18 U.S.C. App., and the ``Security Procedures 
Established Pursuant to Pub. L. 96-456, 94 Stat. 2025, by the Chief 
Justice of the United States

[[Page 392]]

for the Protection of Classified Information'' may be used in Federal 
criminal cases involving classified information. (Available from the 
Security and Emergency Planning Staff, Justice Management Division, 
Department of Justice, Washington, DC 20530.)
    (c) In judicial proceedings other than Federal criminal cases where 
CIPA is used, the Department, through its attorneys, shall seek 
appropriate security safeguards to protect classified information from 
unauthorized disclosure, including, but not limited to, consideration of 
the following:
    (1) A determination by the court of the relevance and materiality of 
the classified information in question;
    (2) An order that classified information shall not be disclosed or 
introduced into evidence at a proceeding without the prior approval of 
either the originating agency, the Attorney General, or the President;
    (3) A limitation on attendance at any proceeding where classified 
information is to be disclosed to those persons with appropriate 
authorization to access classified information whose duties require 
knowledge or possession of the classified information to be disclosed;
    (4) A court facility that provides appropriate safeguarding for the 
classified information as determined by the Department Security Officer;
    (5) Dissemination and accountability controls for all classified 
information offered for identification or introduced into evidence at 
such proceedings;
    (6) Appropriate marking to indicate classified portions of any and 
any the maintenance of any classified under seal;
    (7) Handling and storage of all classified information including 
classified portions of any transcript in a manner consistent with the 
provisions of this regulation and Department implementing directives;
    (8) Return at the conclusion of the proceeding of all classified 
information to the Department or the originating agency, or placing the 
classified information under court seal;
    (9) Retrieval by Department employees of appropriate notes, drafts, 
or any other documents generated during the course of the proceedings 
that contain classified information and immediate transfer to the 
Department for safeguarding and destruction as appropriate; and
    (10) Full and complete advice to all persons to whom classified 
information is disclosed during such proceedings as to the 
classification level of such information, all pertinent safeguarding and 
storage requirements, and their liability in the event of unauthorized 
disclosure.
    (d) Access to classified information by individuals involved in 
judicial proceedings other than employees of the Department is governed 
by Sec. 17.46(c).



Sec. 17.18  Prepublication review.

    (a) All individuals with authorized access to Sensitive 
Compartmented Information shall be required to sign nondisclosure 
agreements containing a provision for prepublication review to assure 
deletion of Sensitive Compartmented Information and other classified 
information. Sensitive Compartmented Information is information that not 
only is classified for national security reasons as Top Secret, Secret, 
or Confidential, but also is subject to special access and handling 
requirements because it involves or derives from particularly sensitive 
intelligence sources and methods. The prepublication review provision 
will require Department of Justice employees and other individuals who 
are authorized to have access to Sensitive Compartmented Information to 
submit certain material, described further in the agreement, to the 
Department prior to its publication to provide an opportunity for 
determining whether an unauthorized disclosure of Sensitive 
Compartmented Information or other classified information would occur as 
a consequence of it publication.
    (b) Persons subject to these requirements are invited to discuss 
their plans for public disclosures of information that may be subject to 
these obligations with authorized Department representatives at an early 
stage, or as soon as circumstances indicate these policies must be 
considered. Except as provided in paragraph (j) of this section

[[Page 393]]

for FBI personnel, all questions concerning these obligations should be 
addressed to the Assistant Attorney General for National Security, 
Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 
20530. The official views of the Department on whether specific 
materials require prepublication review may be expressed only by the 
Assistant Attorney General for National Security and persons should not 
act in reliance upon the views of other Department personnel.
    (c) Prepublication review is required only as expressly provided for 
in a nondisclosure agreement. However, all persons who have had access 
to classified information have an obligation to avoid unauthorized 
disclosures of such information. Therefore, persons who have such access 
but are not otherwise required to submit to prepublication review under 
the terms of an employment or other nondisclosure agreement are 
encouraged to submit material for prepublication review voluntarily if 
they believe that such material may contain classified information.
    (d) The nature and extent of the material that is required to be 
submitted for prepublication review under nondisclosure agreements is 
expressly provided for in those agreements. It should be clear, however, 
that such requirements do not extend to any materials that exclusively 
contain information lawfully obtained at a time when the author has no 
employment, contract, or other relationship with the United States 
Government or that contain information exclusively acquired outside the 
scope of employment.
    (e) A person's obligation to submit material for prepublication 
review remains identical whether such person prepares the materials or 
causes or assists another person (such as a ghost writer, spouse, 
friend, or editor) in preparing the material. Material covered by a 
nondisclosure agreement requiring prepublication review must be 
submitted prior to discussing it with or showing it to a publisher, co-
author, or any other person who is not authorized to have access to it. 
In this regard, it should be noted that a failure to submit such 
material for prepublication review constitutes a breach of the 
obligation and exposes the author to remedial action even in cases where 
the published material does not actually contain Sensitive Compartmented 
Information or classified information. See Snepp v. United States, 444 
U.S. 507 (1980).
    (f) The requirement to submit material for prepublication review is 
not limited to any particular type of material or disclosure or methods 
of production. Written materials include not only book manuscripts but 
all other forms of written materials intended for public disclosure, 
such as (but not limited to) newspaper columns, magazine articles, 
letters to the editor, book reviews, pamphlets, scholarly papers, and 
fictional material.
    (g) Oral statements are also within the scope of a prepublication 
review requirement when based upon written materials, such as an outline 
of the statements to be made. There is no requirement to prepare written 
materials for review, however, unless there is reason to believe in 
advance that oral statements may contain Sensitive Compartmented 
Information or other information required to be submitted for review 
under the terms of the nondisclosure agreement. Thus, a person may 
participate in an oral presentation where there is no opportunity for 
prior preparation (e.g., news interview, panel discussion) without 
violating the provisions of this paragraph.
    (h) Material submitted for republication review will be reviewed 
solely for the purpose of identifying and preventing the disclosure of 
Sensitive Compartmented Information and other classified information. 
This review will be conducted in an impartial manner without regard to 
whether the material is critical of or favorable to the Department. No 
effort will be made to delete embarrassing or critical statements that 
are unclassified. Materials submitted for review will be disseminated to 
other persons or agencies only to the extent necessary to identify 
classified information.
    (i) The Assistant Attorney General for National Security or a 
designee (or,

[[Page 394]]

in the case of FBI employees, the Section Chief, Records/Information 
Dissemination Section, Records Management Division) will respond 
substantively to prepublication review requests within 30 working days 
of receipt of the submission. Priority shall be given to reviewing 
speeches, newspaper articles, and other materials that the author seeks 
to publish on an expedited basis. The Assistant Attorney General's 
decisions may be appealed to the Deputy Attorney General, who will 
process appeals within 15 days of receipt of the appeal. The Deputy 
Attorney General's decision is final and not subject to further 
administrative appeal. Persons who are dissatisfied with the final 
administrative decision may obtain judicial review either by filing an 
action for declaratory relief, or by giving the Department notice of 
their intention to proceed with publication despite the Department's 
request for deletions of classified information and giving the 
Department 30 working days to file a civil action seeking a court order 
prohibiting disclosure. Employees and other affected individuals remain 
obligated not to disclose or publish information determined by the 
Government to be classified until any civil action is resolved.
    (j) The obligations of Department of Justice employees described in 
this subpart apply with equal force to employees of the FBI with 
following exceptions and provisos:
    (1) Nothing in this subpart shall supersede or alter obligations 
assumed under the basic FBI employment agreement.
    (2) FBI employees required to sign nondisclosure agreements 
containing a provision for prepublication review pursuant to this 
subpart shall submit materials for review to the Section Chief, Records/
Information Dissemination Section, Records Management Division. Such 
individuals shall also submit questions as to whether specific materials 
require prepublication review under such agreements to that Section for 
resolution. Where such questions raise policy questions or concern 
significant issues of interpretation under such an agreement, the 
Section Chief, Records/Information Dissemination Section, Records 
Management Division, shall consult with the Assistant Attorney General 
for National Security, or a designee, prior to responding to the 
inquiry.
    (3) Decisions of the Section Chief, Records/Information 
Dissemination Section, Records Management Division, concerning the 
deletion of classified information, may be appealed to the Director, 
FBI, who will process appeals within 15 working days of receipt. Persons 
who are dissatisfied with the Director's decision may, at their option, 
appeal further to the Deputy Attorney General as provided in paragraph 
(i) of this section. Judicial review, as set forth in that paragraph, is 
available following final agency action in the form of a decision by the 
Director, if the appeal process in paragraph (i) of this section is 
pursued, the Deputy Attorney General.

[Order No. 2091-97, 62 FR 36984, July 10, 1997, as amended by Order No. 
2865-2007, 72 FR 10069, Mar. 7, 2007]



                    Subpart B_Classified Information



Sec. 17.21  Classification and declassification authority.

    (a) Top Secret original classification authority may only be 
exercised by the Attorney General, the Assistant Attorney General for 
Administration, and officials to whom such authority is delegated in 
writing by the Attorney General. No official who is delegated Top Secret 
classification authority pursuant to this paragraph may redelegate such 
authority.
    (b) The Assistant Attorney General for Administration may delegate 
original Secret and Confidential classification authority to subordinate 
officials determined to have frequent need to exercise such authority. 
No official who is delegated original classification authority pursuant 
to this paragraph may redelegate such authority.
    (c) Officials authorized to classify information at a specified 
level are also authorized to classify information at a lower level. In 
the absence of an official authorized to exercise classification 
authority pursuant to this section, the person designated to act in lieu 
of such official may exercise the official's classification authority.

[[Page 395]]



Sec. 17.22  Classification of information; limitations.

    (a) Information may be originally classified only if all of the 
following standards are met:
    (1) The information is owned by, produced by or for, or is under the 
control of the United States Government;
    (2) The information falls within one or more of the categories of 
information specified in section 1.5 of Executive Order 12958; and
    (3) The classifying official determines that the unauthorized 
disclosure of the information reasonably could be expected to result in 
damage to the national security and such official is able to identify or 
describe the damage.
    (b) Information may be classified as Top Secret, Secret, or 
Confidential according to the standards established in section 1.3 of 
Executive Order 12958. No other terms shall be used to identify United 
States classified national security information except as otherwise 
provided by statute.
    (c) Information shall not be classified if there is significant 
doubt about the need to classify the information. If there is 
significant doubt about the appropriate level of classification with 
respect to information that is being classified, it shall be classified 
at the lower classification of the levels considered.
    (d) Information shall not be classified in order to conceal 
inefficiency, violations of law, or administrative error; to prevent 
embarrassment to a person, organization, or agency; to restrain 
competition; or to prevent or delay release of information that does not 
require protection in the interest of national security. Information 
that has been declassified and released to the public under proper 
authority may not be reclassified.
    (e) Information that has not previously been disclosed to the public 
under proper authority may be classified or reclassified after the 
Department has received a request for it under the Freedom of 
Information Act (5 U.S.C. 552), the Privacy Act of 1974 (5 U.S.C. 552a), 
or the mandatory review provisions of Sec. 17.31. When it is necessary 
to classify or reclassify such information, it shall be forwarded to the 
Department Security Officer and classified or reclassified only at the 
direction of the Attorney General, the Deputy Attorney General, or the 
Assistant Attorney General for Administration.
    (f) Compilations of items of information that are individually 
unclassified may be classified if the compiled information reveals an 
additional association or relationship that meets the standards for 
classification under Executive Order 12958 and that is not otherwise 
revealed in the individual items of information.



Sec. 17.23  Emergency classification requests.

    (a) Whenever any employee, contractor, licensee, certificate holder, 
or grantee of the Department who does not have original classification 
authority originates or develops information that requires immediate 
classification and safeguarding, and no authorized classifier is 
available, that person shall:
    (1) Safeguard the information in a manner appropriate for its 
classification level;
    (2) Apply the appropriate overall classification markings; and
    (3) Within five working days, securely transmit the information to 
the organization that has appropriate subject matter interest and 
classification authority.
    (b) When it is not clear which Department organization would be the 
appropriate original classifier, the information shall be sent to the 
Department Security Officer to determine the appropriate organization.
    (c) The organization with classification authority shall decide 
within 30 days whether to classify information.



Sec. 17.24  Duration of classification.

    (a) At the time of original classification, original classification 
authorities shall attempt to establish a specific date or event for 
declassification not more than 10 years from the date of the original 
decision based on the duration of the national security sensitivity of 
the information. If the original classification authority cannot 
determine an earlier specific date or event for declassification, the 
information shall be marked for declassification 10 years from the date 
of the original decision.

[[Page 396]]

    (b) At the time of original classification, an original 
classification authority may exempt specific information from 
declassification within 10 years in accordance with section 1.6(d) of 
Executive Order 12958.
    (c) An original classification authority may extend the duration of 
classification or reclassify specific information for successive periods 
not to exceed 10 years at a time if such action is consistent with the 
standards and procedures established under, and subject to the 
limitations of, Executive Order 12958.



Sec. 17.25  Identification and markings.

    (a) Classified information must be marked pursuant to the standards 
set forth in section 1.7 of Executive Order 12958; ISOO implementing 
directives in 32 CFR 2001, subpart B; and internal Department of Justice 
direction provided by the Department Security Officer.
    (b) Foreign government information shall be marked or classified at 
a level equivalent to that level of classification assigned by the 
originating foreign government.
    (c) Information assigned a level of classification under predecessor 
Executive Orders shall be considered as classified at that level of 
classification.



Sec. 17.26  Derivative classification.

    (a) Persons need not possess original classification authority to 
derivatively classify information based on source documents or 
classification guides.
    (b) Persons who apply derivative classification markings shall 
observe original classification decisions and carry forward to any newly 
created documents the pertinent classification markings.
    (c) Information classified derivatively from other classified 
information shall be classified and marked in accordance with the 
standards set forth in sections 2.1-2.3 of Executive Order 12958, the 
ISOO implementing directives in 32 CFR 2001.22, and internal Department 
directions provided by the Department Security Officer.



Sec. 17.27  Declassification and downgrading.

    (a) Classified information shall be declassified as soon as it no 
longer meets the standards for classification. Declassification and 
downgrading is governed by Sec. 3.1-3.3 of Executive Order 12958, 
implementing ISOO directives at 32 CFR 2001, subpart E, and applicable 
internal Department of Justice direction provided by the Department 
Security Officer.
    (b) Information shall be declassified or downgraded by the official 
who authorized the original classification if that official is still 
serving in the same position, the originator's successor, or a 
supervisory official of either, or by officials delegated such authority 
in writing by the Attorney General or the Assistant Attorney General for 
Administration.
    (c) It is presumed that information that continues to meet the 
classification requirements under Executive Order 12958 requires 
continued protection. In some exceptional cases during declassification 
reviews, the need to protect classified information may be outweighed by 
the public interest in disclosure of the information, and in these cases 
the information should be declassified. If it appears that the public 
interest in disclosure of the information may outweigh the need to 
protect the information, the declassification reviewing official shall 
refer the case with a recommendation for decision to the DRC. The DRC 
shall review the case and make a recommendation to the Attorney General 
on whether the public interest in disclosure outweighs the damage to 
national security that might reasonably be expected from disclosure. The 
Attorney General shall decide whether to declassify the information. The 
decision of the Attorney General shall be final. This provision does not 
amplify or modify the substantive criteria or procedures for 
classification or create any substantive or procedural rights subject to 
judicial review.
    (d) Each component shall develop schedules for declassification of 
records in the National Archives. The Department shall cooperate with 
the National Archives and Records Administration and the Presidential 
Libraries

[[Page 397]]

to ensure that declassification is accomplished in a timely manner.



Sec. 17.28  Automatic declassification.

    (a) Subject to paragraph (b) of this section, all classified 
information contained in records that are more than 25 years old that 
have been determined to have permanent historical value shall be 
declassified automatically on April 17, 2000. Subsequently, all 
classified information in such records shall be automatically 
declassified not later than 25 years after the date of its original 
classification with the exception of specific information exempt from 
automatic declassification pursuant to section 3.4 (b) and (d) of 
Executive Order 12958.
    (b) At least 220 days before information is declassified 
automatically under this section, the respective component head shall 
notify the Assistant Attorney General for Administration through the 
Department Security Officer of any specific information they propose to 
exempt from automatic declassification. The notification shall include:
    (1) A description of the information;
    (2) An explanation of why the information is exempt from automatic 
declassification and must remain classified for a longer period of time; 
and
    (3) A specific date or event for declassification of the information 
whenever the information exempted does not identify a confidential human 
source or human intelligence source.
    (c) Proposed exemptions under this section shall be forwarded to the 
DRC, which shall recommend a disposition of the exemption request to the 
Assistant Attorney General for Administration. When the Assistant 
Attorney General for Administration determines the exemption request is 
consistent with this section, he or she will submit it to the Executive 
Secretary of the Interagency Security Classification Appeals Panel.
    (d) Declassification guides that narrowly and precisely define 
exempted information may be used to exempt information from automatic 
declassification. Declassification guides must include the exemption 
notification information detailed in paragraph (b) of this section, and 
be approved pursuant to paragraph (c) of this section.



Sec. 17.29  Documents of permanent historical value.

    The original classification authority, to the greatest extent 
possible, shall declassify classified information contained in records 
determined to have permanent historical value under title 44 of the 
United States Code before they are accessioned into the National 
Archives. The Department shall cooperate with the National Archives and 
Records Administration in carrying out an automatic declassification 
program involving accessioned Department records, presidential papers, 
and historical materials under the control of the Archivist of the 
United States.



Sec. 17.30  Classification challenges.

    (a) Authorized holders of information classified by the Department 
who, in good faith, believe that specific information is improperly 
classified or unclassified are encouraged and expected to challenge the 
classification status of that information pursuant to section 1.9 of 
Executive Order 12958. Authorized holders may submit classification 
challenges in writing to the DRC, through the Office of Information and 
Privacy, United States Department of Justice, Washington, DC 20530. The 
challenge need not be more specific than a question as to why the 
information is or is not classified, or is classified at a certain 
level.
    (b) The DRC shall redact the identity of an individual challenging a 
classification under paragraph (a) of this section and forward the 
classification challenge to the original classification authority for 
review and response.
    (c) The original classification authority shall promptly, and in no 
case later than 30 days, provide a written response to the DRC. The 
original classification authority may classify or declassify the 
information subject to challenge or state specific reasons why the 
original classification determination was proper. If the original 
classification authority is not able to response within 30 days, the DRC 
shall inform the individual who filed the challenge in writing of that 
fact, and the anticipated determination date.
    (d) The DRC shall inform the individual challenging the 
classification of the determination made by the original

[[Page 398]]

classification authority and that individual may appeal this 
determination to the DRC. Upon appeal, the DRC may declassify, or direct 
the classification of, the information. If the DRC is not able to act on 
any appeal within 45 days of receipt, the DRC shall inform the 
individual who filed the challenge in writing of that fact, and the 
anticipated determination date.
    (e) The DRC shall provide the individual who appeals a 
classification challenge determination with a written explanation of the 
basis for the DRC decision and a statement of his or her right to appeal 
that determination to the Interagency Security Classification Appeals 
Panel (ISCAP) pursuant to section 5.4 of Executive Order 12958 and the 
rules issued by the ISCAP pursuant to section 5.4 of Executive Order 
12958.
    (f) Any individual who challenges a classification and believes that 
any action has been taken against him or her in retribution because of 
that challenge shall report the facts to the Office of the Inspector 
General or the Office of Professional Responsibility, as appropriate.
    (g) Requests for review of classified material for declassification 
by persons other than authorized holders are governed by Sec. 17.31.



Sec. 17.31  Mandatory review for declassification requests.

    (a) Any person may request classified information be reviewed for 
declassification pursuant to the mandatory declassification review 
provisions of section 3.6 of Executive Order 12958. After such a review, 
the information or any reasonably segregable portion thereof that no 
longer requires protection under this part shall be declassified and 
released to the requester unless withholding is otherwise warranted 
under applicable law. If the information, although declassified, is 
withheld, the requester shall be given a brief statement as to the 
reasons for denial and a notice of the right to appeal the determination 
to the Director, Office of Information and Privacy (OIP), United States 
Department of Justice, Washington, DC 20530. If the mandatory review for 
declassification request relates to the classification of information 
that has been reviewed for declassification within the past two years or 
that is the subject of pending litigation, the requester shall be 
informed of that fact and the administrative appeal rights.
    (b) Request for mandatory review for declassification and any 
subsequent appeal to the DRC shall be submitted to the Director, Office 
of Information and Privacy, United States Department of Justice, 
Washington, DC 20530, describing the document or material containing the 
information with sufficient specificity to enable the Department to 
locate that information with a reasonable amount of effort. The OIP 
shall promptly forward the request to the component that originally 
classified the information, or the DRC in the case of an appeal, and 
provide the requester with an acknowledgement of receipt of the request.
    (c) When the description of the information in a request is 
deficient, the component shall solicit as much additional identifying 
information as possible from the requestor. Before denying a request on 
the basis that the information or material is not obtainable with a 
reasonable amount of effort, the component shall ask the requestor to 
limit the request to information or material that is reasonably 
obtainable. If the information or material requested cannot be described 
in sufficient particularity, or if it cannot be obtained with a 
reasonable amount of effort, the component shall provide the requestor 
with written notification of the reasons why no action will be taken and 
the right to appeal the decision to the DRC.
    (d) The component that originally classified the information shall 
provide a written response to requests for mandatory review within 60 
days whenever possible, or shall inform the requester in writing why 
additional time is needed. Unless there are unusual circumstances, the 
additional time needed by the component originally classifying the 
information shall not extend beyond 180 days from the receipt of the 
request. If no determination has been made at the end of the 180 day 
period, the requester may apply to the DRC for a determination.
    (e) If the component that originally classified the information 
determines

[[Page 399]]

that continued classification is warranted, it shall notify the 
requester in writing of the decision and the right to appeal the 
decision to the DRC no later that 60 days after receipt of the 
notification of the decision.
    (f) The DRC shall determine the appeals of the components' mandatory 
declassification review decisions within 60 days after receipt of the 
appeal, or notify the requester why additional time is needed. In making 
its determinations concerning requests for declassification of 
classified information, the DRC, for administrative purposes, shall 
impose the burden of proof on the originating component to show that 
continued classification is warranted. The DRC shall provide the 
requester with a written statement of reasons for its decisions.
    (g) If the individual requesting review of a classification is not 
satisfied with the DRC's decision, he or she may appeal to the ISCAP 
pursuant to section 5.4 of Executive Order 12958 and rules issued by the 
ISCAP pursuant to that section.



Sec. 17.32  Notification of classification changes.

    All known holders of information affected by unscheduled 
classification changes actions shall be notified promptly of such 
changes by the original classifier or the authority making the change in 
classification.



               Subpart C_Access to Classified Information



Sec. 17.41  Access to classified information.

    (a) No person may be given access to classified information or 
material originated by, in the custody, or under the control of the 
Department, unless the person--
    (1) Has been determined to be eligible for access in accordance with 
sections 3.1-3.3 of Executive Order 12968;
    (2) Has a demonstrated need-to-know; and
    (3) Has signed an approved nondisclosure agreement.
    (b) Eligibility for access to classified information is limited to 
United States citizens for whom an appropriate investigation of their 
personal and professional history affirmatively indicated loyalty to the 
United States, strength of character, trustworthiness, honesty, 
reliability, discretion, and sound judgment, as well as freedom from 
conflicting allegiances and potential for coercion, and willingness and 
ability to abide by regulations governing the use, handling, and 
protection of classified information. A determination of eligibility for 
access to classified information is a discretionary security decision 
based on judgments by appropriately trained adjudicative personnel. 
Eligibility shall be granted only where facts and circumstances indicate 
access to classified information is clearly consistent with the national 
security interests of the United States and any doubt shall be resolved 
in favor of the national security. Sections 2.6 and 3.3 of Executive 
Order 12968 provide only limited exceptions to these requirements.
    (c) The Department of Justice does not discriminate on the basis of 
race, color, religion, sex, national origin, disability, or sexual 
orientation in granting access to classified information. However, the 
Department may investigate and consider any matter that relates to the 
determination of whether access is clearly consistent with the interests 
of national security. No negative inferences concerning the standards 
for access may be raised solely on the basis of the sexual orientation 
of the employee or mental health counseling.
    (d) An employee granted access to classified information may be 
investigated at any time to ascertain whether he or she continues to 
meet the requirements for access.
    (e) An employee granted access to classified information shall 
provide to the Department written consent permitting access by an 
authorized investigative agency, for such time as access to classified 
information is maintained and for a period of three years thereafter, 
to:
    (1) Financial records maintained by a financial institution as 
defined in 31 U.S.C. 5312(a) or by a holding company as defined in 12 
U.S.C. 3401;
    (2) Consumer reports under the Fair Credit Reporting Act (15 U.S.C. 
1681 et seq.); and

[[Page 400]]

    (3) Records maintained by commercial entities within the United 
States pertaining to any travel by the employee outside the United 
States.
    (f) Information may be requested pursuant to the employee consent 
obtained under paragraph (e) of this section only where:
    (1) There are reasonable grounds to believe, based on credible 
information, that the employee or former employee is, or may be, 
disclosing classified information in an unauthorized manner to a foreign 
power or agent of a foreign power;
    (2) Information the Department deems credible indicates the employee 
or former employee has incurred excessive indebtedness or has acquired a 
level of affluence that cannot be explained by other information; or
    (3) Circumstances indicate that the employee or former employee had 
the capability and opportunity to disclose classified information that 
is known to have been lost or compromised to a foreign power or an agent 
of a foreign power.



Sec. 17.42  Positions requiring financial disclosure.

    (a) The Assistant Attorney General for Administration, in 
consultation with the Assistant Attorney General for National Security, 
shall designate each employee, by position or category where possible, 
who has a regular need for access to any of the categories of classified 
information described in section 1.3(a) of Executive Order 12968.
    (b) An employee may not hold a position designated as requiring a 
regular need for access to categories of classified information 
described in section 1.3(a) of Executive Order 12968 unless, as a 
condition of access to such information, the employee files with the 
Department Security Officer:
    (1) A financial disclosure form developed pursuant to section 1.3(c) 
of Executive Order 12968 as part of all background investigations or 
reinvestigations;
    (2) The same financial disclosure form, if selected by the 
Department Security Officer on a random basis; and
    (3) Relevant information concerning foreign travel, as determined by 
the Department Security Officer.

[Order No. 2091-97, 62 FR 36984, July 10, 1997, as amended by Order No. 
2865-2007, 72 FR 10069, Mar. 7, 2007]



Sec. 17.43  Reinvestigation requirements.

    Employees who are eligible for access to classified information 
shall be subject to periodic reinvestigations and may also be 
reinvestigated if, at any time, there is reason to believe that they may 
no longer meet the standards for access.



Sec. 17.44  Access eligibility.

    (a) Determinations of eligibility for access to classified 
information are separate from suitability determinations with respect to 
the hiring or retention of persons for employment by the Department or 
any other personnel actions.
    (b) The number of employees eligible for access to classified 
information shall be kept to the minimum required for the conduct of 
Department functions.
    (c) Eligibility for access to classified information shall be 
limited to classification levels for which there is a need for access. 
No person shall be granted eligibility higher than his or her need.



Sec. 17.45  Need-to-know.

    No person shall be granted access to specific classified information 
unless that person has an actual need-to-know that classified 
information, pursuant to section 2.5 of Executive Order 12968.



Sec. 17.46  Access by persons outside the Executive Branch.

    (a) Classified information shall not be disseminated outside the 
Executive Branch except under conditions that ensure that the 
information will be given protection equivalent to that afforded within 
the Executive Branch.
    (b) Classified information originated by or in the custody of the 
Department may be made available to individuals or agencies outside the 
Executive Branch provided that such information is necessary for 
performance of a function from which the Federal Government will derive 
a benefit or advantage and that the release is not prohibited

[[Page 401]]

by the originating department or agency (or foreign government in the 
case of Foreign Government Information). Before such a release is made, 
the head of the Office, Board, Division, or Bureau making the release 
shall determine the propriety of such action, in the interest of the 
national security, and must approve the release. Prior to the release, 
the Department Security Officer must confirm that the recipient is 
eligible for access to the classified information involved and agrees to 
safeguard the information in accordance with the provisions of this 
part.
    (c) Members of Congress, Justices of the United States Supreme 
Court, and Judges of the United States Courts of Appeal and District 
Courts do not require a determination of their eligibility for access to 
classified information by the Department. Federal Magistrate Judges must 
be determined eligible for access to classified information by the 
Department Security Officer pursuant to procedures approved by the 
Assistant Attorney General for Administration in consultation with the 
Judicial Conference of the United States. All other Legislative and 
Judicial personnel including, but not limited to, congressional staff, 
court reporters, typists, secretaries, law clerks, and translators who 
require access to classified information must be determined eligible by 
the Department Security Officer consistent with standards established in 
this regulation.
    (d) When other persons outside the Executive Branch who are not 
subject to the National Industrial Security Program require access to 
classified information originated by or in the custody of the 
Department, but do not otherwise possess a proper access authorization, 
an appropriate background investigation must be completed to allow the 
Department Security Officer to determine their eligibility for access to 
classified information. The length of time it generally takes to 
complete an expedited background investigation is 90 days. Therefore, 
all persons requiring access to classified information to participate in 
congressional or judicial proceedings should be identified and the 
background investigation initiated far enough in advance to ensure a 
minimum impact on such proceedings.
    (e) Personnel who are subject to a Department contract or grant or 
who are rendering consultant services to the Department and require 
access to classified information originated by or in the custody of the 
Department shall be processed for such access pursuant to procedures 
approved by the Assistant Attorney General for Administration.
    (f)(1) The requirement that access to classified information may be 
granted only as is necessary for the performance of official duties may 
be waived, pursuant to section 4.5(a) of Executive Order 12958, for 
persons who:
    (i) Are engaged in historical research projects; or
    (ii) Have previously occupied policymaking positions to which they 
were appointed by the President.
    (2) All persons receiving access pursuant to this paragraph (f) must 
have been determined to be trustworthy by the Department Security 
Officer as a precondition before receiving access. Such determinations 
shall be based on such investigation as the Department Security Officer 
deems appropriate. Historical researchers and former presidential 
appointees shall not have access to Foreign Government Information 
without the written permission from an appropriate authority of the 
foreign government concerned.
    (3) Waivers of the ``need-to-know'' requirement under this paragraph 
(f) may be granted by the Department Security Officer provided that the 
Security Programs Manager of the Office, Board, Division, or Bureau with 
classification jurisdiction over the information being sought:
    (i) Makes a written determination that such access is consistent 
with the interest of national security;
    (ii) Limits such access to specific categories of information over 
which the Department has classification jurisdiction;
    (iii) Maintains custody of the classified information at a 
Department facility;
    (iv) Obtains the recipient's written and signed agreement to 
safeguard the information in accordance with the provisions of this 
regulation and to authorize a review of any notes and manuscript for 
determination that no

[[Page 402]]

classified information is contained therein; and
    (v) In the case of former presidential appointees, limits their 
access to items that such former appointees originated, reviewed, 
signed, or received while serving as a presidential appointee and 
ensures that such appointee does not remove or cause to be removed any 
classified information reviewed.
    (4) If access requested by historical researchers and former 
presidential appointees requires the rendering of services for which 
fair and equitable fees may be charged pursuant to 31 U.S.C. 9701, the 
requester shall be so notified and fees may be imposed.



Sec. 17.47  Denial or revocation of eligibility for access to classified
information.

    (a) Applicants and employees who are determined to not meet the 
standards for access to classified information established in section 
3.1 of Executive order 12968 shall be:
    (1) Provided with a comprehensive and detailed written explanation 
of the basis for that decision as the national security interests of the 
United States and other applicable law permit and informed of their 
right to be represented by counsel or other representative at their own 
expense;
    (2) Permitted 30 days from the date of the written explanation to 
request any documents, records, or reports including the entire 
investigative file upon which a denial or revocation is based; and
    (3) Provided copies of documents requested pursuant to this 
paragraph (a) within 30 days of the request to the extent such documents 
would be provided if requested under the Freedom of Information Act (5 
U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), and as the 
national security interests and other applicable law permit.
    (b) An applicant or employee may file a written reply and request 
for review of the determination within 30 days after written 
notification of the determination or receipt of the copies of the 
documents requested pursuant to this subpart, whichever is later.
    (c) An applicant or employee shall be provided with a written notice 
of and reasons for the results of the review, the identity of the 
deciding authority, and written notice of the right to appeal.
    (d) Within 30 days of receipt of a determination under paragraph (c) 
of this section, the applicant or employee may appeal that determination 
in writing to the ARC, established under Sec. 17.15. The applicant or 
employee may request an opportunity to appear personally before the ARC 
and to present relevant documents, materials, and information.
    (e) An applicant or employee may be represented in any such appeal 
by an attorney or other representative of his or her choice, at his or 
her expense. Nothing in this section shall be construed as requiring the 
Department to grant such attorney or other representative eligibility 
for access to classified information, or to disclose to such attorney or 
representative, or permit the applicant or employee to disclose to such 
attorney or representative, classified information.
    (f) A determination of eligibility for access to classified 
information by the ARC is a discretionary security decision. Decisions 
of the ARC shall be in writing and shall be made as expeditiously as 
possible. Access shall be granted only where facts and circumstances 
indicate that access to classified information is clearly consistent 
with the national security interest of the United States, and any doubt 
shall be resolved in favor of the national security.
    (g) The Department Security Officer shall have an opportunity to 
present relevant information in writing or, if the applicant or employee 
appears personally, in person. Any such written submissions shall be 
made part of the applicant's or employee's security record and, as the 
national security interests of the United States and other applicable 
law permit, shall also be provided to the applicant or employee. Any 
personal presentations shall be, to the extent consistent with the 
national security and other applicable law, in the presence of the 
applicant or employee.
    (h) When the Attorney General or Deputy Attorney General personally 
certifies that a procedure set forth in

[[Page 403]]

this section cannot be made available in a particular case without 
damaging the national security interests of the United States by 
revealing classified information, the particular procedure shall not be 
made available. This is a discretionary and final decision not subject 
to further review.
    (i) This section does not limit the authority of the Attorney 
General pursuant to any other law or Executive Order to deny or 
terminate access to classified information if the national security so 
requires and the Attorney General determines that the appeal procedures 
set forth in this section cannot be invoked in a manner that is 
consistent with the national security. Nothing in this section requires 
that the Department provide any procedures under this section to an 
applicant where a conditional offer of employment is withdrawn for 
reasons of suitability or any reason other than denial of eligibility 
for access to classified information. Suitability determinations shall 
not be used for the purpose of denying an applicant or employee the 
review proceedings of this section where there has been a denial or 
revocation of eligibility for access to classified information.



PART 18_OFFICE OF JUSTICE PROGRAMS HEARING AND APPEAL PROCEDURES--
Table of Contents




Sec.
18.1 Purpose.
18.2 Application.
18.3 Definitions.
18.4 Preliminary hearings.
18.5 Hearings.
18.6 Conduct of hearings.
18.7 Discovery.
18.8 Recommended decision.
18.9 Final agency decision.
18.10 Rehearing.

    Authority: Secs. 802-804 of the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L. 90-
351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. 
L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473).
    Secs. 223(d), 226 and 228(e) of the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended (Pub. L. 93-
415, as amended by Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-509, and 
Pub. L. 98-473).
    Sec. 1407(F) of the Victims of Crime Act of 1984, 42 U.S.C. 10601, 
et seq. Pub. L. 98-473, 98 Stat. 2176.

    Source: 50 FR 28199, July 11, 1985, unless otherwise noted.



Sec. 18.1  Purpose.

    The purpose of this regulation is to implement the hearing and 
appeal procedures available to State block or formula grant applicants 
or recipients and existing categorical grantees under sections 802 
through 804 of title I of the Omnibus Crime Control and Safe Streets Act 
of 1968, as amended (Crime Control Act); sections 223(d), 226 and 228(e) 
of the Juvenile Justice and Delinquency Prevention Act of 1974, as 
amended (Juvenile Justice Act); and section 1407(F) of the Victims of 
Crime Act of 1984 (Victims of Crime Act).



Sec. 18.2  Application.

    (a) These procedures apply to all appeals and hearings of State 
formula or block grant applicants or recipients and all existing 
recipients of categorical grants or cooperative agreements requested 
under section 802 of the Justice Assistance Act; sections 223(d), 226 
and 228(e) of the Juvenile Justice Act; section 1407(F) of the Victims 
of Crime Act; the nondiscrimination provision of section 809 of the 
Crime Control Act, or the cross-referenced provisions of the Emergency 
Federal Law Enforcement Assistance Program. The method of notifying 
recipients of their non-compliance with section 809 (the 
nondiscrimination provison of the Crime Control Act and 28 CFR 42.208.
    (b) These procedures do not apply to hearings requested under the 
Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The 
hearing and appeal procedures available to claimants denied benefits 
under that Act are set forth in the appendix to 28 CFR part 32.
    (c) These procedures do not apply to subgrant applicants or to 
recipients or third party beneficiaries of block or formula grants 
awarded to a State.
    (d) These procedures do not apply to categorical grant applicants.
    (e) These procedures do not apply to private sector/prison industry 
enhancement certification applicants; Regional

[[Page 404]]

Information Sharing Systems grant applicants; surplus Federal property 
certification applicants; or the State reimbursement program for 
Incarcerated Mariel-Cubans.



Sec. 18.3  Definitions.

    (a) Block or formula grant applicant or recipient means an applicant 
for a grant awarded under the provisions of part D of the Crime Control 
Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 
and 1404 of the Victims of Crime Act.
    (b) Categorical grant recipient means a public or private agency 
which has received a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (c) Categorical grant applicant means a public or private agency 
which has applied for a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (d) Grant includes cooperative agreements and means a direct award 
of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC.
    (e) Crime Control Act means the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended.
    (f) Juvenile Justice Act means the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended.
    (g) Responsible agency means the organizational unit whose action is 
being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as 
appropriate. In hearings requested under the nondiscrimination 
provisions of the Crime Control Act, the responsible agency is OJP. In 
hearings requested to contest block or formula grant denials or 
terminations or categorical grant terminations, the responsible agency 
is the organizational unit that took the action at issue: OJP, BJA, 
OJJDP, NIJ, BJS or OVC.
    (h) Responsible agency official means the Assistant Attorney 
General, Office of Justice Programs (OJP); the Director, Bureau of 
Justice Assistance (BJA); the Director, National Institute of Justice 
(NIJ); the Director, Bureau of Justice Statistics (BJS); the Director, 
Office for Victims of Crime (OVC); or the Administrator, Office of 
Juvenile Justice and Delinquency Prevention (OJJDP), as appropriate.
    (i) Sub-grant applicant or recipient means the State agency, unit of 
local government or private non-profit organization which applies for, 
or receives, a grant from a State agency which administers a block or 
formula grant.
    (j) Victims of Crime Act means the Victims of Crime Act of 1984, 42 
U.S.C. 10601, et seq.



Sec. 18.4  Preliminary hearings.

    (a) A grantee determined to be in noncompliance with the 
nondiscrimination provisions of the Crime Control Act, the Juvenile 
Justice Act or the Victims of Crime Act may request a preliminary 
hearing within 90 days after receipt of the notification of 
noncompliance.
    (b) The preliminary hearing shall be initiated within 30 days of the 
request.
    (c) The sole issue to be adjudicated by the hearing officer is 
whether the grantee is likely to prevail on the merits of the issue at a 
full hearing requested under 28 CFR 42.215. The grantee shall have the 
burden of persuading the hearing officer that the grantee is likely to 
prevail on the merits.
    (d) The hearing officer may permit the parties to argue the issue by 
briefs, oral argument, or the presentation of testimony and exhibits. 
The hearing officer shall accept as evidence documents and other 
exhibits which can reasonably be authenticated and subjected to cross-
examination at a full hearing.
    (e) The hearing officer shall make the final decision on the issue 
within 15 days after the conclusion of the preliminary hearing.



Sec. 18.5  Hearings.

    (a) Whenever the responsible agency official finds that there has 
been a substantial failure to comply with:
    (1) The provisions of the Crime Control Act, the Juvenile Justice 
Act, or the Victims of Crime Act;
    (2) Regulations promulgated by the responsible agency pursuant to 
appropriate statutory authority; or

[[Page 405]]

    (3) A plan or application submitted in accordance with the 
provisions of the Crime Control Act; the Juvenile Justice Act, the 
Victims of Crime Act, or the provisions of any other applicable Federal 
act, regulation or guideline;

the responsible agency shall notify the grantee or applicant State that 
all or part of its grant or subgrant will be terminated or suspended 
until the responsible agency is satisfied that there is no longer such 
failure.
    (b) The notice shall contain:
    (1) A statement of facts sufficient to inform the party of the 
reasons for the agency's proposed action;
    (2) A statement of the nature of the action proposed to be taken; 
and
    (3) A reference of the available appeal rights.
    (c) If a block or formula grant applicant or recipient or a 
categorical grant recipient wishes to appeal any action covered by Sec. 
18.5(a) it may request a review of the issues in controversy within 30 
days after notice of termination, noncompliance or denial by writing to:

Office of General Counsel, office of Justice Programs, U.S. Department 
of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531.

    (d) The request for a review shall contain:
    (1) A factual statement sufficient to inform the responsible agency 
of the nature of the issues involved;
    (2) A recital of the relief requested; and
    (3) A request for an oral hearing, or in the alternative, an 
opportunity to submit only written information or argument to a hearing 
officer.
    (e) If the responsible agency official determines that basis for the 
appeal in Sec. 18.5(c) would not, if substantiated, establish a basis 
for grant award or continuation, the official may take final agency 
action on the appeal.
    (f) The responsible agency or its representative may attempt to 
informally resolve a controversy arising under this section prior to 
initiating a hearing. Unless it is expressly agreed otherwise, an 
agreement to attempt informal resolution does not waive the right to the 
formal hearing.
    (g) If the responsible agency or its representaive does not receive 
a request for a review within 30 days after notice has been sent, the 
opportunity for review is waived.
    (h) All oral hearings requested under this section shall be held in 
Washington, DC, unless the hearing officer decides that the hearing 
could be conducted in a more expeditious, fair, or cost effective manner 
in another location.
    (i) The responsible agency may suspend all or part of the grantee's 
funding pending the completion of the review process. If, at the 
conclusion of the review process, the responsible agency determines that 
the grantee is in compliance, it shall restore all previously suspended 
funding to the grantee.
    (j) Any person may request the responsible agency official to 
determine whether a grantee has failed to comply with the terms of the 
statute under which the grant was awarded, agency regulations or the 
terms and conditions of the grant. The responsible agency may, in its 
discretion, conduct an investigation into the matter and, if warranted, 
make a determination of noncompliance. Only a grantee determined to be 
in noncompliance may request a compliance hearing.



Sec. 18.6  Conduct of hearings.

    (a) A hearing officer appointed by the responsible agency official 
shall preside over the hearing. The hearing officer may be an 
administrative law judge, or an employee of the Department of Justice 
who was not involved in the administration, investigation or prosecution 
of the matter at issue. In hearings held under the nondiscrimination 
provisions of the Crime Control Act, the Juvenile Justice Act or the 
Victims of Crime Act, the hearing officer shall be an administrative law 
judge.
    (b) If the hearing officer appointed is unacceptable to the 
appellant, it shall promptly inform the responsible agency official of 
the reasons for its position. The responsible agency official may select 
another hearing officer, or affirm the initial selection. In either 
case, the official shall inform the appellant of the reasons for the 
decision.
    (c) The hearing officer shall have the following powers and duties:

[[Page 406]]

    (1) The power to hold hearings and regulate the course of the 
hearings and the conduct of the parties and their counsel;
    (2) The power to sign and issue subpoenas and other orders requiring 
access to records;
    (3) The power to administer oaths and affirmations;
    (4) The power to examine witnesses;
    (5) The power to rule on offers of proof and to receive evidence;
    (6) The power to take depositions or to cause depositions to be 
taken;
    (7) The power to hold conferences under Sec. 18.6(d) for the 
settlement or simplification of the issues or for any other proper 
purpose;
    (8) The power to consider and rule upon procedural requests and 
other motions, including motions for default;
    (9) The duty to conduct fair and impartial hearings;
    (10) The duty to maintain order;
    (11) The duty to avoid unnecessary delay; and
    (12) All powers and duties reasonably necessary to perform the 
functions enumerated in subsections (1)-(11).
    (d) The hearing officer may call upon the parties to consider:
    (1) Simplification or clarification of the issues;
    (2) Stipulations, admissions, agreements on documents, or other 
understandings which will expedite conduct of the hearing;
    (3) Limitation of the number of witnesses and of cumulative 
evidence;
    (4) Settlement of all or part of the issues in dispute;
    (5) Such other matters as may aid in the disposition of the case.
    (e) All hearings under this part shall be public unless otherwise 
ordered by the responsible agency official.
    (f) The hearing shall be conducted in conformity with sections 5-8 
of the Administrative Procedure Act, 5 U.S.C. 554-557.
    (g) The responsible agency shall have the burden of going forward 
with the evidence and shall generally present its evidence first.
    (h) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules designed to assure production 
of the most credible evidence available and to subject testimony to 
cross-examination shall be applied where reasonably necessary by the 
hearing officer. The hearing officer may exclude irrelevant, immaterial, 
or unduly repetitious evidence. All documents and other evidence offered 
or taken for the record shall be open to examination by the parties, and 
opportunity shall be given to refute facts and arguments advanced on 
either side of the issues. A transcript shall be made of the oral 
evidence except to the extent the substance thereof is stipulated for 
the record.
    (i) During the time a proceeding is before a hearing officer, all 
motions shall be addressed to the hearing officer and, if within his or 
her delegated authority, shall be ruled upon. Any motion upon which the 
hearing officer has no authority to rule shall be certified to the 
responsible agency official with a recommendation. The opposing party 
may answer within such time as may be designated by the hearing officer. 
The hearing officer may permit further replies by both parties.



Sec. 18.7  Discovery.

    (a)(1) At any time after the initiation of the proceeding, the 
hearing officer may order, by subpoena if necessary, the taking of a 
deposition and the production of relevant documents by the deponent. 
Such order may be entered upon a showing that the deposition is 
necessary for discovery purposes, and that such discovery could not be 
accomplished by voluntary methods. Such an order may also be entered in 
extraordinary circumstances to preserve relevant evidence upon a showing 
that there is substantial reason to believe that such evidence could not 
be presented through a witness at the hearing. The decisive factors for 
a determination under this subsection, however, shall be fairness to all 
parties and the requirements of due process. Depositions may be taken 
orally or upon written questions before any person who has the power to 
administer oaths.
    (2) Each deponent shall be duly sworn, and any adverse party shall 
have the right to cross-examine. Objections to questions or documents 
shall be in short form, stating the grounds upon which objections are 
made. The

[[Page 407]]

questions propounded and the answers thereto, together with all 
objections made (but not including argument or debate), shall be reduced 
to writing and certified by the officer before whom the deposition was 
taken. Thereafter, the officer shall forward the deposition and one (1) 
copy thereof to the party at whose instance the deposition was taken and 
shall forward one (1) copy to the representative of the other party.
    (3) A deposition may be admitted into evidence as against any party 
who was present or represented at the taking of the deposition, or who 
had due notice thereof, if the hearing officer finds that there are 
sufficient reasons for admission and that the admission of the evidence 
would be fair to all parties and comport with the requirements of due 
process.
    (b)(1) At any time after the initiation of the appeal, any party may 
serve upon any other party written interrogatories to be answered by the 
party served, or by an authorized representative of the party if the 
party served is a corporate or governmental entity. The party served 
shall furnish all information which is available to it.
    (2) Each interrogatory shall be answered separately and fully in 
writing under oath by the party addressed or by an authorized 
representative. The time and manner of returning the interrogatory shall 
be prescribed by the hearing officer.



Sec. 18.8  Recommended decision.

    Within a reasonable time after the close of the record of the 
hearings conducted under Sec. 18.6, the hearing officer shall submit 
findings of fact, conclusions of law, and a recommended order to the 
responsible agency official, in writing. The hearing officer shall 
promptly make copies of these documents available to the parties.



Sec. 18.9  Final agency decision.

    (a) In hearings conducted under Sec. 18.6, the responsible agency 
official shall make the final agency decision, on the basis of the 
record, findings, conclusions, and recommendations presented by the 
hearing examiner.
    (b) Prior to making a final decision, the responsible agency 
official shall give the parties an opportunity to submit the following, 
within thirty (30) days after the submission of the hearing officer's 
recommendations:
    (1) Proposed findings and determinations;
    (2) Exceptions to the recommendations of the hearing officer; and
    (3) Supporting reasons for the exceptions or proposed findings or 
determinations; and
    (4) Final briefs summarizing the arguments presented at the hearing.
    (c) All determinations, findings and conclusions made by the 
responsible agency official shall be final and conclusive upon the 
responsible agency and all appellants.



Sec. 18.10  Rehearing.

    (a) Any appellant dissatisfied with a final agency decision under 
Sec. 18.9 may, within 30 days after the notice of the final agency 
decision is sent, request the responsible agency official to re-review 
the record, and present additional evidence which is appropriate and 
pertinent to support a different decision.
    (b) If the responsible agency official finds that the appellant has:
    (1) Presented evidence or argument which is sufficiently significant 
to require the conduct of further proceedings; or
    (2) Shown some defect in the conduct of the initial hearing 
sufficient to cause substantial unfairness or an erroneous finding in 
that hearing, the responsible agency official may require that another 
oral hearing be held on one or more of the issues in controversy, or 
permit the dissatisfied party to present further evidence or argument in 
writing.
    (c) Any rehearing ordered by the responsible agency official shall 
be conducted pursuant to Sec. Sec. 18.5-18.8.



PART 19_USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING
CHILDREN--Table of Contents




Sec.
19.1 Purpose.
19.2 Contact person for Missing Children Penalty Mail Program.
19.3 Policy.
19.4 Cost and percentage estimates.
19.5 Report to the Office of Juvenile Justice and Delinquency 
          Prevention.

[[Page 408]]

19.6 Responsibility of DOJ organizational units for program 
          implementation and implementation procedures.

    Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301.

    Source: Order No. 1239-87, 52 FR 45174, Nov. 25, 1987, unless 
otherwise noted.



Sec. 19.1  Purpose.

    This regulation, providing for a Missing Children Penalty Mail 
Program in the Department of Justice (DOJ), is intended to comply with 
the regulation requirement set forth in section 1(a) of Public Law 99-
87, which adds a new section 3220 to title 39, U.S. Code. The regulation 
also implements the Office of Juvenile Justice and Delinquency 
Prevention (OJJDP) guideline (50 FR 46622) promulgated under the 
authority of 39 U.S.C. 3220(a)(1), and is intended to assist in the 
location and recovery of missing children through the use of DOJ penalty 
mail.



Sec. 19.2  Contact person for Missing Children Penalty Mail Program.

    The DOJ contact person for the Missing Children Penalty Mail Program 
is: Patricia Schellman, General Services Staff, Justice Management 
Division, U.S. Department of Justice, 10th and Constitution Ave., NW., 
Washington, DC 20530, telephone number (202) 633-2353.



Sec. 19.3  Policy.

    (a) The Department of Justice will supplement and expand the 
national effort to assist in the location and recovery of missing 
children by maximizing the economical use of missing children 
photographs and biographical information in domestic penalty mail 
directed to members of the public.
    (b) Because the use of inserts printed with missing children 
photographs and biographical information has been determined to be the 
most cost effective method for general application of the program, DOJ's 
first priority will be to insert, manually and via automated inserting 
equipment, photographs and biographical data related to missing children 
in a variety of types of penalty mail envelopes. These include:
    (1) Standard letter-size envelopes (4\1/2\x9\1/
2\);
    (2) Document-size envelopes (9\1/2\x12, 9\1/
2\x11\1/2\, 10x13); and
    (3) Other envelopes (misc. size).
    (c)(1) Maximum consideration will be given to the use of missing 
children materials with high volume printing plant or distribution plan 
mail that will be sent to the public or to Federal, State or local 
government agencies. Every effort will be made to use the most cost 
effective and efficient methods of obtaining, distributing, and 
disseminating missing children information.
    (2) In instances when the printing of photograph(s) and biographical 
information directly on self-mailers and other publications 
(newsletters, bulletins, etc.) and/or on penalty mail envelopes proves 
to be practical and cost effective, this method may also be used. 
Photographs and biographical information related to missing children may 
be printed on the three types of penalty mail envelopes listed above.
    (d) Missing children information shall not be placed on the 
``Penalty Indicia'', ``OCR Read Area'', ``Bar Code Read Area'', and 
``Return Address'' areas of standard letter-size envelopes per appendix 
A of the OJJDP guideline as published in the November 8, 1985, Federal 
Register (50 FR 46625).
    (e) The National Center for Missing and Exploited Children (National 
Center) will be the sole source from which DOJ will acquire the camera-
ready and other photographic and biographical materials to be 
disseminated for use by DOJ organizational units. When printing missing 
children information, DOJ will select subjects in accordance with the 
schedule published by the National Center.
    (f) DOJ will remove all printed penalty mail envelopes and other 
materials from circulation or other use (i.e.: Use or destroy) within a 
three month period from the date the National Center receives 
information or notice that a child whose photograph and biographical 
information have been made available to DOJ has been recovered or that 
the parent(s) or guardian's permission to use the child's photograph and 
biographical information has been withdrawn. The National Center will be 
responsible for immediately notifying the DOJ contact person, in 
writing, of the need to withdraw penalty mail envelopes and other 
materials related to

[[Page 409]]

a particular child from circulation. Photographs which were reasonably 
current as of the time of the child's disappearance shall be the only 
acceptable form of visual media or pictorial likeness used on or in DOJ 
penalty mail.
    (g) DOJ will give priority to penalty mail that:
    (1) Is addressed to members of the public and will be received in 
the United States, its territories and possessions; and
    (2) Is widely disseminated and read by DOJ employees such as inter- 
and intra-agency publications and other media.
    (h) All DOJ employee suggestions, ideas or recommendations for 
innovative, cost-effective techniques for implementation of the Missing 
Children Penalty Mail Program should be forwarded to the DOJ contact 
person. DOJ Mail Managers shall hold biannual meetings to discuss the 
status of implementation of the current plan, and to consider 
recommendations to improve future plan implementation.
    (i) This shall be the sole DOJ regulation implementing this program.



Sec. 19.4  Cost and percentage estimates.

    It is estimated that this program will cost DOJ $78,000 during the 
initial year. This figure is based on estimates of printing, inserting, 
and administrative costs. It is DOJ's objective that 50 percent of DOJ 
penalty mail contain missing children photographs and biographical 
information by the end of the first year of the program.



Sec. 19.5  Report to the Office of Juvenile Justice and Delinquency Prevention.

    DOJ will compile and submit to OJJDP, by June 30, 1987, a 
consolidated report on its experience in implementation of 39 U.S.C. 
3220(a)(2), the OJJDP guidelines and the DOJ regulation. The report will 
consolidate information gathered from individual DOJ organizational 
units and cover the period February 5, 1986 through March 31, 1987. The 
report will provide the following information:
    (a) DOJ's experience in implementation, including problems 
encountered, successful and/or innovative methods adopted to use missing 
children photographs and information on or in penalty mail, the 
estimated number of pieces of penalty mail containing such information, 
and the estimated percentage of total agency penalty mail, domestic 
penalty mail, and domestic penalty mail directed to members of the 
public which this number represents.
    (b) The estimated total cost to implement the program, with 
supporting detail (for example, printing cost, hours of labor or labor 
cost, cost related to withdrawal of photographs, etc.).
    (c) Recommendations for changes in the program which would make it 
more effective.



Sec. 19.6  Responsibility of DOJ organizational units for program 
implementation and implementation procedures.

    (a) The General Services Staff, Justice Management Division (JMD), 
will be the liaison between the National Center and the principal 
organizational units of the Department. The General Services Staff, JMD 
shall be responsible for:
    (1) Developing and disseminating Departmentwide guidelines and 
monitoring the implementation of the Missing Children Penalty Mail 
Program.
    (2) Ordering camera-ready copies and other photographic and 
biographical material from the National Center, using the format 
established by the Center, and distributing the material within the 
Department of Justice.
    (3) Immediately notifying DOJ components, in writing, of the need to 
use or withdraw from circulation, within 90 days, penalty mail 
envelopes, inserts and other material related to a recovered child or 
child whose parent(s) or guardian has withdrawn consent to use the 
photograph and biographical information. See 28 CFR 0.1, Organizational 
Structure of the Department of Justice, for a listing of DOJ principal 
organizational units designated as components.
    (4) Collecting, analyzing and consolidating cost, mail volume data 
and other program related information and reporting to OJJDP, by June 
30, 1987, on DOJ's experience in implementing the program.

[[Page 410]]

    (5) Conducting biannual meetings with selected components contacts 
to discuss current plans and solicit suggestions and/or recommendations 
for innovative and cost effective techniques to enhance the success of 
the program.
    (6) Providing guidance and assistance to components in internal 
program development and implementation.
    (7) Maintaining a list of DOJ personnel assigned to serve as Missing 
Children Program Coordinators for the components.
    (b) Bureau Mail Managers and components Executive/Administrative 
Officers shall be responsible for:
    (1) Establishing and implementing internal procedures and guidelines 
for the dissemination and use of missing children photographs and 
biographical information on or in domestic penalty mail. For example, 
the Bureau Mail Manager will provide guidance to Bureau offices on the 
types of missing children information which are available for use on or 
in penalty mail and establish procedures for obtaining and using the 
information, as appropriate.
    (2) Identifying and reviewing publications and other Bureau media 
for suitable use in disseminating missing children photographs and 
information and obtaining approval for its use from the originating 
office.
    (3) Ensuring that all printed penalty mail envelopes, inserts, and 
other penalty mail material containing photographs and biographical 
information on a missing child are used or removed from circulation or 
other use within 90 days from the date of DOJ notification by the 
National Center to withdraw material for that child.
    (4) Designating Missing Children Coordinator(s) at headquarters and 
in each component and field office participating in the program.
    (5) Arranging for printing and/or acquisition through designated 
channels, adequate supplies of inserts or penalty mail envelopes and 
other materials containing photographs and biographical data related to 
missing children.
    (6) Collecting and reporting to the General Services Staff, Justice 
Management Division, the information identified in Sec. 19.5 of this 
part as required for inclusion in the DOJ's consolidated report to 
OJJDP.
    (c) Component and Bureau Missing Children Program Coordinators shall 
be responsible for:
    (1) Insuring that adequate supplies of envelopes or inserts are 
ordered, received or disseminated for use within the organizational unit 
or requesting camera-ready copy for printing from the DOJ contact person 
using a written form to be established by DOJ Guideline.
    (2) Ensuring that the acquisition and use of missing children 
information through inserts or printing of these materials in 
publications or on envelopes is approved by appropriate authority within 
the organizational unit.
    (3) Maintaining and disseminating supplies of inserts, envelopes, 
and camera-ready copy (for publications) to personnel who prepare 
domestic penalty mail for dispatch through the U.S. Postal Service.
    (4) Notifying employees within their organizational unit to use or 
remove from circulation all printed penalty mail envelopes, inserts, and 
other material containing a photograph and biographical information on a 
missing child within 90 days from the date of DOJ notification by the 
National Center to withdraw material for that child.
    (5) Serving as the central point of contact within their 
organizations for all matters relating to the Missing Children Penalty 
Mail Program.
    (6) Collecting and reporting essential management information 
relating to the implemention of this program within their organizational 
unit and reporting this information to the appropriate Bureau Mail 
Manager or component Executive/Administrative Officer.
    (d) Missing children pictures and biographical information shall not 
be:
    (1) Printed on penalty mail envelopes, inserts, or other materials 
which are ordered and/or stocked in quantities which represent more than 
a 90 day supply.
    (2) Printed on blank pages or covers of publications that may be 
included in the Superintendent of Documents' Sales Program or are to be 
distributed to depository Libraries.

[[Page 411]]

    (3) Inserted in any envelope and/or publication the contents of 
which may be construed to be inappropriate for association with the 
Missing Children Penalty Mail Program.
    (e) Each component shall provide the General Services Staff, Justice 
Management Division, with the name(s), telephone number(s) and mailing 
address(es) of each designated Missing Children Program Coordinator 
within 30 days of the effective date of this regulation.
    (f) Each component shall submit a quarterly report to the General 
Services Staff, Justice Management Division, within 5 days after the 
close of each Fiscal Year quarter providing the specific information 
identified in Sec. 19.5 concerning implementation and participation in 
the program.



PART 20_CRIMINAL JUSTICE INFORMATION SYSTEMS--Table of Contents




                      Subpart A_General Provisions

Sec.
20.1 Purpose.
20.2 Authority.
20.3 Definitions.

  Subpart B_State and Local Criminal History Record Information Systems

20.20 Applicability.
20.21 Preparation and submission of a Criminal History Record 
          Information Plan.
20.22 Certification of compliance.
20.23 Documentation: Approval by OJARS.
20.24 State laws on privacy and security.
20.25 Penalties.

   Subpart C_Federal Systems and Exchange of Criminal History Record 
                               Information

20.30 Applicability.
20.31 Responsibilities.
20.32 Includable offenses.
20.33 Dissemination of criminal history record information.
20.34 Individual's right to access criminal history record information.
20.35 Criminal Justice Information Services Advisory Policy Board.
20.36 Participation in the Interstate Identification Index System.
20.37 Responsibility for accuracy, completeness, currency, and 
          integrity.
20.38 Sanction for noncompliance.

Appendix to Part 20--Commentary on Selected Sections of the Regulations 
          on Criminal History Record Information Systems

    Authority: 28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42 U.S.C. 
3711, et seq.; Pub. L. 99-169, 99 Stat. 1002, 1008-1011, as amended by 
Pub. L. 99-569, 100 Stat. 3190, 3196; Pub. L. 101-410, 104 Stat. 890, as 
amended by Pub. L. 104-134, 110 Stat. 1321.

    Source: Order No. 601-75, 40 FR 22114, May 20, 1975, unless 
otherwise noted.



                      Subpart A_General Provisions

    Source: 41 FR 11714, Mar. 19, 1976, unless otherwise noted.



Sec. 20.1  Purpose.

    It is the purpose of these regulations to assure that criminal 
history record information wherever it appears is collected, stored, and 
disseminated in a manner to ensure the accuracy, completeness, currency, 
integrity, and security of such information and to protect individual 
privacy.

[Order No. 2258-99, 64 FR 52226, Sept. 28, 1999]



Sec. 20.2  Authority.

    These regulations are issued pursuant to sections 501 and 524(b) of 
the Omnibus Crime Control and Safe Streets Act of 1968, as amended by 
the Crime Control Act of 1973, Public Law 93-83, 87 Stat. 197, 42 U.S.C. 
3701, et seq. (Act), 28 U.S.C. 534, and Public Law 92-544, 86 Stat. 
1115.



Sec. 20.3  Definitions.

    As used in these regulations:
    (a) Act means the Omnibus Crime Control and Safe Streets Act, 42 
U.S.C. 3701, et seq., as amended.
    (b) Administration of criminal justice means performance of any of 
the following activities: Detection, apprehension, detention, pretrial 
release, post-trial release, prosecution, adjudication, correctional 
supervision, or rehabilitation of accused persons or criminal offenders. 
The administration of criminal justice shall include criminal 
identification activities and the collection, storage, and dissemination 
of criminal history record information.
    (c) Control Terminal Agency means a duly authorized state, foreign, 
or international criminal justice agency with

[[Page 412]]

direct access to the National Crime Information Center 
telecommunications network providing statewide (or equivalent) service 
to its criminal justice users with respect to the various systems 
managed by the FBI CJIS Division.
    (d) Criminal history record information means information collected 
by criminal justice agencies on individuals consisting of identifiable 
descriptions and notations of arrests, detentions, indictments, 
informations, or other formal criminal charges, and any disposition 
arising therefrom, including acquittal, sentencing, correctional 
supervision, and release. The term does not include identification 
information such as fingerprint records if such information does not 
indicate the individual's involvement with the criminal justice system.
    (e) Criminal history record information system means a system 
including the equipment, facilities, procedures, agreements, and 
organizations thereof, for the collection, processing, preservation, or 
dissemination of criminal history record information.
    (f) Criminal history record repository means the state agency 
designated by the governor or other appropriate executive official or 
the legislature to perform centralized recordkeeping functions for 
criminal history records and services in the state.
    (g) Criminal justice agency means:
    (1) Courts; and
    (2) A governmental agency or any subunit thereof that performs the 
administration of criminal justice pursuant to a statute or executive 
order, and that allocates a substantial part of its annual budget to the 
administration of criminal justice. State and federal Inspector General 
Offices are included.
    (h) Direct access means having the authority to access systems 
managed by the FBI CJIS Division, whether by manual or automated 
methods, not requiring the assistance of or intervention by any other 
party or agency.
    (i) Disposition means information disclosing that criminal 
proceedings have been concluded and the nature of the termination, 
including information disclosing that the police have elected not to 
refer a matter to a prosecutor or that a prosecutor has elected not to 
commence criminal proceedings; or disclosing that proceedings have been 
indefinitely postponed and the reason for such postponement. 
Dispositions shall include, but shall not be limited to, acquittal, 
acquittal by reason of insanity, acquittal by reason of mental 
incompetence, case continued without finding, charge dismissed, charge 
dismissed due to insanity, charge dismissed due to mental incompetency, 
charge still pending due to insanity, charge still pending due to mental 
incompetence, guilty plea, nolle prosequi, no paper, nolo contendere 
plea, convicted, youthful offender determination, deceased, deferred 
disposition, dismissed-civil action, found insane, found mentally 
incompetent, pardoned, probation before conviction, sentence commuted, 
adjudication withheld, mistrial-defendant discharged, executive 
clemency, placed on probation, paroled, or released from correctional 
supervision.
    (j) Executive order means an order of the President of the United 
States or the Chief Executive of a state that has the force of law and 
that is published in a manner permitting regular public access.
    (k) Federal Service Coordinator means a non-Control Terminal Agency 
that has a direct telecommunications line to the National Crime 
Information Center network.
    (l) Fingerprint Identification Records System or ``FIRS'' means the 
following FBI records: Criminal fingerprints and/or related criminal 
justice information submitted by authorized agencies having criminal 
justice responsibilities; civil fingerprints submitted by federal 
agencies and civil fingerprints submitted by persons desiring to have 
their fingerprints placed on record for personal identification 
purposes; identification records, sometimes referred to as ``rap 
sheets,'' which are compilations of criminal history record information 
pertaining to individuals who have criminal fingerprints maintained in 
the FIRS; and a name index pertaining to all individuals whose 
fingerprints are maintained in the FIRS. See the FIRS Privacy Act System 
Notice periodically published in the Federal Register for further 
details.

[[Page 413]]

    (m) Interstate Identification Index System or ``III System'' means 
the cooperative federal-state system for the exchange of criminal 
history records, and includes the National Identification Index, the 
National Fingerprint File, and, to the extent of their participation in 
such system, the criminal history record repositories of the states and 
the FBI.
    (n) National Crime Information Center or ``NCIC'' means the 
computerized information system, which includes telecommunications lines 
and any message switching facilities that are authorized by law, 
regulation, or policy approved by the Attorney General of the United 
States to link local, state, tribal, federal, foreign, and international 
criminal justice agencies for the purpose of exchanging NCIC related 
information. The NCIC includes, but is not limited to, information in 
the III System. See the NCIC Privacy Act System Notice periodically 
published in the Federal Register for further details.
    (o) National Fingerprint File or ``NFF'' means a database of 
fingerprints, or other uniquely personal identifying information, 
relating to an arrested or charged individual maintained by the FBI to 
provide positive identification of record subjects indexed in the III 
System.
    (p) National Identification Index or ``NII'' means an index 
maintained by the FBI consisting of names, identifying numbers, and 
other descriptive information relating to record subjects about whom 
there are criminal history records in the III System.
    (q) Nonconviction data means arrest information without disposition 
if an interval of one year has elapsed from the date of arrest and no 
active prosecution of the charge is pending; information disclosing that 
the police have elected not to refer a matter to a prosecutor, that a 
prosecutor has elected not to commence criminal proceedings, or that 
proceedings have been indefinitely postponed; and information that there 
has been an acquittal or a dismissal.
    (r) State means any state of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, and any territory or 
possession of the United States.
    (s) Statute means an Act of Congress or of a state legislature or a 
provision of the Constitution of the United States or of a state.

[Order No. 2258-99, 64 FR 52226, Sept. 28, 1999]



  Subpart B_State and Local Criminal History Record Information Systems

    Source: 41 FR 11715, Mar. 19, 1976, unless otherwise noted.



Sec. 20.20  Applicability.

    (a) The regulations in this subpart apply to all State and local 
agencies and individuals collecting, storing, or disseminating criminal 
history record information processed by manual or automated operations 
where such collection, storage, or dissemination has been funded in 
whole or in part with funds made available by the Law Enforcement 
Assistance Administration subsequent to July 1, 1973, pursuant to title 
I of the Act. Use of information obtained from the FBI Identification 
Division or the FBI/NCIC system shall also be subject to limitations 
contained in subpart C.
    (b) The regulations in this subpart shall not apply to criminal 
history record information contained in:
    (1) Posters, announcements, or lists for identifying or apprehending 
fugitives or wanted persons;
    (2) Original records of entry such as police blotters maintained by 
criminal justice agencies, compiled chronologically and required by law 
or long standing custom to be made public, if such records are organized 
on a chronological basis;
    (3) Court records of public judicial proceedings;
    (4) Published court or administrative opinions or public judicial, 
administrative or legislative proceedings;
    (5) Records of traffic offenses maintained by State departments of 
transportation, motor vehicles or the equivalent thereof for the purpose 
of regulating the issuance, suspension, revocation, or renewal of 
driver's, pilot's or other operators' licenses;
    (6) Announcements of executive clemency.

[[Page 414]]

    (c) Nothing in these regulations prevents a criminal justice agency 
from disclosing to the public criminal history record information 
related to the offense for which an individual is currently within the 
criminal justice system. Nor is a criminal justice agency prohibited 
from confirming prior criminal history record information to members of 
the news media or any other person, upon specific inquiry as to whether 
a named individual was arrested, detained, indicted, or whether an 
information or other formal charge was filed, on a specified date, if 
the arrest record information or criminal record information disclosed 
is based on data excluded by paragraph (b) of this section. The 
regulations do not prohibit the dissemination of criminal history record 
information for purposes of international travel, such as issuing visas 
and granting of citizenship.



Sec. 20.21  Preparation and submission of a Criminal History Record
Information Plan.

    A plan shall be submitted to OJARS by each State on March 16, 1976, 
to set forth all operational procedures, except those portions relating 
to dissemination and security. A supplemental plan covering these 
portions shall be submitted no later than 90 days after promulgation of 
these amended regulations. The plan shall set forth operational 
procedures to--
    (a) Completeness and accuracy. Insure that criminal history record 
information is complete and accurate.
    (1) Complete records should be maintained at a central State 
repository. To be complete, a record maintained at a central State 
repository which contains information that an individual has been 
arrested, and which is available for dissemination, must contain 
information of any dispositions occurring within the State within 90 
days after the disposition has occurred. The above shall apply to all 
arrests occurring subsequent to the effective date of these regulations. 
Procedures shall be established for criminal justice agencies to query 
the central repository prior to dissemination of any criminal history 
record information unless it can be assured that the most up-to-date 
disposition data is being used. Inquiries of a central State repository 
shall be made prior to any dissemination except in those cases where 
time is of the essence and the repository is technically incapable of 
responding within the necessary time period.
    (2) To be accurate means that no record containing criminal history 
record information shall contain erroneous information. To accomplish 
this end, criminal justice agencies shall institute a process of data 
collection, entry, storage, and systematic audit that will minimize the 
possibility of recording and storing inaccurate information and upon 
finding inaccurate information of a material nature, shall notify all 
criminal justice agencies known to have received such information.
    (b) Limitations on dissemination. Insure that dissemination of 
nonconviction data has been limited, whether directly or through any 
intermediary only to:
    (1) Criminal justice agencies, for purposes of the administration of 
criminal justice and criminal justice agency employment;
    (2) Individuals and agencies for any purpose authorized by statute, 
ordinance, executive order, or court rule, decision, or order, as 
construed by appropriate State or local officials or agencies;
    (3) Individuals and agencies pursuant to a specific agreement with a 
criminal justice agency to provide services required for the 
administration of criminal justice pursuant to that agreement. The 
agreement shall specifically authorize access to data, limit the use of 
data to purposes for which given, insure the security and 
confidentiality of the data consistent with these regulations, and 
provide sanctions for violation thereof;
    (4) Individuals and agencies for the express purpose of research, 
evaluative, or statistical activities pursuant to an agreement with a 
criminal justice agency. The agreement shall specifically authorize 
access to data, limit the use of data to research, evaluative, or 
statistical purposes, insure the confidentiality and security of the 
data consistent with these regulations and with section 524(a) of the 
Act and any regulations implementing section

[[Page 415]]

524(a), and provide sanctions for the violation thereof. These 
dissemination limitations do not apply to conviction data.
    (c) General policies on use and dissemination. (1) Use of criminal 
history record information disseminated to noncriminal justice agencies 
shall be limited to the purpose for which it was given.
    (2) No agency or individual shall confirm the existence or 
nonexistence of criminal history record information to any person or 
agency that would not be eligible to receive the information itself.
    (3) Subsection (b) does not mandate dissemination of criminal 
history record information to any agency or individual. States and local 
governments will determine the purposes for which dissemination of 
criminal history record information is authorized by State law, 
executive order, local ordinance, court rule, decision or order.
    (d) Juvenile records. Insure that dissemination of records 
concerning proceedings relating to the adjudication of a juvenile as 
delinquent or in need or supervision (or the equivalent) to noncriminal 
justice agencies is prohibited, unless a statute, court order, rule or 
court decision specifically authorizes dissemination of juvenile 
records, except to the same extent as criminal history records may be 
disseminated as provided in paragraph (b) (3) and (4) of this section.
    (e) Audit. Insure that annual audits of a representative sample of 
State and local criminal justice agencies chosen on a random basis shall 
be conducted by the State to verify adherence to these regulations and 
that appropriate records shall be retained to facilitate such audits. 
Such records shall include, but are not limited to, the names of all 
persons or agencies to whom information is disseminated and the date 
upon which such information is disseminated. The reporting of a criminal 
justice transaction to a State, local or Federal repository is not a 
dissemination of information.
    (f) Security. Wherever criminal history record information is 
collected, stored, or disseminated, each State shall insure that the 
following requirements are satisfied by security standards established 
by State legislation, or in the absence of such legislation, by 
regulations approved or issued by the Governor of the State.
    (1) Where computerized data processing is employed, effective and 
technologically advanced software and hardware designs are instituted to 
prevent unauthorized access to such information.
    (2) Access to criminal history record information system facilities, 
systems operating environments, data file contents whether while in use 
or when stored in a media library, and system documentation is 
restricted to authorized organizations and personnel.
    (3)(i) Computer operations, whether dedicated or shared, which 
support criminal justice information systems, operate in accordance with 
procedures developed or approved by the participating criminal justice 
agencies that assure that:
    (a) Criminal history record information is stored by the computer in 
such manner that it cannot be modified, destroyed, accessed, changed, 
purged, or overlaid in any fashion by non-criminal justice terminals.
    (b) Operation programs are used that will prohibit inquiry, record 
updates, or destruction of records, from any terminal other than 
criminal justice system terminals which are so designated.
    (c) The destruction of records is limited to designated terminals 
under the direct control of the criminal justice agency responsible for 
creating or storing the criminal history record information.
    (d) Operational programs are used to detect and store for the output 
of designated criminal justice agency employees all unauthorized 
attempts to penetrate any criminal history record information system, 
program or file.
    (e) The programs specified in paragraphs (f)(3)(i) (b) and (d) of 
this section are known only to criminal justice agency employees 
responsible for criminal history record information system control or 
individuals and agencies pursuant to a specific agreement with the 
criminal justice agency to provide such programs and the program(s) are 
kept continuously under maximum security conditions.

[[Page 416]]

    (f) Procedures are instituted to assure that an individual or agency 
authorized direct access is responsible for (1) the physical security of 
criminal history record information under its control or in its custody 
and (2) the protection of such information from unauthorized access, 
disclosure or dissemination.
    (g) Procedures are instituted to protect any central repository of 
criminal history record information from unauthorized access, theft, 
sabotage, fire, flood, wind, or other natural or manmade disasters.
    (ii) A criminal justice agency shall have the right to audit, 
monitor and inspect procedures established above.
    (4) The criminal justice agency will:
    (i) Screen and have the right to reject for employment, based on 
good cause, all personnel to be authorized to have direct access to 
criminal history record information.
    (ii) Have the right to initiate or cause to be initiated 
administrative action leading to the transfer or removal of personnel 
authorized to have direct access to such information where such 
personnel violate the provisions of these regulations or other security 
requirements established for the collection, storage, or dissemination 
of criminal history record information.
    (iii) Institute procedures, where computer processing is not 
utilized, to assure that an individual or agency authorized direct 
access is responsible for
    (a) The physical security of criminal history record information 
under its control or in its custody and
    (b) The protection of such information from unauthorized access, 
disclosure, or dissemination.
    (iv) Institute procedures, where computer processing is not 
utilized, to protect any central repository of criminal history record 
information from unauthorized access, theft, sabotage, fire, flood, 
wind, or other natural or manmade disasters.
    (v) Provide that direct access to criminal history record 
information shall be available only to authorized officers or employees 
of a criminal justice agency and, as necessary, other authorized 
personnel essential to the proper operation of the criminal history 
record information system.
    (5) Each employee working with or having access to criminal history 
record information shall be made familiar with the substance and intent 
of these regulations.
    (g) Access and review. Insure the individual's right to access and 
review of criminal history information for purposes of accuracy and 
completeness by instituting procedures so that--
    (1) Any individual shall, upon satisfactory verification of his 
identity, be entitled to review without undue burden to either the 
criminal justice agency or the individual, any criminal history record 
information maintained about the individual and obtain a copy thereof 
when necessary for the purpose of challenge or correction;
    (2) Administrative review and necessary correction of any claim by 
the individual to whom the information relates that the information is 
inaccurate or incomplete is provided;
    (3) The State shall establish and implement procedures for 
administrative appeal where a criminal justice agency refuses to correct 
challenged information to the satisfaction of the individual to whom the 
information relates;
    (4) Upon request, an individual whose record has been corrected 
shall be given the names of all non-criminal justice agencies to whom 
the data has been given;
    (5) The correcting agency shall notify all criminal justice 
recipients of corrected information; and
    (6) The individual's right to access and review of criminal history 
record information shall not extend to data contained in intelligence, 
investigatory, or other related files and shall not be construed to 
include any other information than that defined by Sec. 20.3(b).

[41 FR 11715, Mar. 19, 1976, as amended at 42 FR 61595, Dec. 6, 1977]



Sec. 20.22  Certification of compliance.

    (a) Each State to which these regulations are applicable shall with 
the submission of its plan provide a certification that to the maximum 
extent feasible action has been taken to comply with the procedures set 
forth in the plan. Maximum extent feasible, in this subsection, means 
actions which can be

[[Page 417]]

taken to comply with the procedures set forth in the plan that do not 
require additional legislative authority or involve unreasonable cost or 
do not exceed existing technical ability.
    (b) The certification shall include--
    (1) An outline of the action which has been instituted. At a 
minimum, the requirements of access and review under Sec. 20.21(g) must 
be completely operational;
    (2) A description of any legislation or executive order, or attempts 
to obtain such authority that has been instituted to comply with these 
regulations;
    (3) A description of the steps taken to overcome any fiscal, 
technical, and administrative barriers to the development of complete 
and accurate criminal history record information;
    (4) A description of existing system capability and steps being 
taken to upgrade such capability to meet the requirements of these 
regulations; and
    (5) A listing setting forth categories of non-criminal justice 
dissemination. See Sec. 20.21(b).



Sec. 20.23  Documentation: Approval by OJARS.

    Within 90 days of the receipt of the plan, OJARS shall approve or 
disapprove the adequacy of the provisions of the plan and certification. 
Evaluation of the plan by OJARS will be based upon whether the 
procedures set forth will accomplish the required objectives. The 
evaluation of the certification(s) will be based upon whether a good 
faith effort has been shown to initiate and/or further compliance with 
the plan and regulations. All procedures in the approved plan must be 
fully operational and implemented by March 1, 1978. A final 
certification shall be submitted on March 1, 1978.

Where a State finds it is unable to provide final certification that all 
required procedures as set forth in Sec. 20.21 will be operational by 
March 1, 1978, a further extension of the deadline will be granted by 
OJARS upon a showing that the State has made a good faith effort to 
implement these regulations to the maximum extent feasible. 
Documentation justifying the request for the extension including a 
proposed timetable for full compliance must be submitted to OJARS by 
March 1, 1978. Where a State submits a request for an extension, the 
implementation date will be extended an additional 90 days while OJARS 
reviews the documentation for approval or disapproval. To be approved, 
such revised schedule must be consistent with the timetable and 
procedures set out below:
    (a) July 31, 1978--Submission of certificate of compliance with:
    (1) Individual access, challenge, and review requirements;
    (2) Administrative security;
    (3) Physical security to the maximum extent feasible.
    (b) Thirty days after the end of a State's next legislative 
session--Submission to OJARS of a description of State policy on 
dissemination of criminal history record information.
    (c) Six months after the end of a State's legislative session--
Submission to OJARS of a brief and concise description of standards and 
operating procedures to be followed by all criminal justice agencies 
covered by OJARS regulations in complying with the State policy on 
dissemination.
    (d) Eighteen months after the end of a State's legislative session--
Submission to OJARS of a certificate attesting to the conduct of an 
audit of the State central repository and of a random number of other 
criminal justice agencies in compliance with OJARS regulations.

[41 FR 11715, Mar. 19, 1976, as amended at 42 FR 61596, Dec. 6, 1977]



Sec. 20.24  State laws on privacy and security.

    Where a State originating criminal history record information 
provides for sealing or purging thereof, nothing in these regulations 
shall be construed to prevent any other State receiving such 
information, upon notification, from complying with the originating 
State's sealing or purging requirements.



Sec. 20.25  Penalties.

    Any agency or individual violating subpart B of these regulations 
shall be subject to a civil penalty not to exceed $10,000 for a 
violation occurring before September 29, 1999, and not to exceed $11,000 
for a violation occurring on after September 29, 1999. In addition,

[[Page 418]]

OJARS may initiate fund cut-off procedures against recipients of OJARS 
assistance.

[41 FR 11715, Mar. 19, 1976, as amended by Order No. 2249-99, 64 FR 
47102, Aug. 30, 1999]



   Subpart C_Federal Systems and Exchange of Criminal History Record 
                               Information

    Source: Order No. 2258-99, 64 FR 52227, Sept. 28, 1999, unless 
otherwise noted.



Sec. 20.30  Applicability.

    The provisions of this subpart of the regulations apply to the III 
System and the FIRS, and to duly authorized local, state, tribal, 
federal, foreign, and international criminal justice agencies to the 
extent that they utilize the services of the III System or the FIRS. 
This subpart is applicable to both manual and automated criminal history 
records.



Sec. 20.31  Responsibilities.

    (a) The Federal Bureau of Investigation (FBI) shall manage the NCIC.
    (b) The FBI shall manage the FIRS to support identification and 
criminal history record information functions for local, state, tribal, 
and federal criminal justice agencies, and for noncriminal justice 
agencies and other entities where authorized by federal statute, state 
statute pursuant to Public Law 92-544, 86 Stat. 1115, Presidential 
executive order, or regulation or order of the Attorney General of the 
United States.
    (c) The FBI CJIS Division may manage or utilize additional 
telecommunication facilities for the exchange of fingerprints, criminal 
history record related information, and other criminal justice 
information.
    (d) The FBI CJIS Division shall maintain the master fingerprint 
files on all offenders included in the III System and the FIRS for the 
purposes of determining first offender status; to identify those 
offenders who are unknown in states where they become criminally active 
but are known in other states through prior criminal history records; 
and to provide identification assistance in disasters and for other 
humanitarian purposes.



Sec. 20.32  Includable offenses.

    (a) Criminal history record information maintained in the III System 
and the FIRS shall include serious and/or significant adult and juvenile 
offenses.
    (b) The FIRS excludes arrests and court actions concerning 
nonserious offenses, e.g., drunkenness, vagrancy, disturbing the peace, 
curfew violation, loitering, false fire alarm, non-specific charges of 
suspicion or investigation, and traffic violations (except data will be 
included on arrests for vehicular manslaughter, driving under the 
influence of drugs or liquor, and hit and run), when unaccompanied by a 
Sec. 20.32(a) offense. These exclusions may not be applicable to 
criminal history records maintained in state criminal history record 
repositories, including those states participating in the NFF.
    (c) The exclusions enumerated above shall not apply to federal 
manual criminal history record information collected, maintained, and 
compiled by the FBI prior to the effective date of this subpart.



Sec. 20.33  Dissemination of criminal history record information.

    (a) Criminal history record information contained in the III System 
and the FIRS may be made available:
    (1) To criminal justice agencies for criminal justice purposes, 
which purposes include the screening of employees or applicants for 
employment hired by criminal justice agencies;
    (2) To federal agencies authorized to receive it pursuant to federal 
statute or Executive order;
    (3) For use in connection with licensing or employment, pursuant to 
Public Law 92-544, 86 Stat. 1115, or other federal legislation, and for 
other uses for which dissemination is authorized by federal law. Refer 
to Sec. 50.12 of this chapter for dissemination guidelines relating to 
requests processed under this paragraph;
    (4) For issuance of press releases and publicity designed to effect 
the apprehension of wanted persons in connection with serious or 
significant offenses;
    (5) To criminal justice agencies for the conduct of background 
checks under the National Instant Criminal Background Check System 
(NICS);

[[Page 419]]

    (6) To noncriminal justice governmental agencies performing criminal 
justice dispatching functions or data processing/ information services 
for criminal justice agencies; and
    (7) To private contractors pursuant to a specific agreement with an 
agency identified in paragraphs (a)(1) or (a)(6) of this section and for 
the purpose of providing services for the administration of criminal 
justice pursuant to that agreement. The agreement must incorporate a 
security addendum approved by the Attorney General of the United States, 
which shall specifically authorize access to criminal history record 
information, limit the use of the information to the purposes for which 
it is provided, ensure the security and confidentiality of the 
information consistent with these regulations, provide for sanctions, 
and contain such other provisions as the Attorney General may require. 
The power and authority of the Attorney General hereunder shall be 
exercised by the FBI Director (or the Director's designee).
    (b) The exchange of criminal history record information authorized 
by paragraph (a) of this section is subject to cancellation if 
dissemination is made outside the receiving departments, related 
agencies, or service providers identified in paragraphs (a)(6) and 
(a)(7) of this section.
    (c) Nothing in these regulations prevents a criminal justice agency 
from disclosing to the public factual information concerning the status 
of an investigation, the apprehension, arrest, release, or prosecution 
of an individual, the adjudication of charges, or the correctional 
status of an individual, which is reasonably contemporaneous with the 
event to which the information relates.
    (d) Criminal history records received from the III System or the 
FIRS shall be used only for the purpose requested and a current record 
should be requested when needed for a subsequent authorized use.



Sec. 20.34  Individual's right to access criminal history record information.

    The procedures by which an individual may obtain a copy of his or 
her identification record from the FBI to review and request any change, 
correction, or update are set forth in Sec. Sec. 16.30-16.34 of this 
chapter. The procedures by which an individual may obtain a copy of his 
or her identification record from a state or local criminal justice 
agency are set forth in Sec. 20.34 of the appendix to this part.



Sec. 20.35  Criminal Justice Information Services Advisory Policy Board.

    (a) There is established a CJIS Advisory Policy Board, the purpose 
of which is to recommend to the FBI Director general policy with respect 
to the philosophy, concept, and operational principles of various 
criminal justice information systems managed by the FBI's CJIS Division.
    (b) The Board includes representatives from state and local criminal 
justice agencies; members of the judicial, prosecutorial, and 
correctional segments of the criminal justice community; a 
representative of federal agencies participating in the CJIS systems; 
and representatives of criminal justice professional associations.
    (c) All members of the Board will be appointed by the FBI Director.
    (d) The Board functions solely as an advisory body in compliance 
with the provisions of the Federal Advisory Committee Act. Title 5, 
United States Code, Appendix 2.



Sec. 20.36  Participation in the Interstate Identification Index System.

    (a) In order to acquire and retain direct access to the III System, 
each Control Terminal Agency and Federal Service Coordinator shall 
execute a CJIS User Agreement (or its functional equivalent) with the 
Assistant Director in Charge of the CJIS Division, FBI, to abide by all 
present rules, policies, and procedures of the NCIC, as well as any 
rules, policies, and procedures hereinafter recommended by the CJIS 
Advisory Policy Board and adopted by the FBI Director.
    (b) Entry or updating of criminal history record information in the 
III System will be accepted only from state or federal agencies 
authorized by the FBI. Terminal devices in other agencies will be 
limited to inquiries.

[[Page 420]]



Sec. 20.37  Responsibility for accuracy, completeness, currency, and integrity.

    It shall be the responsibility of each criminal justice agency 
contributing data to the III System and the FIRS to assure that 
information on individuals is kept complete, accurate, and current so 
that all such records shall contain to the maximum extent feasible 
dispositions for all arrest data included therein. Dispositions should 
be submitted by criminal justice agencies within 120 days after the 
disposition has occurred.



Sec. 20.38  Sanction for noncompliance.

    Access to systems managed or maintained by the FBI is subject to 
cancellation in regard to any agency or entity that fails to comply with 
the provisions of subpart C of this part.



    Sec. Appendix to Part 20--Commentary on Selected Sections of the 
       Regulations on Criminal History Record Information Systems

    Subpart A-Sec. 20.3(d). The definition of criminal history record 
information is intended to include the basic offender-based transaction 
statistics/III System (OBTS/III) data elements. If notations of an 
arrest, disposition, or other formal criminal justice transaction occurs 
in records other than the traditional ``rap sheet,'' such as arrest 
reports, any criminal history record information contained in such 
reports comes under the definition of this subsection.
    The definition, however, does not extend to other information 
contained in criminal justice agency reports. Intelligence or 
investigative information (e.g., suspected criminal activity, 
associates, hangouts, financial information, and ownership of property 
and vehicles) is not included in the definition of criminal history 
information.
    Sec. 20.3(g). The definitions of criminal justice agency and 
administration of criminal justice in Sec. 20.3(b) of this part must be 
considered together. Included as criminal justice agencies would be 
traditional police, courts, and corrections agencies, as well as 
subunits of noncriminal justice agencies that perform the administration 
of criminal justice pursuant to a federal or state statute or executive 
order and allocate a substantial portion of their budgets to the 
administration of criminal justice. The above subunits of noncriminal 
justice agencies would include, for example, the Office of Investigation 
of the Food and Drug Administration, which has as its principal function 
the detection and apprehension of persons violating criminal provisions 
of the Federal Food, Drug and Cosmetic Act. Also included under the 
definition of criminal justice agency are umbrella-type administrative 
agencies supplying criminal history information services, such as New 
York's Division of Criminal Justice Services.
    Sec. 20.3(i). Disposition is a key concept in section 524(b) of the 
Act and in Sec. Sec. 20.21(a)(1) and 20.21(b) of this part. It 
therefore is defined in some detail. The specific dispositions listed in 
this subsection are examples only and are not to be construed as 
excluding other, unspecified transactions concluding criminal 
proceedings within a particular agency.
    Sec. 20.3(q). The different kinds of acquittals and dismissals 
delineated in Sec. 20.3(i) are all considered examples of nonconviction 
data.
    Subpart B--Sec. 20.20(a). These regulations apply to criminal 
justice agencies receiving funds under the Omnibus Crime Control and 
Safe Streets Act for manual or automated systems subsequent to July 1, 
1973. In the hearings on the regulations, a number of those testifying 
challenged LEAA's authority to promulgate regulations for manual systems 
by contending that section 524(b) of the Act governs criminal history 
information contained in automated systems.
    The intent of section 524(b), however, would be subverted by only 
regulating automated systems. Any agency that wished to circumvent the 
regulations would be able to create duplicate manual files for purposes 
contrary to the letter and spirit of the regulations.
    Regulation of manual systems, therefore, is authorized by section 
524(b) when coupled with section 501 of the Act which authorizes the 
Administration to establish rules and regulations ``necessary to the 
exercise of its functions * * *.''
    The Act clearly applies to all criminal history record information 
collected, stored, or disseminated with LEAA support subsequent to July 
1, 1973.
    Limitations as contained in subpart C also apply to information 
obtained from the FBI Identification Division or the FBI/NCIC System.
    Sec. 20.20 (b) and (c). Section 20.20 (b) and (c) exempts from 
regulations certain types of records vital to the apprehension of 
fugitives, freedom of the press, and the public's right to know. Court 
records of public judicial proceedings are also exempt from the 
provisions of the regulations.
    Section 20.20(b)(2) attempts to deal with the problem of 
computerized police blotters. In some local jurisdictions, it is 
apparently possible for private individuals and/or newsmen upon 
submission of a specific name to obtain through a computer search of the 
blotter a history of a person's arrests. Such files create a partial 
criminal history data

[[Page 421]]

bank potentially damaging to individual privacy, especially since they 
do not contain final dispositions. By requiring that such records be 
accessed solely on a chronological basis, the regulations limit 
inquiries to specific time periods and discourage general fishing 
expeditions into a person's private life.
    Subsection 20.20(c) recognizes that announcements of ongoing 
developments in the criminal justice process should not be precluded 
from public disclosure. Thus, announcements of arrest, convictions, new 
developments in the course of an investigation may be made. It is also 
permissible for a criminal justice agency to confirm certain matters of 
public record information upon specific inquiry. Thus, if a question is 
raised: ``Was X arrested by your agency on January 3, 1975'' and this 
can be confirmed or denied by looking at one of the records enumerated 
in subsection (b) above, then the criminal justice agency may respond to 
the inquiry. Conviction data as stated in Sec. 20.21(b) may be 
disseminated without limitation.
    Sec. 20.21. The regulations deliberately refrain from specifying 
who within a State should be responsible for preparing the plan. This 
specific determination should be made by the Governor. The State has 90 
days from the publication of these revised regulations to submit the 
portion of the plan covering Sec. Sec. 20.21(b) and 20.21(f).
    Sec. 20.21(a)(1). Section 524(b) of the Act requires that LEAA 
insure criminal history information be current and that, to the maximum 
extent feasible, it contain disposition as well as current data.
    It is, however, economically and administratively impractical to 
maintain complete criminal histories at the local level. Arrangements 
for local police departments to keep track of dispositions by agencies 
outside of the local jurisdictions generally do not exist. It would, 
moreover, be bad public policy to encourage such arrangements since it 
would result in an expensive duplication of files.
    The alternatives to locally kept criminal histories are records 
maintained by a central State repository. A central State repository is 
a State agency having the function pursuant to a statute or executive 
order of maintaining comprehensive statewide criminal history record 
information files. Ultimately, through automatic data processing the 
State level will have the capability to handle all requests for in-State 
criminal history information.
    Section 20.20(a)(1) is written with a centralized State criminal 
history repository in mind. The first sentence of the subsection states 
that complete records should be retained at a central State repository. 
The word ``should'' is permissive; it suggests but does not mandate a 
central State repository.
    The regulations do require that States establish procedures for 
State and local criminal justice agencies to query central State 
repositories wherever they exist. Such procedures are intended to insure 
that the most current criminal justice information is used.
    As a minimum, criminal justice agencies subject to these regulations 
must make inquiries of central State repositories whenever the 
repository is capable of meeting the user's request within a reasonable 
time. Presently, comprehensive records of an individual's transactions 
within a State are maintained in manual files at the State level, if at 
all. It is probably unrealistic to expect manual systems to be able 
immediately to meet many rapid-access needs of police and prosecutors. 
On the other hand, queries of the State central repository for most 
noncriminal justice purposes probably can and should be made prior to 
dissemination of criminal history record information.
    Sec. 20.21(b). The limitations on dissemination in this subsection 
are essential to fulfill the mandate of section 524(b) of the Act which 
requires the Administration to assure that the ``privacy of all 
information is adequately provided for and that information shall only 
be used for law enforcement and criminal justice and other lawful 
purposes.'' The categories for dissemination established in this section 
reflect suggestions by hearing witnesses and respondents submitting 
written commentary.
    The regulations distinguish between conviction and nonconviction 
information insofar as dissemination is concerned. Conviction 
information is currently made available without limitation in many 
jurisdictions. Under these regulations, conviction data and pending 
charges could continue to be disseminated routinely. No statute, 
ordinance, executive order, or court rule is necessary in order to 
authorize dissemination of conviction data. However, nothing in the 
regulations shall be construed to negate a State law limiting such 
dissemination.
    After December 31, 1977, dissemination of nonconviction data would 
be allowed, if authorized by a statute, ordinance, executive order, or 
court rule, decision, or order. The December 31, 1977, deadline allows 
the States time to review and determine the kinds of dissemination for 
non-criminal justice purposes to be authorized. When a State enacts 
comprehensive legislation in this area, such legislation will govern 
dissemination by local jurisdictions within the State. It is possible 
for a public record law which has been construed by the State to 
authorize access to the public of all State records, including criminal 
history record information, to be considered as statutory authority 
under this subsection. Federal legislation and executive orders can also 
authorize dissemination and would be relevant authority.

[[Page 422]]

    For example, Civil Service suitability investigations are conducted 
under Executive Order 10450. This is the authority for most 
investigations conducted by the Commission. Section 3(a) of 10450 
prescribes the minimum scope of investigation and requires a check of 
FBI fingerprint files and written inquiries to appropriate law 
enforcement agencies.
    Sec. 20.21(b)(3). This subsection would permit private agencies 
such as the Vera Institute to receive criminal histories where they 
perform a necessary administration of justice function such as pretrial 
release. Private consulting firms which commonly assist criminal justice 
agencies in information systems development would also be included here.
    Sec. 20.21(b)(4). Under this subsection, any good faith researchers 
including private individuals would be permitted to use criminal history 
record information for research purposes. As with the agencies 
designated in Sec. 20.21(b)(3) researchers would be bound by an 
agreement with the disseminating criminal justice agency and would, of 
course, be subject to the sanctions of the Act.
    The drafters of the regulations expressly rejected a suggestion 
which would have limited access for research purposes to certified 
research organizations. Specifically ``certification'' criteria would 
have been extremely difficult to draft and would have inevitably led to 
unnecessary restrictions on legitimate research.
    Section 524(a) of the Act which forms part of the requirements of 
this section states:

    ``Except as provided by Federal law other than this title, no 
officer or employee of the Federal Government, nor any recipient of 
assistance under the provisions of this title shall use or reveal any 
research or statistical information furnished under this title by any 
person and identifiable to any specific private person for any purpose 
other than the purpose for which it was obtained in accordance with this 
title. Copies of such information shall be immune from legal process, 
and shall not, without the consent of the person furnishing such 
information, be admitted as evidence or used for any purpose in any 
action suit, or other judicial or administrative proceedings.''

LEAA anticipates issuing regulations, pursuant to section 524(a) as soon 
as possible.
    Sec. 20.21(c)(2). Presently some employers are circumventing State 
and local dissemination restrictions by requesting applicants to obtain 
an official certification of no criminal record. An employer's request 
under the above circumstances gives the applicant the unenviable choice 
of invasion of his privacy or loss of possible job opportunities. Under 
this subsection routine certifications of no record would no longer be 
permitted. In extraordinary circumstances, however, an individual could 
obtain a court order permitting such a certification.
    Sec. 20.21(c)(3). The language of this subsection leaves to the 
States the question of who among the agencies and individuals listed in 
Sec. 20.21(b) shall actually receive criminal records. Under these 
regulations a State could place a total ban on dissemination if it so 
wished. The State could, on the other hand, enact laws authorizing any 
member of the private sector to have access to non-conviction data.
    Sec. 20.21(d). Non-criminal justice agencies will not be able to 
receive records of juveniles unless the language of a statute or court 
order, rule, or court decision specifies that juvenile records shall be 
available for dissemination. Perhaps the most controversial part of this 
subsection is that it denies access to records of juveniles by Federal 
agencies conducting background investigations for eligibility to 
classified information under existing legal authority.
    Sec. 20.21(e) Since it would be too costly to audit each criminal 
justice agency in most States (Wisconsin, for example, has 1075 criminal 
justice agencies) random audits of a ``representative sample'' of 
agencies are the next best alternative. The term ``representative 
sample'' is used to insure that audits do not simply focus on certain 
types of agencies. Although this subsection requires that there be 
records kept with the names of all persons or agencies to whom 
information is disseminated, criminal justice agencies are not required 
to maintain dissemination logs for ``no record'' responses.
    Sec. 20.21(f). Requirements are set forth which the States must 
meet in order to assure that criminal history record information is 
adequately protected. Automated systems may operate in shared 
environments and the regulations require certain minimum assurances.
    Sec. 20.21(g)(1). A ``challenge'' under this section is an oral or 
written contention by an individual that his record is inaccurate or 
incomplete; it would require him to give a correct version of his record 
and explain why he believes his version to be correct. While an 
individual should have access to his record for review, a copy of the 
record should ordinarily only be given when it is clearly established 
that it is necessary for the purpose of challenge.
The drafters of the subsection expressly rejected a suggestion that 
would have called for a satisfactory verification of identity by 
fingerprint comparison. It was felt that States ought to be free to 
determine other means of identity verification.
    Sec. 20.21(g)(5). Not every agency will have done this in the past, 
but henceforth adequate records including those required under 20.21(e) 
must be kept so that notification can be made.

[[Page 423]]

    Sec. 20.21(g)(6). This section emphasizes that the right to access 
and review extends only to criminal history record information and does 
not include other information such as intelligence or treatment data.
    Sec. 20.22(a). The purpose for the certification requirement is to 
indicate the extent of compliance with these regulations. The term 
``maximum extent feasible'' acknowledges that there are some areas such 
as the completeness requirement which create complex legislative and 
financial problems.
    Note: In preparing the plans required by these regulations, States 
should look for guidance to the following documents: National Advisory 
Commission on Criminal Justice Standards and Goals, Report on the 
Criminal Justice System; Project SEARCH: Security and Privacy 
Considerations in Criminal History Information Systems, Technical 
Reports No. 2 and No. 13; Project SEARCH: A Model State Act for Criminal 
Offender Record Information, Technical Memorandum No. 3; and Project 
SEARCH: Model Administrative Regulations for Criminal Offender Record 
Information, Technical Memorandum No. 4.
    Subpart C-Sec. 20.31. This section defines the criminal history 
record information system managed by the Federal Bureau of 
Investigation. Each state having a record in the III System must have 
fingerprints on file in the FBI CJIS Division to support the III System 
record concerning the individual.
    Paragraph (b) is not intended to limit the identification services 
presently performed by the FBI for local, state, tribal, and federal 
agencies.
    Sec. 20.32. The grandfather clause contained in paragraph (c) of 
this section is designed, from a practical standpoint, to eliminate the 
necessity of deleting from the FBI's massive files the non-includable 
offenses that were stored prior to February, 1973. In the event a person 
is charged in court with a serious or significant offense arising out of 
an arrest involving a non-includable offense, the non-includable offense 
will also appear in the arrest segment of the III System record.
    Sec. 20.33(a)(3). This paragraph incorporates provisions cited in 
28 CFR 50.12 regarding dissemination of identification records outside 
the federal government for noncriminal justice purposes.
    Sec. 20.33(a)(6). Noncriminal justice governmental agencies are 
sometimes tasked to perform criminal justice dispatching functions or 
data processing/information services for criminal justice agencies as 
part, albeit not a principal part, of their responsibilities. Although 
such inter-governmental delegated tasks involve the administration of 
criminal justice, performance of those tasks does not convert an 
otherwise non-criminal justice agency to a criminal justice agency. This 
regulation authorizes this type of delegation if it is effected pursuant 
to executive order, statute, regulation, or interagency agreement. In 
this context, the noncriminal justice agency is servicing the criminal 
justice agency by performing an administration of criminal justice 
function and is permitted access to criminal history record information 
to accomplish that limited function. An example of such delegation would 
be the Pennsylvania Department of Administration's Bureau of 
Consolidated Computer Services, which performs data processing for 
several state agencies, including the Pennsylvania State Police. 
Privatization of the data processing/information services or dispatching 
function by the noncriminal justice governmental agency can be 
accomplished pursuant to Sec. 20.33(a)(7) of this part.
    Sec. 20.34. The procedures by which an individual may obtain a copy 
of his manual identification record are set forth in 28 CFR 16.30-16.34.
    The procedures by which an individual may obtain a copy of his III 
System record are as follows: If an individual has a criminal record 
supported by fingerprints and that record has been entered in the III 
System, it is available to that individual for review, upon presentation 
of appropriate identification, and in accordance with applicable state 
and federal administrative and statutory regulations. Appropriate 
identification includes being fingerprinted for the purpose of insuring 
that he is the individual that he purports to be. The record on file 
will then be verified as his through comparison of fingerprints.
    Procedure. 1. All requests for review must be made by the subject of 
the record through a law enforcement agency which has access to the III 
System. That agency within statutory or regulatory limits can require 
additional identification to assist in securing a positive 
identification.
    2. If the cooperating law enforcement agency can make an 
identification with fingerprints previously taken which are on file 
locally and if the FBI identification number of the individual's record 
is available to that agency, it can make an on-line inquiry through NCIC 
to obtain his III System record or, if it does not have suitable 
equipment to obtain an on-line response, obtain the record from 
Clarksburg, West Virginia, by mail. The individual will then be afforded 
the opportunity to see that record.
    3. Should the cooperating law enforcement agency not have the 
individual's fingerprints on file locally, it is necessary for that 
agency to relate his prints to an existing record by having his 
identification prints compared with those already on file in the FBI, 
or, possibly, in the state's central identification agency.
    4. The subject of the requested record shall request the appropriate 
arresting agency,

[[Page 424]]

court, or correctional agency to initiate action necessary to correct 
any stated inaccuracy in his record or provide the information needed to 
make the record complete.
    Sec. 20.36. This section refers to the requirements for obtaining 
direct access to the III System.
    Sec. 20.37. The 120-day requirement in this section allows 30 days 
more than the similar provision in subpart B in order to allow for 
processing time that may be needed by the states before forwarding the 
disposition to the FBI.

[Order No. 662-76, 41 FR 34949, Aug. 18, 1976, as amended by Order No. 
1438-90, 55 FR 32075, Aug. 7, 1990; Order No. 2258-99, 64 FR 52229, 
Sept. 28, 1999]



PART 21_WITNESS FEES--Table of Contents




Sec.
21.1 Definitions.
21.2 Employees of the United States serving as witnesses.
21.3 Aliens.
21.4 Fees and allowances of fact witnesses.
21.5 Use of table of distances.
21.6 Proceedings in forma pauperis.
21.7 Certification of witness attendance.

    Authority: 28 U.S.C. 509, 510, 1821-1825, 5 U.S.C. 301.

    Source: 51 FR 16171, May 1, 1986, unless otherwise noted.



Sec. 21.1  Definitions.

    (a) Agency proceeding. An agency process as defined by 5 U.S.C. 551 
(5), (7) and (9).
    (b) Alien. Any person who is not a citizen or national of the United 
States.
    (c) Judicial proceeding. Any action or suit, including any 
condemnation, preliminary, informational or other proceeding of a 
judicial nature. Examples of the latter include, but are not limited to, 
hearings and conferences before a committing court, magistrate, or 
commission, grand jury proceedings, pre-trial conferences, depositions, 
and coroners' inquests. It does not include information or investigative 
proceedings conducted by a prosecuting attorney for the purpose of 
determining whether an information or charge should be made in a 
particular case. The judicial proceeding may be in the District of 
Columbia, a State, or a territory or possession of the United States 
including the Commonwealth of Puerto Rico or the Trust Territory of the 
Pacific Islands.
    (d) Pre-trial conference. A conference between the Government 
Attorney and a witness to discuss the witness' testimony. The conference 
must take place after a trial, hearing or grand jury proceeding has been 
scheduled but prior to the witness' actual appearance at the proceeding.
    (e) Residence. The term residence is not limited to the legal 
residence, but includes any place at which the witness is actually 
residing and at which the subpoena or summons is served. If the 
residence of the witness at the time of appearance is different from the 
place of subpoena or summons, the new place of residence shall be 
considered the witness' residence for computation of the transportation 
allowance; but, if the witness is on a business or vacation trip at the 
time of appearance, the witness shall be paid for travel from the place 
of service if this does not result in the witness being paid for more 
travel than is actually performed.
    (f) Summons. An official request, invitation or call, evidenced by 
an official writing of the court, authority, or party responsible for 
the conduct of the proceeding.



Sec. 21.2  Employees of the United States serving as witnesses.

    (a) Applicability. This section applies to employees of the United 
States as defined by 5 U.S.C. 2105, except those whose pay is disbursed 
by the Secretary of the Senate or the Clerk of the House of 
Representatives.
    (b) Entitlement to travel expenses--(1) Official capacity. An 
employee is entitled to travel expenses (in accordance with Sec. 
21.2(c)) in connection with any judicial or agency proceeding with 
respect to which the employee is summoned (and is authorized by the 
employee's agency to respond to such summons), or is assigned by his or 
her agency:
    (i) To testify or produce official records on behalf of the United 
States, or
    (ii) To testify in his or her official capacity or produce official 
records on behalf of a party other than the United States.


The witness appropriation of the Department of Justice is not available 
for

[[Page 425]]

expenses incurred under these conditions.
    (2) Unofficial capacity, federal involvement. An employee is 
entitled to travel expenses (in accordance with paragraph (c) of this 
section) in connection with any judicial or agency proceeding with 
respect to which the employee is summoned to testify on behalf of the 
United States. If an employee is summoned to testify on behalf of a 
party other than the United States, the employee's travel expenses shall 
be payable by the court, authority, or party which caused the employee 
to be summoned.
    (3) Unofficial capacity, no Federal involvement. An employee who 
appears as a witness in any judicial proceeding in an unofficial 
capacity in which there is no Federal involvement is not authorized 
Government travel expenses and may retain reimbursement for expenses 
which he or she receives from the court, authority or party which caused 
the employee to be summoned.
    (c) Allowable travel expenses. An employee qualifying for payment of 
travel expenses by virtue of being called in an official capacity or on 
behalf of the United States shall be paid at rates and in amounts 
allowable for other purposes under the provisions of 5 U.S.C. 5702-5705 
and applicable regulations prescribed thereunder by the Administrator, 
General Services, and the employing agency. Such payment shall be 
reduced to the extent that the travel expenses are paid to the employee 
for his or her appearance by the court, authority, or party which caused 
the employee to be summoned as a witness in an official capacity on 
behalf of a party other than the United States.
    (d) Payment and reimbursement--(1) Payable by the employing agency. 
If an employee serves as a witness, and the case involves the activity 
in connection with which he or she is employed, the travel expenses are 
payable from the appropriation of the employing agency. The Comptroller 
General has defined the extent to which the case must be related to the 
agency's activity as a condition to the agency's responsibility for 
payment in 23 Comp. Gen. 47, 49 (1943), which states ``the employing 
agency is required to pay . . . the traveling expenses incurred by the 
witness only where the information or facts ascertained by the employee 
as part of his official duties forms the basis of the case, or where the 
proceeding is predicated upon a law that that agency is required to 
administer.'' In 39 Comp. Gen. 1, 2 (1959), the Comptroller General 
determined that if an employee testifies regarding facts and information 
he or she acquires in the course of his or her assigned duties, the 
employing agency is responsible for the payment of the employee's travel 
expenses. In these instances, the witness appropriation of the 
Department of Justice is not available for payment of expenses.
    (2) Payable by the Department of Justice. If an employee appears on 
behalf of the United States in an unofficial capacity in a judicial 
proceeding involving the Department of Justice, the employee's travel 
expenses are payable by the Department of Justice. The employing agency 
may advance or pay the travel expenses of the employee and later obtain 
reimbursement from the Department of Justice by submitting an 
appropriate bill together with a copy of the approved advance or travel 
voucher.
    (e) Leave and attendance fee--(1) Leave. An employee is considered 
to be in official duty status when appearing as a witness in his or her 
official capacity or on behalf of the United States in an unofficial 
capacity. An employee is entitled to court leave when he or she appears 
as a witness in an unofficial capacity not on behalf of the United 
States, and the United States, the District of Columbia, or a State or 
local government is a party to the case. An employee must use annual 
leave or leave without pay to appear as a witness when the United 
States, the District of Columbia, or a State or local government is not 
a party.
    (2) Attendance fee. An employee who appears on behalf of the United 
States is not entitled to receive an attendance fee. An employee who 
appears on behalf of a party other than the United States while in 
official duty status or while on court leave should request an 
attendance fee from the court, authority, or party which caused the 
employee to be summoned. Such fee shall be remitted to the employing 
agency. An employee

[[Page 426]]

who must use annual leave or leave without pay to appear as a witness 
may retain an attendance fee which he or she receives.



Sec. 21.3  Aliens.

    (a) Aliens entitled to payment of $30 per day. The following aliens 
are entitled to witness fees and allowances provided in Sec. 21.4:
    (1) Aliens lawfully admitted for permanent residence (documentary 
evidence: Form I-151 or Form 1-551, Alien Registration Receipt Card);
    (2) Aliens lawfully admitted in one of the nonimmigrant categories 
described in 8 U.S.C. 1101(a)(15) (documentary evidence: unexpired Form 
1-94, Arrival-Departure Record). But see below Sec. 21.3(b);
    (3) Aliens admitted as refugees under 8 U.S.C. 1157 and aliens 
granted asylum under 8 U.S.C. 1158 (documentary evidence: Form I-94, 
Arrival Departure Record, indicating admission as refugee under 8 U.S.C. 
1157 or granting asylum under 8 U.S.C. 1158, employment authorized);
    (4) Aliens who have rendered themselves amenable to deportation 
proceedings, but have not admitted deportability or have not been 
determined to be deportable pursuant to section 242 of the Immigration 
and Nationality Act (8 U.S.C. 1252).
    (b) Aliens entitled to payment of $1 per day. An alien who is 
``excludable'' in accordance with 8 U.S.C. 1226, but whose removal is 
stayed by the Attorney General (in accordance with 8 U.S.C. 1227(d)) 
because:
    (1) The testimony of the alien is necessary on behalf of the United 
States in the prosecution of offenders against the United States, or
    (2) The testimony of the alien is necessary on behalf of an indigent 
criminal defendant in accordance with Rule 17(b) of the Federal Rules of 
Criminal Procedures,

is entitled to a $1 per day witness fee. No other fees and allowances 
are authorized.
    (c) Aliens not entitled to payment. An alien who has been paroled 
into the United States for prosecution pursuant to 8 U.S.C. 1182(d)(5) 
(documentary evidence: Form I-94, Arrival-Departure Record, Parole 
Edition), or an alien who has admitted belonging to a class of aliens 
who are deportable, or an alien who has been determined pursuant to 8 
U.S.C. 1252(b) to be deportable (documentary evidence: decision by a 
Special Inquiry Officer, Board of Immigration Appeals, or court), is 
prohibited from receiving fees and allowances in accordance with 28 
U.S.C. 1821(e).
    (d) Doubtful cases. If the Immigration and Naturalization Service 
advises that the alien has admitted deportability, or that he or she was 
paroled into the United States for prosecution, or that deportation 
proceedings have been completed against the alien with a result 
favorable to the Government, no payment under 28 U.S.C. 1821 may be 
made.



Sec. 21.4  Fees and allowances of fact witnesses.

    The fees and allowances of fact witnesses, other than those covered 
by Sec. 21.2, attending at any judicial proceeding, shall be a follows:
    (a) Fee. A witness shall be paid an attendance fee of $30 per day 
for each day's attendance. A witness shall also be paid the attendance 
fee for the time necessarily occupied in going to and returning from the 
place of attendance. However, if both attendance and travel occur on the 
same day, a witness is entitled to only one fee.
    (b) Allowable transportation expenses. A witness shall be entitled 
to transportation expenses based on the means of transportation 
reasonably utilized (based on the nature, duration, location and 
distance of travel) and the distance necessarily traveled from and to 
such witness' residence by the shortest practical route and the fastest 
means of transportation available in going to and returning from the 
place of attendance. Additional costs incurred (including attendance 
fees and subsistence allowances) because of a slower means of 
transportation must be justified for consideration.
    (1) A witness who travels by regularly scheduled common carrier 
shall be paid for the actual expenses of transportation at the most 
economical rate reasonably available. A receipt or other evidence of 
actual cost shall be furnished.

[[Page 427]]

    (2) A witness who travels by privately owned vehicle shall be paid a 
transportation allowance equal to the mileage allowance paid for 
official travel of employees of the Federal Government under the 
provisions of 5 U.S.C. 5704. However, when two or more witnesses travel 
in the same privately owned vehicle, only the witness incurring the 
expense shall receive the mileage allowance.
    (3) A witness incurring incidental transportation expenses, such as 
taxi fares between the place of attendance, residence or lodging and the 
carrier terminals; bridge, road and tunnel tolls; ferry fares; and 
parking fees shall be paid in full for such expenses. Receipts or other 
evidence of actual payment are required for all parking fees (if 
available) and all other single items costing more than $25.
    (4) First-class travel by witnesses requires the same justification 
and approval required for first-class travel by employees of the Federal 
Government.
    (c) Subsistence allowance. A witness (other than a witness detained 
in custody) who is required to be away from his or her residence 
overnight is entitled to a subsistence allowance. A witness who is not 
required to be away from his or her residence overnight is not entitled 
to a subsistence allowance. The witness' subsistence allowance shall not 
exceed either the per diem rate or the actual subsistence allowance rate 
prescribed for Government employees for the place of attendance. These 
rates are established by the Administrator, General Services, for areas 
within the conterminous United States; the Secretary of Defense for 
areas of the United States other than conterminous; or the Secretary of 
State as published in the Standardized Regulations (Government 
Civilians, Foreign Areas) for foreign areas. The witness' subsistence 
allowance shall consist of a meal and miscellaneous expense portion and 
a lodging portion. When an overnight stay is required, the witness shall 
be entitled to:
    (1) The meal and miscellaneous expense portion for each day (or 
partial day) the witness is required to remain away from his or her 
residence and
    (2) The lodging portion for each night the witness is required to 
incur a lodging expense.

The meal and miscellaneous expense portion shall be 50% of the 
authorized subsistence allowance rate rounded to the next whole dollar 
in an actual subsistence rate area, or 45% of the per diem rate rounded 
to the next whole dollar in a per diem area. The lodging portion shall 
be the difference between the meal and miscellaneous expense portion and 
the authorized rate.
    (d) Detained witness fee. A witness (other than an alien covered by 
Sec. 21.3) detained in custody pursuant to 18 U.S.C. 3149 for want of 
security for his or her appearance shall receive subsistence in kind and 
shall be paid a single daily attendance fee for each day the witness is 
detained. A witness in custody for purposes other than 18 U.S.C. 3149 is 
ineligible to receive the attendance and subsistence fees provided by 
this section.



Sec. 21.5  Use of table of distances.

    Mileage payable to witnesses under 28 U.S.C. 1821 shall be computed 
on the basis of odometer readings or the highway distances as stated in 
the Rand McNally Standard Highway Mileage Guide or in any generally 
accepted highway mileage guide which contains a shortline nationwide 
table of distances. However, with respect to travel in areas for which 
no such highway mileage guide exists, mileage payable under 28 U.S.C. 
1821 shall be based on the lesser of either (a) the route of travel 
actually employed or (b) a usually traveled route.



Sec. 21.6  Proceedings in forma pauperis.

    Title 28 U.S.C. 1915 provides for the commencement, prosecution or 
defense of any suit, action, or proceeding without prepayment of fees 
and costs. Witnesses shall attend as in other cases.
    (a) Civil cases. There are currently no provisions for payment of 
witnesses called by the indigent. If the indigent party prevails, 
witness fees and expenses may be taxed as costs in accordance with 28 
U.S.C. 1920.
    (b) Criminal cases. Rule 17(b), Federal Rules of Criminal Procedure, 
requires that fact witnesses subpoenaed on behalf of an indigent 
defendant be paid in

[[Page 428]]

the same manner as witnesses called on behalf of the Government. The 
attendance must be certified by the presiding officer of the court. The 
expenses of Federal Government employees are treated in the same manner 
as they are treated when the employee is called by a Government 
attorney.



Sec. 21.7  Certification of witness attendance.

    In any case in which the U.S. Department of Justice, or office or 
organization thereof, is a party, the Department of Justice shall pay 
all fees and allowances of witnesses, except for those witnesses as 
defined in Sec. 21.2, paragraph (d)(1), on the certification of the 
following officials: The U.S. Attorney, an Assistant U.S. Attorney, a 
U.S. Trustee, or the U.S. Department of Justice attorney who actually 
conducts the case. In criminal proceedings in forma pauperis or in 
proceedings before a U.S. Commissioner, U.S. Magistrate or U.S. Parole 
Commission Hearing Examiner, the Department of Justice shall pay all 
fees and allowances of witnesses on the certification of the U.S. 
District Judge hearing the case or such Commissioner, Magistrate, or 
Hearing Examiner.



PART 22_CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL 
INFORMATION--Table of Contents




Sec.
22.1 Purpose.
22.2 Definitions.
22.20 Applicability.
22.21 Use of identifiable data.
22.22 Revelation of identifiable data.
22.23 Privacy certification.
22.24 Information transfer agreement.
22.25 Final disposition of identifiable materials.
22.26 Requests for transfer of information.
22.27 Notification.
22.28 Use of data identifiable to a private person for judicial, 
          legislative or administrative purposes.
22.29 Sanctions.

    Authority: Secs. 801(a), 812(a), Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L. 90-
351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. 
L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473); secs. 
262(b), 262(d), Juvenile Justice and Delinquency Prevention Act of 1974, 
42 U.S.C. 5601, et seq., as amended (Pub. L. 93-415, as amended by Pub. 
L. 94-503, Pub. L. 95-115, Pub. L. 99-509, and Pub. L. 98-473); and 
secs. 1407(a) and 1407(d) of the Victims of Crime Act of 1984, 42 U.S.C. 
10601, et seq., Pub. L. 98-473; Pub. L. 101-410, 104 Stat. 890, as 
amended by Pub. L. 104-134, 110 Stat. 1321.

    Source: 41 FR 54846, Dec. 15, 1976, unless otherwise noted.



Sec. 22.1  Purpose.

    The purpose of these regulations is to:
    (a) Protect privacy of individuals by requiring that information 
identifiable to a private person obtained in a research or statistical 
program may only be used and/or revealed for the purpose for which 
obtained;
    (b) Insure that copies of such information shall not, without the 
consent of the person to whom the information pertains, be admitted as 
evidence or used for any purpose in any judicial or administrative 
proceedings;
    (c) Increase the credibility and reliability of federally-supported 
research and statistical findings by minimizing subject concern over 
subsequent uses of identifiable information;
    (d) Provide needed guidance to persons engaged in research and 
statistical activities by clarifying the purposes for which identifiable 
information may be used or revealed; and
    (e) Insure appropriate balance between individual privacy and 
essential needs of the research community for data to advance the state 
of knowledge in the area of criminal justice.
    (f) Insure the confidentiality of information provided by crime 
victims to crisis intervention counselors working for victim services 
programs receiving funds provided under the Crime Control Act, and 
Juvenile Justice Act, and the Victims of Crime Act.

[41 FR 54846, Dec. 15, 1976, as amended at 51 FR 6400, Feb. 24, 1986]



Sec. 22.2  Definitions.

    (a) Person means any individual, partnership, corporation, 
association, public or private organization or governmental entity, or 
combination thereof.
    (b) Private person means any person defined in Sec. 22.2(a) other 
than an agency, or department of Federal, State, or

[[Page 429]]

local government, or any component or combination thereof. Included as a 
private person is an individual acting in his or her official capacity.
    (c) Research or statistical project means any program, project, or 
component thereof which is supported in whole or in part with funds 
appropriated under the Act and whose purpose is to develop, measure, 
evaluate, or otherwise advance the state of knowledge in a particular 
area. The term does not include ``intelligence'' or other information-
gathering activities in which information pertaining to specific 
individuals is obtained for purposes directly related to enforcement of 
the criminal laws.
    (d) Research or statistical information means any information which 
is collected during the conduct of a research or statistical project and 
which is intended to be utilized for research or statistical purposes. 
The term includes information which is collected directly from the 
individual or obtained from any agency or individual having possession, 
knowledge, or control thereof.
    (e) Information identifiable to a private person means information 
which either--
    (1) Is labelled by name or other personal identifiers, or
    (2) Can, by virtue of sample size or other factors, be reasonably 
interpreted as referring to a particular private person.
    (f) Recipient of assistance means any recipient of a grant, 
contract, interagency agreement, subgrant, or subcontract under the Act 
and any person, including subcontractors, employed by such recipient in 
connection with performances of the grant, contract, or interagency 
agreement.
    (g) Officer or employee of the Federal Government means any person 
employed as a regular or special employee of the U.S. (including 
experts, consultants, and advisory board members) as of July 1, 1973, or 
at any time thereafter.
    (h) The act means the Omnibus Crime Control and Safe Streets Act of 
1968, as amended.
    (i) Applicant means any person who applies for a grant, contract, or 
subgrant to be funded pursuant to the Act.
    (j) The Juvenile Justice Act means the ``Juvenile Justice and 
Delinquency Prevention Act of 1974, as amended.''
    (k) The Victims of Crime Act means the Victims of Crime Act of 1984.

[41 FR 54846, Dec. 15, 1976, as amended at 43 FR 16974, Apr. 21, 1978; 
51 FR 6400, Feb. 24, 1986]



Sec. 22.20  Applicability.

    (a) These regulations govern use and revelation of research and 
statistical information obtained, collected, or produced either directly 
by BJA, OJJDP, BJS, NIJ, or OJP or under any interagency agreement, 
grant, contract, or subgrant awarded under the Crime Control Act, the 
Juvenile Justice Act, and the Victims of Crime Act.
    (b) The regulations do not apply to any records from which 
identifiable research or statistical information was originally 
obtained; or to any records which are designated under existing statutes 
as public; or to any information extracted from any records designated 
as public.
    (c) The regulations do not apply to information gained regarding 
future criminal conduct.

[41 FR 54846, Dec. 15, 1976, as amended at 43 FR 16974, Apr. 21, 1978; 
51 FR 6400, 6401, Feb. 24, 1986]



Sec. 22.21  Use of identifiable data.

    Research or statistical information identifiable to a private person 
may be used only for research or statistical purposes.



Sec. 22.22  Revelation of identifiable data.

    (a) Except as noted in paragraph (b) of this section, research and 
statistical information relating to a private person may be revealed in 
identifiable form on a need-to-know basis only to--
    (1) Officers, employees, and subcontractors of the recipient of 
assistance;
    (2) Such individuals as needed to implement sections 202(c)(3), 801, 
and 811(b) of the Act; and sections 223(a)(12)(A), 223(a)(13), 
223(a)(14), and 243 of the Juvenile Justice and Delinquency Prevention 
Act.
    (3) Persons or organizations for research or statistical purposes. 
Information may only be transferred for such

[[Page 430]]

purposes upon a clear demonstration that the standards of Sec. 22.26 
have been met and that, except where information is transferred under 
paragraphs (a) (1) and (2) of this section, such transfers shall be 
conditioned on compliance with a Sec. 22.24 agreement.
    (b) Information may be revealed in identifiable form where prior 
consent is obtained from an individual or where the individual has 
agreed to participate in a project with knowledge that the findings 
cannot, by virtue of sample size, or uniqueness of subject, be expected 
to totally conceal subject identity.

[41 FR 54846, Dec. 15, 1976, as amended at 51 FR 6400, Feb. 24, 1986]



Sec. 22.23  Privacy certification.

    (a) Each applicant for BJA, OJJDP, BJS, NIJ, or OJP support either 
directly or under a State plan shall submit a Privacy Certificate as a 
condition of approval of a grant application or contract proposal which 
has a research or statistical project component under which information 
identifiable to a private person will be collected.
    (b) The Privacy Certificate shall briefly describe the project and 
shall contain assurance by the applicant that:
    (1) Data identifiable to a private person will not be used or 
revealed, except as authorized under Sec. Sec. 22.21, 22.22.
    (2) Access to data will be limited to those employees having a need 
therefore and that such persons shall be advised of and agree in writing 
to comply with these regulations.
    (3) All subcontracts which require access to identifiable data will 
contain conditions meeting the requirements of Sec. 22.24.
    (4) To the extent required by Sec. 22.27 any private persons from 
whom identifiable data are collected or obtained, either orally or by 
means of written questionnaire, shall be advised that the data will only 
be used or revealed for research or statistical purposes and that 
compliance with requests for information is not mandatory. Where the 
notification requirement is to be waived, pursuant to Sec. 22.27(c), a 
justification must be included in the Privacy Certificate.
    (5) Adequate precautions will be taken to insure administrative and 
physical security of identifiable data.
    (6) A log will be maintained indicating that identifiable data have 
been transmitted to persons other than BJA, OJJDP, BJS, NIJ, or OJP or 
grantee/contractor staff or subcontractors, that such data have been 
returned, or that alternative arrangements have been agreed upon for 
future maintenance of such data.
    (7) Project plans will be designed to preserve anonymity of private 
persons to whom information relates, including, where appropriate, name-
stripping, coding of data, or other similar procedures.
    (8) Project findings and reports prepared for dissemination will not 
contain information which can reasonably be expected to be identifiable 
to a private person except as authorized under Sec. 22.22.
    (c) The applicant shall attach to the Privacy Certification a 
description of physical and/or administrative procedures to be followed 
to insure the security of the data to meet the requirements of Sec. 
22.25.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.24  Information transfer agreement.

    Prior to the transfer of any identifiable information to persons 
other than BJA, OJJDP, BJS, NIJ, or OJP or project staff, an agreement 
shall be entered into which shall provide, as a minimum, that the 
recipient of data agrees that:
    (a) Information identifiable to a private person will be used only 
for research and statistical purposes.
    (b) Information identifiable to a private person will not be 
revealed to any person for any purpose except where the information has 
already been included in research findings (and/or data bases) and is 
revealed on a need-to-know basis for research or statistical purposes, 
provided that such transfer is approved by the person providing 
information under the agreement, or authorized under Sec. 22.24(e).
    (c) Knowingly and willfully using or disseminating information 
contrary to the provisions of the agreement shall

[[Page 431]]

constitute a violation of these regulations, punishable in accordance 
with the Act.
    (d) Adequate administrative and physical precautions will be taken 
to assure security of information obtained for such purpose.
    (e) Access to information will be limited to those employees or 
subcontractors having a need therefore in connection with performance of 
the activity for which obtained, and that such persons shall be advised 
of, and agree to comply with, these regulations.
    (f) Project plans will be designed to preserve anonymity of private 
persons to whom information relates, including, where appropriate, 
required name-stripping and/or coding of data or other similar 
procedures.
    (g) Project findings and reports prepared for dissemination will not 
contain information which can reasonably be expected to be identifiable 
to a private person.
    (h) Information identifiable to a private person (obtained in 
accordance with this agreement) will, unless otherwise agreed upon, be 
returned upon completion of the project for which obtained and no copies 
of that information retained.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.25  Final disposition of identifiable materials.

    Upon completion of a research or statistical project the security of 
identifiable research or statistical information shall be protected by:
    (a) Complete physical destruction of all copies of the materials or 
the identifiable portion of such materials after a three-year required 
recipient retention period or as soon as authorized by law, or
    (b) Removal of identifiers from data and separate maintenance of a 
name-code index in a secure location.

The Privacy Certificate shall indicate the procedures to be followed and 
shall, in the case of paragraph (b) of this section, describe procedures 
to secure the name index.



Sec. 22.26  Requests for transfer of information.

    (a) Requests for transfer of information identifiable to an 
individual shall be submitted to the person submitting the Privacy 
Certificate pursuant to Sec. 22.23.
    (b) Except where information is requested by BJA, OJJDP, BJS, NIJ, 
or OJP, the request shall describe the general objectives of the project 
for which information is requested, and specifically justify the need 
for such information in identifiable form. The request shall also 
indicate, and provide justification for the conclusion that conduct of 
the project will not, either directly or indirectly, cause legal, 
economic, physical, or social harm to individuals whose identification 
is revealed in the transfer of information.
    (c) Data may not be transferred pursuant to this section where a 
clear showing of the criteria set forth above is not made by the person 
requesting the data.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.27  Notification.

    (a) Any person from whom information identifiable to a private 
person is to be obtained directly, either orally, by questionnaire, or 
other written documents, shall be advised:
    (1) That the information will only be used or revealed for research 
or statistical purposes; and
    (2) That compliance with the request for information is entirely 
voluntary and may be terminated at any time.
    (b) Except as noted in paragraph (c) of this section, where 
information is to be obtained through observation of individual activity 
or performance, such individuals shall be advised:
    (1) Of the particular types of information to be collected;
    (2) That the data will only be utilized or revealed for research or 
statistical purposes; and
    (3) That participation in the project in question is voluntary and 
may be terminated at any time.
    (c) Notification, as described in paragraph (b) of this section, may 
be eliminated where information is obtained through field observation of 
individual activity or performance and in the

[[Page 432]]

judgment of the researcher such notification is impractical or may 
seriously impede the progress of the research.
    (d) Where findings in a project cannot, by virtue of sample size, or 
uniqueness of subject, be expected to totally conceal subject identity, 
an individual shall be so advised.



Sec. 22.28  Use of data identifiable to a private person for judicial, 
legislative or administrative purposes.

    (a) Research or statistical information identifiable to a private 
person shall be immune from legal process and shall only be admitted as 
evidence or used for any purpose in any action, suit, or other judicial, 
legislative or administrative proceeding with the written consent of the 
individual to whom the data pertains.
    (b) Where consent is obtained, such consent shall:
    (1) Be obtained at the time that information is sought for use in 
judicial, legislative or administrative proceedings;
    (2) Set out specific purposes in connection with which information 
will be used;
    (3) Limit, where appropriate, the scope of the information subject 
to such consent.

[41 FR 54846, Dec. 15, 1976, as amended at 45 FR 62038, Sept. 18, 1980]



Sec. 22.29  Sanctions.

    Where BJA, OJJDP, BJS, NIJ, or OJP believes that a violation of 
section 812(a) of the Act or section 1407(d) of the Victims of Crime 
Act, these regulations, or any grant or contract conditions entered into 
thereunder has occurred, it may initiate administrative actions leading 
to termination of a grant or contract, commence appropriate personnel 
and/or other procedures in cases involving Federal employees, and/or 
initiate appropriate legal actions leading to imposition of a civil 
penalty not to exceed $10,000 for a violation occurring before September 
29, 1999, and not to exceed $11,000 for a violation occurring on or 
after September 29, 1999 against any person responsible for such 
violations.

[Order No. 2249-99, 64 FR 47102, Aug. 30, 1999]



PART 23_CRIMINAL INTELLIGENCE SYSTEMS OPERATING POLICIES--Table of Contents




Sec.
23.1 Purpose.
23.2 Background.
23.3 Applicability.
23.20 Operating principles.
23.30 Funding guidelines.
23.40 Monitoring and auditing of grants for the funding of intelligence 
          systems.

    Authority: 42 U.S.C. 3782(a); 42 U.S.C. 3789g(c).

    Source: 58 FR 48452, Sept. 16, 1993, unless otherwise noted.



Sec. 23.1  Purpose.

    The purpose of this regulation is to assure that all criminal 
intelligence systems operating through support under the Omnibus Crime 
Control and Safe Streets Act of 1968, 42 U.S.C. 3711, et seq., as 
amended (Pub. L. 90-351, as amended by Pub. L. 91-644, Pub. L. 93-83, 
Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 
96-157, Pub. L. 98-473, Pub. L. 99-570, Pub. L. 100-690, and Pub. L. 
101-647), are utilized in conformance with the privacy and 
constitutional rights of individuals.



Sec. 23.2  Background.

    It is recognized that certain criminal activities including but not 
limited to loan sharking, drug trafficking, trafficking in stolen 
property, gambling, extortion, smuggling, bribery, and corruption of 
public officials often involve some degree of regular coordination and 
permanent organization involving a large number of participants over a 
broad geographical area. The exposure of such ongoing networks of 
criminal activity can be aided by the pooling of information about such 
activities. However, because the collection and exchange of intelligence 
data necessary to support control of serious criminal activity may 
represent potential threats to the privacy of individuals to whom such 
data relates, policy guidelines for Federally funded projects are 
required.



Sec. 23.3  Applicability.

    (a) These policy standards are applicable to all criminal 
intelligence systems operating through support under

[[Page 433]]

the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3711, 
et seq., as amended (Pub. L. 90-351, as amended by Pub. L. 91-644, Pub. 
L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-
115, Pub. L. 96-157, Pub. L. 98-473, Pub. L. 99-570, Pub. L. 100-690, 
and Pub. L. 101-647).
    (b) As used in these policies:
    (1) Criminal Intelligence System or Intelligence System means the 
arrangements, equipment, facilities, and procedures used for the 
receipt, storage, interagency exchange or dissemination, and analysis of 
criminal intelligence information;
    (2) Interjurisdictional Intelligence System means an intelligence 
system which involves two or more participating agencies representing 
different governmental units or jurisdictions;
    (3) Criminal Intelligence Information means data which has been 
evaluated to determine that it:
    (i) Is relevant to the identification of and the criminal activity 
engaged in by an individual who or organization which is reasonably 
suspected of involvement in criminal activity, and
    (ii) Meets criminal intelligence system submission criteria;
    (4) Participating Agency means an agency of local, county, State, 
Federal, or other governmental unit which exercises law enforcement or 
criminal investigation authority and which is authorized to submit and 
receive criminal intelligence information through an interjurisdictional 
intelligence system. A participating agency may be a member or a 
nonmember of an interjurisdictional intelligence system;
    (5) Intelligence Project or Project means the organizational unit 
which operates an intelligence system on behalf of and for the benefit 
of a single agency or the organization which operates an 
interjurisdictional intelligence system on behalf of a group of 
participating agencies; and
    (6) Validation of Information means the procedures governing the 
periodic review of criminal intelligence information to assure its 
continuing compliance with system submission criteria established by 
regulation or program policy.



Sec. 23.20  Operating principles.

    (a) A project shall collect and maintain criminal intelligence 
information concerning an individual only if there is reasonable 
suspicion that the individual is involved in criminal conduct or 
activity and the information is relevant to that criminal conduct or 
activity.
    (b) A project shall not collect or maintain criminal intelligence 
information about the political, religious or social views, 
associations, or activities of any individual or any group, association, 
corporation, business, partnership, or other organization unless such 
information directly relates to criminal conduct or activity and there 
is reasonable suspicion that the subject of the information is or may be 
involved in criminal conduct or activity.
    (c) Reasonable Suspicion or Criminal Predicate is established when 
information exists which establishes sufficient facts to give a trained 
law enforcement or criminal investigative agency officer, investigator, 
or employee a basis to believe that there is a reasonable possibility 
that an individual or organization is involved in a definable criminal 
activity or enterprise. In an interjurisdictional intelligence system, 
the project is responsible for establishing the existence of reasonable 
suspicion of criminal activity either through examination of supporting 
information submitted by a participating agency or by delegation of this 
responsibility to a properly trained participating agency which is 
subject to routine inspection and audit procedures established by the 
project.
    (d) A project shall not include in any criminal intelligence system 
information which has been obtained in violation of any applicable 
Federal, State, or local law or ordinance. In an interjurisdictional 
intelligence system, the project is responsible for establishing that no 
information is entered in violation of Federal, State, or local laws, 
either through examination of supporting information submitted by a 
participating agency or by delegation of this responsibility to a 
properly trained participating agency which is subject to routine 
inspection and audit procedures established by the project.

[[Page 434]]

    (e) A project or authorized recipient shall disseminate criminal 
intelligence information only where there is a need to know and a right 
to know the information in the performance of a law enforcement 
activity.
    (f)(1) Except as noted in paragraph (f)(2) of this section, a 
project shall disseminate criminal intelligence information only to law 
enforcement authorities who shall agree to follow procedures regarding 
information receipt, maintenance, security, and dissemination which are 
consistent with these principles.
    (2) Paragraph (f)(1) of this section shall not limit the 
dissemination of an assessment of criminal intelligence information to a 
government official or to any other individual, when necessary, to avoid 
imminent danger to life or property.
    (g) A project maintaining criminal intelligence information shall 
ensure that administrative, technical, and physical safeguards 
(including audit trails) are adopted to insure against unauthorized 
access and against intentional or unintentional damage. A record 
indicating who has been given information, the reason for release of the 
information, and the date of each dissemination outside the project 
shall be kept. Information shall be labeled to indicate levels of 
sensitivity, levels of confidence, and the identity of submitting 
agencies and control officials. Each project must establish written 
definitions for the need to know and right to know standards for 
dissemination to other agencies as provided in paragraph (e) of this 
section. The project is responsible for establishing the existence of an 
inquirer's need to know and right to know the information being 
requested either through inquiry or by delegation of this responsibility 
to a properly trained participating agency which is subject to routine 
inspection and audit procedures established by the project. Each 
intelligence project shall assure that the following security 
requirements are implemented:
    (1) Where appropriate, projects must adopt effective and 
technologically advanced computer software and hardware designs to 
prevent unauthorized access to the information contained in the system;
    (2) The project must restrict access to its facilities, operating 
environment and documentation to organizations and personnel authorized 
by the project;
    (3) The project must store information in the system in a manner 
such that it cannot be modified, destroyed, accessed, or purged without 
authorization;
    (4) The project must institute procedures to protect criminal 
intelligence information from unauthorized access, theft, sabotage, 
fire, flood, or other natural or manmade disaster;
    (5) The project must promulgate rules and regulations based on good 
cause for implementing its authority to screen, reject for employment, 
transfer, or remove personnel authorized to have direct access to the 
system; and
    (6) A project may authorize and utilize remote (off-premises) system 
data bases to the extent that they comply with these security 
requirements.
    (h) All projects shall adopt procedures to assure that all 
information which is retained by a project has relevancy and importance. 
Such procedures shall provide for the periodic review of information and 
the destruction of any information which is misleading, obsolete or 
otherwise unreliable and shall require that any recipient agencies be 
advised of such changes which involve errors or corrections. All 
information retained as a result of this review must reflect the name of 
the reviewer, date of review and explanation of decision to retain. 
Information retained in the system must be reviewed and validated for 
continuing compliance with system submission criteria before the 
expiration of its retention period, which in no event shall be longer 
than five (5) years.
    (i) If funds awarded under the Act are used to support the operation 
of an intelligence system, then:
    (1) No project shall make direct remote terminal access to 
intelligence information available to system participants, except as 
specifically approved by the Office of Justice Programs (OJP) based on a 
determination that the system has adequate policies

[[Page 435]]

and procedures in place to insure that it is accessible only to 
authorized systems users; and
    (2) A project shall undertake no major modifications to system 
design without prior grantor agency approval.
    (ii) [Reserved]
    (j) A project shall notify the grantor agency prior to initiation of 
formal information exchange procedures with any Federal, State, 
regional, or other information systems not indicated in the grant 
documents as initially approved at time of award.
    (k) A project shall make assurances that there will be no purchase 
or use in the course of the project of any electronic, mechanical, or 
other device for surveillance purposes that is in violation of the 
provisions of the Electronic Communications Privacy Act of 1986, Public 
Law 99-508, 18 U.S.C. 2510-2520, 2701-2709 and 3121-3125, or any 
applicable State statute related to wiretapping and surveillance.
    (l) A project shall make assurances that there will be no harassment 
or interference with any lawful political activities as part of the 
intelligence operation.
    (m) A project shall adopt sanctions for unauthorized access, 
utilization, or disclosure of information contained in the system.
    (n) A participating agency of an interjurisdictional intelligence 
system must maintain in its agency files information which documents 
each submission to the system and supports compliance with project entry 
criteria. Participating agency files supporting system submissions must 
be made available for reasonable audit and inspection by project 
representatives. Project representatives will conduct participating 
agency inspection and audit in such a manner so as to protect the 
confidentiality and sensitivity of participating agency intelligence 
records.
    (o) The Attorney General or designee may waive, in whole or in part, 
the applicability of a particular requirement or requirements contained 
in this part with respect to a criminal intelligence system, or for a 
class of submitters or users of such system, upon a clear and convincing 
showing that such waiver would enhance the collection, maintenance or 
dissemination of information in the criminal intelligence system, while 
ensuring that such system would not be utilized in violation of the 
privacy and constitutional rights of individuals or any applicable state 
or federal law.



Sec. 23.30  Funding guidelines.

    The following funding guidelines shall apply to all Crime Control 
Act funded discretionary assistance awards and Bureau of Justice 
Assistance (BJA) formula grant program subgrants, a purpose of which is 
to support the operation of an intelligence system. Intelligence systems 
shall only be funded where a grantee/subgrantee agrees to adhere to the 
principles set forth above and the project meets the following criteria:
    (a) The proposed collection and exchange of criminal intelligence 
information has been coordinated with and will support ongoing or 
proposed investigatory or prosecutorial activities relating to specific 
areas of criminal activity.
    (b) The areas of criminal activity for which intelligence 
information is to be utilized represent a significant and recognized 
threat to the population and:
    (1) Are either undertaken for the purpose of seeking illegal power 
or profits or pose a threat to the life and property of citizens; and
    (2) Involve a significant degree of permanent criminal organization; 
or
    (3) Are not limited to one jurisdiction.
    (c) The head of a government agency or an individual with general 
policy making authority who has been expressly delegated such control 
and supervision by the head of the agency will retain control and 
supervision of information collection and dissemination for the criminal 
intelligence system. This official shall certify in writing that he or 
she takes full responsibility and will be accountable for the 
information maintained by and disseminated from the system and that the 
operation of the system will be in compliance with the principles set 
forth in Sec. 23.20.
    (d)(1) Where the system is an interjurisdictional criminal 
intelligence system, the governmental agency

[[Page 436]]

which exercises control and supervision over the operation of the system 
shall require that the head of that agency or an individual with general 
policymaking authority who has been expressly delegated such control and 
supervision by the head of the agency:
    (i) Assume official responsibility and accountability for actions 
taken in the name of the joint entity, and
    (ii) Certify in writing that the official takes full responsibility 
and will be accountable for insuring that the information transmitted to 
the interjurisdictional system or to participating agencies will be in 
compliance with the principles set forth in Sec. 23.20.
    (2) The principles set forth in Sec. 23.20 shall be made part of 
the by-laws or operating procedures for that system. Each participating 
agency, as a condition of participation, must accept in writing those 
principles which govern the submission, maintenance and dissemination of 
information included as part of the interjurisdictional system.
    (e) Intelligence information will be collected, maintained and 
disseminated primarily for State and local law enforcement efforts, 
including efforts involving Federal participation.



Sec. 23.40  Monitoring and auditing of grants for the funding of 
intelligence systems.

    (a) Awards for the funding of intelligence systems will receive 
specialized monitoring and audit in accordance with a plan designed to 
insure compliance with operating principles as set forth in Sec. 23.20. 
The plan shall be approved prior to award of funds.
    (b) All such awards shall be subject to a special condition 
requiring compliance with the principles set forth in Sec. 23.20.
    (c) An annual notice will be published by OJP which will indicate 
the existence and the objective of all systems for the continuing 
interjurisdictional exchange of criminal intelligence information which 
are subject to the 28 CFR part 23 Criminal Intelligence Systems 
Policies.



PART 24_IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN DEPARTMENT
OF JUSTICE ADMINISTRATIVE PROCEEDINGS--Table of Contents




                      Subpart A_General Provisions

Sec.
24.101 Purpose of these rules.
24.102 Definitions.
24.103 Proceedings covered.
24.104 Applicability to Department of Justice proceedings.
24.105 Eligibility of applicants.
24.106 Standards for awards.
24.107 Allowable fees and other expenses.

             Subpart B_Information Required From Applicants

24.201 Contents of application.
24.202 Net worth exhibit.
24.203 Documentation of fees and expenses.
24.204 Time for submission of application.

            Subpart C_Procedures for Considering Applications

24.301 Filing and service of documents.
24.302 Answer to application.
24.303 Comments by other parties.
24.304 Settlement.
24.305 Extensions of time.
24.306 Decision on application.
24.307 Department review.
24.308 Judicial review.
24.309 Payment of award.

    Authority: 5 U.S.C. 504(c)(1).

    Source: Order No. 975-82, 47 FR 15776, Apr. 13, 1982, unless 
otherwise noted.



                      Subpart A_General Provisions



Sec. 24.101  Purpose of these rules.

    These rules are adopted by the Department of Justice pursuant to 
section 504 of title 5, U.S. Code, as amended by section 203(a)(1) of 
the Equal Access to Justice Act, Public Law No. 96-481. Under the Act, 
an eligible party may receive an award for attorney fees and other 
expenses when it prevails over the Department in an adversary 
adjudication under 5 U.S.C. 554 before the Department, unless the 
Department's position as a party to the proceeding was substantially 
justified or special circumstances make an award unjust. The purpose of 
these rules is to establish procedures for the submission and 
consideration of applications for awards against the Department.

[[Page 437]]



Sec. 24.102  Definitions.

    As used in this part:
    (a) The Act means section 504 of title 5, U.S. Code, as amended by 
section 203(a)(1) of the Equal Access to Justice Act, Public Law No. 96-
481.
    (b) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or reviewing a license.
    (c) Adjudicative officer means the official, without regard to 
whether the official is designated as an administrative law judge, a 
hearing officer or examiner, or otherwise, who presided at the adversary 
adjudication.
    (d) Department refers to the relevant departmental component which 
is conducting the adversary adjudication (e.g., Drug Enforcement 
Administration or Office of Justice Assistance, Research, and 
Statistics).
    (e) Proceeding means an adversary adjudication as defined in Sec. 
24.102(b) above.



Sec. 24.103  Proceedings covered.

    (a) These rules apply to adversary adjudications required by statute 
to be conducted by the Department under 5 U.S.C. 554. Specifically, the 
proceedings conducted by the Department to which these rules apply are:
    (1) Hearings conducted by the Drug Enforcement Administration (DEA) 
in connection with suspension or revocation of registration of 
manufacturers, distributors, and dispensers of controlled substances 
under 21 U.S.C. 824(c) and 21 CFR 1301.51; suspension or revocation of 
import and export registrations pursuant to 21 U.S.C. 958 and 21 CFR 
1311.51;
    (2) Hearings conducted by DEA in connection with the scheduling of 
drugs pursuant to 21 U.S.C. 811(a) and 21 CFR 1308.41;
    (3) Handicap discrimination hearings conducted by the Department 
under 29 U.S.C. 794a(a) and 28 CFR 42.109(d);
    (4) Title VI civil rights hearings conducted by the Department under 
42 U.S.C. 2000d-1 and 28 CFR 42.109(d);
    (5) Grant denial and grant termination hearings conducted by the 
Office of Justice Assistance, Research, and Statistics (OJARS), the 
National Institute of Justice (NIJ), the Bureau of Justice Statistics 
(BJS) and the Office of Juvenile Justice and Delinquency Prevention 
(OJJDP), or the Law Enforcement Assistance Administration (LEAA) under 
42 U.S.C. 3783 and 28 CFR part 18; and
    (6) Civil rights hearings conducted by OJARS under 42 U.S.C. 3789d 
and 28 CFR 42.214-15.
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.



Sec. 24.104  Applicability to Department of Justice proceedings.

    The Act applies to an adversary adjudication pending before the 
Department at any time between October 1, 1981 and September 30, 1984. 
This includes proceedings begun before October 1, 1981 if final 
Department action has not been taken before that date, and proceedings 
pending on September 30, 1984.



Sec. 24.105  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a prevailing party in the adversary 
adjudication for which it seeks an award. The term ``party'' is defined 
in 5 U.S.C. 551(3). The applicant must show that it meets all conditions 
of eligibility set out in this subpart and in subpart B.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $5 million and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private

[[Page 438]]

organization with a net worth of not more than $5 million and not more 
than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated.



Sec. 24.106  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding unless (1) the 
position of the Department as a party to the proceeding was 
substantially justified or (2) special circumstances make the award 
sought unjust. No presumption arises that the agency's position was not 
substantially justified simply because the agency did not prevail.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceedings.



Sec. 24.107  Allowable fees and other expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) Reasonable cost of any study, analysis, engineering report, 
test, or project which the Department finds necessary for the 
preparation of the party's case;
    (3) Reasonable attorney or agent fees;
    (b) The amount of fees awarded will be based upon the prevailing 
market rates for the kind and quality of services furnished, except that
    (1) Compensation for an expert witness will not exceed the highest 
rate paid by the Department for expert witnesses; and
    (2) Attorney or agent fees will not be in excess of $75 per hour.



             Subpart B_Information Required From Applicants



Sec. 24.201  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of the Department in the proceeding that the 
applicant alleges was not substantially justified.
    (b) The application shall include a statement that the applicant's 
net worth as of the time the proceeding was initiated did not exceed $1 
million if the applicant is an individual (other than a sole owner of an 
unincorporated business seeking an award in that capacity) or $5 million 
in the case of all other applicants. An applicant may omit this 
statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) and is exempt 
from taxation under section 501(a) of the Code or, in the case of such 
an organization not required to obtain a ruling from the Internal 
Revenue Service on its exempt status, a statement that describes the 
basis for the applicant's belief that it qualifies under section 
501(c)(3) of the Code; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that it did not have more than 500 employees at 
the time the proceeding was initiated, giving the number of its 
employees and describing briefly the type and purpose of its 
organization or business.
    (d) The application shall itemize the amount of fees and expenses 
for which an award is sought.
    (e) The application may include any other matters that the applicant 
believes should be considered in determining whether and in what amount 
an award should be made.
    (f) The application shall be signed by the applicant with respect to 
the eligibility of the applicant and by the attorney of the applicant 
with respect to fees and expenses sought. The application shall contain 
or be accompanied by a written verification under oath or affirmation 
under penalty of perjury that the information provided in the 
application and all accompanying material is true and complete to the 
best of the signer's information and belief.

[[Page 439]]



Sec. 24.202  Net worth exhibit.

    (a) Each applicant except a qualified tax exempt organization or a 
qualified cooperative must submit with its application a detailed 
exhibit showing its net worth at the time the proceeding was initiated. 
If any individual, corporation, or other entity directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or if the applicant directly or indirectly owns or 
controls a majority of the voting shares of other interest of any 
corporation or other entity, the exhibit must include a showing of the 
net worth of all such affiliates or of the applicant including the 
affiliates. The exhibit may be in any form convenient to the applicant, 
provided that it makes full disclosure of the applicant's and any 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards of 5 U.S.C. 
504(b)(1)(B)(i). The adjudicative officer may require an applicant to 
file additional information to determine the applicant's eligibility for 
an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period prior to the date on which the 
proceeding was initiated, that reduced the net worth of the applicant 
and its affiliates below the applicable net worth ceiling. If there were 
no such transactions, the applicant shall so state.
    (c) The net worth exhibit shall be included in the public record of 
the proceeding.



Sec. 24.203  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, engineering 
report, test, or project, for which an award is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.



Sec. 24.204  Time for submission of application.

    (a) An application must be filed no later than 30 days after final 
disposition of the proceeding. If review or reconsideration is sought or 
taken of a decision as to which an applicant believes it has prevailed, 
action on the award of fees shall be stayed pending final disposition of 
the underlying controversy.
    (b) Final disposition means the later of:
    (1) The date on which the final agency decision is issued,
    (2) The date on which a petition for rehearing or reconsideration is 
disposed of, or
    (3) The date of final resolution of the proceeding, such as 
settlement or voluntary dismissal, which is not subject to a petition 
for rehearing or reconsideration.



            Subpart C_Procedures for Considering Applications



Sec. 24.301  Filing and service of documents.

    An application for an award and any other pleading or document 
related to the application shall be filed and

[[Page 440]]

served on all parties to the proceeding in the same manner as other 
pleadings in the proceeding.



Sec. 24.302  Answer to application.

    (a) Within 30 calendar days after service of the application, 
Department counsel may file an answer. If Department counsel fails to 
answer or otherwise fails to contest or settle the application, the 
adjudicative officer may upon a satisfactory showing of entitlement by 
the applicant make an award for the applicant's fees and other expenses 
under 5 U.S.C. 504.
    (b) If Department counsel and applicant believe that they can reach 
a settlement concerning the award, Department counsel may file a 
statement of intent to negotiate. The filing of such a statement shall 
extend the time for filing an answer an additional 30 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on to support the objection. If 
the answer is based on any alleged facts not already reflected in the 
record of the proceeding, Department counsel shall include with the 
answer either a supporting affidavit or a request for further filings or 
other action.



Sec. 24.303  Comments by other parties.

    Any party to a proceeding other than the applicant and Department 
counsel may file comments on an application within 30 calendar days 
after it is served or on an answer within 15 calendar days after it is 
served.



Sec. 24.304  Settlement.

    A prevailing party and Department counsel may agree on a proposed 
settlement of an award before final action on the application, either in 
connection with a settlement of the underlying proceeding or after the 
underlying proceeding has been concluded. If the party and Department 
counsel agree on a proposed settlement of an award before an application 
has been filed, the application shall be filed with the proposed 
settlement.



Sec. 24.305  Extensions of time.

    (a) The adjudicative officer may on motion and for good cause shown 
grant extensions of time other than for filing an application for fees 
and expenses after final disposition in the adversary adjudication.
    (b) Ordinarily, the determination of an award will be made on the 
basis of the written record of the underlying proceeding and the filings 
required or permitted by the foregoing sections of these rules. However, 
the adjudicative officer may sua sponte or on motion of any party to the 
proceedings require or permit further filings or other action, such as 
an informal conference, oral argument, additional written submissions, 
or an evidentiary hearing. Such further action shall occur only when 
necessary for full and fair resolution of the issues arising from the 
application and shall take place as promptly as possible. A motion for 
further filings or other action shall specifically identify the 
information sought on the disputed issues and shall explain why the 
further filings or other action is necessary to resolve the issues.
    (c) In the event that an evidentiary hearing is required or 
permitted by the adjudicative officer, such hearing and any related 
filings or other action required or permitted shall be conducted 
pursuant to the procedural rules governing adversary adjudications 
conducted by the Department component in which the underlying adversary 
adjudication was conducted.



Sec. 24.306  Decision on application.

    The adjudicative officer shall promptly issue a decision on the 
application which shall include proposed written findings and 
conclusions on such of the following as are relevant to the decision:
    (a) The applicant's status as a prevailing party;
    (b) The applicant's qualification as a ``party'' under 5 U.S.C. 
504(b)(1)(B);
    (c) Whether the Department's position as a party to the proceeding 
was substantially justified;
    (d) Whether special circumstances make an award unjust;
    (e) Whether the applicant during the course of the proceedings 
engaged in conduct that unduly and unreasonably protracted the final 
resolution of the matter in controversy; and
    (f) The amounts, if any, awarded for fees and other expenses, with 
reasons

[[Page 441]]

for any difference between the amount requested and the amount awarded.



Sec. 24.307  Department review.

    The decision of the adjudicative officer will be reviewed to the 
extent permitted by law by the Department in accordance with the 
Department's procedures for the type of proceeding involved. The 
Department will issue the final decision on the application.



Sec. 24.308  Judicial review.

    Judicial review of final Department decisions on awards may be 
sought as provided in 5 U.S.C. 504(c)(2).



Sec. 24.309  Payment of award.

    An applicant seeking payment of an award shall submit a copy of the 
final decision granting the award to the Department's Accounting Office 
for processing. A statement that review of the underlying decision is 
not being sought in the United States courts, or that the process for 
seeking review of the award has been completed, must also be included.



PART 25_DEPARTMENT OF JUSTICE INFORMATION SYSTEMS--Table of Contents




     Subpart A_The National Instant Criminal Background Check System

Sec.
25.1 Purpose and authority.
25.2 Definitions.
25.3 System information.
25.4 Record source categories.
25.5 Validation and data integrity of records in the system.
25.6 Accessing records in the system.
25.7 Querying records in the system.
25.8 System safeguards.
25.9 Retention and destruction of records in the system.
25.10 Correction of erroneous system information.
25.11 Prohibited activities and penalties.

   Subpart B_National Motor Vehicle Title Information System (NMVTIS)

25.51 Purpose and authority.
25.52 Definitions.
25.53 Responsibilities of the operator of NMVTIS.
25.54 Responsibilities of the States.
25.55 Responsibilities of insurance carriers.
25.56 Responsibilities of junk yards and salvage yards and auto 
          recyclers.
25.57 Erroneous junk or salvage reporting.

    Authority: Public Law 103-159, 107 Stat. 1536, 49 U.S.C. 30501-
30505; Public Law 101-410, 104 Stat. 890, as amended by Public Law 104-
134, 110 Stat. 1321.

    Source: Order No. 2186-98, 63 FR 58307, Oct. 30, 1998, unless 
otherwise noted.



     Subpart A_The National Instant Criminal Background Check System



Sec. 25.1  Purpose and authority.

    The purpose of this subpart is to establish policies and procedures 
implementing the Brady Handgun Violence Prevention Act (Brady Act), 
Public Law 103-159, 107 Stat. 1536. The Brady Act requires the Attorney 
General to establish a National Instant Criminal Background Check System 
(NICS) to be contacted by any licensed importer, licensed manufacturer, 
or licensed dealer of firearms for information as to whether the 
transfer of a firearm to any person who is not licensed under 18 U.S.C. 
923 would be in violation of Federal or state law. The regulations in 
this subpart are issued pursuant to section 103(h) of the Brady Act, 107 
Stat. 1542 (18 U.S.C. 922 note), and include requirements to ensure the 
privacy and security of the NICS and appeals procedures for persons who 
have been denied the right to obtain a firearm as a result of a NICS 
background check performed by the Federal Bureau of Investigation (FBI) 
or a state or local law enforcement agency.



Sec. 25.2  Definitions.

    Appeal means a formal procedure to challenge the denial of a firearm 
transfer.
    ARI means a unique Agency Record Identifier assigned by the agency 
submitting records for inclusion in the NICS Index.
    ATF means the Bureau of Alcohol, Tobacco, and Firearms of the 
Department of Treasury.
    Audit log means a chronological record of system (computer) 
activities that enables the reconstruction and examination of the 
sequence of events and/or changes in an event.

[[Page 442]]

    Business day means a 24-hour day (beginning at 12:01 a.m.) on which 
state offices are open in the state in which the proposed firearm 
transaction is to take place.
    Control Terminal Agency means a state or territorial criminal 
justice agency recognized by the FBI as the agency responsible for 
providing state-or territory-wide service to criminal justice users of 
NCIC data.
    Data source means an agency that provided specific information to 
the NICS.
    Delayed means the response given to the FFL indicating that the 
transaction is in an ``Open'' status and that more research is required 
prior to a NICS ``Proceed'' or ``Denied'' response. A ``Delayed'' 
response to the FFL indicates that it would be unlawful to transfer the 
firearm until receipt of a follow-up ``Proceed'' response from the NICS 
or the expiration of three business days, whichever occurs first.
    Denied means denial of a firearm transfer based on a NICS response 
indicating one or more matching records were found providing information 
demonstrating that receipt of a firearm by a prospective transferee 
would violate 18 U.S.C. 922 or state law.
    Denying agency means a POC or the NICS Operations Center, whichever 
determines that information in the NICS indicates that the transfer of a 
firearm to a person would violate Federal or state law, based on a 
background check.
    Dial-up access means any routine access through commercial switched 
circuits on a continuous or temporary basis.
    Federal agency means any authority of the United States that is an 
``Agency'' under 44 U.S.C. 3502(1), other than those considered to be 
independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
    FFL (federal firearms licensee) means a person licensed by the ATF 
as a manufacturer, dealer, or importer of firearms.
    Firearm has the same meaning as in 18 U.S.C. 921(a)(3).
    Licensed dealer means any person defined in 27 CFR 178.11.
    Licensed importer has the same meaning as in 27 CFR 178.11.
    Licensed manufacturer has the same meaning as in 27 CFR 178.11.
    NCIC (National Crime Information Center) means the nationwide 
computerized information system of criminal justice data established by 
the FBI as a service to local, state, and Federal criminal justice 
agencies.
    NICS means the National Instant Criminal Background Check System, 
which an FFL must, with limited exceptions, contact for information on 
whether receipt of a firearm by a person who is not licensed under 18 
U.S.C. 923 would violate Federal or state law.
    NICS Index means the database, to be managed by the FBI, containing 
information provided by Federal and state agencies about persons 
prohibited under Federal law from receiving or possessing a firearm. The 
NICS Index is separate and apart from the NCIC and the Interstate 
Identification Index (III).
    NICS operational day means the period during which the NICS 
Operations Center has its daily regular business hours.
    NICS Representative means a person who receives telephone inquiries 
to the NICS Operations Center from FFLs requesting background checks and 
provides a response as to whether the receipt or transfer of a firearm 
may proceed or is delayed.
    NRI (NICS Record Identifier) means the system-generated unique 
number associated with each record in the NICS Index.
    NTN (NICS Transaction Number) means the unique number that will be 
assigned to each valid background check inquiry received by the NICS. 
Its primary purpose will be to provide a means of associating inquiries 
to the NICS with the responses provided by the NICS to the FFLs.
    Open means those non-canceled transactions where the FFL has not 
been notified of the final determination. In cases of ``open'' 
responses, the NICS continues researching potentially prohibiting 
records regarding the transferee and, if definitive information is 
obtained, communicates to the FFL the final determination that the check 
resulted in a proceed or a deny. An ``open'' response does not prohibit 
an FFL from transferring a firearm

[[Page 443]]

after three business days have elapsed since the FFL provided to the 
system the identifying information about the prospective transferee.
    ORI (Originating Agency Identifier) means a nine-character 
identifier assigned by the FBI to an agency that has met the established 
qualifying criteria for ORI assignment to identify the agency in 
transactions on the NCIC System.
    Originating Agency means an agency that provides a record to a 
database checked by the NICS.
    POC (Point of Contact) means a state or local law enforcement agency 
serving as an intermediary between an FFL and the federal databases 
checked by the NICS. A POC will receive NICS background check requests 
from FFLs, check state or local record systems, perform NICS inquiries, 
determine whether matching records provide information demonstrating 
that an individual is disqualified from possessing a firearm under 
Federal or state law, and respond to FFLs with the results of a NICS 
background check. A POC will be an agency with express or implied 
authority to perform POC duties pursuant to state statute, regulation, 
or executive order.
    Proceed means a NICS response indicating that the information 
available to the system at the time of the response did not demonstrate 
that transfer of the firearm would violate federal or state law. A 
``Proceed'' response would not relieve an FFL from compliance with other 
provisions of Federal or state law that may be applicable to firearms 
transfers. For example, under 18 U.S.C. 922(d), an FFL may not lawfully 
transfer a firearm if he or she knows or has reasonable cause to believe 
that the prospective recipient is prohibited by law from receiving or 
possessing a firearm.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including but not limited 
to information that disqualifies the individual from receiving a 
firearm, and that contains his or her name or other personal 
identifiers.
    STN (State-Assigned Transaction Number) means a unique number that 
may be assigned by a POC to a valid background check inquiry.
    System means the National Instant Criminal Background Check System 
(NICS).

[Order No. 2186-98, 63 FR 58307, Oct. 30, 1998, as amended by Order No. 
2727-2004, 69 FR 43900, July 23, 2004]



Sec. 25.3  System information.

    (a) There is established at the FBI a National Instant Criminal 
Background Check System.
    (b) The system will be based at the Federal Bureau of Investigation, 
1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0147.
    (c) The system manager and address are: Director, Federal Bureau of 
Investigation, J. Edgar Hoover F.B.I. Building, 935 Pennsylvania Avenue, 
NW, Washington, D.C. 20535.



Sec. 25.4  Record source categories.

    It is anticipated that most records in the NICS Index will be 
obtained from Federal agencies. It is also anticipated that a limited 
number of authorized state and local law enforcement agencies will 
voluntarily contribute records to the NICS Index. Information in the 
NCIC and III systems that will be searched during a background check has 
been or will be contributed voluntarily by Federal, state, local, and 
international criminal justice agencies.



Sec. 25.5  Validation and data integrity of records in the system.

    (a) The FBI will be responsible for maintaining data integrity 
during all NICS operations that are managed and carried out by the FBI. 
This responsibility includes:
    (1) Ensuring the accurate adding, canceling, or modifying of NICS 
Index records supplied by Federal agencies;
    (2) Automatically rejecting any attempted entry of records into the 
NICS Index that contain detectable invalid data elements;
    (3) Automatic purging of records in the NICS Index after they are on 
file for a prescribed period of time; and
    (4) Quality control checks in the form of periodic internal audits 
by FBI

[[Page 444]]

personnel to verify that the information provided to the NICS Index 
remains valid and correct.
    (b) Each data source will be responsible for ensuring the accuracy 
and validity of the data it provides to the NICS Index and will 
immediately correct any record determined to be invalid or incorrect.



Sec. 25.6  Accessing records in the system.

    (a) FFLs may initiate a NICS background check only in connection 
with a proposed firearm transfer as required by the Brady Act. FFLs are 
strictly prohibited from initiating a NICS background check for any 
other purpose. The process of accessing the NICS for the purpose of 
conducting a NICS background check is initiated by an FFL's contacting 
the FBI NICS Operations Center (by telephone or electronic dial-up 
access) or a POC. FFLs in each state will be advised by the ATF whether 
they are required to initiate NICS background checks with the NICS 
Operations Center or a POC and how they are to do so.
    (b) Access to the NICS through the FBI NICS Operations Center. FFLs 
may contact the NICS Operations Center by use of a toll-free telephone 
number, only during its regular business hours. In addition to telephone 
access, toll-free electronic dial-up access to the NICS will be provided 
to FFLs after the beginning of the NICS operation. FFLs with electronic 
dial-up access will be able to contact the NICS 24 hours each day, 
excluding scheduled and unscheduled downtime.
    (c)(1) The FBI NICS Operations Center, upon receiving an FFL 
telephone or electronic dial-up request for a background check, will:
    (i) Verify the FFL Number and code word;
    (ii) Assign a NICS Transaction Number (NTN) to a valid inquiry and 
provide the NTN to the FFL;
    (iii) Search the relevant databases (i.e., NICS Index, NCIC, III) 
for any matching records; and
    (iv) Provide the following NICS responses based upon the 
consolidated NICS search results to the FFL that requested the 
background check:
    (A) ``Proceed'' response, if no disqualifying information was found 
in the NICS Index, NCIC, or III.
    (B) ``Delayed'' response, if the NICS search finds a record that 
requires more research to determine whether the prospective transferee 
is disqualified from possessing a firearm by Federal or state law. A 
``Delayed'' response to the FFL indicates that the firearm transfer 
should not proceed pending receipt of a follow-up ``Proceed'' response 
from the NICS or the expiration of three business days (exclusive of the 
day on which the query is made), whichever occurs first. (Example: An 
FFL requests a NICS check on a prospective firearm transferee at 9:00 
a.m. on Friday and shortly thereafter receives a ``Delayed'' response 
from the NICS. If state offices in the state in which the FFL is located 
are closed on Saturday and Sunday and open the following Monday, 
Tuesday, and Wednesday, and the NICS has not yet responded with a 
``Proceed'' or ``Denied'' response, the FFL may transfer the firearm at 
12:01 a.m. Thursday.)
    (C) ``Denied'' response, when at least one matching record is found 
in either the NICS Index, NCIC, or III that provides information 
demonstrating that receipt of a firearm by the prospective transferee 
would violate 18 U.S.C. 922 or state law. The ``Denied'' response will 
be provided to the requesting FFL by the NICS Operations Center during 
its regular business hours.
    (2) None of the responses provided to the FFL under paragraph (c)(1) 
of this section will contain any of the underlying information in the 
records checked by the system.
    (d) Access to the NICS through POCs. In states where a POC is 
designated to process background checks for the NICS, FFLs will contact 
the POC to initiate a NICS background check. Both ATF and the POC will 
notify FFLs in the POC's state of the means by which FFLs can contact 
the POC. The NICS will provide POCs with electronic access to the system 
virtually 24 hours each day through the NCIC communication network. Upon 
receiving a request for a background check from an FFL, a POC will:

[[Page 445]]

    (1) Verify the eligibility of the FFL either by verification of the 
FFL number or an alternative POC-verification system;
    (2) Enter a purpose code indicating that the query of the system is 
for the purpose of performing a NICS background check in connection with 
the transfer of a firearm; and (3) Transmit the request for a background 
check via the NCIC interface to the NICS.
    (e) Upon receiving a request for a NICS background check, POCs may 
also conduct a search of available files in state and local law 
enforcement and other relevant record systems, and may provide a unique 
State-Assigned Transaction Number (STN) to a valid inquiry for a 
background check.
    (f) When the NICS receives an inquiry from a POC, it will search the 
relevant databases (i.e., NICS Index, NCIC, III) for any matching 
record(s) and will provide an electronic response to the POC. This 
response will consolidate the search results of the relevant databases 
and will include the NTN. The following types of responses may be 
provided by the NICS to a state or local agency conducting a background 
check:
    (1) No record response, if the NICS determines, through a complete 
search, that no matching record exists.
    (2) Partial response, if the NICS has not completed the search of 
all of its records. This response will indicate the databases that have 
been searched (i.e., III, NCIC, and/or NICS Index) and the databases 
that have not been searched. It will also provide any potentially 
disqualifying information found in any of the databases searched. A 
follow-up response will be sent as soon as all the relevant databases 
have been searched. The follow-up response will provide the complete 
search results.
    (3) Single matching record response, if all records in the relevant 
databases have been searched and one matching record was found.
    (4) Multiple matching record response, if all records in the 
relevant databases have been searched and more than one matching record 
was found.
    (g) Generally, based on the response(s) provided by the NICS, and 
other information available in the state and local record systems, a POC 
will:
    (1) Confirm any matching records; and
    (2) Notify the FFL that the transfer may proceed, is delayed pending 
further record analysis, or is denied. ``Proceed'' notifications made 
within three business days will be accompanied by the NTN or STN 
traceable to the NTN. The POC may or may not provide a transaction 
number (NTN or STN) when notifying the FFL of a ``Denied'' response.
    (h) POC Determination Messages. POCs shall transmit electronic NICS 
transaction determination messages to the FBI for the following 
transactions: open transactions that are not resolved before the end of 
the operational day on which the check is requested; denied 
transactions; transactions reported to the NICS as open and later 
changed to proceed; and denied transactions that have been overturned. 
The FBI shall provide POCs with an electronic capability to transmit 
this information. These electronic messages shall be provided to the 
NICS immediately upon communicating the POC determination to the FFL. 
For transactions where a determination has not been communicated to the 
FFL, the electronic messages shall be communicated no later than the end 
of the operational day on which the check was initiated. With the 
exception of permit checks, newly created POC NICS transactions that are 
not followed by a determination message (deny or open) before the end of 
the operational day on which they were initiated will be assumed to have 
resulted in a proceed notification to the FFL. The information provided 
in the POC determination messages will be maintained in the NICS Audit 
Log described in Sec. 25.9(b). The NICS will destroy its records 
regarding POC determinations in accordance with the procedures detailed 
in Sec. 25.9(b).
    (i) Response recording. FFLs are required to record the system 
response, whether provided by the FBI NICS Operations Center or a POC, 
on the appropriate ATF form for audit and inspection purposes, under 27 
CFR part 178 recordkeeping requirements. The FBI NICS Operations Center 
response will always include an NTN and associated

[[Page 446]]

``Proceed,'' ``Delayed,'' or ``Denied'' determination. POC responses may 
vary as discussed in paragraph (g) of this section. In these instances, 
FFLs will record the POC response, including any transaction number and/
or determination.
    (j) Access to the NICS Index for purposes unrelated to NICS 
background checks required by the Brady Act. Access to the NICS Index 
for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 
922(t) shall be limited to uses for the purpose of:
    (1) Providing information to Federal, state, or local criminal 
justice agencies in connection with the issuance of a firearm-related or 
explosives-related permit or license, including permits or licenses to 
possess, acquire, or transfer a firearm, or to carry a concealed 
firearm, or to import, manufacture, deal in, or purchase explosives; or
    (2) Responding to an inquiry from the ATF in connection with a civil 
or criminal law enforcement activity relating to the Gun Control Act (18 
U.S.C. Chapter 44) or the National Firearms Act (26 U.S.C. Chapter 53).

[Order No. 2186-98, 63 FR 58307, Oct. 30, 1998, as amended by Order No. 
2727-2004, 69 FR 43900, July 23, 2004]



Sec. 25.7  Querying records in the system.

    (a) The following search descriptors will be required in all queries 
of the system for purposes of a background check:
    (1) Name;
    (2) Sex;
    (3) Race;
    (4) Complete date of birth; and
    (5) State of residence.
    (b) A unique numeric identifier may also be provided to search for 
additional records based on exact matches by the numeric identifier. 
Examples of unique numeric identifiers for purposes of this system are: 
Social Security number (to comply with Privacy Act requirements, a 
Social Security number will not be required by the NICS to perform any 
background check) and miscellaneous identifying numbers (e.g., military 
number or number assigned by Federal, state, or local authorities to an 
individual's record). Additional identifiers that may be requested by 
the system after an initial query include height, weight, eye and hair 
color, and place of birth. At the option of the querying agency, these 
additional identifiers may also be included in the initial query of the 
system.



Sec. 25.8  System safeguards.

    (a) Information maintained in the NICS Index is stored 
electronically for use in an FBI computer environment. The NICS central 
computer will reside inside a locked room within a secure facility. 
Access to the facility will be restricted to authorized personnel who 
have identified themselves and their need for access to a system 
security officer.
    (b) Access to data stored in the NICS is restricted to duly 
authorized agencies. The security measures listed in paragraphs (c) 
through (f) of this section are the minimum to be adopted by all POCs 
and data sources having access to the NICS.
    (c) State or local law enforcement agency computer centers 
designated by a Control Terminal Agency as POCs shall be authorized NCIC 
users and shall observe all procedures set forth in the NCIC Security 
Policy of 1992 when processing NICS background checks. The 
responsibilities of the Control Terminal Agencies and the computer 
centers include the following:
    (1) The criminal justice agency computer site must have adequate 
physical security to protect against any unauthorized personnel gaining 
access to the computer equipment or to any of the stored data.
    (2) Since personnel at these computer centers can have access to 
data stored in the NICS, they must be screened thoroughly under the 
authority and supervision of a state Control Terminal Agency. This 
authority and supervision may be delegated to responsible criminal 
justice agency personnel in the case of a satellite computer center 
being serviced through a state Control Terminal Agency. This screening 
will also apply to non-criminal justice maintenance or technical 
personnel.
    (3) All visitors to these computer centers must be accompanied by 
staff personnel at all times.
    (4) POCs utilizing a state/NCIC terminal to access the NICS must 
have

[[Page 447]]

the proper computer instructions written and other built-in controls to 
prevent data from being accessible to any terminals other than 
authorized terminals.
    (5) Each state Control Terminal Agency shall build its data system 
around a central computer, through which each inquiry must pass for 
screening and verification.
    (d) Authorized state agency remote terminal devices operated by POCs 
and having access to the NICS must meet the following requirements:
    (1) POCs and data sources having terminals with access to the NICS 
must physically place these terminals in secure locations within the 
authorized agency;
    (2) The agencies having terminals with access to the NICS must 
screen terminal operators and must restrict access to the terminals to a 
minimum number of authorized employees; and
    (3) Copies of NICS data obtained from terminal devices must be 
afforded appropriate security to prevent any unauthorized access or use.
    (e) FFL remote terminal devices may be used to transmit queries to 
the NICS via electronic dial-up access. The following procedures will 
apply to such queries:
    (1) The NICS will incorporate a security authentication mechanism 
that performs FFL dial-up user authentication before network access 
takes place;
    (2) The proper use of dial-up circuits by FFLs will be included as 
part of the periodic audits by the FBI; and
    (3) All failed authentications will be logged by the NICS and 
provided to the NICS security administrator.
    (f) FFLs may use the telephone to transmit queries to the NICS, in 
accordance with the following procedures:
    (1) FFLs may contact the NICS Operations Center during its regular 
business hours by a telephone number provided by the FBI;
    (2) FFLs will provide the NICS Representative with their FFL Number 
and code word, the type of sale, and the name, sex, race, date of birth, 
and state of residence of the prospective buyer; and
    (3) The NICS will verify the FFL Number and code word before 
processing the request.
    (g) The following precautions will be taken to help ensure the 
security and privacy of NICS information when FFLs contact the NICS 
Operations Center:
    (1) Access will be restricted to the initiation of a NICS background 
check in connection with the proposed transfer of a firearm.
    (2) The NICS Representative will only provide a response of 
``Proceed'' or ``Delayed'' (with regard to the prospective firearms 
transfer), and will not provide the details of any record information 
about the transferee. In cases where potentially disqualifying 
information is found in response to an FFL query, the NICS 
Representative will provide a ``Delayed'' response to the FFL. Follow-up 
``Proceed'' or ``Denied'' responses will be provided by the NICS 
Operations Center during its regular business hours.
    (3) The FBI will periodically monitor telephone inquiries to ensure 
proper use of the system.
    (h) All transactions and messages sent and received through 
electronic access by POCs and FFLs will be automatically logged in the 
NICS Audit Log described in Sec. 25.9(b). Information in the NICS Audit 
Log will include initiation and termination messages, failed 
authentications, and matching records located by each search 
transaction.
    (i) The FBI will monitor and enforce compliance by NICS users with 
the applicable system security requirements outlined in the NICS POC 
Guidelines and the NICS FFL Manual (available from the NICS Operations 
Center, Federal Bureau of Investigation, 1000 Custer Hollow Road, 
Clarksburg, West Virginia 26306-0147).



Sec. 25.9  Retention and destruction of records in the system.

    (a) The NICS will retain NICS Index records that indicate that 
receipt of a firearm by the individuals to whom the records pertain 
would violate Federal or state law. The NICS will retain such records 
indefinitely, unless they are canceled by the originating agency. In 
cases where a firearms disability is not

[[Page 448]]

permanent, e.g., a disqualifying restraining order, the NICS will 
automatically purge the pertinent record when it is no longer 
disqualifying. Unless otherwise removed, records contained in the NCIC 
and III files that are accessed during a background check will remain in 
those files in accordance with established policy.
    (b) The FBI will maintain an automated NICS Audit Log of all 
incoming and outgoing transactions that pass through the system.
    (1) Contents. The NICS Audit Log will record the following 
information: Type of transaction (inquiry or response), line number, 
time, date of inquiry, header, message key, ORI or FFL identifier, and 
inquiry/response data (including the name and other identifying 
information about the prospective transferee and the NTN).
    (i) NICS Audit Log records relating to denied transactions will be 
retained for 10 years, after which time they will be transferred to a 
Federal Records Center for storage;
    (ii) NICS Audit Log records relating to transactions in an open 
status, except the NTN and date, will be destroyed after not more than 
90 days from the date of inquiry; and
    (iii) In cases of NICS Audit Log records relating to allowed 
transactions, all identifying information submitted by or on behalf of 
the transferee will be destroyed within 24 hours after the FFL receives 
communication of the determination that the transfer may proceed. All 
other information, except the NTN and date, will be destroyed after not 
more than 90 days from the date of inquiry.
    (2) Use of information in the NICS Audit Log. The NICS Audit Log 
will be used to analyze system performance, assist users in resolving 
operational problems, support the appeals process, or support audits of 
the use and performance of the system. Searches may be conducted on the 
Audit Log by time frame, i.e., by day or month, or by a particular state 
or agency. Information in the NICS Audit Log pertaining to allowed 
transactions may be accessed directly only by the FBI and only for the 
purpose of conducting audits of the use and performance of the NICS, 
except that:
    (i) Information in the NICS Audit Log, including information not yet 
destroyed under Sec. 5.9(b)(1)(iii), that indicates, either on its face 
or in conjunction with other information, a violation or potential 
violation of law or regulation, may be shared with appropriate 
authorities responsible for investigating, prosecuting, and/or enforcing 
such law or regulation; and
    (ii) The NTNs and dates for allowed transactions may be shared with 
ATF in Individual FFL Audit Logs as specified in Sec. 25.9(b)(4).
    (3) Limitation on use. The NICS, including the NICS Audit Log, may 
not be used by any Department, agency, officer, or employee of the 
United States to establish any system for the registration of firearms, 
firearm owners, or firearm transactions or dispositions, except with 
respect to persons prohibited from receiving a firearm by 18 U.S.C. 
922(g) or (n) or by state law. The NICS Audit Log will be monitored and 
reviewed on a regular basis to detect any possible misuse of NICS data.
    (4) Creation and Use of Individual FFL Audit Logs. Upon written 
request from ATF containing the name and license number of the FFL and 
the proposed date of inspection of the named FFL by ATF, the FBI may 
extract information from the NICS Audit Log and create an Individual FFL 
Audit Log for transactions originating at the named FFL for a limited 
period of time. An Individual FFL Audit Log shall contain all 
information on denied transactions, and, with respect to all other 
transactions, only non-identifying information from the transaction. In 
no instance shall an Individual FFL Audit Log contain more than 60 days 
worth of allowed or open transaction records originating at the FFL. The 
FBI will provide POC states the means to provide to the FBI information 
that will allow the FBI to generate Individual FFL Audit Logs in 
connection with ATF inspections of FFLs in POC states. POC states that 
elect not to have the FBI generate Individual FFL Audit Logs for FFLs in 
their states must develop a means by which the POC will provide such 
Logs to ATF.
    (c) The following records in the FBI-operated terminals of the NICS 
will be

[[Page 449]]

subject to the Brady Act's requirements for destruction:
    (1) All inquiry and response messages (regardless of media) relating 
to a background check that results in an allowed transfer; and
    (2) All information (regardless of media) contained in the NICS 
Audit Log relating to a background check that results in an allowed 
transfer.
    (d) The following records of state and local law enforcement units 
serving as POCs will be subject to the Brady Act's requirements for 
destruction:
    (1) All inquiry and response messages (regardless of media) relating 
to the initiation and result of a check of the NICS that allows a 
transfer that are not part of a record system created and maintained 
pursuant to independent state law regarding firearms transactions; and
    (2) All other records relating to the person or the transfer created 
as a result of a NICS check that are not part of a record system created 
and maintained pursuant to independent state law regarding firearms 
transactions.

[Order No. 2186-98, 63 FR 58307, Oct. 30, 1998, as amended by Order No. 
2354-2001, 66 FR 6474, Jan. 22, 2001; Order No. 2727-2004, 69 FR 43900, 
July 23, 2004]



Sec. 25.10  Correction of erroneous system information.

    (a) An individual may request the reason for the denial from the 
agency that conducted the check of the NICS (the ``denying agency,'' 
which will be either the FBI or the state or local law enforcement 
agency serving as a POC). The FFL will provide to the denied individual 
the name and address of the denying agency and the unique transaction 
number (NTN or STN) associated with the NICS background check. The 
request for the reason for the denial must be made in writing to the 
denying agency. (POCs at their discretion may waive the requirement for 
a written request.)
    (b) The denying agency will respond to the individual with the 
reasons for the denial within five business days of its receipt of the 
individual's request. The response should indicate whether additional 
information or documents are required to support an appeal, such as 
fingerprints in appeals involving questions of identity (i.e., a claim 
that the record in question does not pertain to the individual who was 
denied).
    (c) If the individual wishes to challenge the accuracy of the record 
upon which the denial is based, or if the individual wishes to assert 
that his or her rights to possess a firearm have been restored, he or 
she may make application first to the denying agency, i.e., either the 
FBI or the POC. If the denying agency is unable to resolve the appeal, 
the denying agency will so notify the individual and shall provide the 
name and address of the agency that originated the document containing 
the information upon which the denial was based. The individual may then 
apply for correction of the record directly to the agency from which it 
originated. If the record is corrected as a result of the appeal to the 
originating agency, the individual may so notify the denying agency, 
which will, in turn, verify the record correction with the originating 
agency (assuming the originating agency has not already notified the 
denying agency of the correction) and take all necessary steps to 
correct the record in the NICS.
    (d) As an alternative to the above procedure where a POC was the 
denying agency, the individual may elect to direct his or her challenge 
to the accuracy of the record, in writing, to the FBI, NICS Operations 
Center, Criminal Justice Information Services Division, 1000 Custer 
Hollow Road, Module C-3, Clarksburg, West Virginia 26306-0147. Upon 
receipt of the information, the FBI will investigate the matter by 
contacting the POC that denied the transaction or the data source. The 
FBI will request the POC or the data source to verify that the record in 
question pertains to the individual who was denied, or to verify or 
correct the challenged record. The FBI will consider the information it 
receives from the individual and the response it receives from the POC 
or the data source. If the record is corrected as a result of the 
challenge, the FBI shall so notify the individual, correct the erroneous 
information in the NICS, and give notice of the error to any Federal 
department or agency or any state that was the source of such erroneous 
records.

[[Page 450]]

    (e) Upon receipt of notice of the correction of a contested record 
from the originating agency, the FBI or the agency that contributed the 
record shall correct the data in the NICS and the denying agency shall 
provide a written confirmation of the correction of the erroneous data 
to the individual for presentation to the FFL. If the appeal of a 
contested record is successful and thirty (30) days or less have 
transpired since the initial check, and there are no other disqualifying 
records upon which the denial was based, the NICS will communicate a 
``Proceed'' response to the FFL. If the appeal is successful and more 
than thirty (30) days have transpired since the initial check, the FFL 
must recheck the NICS before allowing the sale to continue. In cases 
where multiple disqualifying records are the basis for the denial, the 
individual must pursue a correction for each record.
    (f) An individual may also contest the accuracy or validity of a 
disqualifying record by bringing an action against the state or 
political subdivision responsible for providing the contested 
information, or responsible for denying the transfer, or against the 
United States, as the case may be, for an order directing that the 
contested information be corrected or that the firearm transfer be 
approved.
    (g) An individual may provide written consent to the FBI to maintain 
information about himself or herself in a Voluntary Appeal File to be 
established by the FBI and checked by the NICS for the purpose of 
preventing the future erroneous denial or extended delay by the NICS of 
a firearm transfer. Such file shall be used only by the NICS for this 
purpose. The FBI shall remove all information in the Voluntary Appeal 
File pertaining to an individual upon receipt of a written request by 
that individual. However, the FBI may retain such information contained 
in the Voluntary Appeal File as long as needed to pursue cases of 
identified misuse of the system. If the FBI finds a disqualifying record 
on the individual after his or her entry into the Voluntary Appeal File, 
the FBI may remove the individual's information from the file.

[Order No. 2186-98, 63 FR 58307, Oct. 30, 1998, as amended by Order No. 
2727-2004, 69 FR 43901, July 23, 2004]



Sec. 25.11  Prohibited activities and penalties.

    (a) State or local agencies, FFLs, or individuals violating this 
subpart A shall be subject to a fine not to exceed $10,000 and subject 
to cancellation of NICS inquiry privileges.
    (b) Misuse or unauthorized access includes, but is not limited to, 
the following:
    (1) State or local agencies', FFLs', or individuals' purposefully 
furnishing incorrect information to the system to obtain a ``Proceed'' 
response, thereby allowing a firearm transfer;
    (2) State or local agencies', FFLs', or individuals' purposefully 
using the system to perform a check for unauthorized purposes; and
    (3) Any unauthorized person's accessing the NICS.



   Subpart B_National Motor Vehicle Title Information System (NMVTIS)

    Source: 74 FR 5776, Jan 30, 2009, unless otherwise noted.



Sec. 25.51  Purpose and authority.

    The purpose of this subpart is to establish policies and procedures 
implementing the National Motor Vehicle Title Information System 
(NMVTIS) in accordance with title 49 U.S.C. 30502. The purpose of NMVTIS 
is to assist in efforts to prevent the introduction or reintroduction of 
stolen motor vehicles into interstate commerce, protect states and 
individual and commercial consumers from fraud, reduce the use of stolen 
vehicles for illicit purposes including fundraising for criminal 
enterprises, and provide consumer protection from unsafe vehicles.



Sec. 25.52  Definitions.

    For purposes of this subpart B:
    Acquiring means owning, possessing, handling, directing, or 
controlling.
    Automobile has the same meaning given that term in 49 U.S.C. 
32901(a).

[[Page 451]]

    Certificate of title means a document issued by a state showing 
ownership of an automobile.
    Insurance carrier means an individual or entity engaged in the 
business of underwriting automobile insurance.
    Junk automobile means an automobile that--
    (1) Is incapable of operating on public streets, roads, and 
highways; and
    (2) Has no value except as a source of parts or scrap.
    Junk yard means an individual or entity engaged in the business of 
acquiring or owning junk automobiles for--
    (1) Resale in their entirety or as spare parts; or
    (2) Rebuilding, restoration, or crushing.
    Motor vehicle has the same meaning given that term in 49 U.S.C. 
3102(6).
    NMVTIS means the National Motor Vehicle Title Information System.
    Operator means the individual or entity authorized or designated as 
the operator of NMVTIS under 49 U.S.C. 30502(b), or the office 
designated by the Attorney General, if there is no authorized or 
designated individual or entity.
    Purchaser means the individual or entity buying an automobile or 
financing the purchase of an automobile. For purposes of this subpart, 
purchasers include dealers, auction companies or entities engaged in the 
business of purchasing used automobiles, lenders financing the purchase 
of new or used automobiles, and automobile dealers.
    Salvage automobile means an automobile that is damaged by collision, 
fire, flood, accident, trespass, or other event, to the extent that its 
fair salvage value plus the cost of repairing the automobile for legal 
operation on public streets, roads, and highways would be more than the 
fair market value of the automobile immediately before the event that 
caused the damage. Salvage automobiles include automobiles determined to 
be a total loss under the law of the applicable jurisdiction or 
designated as a total loss by an insurer under the terms of its 
policies, regardless of whether or not the ownership of the vehicle is 
transferred to the insurance carrier.
    Salvage yard means an individual or entity engaged in the business 
of acquiring or owning salvage automobiles for--
    (1) Resale in their entirety or as spare parts; or
    (2) Rebuilding, restoration, or crushing.
    Note to definition of ``Salvage yard'': For purposes of this 
subpart, vehicle remarketers and vehicle recyclers, including scrap 
vehicle shredders and scrap metal processors as well as ``pull- or pick-
apart yards,'' salvage pools, salvage auctions, and other types of 
auctions handling salvage or junk vehicles (including vehicles declared 
a ``total loss''), are included in the definition of ``junk or salvage 
yards.''
    State means a state of the United States or the District of 
Columbia.
    Total loss means that the cost of repairing such vehicles plus 
projected supplements plus projected diminished resale value plus rental 
reimbursement expense exceeds the cost of buying the damaged motor 
vehicle at its pre-accident value, minus the proceeds of selling the 
damaged motor vehicle for salvage.
    VIN means the vehicle identification number;



Sec. 25.53  Responsibilities of the operator of NMVTIS.

    (a) By no later than March 31, 2009, the operator shall make 
available:
    (1) To a participating state on request of that state, information 
in NMVTIS about any automobile;
    (2) To a Government, state, or local law enforcement official on 
request of that official, information in NMVTIS about a particular 
automobile, junk yard, or salvage yard;
    (3) To a prospective purchaser of an automobile on request of that 
purchaser, information in NMVTIS about that automobile; and
    (4) To a prospective or current insurer of an automobile on request 
of that insurer, information in NMVTIS about the automobile.
    (b) NMVTIS shall permit a user of the system to establish instantly 
and reliably:
    (1) The validity and status of a document purporting to be a 
certificate of title;

[[Page 452]]

    (2) Whether an automobile bearing a known VIN is titled in a 
particular state;
    (3) Whether an automobile known to be titled in a particular state 
is or has been a junk automobile or a salvage automobile;
    (4) For an automobile known to be titled in a particular state, the 
odometer mileage disclosure required under 49 U.S.C. 32705 for that 
automobile on the date the certificate of title for that automobile was 
issued and any later mileage information, if noted by the state; and
    (5) Whether an automobile bearing a known VIN has been reported as a 
junk automobile or a salvage automobile under 49 U.S.C. 30504.
    (c) The operator is authorized to seek and accept, with the 
concurrence of the Department of Justice, additional information from 
states and public and private entities that is relevant to the titling 
of automobiles and to assist in efforts to prevent the introduction or 
reintroduction of stolen motor vehicles and parts into interstate 
commerce. The operator, however, may not collect any social security 
account numbers as part of any of the information provided by any state 
or public or private entity. The operator may not make personally 
identifying information contained within NMVTIS, such as the name or 
address of the owner of an automobile, available to an individual 
prospective purchaser. With the approval of the Department of Justice, 
the operator may allow public and private entities that provide 
information to NMVTIS to query the system if such access will assist in 
efforts to prevent the introduction or reintroduction of stolen motor 
vehicles and parts into interstate commerce.
    (d) The operator shall develop and maintain a privacy policy that 
addresses the information in the system and how personal information 
shall be protected. DOJ shall review and approve this privacy policy.
    (e) The means by which access is provided by the operator to users 
of NMVTIS must be approved by the Department of Justice.
    (f) The operator shall biennially establish and at least annually 
collect user fees from the states and users of NMVTIS to pay for its 
operation, but the operator may not collect fees in excess of the costs 
of operating the system. The operator is required to recalculate the 
user fees on a biennial basis. After the operator establishes its 
initial user fees for the states under this section, subsequent state 
user fees must be established at least one year in advance of their 
effective date. Any user fees established by the operator must be 
established with the approval of the Department of Justice. The operator 
of NMVTIS will inform the states of the applicable user fees either 
through publication in the Federal Register or by direct notice or 
invoice to the states.
    (1) The expenses to be recouped by the operator of NMVTIS will 
consist of labor costs, data center operations costs, the cost of 
providing access to authorized users, annual functional enhancement 
costs (including labor and hardware), costs necessary for implementing 
the provisions of this rule, the cost of technical upgrades, and other 
costs approved in advance by the Department of Justice.
    (2) User fees collected from states should be based on the states' 
pro rata share of the total number of titled motor vehicles based on the 
Highway Statistics Program of the Federal Highway Administration, U.S. 
Department of Transportation, except in cases where states did not 
report to that program, in which case the states shall make available 
the most recent statistics for motor vehicle title registrations.
    (3) All states, regardless of their level of participation, shall be 
charged user fees by the operator.
    (4) No fees shall be charged for inquiries from law enforcement 
agencies.
    (g) The operator will establish procedures and practices to 
facilitate reporting to NMVTIS in the least burdensome and costly 
fashion. If the operator is not the Department of Justice, the operator 
must provide an annual report to the Department of Justice detailing the 
fees it collected and how it expended such fees and other funds to 
operate NMVTIS. This report must

[[Page 453]]

also include a status report on the implementation of the system, 
compliance with reporting and other requirements, and sufficient detail 
and scope regarding financial information so that reasonable 
determinations can be made regarding budgeting and performance. The 
operator shall procure an independent financial audit of NMVTIS revenues 
and expenses on an annual basis. The Department of Justice will make 
these reports available for public inspection.



Sec. 25.54  Responsibilities of the States.

    (a) Each state must maintain at least the level of participation in 
NMVTIS that it had achieved as of January 1, 2009. By no later than 
January 1, 2010, each state must have completed implementation of all 
requirements of participation and provide, or cause to be provided by an 
agent or third party, to the designated operator and in an electronic 
format acceptable to the operator, at a frequency of once every 24 
hours, titling information for all automobiles maintained by the state. 
The titling information provided to NMVTIS must include the following:
    (1) VIN;
    (2) Any description of the automobile included on the certificate of 
title (including any and all brands associated with such vehicle);
    (3) The name of the individual or entity to whom the certificate was 
issued;
    (4) Information from junk or salvage yard operators or insurance 
carriers regarding the acquisition of junk automobiles or salvage 
automobiles, if this information is being collected by the state; and
    (5) For an automobile known to be titled in a particular state, the 
odometer mileage disclosure required under 49 U.S.C. 32705 for that 
automobile on the date the certificate of title for that automobile was 
issued and any later mileage information, if noted by the state.
    (b) With the approval of the operator and the state, the titling 
information provided to NMVTIS may include any other information 
included on the certificates of title and any other information the 
state maintains in relation to these titles.
    (c) By no later than January 1, 2010, each state shall establish a 
practice of performing a title verification check through NMVTIS before 
issuing a certificate of title to an individual or entity claiming to 
have purchased an automobile from an individual or entity in another 
state or in cases of title transfers. The check will consist of--
    (1) Communicating to the operator the VIN of the automobile for 
which the certificate of title is sought;
    (2) Giving the operator an opportunity to communicate to the 
participating state the results of a search of the information and using 
the results to determine the validity and status of a document 
purporting to be a certification of title, to determine whether the 
automobile has been a junk or salvage vehicle or has been reported as 
such, to compare and verify the odometer information presented with that 
reported in the system, and to determine the validity of other 
information presented (e.g., lien-holder status, etc.).
    (d) By January 1, 2010, those states not currently paying user fees 
will be responsible for paying user fees as established by the operator 
to support NMVTIS.



Sec. 25.55  Responsibilities of insurance carriers.

    (a) By no later than March 31, 2009, and on a monthly basis as 
designated by the operator, any individual or entity acting as an 
insurance carrier conducting business within the United States shall 
provide, or cause to be provided on its behalf, to the operator and in a 
format acceptable to the operator, a report that contains an inventory 
of all automobiles of the current model year or any of the four prior 
model years that the carrier, during the past month, has obtained 
possession of and has decided are junk automobiles or salvage 
automobiles. An insurance carrier shall report on any automobiles that 
it has determined to be a total loss under the law of the applicable 
jurisdiction (i.e. , state) or designated as a total loss by the 
insurance company under the terms of its policies.
    (b) The inventory must contain the following information:

[[Page 454]]

    (1) The name, address, and contact information for the reporting 
entity (insurance carrier);
    (2) VIN;
    (3) The date on which the automobile was obtained or designated as a 
junk or salvage automobile;
    (4) The name of the individual or entity from whom the automobile 
was obtained and who possessed it when the automobile was designated as 
a junk or salvage automobile; and
    (5) The name of the owner of the automobile at the time of the 
filing of the report.
    (c) Insurance carriers are strongly encouraged to provide the 
operator with information on other motor vehicles or other information 
relevant to a motor vehicle's title, including the reason why the 
insurance carrier obtained possession of the motor vehicle. For example, 
the insurance carrier may have obtained possession of a motor vehicle 
because it had been subject to flood, water, collision, or fire damage, 
or as a result of theft and recovery. The provision of information 
provided by an insurance carrier under this paragraph must be pursuant 
to a means approved by the operator.
    (d) Insurance carriers whose required data is provided to the 
operator through an operator-authorized third party in a manner 
acceptable to the operator are not required to duplicate such reporting. 
For example, if the operator and a private third-party organization 
reach agreement on the provision of insurance data already reported by 
insurance to the third party, insurance companies are not required to 
subsequently report the information directly into NMVTIS.



Sec. 25.56  Responsibilities of junk yards and salvage yards and auto recyclers.

    (a) By no later than March 31, 2009, and continuing on a monthly 
basis as designated by the operator, any individual or entity engaged in 
the business of operating a junk yard or salvage yard within the United 
States shall provide, or cause to be provided on its behalf, to the 
operator and in a format acceptable to the operator, an inventory of all 
junk automobiles or salvage automobiles obtained in whole or in part by 
that entity in the prior month.
    (b) The inventory shall include the following information:
    (1) The name, address, and contact information for the reporting 
entity (junk, salvage yard, recycler);
    (2) VIN;
    (3) The date the automobile was obtained;
    (4) The name of the individual or entity from whom the automobile 
was obtained;
    (5) A statement of whether the automobile was crushed or disposed 
of, for sale or other purposes, to whom it was provided or transferred, 
and if the vehicle is intended for export out of the United States.
    (c) Junk and salvage yards, however, are not required to report this 
information if they already report the information to the state and the 
state makes the information required in this rule available to the 
operator.
    (d) Junk and salvage yards may be required to file an update or 
supplemental report of final disposition of any automobile where final 
disposition information was not available at the time of the initial 
report filing, or if their actual disposition of the automobile differs 
from what was initially reported.
    (e) Junk and salvage yards are encouraged to provide the operator 
with similar information on motor vehicles other than automobiles that 
they obtain that possess VINs.
    (f) Junk- and salvage-yard operators whose required data is provided 
to the operator through an operator-authorized third party (e.g., state 
or other public or private organization) in a manner acceptable to the 
operator are not required to duplicate such reporting. In addition, junk 
and salvage yards are not required to report on an automobile if they 
are issued a verification under 49 U.S.C. 33110 stating that the 
automobile or parts from the automobile are not reported as stolen.
    (g) Such entities must report all salvage or junk vehicles they 
obtain, including vehicles from or on behalf of

[[Page 455]]

insurance carriers, which can be reasonably assumed are total loss 
vehicles. Such entities, however, are not required to report any vehicle 
that is determined not to meet the definition of salvage or junk after a 
good-faith physical and value appraisal conducted by qualified appraisal 
personnel, so long as such appraisals are conducted entirely independent 
of any other interests, persons or entities. Individuals and entities 
that handle less than five vehicles per year that are determined to be 
salvage, junk, or total loss are not required to report under the 
salvage-yard requirements.
    (h) Scrap metal processors and shredders that receive automobiles 
for recycling where the condition of such vehicles generally prevent 
VINs from being identified are not required to report to the operator if 
the source of each vehicle has already reported the vehicle to NMVTIS. 
In cases where a supplier's compliance with NMVTIS cannot be 
ascertained, however, scrap metal processors and shredders must report 
these vehicles to the operator based on a visual inspection if possible. 
If the VIN cannot be determined based on this inspection, scrap metal 
processors and shredders may rely on primary documentation (i.e., title 
documents) provided by the vehicle supplier.



Sec. 25.57  Erroneous junk or salvage reporting.

    (a) In cases where a vehicle is erroneously reported to have been 
salvage or junk and subsequently destroyed (i.e., crushed), owners of 
the legitimate vehicles are encouraged to seek a vehicle inspection in 
the current state of title whereby inspection officials can verify via 
hidden VINs the vehicle's true identity. Owners are encouraged to file 
such inspection reports with the current state of title and to retain 
such reports so that the vehicle's true history can be documented.
    (b) To avoid the possibility of fraud, the operator may not allow 
any entity to delete a prior report of junk or salvage status.



PART 26_DEATH SENTENCES PROCEDURES--Table of Contents




Sec.

      Subpart A_Implementation of Death Sentences in Federal Cases

26.1 Applicability.
26.2 Proposed Judgment and Order.
26.3 Date, time, place, and method of execution.
26.4 Other execution procedures.
26.5 Attendance at or participation in executions by Department of 
          Justice personnel.

    Subpart B_Certification Process for State Capital Counsel Systems

26.20 Purpose.
26.21 Definitions.
26.22 Requirements.
26.23 Certification process.

    Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509, 
510, 2261, 2265.

    Source: Order No. 1655-93, 57 FR 4901, Jan. 19, 1993, unless 
otherwise noted.



      Subpart A_Implementation of Death Sentences in Federal Cases



Sec. 26.1  Applicability.

    The regulations of this part apply whenever a sentencing hearing 
conducted in a United States District Court has resulted in a 
recommendation or determination that a criminal defendant be sentenced 
to death for commission of an offense described in any federal statute.



Sec. 26.2  Proposed Judgment and Order.

    (a) Whenever this part becomes applicable, the attorney for the 
government shall promptly file with the sentencing court a proposed 
Judgment and Order. The proposed Judgment and Order shall state, in 
addition to any other matters required by law or otherwise appropriate, 
that:
    (1) The sentence shall be executed by a United States Marshal 
designated by the Director of the United States Marshals Service;
    (2) The sentence shall be executed by intravenous injection of a 
lethal substance or substances in a quantity sufficient to cause death;

[[Page 456]]

    (3) The sentence shall be executed on a date and at a place 
designated by the Director of the Federal Bureau of Prisons; and
    (4) The prisoner under sentence of death shall be committed to the 
custody of the Attorney General or his authorized representative for 
appropriate detention pending execution of the sentence.
    (b) The attorney for the government shall append to the proposed 
Judgment and Order a Return by which the designated United States 
Marshal may inform the court that the sentence of death has been 
executed.



Sec. 26.3  Date, time, place, and method of execution.

    (a) Except to the extent a court orders otherwise, a sentence of 
death shall be executed:
    (1) On a date and at a time designated by the Director of the 
Federal Bureau of Prisons, which date shall be no sooner than 60 days 
from the entry of the judgment of death. If the date designated for 
execution passes by reason of a stay of execution, then a new date shall 
be designated promptly by the Director of the Federal Bureau of Prisons 
when the stay is lifted;
    (2) At a federal penal or correctional institution designated by the 
Director of the Federal Bureau of Prisons;
    (3) By a United States Marshal designated by the Director of the 
United States Marshals Service, assisted by additional personnel 
selected by the Marshal and the Warden of the designated institution and 
acting at the direction of the Marshal; and
    (4) By intravenous injection of a lethal substance or substances in 
a quantity sufficient to cause death, such substance or substances to be 
determined by the Director of the Federal Bureau of Prisons and to be 
administered by qualified personnel selected by the Warden and acting at 
the direction of the Marshal.
    (b) Unless the President interposes, the United States Marshal shall 
not stay execution of the sentence on the basis that the prisoner has 
filed a petition for executive clemency.



Sec. 26.4  Other execution procedures.

    Except to the extent a court orders otherwise:
    (a) The Warden of the designated institution shall notify the 
prisoner under sentence of death of the date designated for execution at 
least 20 days in advance, except when the date follows a postponement of 
fewer than 20 days of a previously scheduled and noticed date of 
execution, in which case the Warden shall notify the prisoner as soon as 
possible.
    (b) Beginning seven days before the designated date of execution, 
the prisoner shall have access only to his spiritual advisers (not to 
exceed two), his defense attorneys, members of his family, and the 
officers and employees of the institution. Upon approval of the Director 
of the Federal Bureau of Prisons, the Warden may grant access to such 
other proper persons as the prisoner may request.
    (c) In addition to the Marshal and Warden, the following persons 
shall be present at the execution:
    (1) Necessary personnel selected by the Marshal and Warden;
    (2) Those attorneys of the Department of Justice whom the Deputy 
Attorney General determines are necessary;
    (3) Not more than the following numbers of person selected by the 
prisoner:
    (i) One spiritual adviser;
    (ii) Two defense attorneys; and
    (iii) Three adult friends or relatives; and
    (4) Not more than the following numbers of persons selected by the 
Warden:
    (i) Eight citizens; and
    (ii) Ten representatives of the press.
    (d) No other person shall be present at the execution, unless leave 
for such person's presence is granted by the Director of the Federal 
Bureau of Prisons. No person younger than 18 years of age shall witness 
the execution.
    (e) The Warden should notify those individuals described in 
paragraph (c) of this section as soon as practicable before the 
designated time of execution.
    (f) No photographic or other visual or audio recording of the 
execution shall be permitted.
    (g) After the execution has been carried out, qualified personnel 
selected

[[Page 457]]

by the Warden shall conduct an examination of the body of the prisoner 
to determine that death has occurred and shall inform the Marshal and 
Warden of his determination. Upon notification of prisoner's death, the 
Marshal shall complete and sign the Return described in Sec. 26.2(b) or 
any similar document and shall file such document with the sentencing 
court.
    (h) The remains of the prisoner shall be disposed of according to 
procedures established by the Director of the Federal Bureau of Prisons.



Sec. 26.5  Attendance at or participation in executions by Department
of Justice personnel.

    No officer or employee of the Department of Justice shall be 
required to be in attendance at or to participate in any execution if 
such attendance or participation is contrary to the moral or religious 
convictions of the officer or employee, or if the employee is a medical 
professional who considers such participation or attendance contrary to 
medical ethics. For purposes of this section, the term ``participation'' 
includes personal preparation of the condemned individual and the 
apparatus used for execution and supervision of the activities of other 
personnel in carrying out such activities.



    Subpart B_Certification Process for State Capital Counsel Systems

    Source: AG Order 3024-2008, 73 FR 75338, Dec. 11, 2008, unless 
otherwise noted.



Sec. 26.20  Purpose.

    Sections 2261(b)(1) and 2265(a) of title 28 of the United States 
Code require the Attorney General to certify whether a state has a 
mechanism for providing legal representation to indigent prisoners in 
state postconviction proceedings in capital cases that satisfies the 
requirements of chapter 154 of title 28. If certification is granted, 
sections 2262, 2263, 2264, and 2266 of chapter 154 of title 28 apply in 
relation to federal habeas corpus review of capital cases from the 
state. Subsection (b) of 28 U.S.C. 2265 directs the Attorney General to 
promulgate regulations to implement the certification procedure under 
subsection (a) of that section.



Sec. 26.21  Definitions.

    For purposes of this part, the term--
    Appropriate state official means the State Attorney General, except 
that, in a state in which the State Attorney General does not have 
responsibility for federal habeas corpus litigation, it means the Chief 
Executive thereof.
    State postconviction proceedings means collateral proceedings in 
state court, regardless of whether the state conducts such proceedings 
after or concurrently with direct state review.



Sec. 26.22  Requirements.

    A state meets the requirements for certification under 28 U.S.C. 
2261 and 2265 if the Attorney General determines each of the following 
to be satisfied:
    (a) The state has established a mechanism for the appointment of 
counsel for indigent prisoners under sentence of death in state 
postconviction proceedings. As provided in 28 U.S.C. 2261(c) and (d), 
the mechanism must offer to all such prisoners postconviction counsel, 
who may not be counsel who previously represented the prisoner at trial 
unless the prisoner and counsel expressly request continued 
representation, and the mechanism must provide for the entry of an order 
by a court of record--
    (1) Appointing one or more attorneys as counsel to represent the 
prisoner upon a finding that the prisoner is indigent and accepted the 
offer or is unable competently to decide whether to accept or reject the 
offer;
    (2) Finding, after a hearing if necessary, that the prisoner 
rejected the offer of counsel and made the decision with an 
understanding of its legal consequences; or
    (3) Denying the appointment of counsel, upon a finding that the 
prisoner is not indigent.

    Example 1. A state provides that attorneys in a public defender's 
office are to be appointed to represent indigent capital defendants in 
state postconviction proceedings in capital cases. The counsel 
appointment mechanism otherwise satisfies the requirements of 28 U.S.C. 
2261(c) and (d). Such a mechanism would satisfy the chapter 154 
requirement relating to appointment of counsel.

[[Page 458]]

    Example 2. A state provides that in any capital case in which a 
defendant is found to be indigent, the court shall appoint counsel for 
state postconviction proceedings from a list of attorneys available to 
represent defendants in a manner consistent with 28 U.S.C. 2261(c) and 
(d). Such a mechanism would satisfy the chapter 154 requirement relating 
to appointment of counsel.
    Example 3. State law provides that local jurisdictions are to 
determine whether counsel is appointed for indigents in state 
postconviction proceedings in capital cases and not all jurisdictions 
provide for the appointment of such counsel. This mechanism would not 
satisfy the chapter 154 requirement relating to appointment of counsel.
    (b) The state has established a mechanism for compensation of 
appointed counsel in state postconviction proceedings in capital cases.
    Example 1. A state sets hourly rates and allowances for compensation 
of capital counsel, with judicial discretion to authorize additional 
compensation if necessary in particular cases. For example, state law 
may provide that capital counsel in state postconviction proceedings 
will be paid an hourly rate not to exceed $100 for up to 200 hours of 
work, and that these caps can be judicially waived if compensation would 
otherwise be unreasonable. Such a system would meet this requirement, as 
the state has established a mechanism to compensate counsel in state 
postconviction proceedings.
    Example 2. A state provides that attorneys in a public defender's 
office are to be appointed to serve as counsel for indigent defendants 
in capital postconviction proceedings. The attorney's compensation is 
his or her regular salary provided by the public defender's office. Such 
a system would meet the requirement of establishing a mechanism to 
compensate counsel in state postconviction proceedings.
    Example 3. A state appoints attorneys who serve on a volunteer basis 
as counsel for indigent defendants in all capital postconviction 
proceedings. There is no provision for compensation of appointed counsel 
by the state. Such a system would not meet the requirement regarding 
compensation of counsel.
    (c) The state has established a mechanism for the payment of 
reasonable litigation expenses of appointed counsel in state 
postconviction proceedings in capital cases.
    Example 1. A state may simply authorize the court to approve payment 
of reasonable litigation expenses. For example, state law may provide 
that the court shall order reimbursement of counsel for expenses if the 
expenses are reasonably necessary and reasonably incurred. Such a system 
would meet the requirement of establishing a mechanism for payment of 
reasonable litigation expenses.
    Example 2. A state authorizes reimbursement of counsel for 
litigation expenses up to a set cap, but with allowance for judicial 
authorization to reimburse expenses above that level if necessary. This 
system would parallel the approach in postconviction proceedings in 
federal capital cases and in federal habeas corpus review of state 
capital cases under 18 U.S.C. 3599(a)(2), (f), (g)(2), which sets a 
presumptive cap of $7,500 but provides a procedure for judicial 
authorization of greater amounts. Such a system would meet the 
requirement of establishing a mechanism for payment of reasonable 
litigation expenses as required for certification under chapter 154.
    Example 3. State law authorizes reimbursement of counsel for 
litigation expenses in capital postconviction proceedings up to $1000. 
There is no authorization for payment of litigation expenses above that 
set cap, even if the expenses are determined by the court to be 
reasonably necessary and reasonably incurred. This mechanism would not 
satisfy the chapter 154 requirement regarding payment of reasonable 
litigation expenses.
    (d) The state provides competency standards for the appointment of 
counsel representing indigent prisoners in capital cases in state 
postconviction proceedings.
    Example 1. A state requires that postconviction counsel must have 
been a member of the state bar for at least five years and have at least 
three years of felony litigation experience. This standard is similar to 
that set by federal law for appointed counsel for indigent defendants in 
postconviction proceedings in federal capital cases, and in federal 
habeas corpus review of state capital cases, under 18 U.S.C. 3599(a)(2), 
(c). Because this state has adopted standards of competency, it meets 
this requirement.
    Example 2. A state appoints counsel for indigent capital defendants 
in postconviction proceedings from a public defender's office. The 
appointed defender must be an attorney admitted to practice law in the 
state and must possess demonstrated experience in the litigation of 
capital cases. This state would meet the requirement of having 
established standards of competency for postconviction capital counsel.
    Example 3. A state law requires some combination of training and 
litigation experience. For example, state law might provide that in 
order to represent an indigent defendant in state postconviction 
proceedings in a capital case an attorney must--(1) Have attended at 
least twelve hours of training or educational programs on postconviction 
criminal litigation and the defense of capital

[[Page 459]]

cases; (2) have substantial felony trial experience; and (3) have 
participated as counsel or co-counsel in at least five appeals or 
postconviction review proceedings relating to violent felony 
convictions. This State would meet the requirement of having established 
standards of competency for postconviction capital counsel.
    Example 4. State law allows any attorney licensed by the state bar 
to practice law to represent indigent capital defendants in 
postconviction proceedings. No effort is made to set further standards 
or guidelines for such representation. Such a mechanism would not meet 
the requirement of having established standards of competency for 
postconviction capital counsel.



Sec. 26.23  Certification process.

    (a) An appropriate state official may request that the Attorney 
General determine whether the state meets the requirements for 
certification under Sec. 26.22.
    (b) The request shall include:
    (1) An attestation by the submitting state official that he or she 
is the ``appropriate state official'' as defined in Sec. 26.21; and
    (2) An affirmation by the state that it has provided notice of its 
request for certification to the chief or presiding justice or judge of 
the state's highest court with jurisdiction over criminal matters.
    (c) Upon receipt of a state's request for certification, the 
Attorney General will publish a notice in the Federal Register--
    (1) Indicating that the state has requested certification;
    (2) Listing any statutes, regulations, rules, policies, and other 
authorities identified by the state in support of the request; and
    (3) Soliciting public comment on the request.
    (d) The state's request will be reviewed by the Attorney General, 
who may, at any time, request supplementary information from the state 
or advise the state of any deficiencies that would need to be remedied 
in order to obtain certification. The review will include consideration 
of timely public comments received in response to the Federal Register 
notice under paragraph (c) of this section. The certification will be 
published in the Federal Register if certification is granted. The 
certification will include a determination of the date the capital 
counsel mechanism qualifying the state for certification was 
established.
    (e) Upon certification by the Attorney General that a state meets 
the requirements of Sec. 26.22, such certification is final and will 
not be reopened. Subsequent changes in a state's mechanism for providing 
legal representation to indigent prisoners in state postconviction 
proceedings in capital cases do not affect the validity of a prior 
certification or the applicability of chapter 154 in any case in which a 
mechanism certified by the Attorney General existed during state 
postconviction proceedings in the case. However, a state may request a 
new certification by the Attorney General to resolve uncertainties 
concerning or meet challenges to the applicability of chapter 154 in 
relation to federal habeas corpus review of capital cases from the state 
based on changes or alleged changes in the state's capital counsel 
mechanism.



PART 27_WHISTLEBLOWER PROTECTION FOR FEDERAL BUREAU OF INVESTIGATION
EMPLOYEES--Table of Contents




             Subpart A_Protected Disclosures of Information

Sec.
27.1 Making a protected disclosure.
27.2 Prohibition against reprisal for making a protected disclosure.

  Subpart B_Investigating Reprisal Allegations and Ordering Corrective 
                                 Action

27.3 Investigations: The Department of Justice's Office of Professional 
          Responsibility and Office of the Inspector General.
27.4 Corrective action and other relief; Director, Office of Attorney 
          Recruitment and Management.
27.5 Review.
27.6 Extensions of time.

    Authority: 5 U.S.C. 301, 3151; 28 U.S.C. 509, 510, 515-519; 5 U.S.C. 
2303; President's Memorandum to the Attorney General, Delegation of 
Responsibilities Concerning FBI Employees Under the Civil Service Reform 
Act of 1978, 3 CFR p. 284 (1997).

    Source: Order No. 2264-99, 64 FR 58786, Nov. 1, 1999, unless 
otherwise noted.

[[Page 460]]



             Subpart A_Protected Disclosures of Information



Sec. 27.1  Making a protected disclosure.

    (a) When an employee of, or applicant for employment with, the 
Federal Bureau of Investigation (FBI) (FBI employee) makes a disclosure 
of information to the Department of Justice's (Department's) Office of 
Professional Responsibility (OPR), the Department's Office of Inspector 
General (OIG), the FBI Office of Professional Responsibility (FBI OPR), 
the FBI Inspection Division (FBI-INSD) Internal Investigations Section 
(collectively, Receiving Offices), the Attorney General, the Deputy 
Attorney General, the Director of the FBI, the Deputy Director of the 
FBI, or to the highest ranking official in any FBI field office, the 
disclosure will be a ``protected disclosure'' if the person making it 
reasonably believes that it evidences:
    (1) A violation of any law, rule or regulation; or
    (2) Mismanagement, a gross waste of funds, an abuse of authority, or 
a substantial and specific danger to public health or safety.
    (b) Any office or official (other than the OIG or OPR) receiving a 
protected disclosure shall promptly report such disclosure to the OIG or 
OPR for investigation. The OIG and OPR shall proceed in accordance with 
procedures establishing their respective jurisdiction. The OIG or OPR 
may refer such allegations to FBI-INSD Internal Investigations Section 
for investigation unless the Deputy Attorney General determines that 
such referral shall not be made.

[Order No. 2926-2008, 73 FR 1495, Jan. 9, 2008]



Sec. 27.2  Prohibition against reprisal for making a protected disclosure.

    (a) Any employee of the FBI, or of any other component of the 
Department, who has authority to take, direct others to take, recommend, 
or approve any personnel action shall not, with respect to such 
authority, take or fail to take, or threaten to take or fail to take, a 
personnel action, as defined below, with respect to any FBI employee as 
a reprisal for a protected disclosure.
    (b) Personnel action means any action described in clauses (i) 
through (xi) of 5 U.S.C. 2302(a)(2)(A) taken with respect to an FBI 
employee other than one in a position which the Attorney General has 
designated in advance of encumbrance as being a position of a 
confidential, policy-determining, policy-making, or policy-advocating 
character.



  Subpart B_Investigating Reprisal Allegations and Ordering Corrective 
                                 Action



Sec. 27.3  Investigations: The Department of Justice's Office of 
Professional Responsibility and Office of the Inspector General.

    (a)(1) An FBI employee who believes that another employee of the 
FBI, or of any other Departmental component, has taken or has failed to 
take a personnel action as a reprisal for a protected disclosure 
(reprisal), may report the alleged reprisal to either the Department's 
OPR or the Department's OIG (collectively, Investigative Offices). The 
report of an alleged reprisal must be made in writing.
    (2) For purposes of this subpart, references to the FBI include any 
other Departmental component in which the person or persons accused of 
the reprisal were employed at the time of the alleged reprisal.
    (b) The Investigative Office that receives the report of an alleged 
reprisal shall consult with the other Investigative Office to determine 
which office is more suited, under the circumstances, to conduct an 
investigation into the allegation. The Attorney General retains final 
authority to designate or redesignate the Investigative Office that will 
conduct an investigation.
    (c) Within 15 calendar days of the date the allegation of reprisal 
is first received by an Investigative Office, the office that will 
conduct the investigation (Conducting Office) shall provide written 
notice to the person who made the allegation (Complainant) indicating--
    (1) That the allegation has been received; and
    (2) The name of a person within the Conducting Office who will serve 
as a contact with the Complainant.

[[Page 461]]

    (d) The Conducting Office shall investigate any allegation of 
reprisal to the extent necessary to determine whether there are 
reasonable grounds to believe that a reprisal has been or will be taken.
    (e) Within 90 calendar days of providing the notice required in 
paragraph (c) of this section, and at least every 60 calendar days 
thereafter (or at any other time if the Conducting Office deems 
appropriate), the Conducting Office shall notify the Complainant of the 
status of the investigation.
    (f) The Conducting Office shall determine whether there are 
reasonable grounds to believe that there has been or will be a reprisal 
for a protected disclosure. The Conducting Office shall make this 
determination within 240 calendar days of receiving the allegation of 
reprisal unless the Complainant agrees to an extension.
    (g) If the Conducting Office decides to terminate an investigation, 
it shall provide, no later than 10 business days before providing the 
written statement required by paragraph (h) of this section, a written 
status report to the Complainant containing the factual findings and 
conclusions justifying the termination of the investigation. The 
Complainant may submit written comments on such report to the Conducting 
Office. The Conducting Office shall not be required to provide a 
subsequent written status report after submission of such comments.
    (h) If the Conducting Office terminates an investigation, it shall 
prepare and transmit to the Complainant a written statement notifying 
him/her of--
    (1) The termination of the investigation;
    (2) A summary of relevant facts ascertained by the Conducting 
Office;
    (3) The reasons for termination of the investigation; and
    (4) A response to any comments submitted under paragraph (g) of this 
section.
    (i) Such written statement prepared pursuant to paragraph (h) of 
this section may not be admissible as evidence in any subsequent 
proceeding without the consent of the Complainant.
    (j) Nothing in this part shall prohibit the Receiving Offices, in 
the absence of a reprisal allegation by an FBI employee under this part, 
from conducting an investigation, under their pre-existing jurisdiction, 
to determine whether a reprisal has been or will be taken.



Sec. 27.4  Corrective action and other relief; Director, Office of
Attorney Recruitment and Management.

    (a) If, in connection with any investigation, the Conducting Office 
determines that there are reasonable grounds to believe that a reprisal 
has been or will be taken, the Conducting Office shall report this 
conclusion, together with any findings and recommendations for 
corrective action, to the Director, Office of Attorney Recruitment and 
Management (the Director). If the Conducting Office's report to the 
Director includes a recommendation for corrective action, the Director 
shall provide an opportunity for comments on the report by the FBI and 
the Complainant. The Director, upon receipt of the Conducting Office's 
report, shall proceed in accordance with paragraph (e) of this section. 
A determination by the Conducting Office that there are reasonable 
grounds to believe a reprisal has been or will be taken shall not be 
cited or referred to in any proceeding under these regulations, without 
the Complainant's consent.
    (b) At any time, the Conducting Office may request the Director to 
order a stay of any personnel action for 45 calendar days if it 
determines that there are reasonable grounds to believe that a reprisal 
has been or is to be taken. The Director shall order such stay within 
three business days of receiving the request for stay, unless the 
Director determines that, under the facts and circumstances involved, 
such a stay would not be appropriate. The Director may extend the period 
of any stay granted under this paragraph for any period that the 
Director considers appropriate. The Director shall allow the FBI an 
opportunity to comment to the Director on any proposed extension of a 
stay, and may request additional information as the Director deems 
necessary. The Director may terminate a stay at any time, except that no 
such

[[Page 462]]

termination shall occur until the Complainant and the Conducting Office 
shall first have had notice and an opportunity to comment.
    (c)(1) The Complainant may present a request for corrective action 
directly to the Director within 60 calendar days of receipt of 
notification of termination of an investigation by the Conducting Office 
or at any time after 120 calendar days from the date the Complainant 
first notified an Investigative Office of an alleged reprisal if the 
Complainant has not been notified by the Conducting Office that it will 
seek corrective action. The Director shall notify the FBI of the receipt 
of the request and allow the FBI 25 calendar days to respond in writing. 
If the Complainant presents a request for corrective action to the 
Director under this paragraph, the Conducting Office may continue to 
seek corrective action specific to the Complainant, including the 
submission of a report to the Director, only with the Complainant's 
consent. Notwithstanding the Complainant's refusal of such consent, the 
Conducting Office may continue to investigate any violation of law, 
rule, or regulation.
    (2) The Director may not direct the Conducting Office to reinstate 
an investigation that the Conducting Office has terminated in accordance 
with Sec. 27.3(h).
    (d) Where a Complainant has presented a request for corrective 
action to the Director under paragraph (c) of this section, the 
Complainant may at any time request the Director to order a stay of any 
personnel action allegedly taken or to be taken in reprisal for a 
protected disclosure. The request for a stay must be in writing, and the 
FBI shall have an opportunity to respond. The request shall be granted 
within 10 business days of the receipt of any response by the FBI if the 
Director determines that such a stay would be appropriate. A stay 
granted under this paragraph shall remain in effect for such period as 
the Director deems appropriate. The Director may modify or dissolve a 
stay under this paragraph at any time if the Director determines that 
such a modification or dissolution is appropriate.
    (e)(1) The Director shall determine, based upon all the evidence, 
whether a protected disclosure was a contributing factor in a personnel 
action taken or to be taken. Subject to paragraph (e)(2) of this 
section, if the Director determines that a protected disclosure was a 
contributing factor in a personnel action taken or to be taken, the 
Director shall order corrective action as the Director deems 
appropriate. The Director may conclude that the disclosure was a 
contributing factor in the personnel action based upon circumstantial 
evidence, such as evidence that the employee taking the personnel action 
knew of the disclosure and that the personnel action occurred within a 
period of time such that a reasonable person could conclude that the 
disclosure was a contributing factor in the personnel action.
    (2) Corrective action may not be ordered if the FBI demonstrates by 
clear and convincing evidence that it would have taken the same 
personnel action in the absence of such disclosure.
    (3) In making the determinations required under this subsection, the 
Director may hold a hearing at which the Complainant may present 
evidence in support of his or her claim, in accordance with such 
procedures as the Director may adopt. The Director is hereby authorized 
to compel the attendance and testimony of, or the production of 
documentary or other evidence from, any person employed by the 
Department if doing so appears reasonably calculated to lead to the 
discovery of admissible evidence, is not otherwise prohibited by law or 
regulation, and is not unduly burdensome. Any privilege available in 
judicial and administrative proceedings relating to the disclosure of 
documents or the giving of testimony shall be available before the 
Director. All assertions of such privileges shall be decided by the 
Director. The Director may, upon request, certify a ruling on an 
assertion of privilege for review by the Deputy Attorney General.
    (f) If the Director orders corrective action, such corrective action 
may include: placing the Complainant, as nearly as possible, in the 
position he would have been in had the reprisal not taken place; 
reimbursement for attorneys fees, reasonable costs, medical costs 
incurred, and travel expenses;

[[Page 463]]

back pay and related benefits; and any other reasonable and foreseeable 
consequential damages.
    (g) If the Director determines that there has not been a reprisal, 
the Director shall report this finding in writing to the complainant, 
the FBI, and the Conducting Office.

[Order No. 2264-99, 64 FR 58786, Nov. 1, 1999, as amended by Order No. 
2492-2001, 66 FR 37904, July 20, 2001; Order No. 2926-2008, 73 FR 1495, 
Jan. 9, 2008]



Sec. 27.5  Review.

    The Complainant or the FBI may request, within 30 calendar days of a 
final determination or corrective action order by the Director, review 
by the Deputy Attorney General of that determination or order. The 
Deputy Attorney General shall set aside or modify the Director's 
actions, findings, or conclusions found to be arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance with law; obtained 
without procedures required by law, rule, or regulation having been 
followed; or unsupported by substantial evidence. The Deputy Attorney 
General has full discretion to review and modify corrective action 
ordered by the Director, provided, however that if the Deputy Attorney 
General upholds a finding that there has been a reprisal, then the 
Deputy Attorney general shall order appropriate corrective action.



Sec. 27.6  Extensions of time.

    The Director may extend, for extenuating circumstances, any of the 
time limits provided in these regulations relating to proceedings before 
him and to requests for review by the Deputy Attorney General.



PART 28_DNA IDENTIFICATION SYSTEM--Table of Contents




    Subpart A_Qualifying Federal Offenses for Purposes of DNA Sample 
                               Collection

Sec.
28.1 Purpose.
28.2 Determination of offenses.

         Subpart B_DNA Sample Collection, Analysis, and Indexing

28.11 Definitions.
28.12 Collection of DNA samples.
28.13 Analysis and indexing of DNA samples.

              Subpart C_Preservation of Biological Evidence

28.21 Purpose.
28.22 The requirement to preserve biological evidence.
28.23 Evidence subject to the preservation requirement.
28.24 Exceptions based on the results of judicial proceedings.
28.25 Exceptions based on a defendant's conduct.
28.26 Exceptions based on the nature of the evidence.
28.27 Non-preemption of other requirements.
28.28 Sanctions for violations.

    Authority: 28 U.S.C. 509, 510; 42 U.S.C. 14132, 14135a, 14135b; 10 
U.S.C. 1565; 18 U.S.C. 3600A; Public Law 106-546, 114 Stat. 2726; Public 
Law 107-56, 115 Stat. 272; Public Law 108-405, 118 Stat. 2260; Public 
Law 109-162, 119 Stat. 2960; Public Law 109-248, 120 Stat. 587.

    Source: Order No. 2699-2003, 68 FR 74858, Dec. 29, 2003, unless 
otherwise noted.



    Subpart A_Qualifying Federal Offenses for Purposes of DNA Sample 
                               Collection



Sec. 28.1  Purpose.

    Section 3 of Pub. L. 106-546 directs the collection, analysis, and 
indexing of a DNA sample from each individual in the custody of the 
Bureau of Prisons or under the supervision of a probation office who is, 
or has been, convicted of a qualifying Federal offense. Subsection (d) 
of that section states that the offenses that shall be treated as 
qualifying Federal offenses are any felony and certain other types of 
offenses, as determined by the Attorney General.

[Order No. 2753-2005, 70 FR 4767, Jan. 31, 2005]



Sec. 28.2  Determination of offenses.

    (a) Felony means a Federal offense that would be classified as a 
felony under 18 U.S.C. 3559(a) or that is specifically classified by a 
letter grade as a felony.
    (b) The following offenses shall be treated for purposes of section 
3 of Pub. L. 106-546 as qualifying Federal offenses:
    (1) Any felony.

[[Page 464]]

    (2) Any offense under chapter 109A of title 18, United States Code, 
even if not a felony.
    (3) Any offense under any of the following sections of the United 
States Code, even if not a felony:
    (i) In title 18, section 111, 112(b) involving intimidation or 
threat, 113, 115, 245, 247, 248 unless the offense involves only a 
nonviolent physical obstruction and is not a felony, 351, 594, 1153 
involving assault against an individual who has not attained the age of 
16 years, 1361, 1368, the second paragraph of 1501, 1509, 1751, 1991, or 
2194 involving force or threat.
    (ii) In title 16, section 773g if the offense involves a violation 
of section 773e(a)(3), 1859 if the offense involves a violation of 
section 1857(1)(E), 3637(c) if the offense involves a violation of 
section 3637(a)(3), or 5010(b) if the offense involves a violation of 
section 5009(6).
    (iii) In title 26, section 7212.
    (iv) In title 30, section 1463 if the offense involves a violation 
of section 1461(4).
    (v) In title 40, section 5109 if the offense involves a violation or 
attempted violation of section 5104(e)(2)(F).
    (vi) In title 42, section 2283, 3631, or 9152(d) if the offense 
involves a violation of section 9151(3).
    (vii) In title 43, section 1063 involving force, threat, or 
intimidation.
    (viii) In title 47, section 606(b).
    (ix) In title 49, section 46506(1) unless the offense involves only 
an act that would violate section 661 or 662 of title 18 and would not 
be a felony if committed in the special maritime and territorial 
jurisdiction of the United States.
    (4) Any offense that is an attempt or conspiracy to commit any of 
the foregoing offenses, even if not a felony.
    (c) An offense that was or would have been a qualifying Federal 
offense as defined in this section at the time of conviction, such as an 
offense under 18 U.S.C. 2031 or 2032, remains a qualifying Federal 
offense even if the provision or provisions defining the offense or 
assigning its penalties have subsequently been repealed, superseded, or 
modified.

[Order No. 2753-2005, 70 FR 4767, Jan. 31, 2005]



         Subpart B_DNA Sample Collection, Analysis, and Indexing



Sec. 28.11  Definitions.

    DNA analysis means analysis of the deoxyribonucleic acid (DNA) 
identification information in a bodily sample.
    DNA sample means a tissue, fluid, or other bodily sample of an 
individual on which a DNA analysis can be carried out.



Sec. 28.12  Collection of DNA samples.

    (a) The Bureau of Prisons shall collect a DNA sample from each 
individual in the custody of the Bureau of Prisons who is, or has been, 
convicted of--
    (1) A Federal offense (including any offense under the Uniform Code 
of Military Justice); or
    (2) A qualifying District of Columbia offense, as determined under 
section 4(d) of Public Law 106-546.
    (b) Any agency of the United States that arrests or detains 
individuals or supervises individuals facing charges shall collect DNA 
samples from individuals who are arrested, facing charges, or convicted, 
and from non-United States persons who are detained under the authority 
of the United States. For purposes of this paragraph, ``non-United 
States persons'' means persons who are not United States citizens and 
who are not lawfully admitted for permanent residence as defined in 8 
CFR 1.1(p). Unless otherwise directed by the Attorney General, the 
collection of DNA samples under this paragraph may be limited to 
individuals from whom the agency collects fingerprints and may be 
subject to other limitations or exceptions approved by the Attorney 
General. The DNA-sample collection requirements for the Department of 
Homeland Security in relation to non-arrestees do not include, except to 
the extent provided by the Secretary of Homeland Security, collecting 
DNA samples from:
    (1) Aliens lawfully in, or being processed for lawful admission to, 
the United States;
    (2) Aliens held at a port of entry during consideration of 
admissibility and not subject to further detention or proceedings;

[[Page 465]]

    (3) Aliens held in connection with maritime interdiction; or
    (4) Other aliens with respect to whom the Secretary of Homeland 
Security, in consultation with the Attorney General, determines that the 
collection of DNA samples is not feasible because of operational 
exigencies or resource limitations.
    (c) The DNA-sample collection requirements under this section shall 
be implemented by each agency by January 9, 2009.
    (d) Each individual described in paragraph (a) or (b) of this 
section shall cooperate in the collection of a DNA sample from that 
individual. Agencies required to collect DNA samples under this section 
may use or authorize the use of such means as are reasonably necessary 
to detain, restrain, and collect a DNA sample from an individual 
described in paragraph (a) or (b) of this section who refuses to 
cooperate in the collection of the sample.
    (e) Agencies required to collect DNA samples under this section may 
enter into agreements with other agencies described in paragraph (a) or 
(b) of this section, with units of state or local governments, and with 
private entities to carry out the collection of DNA samples. An agency 
may, but need not, collect a DNA sample from an individual if--
    (1) Another agency or entity has collected, or will collect, a DNA 
sample from that individual pursuant to an agreement under this 
paragraph;
    (2) The Combined DNA Index System already contains a DNA analysis 
with respect to that individual; or
    (3) Waiver of DNA-sample collection in favor of collection by 
another agency is authorized by 42 U.S.C. 14135a(a)(3) or 10 U.S.C. 
1565(a)(2).
    (f) Each agency required to collect DNA samples under this section 
shall--
    (1) Carry out DNA-sample collection utilizing sample-collection kits 
provided or other means authorized by the Attorney General, including 
approved methods of blood draws or buccal swabs;
    (2) Furnish each DNA sample collected under this section to the 
Federal Bureau of Investigation, or to another agency or entity as 
authorized by the Attorney General, for purposes of analysis and entry 
of the results of the analysis into the Combined DNA Index System; and
    (3) Repeat DNA-sample collection from an individual who remains or 
becomes again subject to the agency's jurisdiction or control if 
informed that a sample collected from the individual does not satisfy 
the requirements for analysis or for entry of the results of the 
analysis into the Combined DNA Index System.
    (g) The authorization of DNA-sample collection by this section 
pursuant to Public Law 106-546 does not limit DNA-sample collection by 
any agency pursuant to any other authority.

[AG Order 3023-2008, 73 FR 74942, Dec. 10, 2008]



Sec. 28.13  Analysis and indexing of DNA samples.

    (a) The Federal Bureau of Investigation shall carry out a DNA 
analysis on each DNA sample furnished to the Federal Bureau of 
Investigation pursuant to section 3(b) or 4(b) of Public Law 106-54, and 
shall include the results in the Combined DNA Index System.
    (b) The Federal Bureau of Investigation shall include in the 
Combined DNA Index System the results of each analysis furnished to the 
Federal Bureau of Investigation pursuant to 10 U.S.C. 1565(b)(2).



              Subpart C_Preservation of Biological Evidence

    Source: Order No. 2762-2005, 70 FR 21957, Apr. 28, 2005, unless 
otherwise noted.



Sec. 28.21  Purpose.

    Section 3600A of title 18 of the United States Code (``section 
3600A'') requires the Government to preserve biological evidence that 
was secured in the investigation or prosecution of a Federal offense, if 
a defendant is under a sentence of imprisonment for such offense, 
subject to certain limitations and exceptions. The general purpose of 
this requirement is to preserve biological evidence for possible DNA 
testing under 18 U.S.C. 3600. Subsection (e) of section 3600A requires 
the Attorney General to promulgate regulations to implement and enforce 
section 3600A, including appropriate disciplinary

[[Page 466]]

sanctions to ensure that employees comply with such regulations.



Sec. 28.22  The requirement to preserve biological evidence.

    (a) Applicability in general. The requirement of section 3600A to 
preserve biological evidence applies to evidence that has been retained 
in cases in which the offense or conviction occurred prior to the 
enactment of section 3600A or the adoption of this subpart, as well as 
to evidence secured in pending and future cases.
    (b) Limitation to circumstances in which a defendant is under a 
sentence of imprisonment for the offense. The requirement of section 
3600A to preserve biological evidence secured in the investigation or 
prosecution of a Federal offense begins to apply when a defendant is 
convicted and sentenced to imprisonment for the offense, and ceases to 
apply when the defendant or defendants are released following such 
imprisonment. The evidence preservation requirement of section 3600A 
does not apply in the following situations:
    (1) Inapplicability at the investigative stage. The requirement of 
section 3600A to preserve biological evidence does not apply at the 
investigative stage of criminal cases, occurring prior to the conviction 
and sentencing to imprisonment of a defendant. Biological evidence may 
be collected and preserved in the investigation of Federal offenses 
prior to the sentencing of a defendant to imprisonment, reflecting sound 
investigative practice and the need for evidence in trial proceedings 
that may result from the investigation, but section 3600A does not 
govern these activities.
    (2) Inapplicability to cases involving only non-incarcerative 
sentences. The requirement of section 3600A to preserve biological 
evidence does not apply in cases in which defendants receive only 
nonincarcerative sentences, such as probation, fines, or payment of 
restitution.
    (3) Inapplicability following release. The requirement of section 
3600A to preserve biological evidence ceases to apply when the defendant 
or defendants are released following imprisonment, either 
unconditionally or under supervision. The requirement does not apply 
during any period following the release of the defendant or defendants 
from imprisonment, even if the defendant or defendants remain on 
supervised release or parole.
    (4) Inapplicability following revocation of release. The requirement 
of section 3600A to preserve biological evidence applies during a 
defendant's imprisonment pursuant to the sentence imposed upon 
conviction of the offense, as opposed to later imprisonment resulting 
from a violation of release conditions. The requirement does not apply 
during any period in which the defendant or defendants are imprisoned 
based on the revocation of probation, supervised release, or parole.
    (c) Conditions of preservation. The requirement of section 3600A to 
preserve biological evidence means that such evidence cannot be 
destroyed or disposed of under the circumstances in which section 3600A 
requires its preservation, but does not limit agency discretion 
concerning the conditions under which biological evidence is maintained 
or the transfer of biological evidence among different agencies.



Sec. 28.23  Evidence subject to the preservation requirement.

    (a) Biological evidence generally. The evidence preservation 
requirement of section 3600A applies to ``biological evidence,'' which 
is defined in section 3600A(b). The covered evidence is sexual assault 
forensic examination kits under section 3600A(b)(1) and semen, blood, 
saliva, hair, skin tissue, or other identified biological material under 
section 3600A(b)(2).
    (b) Biological evidence under section 3600A(b)(2). Biological 
evidence within the scope of section 3600A(b)(2) is identified 
biological material that may derive from a perpetrator of the offense, 
and hence might be capable of shedding light on the question of a 
defendant's guilt or innocence through DNA testing to determine whether 
the defendant is the source of the material. In greater detail, evidence 
within the scope of section 3600A(b)(2) encompasses the following:
    (1) Identified biological material. Beyond sexual assault forensic 
examination kits, which are specially referenced in section 3600A(b)(1), 
section

[[Page 467]]

3600A requires preservation only of evidence that is detected and 
identified as semen, blood, saliva, hair, skin tissue, or some other 
type of biological material. Section 3600A's preservation requirement 
does not apply to an item of evidence merely because it is known on 
theoretical grounds that physical things that have been in proximity to 
human beings almost invariably contain unidentified and imperceptible 
amounts of their organic matter.
    (2) Material that may derive from a perpetrator of the crime. 
Biological evidence within the scope of section 3600A(b)(2) must 
constitute ``biological material.'' In the context of section 3600A, 
this term does not encompass all possible types of organic matter, but 
rather refers to organic matter that may derive from the body of a 
perpetrator of the crime, and hence might be capable of shedding light 
on a defendant's guilt or innocence by including or excluding the 
defendant as the source of its DNA.

    Example 1. In a murder case in which the victim struggled with the 
killer, scrapings of skin tissue or blood taken from under the victim's 
fingernails would constitute biological material in the sense of section 
3600A(b)(2), and would be subject to section 3600A's requirement to 
preserve biological evidence, assuming satisfaction of the statute's 
other conditions. Such material, which apparently derives from the 
perpetrator of the crime, could potentially shed light on guilt or 
innocence through DNA testing under 18 U.S.C. 3600 to determine whether 
a defendant was the source of this material.
    Example 2. Biological material in the sense of section 3600A(b)(2) 
would not include the body of a murder victim who was shot from a 
distance, the carcasses of cattle in a meat truck secured in an 
investigation of the truck's hijacking, a quantity of marijuana seized 
in a drug trafficking investigation, or articles made from wood or from 
wool or cotton fiber. While such items of evidence constitute organic 
matter in a broader sense, they are not biological material within the 
scope of section 3600A(b)(2), because they do not derive from the body 
of a perpetrator of the crime, and hence could not shed light on a 
defendant's guilt or innocence through DNA testing under 18 U.S.C. 3600 
to determine whether the defendant is the source of the evidence.



Sec. 28.24  Exceptions based on the results of judicial proceedings.

    Subsection (c) of section 3600A makes the biological evidence 
preservation requirement inapplicable in two circumstances relating to 
the results of judicial proceedings:
    (a) Judicial denial of DNA testing. Section 3600A(c)(1) exempts 
situations in which a court has denied a motion for DNA testing under 18 
U.S.C. 3600 and no appeal is pending.
    (b) Inclusion of defendant as source. Section 3600A(c)(5) exempts 
situations in which there has been DNA testing under 18 U.S.C. 3600 and 
the results included the defendant as the source of the evidence.



Sec. 28.25  Exceptions based on a defendant's conduct.

    Subsection (c) of section 3600A makes the biological evidence 
preservation requirement inapplicable in two circumstances relating to 
action (or inaction) by the defendant:
    (a) Waiver by defendant. Section 3600A(c)(2) makes the biological 
evidence preservation requirement inapplicable if the defendant 
knowingly and voluntarily waived DNA testing in a court proceeding 
conducted after the date of enactment, i.e., after October 30, 2004. 
Hence, for example, if a defendant waives DNA testing in the context of 
a plea agreement, in a pretrial colloquy with the court, in the course 
of discovery in pretrial proceedings, or in a postconviction proceeding, 
and the proceeding in which the waiver occurs takes place after October 
30, 2004, the biological evidence preservation requirement of section 
3600A does not apply.
    (b) Notice to defendant. (1) Section 3600A(c)(3) makes the 
biological evidence preservation requirement inapplicable if the 
defendant is notified that the biological evidence may be destroyed 
``after a conviction becomes final and the defendant has exhausted all 
opportunities for direct review of the conviction,'' and ``the defendant 
does not file a motion under section 3600 within 180 days of receipt of 
the notice.''
    (2) Effective notice concerning the possible destruction of 
biological evidence for purposes of section 3600A(c)(3)

[[Page 468]]

cannot be given if the case is pending on direct review of the 
conviction before a court of appeals or the Supreme Court, if time 
remains for the defendant to file a notice of appeal from the judgment 
of conviction in the court of appeals, or if time remains for the 
defendant to file a petition for certiorari to the Supreme Court 
following the court of appeals' determination of an appeal of the 
conviction.
    (3) Once direct review has been completed, or the time for seeking 
direct review has expired, section 3600A(c)(3) allows notice to the 
defendant that biological evidence may be destroyed. The biological 
evidence preservation requirement of section 3600A thereafter does not 
apply, unless the defendant files a motion under 18 U.S.C. 3600 within 
180 days of receipt of the notice. Notice to a defendant that biological 
evidence may be destroyed may be provided by certified mail, and the 
Federal Bureau of Prisons shall create a record concerning the delivery 
of such mail to an inmate. To determine whether a defendant has filed a 
motion under 18 U.S.C. 3600 within 180 days of receipt of such a notice, 
the agency providing the notice may obtain confirmation of delivery and 
the date of delivery by inquiry with the Federal Bureau of Prisons, and 
may ascertain whether the defendant has filed a motion under 18 U.S.C. 
3600 within 180 days of that date by checking the records of the 
district court which entered the judgment of conviction of the defendant 
for the offense or asking the United States Attorney's office in that 
district.



Sec. 28.26  Exceptions based on the nature of the evidence.

    Subsection (c)(4) of section 3600A provides that the section's 
biological evidence preservation requirement does not apply if ``the 
evidence must be returned to its rightful owner, or is of such a size, 
bulk, or physical character as to render retention impracticable.'' This 
exception is subject to the condition that the Government must ``take[] 
reasonable measures to remove and preserve portions of the material 
evidence sufficient to permit future DNA testing.''
    (a) Evidence not retained beyond the investigative stage. Section 
3600A(c)(4) has no application if items of the sort it describes--e.g., 
items that must be returned to the rightful owner, or items that are so 
large that their retention is impracticable--are not kept until the time 
when a defendant is convicted and sentenced to imprisonment. 
Investigative agents may take samples from such items during the 
investigative stage of the case, in accordance with their judgment about 
what is needed for purposes of DNA testing or other evidentiary use, or 
may conclude that the nature of the items does not warrant taking such 
samples, and the items themselves may then be returned to the owners or 
otherwise disposed of prior to the trial, conviction, or sentencing of 
any defendant. In such cases, section 3600A is inapplicable, because its 
evidence preservation requirement does not apply at all until a 
defendant is sentenced to imprisonment, as noted in Sec. 28.22(b)(1).
    (b) Evidence not constituting biological material. It is rarely the 
case that a bulky item of the sort described in section 3600A(c)(4), or 
a large part of such an item, constitutes biological evidence as defined 
in section 3600A(b). If such an item is not biological evidence in the 
relevant sense, it is outside the scope of section 3600A. For example, 
the evidence secured in the investigation of a bank robbery may include 
a stolen car that was used in the getaway, and there may be some item in 
the car containing biological material that derives from a perpetrator 
of the crime, such as saliva on a discarded cigarette butt. Even if the 
vehicle is kept until a defendant is sentenced to imprisonment, section 
3600A's preservation requirement would not apply to the vehicle as such, 
because the vehicle is not biological material. It would be sufficient 
for compliance with section 3600A to preserve the particular items in 
the vehicle that contain identified biological material or portions of 
them that contain the biological material.
    (c) Preservation of portions sufficient for DNA testing. If evidence 
described in section 3600A(c)(4) is not otherwise exempt from the 
preservation requirement of section 3600A, and section 3600A(c)(4) is 
relied on in disposing of such evidence, reasonable measures must be 
taken to preserve portions of

[[Page 469]]

the evidence sufficient to permit future DNA testing. For example, 
considering a stolen car used in a bank robbery, it may be the case that 
one of the robbers was shot during the getaway and bled all over the 
interior of the car. In such a case, if the car is kept until a 
defendant is sentenced to imprisonment for the crime, there would be 
extensive biological material in the car that would potentially be 
subject to section 3600A's requirement to preserve biological evidence. 
Moreover, the biological material in question could not be fully 
preserved without retaining the whole car or removing and retaining 
large amounts of matter from the interior of the car. Section 
3600A(c)(4) would be relevant in such a case, given that fully retaining 
the biological evidence is likely to be impracticable or inconsistent 
with the rightful owner's entitlement to the return of the vehicle. In 
such a case, section 3600A(c)(4) could be relied on, and its 
requirements would be satisfied if samples of the blood were preserved 
sufficient to permit future DNA testing. Preserving such samples would 
dispense with any need under section 3600A to retain the vehicle itself 
or larger portions thereof.



Sec. 28.27  Non-preemption of other requirements.

    Section 3600A's requirement to preserve biological evidence applies 
cumulatively with other evidence retention requirements. It does not 
preempt or supersede any statute, regulation, court order, or other 
provision of law that may require evidence, including biological 
evidence, to be preserved.



Sec. 28.28  Sanctions for violations.

    (a) Disciplinary sanctions. Violations of section 3600A or of this 
subpart by Government employees shall be subject to the disciplinary 
sanctions authorized by the rules or policies of their employing 
agencies for violations of statutory or regulatory requirements.
    (b) Criminal sanctions. Violations of section 3600A may also be 
subject to criminal sanctions as prescribed in subsection (f) of that 
section. Section 3600A(f) makes it a felony offense, punishable by up to 
five years of imprisonment, for anyone to knowingly and intentionally 
destroy, alter, or tamper with biological evidence that is required to 
be preserved under section 3600A with the intent to prevent that 
evidence from being subjected to DNA testing or prevent the production 
or use of that evidence in an official proceeding.
    (c) No effect on validity of convictions. Section 3600A's 
requirements are enforceable through the disciplinary sanctions and 
criminal sanctions described in paragraphs (a) and (b) of this section. 
A failure to preserve biological evidence as required by section 3600A 
does not provide a basis for relief in any postconviction proceeding.



PART 29_MOTOR VEHICLE THEFT PREVENTION ACT REGULATIONS--Table of Contents




Sec.
29.1 Purpose.
29.2 Definitions.
29.3 Administration by the Bureau of Justice Assistance.
29.4 Election to participate by states and localities.
29.5 Notification of law enforcement officials.
29.6 Limited participation by states and localities permitted.
29.7 Withdrawal from the program by states and localities.
29.8 Motor vehicle owner participation.
29.9 Motor vehicles for hire.
29.10 Owner withdrawal from the program.
29.11 Sale or other transfer of an enrolled vehicle.
29.12 Specified conditions under which stops may be authorized.
29.13 No new conditions without consent.

    Authority: 28 U.S.C. 509, 510; 42 U.S.C. 14171.

    Source: 61 FR 40725, Aug. 6, 1996, unless otherwise noted.



Sec. 29.1  Purpose.

    (a) The purpose of this part is to implement the Motor Vehicle Theft 
Prevention Act, 42 U.S.C. 14171, which requires the Attorney General to 
develop, in cooperation with the states, a national voluntary motor 
vehicle theft prevention program. The program will be implemented by 
states and localities, at their sole option.
    (b) Under this program, individual motor vehicle owners voluntarily 
sign a consent form in which the owner

[[Page 470]]

    (1) Indicates that the identified vehicle is not normally operated 
under certain specified conditions and
    (2) Agrees to display a program decal or license plate on the 
vehicle and to permit law enforcement officials in any jurisdiction to 
stop the motor vehicle if it is being operated under specified 
conditions and take reasonable steps to determine whether the vehicle is 
being operated by or with the permission of the owner.
    (c) The regulations set forth in this part establish the conditions 
under which an owner may consent to having his or her vehicle stopped 
and the manner in which a State or locality may elect to participate.



Sec. 29.2  Definitions.

    For the purposes of this part:
    (a) The Act or the MVTPA means the Motor Vehicle Theft Prevention 
Act.
    (b) Owner means the person or persons whose name(s) appear(s) on the 
certificate of title or to whom the car is registered. In the instance 
of a new vehicle awaiting sale or lease or in the instance of a used 
vehicle where the title has been assigned to a dealership, the term 
``owner'' shall be construed to mean new and used automobile 
dealerships.
    (c) The Program refers to the National Voluntary Motor Vehicle Theft 
Prevention Program implemented pursuant to the Motor Vehicle Prevention 
Act.



Sec. 29.3  Administration by the Bureau of Justice Assistance.

    The Director of the Bureau of Justice Assistance shall administer 
this Program and shall issue guidelines governing the operational 
aspects of it, including the design and production of a standardized, 
universally recognizable MVTPA reflective decal, as well as model 
consent and registration forms.



Sec. 29.4  Election to participate by states and localities.

    (a) Any State or locality that wishes to participate in the program 
shall register with the BJA and request program enrollment materials. 
Registration forms will be available upon request. Participation in the 
program is wholly voluntary on the part of the State or locality.
    (b) By electing to participate in the program, a State or locality 
agrees to do the following:
    (1) Make program enrollment materials, including consent forms, 
available to interested motor vehicle owners;
    (2) Collect completed consent forms;
    (3) Provide enrolled motor vehicle owners with the decal(s), and 
license plate(s) applicable to their program condition or conditions and 
instructions governing program participation;
    (4) Take the necessary steps to authorize law enforcement officials 
to stop motor vehicles enrolled in the program; and
    (5) Comply with any other regulation(s) or guideline(s) governing 
participation in this program.



Sec. 29.5  Notification of law enforcement officials.

    In addition to the actions enumerated in Sec. 29.4(b), as a 
condition of participating in the program, a State or locality must 
agree to take reasonable steps to ensure that law enforcement officials 
under its jurisdiction are familiar with the program and with the 
conditions under which motor vehicles may be stopped.



Sec. 29.6  Limited participation by states and localities permitted.

    A State or locality need not authorize the stopping of motor 
vehicles under all sets of conditions specified under the program in 
order to participate in the program.



Sec. 29.7  Withdrawal from the program by states and localities.

    Any participating State or locality may withdraw from the program at 
any time by sending written notification to BJA and by notifying 
participating owners individually by mail of the decision to withdraw.



Sec. 29.8  Motor vehicle owner participation.

    In order to participate in this program, the owner(s) of a motor 
vehicle must sign a program consent form and register with a 
participating State or locality. If the vehicle is registered to more 
than one person, both owners

[[Page 471]]

must sign the consent form. By enrolling in the federal program, the 
owner(s) of the motor vehicle--
    (a) State(s) that the vehicle is not normally operated under the 
specified conditions; and
    (b) Agree(s) to:
    (1) Display the program decals or devices on the owner's vehicle;
    (2) Permit law enforcement officials in any State or locality to 
stop the motor vehicle if the vehicle is being operated under the 
specified conditions and take reasonable steps to determine whether the 
vehicle is being operated by or with the permission of the owner;
    (3) Expressly advise any borrower of the vehicle of the existence of 
this agreement, and that such user will be subject to being stopped by 
law enforcement officials if the vehicle is being operated under the 
specified condition(s) even if the officials have no other basis for 
believing the vehicle is being operated unlawfully; and
    (4) Comply with any other regulation(s) or guideline(s) governing 
participation in this program.



Sec. 29.9  Motor vehicles for hire.

    (a) Any person who is in the business of renting or leasing motor 
vehicles and who rents or leases a motor vehicle on which a program 
decal or device is affixed shall notify the person to whom the motor 
vehicle is rented or leased about the program, prior to transferring 
possession of the vehicle.
    (b) The notice required by this section shall be printed in bold 
type in the rental or lease agreement, and on the envelope in which the 
rental agreement is placed. The notice provision in the rental or lease 
agreement must utilize a larger font than the standard type in the 
agreement. The notice must state that the motor vehicle may be stopped 
by law enforcement officials if it is operated under the conditions 
specified by the program in which the car is enrolled even if the 
officials have no other basis for believing that the vehicle is being 
operated unlawfully.
    (c) Failure to provide the notice required by this section to a 
renter or lessee may result in the assessment of a civil penalty by the 
Assistant Attorney General, Civil Division, or his or her designee, of 
an amount not to exceed $5,000. No penalty shall be assessed unless the 
person charged has been given notice and an opportunity for a hearing of 
such charge.



Sec. 29.10  Owner withdrawal from the program.

    An owner may withdraw from the program at any time by completely 
removing the program decal and changing the license plate if necessary. 
The owner is also encouraged to notify the participating agency in 
writing of such withdrawal.



Sec. 29.11  Sale or other transfer of an enrolled vehicle.

    Upon the transferral of ownership of an enrolled vehicle, the 
transferring owner must completely remove the program decals, change the 
license plate(s) if necessary, and is encouraged to notify the 
participating agency in writing of the transfer of ownership of the 
vehicle.



Sec. 29.12  Specified conditions under which stops may be authorized.

    A motor vehicle owner may voluntarily enroll his or her vehicle(s) 
and give written consent to law enforcement official to stop the vehicle 
if it is being operated under any or all the conditions set forth in 
this section. For each condition, the owner(s) must grant consent and 
affix a separate decal, device, or license plate.
    (a) Time. A motor vehicle owner may authorize law enforcement 
officers to stop the enrolled vehicle if it is being operated between 
the hours of 1:00 AM and 5:00 AM. By enrolling in a program with this 
condition, the owner must state that the vehicle is not normally 
operated between the specified hours, and that the owner understands 
that the operation of the vehicle between those hours provides 
sufficient grounds for a law enforcement officer to reasonably believe 
that the vehicle is not being operated by or with the consent of the 
owner, even if the law enforcement official has no other basis for 
believing that the vehicle is being operated unlawfully.
    (b) Border crossing or port entry. A motor vehicle owner may 
authorize law enforcement officers to stop the enrolled vehicle if it 
crosses, is about to

[[Page 472]]

cross or is about to be transported across a United States land border, 
or if it enters a United States port. For purposes of this section, the 
phrase ``about to cross a United States land border'' means the vehicle 
is operated or transported within one mile of a United States land 
border. Participating States or localities may implement this provision 
in accordance with local conditions, provided that a participating State 
or locality may not extend the applicable geographic area beyond one 
mile from the United States land border. By enrolling in a program with 
this condition, the owner must state that the vehicle is not normally 
driven across a border or into a port, and that the owner understands 
that the operation or transport of the vehicle within a mile of a United 
States land border or into a port provides sufficient grounds for a law 
enforcement officer to believe that the vehicle is not being operated by 
or with the consent of the owner even if the law enforcement officer has 
no other basis for believing that the vehicle is being operated 
unlawfully.



Sec. 29.13  No new conditions without consent.

    After the program has begun, new conditions under which a vehicle 
may be stopped may only be added to an existing program if the owner 
consents to the new condition or conditions.



PART 30_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF JUSTICE PROGRAMS
AND ACTIVITIES--Table of Contents




Sec.
30.1 What is the purpose of these regulations?
30.2 What definitions apply to these regulations?
30.3 What programs and activities of the Department are subject to these 
          regulations?
30.4 What are the Attorney General's general responsibilities under the 
          Order?
30.5 What is the Attorney General's obligation with respect to Federal 
          interagency coordination?
30.6 What procedures apply to the selection of programs and activities 
          under these regulations?
30.7 How does the Attorney General communicate with state and local 
          officials concerning the Department's programs and activities?
30.8 How does the Attorney General provide an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
30.9 How does the Attorney General receive and respond to comments?
30.10 How does the Attorney General make efforts to accommodate 
          intergovernmental concerns?
30.11 What are the Attorney General's obligations in interstate 
          situations?
30.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
30.13 May the Attorney General waive any provision of these regulations?

    Authority: Executive Order 12372, July 14, 1982 (47 FR 30959), as 
amended April 8, 1983 (48 FR 15887); Sec. 401 of the Intergovernmental 
Cooperation Act of 1968 as amended (31 U.S.C. 6506); Sec. 204 of the 
Demonstration Cities and Metropolitan Development Act of 1966 as amended 
(42 U.S.C. 3334).

    Source: Order No. 1018-83, 48 FR 29246, June 24, 1983, unless 
otherwise noted.



Sec. 30.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional, and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 30.2  What definitions apply to these regulations?

    Department means the U.S. Department of Justice.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April

[[Page 473]]

8, 1983 and titled ``Intergovernmental Review of Federal Programs.''
    Attorney General means the Attorney General or an official or 
employee of the Department acting for the Attorney General under a 
delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 30.3  What programs and activities of the Department are subject
to these regulations?

    The Attorney General publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and identifies which of these are subject to the 
requirements of section 204 of the Demonstration Cities and Metropolitan 
Development Act.



Sec. 30.4  What are the Attorney General's general responsibilities under the Order?

    (a) The Attorney General provides opportunities for consultation by 
elected officials of those state and local governments that would 
provide the non-federal funds for, or that would be directly affected 
by, proposed federal financial assistance from, or direct federal 
development by, the Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed federal financial assistance and direct federal 
development, the Attorney General, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate state and local elected officials' 
concerns with proposed federal financial assistance and direct federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of state plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
federal financial assistance or direct federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Support state and local governments by discouraging the 
reauthorization or creations of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.
    (c) In considering comments received under these regulations, the 
Attorney General considers the objectives set forth in 31 U.S.C. 
6506(b).



Sec. 30.5  What is the Attorney General's obligation with respect to 
Federal interagency coordination?

    The Attorney General, to the extent practicable, consults with and 
seeks advice from all other substantially affected federal departments 
and agencies in an effort to assure full coordination between such 
agencies and the Department regarding programs and activities covered 
under these regulations.



Sec. 30.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 30.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Attorney 
General of the Department's programs and activities selected for that 
process.
    (c) A state may notify the Attorney General of changes in its 
selections at

[[Page 474]]

any time. For each change, the state shall submit to the Attorney 
General an assurance that the state has consulted with local elected 
officials regarding the change. The Department may establish deadlines 
by which states are required to inform the Attorney General of changes 
in their program selections.
    (d) The Attorney General uses a State's process as soon as feasible, 
depending on individual programs and activities, after the Attorney 
General is notified of its selections.



Sec. 30.7  How does the Attorney General communicate with state and 
local officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 30.6, the Attorney General, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Attorney General provides notice to directly affected state, 
areawide, regional, and local entities in a state or proposed federal 
financial assistance or direct federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

This notice may be made by publication in the Federal Register or other 
means which the Department in its discretion deems appropriate.



Sec. 30.8  How does the Attorney General provide an opportunity to
comment on proposed Federal financial assistance and direct Federal
development?

    (a) Except in unusual circumstances, the Attorney General gives 
state processes or directly affected state, areawide, regional, and 
local officials and entities:
    (1) At least 30 days from the date established by the Attorney 
General to comment on proposed federal financial assistance in the form 
of noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Attorney 
General to comment on proposed direct federal development or federal 
financial assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comments.



Sec. 30.9  How does the Attorney General receive and respond to comments?

    (a) The Attorney General follows the procedures in Sec. 30.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies; and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 30.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional, or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional, and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional, and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by the single point of contact, the 
Attorney General follows the procedures of Sec. 30.10 of this part.

[[Page 475]]

    (e) The Attorney General considers comments which do not constitute 
a state process recommendation submitted under these regulations and for 
which the Attorney General is not required to apply the procedures of 
Sec. 30.10 of this part, when such comments are provided by a single 
point of contact, by the applicant, or directly to the Department by a 
commenting party.



Sec. 30.10  How does the Attorney General make efforts to accommodate 
intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Attorney General 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the decision, in such form as the Attorney General in his or her 
discretion deems appropriate. The Attorney General may also supplement 
the written explanation by providing the explanation to the single point 
of contact by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Attorney General informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Attorney General has reviewed the decision and determined 
that, because of unusual circumstances, the waiting period of at least 
ten days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification five days after the date of mailing of 
such notification.



Sec. 30.11  What are the Attorney General's obligations in interstate
situations?

    (a) The Attorney General is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity;
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity; and
    (4) Responding pursuant to Sec. 30.10 if the Attorney General 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact in cases in which the review, coordination, 
and communication with the Department have been delegated.
    (b) The Attorney General uses the procedures in Sec. 30.10 if a 
state process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 30.12  How may a state simplify, consolidate, or substitute
federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Attorney General.
    (c) The Attorney General reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet federal requirements.

[[Page 476]]



Sec. 30.13  May the Attorney General waive any provision of 
these regulations?

    In an emergency, the Attorney General may waive any provision of 
these regulations.



PART 31_OJJDP GRANT PROGRAMS--Table of Contents




                        Subpart A_Formula Grants

                           General Provisions

Sec.
31.1 General.
31.2 Statutory authority.
31.3 Formula grant plan and applications.

                           Eligible Applicants

31.100 Eligibility.
31.101 Designation of State agency.
31.102 State agency structure.
31.103 Membership of supervisory board.

                          General Requirements

31.200 General.
31.201 Audit.
31.202 Civil rights.
31.203 Open meetings and public access to records.

                    Juvenile Justice Act Requirements

31.300 General.
31.301 Funding.
31.302 Applicant State agency.
31.303 Substantive requirements.
31.304 Definitions.

                    General Conditions and Assurances

31.400 Compliance with statute.
31.401 Compliance with other Federal laws, orders, circulars.
31.402 Application on file.
31.403 Civil rights requirements.
31.404 Participation by faith-based organizations.

        Subpart B_Juvenile Accountability Incentive Block Grants

31.500 Program purposes
31.501 Eligible applicants
31.502 Assurances and plan information
31.503 Notice of proposed use of funds

    Authority: 42 U.S.C 5601 through 5785; Pub. L. 108-7, 117 Stat. 11; 
5 U.S.C. 301.

    Source: 60 FR 28440, May 31, 1995, unless otherwise noted.



                        Subpart A_Formula Grants

                           General Provisions



Sec. 31.1  General.

    This subpart defines eligibility and sets forth requirements for 
application for and administration of formula grants to State 
governments authorized by part B, subpart I, of the Juvenile Justice and 
Delinquency Prevention Act.

[60 FR 28440, May 31, 1995, as amended at 64 FR 19676, Apr. 21, 1999]



Sec. 31.2  Statutory authority.

    The Statute establishing the Office of Juvenile Justice and 
Delinquency Prevention and giving authority to make grants for juvenile 
justice and delinquency prevention improvement programs is the Juvenile 
Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C. 
5601 et seq.).



Sec. 31.3  Formula grant plan and applications.

    Formula Grant Applications for each Fiscal Year should be submitted 
to OJJDP by August 1st (60 days prior to the beginning of the fiscal 
year) or within 60 days after the States are officially notified of the 
fiscal year formula grant allocations. Beginning with FY 1995 and each 
subsequent fiscal year, all Formula Grant Applications are due no later 
than March 31 of the fiscal year for which the funds are allocated.

                           Eligible Applicants



Sec. 31.100  Eligibility.

    All States as defined by section 103(7) of the JJDP Act.



Sec. 31.101  Designation of State agency.

    The Chief Executive of each State which chooses to apply for a 
formula grant shall establish or designate a State agency as the sole 
agency for supervising the preparation and administration of the plan. 
The plan must demonstrate compliance with administrative and supervisory 
board membership requirements established by the OJJDP Administrator 
pursuant to section 299 (c) of the JJDP Act. States must have available 
for review a copy

[[Page 477]]

of the State law or executive order establishing the State agency and 
its authority.



Sec. 31.102  State agency structure.

    The State agency may be a discrete unit of State government or a 
division or other component of an existing State crime commission, 
planning agency or other appropriate unit of State government. Details 
of organization and structure are matters of State discretion, provided 
that the agency:
    (a) Is a definable entity in the executive branch with the requisite 
authority to carry out the responsibilities imposed by the JJDP Act;
    (b) Has a supervisory board (i.e., a board of directors, commission, 
committee, council, or other policy board) which has responsibility for 
supervising the preparation and administration of the plan and its 
implementation; and
    (c) Has sufficient staff and staff capability to carry out the 
board's policies and the agency's duties and responsibilities to 
administer the program, develop the plan, process applications, 
administer grants awarded under the plan, monitor and evaluate programs 
and projects, provide administration/support services, and perform such 
accountability functions as are necessary to the administration of 
Federal funds, such as grant close-out and audit of subgrant and 
contract funds. At a minimum, one full-time Juvenile Justice Specialist 
must be assigned to the Formula Grants Program by the State agency. 
Where the State does not currently provide or maintain a full-time 
Juvenile Justice Specialist, the plan must clearly establish and 
document that the program and administrative support staff resources 
currently assigned to the program will temporarily meet the adequate 
staff requirement, and provide an assurance that at least one full-time 
Juvenile Justice Specialist will be assigned to the Formula Grants 
Program by the end of FY 1995 (September 30, 1995).



Sec. 31.103  Membership of supervisory board.

    The State advisory group appointed under section 223(a)(3) may 
operate as the supervisory board for the State agency, at the discretion 
of the Governor. Where, however, a State has continuously maintained a 
broad-based law enforcement and criminal justice supervisory board 
(council) meeting all the requirements of section 402(b)(2) of the 
Justice System Improvement Act of 1979, and wishes to maintain such a 
board, such composition shall continue to be acceptable provided that 
the board's membership includes the chairman and at least two additional 
citizen members of the State advisory group. For purposes of this 
requirement a citizen member is defined as any person who is not a full-
time government employee or elected official. Any executive committee of 
such a board must include the same proportion of juvenile justice 
advisory group members as are included in the total board membership. 
Any other proposed supervisory board membership is subject to case by 
case review and approval of the OJJDP Administrator and will require, at 
a minimum, ``balanced representation'' of juvenile justice interests.

                          General Requirements



Sec. 31.200  General.

    This subpart sets forth general requirements applicable to formula 
grant recipients under the JJDP Act of 1974, as amended. Applicants must 
assure compliance or submit necessary information on these requirements.

[60 FR 28440, May 31, 1995, as amended at 64 FR 19676, Apr. 21, 1999]



Sec. 31.201  Audit.

    The State must assure that it adheres to the audit requirements 
enumerated in the ``Financial and Administrative Guide for Grants, Guide 
Manual 7100.1 (current edition). Chapter 8 of the Manual contains a 
comprehensive statement of audit policies and requirements relative to 
grantees and subgrantees.



Sec. 31.202  Civil rights.

    (a) To carry out the State's Federal civil rights responsibilities 
the plan must:
    (1) Designate a civil rights contact person who has lead 
responsibility in insuring that all applicable civil rights

[[Page 478]]

requirements, assurances, and conditions are met and who shall act as 
liaison in all civil rights matters with OJJDP and the OJP Office of 
Civil Rights Compliance (OCRC); and
    (2) Provide the Council's Equal Employment Opportunity Program 
(EEOP), if required to maintain one under 28 CFR 42.301, et seq., where 
the application is for $500,000 or more.
    (b) The application must provide assurance that the State will:
    (1) Require that every applicant required to formulate an EEOP in 
accordance with 28 CFR 42.201 et seq., submit a certification to the 
State that it has a current EEOP on file, which meets the requirement 
therein;
    (2) Require that every criminal or juvenile justice agency applying 
for a grant of $500,000 or more submit a copy of its EEOP (if required 
to maintain one under 28 CFR 42.301, et seq.) to OCRC at the time it 
submits its application to the State;
    (3) Inform the public and subgrantees of affected persons' rights to 
file a complaint of discrimination with OCRC for investigation;
    (4) Cooperate with OCRC during compliance reviews of recipients 
located within the State; and
    (5) Comply, and that its subgrantees and contractors will comply 
with the requirement that, in the event that a Federal or State court or 
administrative agency makes a finding of discrimination of the basis of 
race, color, religion, national origin, or sex (after a due process 
hearing) against a State or a subgrantee or contractor, the affected 
recipient or contractor will forward a copy of the finding to OCRC.



Sec. 31.203  Open meetings and public access to records.

    The State must assure that the State agency, its supervisory board 
established pursuant to section 299(c) and the State advisory group 
established pursuant to section 223(a)(3) will follow applicable State 
open meeting and public access laws and regulations in the conduct of 
meetings and the maintenance of records relating to their functions.

                    Juvenile Justice Act Requirements



Sec. 31.300  General.

    This subpart sets forth specific JJDP Act requirements for 
application and receipt of formula grants.

[60 FR 28440, May 31, 1995, as amended at 64 FR 19676, Apr. 21, 1999]



Sec. 31.301  Funding.

    (a) Allocation to States. Funds shall be allocated annually among 
the States on the basis of relative population of persons under age 
eighteen. If the amount allocated for Title II (other than parts D and 
E) of the JJDP Act is less than $75 million, the amount allocated to 
each State will not be less than $325,000, nor more than $400,000, 
provided that no State receives less than its allocation for FY 1992. 
The territories will receive not less than $75,000 or more than 
$100,000. If the amount appropriated for Title II (other than parts D 
and E) is $75 million or more, the amount allocated for each State will 
be not less than $400,000, nor more than $600,000, provided that parts D 
and E have been funded in the full amounts authorized. For the 
Territories, the amount is fixed at $100,000. For each of FY's 1994 and 
1995, the minimum allocation is established at $600,000 for States and 
$100,000 for Territories.
    (b) Funds for local use. At least two-thirds of the formula grant 
application to the state (other than the section 222(d) State Advisory 
Group set aside) must be used for programs by local government, local 
private agencies, and eligible Indian tribes, unless the State applies 
for and is granted a waiver by the OJJDP. The proportion of pass-through 
funds to be made available to eligible Indian tribes shall be based upon 
that proportion of the state youth population under 18 years of age who 
reside in geographical areas where the tribes perform law enforcement 
functions. Pursuant to section 223(a)(5)(C) of the JJDP Act, each of the 
standards set forth in paragraphs (b)(1)(i) through (iii) of this 
section must be met in order to establish the eligibility of Indian 
tribes to receive pass through funds:
    (1)(i) The tribal entity must be recognized by the Secretary of the 
Interior

[[Page 479]]

as an Indian tribe that performs law enforcement functions as defined in 
paragraph (b) (2) of this section.
    (ii) The tribal entity must agree to attempt to comply with the 
requirements of section 223(a)(12)(A), (13), and (14) of the JJDP Act; 
and
    (iii) The tribal entity must identify the juvenile justice needs to 
be served by these funds within the geographical area where the tribe 
performs law enforcement functions.
    (2) Law enforcement functions are deemed to include those activities 
pertaining to the custody of children, including, but not limited to, 
police efforts to prevent, control, or reduce crime and delinquency or 
to apprehend criminal and delinquent offenders, and/or activities of 
adult and juvenile corrections, probation, or parole authorities.
    (3) To carry out this requirement, OJJDP will annually provide each 
state with the most recent Bureau of Census statistics on the number of 
persons under age 18 living within the state, and the number of persons 
under age 18 who reside in geographical areas where Indian tribes 
perform law enforcement functions.
    (4) Pass-through funds available to tribal entities under section 
223(a)(5)(C) shall be made available within states to Indian tribes, 
combinations of Indian tribes, or to an organization or organizations 
designated by such tribe(s), that meet the standards set forth in 
paragraphs (b)(1)(i)-(iii) of this section. Where the relative number of 
persons under age 18 within a geographic area where an Indian tribe 
performs law enforcement functions is too small to warrant an individual 
subgrant or subgrants, the state may, after consultation with the 
eligible tribe(s), make pass-through funds available to a combination of 
eligible tribes within the state, or to an organization or organizations 
designated by and representing a group of qualifying tribes, or target 
the funds on the larger tribal jurisdictions within the state.
    (5) Consistent with section 223(a)(4) of the JJDP Act, the state 
must provide for consultation with Indian tribes or a combination of 
eligible tribes within the state, or an organization or organizations 
designated by qualifying tribes, in the development of a state plan 
which adequately takes into account the juvenile justice needs and 
requests of those Indian tribes within the state.
    (c) Match. Formula grants under the JJDP Act shall be 100% of 
approved costs, with the exception of planning and administration funds, 
which require a 100 percent cash match (dollar for dollar), and 
construction projects funded under section 299C(a)(2) which also require 
a 100 percent cash match.
    (d) Funds for administration. Not more than ten percent of the total 
annual Formula Grant award may be utilized to develop the annual 
juvenile justice plan and pay for administrative expenses, including 
project monitoring. These funds are to be matched on a dollar for dollar 
basis. The State shall make available needed funds for planning and 
administration to units of local government on an equitable basis. Each 
annual application must identify uses of such funds.
    (e) Nonparticipating States. Pursuant to section 223(d), the OJJDP 
Administrator shall endeavor to make the fund allotment under section 
222(a), of a State which chooses not to participate or loses its 
eligibility to participate in the formula grant program, directly 
available to local public and private nonprofit agencies within the 
nonparticipating State. The funds may be used only for the purpose(s) of 
achieving deinstitutionalization of status offenders and nonoffenders, 
separation of juveniles from incarcerated adults, removal of juveniles 
from adult jails and lockups, and reducing the disproportionate 
confinement of minority youth in secure facilities. Absent a request for 
extension which demonstrates compelling circumstances justifying the 
reallocation of formula grant funds back to the State to which the funds 
were initially allocated, or the proceedings under section 223(d), 
formula grant funds allocated to a State which has failed to submit an 
application, plan, or monitoring data establishing its eligibility for 
the funds will, beginning with FY 1995 be reallocated to the 
nonparticipating State program on September 30 of the fiscal year for 
which the funds were appropriated. Reallocated funds will be 
competitively awarded to eligible recipients pursuant

[[Page 480]]

to program announcements published in the Federal Register.



Sec. 31.302  Applicant State agency.

    (a) Pursuant to section 223(a)(1), section 223(a)(2) and section 
299(c) of the JJDP Act, the State must assure that the State agency 
approved under section 299(c) has been designated as the sole agency for 
supervising the preparation and administration of the plan and has the 
authority to implement the plan.
    (b) Advisory group. Pursuant to section 223(a)(3) of the JJDP Act, 
the Chief Executive:
    (1) Shall establish an advisory group pursuant to section 223(a)(3) 
of the JJDP Act. The State shall provide a list of all current advisory 
group members, indicating their respective dates of appointment and how 
each member meets the membership requirements specified in this section 
of the Act.
    (2) Should consider, in meeting the statutory membership 
requirements of section 223(A)(3) (A)-(E), appointing at least one 
member who represents each of the following: A locally elected official 
representing general purpose local government; a law enforcement 
officer; representatives of juvenile justice agencies, including a 
juvenile or family court judge, a probation officer, a prosecutor, and a 
person who routinely provides legal representation to youth in juvenile 
court; a public agency representative concerned with delinquency 
prevention and treatment; a representative from a private, non-profit 
organization, such as a parents group, concerned with teenage drug and 
alcohol abuse; a high school principal; a recreation director; a 
volunteer who works with delinquent or at risk youth; a person with a 
special focus on the family; a youth worker experienced with programs 
that offer alternatives to incarceration; persons with special 
competence in addressing programs of school violence and vandalism and 
alternatives to expulsion and suspension; and persons with knowledge 
concerning learning disabilities, child abuse, neglect, and youth 
violence.
    (c) The State shall assure that it complies with the Advisory Group 
financial support requirement of section 222(d) and the composition and 
function requirements of section 223(a)(3) of the JJDP Act.



Sec. 31.303  Substantive requirements.

    (a) Assurances. The State must certify through the provision of 
assurances that it has complied and will comply (as appropriate) with 
sections 223(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), 
(16), (17), (18), (19), (20), (21), (22), and (25), and sections 229 and 
261(d), in formulating and implementing the State plan. The Formula 
Grant Application kit provides a form and guidance for the provision of 
assurances. OJJDP interprets the section 223(a)(16) assurance as 
satisfied by an affirmation that State law and/or policy clearly require 
equitable treatment on the required bases; or by providing in the State 
plan that the State agency will require an assurance of equitable 
treatment by all Formula Grant subgrant and contract recipients, and 
establish as a program goal, in conjunction with the State Advisory 
Group, the adoption and implementation of a statewide juvenile justice 
policy that all youth in the juvenile justice system will be treated 
equitably without regard to gender, race, family income, and mentally, 
emotionally, or physically handicapping conditions. OJJDP interprets the 
section 223(a)(25) assurance as satisfied by a provision in the State 
plan for the State agency and the State Advisory Group to promulgate 
policies and budget priorities that require the funding of programs that 
are part of a comprehensive and coordinated community system of services 
as set forth in section 103(19) of the JJDP Act. This requirement is 
applicable when a State's formula grant for any fiscal year exceeds 105 
percent of the State's formula grant for FY 1992.
    (b) Serious juvenile offender emphasis. Pursuant to sections 
101(a)(10) and 223(a)(10) of the JJDP Act, OJJDP encourages States that 
have identified serious and violent juvenile offenders as a priority 
problem to allocate formula grant funds to programs designed for serious 
and violent juvenile offenders at a level consistent with the extent of 
the problem as identified through the State planning process. Particular 
attention should be given to improving prosecution, sentencing 
procedures,

[[Page 481]]

providing resources necessary for effective rehabilitation, and 
facilitating the coordination of services between the juvenile justice 
and criminal justice systems.
    (c) Deinstitutionalization of status offenders and non-offenders. 
Pursuant to section 223(a)(12)(A) of the JJDP Act, the State shall:
    (1) Describe its plan, procedure, and timetable covering the three-
year planning cycle, for assuring that the requirements of this section 
are met. Refer to Sec. 31.303(f)(3) for the rules related to the valid 
court order exception to this Act requirement.
    (2) Describe the barriers the State faces in achieving full 
compliance with the provisions of this requirement.
    (3) Federal wards. Apply this requirement to alien juveniles under 
Federal jurisdiction who are held in State or local facilities.
    (4) DSO compliance. Those States which, based upon the most recently 
submitted monitoring report, have been found to be in full compliance 
with section 223(a)(12)(A) may, in lieu of addressing paragraphs (c)(1) 
and (2) of this section, provide an assurance that adequate plans and 
resources are available to maintain full compliance.
    (5) Submit the report required under section 223(a)(12)(B) of the 
Act as part of the annual monitoring report required by section 
223(a)(15) of the Act.
    (d) Contact with incarcerated adults. (1) Pursuant to section 
223(a)(13) of the JJDP Act the State shall:
    (i) Separation. Describe its plan and procedure, covering the three-
year planning cycle, for assuring that the requirements of this section 
are met. The term contact includes any physical or sustained sight or 
sound contact between juvenile offenders in a secure custody status and 
incarcerated adults, including inmate trustees. A juvenile offender in a 
secure custody status is one who is physically detained or confined in a 
locked room or other area set aside or used for the specific purpose of 
securely detaining persons who are in law enforcement custody. Secure 
detention or confinement may result either from being placed in such a 
room or area and/or from being physically secured to a cuffing rail or 
other stationary object. Sight contact is defined as clear visual 
contact between incarcerated adults and juveniles within close proximity 
to each other. Sound contact is defined as direct oral communication 
between incarcerated adults and juvenile offenders. Separation must be 
accomplished architecturally or through policies and procedures in all 
secure areas of the facility which include, but are not limited to, such 
areas as admissions, sleeping, and shower and toilet areas. Brief and 
inadvertent or accidental contact between juvenile offenders in a secure 
custody status and incarcerated adults in secure areas of a facility 
that are not dedicated to use by juvenile offenders and which are 
nonresidential, which may include dining, recreational, educational, 
vocational, health care, sally ports or other entry areas, and 
passageways (hallways), would not require a facility or the State to 
document or report such contact as a violation. However, any contact in 
a dedicated juvenile area, including any residential area of a secure 
facility, between juveniles in a secure custody status and incarcerated 
adults would be a reportable violation.
    (ii) In those instances where accused juvenile criminal-type 
offenders are authorized to be temporarily detained in facilities where 
adults are confined, the State must set forth the procedures for 
assuring no sight or sound contact between such juveniles and confined 
adults.
    (iii) Describe the barriers which may hinder the separation of 
alleged or adjudicated criminal type offenders, status offenders and 
non-offenders from incarcerated adults in any particular jail, lockup, 
detention or correctional facility.
    (iv) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in compliance with section 
223(a)(13) may, in lieu of addressing paragraphs (d)(1)(i), (ii), and 
(iii) of this section, provide an assurance that adequate plans and 
resources are available to maintain compliance.
    (v) Assure that adjudicated delinquents are not reclassified 
administratively and transferred to an adult (criminal) correctional 
authority to avoid the intent of separating juveniles

[[Page 482]]

from adult criminals in jails or correctional facilities. A State is not 
prohibited from placing or transferring an alleged or adjudicated 
delinquent who reaches the State's age of full criminal responsibility 
to an adult facility when required or authorized by State law. However, 
the administrative transfer, without statutory direction or 
authorization, of a juvenile offender to an adult correctional 
authority, or a transfer within a mixed juvenile and adult facility for 
placement with adult criminals, either before or after a juvenile 
reaches the age of full criminal responsibility, is prohibited. A State 
is also precluded from transferring adult offenders to a juvenile 
correctional authority for placement in a juvenile facility. This 
neither prohibits nor restricts the waiver or transfer of a juvenile to 
criminal court for prosecution, in accordance with State law, for a 
criminal felony violation, nor the detention or confinement of a waived 
or transferred criminal felony violator in an adult facility.
    (2) Implementation. The requirement of this provision is to be 
planned and implemented immediately by each State.
    (e) Removal of juveniles from adult jails and lockups. Pursuant to 
section 223(a)(14)of the JJDP Act, the State shall:
    (1) Describe its plan, procedure, and timetable for assuring that 
requirements of this section will be met beginning after December 8, 
1985. Refer to Sec. 31.303(f)(4) to determine the regulatory exception 
to this requirement.
    (2) Describe the barriers that a State faces in removing all 
juveniles from adult jails and lockups. This requirement excepts only 
those alleged or adjudicated juvenile delinquents placed in a jail or a 
lockup for up to six hours from the time they enter a secure custody 
status or immediately before or after a court appearance, those 
juveniles formally waived or transferred to criminal court and against 
whom criminal felony charges have been filed, or juveniles over whom a 
criminal court has original or concurrent jurisdiction and such court's 
jurisdiction has been invoked through the filing of criminal felony 
charges.
    (3) Collocated facilities. (i) Determine whether or not a facility 
in which juveniles are detained or confined is an adult jail or lockup. 
The JJDP Act prohibits the secure custody of juveniles in adult jails 
and lockups, except as otherwise provided under the Act and implementing 
OJJDP regulations. Juvenile facilities collocated with adult facilities 
are considered adult jails or lockups absent compliance with criteria 
established in paragraphs (e)(3)(i)(C)(1) through (4) of this section.
    (A) A collocated facility is a juvenile facility located in the same 
building as an adult jail or lockup, or is part of a related complex of 
buildings located on the same grounds as an adult jail or lockup. A 
complex of buildings is considered ``related'' when it shares physical 
features such as walls and fences, or services beyond mechanical 
services (heating, air conditioning, water and sewer), or the 
specialized services that are allowable under paragraph (e)(3)(i)(C)(3) 
of this section.
    (B) The State must determine whether a collocated facility qualifies 
as a separate juvenile detention facility under the four criteria set 
forth in paragraphs (e)(3)(i)(C) (1) through (4) of this section for the 
purpose of monitoring compliance with section 223(a) (12)(A), (13) and 
(14) of the JJDP Act.
    (C) Each of the following four criteria must be met in order to 
ensure the requisite separateness of a juvenile detention facility that 
is collocated with an adult jail or lockup:
    (1) Separation between juveniles and adults such that there could be 
no sustained sight or sound contact between juveniles and incarcerated 
adults in the facility. Separation can be achieved architecturally or 
through time-phasing of common use nonresidential areas; and
    (2) Separate juvenile and adult programs, including recreation, 
education, vocation, counseling, dining, sleeping, and general living 
activities. There must be an independent and comprehensive operational 
plan for the juvenile detention facility which provides for a full range 
of separate program services. No program activities

[[Page 483]]

may be shared by juveniles and incarcerated adults. Time-phasing of 
common use nonresidential areas is permissible to conduct program 
activities. Equipment and other resources may be used by both 
populations subject to security concerns; and
    (3) Separate staff for the juvenile and adult populations, including 
management, security, and direct care staff. Staff providing specialized 
services (medical care, food service, laundry, maintenance and 
engineering, etc.) who are not normally in contact with detainees, or 
whose infrequent contacts occur under conditions of separation of 
juveniles and adults, can serve both populations (subject to State 
standards or licensing requirements). The day to day management, 
security and direct care functions of the juvenile detention center must 
be vested in a totally separate staff, dedicated solely to the juvenile 
population within the collocated facilities; and
    (4) In States that have established standards or licensing 
requirements for juvenile detention facilities, the juvenile facility 
must meet the standards (on the same basis as a free-standing juvenile 
detention center) and be licensed as appropriate. If there are no State 
standards or licensing requirements, OJJDP encourages States to 
establish administrative requirements that authorize the State to review 
the facility's physical plant, staffing patterns, and programs in order 
to approve the collocated facility based on prevailing national juvenile 
detention standards.
    (ii) The State must determine that the four criteria are fully met. 
It is incumbent upon the State to make the determination through an on-
site facility (or full construction and operations plan) review and, 
through the exercise of its oversight responsibility, to ensure that the 
separate character of the juvenile detention facility is maintained by 
continuing to fully meet the four criteria set forth in paragraphs 
(e)(3)(i)(C) (1) through (4) of this section.
    (iii) Collocated juvenile detention facilities approved by the State 
and concurred with by OJJDP before December 10, 1996 may be reviewed by 
the State against the regulatory criteria and OJJDP policies in effect 
at the time of the initial approval and concurrence or against the 
regulatory criteria set forth herein, as the State determines. 
Facilities approved on or after the effective date of this regulation 
shall be reviewed against the regulatory criteria set forth herein. All 
collocated facilities are subject to the separate staff requirement 
established by the 1992 Amendments to the JJDP Act, and set forth in 
paragraph (e)(3)(i)(C)(3) of this section.
    (iv) An annual on-site review of the facility must be conducted by 
the compliance monitoring staff person(s) representing or employed by 
the State agency administering the JJDP Act Formula Grants Program. The 
purpose of the annual review is to determine if compliance with the 
criteria set forth in paragraphs (e)(3)(i)(C) (1) through (4) of this 
section is being maintained.
    (4) Those States which, based upon the most recently submitted 
monitoring report, have been found to be in full compliance with section 
223(a)(14) may, in lieu of addressing paragraphs (e) (1) and (2) of this 
section, provide an assurance that adequate plans and resources are 
available to maintain full compliance.
    (f) Monitoring of jails, detention facilities and correctional 
facilities. (1) Pursuant to section 223(a)(15) of the JJDP Act, and 
except as provided by paragraph (f)(7) of this section, the State shall:
    (i) Describe its plan, procedure, and timetable for annually 
monitoring jails, lockups, detention facilities, correctional facilities 
and non-secure facilities. The plan must at a minimum describe in detail 
each of the following tasks including the identification of the specific 
agency(s) responsible for each task.
    (A) Identification of monitoring universe: This refers to the 
identification of all residential facilities which might hold juveniles 
pursuant to public authority and thus must be classified to determine if 
it should be included in the monitoring effort. This includes those 
facilities owned or operated by public and private agencies.
    (B) Classification of the monitoring universe: This is the 
classification of all facilities to determine which ones

[[Page 484]]

should be considered as a secure detention or correctional facility, 
adult correctional institution, jail, lockup, or other type of secure or 
nonsecure facility.
    (C) Inspection of facilities: Inspection of facilities is necessary 
to ensure an accurate assessment of each facility's classification and 
record keeping. The inspection must include:
    (1) A review of the physical accommodations to determine whether it 
is a secure or non-secure facility or whether adequate sight and sound 
separation between juvenile and adult offenders exists and
    (2) A review of the record keeping system to determine whether 
sufficient data are maintained to determine compliance with section 
223(a) (12), (13) and/or (14).
    (D) Data collection and data verification: This is the actual 
collection and reporting of data to determine whether the facility is in 
compliance with the applicable requirement(s) of section 223(a) (12), 
(13) and/or (14). The length of the reporting period should be 12 months 
of data, but in no case less than 6 months. If the data is self-reported 
by the facility or is collected and reported by an agency other than the 
State agency designated pursuant to section 223(a)(1) of the JJDP Act, 
the plan must describe a statistically valid procedure used to verify 
the reported data.
    (ii) Provide a description of the barriers which the State faces in 
implementing and maintaining a monitoring system to report the level of 
compliance with section 223(a) (12), (13), and (14) and how it plans to 
overcome such barriers.
    (iii) Describe procedures established for receiving, investigating, 
and reporting complaints of violation of section 223(a) (12), (13), and 
(14). This should include both legislative and administrative procedures 
and sanctions.
    (2) For the purpose of monitoring for compliance with section 
223(a)(12)(A) of the Act, a secure detention or correctional facility is 
any secure public or private facility used for the lawful custody of 
accused or adjudicated juvenile offenders or nonoffenders, or used for 
the lawful custody of accused or convicted adult criminal offenders. 
Accused status offenders or nonoffenders in lawful custody can be held 
in a secure juvenile detention facility for up to twenty-four hours, 
exclusive of weekends and holidays, prior to an initial court appearance 
and for an additional twenty-four hours, exclusive of weekends and 
holidays, following an initial court appearance.
    (3) Valid court order. For the purpose of determining whether a 
valid court order exists and a juvenile has been found to be in 
violation of that valid order all of the following conditions must be 
present prior to secure incarceration:
    (i) The juvenile must have been brought into a court of competent 
jurisdiction and made subject to an order issued pursuant to proper 
authority. The order must be one which regulates future conduct of the 
juvenile. Prior to issuance of the order, the juvenile must have 
received the full due process rights guaranteed by the Constitution of 
the United States.
    (ii) The court must have entered a judgment and/or remedy in accord 
with established legal principles based on the facts after a hearing 
which observes proper procedures.
    (iii) The juvenile in question must have received adequate and fair 
warning of the consequences of violation of the order at the time it was 
issued and such warning must be provided to the juvenile and to the 
juvenile's attorney and/or legal guardian in writing and be reflected In 
the court record and proceedings.
    (iv) All judicial proceedings related to an alleged violation of a 
valid court order must be held before a court of competent jurisdiction. 
A juvenile accused of violating a valid court order may be held in 
secure detention beyond the 24-hour grace period permitted for a 
noncriminal juvenile offender under OJJDP monitoring policy, for 
protective purposes as prescribed by State law, or to assure the 
juvenile's appearance at the violation hearing, as provided by State 
law, if there has been a judicial determination based on a hearing 
during the 24-hour grace period that there is probable cause to believe 
the juvenile violated the court order. In such case the juveniles may be 
held pending a violation hearing for such

[[Page 485]]

period of time as is provided by State law, but in no event should 
detention prior to a violation hearing exceed 72 hours exclusive of 
nonjudicial days. A juvenile alleged or found in a violation hearing to 
have violated a Valid Court Order may be held only in a secure juvenile 
detention or correctional facility, and not in an adult jail or lockup.
    (v) Prior to and during the violation hearing the following full due 
process rights must be provided:
    (A) The right to have the charges against the juvenile in writing 
served upon him a reasonable time before the hearing;
    (B) The right to a hearing before a court;
    (C) The right to an explanation of the nature and consequences of 
the proceeding;
    (D) The right to legal counsel, and the right to have such counsel 
appointed by the court if indigent;
    (E) The right to confront witnesses;
    (F) The right to present witnesses;
    (G) The right to have a transcript or record of the proceedings; and
    (H) The right of appeal to an appropriate court.
    (vi) In entering any order that directs or authorizes the placement 
of a status offender in a secure facility, the judge presiding over an 
initial probable cause hearing or violation hearing must determine that 
all the elements of a valid court order (paragraphs (f)(3) (i), (ii) and 
(iii) of this section) and the applicable due process rights (paragraph 
(f)(3)(v) of this section) were afforded the juvenile and, in the case 
of a violation hearing, the judge must obtain and review a written 
report that: reviews the behavior of the juvenile and the circumstances 
under which the juvenile was brought before the court and made subject 
to such order; determines the reasons for the juvenile's behavior; and 
determines whether all dispositions other than secure confinement have 
been exhausted or are clearly inappropriate. This report must be 
prepared and submitted by an appropriate public agency (other than a 
court or law enforcement agency).
    (vii) A non-offender such as a dependent or neglected child cannot 
be placed in secure detention or correctional facilities for violating a 
valid court order.
    (4) Removal exception (section 223(a)(14)). The following conditions 
must be met in order for an accused juvenile criminal-type offender, 
awaiting an initial court appearance, to be detained up to 24 hours 
(excluding weekends and holidays) in an adult jail or lockup:
    (i) The State must have an enforceable State law requiring an 
initial court appearance within 24 hours after being taken into custody 
(excluding weekends and holidays);
    (ii) The geographic area having jurisdiction over the juvenile is 
outside a metropolitan statistical area pursuant to the Bureau of 
Census' current designation;
    (iii) A determination must be made that there is no existing 
acceptable alternative placement for the juvenile pursuant to criteria 
developed by the State and approved by OJJDP;
    (iv) The adult jail or lockup must have been certified by the State 
to provide for the sight and sound separation of juveniles and 
incarcerated adults;
    (v) The State must provide documentation that the conditions in 
paragraphs(f)(4)(i) through (iv) of this section have been met and 
received prior approval from OJJDP. OJJDP strongly recommends that jails 
and lockups that incarcerate juveniles be required to provide youth 
specific admissions screening and continuous visual supervision of 
juveniles incarcerated pursuant to this exception; and
    (vi) Pursuant to section 223(a)(14) of the JJDP Act, the nonMSA (low 
population density) exception to the jail and lockup removal requirement 
as described in paragraphs (f)(4) (i) through (v) of this section shall 
remain in effect through 1997, and shall allow for secure custody beyond 
the twenty-four hour period described in paragraph (f)(4)(i) of this 
section when the facility is located where conditions of distance to be 
traveled or the lack of highway, road, or other ground transportation do 
not allow for court appearances within twenty-four hours, so that a 
brief (not to exceed an additional forty-eight hours) delay is 
excusable; or the facility is located where conditions of safety exist 
(such as severely adverse, life-

[[Page 486]]

threatening weather conditions that do not allow for reasonably safe 
travel), in which case the time for an appearance may be delayed until 
twenty-four hours after the time that such conditions allow for 
reasonably safe travel. States may use these additional statutory 
allowances only where the precedent requirements set forth in paragraphs 
(f)(4) (i) through (v) of this section have been complied with. This may 
necessitate statutory or judicial (court rule or opinion) relief within 
the State from the twenty-four hour initial court appearance standard 
required by paragraph (f)(4)(i) of this section.
    (5) Reporting requirement. The State shall report annually to the 
Administrator of OJJDP on the results of monitoring for section 
223(a)(12),(13), and (14) of the JJDP Act. The reporting period should 
provide 12 months of data, but shall not be less than six months. The 
report shall be submitted to the Administrator of OJJDP by December 31 
of each year.
    (i) To demonstrate the extent of compliance with section 
223(a)(12)(A) of the JJDP Act, the report must include, at a minimum, 
the following information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) Total number of public and private secure detention and 
correctional facilities, the total number reporting, and the number 
inspected on-site;
    (C) The total number of accused status offenders and nonoffenders, 
including out-of-State runaways and Federal wards, held in any secure 
detention or correctional facility for longer than twenty-four hours 
(not including weekends or holidays), excluding those held pursuant to 
the valid court order provision as set forth in paragraph (f)(3) of this 
section or pursuant to section 922(x) of title 18, United States Code 
(which prohibits the possession of a handgun by a juvenile), or a 
similar State law. A juvenile who violates this statute, or a similar 
state law, is excepted from the deinstitutionalization of status 
offenders requirement;
    (D) The total number of accused status offenders (including valid 
court order violators, out of state runaways, and Federal wards, but 
excluding Title 18 922(x) violators) and nonoffenders securely detained 
in any adult jail, lockup, or nonapproved collocated facility for any 
length of time;
    (E) The total number of adjudicated status offenders and 
nonoffenders, including out-of-state runaways and Federal wards, held 
for any length of time in a secure detention or correctional facility, 
excluding those held pursuant to the valid court order provision or 
pursuant to title 18 U.S.C. section 922(x);
    (F) The total number of status offenders held in any secure 
detention or correctional facility pursuant to the valid court order 
provision set forth in paragraph (f)(3) of this section; and
    (G) The total number of juvenile offenders held pursuant to title 18 
U.S.C. section 922(x).
    (ii) To demonstrate the extent to which the provisions of section 
223(a)(12)(B) of the JJDP Act are being met, the report must include the 
total number of accused and adjudicated status offenders and 
nonoffenders placed in facilities that are:
    (A) Not near their home community;
    (B) Not the least restrictive appropriate alternative; and
    (C) Not community-based.
    (iii) To demonstrate the extent of compliance with section 
223(a)(13) of the JJDP Act, the report must include, at a minimum, the 
following information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) The total number of facilities used to detain or confine both 
juvenile offenders and adult criminal offenders during the past 12 
months and the number inspected on-site;
    (C) The total number of facilities used for secure detention and 
confinement of both juvenile offenders and adult criminal offenders 
which did not provide sight and sound separation;
    (D) The total number of juvenile offenders and nonoffenders not 
separated from adult criminal offenders in facilities used for the 
secure detention and confinement of both juveniles and adults;
    (E) The total number of State approved juvenile detention centers 
located within the same building or on the same grounds as an adult jail 
or

[[Page 487]]

lockup, including a list of such facilities;
    (F) The total number of juveniles detained in State approved 
collocated facilities that were not separated from the management, 
security or direct care staff of the adult jail or lockup;
    (G) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup that 
have not been approved by the State, including a list of such 
facilities; and
    (H) The total number of juveniles detained in collocated facilities 
not approved by the State that were not sight and sound separated from 
adult criminal offenders.
    (iv) To demonstrate the extent of compliance with section 223(a)(14) 
of the JJDP Act, the report must include, at a minimum, the following 
information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) The total number of adult jails in the State AND the number 
inspected on-site;
    (C) The total number of adult lockups in the State AND the number 
inspected on-site;
    (D) The total number of adult jails holding juveniles during the 
past twelve months;
    (E) The total number of adult lockups holding juveniles during the 
past twelve months;
    (F) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups, and unapproved collocated 
facilities in excess of six hours, including those held pursuant to the 
``removal exception'' as set forth in paragraph (f)(4) of this section;
    (G) The total number of accused juvenile criminal-type offenders 
held securely in adult jails, lockups and unapproved collocated 
facilities for less than six hours for purposes other than 
identification, investigations, processing, release to parent(s), 
transfer to court, or transfer to a juvenile facility following initial 
custody;
    (H) The total number of adjudicated juvenile criminal-type offenders 
held securely in adult jails or lockups and unapproved collocated 
facilities in excess of six hours prior to or following a court 
appearance or for any length of time not related to a court appearance;
    (I) The total number of accused and adjudicated status offenders 
(including valid court order violators) and nonoffenders held securely 
in adult jails, lockups and unapproved collocated facilities for any 
length of time;
    (J) The total number of adult jails, lockups, and unapproved 
collocated facilities in areas meeting the ``removal exception'' as 
noted in paragraph (f)(4) of this section, including a list of such 
facilities and the county or jurisdiction in which each is located;
    (K) The total number of juveniles accused of a criminal-type offense 
who were held in excess of six hours but less than 24 hours in adult 
jails, lockups and unapproved collocated facilities pursuant to the 
``removal exception'' as set forth in paragraph (f)(4) of this section;
    (L) The total number of juveniles accused of a criminal-type offense 
who were held in excess of 24 hours, but not more than an additional 48 
hours, in adult jails, lockups and unapproved collocated facilities 
pursuant to the ``removal exception'' as noted in paragraph (f)(4) of 
this section, due to conditions of distance or lack of ground 
transportation; and
    (M) The total number of juveniles accused of a criminal-type offense 
who were held in excess of 24 hours, but not more than an additional 24 
hours after the time such conditions as adverse weather allow for 
reasonably safe travel, in adult jails, lockups and unapproved 
collocated facilities, in areas meeting the ``removal exception'' as 
noted in paragraph (f)(4) of this section.
    (6) Compliance. The State must demonstrate the extent to which the 
requirements of sections 223(a)(12)(A), (13), (14), and (23) of the Act 
are met. If the State fails to demonstrate full compliance with sections 
223(a)(12)(A) and (14), and compliance with sections 223(a)(13) and (23) 
by the end of the fiscal year for any fiscal year beginning with fiscal 
year 1994, the State's allotment under section 222 will be reduced by 
twenty five percent for each such failure, provided that the State will 
lose its eligibility for any allotment unless: the State agrees to 
expend all

[[Page 488]]

remaining funds (except planning and administration, State advisory 
group set-aside funds and Indian tribe pass-through funds) for the 
purpose of achieving compliance with the mandate(s) for which the State 
is in noncompliance; or the Administrator makes discretionary 
determination that the State has substantially complied with the 
mandate(s) for which there is noncompliance and that the State has made 
through appropriate executive or legislative action, an unequivocal 
commitment to achieving full compliance within a reasonable time. In 
order for a determination to be made that a State has substantially 
complied with the mandate(s), the State must demonstrate that it has: 
Diligently carried out the plan approved by OJJDP; demonstrated 
significant progress toward full compliance; submitted a plan based on 
an assessment of current barriers to DMC; and provided an assurance that 
added resources will be expended, be it formula grants or other funds, 
to achieve compliance. Where a State's allocation is reduced, the amount 
available for planning and administration and the required pass-through 
allocation, other than State advisory group set-aside, will be reduced 
because they are based on the reduced allocation.
    (i) Full compliance with section 223(a)(12)(A) is achieved when a 
State has removed 100 percent of status offenders and nonoffenders from 
secure detention and correctional facilities or can demonstrate full 
compliance with de minimis exceptions pursuant to the policy criteria 
contained in the Federal Register of January 9, 1981 (copies are 
available from the Office of General Counsel, Office of Justice 
Programs, 633 Indiana Ave. NW., Washington, DC 20531).
    (ii) Compliance with section 223(a)(13) has been achieved when a 
State can demonstrate that:
    (A) The last submitted monitoring report, covering a full 12 months 
of data, demonstrates that no juveniles were incarcerated in 
circumstances that were in violation of section 223(a)(13); or
    (B)(1) The instances of noncompliance reported in the last submitted 
monthly report do not indicate a pattern or practice but rather 
constitute isolated instances; and
    (2)(i) Where all instances of noncompliance reported were in 
violation of or departure from State law, rule, or policy that clearly 
prohibits the incarceration of all juvenile offenders in circumstances 
that would be in violation of section 223(a)(13), existing enforcement 
mechanisms are such that the instances of noncompliance are unlikely to 
recur in the future; or
    (ii) An acceptable plan has been developed to eliminate the 
noncompliant incidents.
    (iii)(A) Full compliance is achieved when a state demonstrates that 
the last submitted monitoring report, covering 12 months of actual data, 
demonstrates that no juveniles were held in adult jails or lockups in 
circumstances that were in violation of section 223(a)(14).
    (B) Full compliance with de minimis exceptions is achieved when a 
State demonstrates that it has met the standard set forth in either of 
paragraphs (f)(6)(iii)(B) (1) or (2) of this section:
    (1) Substantive de minimis standard. To comply with this standard 
the State must demonstrate that each of the following requirements have 
been met:
    (i) State law, court rule, or other statewide executive or judicial 
policy clearly prohibits the detention or confinement of all juveniles 
in circumstances that would be in violation of section 223(a)(14);
    (ii) All instances of noncompliance reported in the last submitted 
monitoring reported were in violation of or departures from, the State 
law, rule, or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of 
this section;
    (iii) The instances of noncompliance do not indicate a pattern or 
practice but rather constitute isolated instances;
    (iv) Existing mechanisms for the enforcement of the State law, rule 
or policy referred to in paragraph (f)(6)(iii)(B)(1)(i) of this section 
are such that the instances of noncompliance are unlikely to recur in 
the future; and
    (v) An acceptable plan has been developed to eliminate the 
noncompliant incidents and to monitor the existing

[[Page 489]]

mechanism referred to in paragraph (f)(6)(iii)(B)(1)(iv) of this 
section.
    (2) Numerical de minimis standard. To comply with this standard the 
State must demonstrate that each of the following requirements under 
paragraphs (f)(6)(iii)(B)(2) (i) and (ii) of this section have been met:
    (i) The incidents of noncompliance reported in the State's last 
submitted monitoring report do not exceed an annual rate of 9 per 
100,000 juvenile population of the State; and
    (ii) An acceptable plan has been developed to eliminate the 
noncompliant incidents through the enactment or enforcement of State 
law, rule, or statewide executive or judicial policy, education, the 
provision of alternatives, or other effective means.
    (iii) Exception. When the annual rate for a State exceeds 9 
incidents of noncompliance per 100,000 juvenile population, the State 
will be considered ineligible for a finding of full compliance with de 
minimis exceptions under the numerical de minimis standard unless the 
State has recently enacted changes in State law which have gone into 
effect and which the State demonstrates can reasonably be expected to 
have a substantial, significant and positive impact on the state's 
achieving full (100%) compliance or full compliance with de minimis 
exceptions by the end of the monitoring period immediately following the 
monitoring period under consideration.
    (iv) Progress. Beginning with the monitoring report due by December 
31, 1990, any State whose prior full compliance status is based on 
having met the numerical de minimis standard set forth in paragraph 
(f)(6)(iii)(B)(2)(i) of this Sec. 31.303, must annually demonstrate, in 
its request for a finding of full compliance with de minimis exceptions, 
continued and meaningful progress toward achieving full (100%) 
compliance in order to maintain eligibility for a continued finding of 
full compliance with de minimis exceptions.
    (v) Request submission. Determinations of full compliance and full 
compliance with de minimis exceptions are made annually by OJJDP 
following submission of the monitoring report due by December 31 of each 
calendar year. Any State reporting less than full (100%) compliance in 
any annual monitoring report may request a finding of full compliance 
with de minimis exceptions under paragraph (f)(6)(iii)(B) (1) or (2) of 
this section. The request may be submitted in conjunction with the 
monitoring report, as soon thereafter as all information required for a 
determination is available, or be included in the annual State plan and 
application for the State's formula grant award.
    (C) Waiver. Failure to achieve full compliance as defined in this 
section shall terminate any State's eligibility for FY 1993 and prior 
year formula grant funds unless the Administrator of OJJDP waives 
termination of the State's eligibility. ln order to be eligible for this 
waiver of termination, a State must request a waiver and demonstrate 
that it meets the standards set forth in paragraphs (f)(6)(iii)(C) (1)-
(7) of this section:
    (1) Agrees to expend all of its formula grant award except planning 
and administration, advisory group set-aside, and Indian tribe pass-
through funds, to achieve compliance with section 223(a)(14); and
    (2) Removed all status and nonoffender juveniles from adult jails 
and lockups. Compliance with this standard requires that the last 
submitted monitoring report demonstrate that no status offender 
(including those accused of or adjudicated for violating a valid court 
order) or nonoffender juveniles were securely detained in adult jails or 
lock-ups for any length of time; or that all status offenders and 
nonoffenders securely detained in adult jails and lock-ups for any 
length of time were held in violation of an enforceable State law and 
did not constitute a pattern or practice within the State; and
    (3) Made meaningful progress in removing juvenile criminal-type 
offenders from adult jails and lockups. Compliance with this standard 
requires the State to document a significant reduction in the number of 
jurisdictions securely detaining juvenile criminal-type offenders in 
violation of section 223 (a)(14) of the JJDP Act; or a significant 
reduction in the number of facilities securely detaining such juveniles; 
or a significant reduction in the average length of time each juvenile 
criminal-type offender is securely detained in an

[[Page 490]]

adult jail or lock-up; or State legislation has recently been enacted 
and taken effect and which the State demonstrates will significantly 
impact the secure detention of juvenile criminal-type offenders in adult 
jails and lock-ups; and
    (4) Diligently carried out the State's jail and lockup removal plan 
approved by OJJDP. Compliance with this standard requires that actions 
have been undertaken to achieve the State's jail and lock-up removal 
goals and objectives within approved time lines, and that the State 
Advisory Group, required by section 223 (a)(3) of the JJDP Act, has 
maintained an appropriate involvement in developing and/or implementing 
the State's plan; and
    (5) Submitted an acceptable plan, based on an assessment of current 
jail and lockup removal barriers within the State, to eliminate 
noncompliant incidents; and
    (6) Achieved compliance with section 223(a)(15) of the JJDP Act; and
    (7) Demonstrates an unequivocal commitment, through appropriate 
executive or legislative action, to achieving full compliance.
    (D) Waiver maximum. A State may receive a waiver of termination of 
eligibility from the Administrator under paragraph (f)(6)(iii)(C) of 
this section for a combined maximum of four Formula Grant Awards through 
Fiscal Year 1993. No additional waivers will be granted.
    (7) Monitoring report exemption. States which have been determined 
by the OJJDP Administrator to have achieved full compliance with 
sections 223(a)(12)(A), (a)(14), and compliance with section 223(a)(13) 
of the JJDP and wish to be exempted from the annual monitoring report 
requirements must submit a written request to the OJJDP Administrator 
which demonstrates that:
    (i) The State provides for an adequate system of monitoring jails, 
law enforcement lockup, detention facilities, to enable an annual 
determination of State compliance with sections 223(a)(12)(A), (13), and 
(14) of the JJDP Act;
    (ii) State legislation has been enacted which conforms to the 
requirements of Sections 223(a)(12)(A), (13), and (14) of the JJDP Act; 
and
    (iii) The enforcement of the legislation is statutorily or 
administratively prescribed, specifically providing that:
    (A) Authority for enforcement of the statute is assigned;
    (B) Time frames for monitoring compliance with the statute are 
specified; and
    (C) Adequate procedures are set forth for enforcement of the statute 
and the imposition of sanctions for violations.
    (g) Juvenile crime analysis. Pursuant to section 223(a)(8), the 
State must conduct an analysis of juvenile crime problems, including 
juvenile gangs that commit crimes, and juvenile justice and delinquency 
prevention needs within the State, including those geographical areas in 
which an Indian tribe performs law enforcement functions. The analysis 
and needs assessment must include educational needs, gender specific 
services, delinquency prevention and treatment services in rural areas, 
and mental health services available to juveniles in the juvenile 
justice system. The analysis should discuss barriers to accessing 
services and provide a plan to provide such services where needed.
    (1) Analysis. The analysis must be provided in the multiyear 
application. A suggested format for the analysis is provided in the 
Formula Grant Application Kit.
    (2) Product. The product of the analysis is a series of brief 
written problem statements set forth in the application that define and 
describe the priority problems.
    (3) Programs. Applications are to include descriptions of programs 
to be supported with JJDP Act formula grant funds. A suggested format 
for these programs is included in the application kit.
    (4) Performance indicators. A list of performance indicators must be 
developed and set forth for each program. These indicators show what 
data will be collected at the program level to measure whether 
objectives and performance goals have been achieved and should relate to 
the measures used in the problem statement and statement of program 
objectives.

[[Page 491]]

    (h) Annual performance report. Pursuant to section 223(a) and 
section 223(a)(22) the State plan shall provide for submission of an 
annual performance report. The State shall report on its progress in the 
implementation of the approved programs, described in the three-year 
plan. The performance indicators will serve as the objective criteria 
for a meaningful assessment of progress toward achievement of measurable 
goals. The annual performance report shall describe progress made in 
addressing the problem of serious juvenile crime, as documented in the 
juvenile crime analysis pursuant to section 223(a)(8)(A). The annual 
performance report must be submitted to OJJDP no later than June 30 and 
address all formula grant activities carried out during the previous 
complete calendar year, federal fiscal year, or State fiscal year for 
which information is available, regardless of which year's formula grant 
funds were used to support the activities being reported on, e.g., 
during a reporting period, activities may have been funded from two or 
more formula grant awards.
    (i) Technical assistance. States shall include, within their plan, a 
description of technical assistance needs. Specific direction regarding 
the development and inclusion of all technical assistance needs and 
priorities will be provided in the ``Application Kit for Formula Grants 
under the JJDPA.''
    (j) Minority detention and confinement. Pursuant to section 
223(a)(23) of the JJDP Act, States must demonstrate specific efforts to 
reduce the proportion of juveniles detained or confined in secure 
detention facilities, secure correctional facilities, jails and lockups 
who are members of minority groups if such proportion exceeds the 
proportion such groups represent in the general population, viz., in 
most States, youth between ages ten-seventeen are subject to secure 
custody. It is essential that States approach this statutory mandate in 
a comprehensive manner. The purpose of the statute and the regulation in 
this part is to encourage States to address, programmatically, any 
features of its justice system, and related laws and policies, that may 
account for the disproportionate detention or confinement of minority 
juveniles in secure detention facilities, secure correctional 
facilities, jails, and lockups. The disproportionate minority 
confinement core requirement neither establishes nor requires numerical 
standards or quotas in order for a State to achieve or maintain 
compliance. Compliance with this provision is achieved when a State 
meets the requirements set forth in paragraphs (j)(1) through (3) of 
this section:
    (1) Identification. Provide quantifiable documentation (State, 
county and local level) in the State's FY 1994 Formula Grant Plan (and 
all subsequent Multi-Year Plans) Juvenile Crime Analysis and Needs 
Assessment to determine whether minority juveniles are 
disproportionately detained or confined in secure detention and 
correctional facilities, jails and lockups in relation to their 
proportion of the State juvenile population. Guidelines are provided in 
the OJJDP Disproportionate Minority Confinement Technical Assistance 
Manual (see Phase I Matrix). Where quantifiable documentation is not 
available to determine if disproportionate minority confinement exists 
in secure detention and correctional facilities, jails and lockups, the 
State must provide a time-limited plan of action, not to exceed six 
months, for developing and implementing a system for the ongoing 
collection, analysis and dissemination of information regarding 
minorities for those facilities where documentation does not exist.
    (2) Assessment. Each State's FY 1994 Formula Grant Plan must provide 
a completed assessment of disproportionate minority confinement. 
Assessments must, at minimum, identify and explain differences in 
arrest, diversion and adjudication rates, court dispositions other than 
incarceration, the rates and periods of prehearing detention in and 
dispositional commitments to secure facilities of minority youth in the 
juvenile justice system, and transfers to adult court (see Phase II 
Matrix). If a completed assessment is not available, the State must 
submit a time-limited plan (not to exceed twelve months from submission 
of the Formula Grant Application) for completing the assessment.

[[Page 492]]

    (3) Intervention. Each State's FY 1995 Formula Grant Plan must, 
where disproportionate confinement has been demonstrated, provide a 
time-limited plan of action for reducing the disproportionate 
confinement of minority juveniles in secure facilities. The intervention 
plan shall be based on the results of the assessment, and must include, 
but not be limited to the following:
    (i) Diversion. Increasing the availability and improving the quality 
of diversion programs for minorities who come in contact with the 
juvenile justice system, such as police diversion programs;
    (ii) Prevention. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for prevention 
programs in communities with a high percentage of minority residents 
with emphasis upon support for community-based organizations (including 
non-traditional organizations) that serve minority youth;
    (iii) Reintegration. Providing developmental, operational, and 
assessment assistance (financial and/or technical) for programs designed 
to reduce recidivism by facilitating the reintegration of minority youth 
in the community following release from dispositional commitments to 
reduce recidivism;
    (iv) Policies and procedures. Providing financial and/or technical 
assistance that addresses necessary changes in statewide and local, 
executive, judicial, and legal representation policies and procedures; 
and
    (v) Staffing and training. Providing financial and/or technical 
assistance that addresses staffing and training needs that will 
positively impact the disproportionate confinement of minority youth in 
secure facilities.
    (4) The time-limited plans of action set forth in paragraphs (j) 
(1), (2) and (3) of this section must include a clear indication of 
current and future barriers; which agencies, organizations, or 
individual(s) will be responsible for taking what specific actions; 
when; and what the anticipated outcomes are. The interim and final 
outcomes from implementation of the time-limited plan of action must be 
reported in each State's Multi-Year Plans and Annual Plan Updates. Final 
outcomes for individual project awards are to be included with each 
State's annual performance report (See paragraph (h) of this section).
    (5) Technical assistance is available through the OJJDP Technical 
Assistance Contract to help guide States with the data collection and 
analysis, and with programmatic elements of this requirement. 
Information from the OJJDP Special Emphasis Initiative on 
Disproportionate Minority Confinement pilot sites will be disseminated 
as it becomes available.
    (6) For purposes of this statutory mandate, minority populations are 
defined as: African-Americans, American Indians, Asians, Pacific 
Islanders, and Hispanics.
    (k) Pursuant to section 223(a)(24) of the JJDP Act, states shall 
agree to other terms and conditions as the Administrator may reasonably 
prescribe to assure the effectiveness of programs assisted under the 
Formula Grant.

[60 FR 28440, May 31, 1995, as amended at 61 FR 65138, Dec. 10, 1996]



Sec. 31.304  Definitions.

    (a) Private agency. A private non-profit agency, organization or 
institution is:
    (1) Any corporation, foundation, trust, association, cooperative, or 
accredited institution of higher education not under public supervision 
or control; and
    (2) Any other agency, organization or institution which operates 
primarily for scientific, education, service, charitable, or similar 
public purposes, but which is not under public supervision or control, 
and no part of the net earnings of which inures or may lawfully inure to 
the benefit of any private shareholder or individual, and which has been 
held by IRS to be tax-exempt under the provisions of section 501(c)(3) 
of the 1954 Internal Revenue Code.
    (b) Secure. As used to define a detention or correctional facility 
this term includes residential facilities which include construction 
features designed to physically restrict the movements and activities of 
persons in custody such as locked rooms and buildings, fences, or other 
physical structures. It does not

[[Page 493]]

include facilities where physical restriction of movement or activity is 
provided solely through facility staff.
    (c) Facility. A place, an institution, a building or part thereof, 
set of buildings or an area whether or not enclosing a building or set 
of buildings which is used for the lawful custody and treatment of 
juveniles and may be owned and/or operated by public and private 
agencies.
    (d) Juvenile who is accused of having committed an offense. A 
juvenile with respect to whom a petition has been filed In the juvenile 
court or other action has occurred alleging that such juvenile is a 
juvenile offender, i.e., a criminal-type offender or a status offender, 
and no final adjudication has been made by the juvenile court.
    (e) Juvenile who has been adjudicated as having committed an 
offense. A juvenile with respect to whom the juvenile court has 
determined that such juvenile is a juvenile offender, i.e., a criminal-
type offender or a status offender.
    (f) Juvenile offender. An individual subject to the exercise of 
juvenile court jurisdiction for purposes of adjudication and treatment 
based on age and offense limitations by defined as State law, i.e., a 
criminal-type offender or a status offender.
    (g) Criminal-type offender. A juvenile offender who has been charged 
with or adjudicated for conduct which would, under the law of the 
jurisdiction in which the offense was committed, be a crime if committed 
by an adult.
    (h) Status offender. A juvenile offender who has been charged with 
or adjudicated for conduct which would not, under the law of the 
jurisdiction in which the offense was committed, be a crime if committed 
by an adult.
    (i) Non-offender. A juvenile who is subject to the jurisdiction of 
the juvenile court, usually under abuse, dependency, or neglect statutes 
for reasons other than legally prohibited conduct of the juvenile.
    (j) Lawful custody. The exercise of care, supervision and control 
over a juvenile offender or non-offender pursuant to the provisions of 
the law or of a judicial order or decree.
    (k) Other individual accused of having committed a criminal offense. 
An individual, adult or juvenile, who has been charged with committing a 
criminal offense in a court exercising criminal jurisdiction.
    (l) Other individual convicted of a criminal offense. An individual, 
adult or juvenile, who has been convicted of a criminal offense in court 
exercising criminal jurisdiction.
    (m) Adult jail. A locked facility, administered by State, county or 
local law enforcement and correctional agencies, the purpose of which is 
to detain adults charged with violating criminal law, pending trial. 
Also considered as adult jails are those facilities used to hold 
convicted adult criminal offenders sentenced for less than one year.
    (n) Adult lockup. Similar to an adult jail except that an adult 
lockup is generally a municipal or police facility of a temporary nature 
which does not hold persons after they have been formally charged.
    (o) Valid court order. The term means a court order given by a 
juvenile court judge to a juvenile who has been brought before the court 
and made subject to a court order. The use of the word ``valid'' permits 
the incarceration of juveniles for violation of a valid court order only 
if they received their full due process rights as guaranteed by the 
Constitution of the United States.
    (p) Local private agency. For the purposes of the pass-through 
requirement of section 223(a)(5), a local private agency is defined as a 
private non-profit agency or organization that provides program services 
within an identifiable unit or a combination of units of general local 
government.

                    General Conditions and Assurances



Sec. 31.400  Compliance with statute.

    The applicant State must assure and certify that the State and its 
subgrantees and contractors will comply with applicable provisions of 
the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 
as amended, and with the provisions of the Juvenile Justice and 
Delinquency Prevention Act of 1974, Pub. L. 93-415, as amended, and the 
provisions of the current edition of OJP Financial and Administrative 
Guide for Grants, M7100.1.

[[Page 494]]



Sec. 31.401  Compliance with other Federal laws, orders, circulars.

    The applicant State must further assure and certify that the State 
and its subgrantees and contractors will adhere to other applicable 
Federal laws, orders and OMB circulars. These general Federal laws and 
regulations are described in greater detail in the Financial and 
Administrative Guide for Grants, M7100.1, and the Formula Grant 
Application Kit.



Sec. 31.402  Application on file.

    Any Federal funds awarded pursuant to an application must be 
distributed and expended pursuant to and in accordance with the programs 
contained in the applicant State's current approved application. Any 
departures therefrom, other than to the extent permitted by current 
program and fiscal regulations and guidelines, must be submitted for 
advance approval by the Administrator of OJJDP.



Sec. 31.403  Civil rights requirements.

    The State assures that it will comply, and that subgrantees and 
contractors will comply, with all applicable Federal non-discrimination 
requirements, including:
    (a) Section 809(c) of the Omnibus Crime Control and Safe Streets Act 
as 1968, as amended, and made applicable by section 299(A) of the 
Juvenile Justice and Delinquency Prevention Act of 1974, as amended;
    (b) Title VI of the Civil Rights Act of 1964, as amended;
    (c) Section 504 of the Rehabilitation Act of 1973, as amended;
    (d) Title IX of the Education Amendments of 1972;
    (e) The Age Discrimination Act of 1975;
    (f) The Department of Justice NonDiscrimination regulations, 28 CFR 
part 42, subparts C, D, E, and G;
    (g) The Department of Justice regulations on disability 
discrimination, 28 CFR parts 35 and 39; and
    (h) Subtitle A, title II of the Americans with Disabilities Act 
(ADA) of 1990.



Sec. 31.404  Participation by faith-based organizations.

    The funds provided under this part shall be administered in 
compliance with the standards set forth in part 38 (Equal Treatment for 
Faith-based Organizations) of this chapter.

[Order No. 2703-2004, 69 FR 2838, Jan. 21, 2004]



        Subpart B_Juvenile Accountability Incentive Block Grants

    Source: 64 FR 19676, Apr. 21, 1999, unless otherwise noted.



Sec. 31.500  Program purposes.

    Funds are available under the Juvenile Accountability Incentive 
Block Grants (JAIBG) in FY 1998, FY 1999, and each subsequent fiscal 
year as funds are made available, for State and local grants to support 
the following program purposes:
    (a) Program purpose no. 1: Building, expanding, renovating, or 
operating temporary or permanent juvenile correction or detention 
facilities, including the training of correctional personnel;
    (b) Program purpose no. 2: Developing and administering 
accountability-based sanctions for juvenile offenders;
    (c) Program purpose no. 3: Hiring additional juvenile judges, 
probation officers, and court-appointed defenders, and funding pre-trial 
services for juveniles, to ensure the smooth and expeditious 
administration of the juvenile justice system;
    (d) Program purpose no. 4: Hiring additional prosecutors, so that 
more cases involving violent juvenile offenders can be prosecuted and 
backlogs reduced;
    (e) Program purpose no. 5: Providing funding to enable prosecutors 
to address drug, gang, and youth violence more effectively;
    (f) Program purpose no. 6: Providing funding for technology, 
equipment, and training to assist prosecutors in identifying and 
expediting the prosecution of violent juvenile offenders;
    (g) Program purpose no. 7: Providing funding to enable juvenile 
courts and juvenile probation offices to be more effective and efficient 
in holding juvenile offenders accountable and reducing recidivism;

[[Page 495]]

    (h) Program purpose no. 8: The establishment of court-based juvenile 
justice programs that target young firearms offenders through the 
establishment of juvenile gun courts for the adjudication and 
prosecution of juvenile firearms offenders;
    (i) Program purpose no. 9: The establishment of drug court programs 
for juveniles so as to provide continuing judicial supervision over 
juvenile offenders with substance abuse problems and to provide the 
integrated administration of other sanctions and services;
    (j) Program purpose no. 10: Establishing and maintaining interagency 
information sharing programs that enable the juvenile and criminal 
justice system, schools, and social services agencies to make more 
informed decisions regarding the early identification, control, 
supervision, and treatment of juveniles who repeatedly commit serious 
delinquent or criminal acts;
    (k) Program purpose no. 11: Establishing and maintaining 
accountability-based programs that work with juvenile offenders who are 
referred by law enforcement agencies, or which are designed, in 
cooperation with law enforcement officials, to protect students and 
school personnel from drug, gang, and youth violence; and,
    (l) Program purpose no. 12: Implementing a policy of controlled 
substance testing for appropriate categories of juveniles within the 
juvenile justice system.



Sec. 31.501  Eligible applicants.

    (a) Eligible applicants. Eligible applicants in FY 1998, FY 1999, 
and each subsequent fiscal year as funds are made available, are States 
whose Governor (or other Chief Executive Officer for the eligible 
jurisdictions that are not one of the 50 States but defined as such for 
purposes of this program) certifies, consistent with guidelines 
established by the Attorney General in consultation with Congress and 
incorporated into OJJDP's Program Guidance Manual, that the State is 
actively considering (or already has in place), or will consider within 
one year from the date of such certification, legislation, policies, or 
practices which, if enacted, would qualify the State for a grant. 
Specific information regarding qualifications can be found in the JAIBG 
Program Guidance Manual.
    (b) Qualifications. Each State Chief Executive Officer must 
designate a state agency to apply for, receive, and administer JAIBG 
funds.



Sec. 31.502  Assurances and plan information.

    (a) In its application for a Juvenile Accountability Incentive Block 
Grant (JAIBG), each State must provide assurances to the Office of 
Juvenile Justice and Delinquency Prevention (OJJDP), absent a waiver as 
provided in the JAIBG Program Guidance Manual, that:
    (1) The State will subgrant at least 75% of the State's allocation 
of funds to eligible units of local government to implement authorized 
programs at the local level; and
    (2) The State, and each unit of local government applying for a 
subgrant from the State, will expend not less than 45% of any grant 
provided to such State or unit of local government, other than funds set 
aside for administration, for program purposes 3-9 in Sec. 31.500 (c) 
through (i) of this subpart, and will not spend less than 35% for 
program purposes 1, 2, and 10 in Sec. 31.500 (a), (b), and (j) of this 
subpart, unless the State certifies to OJJDP, or the unit of local 
government certifies to the State, that the interests of public safety 
and juvenile crime control would be better served by expending the grant 
award for purposes set forth in the twelve program areas in a different 
ratio. Such certification shall provide information concerning the 
availability of existing structures or initiatives within the intended 
areas of expenditure (or the availability of alternative funding sources 
for those areas), and the reasons for the State or unit of local 
government's alternative use.
    (3) The funds provided under this part shall be administered in 
compliance with the standards set forth in part 38 (Equal Treatment for 
Faith-based Organizations) of this chapter.
    (b) Following award of JAIBG funds to a State by OJJDP, but prior to 
obligation of program funds by the State or of subgrant funds by a unit 
of local

[[Page 496]]

government for any authorized program purpose, a State administering 
JAIBG funds must provide to OJJDP information that demonstrates that the 
State, or a unit of local government that receives JAIBG funds, has 
established a coordinated enforcement plan for reducing juvenile crime, 
developed by a Juvenile Crime Enforcement Coalition (JCEC).
    (c) State coordinated enforcement plans must be developed by a 
Juvenile Crime Enforcement Coalition consisting of representatives of 
law enforcement and social service agencies involved in juvenile crime 
prevention. To assist in developing the State's coordinated enforcement 
plan, States may choose to utilize members of the State Advisory Group 
(SAG) established by the State's Chief Executive under section 223(a)(3) 
of Part B of the Juvenile Justice and Delinquency Prevention (JJDP) Act 
of 1974, as amended, codified at 42 U.S.C. 5633(a)(3), if appropriate 
membership exists, or use or establish another planning group that 
constitutes a coalition of law enforcement and social service agencies.
    (d) When establishing a local Juvenile Crime Enforcement Coalition 
(JCEC), units of local government must include, unless impracticable, 
individuals representing:
    (1) Police,
    (2) Sheriff,
    (3) Prosecutor,
    (4) State or local probation services,
    (5) Juvenile court,
    (6) Schools,
    (7) Business, and
    (8) Religious affiliated, fraternal, nonprofit, or social service 
organizations involved in crime prevention.
    (e) Units of local government may utilize members of Prevention 
Policy Boards established pursuant to section 505(b)(4) of Title V of 
the JJDP Act, codified at 42 U.S.C. 5784(b)(4), to meet the JCEC 
requirement, provided that each JCEC meets the membership requirements 
listed in paragraph (d) of this section.

[64 FR 19676, Apr. 21, 1999, as amended by Order No. 2703-2004, 69 FR 
2838, Jan. 21, 2004]



Sec. 31.503  Notice of proposed use of funds.

    The mechanism for a State to report on the proposed use of funds by 
the State or by a subgrantee unit of local government is by electronic 
submission of a ``Follow Up Information Form'' to be provided to each 
participating State. The purpose of this report is for the State to 
provide assurances to OJJDP that funds expended by the State and its 
subgrantee units of local government will be used for authorized program 
purpose areas. Although no actual program descriptions will be required, 
information about the distribution of funds among the authorized program 
purpose areas must be provided. Upon receipt and review of the ``Follow 
Up Information Form'' by OJJDP, States may obligate program funds 
retained for expenditure at the State level. Similarly, the State shall 
require that each recipient unit of local government submit its proposed 
use of non-administrative funds to the State prior to drawdown of 
subgrant funds to implement local programs and projects. Upon receipt 
and review of the local unit of government's proposed fund use, the 
State shall authorize the local unit of government to obligate local 
subgrant funds. The State shall electronically submit a copy of the 
local subgrant information to OJJDP, as provided in the award package, 
within 30 days of the date that the local unit of government is 
authorized to obligate program funds under its subgrant award.



PART 32_PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL
ASSISTANCE BENEFIT CLAIMS--Table of Contents




Sec.
32.0 Scope of part.

                      Subpart A_General Provisions

32.1 Scope of subpart.
32.2 Computation of time; filing.
32.3 Definitions.
32.4 Terms; construction, severability; effect.
32.5 Evidence.
32.6 Payment and repayment.
32.7 Fees for representative services.
32.8 Exhaustion of administrative remedies.

[[Page 497]]

                     Subpart B_Death Benefit Claims

32.11 Scope of subpart.
32.12 Time for filing claim.
32.13 Definitions.
32.14 PSOB Office determination.
32.15 Prerequisite certification.
32.16 Payment.
32.17 Request for Hearing Officer determination.

                   Subpart C_Disability Benefit Claims

32.21 Scope of subpart.
32.22 Time for filing claim.
32.23 Definitions.
32.24 PSOB Office determination.
32.25 Prerequisite certification.
32.26 Payment.
32.27 Motion for reconsideration of negative disability finding.
32.28 Reconsideration of negative disability finding.
32.29 Request for Hearing Officer determination.

             Subpart D_Educational Assistance Benefit Claims

32.31 Scope of subpart.
32.32 Time for filing claim.
32.33 Definitions.
32.34 PSOB Office determination.
32.35 Disqualification.
32.36 Payment and repayment.
32.37 Request for Hearing Officer determination.

                Subpart E_Hearing Officer Determinations

32.41 Scope of subpart.
32.42 Time for filing request for determination.
32.43 Appointment and assignment of Hearing Officers.
32.44 Hearing Officer determination.
32.45 Hearings.
32.46 Director appeal.

                 Subpart F_Director Appeals and Reviews

32.51 Scope of subpart.
32.52 Time for filing Director appeal.
32.53 Review.
32.54 Director determination.
32.55 Judicial appeal.

    Authority: 42 U.S.C. ch. 46, subch. XII; 42 U.S.C. 3782(a), 3787, 
3788, 3791(a), 3793(a)(4) &(b), 3795a, 3796c-1, 3796c-2; sec. 1601, 
title XI, Public Law 90-351, 82 Stat. 239; secs. 4 through 6, Public Law 
94-430, 90 Stat. 1348; secs. 1 and 2, Public Law 107-37, 115 Stat. 219.

    Source: 71 FR 46037, Aug. 10, 2006, unless otherwise noted.



Sec. 32.0  Scope of part.

    This part implements the Act, which, as a general matter, authorizes 
the payment of three different legal gratuities:
    (a) Death benefits;
    (b) Disability benefits; and
    (c) Educational assistance benefits.

[73 FR 76528, Dec. 17, 2008]



                      Subpart A_General Provisions



Sec. 32.1  Scope of subpart.

    This subpart contains provisions generally applicable to this part.



Sec. 32.2  Computation of time; filing.

    (a) In computing any period of time prescribed or allowed, the day 
of the act, event, or default from which the designated period of time 
begins to run shall not be included. The last day of the period so 
computed shall be included, unless it is a Saturday, a Sunday, or a 
federal legal holiday, or, when the act to be done is a filing with the 
PSOB Office, a day on which weather or other conditions have caused that 
Office to be closed or inaccessible, in which event the period runs 
until the end of the next day that is not one of the aforedescribed 
days.
    (b) A filing is deemed filed with the PSOB Office, a Hearing 
Officer, the Director, or any other OJP office, -officer, -employee, or 
-agent, only on the day that it actually is received at the office of 
the same. When a filing is prescribed to be filed with more than one of 
the foregoing, it shall be deemed filed as of the day the last such one 
so receives it.
    (c) Notice is served by the PSOB Office upon an individual on the 
day that it is--
    (1) Mailed, by U.S. mail, addressed to the individual (or to his 
representative) at his (or his representative's) last address known to 
such Office;
    (2) Delivered to a courier or other delivery service, addressed to 
the individual (or to his representative) at his (or his 
representative's) last address known to such Office; or

[[Page 498]]

    (3) Sent by electronic means such as telefacsimile or electronic 
mail, addressed to the individual (or to his representative) at his (or 
his representative's) last telefacsimile number or electronic-mail 
address, or other electronic address, known to such Office.
    (d) In the event of withdrawal or abandonment of a filing, the time 
periods prescribed for the filing thereof shall not be tolled, unless, 
for good cause shown, the Director grants a waiver.
    (e) No claim may be filed (or approved) under the Act, at 42 U.S.C. 
3796(a) or (b), with respect to an injury, if a claim under the Act, at 
42 U.S.C. 3796c-1 or Public Law 107-37, has been approved, with respect 
to the same injury.
    (f) No claim may be filed (or approved) under the Act, at 42 U.S.C. 
3796c-1 or Public Law 107-37, with respect to an injury, if a claim 
under the Act, at 42 U.S.C. 3796(a) or (b), has been approved, with 
respect to the same injury.



Sec. 32.3  Definitions.

    Act means the Public Safety Officers' Benefits Act of 1976 
(generally codified at 42 U.S.C. 3796, et seq.; part L of title I of the 
Omnibus Crime Control and Safe Streets Act of 1968) (including 
(uncodified) sections 4 through 6 thereof (payment in advance of 
appropriations, rule of construction and severability, and effective 
date and applicability)), as applicable (cf. Sec. 32.4(d)) according to 
its effective date and those of its various amendments (e.g., Sept. 29, 
1976 (deaths of State and local law enforcement officers and 
firefighters); Jan. 1, 1978 (educational assistance (officer died)); 
Oct. 1, 1984 (deaths of federal law enforcement officers and 
firefighters); Oct. 18, 1986 (deaths of rescue squad and ambulance crew 
members); Nov. 29, 1990 (disabilities); Oct. 3, 1996 (educational 
assistance (officer disabled)); Oct. 30, 2000 (disaster relief workers); 
Sept. 11, 2001 (chaplains and insurance beneficiaries); Dec. 15, 2003 
(certain heart attacks and strokes); and Apr. 5, 2006 (designated 
beneficiaries)); and also includes Public Law 107-37 and section 611 of 
the USA PATRIOT Act (both of which relate to payment of benefits, 
described under subpart 1 of such part L, in connection, respectively, 
with the terrorist attacks of Sept. 11, 2001, or with such terrorist 
attacks as may occur after Oct. 26, 2001), as well as the proviso under 
the Public Safety Officers Benefits heading in title II of division B of 
section 6 of Public Law 110-161.
    Adopted child--An individual is an adopted child of a public safety 
officer only if--
    (1) The individual is legally adopted by the officer; or
    (2) As of the injury date, and not being a stepchild, the individual 
was--
    (i) Known by the officer not to be his biological first-generation 
offspring; and
    (ii) After the officer obtained such knowledge, in a parent-child 
relationship with him.
    Authorized commuting means travel (not being described in the Act, 
at 42 U.S.C. 3796a(1), and not being a frolic or a detour) by a public 
safety officer--
    (1) In the course of actually responding (as authorized) to a fire-, 
rescue-, or police emergency, or to a particular and extraordinary 
request (by the public agency he serves) for that specific officer to 
perform public safety activity (including emergency response activity 
the agency is authorized to perform), within his line of duty; or
    (2) Between home and work (at a situs (for the performance of line 
of duty activity or action) authorized or required by the public agency 
he serves), or between any such authorized or required situs and 
another--
    (i) Using a vehicle provided by such agency, pursuant to a 
requirement or authorization by such agency that he use the same for 
commuting; or
    (ii) Using a vehicle not provided by such agency, pursuant to a 
requirement by such agency that he use the same for work.
    Biological means genetic, but does not include circumstances where 
the genetic donation (under the laws of the jurisdiction where the 
offspring is conceived) does not (as of the time of such conception) 
legally confer parental rights and obligations.
    BJA means the Bureau of Justice Assistance, OJP.

[[Page 499]]

    Cause--A death, injury, or disability is caused by intentional 
misconduct if--
    (1) The misconduct is a substantial factor in bringing it about; and
    (2) It is a reasonably foreseeable result of the misconduct.
    Certification means a formal assertion of a fact (or facts), in a 
writing that is--
    (1) Expressly intended to be relied upon by the PSOB determining 
official in connection with the determination of a claim specifically 
identified therein;
    (2) Expressly directed to the PSOB determining official;
    (3) Legally subject to the provisions of 18 U.S.C. 1001 (false 
statements) and 1621 (perjury), and 28 U.S.C. 1746 (declarations under 
penalty of perjury), and expressly declares the same to be so;
    (4) Executed by a natural person with knowledge of the fact (or 
facts) asserted and with legal authority to execute the writing (such as 
to make the assertion legally that of the certifying party), and 
expressly declares the same (as to knowledge and authority) to be so;
    (5) In such form as the Director may prescribe from time to time;
    (6) True, complete, and accurate (or, at a minimum, not known or 
believed by the PSOB determining official to contain any material 
falsehood, incompleteness, or inaccuracy); and
    (7) Unambiguous, precise, and unequivocal, in the judgment of the 
PSOB determining official, as to any fact asserted, any matter otherwise 
certified, acknowledged, indicated, or declared, and any provision of 
this definition.
    Certification described in the Act, at 42 U.S.C. 3796c-1 or Public 
Law 107-37, means a certification, acknowledging all the matter 
specified in Sec. 32.5(f)(1) and (2)--
    (1) In which the fact (or facts) asserted is the matter specified in 
Sec. 32.5(f)(3);
    (2) That expressly indicates that all of the terms used in making 
the assertion described in paragraph (1) of this definition (or used in 
connection with such assertion) are within the meaning of the Act, at 42 
U.S.C. 3796c-1 or Public Law 107-37, and of this part; and
    (3) That otherwise satisfies the provisions of the Act, at 42 U.S.C. 
3796c-1 or Public Law 107-37, and of this part.
    Chaplain means a clergyman, or other individual trained in pastoral 
counseling, who meets the definition provided in the Act, at 42 U.S.C. 
3796b(2).
    Child of a public safety officer means an individual--
    (1) Who--
    (i) Meets the definition provided in the Act, at 42 U.S.C. 3796b(3), 
in any claim--
    (A) Arising from the public safety officer's death, in which the 
death was simultaneous (or practically simultaneous) with the injury; or
    (B) Filed after the public safety officer's death, in which the 
claimant is the officer's--
    (1) Biological child, born after the injury date;
    (2) Adopted child, adopted by him after the injury date; or
    (3) Stepchild, pursuant to a marriage entered into by him after the 
injury date; or
    (ii) In any claim not described in paragraph (1)(i) of this 
definition--
    (A) Meets (as of the injury date) the definition provided in the 
Act, at 42 U.S.C. 3796b(3), mutatis mutandis (i.e., with ``deceased'' 
and ``death'' being substituted, respectively, by ``deceased or 
disabled'' and ``injury''); or
    (B) Having been born after the injury date, is described in 
paragraph (1)(i)(B)(1), (2), or (3) of this definition; and
    (2) With respect to whom the public safety officer's parental rights 
have not been terminated, as of the injury date.
    Commonly accepted means generally agreed upon within the medical 
profession.
    Consequences of an injury that permanently prevent an individual 
from performing any gainful work means an injury whose consequences 
permanently prevent an individual from performing any gainful work.
    Convincing evidence means clear and convincing evidence.
    Crime means an act or omission punishable as a criminal misdemeanor 
or felony.

[[Page 500]]

    Criminal laws means that body of law that declares what acts or 
omissions are crimes and prescribes the punishment that may be imposed 
for the same.
    Department or agency--An entity is a department or agency within the 
meaning of the Act, at 42 U.S.C. 3796b(8), and this part, only if the 
entity is--
    (1) A court;
    (2) An agency described in the Act, at 42 U.S.C. 3796b(9)(B) or (C); 
or
    (3) Otherwise a public entity--
    (i) That is legally an express part of the internal organizational 
structure of the relevant government;
    (ii) That has no legal existence independent of such government; and
    (iii) Whose obligations, acts, omissions, officers, and employees 
are legally those of such government.
    Determination means the approval or denial of a claim (including an 
affirmance or reversal pursuant to a motion for reconsideration under 
Sec. 32.27), the determination described in the Act, at 42 U.S.C. 
3796(c), or any recommendation under Sec. 32.54(c)(3).
    Director means the Director of BJA.
    Direct and proximate cause--Except as may be provided in the Act, at 
42 U.S.C. 3796(k), something directly and proximately causes a wound, 
condition, or cardiac-event, if it is a substantial factor in bringing 
the wound, condition, or cardiac-event about.
    Direct and proximate result of an injury--Except as may be provided 
in the Act, at 42 U.S.C. 3796(k), a death or disability results directly 
and proximately from an injury if the injury is a substantial factor in 
bringing it about.
    Disaster relief activity means activity or an action encompassed 
within the duties described in the Act, at 42 U.S.C. 3796b(9)(B) or (C).
    Disaster relief worker means any individual who meets the definition 
provided in the Act, at 42 U.S.C. 3796b(9)(B) or (C).
    Disturbance includes any significant and negative alteration, any 
significant negative deviation from the objectively normal, or any 
significant deterioration.
    Divorce means a legally-valid divorce from the bond of wedlock 
(i.e., the bond of marriage), except that, otherwise, and 
notwithstanding any other provision of law, a spouse (or purported 
spouse) of an individual shall be considered to be divorced from that 
individual within the meaning of this definition if, subsequent to his 
marriage (or purported marriage) to that individual (and while that 
individual is living), the spouse (or purported spouse)--
    (1) Holds himself out as being divorced from, or not being married 
to, the individual;
    (2) Holds himself out as being married to another individual; or
    (3) Was a party to a ceremony purported by the parties thereto to be 
a marriage between the spouse (or purported spouse) and another 
individual.
    Drugs or other substances means controlled substances within the 
meaning of the drug control and enforcement laws, at 21 U.S.C. 802(6).
    Educational/academic institution means an institution whose primary 
purpose is educational or academic learning.
    Eligible payee means--
    (1) An individual (other than the officer) described in the Act, at 
42 U.S.C. 3796(a), with respect to a claim under subpart B of this part; 
or
    (2) An individual described in the Act, at 42 U.S.C. 3796(b), with 
respect to a claim under subpart C of this part.
    Emergency medical services means--
    (1) Provision of first-response emergency medical care (other than 
in a permanent medical-care facility); or
    (2) Transportation of persons in medical distress (or under 
emergency conditions) to medical-care facilities.
    Emergency response activity means response to a fire-, rescue-, or 
police emergency.
    Employed by a public agency--A public safety officer is employed, 
within the meaning of the Act, at 42 U.S.C. 3796c-1 or Public Law 107-
37, by a public agency, when he--
    (1) Is employed by the agency in a civilian capacity; and
    (2) Is--
    (i) Serving the agency in an official capacity (with respect to 
officers of any kind but disaster relief workers); or
    (ii) Performing official duties as described in the Act, at 42 
U.S.C.

[[Page 501]]

3796b(9)(B) or (C) (with respect to disaster relief workers).
    Employee does not include--
    (1) Any independent contractor; or
    (2) Any individual who is not eligible to receive death or 
disability benefits from the purported employer on the same basis as a 
regular employee of such employer would.
    Employment in a civilian capacity refers to status as a civilian, 
rather than to the performance of civilian functions.
    Filing means any claim, request, motion, election, petition, or 
appeal, and any item or matter (e.g., evidence, certifications, 
authorizations, waivers, legal arguments, or lists) that is, or may be, 
filed with the PSOB Office.
    Fire protection means--
    (1) Suppression of fire;
    (2) Hazardous-material response; or
    (3) Emergency medical services or rescue activity of the kind 
performed by firefighters.
    Fire-, rescue-, or police emergency includes disaster-relief 
emergency.
    Firefighter means an individual who--
    (1) Is trained in--
    (i) Suppression of fire; or
    (ii) Hazardous-material response; and
    (2) Has the legal authority and responsibility to engage in the 
suppression of fire, as--
    (i) An employee of the public agency he serves, which legally 
recognizes him to have such (or, at a minimum, does not deny (or has not 
denied) him to have such); or
    (ii) An individual otherwise included within the definition provided 
in the Act, at 42 U.S.C. 3796b(4).
    Functionally within or -part of--No individual shall be understood 
to be functionally within or -part of a public agency solely by virtue 
of an independent contractor relationship.
    Gross negligence means great, heedless, wanton, indifferent, or 
reckless departure from ordinary care, prudence, diligence, or safe 
practice--
    (1) In the presence of serious risks that are known or obvious;
    (2) Under circumstances where it is highly likely that serious harm 
will follow; or
    (3) In situations where a high degree of danger is apparent.
    Hazardous-material response means emergency response to the 
threatened or actual release of hazardous materials, where life, 
property, or the environment is at significant risk.
    Heart attack means--
    (1) A myocardial infarction; or
    (2) A cardiac-event (i.e., cessation, interruption, arrest, or other 
similar disturbance of heart function), not included in paragraph (1) of 
this definition, that is--
    (i) Acute; and
    (ii) Directly and proximately caused by a pathology (or pathological 
condition) of the heart or of the coronary arteries.
    Illegitimate child--An individual is an illegitimate child of a 
public safety officer only if he is a natural child of the officer, and 
the officer is not married to the other biological parent at (or at any 
time after) the time of his conception.
    Incapable of self-support because of physical or mental disability--
An individual is incapable of self-support because of physical or mental 
disability if he is under a disability within the meaning of the Social 
Security Act, at 42 U.S.C. 423(d)(1)(A), applicable mutatis mutandis.
    Independent contractor includes any volunteer, servant, employee, 
contractor, or agent, of an independent contractor.
    Injury means a traumatic physical wound (or a traumatized physical 
condition of the body) directly and proximately caused by external force 
(such as bullets, explosives, sharp instruments, blunt objects, or 
physical blows), chemicals, electricity, climatic conditions, infectious 
disease, radiation, virii, or bacteria, but does not include--
    (1) Any occupational disease; or
    (2) Any condition of the body caused or occasioned by stress or 
strain.
    Injury date--Except with respect to claims under the Act, at 42 
U.S.C. 3796(k) (where, for purposes of determining beneficiaries under 
the Act, at 42 U.S.C. 3796(a), it generally means the time of the heart 
attack or stroke referred to in the Act, at 42 U.S.C. 3796(k)(2)), 
injury date means the time of the line of duty injury that--

[[Page 502]]

    (1) Directly and proximately results in the public safety officer's 
death, with respect to a claim under--
    (i) Subpart B of this part; or
    (ii) Subpart D of this part, by virtue of his death; or
    (2) Directly (or directly and proximately) results in the public 
safety officer's total and permanent disability, with respect to a claim 
under--
    (i) Subpart C of this part; or
    (ii) Subpart D of this part, by virtue of his disability.
    Instrumentality means entity, and does not include any individual, 
except that no entity shall be considered an instrumentality within the 
meaning of the Act, at 42 U.S.C. 3796b(8), or this part, unless, as of 
the injury date,
    (1) The entity--
    (i) Is legally established, -recognized, or -organized, such that it 
has legal existence; and
    (ii) Is so organized and controlled, and its affairs so conducted, 
that it operates and acts solely and exclusively as a functional part of 
the relevant government, which legally recognizes it as such (or, at a 
minimum, does not deny (or has not denied) it to be such); and
    (2) The entity's--
    (i) Functions and duties are solely and exclusively of a public 
character;
    (ii) Services are provided generally to the public as such 
government would provide if acting directly through its public employees 
(i.e., they are provided without regard to any particular relationship 
(such as a subscription) a member of the public may have with such 
entity); and
    (iii) Acts and omissions are, and are recognized by such government 
as (or, at a minimum, not denied by such government to be), legally--
    (A) Those of such government, for purposes of sovereign immunity; or
    (B) The responsibility of such government, for purposes of tort 
liability.
    Intention--A death, injury, or disability is brought about by a 
public safety officer's intention if--
    (1) An intentional action or activity of his is a substantial factor 
in bringing it about; and
    (2) It is a reasonably foreseeable result of the intentional action 
or activity.
    Intentional action or activity means activity or action (other than 
line of duty activity or action), including behavior, that is--
    (1) A result of conscious volition, or otherwise voluntary;
    (2) Not a result of legal insanity or of impulse that is legally and 
objectively uncontrollable; and
    (3) Not performed under legal duress or legal coercion of the will.
    Intentional misconduct--A public safety officer's action or activity 
is intentional misconduct if--
    (1) As of the date it is performed,
    (i) Such action or activity--
    (A) Is in violation of, or otherwise prohibited by, any statute, 
rule, regulation, condition of employment or service, official mutual-
aid agreement, or other law; or
    (B) Is contrary to the ordinary, usual, or customary practice of 
similarly-situated officers within the public agency in which he serves; 
and
    (ii) He knows, or reasonably should know, that it is so in 
violation, prohibited, or contrary; and
    (2) Such action or activity--
    (i) Is intentional; and
    (ii) Is--
    (A) Performed without reasonable excuse; and
    (B) Objectively unjustified.
    Involvement--An individual is involved in crime and juvenile 
delinquency control or reduction, or enforcement of the criminal laws 
(including juvenile delinquency), only if he is an officer of a public 
agency and, in that capacity, has legal authority and -responsibility to 
arrest, apprehend, prosecute, adjudicate, correct or detain (in a prison 
or other detention or confinement facility), or supervise (as a parole 
or probation officer), persons who are alleged or found to have violated 
the criminal laws, and is recognized by such agency, or the relevant 
government (or, at a minimum, not denied by such agency, or the relevant 
government), to have such authority and responsibility.
    Itemized description of representative services provided--A 
description of representative services provided is itemized only when it 
includes--
    (1) The beginning and end dates of the provision of the services;

[[Page 503]]

    (2) An itemization of the services provided and the amount of time 
spent in providing them; and
    (3) An itemization of the expenses incurred in connection with the 
services provided for which reimbursement is sought.
    Kinds of public safety officers--The following are the different 
kinds of public safety officers:
    (1) Law enforcement officers;
    (2) Firefighters;
    (3) Chaplains;
    (4) Members of rescue squads or ambulance crews; and
    (5) Disaster relief workers.
    Law enforcement means enforcement of the criminal laws, including--
    (1) Control or reduction of crime or of juvenile delinquency;
    (2) Prosecution or adjudication of individuals who are alleged or 
found to have violated such laws;
    (3) Prison security activity; and
    (4) Supervision of individuals on parole or probation for having 
violated such laws.
    Line of duty activity or action--Activity or an action is performed 
in the line of duty, in the case of a public safety officer who is--
    (1) A law enforcement officer, a firefighter, or a member of a 
rescue squad or ambulance crew--
    (i) Whose primary function (as applicable) is public safety 
activity, only if, not being described in the Act, at 42 U.S.C. 
3796a(1), and not being a frolic or detour, it is activity or an action 
that he is obligated or authorized by statute, rule, regulation, 
condition of employment or service, official mutual-aid agreement, or 
other law, to perform (including any social, ceremonial, or athletic 
functions (or any official training programs of his public agency) to 
which he is assigned, or for which he is compensated), under the 
auspices of the public agency he serves, and such agency (or the 
relevant government) legally recognizes that activity or action to have 
been so obligated or authorized at the time performed (or, at a minimum, 
does not deny (or has not denied) it to have been such); or
    (ii) Whose primary function is not public safety activity, only if, 
not being described in the Act, at 42 U.S.C. 3796a(1), and not being a 
frolic or detour--
    (A) It is activity or an action that he is obligated or authorized 
by statute, rule, regulation, condition of employment or service, 
official mutual-aid agreement, or other law, to perform, under the 
auspices of the public agency he serves, and such agency (or the 
relevant government) legally recognizes that activity or action to have 
been so obligated or authorized at the time performed (or, at a minimum, 
does not deny (or has not denied) it to have been such); and
    (B) It is performed (as applicable) in the course of public safety 
activity (including emergency response activity the agency is authorized 
to perform), or taking part (as a trainer or trainee) in an official 
training program of his public agency for such activity, and such agency 
(or the relevant government) legally recognizes it to have been such at 
the time performed (or, at a minimum, does not deny (or has not denied) 
it to have been such);
    (2) A disaster relief worker, only if, not being described in the 
Act, at 42 U.S.C. 3796a(1), and not being a frolic or detour, it is 
disaster relief activity, and the agency he serves (or the relevant 
government), being described in the Act, at 42 U.S.C. 3796b(9)(B) or 
(C), legally recognizes it to have been such at the time performed (or, 
at a minimum, does not deny (or has not denied) it to have been such); 
or
    (3) A chaplain, only if, not being described in the Act, at 42 
U.S.C. 3796a(1), and not being a frolic or detour--
    (i) It is activity or an action that he is obligated or authorized 
by statute, rule, regulation, condition of employment or service, 
official mutual-aid agreement, or other law, to perform, under the 
auspices of the public agency he serves, and such agency (or the 
relevant government) legally recognizes it to have been such at the time 
performed (or, at a minimum, does not deny (or has not denied) it to 
have been such); and
    (ii) It is performed in the course of responding to a fire-, rescue-
, or police emergency, and such agency (or the relevant government) 
legally recognizes it to have been such at the time performed (or, at a 
minimum, does not

[[Page 504]]

deny (or has not denied) it to have been such).
    Line of duty injury--An injury is sustained in the line of duty only 
if--
    (1) It is sustained in the course of--
    (i) Performance of line of duty activity or a line of duty action; 
or
    (ii) Authorized commuting; or
    (2) Convincing evidence demonstrates that such injury resulted from 
the injured party's status as a public safety officer.
    Mental faculties means brain function.
    Natural child--An individual is a natural child of a public safety 
officer only if he is a biological child of the officer, and the officer 
is alive at the time of his birth.
    Occupational disease means a disease (including an ailment or 
condition of the body) that routinely constitutes a special hazard in, 
or is commonly regarded as a concomitant of, an individual's occupation.
    Official capacity--An individual serves a public agency in an 
official capacity only if--
    (1) He is officially authorized, -recognized, or -designated (by 
such agency) as functionally within or -part of it; and
    (2) His acts and omissions, while so serving, are legally those of 
such agency, which legally recognizes them as such (or, at a minimum, 
does not deny (or has not denied) them to be such).
    Official duties means duties that are officially authorized, -
recognized, or -designated by an employing entity, such that the 
performance of those duties is legally the action of such entity, which 
legally recognizes it as such (or, at a minimum, does not deny (or has 
not denied) it to be such).
    Official training program of a public safety officer's public agency 
means a program--
    (1) That is officially sponsored, -conducted, or -authorized by the 
public agency in which he serves; and
    (2) Whose purpose is to train public safety officers of his kind in 
(or to improve their skills in), specific activity or actions 
encompassed within their respective lines of duty.
    Officially recognized or designated member of a department or agency 
means a member of a department or agency, or of an instrumentality, of a 
government described in the Act, at 42 U.S.C. 3796b(8), who is 
officially recognized (or officially designated) as such a member by the 
same.
    Officially recognized or designated public employee of a department 
or agency means a public employee of a department or agency who is 
officially recognized (or officially designated) as a public safety 
officer, by the same.
    Officially recognized or designated public employee member of a 
squad or crew means a public employee member of a squad or crew who is 
officially recognized (or officially designated) as such a public 
employee member, by the public agency under whose auspices the squad or 
crew operates.
    OJP means the Office of Justice Programs, U.S. Department of 
Justice.
    Parent means a father or a mother.
    Parent-child relationship means a relationship between a public 
safety officer and another individual, in which the officer has the role 
of parent (other than biological or legally-adoptive), as shown by 
convincing evidence.
    Performance of duties in a grossly negligent manner at the time of 
death or catastrophic injury means gross negligence, as of or near the 
injury date, in the course of authorized commuting or performance of 
line of duty activity or a line of duty action, where such negligence is 
a substantial contributing factor in bringing such death or injury 
about.
    Posthumous child--An individual is a posthumous child of a public 
safety officer only if he is a biological child of the officer, and the 
officer is--
    (1) Alive at the time of his conception; and
    (2) Deceased at or before the time of his birth.
    Prison security activity means correctional or detention activity 
(in a prison or other detention or confinement facility) of individuals 
who are alleged or found to have violated the criminal laws.
    PSOB determining official means, as applicable, any of the 
following:
    (1) The PSOB Office;
    (2) The Hearing Officer; or
    (3) The Director.
    PSOB Office means the unit of BJA that directly administers the 
Public

[[Page 505]]

Safety Officers' Benefits program, except that, with respect to the 
making of any finding, determination, affirmance, reversal, assignment, 
authorization, decision, judgment, waiver, or other ruling, it means 
such unit, acting with the concurrence of OJP's General Counsel.
    Public employee means--
    (1) An employee of a government described in the Act, at 42 U.S.C. 
3796b(8), (or of a department or agency thereof) and whose acts and 
omissions while so employed are legally those of such government, which 
legally recognizes them as such (or, at a minimum, does not deny (or has 
not denied) them to be such); or
    (2) An employee of an instrumentality of a government described in 
the Act, at 42 U.S.C. 3796b(8), who is eligible to receive disability 
benefits (or whose survivors are eligible to receive death benefits) 
from such government on the same basis as an employee of that government 
(within the meaning of paragraph (1) of this definition), or his 
survivors, would.
    Public employee member of a squad or crew means a member of a squad 
or crew who is a public employee under the auspices of whose public 
agency employer the squad or crew operates.
    Public employee of a department or agency means a public employee 
whose public agency employer is the department or agency.
    Public safety activity means any of the following:
    (1) Law enforcement;
    (2) Fire protection;
    (3) Rescue activity; or
    (4) The provision of emergency medical services.
    Qualified beneficiary--An individual is a qualified beneficiary 
under the Act, at 42 U.S.C. 3796c-1 or Public Law 107-37, only if he is 
an eligible payee--
    (1) Who qualifies as a beneficiary pursuant to a final agency 
determination that--
    (i) The requirements of the Act, at 42 U.S.C. 3796(a) or (b) 
(excluding the limitations relating to appropriations), as applicable, 
have been met; and
    (ii) The provisions of this part, as applicable, relating to payees 
otherwise have been met; and
    (2) Whose actions were not a substantial contributing factor to the 
death of the public safety officer (with respect to a claim under 
subpart B of this part).
    Representative services include expenses incurred in connection with 
such services.
    Rescue activity means search or rescue assistance in locating or 
extracting from danger persons lost, missing, or in imminent danger of 
serious bodily harm.
    Rescue squad or ambulance crew means a squad or crew whose members 
are rescue workers, ambulance drivers, paramedics, health-care 
responders, emergency medical technicians, or other similar workers, 
who--
    (1) Are trained in rescue activity or the provision of emergency 
medical services; and
    (2) As such members, have the legal authority and -responsibility 
to--
    (i) Engage in rescue activity; or
    (ii) Provide emergency medical services.
    Spouse means an individual's lawful husband, -wife, -widower, or -
widow (i.e., with whom the individual lawfully entered into marriage), 
and includes a spouse living apart from the individual, other than 
pursuant to divorce, except that, notwithstanding any other provision of 
law--
    (1) For an individual purporting to be a spouse on the basis of a 
common-law marriage (or a putative marriage) to be considered a spouse 
within the meaning of this definition, it is necessary (but not 
sufficient) for the jurisdiction of domicile of the parties to recognize 
such individual as the lawful spouse of the other; and
    (2) In deciding who may be the spouse of a public safety officer--
    (i) The relevant jurisdiction of domicile is the officer's (as of 
the injury date); and
    (ii) With respect to a claim under subpart B of this part, the 
relevant date is that of the officer's death.
    Stepchild--An individual is a stepchild of a public safety officer 
only if the individual is the legally-adoptive or biological first-
generation offspring

[[Page 506]]

of a public safety officer's current, deceased, or former spouse, which 
offspring (not having been legally adopted by the officer)--
    (1) Was conceived before the marriage of the officer and the spouse; 
and
    (2) As of the injury date--
    (i) Was known by the officer not to be his biological first-
generation offspring; and
    (ii) After the officer obtained such knowledge--
    (A) Received over half of his support from the officer;
    (B) Had as his principal place of abode the home of the officer and 
was a member of the officer's household; or
    (C) Was in a parent-child relationship with the officer.
    Stress or strain includes physical stress or strain, mental stress 
or strain, post-traumatic stress disorder, and depression.
    Stroke means cerebral vascular accident.
    Student means an individual who meets the definition provided in the 
Act, at 42 U.S.C. 3796b(3)(ii), with respect to an educational/academic 
institution.
    Substantial contributing factor--A factor substantially contributes 
to a death, injury, or disability, if the factor--
    (1) Contributed to the death, injury, or disability to a significant 
degree; or
    (2) Is a substantial factor in bringing the death, injury, or 
disability about.
    Substantial factor--A factor substantially brings about a death, 
injury, disability, wound, condition, cardiac-event, heart attack, or 
stroke if--
    (1) The factor alone was sufficient to have caused the death, 
injury, disability, wound, condition, cardiac-event, heart attack, or 
stroke; or
    (2) No other factor (or combination of factors) contributed to the 
death, injury, disability, wound, condition, cardiac-event, heart 
attack, or stroke to so great a degree as it did.
    Suppression of fire means extinguishment, physical prevention, or 
containment of fire, including on-site hazard evaluation.
    Terrorist attack--An event or act is a terrorist attack within the 
meaning of the Act, at 42 U.S.C. 3796c-1(a), only if the Attorney 
General determines that--
    (1) There is a reasonable indication that the event or act was (or 
would be or would have been, with respect to a priori prevention or 
investigation efforts) an act of domestic or international terrorism 
within the meaning of the criminal terrorism laws, at 18 U.S.C. 2331; 
and
    (2) The event or act (or the circumstances of death or injury) was 
of such extraordinary or cataclysmic character as to make particularized 
factual findings impossible, impractical, unnecessary, or unduly 
burdensome.
    Voluntary intoxication at the time of death or catastrophic injury 
means the following, as shown by any commonly-accepted tissue, -fluid, 
or -breath test or by other competent evidence:
    (1) With respect to alcohol, (i) In any claim arising from a public 
safety officer's death in which the death was simultaneous (or 
practically simultaneous) with the injury, it means intoxication as 
defined in the Act, at 42 U.S.C. 3796b(5), unless convincing evidence 
demonstrates that the officer did not introduce the alcohol into his 
body intentionally; and
    (ii) In any claim not described in paragraph (1)(i) of this 
definition, unless convincing evidence demonstrates that the officer did 
not introduce the alcohol into his body intentionally, it means 
intoxication--
    (A) As defined in the Act, at 42 U.S.C. 3796b(5), mutatis mutandis 
(i.e., with ``post-mortem'' (each place it occurs) and ``death'' being 
substituted, respectively, by ``post-injury'' and ``injury''); and
    (B) As of the injury date; and
    (2) With respect to drugs or other substances, it means intoxication 
as defined in the Act, at 42 U.S.C. 3796b(5), as evidenced by the 
presence (as of the injury date) in the body of the public safety 
officer--
    (i) Of any controlled substance included on Schedule I of the drug 
control and enforcement laws (see 21 U.S.C. 812(a)), or any controlled 
substance included on Schedule II, III, IV, or V of such laws (see 21 
U.S.C. 812(a)) and with

[[Page 507]]

respect to which there is no therapeutic range or maximum recommended 
dosage, unless convincing evidence demonstrates that such introduction 
was not a culpable act of the officer's under the criminal laws; or
    (ii) Of any controlled substance included on Schedule II, III, IV, 
or V of the drug control and enforcement laws (see 21 U.S.C. 812(a)) and 
with respect to which there is a therapeutic range or maximum 
recommended dosage--
    (A) At levels above or in excess of such range or dosage, unless 
convincing evidence demonstrates that such introduction was not a 
culpable act of the officer's under the criminal laws; or
    (B) At levels at, below, or within such range or dosage, unless 
convincing evidence demonstrates that--
    (1) Such introduction was not a culpable act of the officer's under 
the criminal laws; or
    (2) The officer was not acting in an intoxicated manner immediately 
prior to the injury date.

[71 FR 46037, Aug. 10, 2006, as amended at 73 FR 76528, Dec. 17, 2008]



Sec. 32.4  Terms; construction, severability; effect.

    (a) In determining the meaning of any provision of this part, unless 
the context should indicate otherwise, the first three provisions of 1 
U.S.C. 1 (rules of construction) shall apply.
    (b) If benefits are denied to any individual pursuant to the Act, at 
42 U.S.C. 3796a(4), or otherwise because his actions were a substantial 
contributing factor to the death of the public safety officer, such 
individual shall be presumed irrebuttably, for all purposes, not to have 
survived the officer.
    (c) Any provision of this part held to be invalid or unenforceable 
by its terms, or as applied to any person or circumstance, shall be 
construed so as to give it the maximum effect permitted by law, unless 
such holding shall be one of utter invalidity or unenforceability, in 
which event such provision shall be deemed severable herefrom and shall 
not affect the remainder hereof or the application of such provision to 
other persons not similarly situated or to other, dissimilar 
circumstances.
    (d) Unless the same should expressly provide otherwise (e.g., by use 
of the word ``hereafter'' in an appropriations proviso), any amendment 
to the Act (or any statutory enactment otherwise directly referent or -
applicable to the program that is the subject of this part), shall apply 
only with respect to injuries (or, in connection with claims under the 
Act, at 42 U.S.C. 3796(k), shall apply only with respect to heart 
attacks or strokes referred to in the Act, at 42 U.S.C. 3796(k)(2)) 
occurring on or after the date it takes effect.

[73 FR 76531, Dec. 17, 2008]



Sec. 32.5  Evidence.

    (a) Except as otherwise may be expressly provided in the Act or this 
part, a claimant has the burden of persuasion as to all material issues 
of fact, and by the standard of proof of ``more likely than not.''
    (b) Except as otherwise may be expressly provided in this part, the 
PSOB determining official may, at his discretion, consider (but shall 
not be bound by) the factual findings of a public agency.
    (c) Rules 301 (presumptions), 401 (relevant evidence), 402 
(admissibility), 602 to 604 (witnesses), 701 to 704 (testimony), 901 to 
903 (authentication), and 1001 to 1007 (contents of writings, records, 
and photographs) of the Federal Rules of Evidence shall apply, mutatis 
mutandis, to all filings, hearings, and other proceedings or matters. No 
extrinsic evidence of authenticity as a condition precedent to 
admissibility shall be required with respect to any document purporting 
to bear the signature of an expert engaged by the BJA.
    (d) In determining a claim, the PSOB determining official may, at 
his discretion, draw an adverse inference if, without reasonable 
justification or excuse--
    (1) A claimant fails or refuses to file with the PSOB Office--
    (i) Such material- or relevant evidence or -information within his 
possession, control, or ken as may reasonably be requested from time to 
time by such official; or
    (ii) Such authorizations or waivers as may reasonably be requested 
from time to time by such official to enable him (or to assist in 
enabling him) to obtain

[[Page 508]]

access to material- or relevant evidence or -information of a medical, 
personnel, financial, or other confidential nature;
    (2) A claimant under subpart C of this part fails or refuses to 
appear in person--
    (i) At his hearing under subpart E of this part (if there be such a 
hearing); or
    (ii) Before such official (or otherwise permit such official 
personally to observe his condition), at a time and location reasonably 
convenient to both, as may reasonably be requested by such official; or
    (3) A claimant under subpart B or C of this part fails or refuses to 
apply for (or to pursue to completion), in timely fashion, the benefits, 
if any, described in Sec. 32.15(a)(1)(i) or Sec. 32.25(a)(1)(i), 
respectively.
    (e) In determining a claim, the PSOB determining official may, at 
his discretion, draw an inference of voluntary intoxication at the time 
of death or catastrophic injury if, without reasonable justification or 
excuse, appropriate toxicologic analysis (including autopsy, in the 
event of death) is not performed, and/or the results thereof are not 
filed with the PSOB Office, where there is credible evidence suggesting 
that intoxication may have been a factor in the death or injury, or that 
the public safety officer--
    (1) As of or near the injury date, was--
    (i) A consumer of alcohol--
    (A) In amounts likely to produce a blood-alcohol level of .10 per 
centum or greater in individuals similar to the officer in weight and 
sex; or
    (B) In any amount, after ever having been treated at an inpatient 
facility for alcoholism;
    (ii) A consumer of controlled substances included on Schedule I of 
the drug control and enforcement laws (see 21 U.S.C. 812(a)); or
    (iii) An abuser of controlled substances included on Schedule II, 
III, IV, or V of the drug control and enforcement laws (see 21 U.S.C. 
812(a)); or
    (2) Immediately prior to the injury date, was under the influence of 
alcohol or drugs or other substances or otherwise acting in an 
intoxicated manner.
    (f) In determining a claim under the Act, at 42 U.S.C. 3796c-1 or 
Public Law 107-37, the certification described therein shall constitute 
prima facie evidence--
    (1) Of the public agency's acknowledgment that the public safety 
officer, as of the injury date, was--
    (i) A public safety officer of the kind described in the 
certification;
    (ii) Employed by the agency (i.e., performing official functions 
for, or on behalf of, the agency); and
    (iii) One of the following:
    (A) With respect to a law enforcement officer, an officer of the 
agency;
    (B) With respect to a firefighter,
    (1) An officially recognized or designated member of the agency (if 
it is a legally organized volunteer fire department); or
    (2) An employee of the agency;
    (C) With respect to a chaplain,
    (1) An officially recognized or designated member of the agency (if 
it is a legally organized police or volunteer fire department); or
    (2) An officially recognized or designated public employee of the 
agency (if it is a legally organized police or fire department);
    (D) With respect to a member of a rescue squad or ambulance crew, an 
officially recognized or designated public employee member of one of the 
agency's rescue squads or ambulance crews; or
    (E) With respect to a disaster relief worker, an employee of the 
agency (if it is described in the Act, at 42 U.S.C. 3796b(9)(B) or (C));
    (2) Of the public agency's acknowledgment that there are no eligible 
payees other than those identified in the certification; and
    (3) That the public safety officer--
    (i) Sustained a line of duty injury in connection with public safety 
activity (or, otherwise, with efforts described in the Act, at 42 U.S.C. 
3796c-1 or Public Law 107-37) related to a terrorist attack (under the 
former statute) or to the terrorist attacks of September 11, 2001 (under 
the latter statute); and
    (ii) As a direct and proximate result of such injury, was (as 
applicable)--
    (A) Killed (with respect to a claim under subpart B of this part); 
or

[[Page 509]]

    (B) Totally and permanently disabled (with respect to a claim under 
subpart C of this part).
    (g) In determining a claim, the PSOB determining official shall 
have, in addition to the hearing-examiner powers specified at 42 U.S.C. 
3787 (hearings, subpoenas, oaths, witnesses, evidence), and to the 
authorities specified at 42 U.S.C. 3788(b)-(d) (experts, consultants, 
government resources) and in the Act and this part, the authority 
otherwise and in any reasonable manner to conduct his own inquiries, as 
appropriate.
    (h) Acceptance of payment (by a payee (or on his behalf)) shall 
constitute prima facie evidence that the payee (or the pay agent)--
    (1) Endorses as his own (to the best of his knowledge and belief) 
the statements and representations made, and the evidence and 
information provided, pursuant to the claim; and
    (2) Is aware (in connection with the claim) of no--
    (i) Fraud;
    (ii) Concealment or withholding of evidence or information;
    (iii) False, incomplete, or inaccurate statements or 
representations;
    (iv) Mistake, wrongdoing, or deception; or
    (v) Violation of 18 U.S.C. 287 (false, fictitious, or fraudulent 
claims), 1001 (false statements), or 1621 (perjury), or 42 U.S.C. 3795a 
(falsification or concealment of facts).
    (i) A public safety officer's response to an emergency call from his 
public agency for him to perform public safety activity (including 
emergency response activity the agency is authorized to perform) shall 
constitute prima facie evidence of such response's non-routine 
character.

[73 FR 76531, Dec. 17, 2008]



Sec. 32.6  Payment and repayment.

    (a) No payment shall be made to (or on behalf of) more than one 
individual, on the basis of being a particular public safety officer's 
spouse. If more than one should qualify, payment shall be made to the 
one with whom the officer considered himself, as of the injury date, to 
have the closest relationship, except that the individual (if any) who 
was a member of the officer's household (as of such date) shall be 
presumed rebuttably to be such one, unless legal proceedings (by the 
officer against such member, or vice versa) shall have been pending then 
in any court.
    (b) No payment shall be made, save--
    (1) To (or on behalf of) a living beneficiary; and
    (2) Pursuant to--
    (i) A written claim filed by (or on behalf of) such beneficiary; and
    (ii) Except as provided in the Act, at 42 U.S.C. 3796(c), approval 
of such claim.
    (c) Any amounts that would be paid but for the provisions of 
paragraph (b) of this section shall be retained by the United States and 
not paid.
    (d) With respect to the amount paid to a payee (or on his behalf) 
pursuant to a claim, the payee shall repay the following, unless, for 
good cause shown, the Director grants a full or partial waiver pursuant 
to the Act, at 42 U.S.C. 3796(m):
    (1) The entire amount, if approval of the claim was based, in whole 
or in material part, on the payee's (or any other person's or entity's) 
fraud, concealment or withholding of evidence or information, false, 
incomplete, or inaccurate statements or representations, mistake, 
wrongdoing, or deception; or
    (2) The entire amount subject to divestment, if the payee's 
entitlement to such payment is divested, in whole or in part, such as by 
the subsequent discovery of individuals entitled to make equal or 
superior claims.
    (e) At the discretion of the Director, repayment of amounts owing or 
collectable under the Act or this part may, as applicable, be executed 
through setoffs against future payments on financial claims under 
subpart D of this part.

[73 FR 76532, Dec. 17, 2008]



Sec. 32.7  Fees for representative services.

    (a) A person seeking to receive any amount from (or with respect to) 
a claimant for representative services provided in connection with any 
claim may petition the PSOB Office for authorization under this section. 
Such petition shall include--
    (1) An itemized description of the services;

[[Page 510]]

    (2) The total amount sought to be received, from any source, as 
consideration for the services;
    (3) An itemized description of any representative or other services 
provided to (or on behalf of) the claimant in connection with other 
claims or causes of action, unrelated to the Act, before any public 
agency or non-public entity (including any insurer), arising from the 
public safety officer's death, disability, or injury;
    (4) The total amount requested, charged, received, or sought to be 
received, from any source, as consideration for the services described 
in paragraph (a)(3) of this section;
    (5) A statement of whether the petitioner has legal training or is 
licensed to practice law, and a description of any special 
qualifications possessed by the petitioner (other than legal training or 
a license to practice law) that increased the value of his services to 
(or on behalf of) the claimant;
    (6) A certification that the claimant was provided, simultaneously 
with the filing of the petition, with--
    (i) A copy of the petition; and
    (ii) A letter advising the claimant that he could file his comments 
on the petition, if any, with the PSOB Office, within thirty-three days 
of the date of that letter; and
    (7) A copy of the letter described in paragraph (a)(6)(ii) of this 
section.
    (b) Unless, for good cause shown, the Director extends the time for 
filing, no petition under paragraph (a) of this section shall be 
considered if the petition is filed with the PSOB Office later than one 
year after the date of the final agency determination of the claim.
    (c) Subject to paragraph (d) of this section, an authorization under 
paragraph (a) of this section shall be based on consideration of the 
following factors:
    (1) The nature of the services provided by the petitioner;
    (2) The complexity of the claim;
    (3) The level of skill and competence required to provide the 
petitioner's services;
    (4) The amount of time spent on the claim by the petitioner;
    (5) The results achieved as a function of the petitioner's services;
    (6) The level of administrative or judicial review to which the 
claim was pursued and the point at which the petitioner entered the 
proceedings;
    (7) The ordinary, usual, or customary fee charged by other persons 
(and by the petitioner) for services of a similar nature; and
    (8) The amount authorized by the PSOB Office in similar cases.
    (d) No amount shall be authorized under paragraph (a) of this 
section for--
    (1) Any stipulated-, percentage-, or contingency fee;
    (2) Services at a rate in excess of that specified in 5 U.S.C. 
504(b)(1)(A)(ii) (Equal Access to Justice Act); or
    (3) Services provided in connection with--
    (i) Obtaining or providing evidence or information previously 
obtained by the PSOB determining official;
    (ii) Preparing the petition; or
    (iii) Explaining or delivering an approved claim to the claimant.
    (e) Upon a petitioner's failure (without reasonable justification or 
excuse) to pursue in timely fashion his filed petition under paragraph 
(a) of this section, the Director may, at his discretion, deem the same 
to be abandoned, as though never filed. Not less than thirty-three days 
prior thereto, the PSOB Office shall serve the petitioner and the 
claimant with notice of the Director's intention to exercise such 
discretion.
    (f) Upon its authorizing or not authorizing the payment of any 
amount under paragraph (a) of this section, the PSOB Office shall serve 
notice of the same upon the claimant and the petitioner. Such notice 
shall specify the amount, if any, the petitioner is authorized to charge 
the claimant and the basis of the authorization.
    (g) No agreement for representative services in connection with a 
claim shall be valid if the agreement provides for any consideration 
other than under this section. A person's receipt of consideration for 
such services other than under this section may, among other things, be 
the subject of referral by BJA to appropriate professional, 
administrative, disciplinary, or other legal authorities.

[[Page 511]]



Sec. 32.8  Exhaustion of administrative remedies.

    No determination or negative disability finding that, at the time 
made, may be subject to a request for a Hearing Officer determination, a 
motion for reconsideration, or a Director appeal, shall be considered a 
final agency determination for purposes of judicial review, unless all 
administrative remedies have been exhausted.



                     Subpart B_Death Benefit Claims



Sec. 32.11  Scope of subpart.

    Consistent with Sec. 32.1, this subpart contains provisions 
applicable to claims made under the Act--
    (a) At 42 U.S.C. 3796(a); or
    (b) At 42 U.S.C. 3796c-1 or Public Law 107-37, with respect to a 
public safety officer's death.



Sec. 32.12  Time for filing claim.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no claim shall be considered if it is filed with the PSOB Office 
after the later of--
    (1) Three years after the public safety officer's death; or
    (2) One year after--
    (i) A final determination of entitlement to receive, or of denial 
of, the benefits, if any, described in Sec. 32.15(a)(1)(i); or
    (ii) The receipt of the certification described in Sec. 
32.15(a)(1)(ii).
    (b) A claimant may file with his claim such supporting documentary, 
electronic, video, or other nonphysical evidence and legal arguments as 
he may wish to provide.

[73 FR 76532, Dec. 17, 2008]



Sec. 32.13  Definitions.

    Adoptive parent of a public safety officer means any individual who 
(not being a step-parent), as of the injury date, was the legally-
adoptive parent of the public safety officer, or otherwise was in a 
child-parent relationship with him.
    Beneficiary of a life insurance policy of a public safety officer--
An individual (living or deceased on the date of death of the public 
safety officer) is designated as beneficiary of a life insurance policy 
of such officer as of such date, only if the designation is, as of such 
date, legal and valid (as a designation of beneficiary of a life 
insurance policy) and unrevoked (by such officer or by operation of law) 
or otherwise unterminated, except that--
    (1) Any designation of an individual (including any designation of 
the biological or adoptive offspring of such individual) made in 
contemplation of such individual's marriage (or purported marriage) to 
such officer shall be considered to be revoked by such officer as of 
such date of death if the marriage (or purported marriage) did not take 
place, unless preponderant evidence demonstrates that--
    (i) It did not take place for reasons other than personal 
differences between the officer and the individual; or
    (ii) No such revocation was intended by the officer; and
    (2) Any designation of a spouse (or purported spouse) made in 
contemplation of or during such spouse's (or purported spouse's) 
marriage (or purported marriage) to such officer (including any 
designation of the biological or adoptive offspring of such spouse (or 
purported spouse)) shall be considered to be revoked by such officer as 
of such date of death if the spouse (or purported spouse) is divorced 
from such officer after the date of designation and before such date of 
death, unless preponderant evidence demonstrates that no such revocation 
was intended by the officer.
    Beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A)--An individual 
(living or deceased on the date of death of the public safety officer) 
is designated, by such officer (and as of such date), as beneficiary 
under the Act, at 42 U.S.C. 3796(a)(4)(A), only if the designation is, 
as of such date, legal and valid and unrevoked (by such officer or by 
operation of law) or otherwise unterminated, except that--
    (1) Any designation of an individual (including any designation of 
the biological or adoptive offspring of such individual) made in 
contemplation of such individual's marriage (or purported marriage) to 
such officer shall be considered to be revoked by such officer as of 
such date of death if the marriage (or purported marriage) did

[[Page 512]]

not take place, unless preponderant evidence demonstrates that--
    (i) It did not take place for reasons other than personal 
differences between the officer and the individual; or
    (ii) No such revocation was intended by the officer; and
    (2) Any designation of a spouse (or purported spouse) made in 
contemplation of or during such spouse's (or purported spouse's) 
marriage (or purported marriage) to such officer (including any 
designation of the biological or adoptive offspring of such spouse (or 
purported spouse)) shall be considered to be revoked by such officer as 
of such date of death if the spouse (or purported spouse) is divorced 
from such officer subsequent to the date of designation and before such 
date of death, unless preponderant evidence demonstrates that no such 
revocation was intended by the officer.
    Cardiovascular disease includes heart attack and stroke.
    Child-parent relationship means a relationship between a public 
safety officer and another individual, in which the individual (other 
than the officer's biological or legally-adoptive parent) has the role 
of parent, as shown by convincing evidence.
    Competent medical evidence to the contrary--The presumption raised 
by the Act, at 42 U.S.C. 3796(k), is overcome by competent medical 
evidence to the contrary, when evidence indicates to a degree of medical 
probability that extrinsic circumstances, considered in combination (as 
one circumstance) or alone, were a substantial factor in bringing the 
heart attack or stroke about.
    Designation on file--A designation of beneficiary under the Act, at 
42 U.S.C. 3796(a)(4)(A), is on file with a public safety agency, -
organization, or -unit, only if it is deposited with the same by the 
public safety officer making the designation, for it to maintain with 
its personnel or similar records pertaining to him.
    Direct and proximate result of a heart attack or stroke--A death 
results directly and proximately from a heart attack or stroke if the 
heart attack or stroke is a substantial factor in bringing it about.
    Engagement in a situation involving law enforcement, fire 
suppression, rescue, hazardous material response, emergency medical 
services, prison security, disaster relief, or other emergency response 
activity--A public safety officer is so engaged only when, within his 
line of duty--
    (1) He is in the course of actually--
    (i) Engaging in law enforcement;
    (ii) Suppressing fire;
    (iii) Responding to a hazardous-material emergency;
    (iv) Performing rescue activity;
    (v) Providing emergency medical services;
    (vi) Performing disaster relief activity; or
    (vii) Otherwise engaging in emergency response activity; and
    (2) The public agency he serves (or the relevant government) legally 
recognizes him to have been in such course at the time of such 
engagement (or, at a minimum, does not deny (or has not denied) him so 
to have been).
    Event includes occurrence, but does not include any engagement or 
participation described in the Act, at 42 U.S.C. 3796(k)(1).
    Excessive consumption of alcohol--An individual is an excessive 
consumer of alcohol if he consumes alcohol in amounts commonly accepted 
to be associated with substantially-increased risk of cardiovascular 
disease.
    Execution of a designation of beneficiary under the Act, at 42 
U.S.C. 3796(a)(4)(A) means the legal and valid execution, by the public 
safety officer, of a writing that, designating a beneficiary, expressly, 
specifically, or unmistakably refers to--
    (1) The Act (or the program it creates); or
    (2) All the death benefits with respect to which such officer 
lawfully could designate a beneficiary (if there be no writing that 
satisfies paragraph (1) of this definition).
    Execution of a life insurance policy means, with respect to a life 
insurance policy, the legal and valid execution, by the individual whose 
life is insured thereunder, of--
    (1) The approved application for coverage;
    (2) A designation of beneficiary; or

[[Page 513]]

    (3) A designation of the mode of benefit.
    Extrinsic circumstances means--
    (1) An event or events; or
    (2) An intentional risky behavior or intentional risky behaviors.
    Life insurance policy on file--A life insurance policy is on file 
with a public safety agency, -organization, or -unit, only if--
    (1) It is issued through (or on behalf of) the same; or
    (2) The original (or a copy) of one of the following is deposited 
with the same by the public safety officer whose life is insured under 
the policy, for it to maintain with its personnel or similar records 
pertaining to him:
    (i) The policy (itself);
    (ii) The declarations page or -statement from the policy's issuer;
    (iii) A certificate of insurance (for group policies);
    (iv) Any instrument whose execution constitutes the execution of a 
life insurance policy; or
    (v) The substantial equivalent of any of the foregoing.
    Medical probability--A fact is indicated to a degree of medical 
probability, when, pursuant to a medical assessment, the fact is 
indicated by a preponderance of such evidence as may be available.
    Most recently executed designation of beneficiary under the Act, at 
42 U.S.C. 3796(a)(4)(A) means the most recently executed such 
designation that, as of the date of death of the public safety officer, 
designates a beneficiary.
    Most recently executed life insurance policy of a public safety 
officer means the most recently executed policy insuring the life of a 
public safety officer that, being legal and valid (as a life insurance 
policy) upon its execution, as of the date of death of such officer--
    (1) Designates a beneficiary; and
    (2) Remains legally unrevoked (by such officer or by operation of 
law) or otherwise unterminated.
    Nonroutine strenuous physical activity means line of duty activity 
that--
    (1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
    (2) Is not performed as a matter of routine; and
    (3) Entails an unusually-high level of physical exertion.
    Nonroutine stressful or strenuous physical activity means nonroutine 
stressful physical activity or nonroutine strenuous physical activity.
    Nonroutine stressful physical activity means line of duty activity 
that--
    (1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
    (2) Is not performed as a matter of routine;
    (3) Entails non-negligible physical exertion; and
    (4) Occurs--
    (i) With respect to a situation in which a public safety officer is 
engaged, under circumstances that objectively and reasonably--
    (A) Pose (or appear to pose) significant dangers, threats, or 
hazards (or reasonably-foreseeable risks thereof), not faced by 
similarly-situated members of the public in the ordinary course; and
    (B) Provoke, cause, or occasion an unusually-high level of alarm, 
fear, or anxiety; or
    (ii) With respect to a training exercise in which a public safety 
officer participates, under circumstances that objectively and 
reasonably--
    (A) Simulate in realistic fashion situations that pose significant 
dangers, threats, or hazards; and
    (B) Provoke, cause, or occasion an unusually-high level of alarm, 
fear, or anxiety.
    Parent of a public safety officer means a public safety officer's 
surviving--
    (1) Biological or adoptive parent whose parental rights have not 
been terminated, as of the injury date; or
    (2) Step-parent.
    Participation in a training exercise--A public safety officer 
participates (as a trainer or trainee) in a training exercise only when 
actually taking formal part in a structured activity that itself is--
    (1) Within an official training (or -fitness) program of his public 
agency; and
    (2) Mandatory, rated (i.e., officially tested, -graded, -judged, -
timed, etc.), or directly supervised, -proctored, or -monitored.
    Public safety agency, -organization, or -unit means a department or 
agency (or component thereof)--
    (1) In which a public safety officer serves in an official capacity, 
with or

[[Page 514]]

without compensation, as such an officer (of any kind but disaster 
relief worker); or
    (2) Of which a public safety officer is an employee, performing 
official duties as described in the Act, at 42 U.S.C. 3796b(9)(B) or 
(C), as a disaster relief worker.
    Risky behavior means--
    (1) Failure (without reasonable justification or excuse) to 
undertake treatment--
    (i) Of any commonly-accepted cardiovascular-disease risk factor 
associated with clinical values, where such risk factor is--
    (A) Known (or should be known) to be present; and
    (B) Present to a degree that substantially exceeds the minimum value 
commonly accepted as indicating high risk;
    (ii) Of any disease or condition commonly accepted to be associated 
with substantially increased risk of cardiovascular disease, where such 
associated disease or condition is known (or should be known) to be 
present; or
    (iii) Where a biological parent, -sibling, or -first-generation 
offspring, is known to have (or have a history of) cardiovascular 
disease;
    (2) Smoking an average of more than one-half of a pack of cigarettes 
(or its equivalent) per day;
    (3) Excessive consumption of alcohol;
    (4) Consumption of controlled substances included on Schedule I of 
the drug control and enforcement laws (see 21 U.S.C. 812(a)), where such 
consumption is commonly accepted to be associated with increased risk of 
cardiovascular disease;
    (5) Abuse of controlled substances included on Schedule II, III, IV, 
or V of the drug control and enforcement laws (see 21 U.S.C. 812(a)), 
where such abuse is commonly accepted to be associated with increased 
risk of cardiovascular disease; or
    (6) Any activity or action, specified in the Act, at 42 U.S.C. 
3796a(1), (2), or (3), that is commonly accepted to be associated with 
substantially increased risk of cardiovascular disease.
    Routine--Neither of the following shall be dispositive in 
determining whether an activity or action shall be understood to have 
been performed as a matter of routine:
    (1) Being generally described by the public agency as routine or 
ordinary; or
    (2) The frequency with which it may be performed.
    Step-parent of a public safety officer means a current or former 
spouse of the legally-adoptive or biological parent (living or deceased) 
of a public safety officer conceived (or legally adopted) by that parent 
before the marriage of the spouse and the parent, which spouse (not 
being a legally-adoptive parent of the officer), as of the injury date,
    (1) Received over half of his support from the officer;
    (2) Had as his principal place of abode the home of the officer and 
was a member of the officer's household; or
    (3) Was in a child-parent relationship with the officer.
    Undertaking of treatment--An individual undertakes treatment, when 
he consults with a physician licensed to practice medicine in any 
jurisdiction described in the Act, at 42 U.S.C. 3796b(8), and complies 
substantially with his recommendations.

[61 FR 50213, Sept. 24, 1996, as amended at 73 FR 76832, Dec. 17, 2008]



Sec. 32.14  PSOB Office determination.

    (a) Upon its approving or denying a claim, the PSOB Office shall 
serve notice of the same upon the claimant (and upon any other claimant 
who may have filed a claim with respect to the same public safety 
officer). In the event of a denial, such notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) Provide information as to requesting a Hearing Officer 
determination.
    (b) Upon a claimant's failure (without reasonable justification or 
excuse) to pursue in timely fashion the determination, by the PSOB 
Office, of his filed claim, the Director may, at his discretion, deem 
the same to be abandoned. Not less than thirty-three days prior thereto, 
the PSOB Office shall serve the claimant with notice of the Director's 
intention to exercise such discretion.
    (c) In connection with its determination (pursuant to a filed claim) 
of the existence of competent medical evidence to the contrary, the PSOB 
Office

[[Page 515]]

shall serve the claimant with notice (indicating that he may file such 
documentary, electronic, video, or other non-physical evidence (such as 
medical-history records, as appropriate) and legal arguments in support 
of his claim as he may wish to provide), where there is evidence before 
it that affirmatively suggests that--
    (1) The public safety officer actually knew or should have known 
that he had cardio-vascular disease risk factors and appears to have 
worsened or aggravated the same through his own intentional and risky 
behavior (as opposed to where the evidence affirmatively suggests merely 
that cardio-vascular disease risk factors were present); or
    (2) It is more likely than not that a public safety officer's heart 
attack or stroke was imminent.

[73 FR 76534, Dec. 17, 2008]



Sec. 32.15  Prerequisite certification.

    (a) Except as provided in the Act, at 42 U.S.C. 3796c-1 or Public 
Law 107-37, and unless, for good cause shown, the Director grants a 
waiver, no claim shall be approved unless the following (which shall be 
necessary, but not sufficient, for such approval) are filed with the 
PSOB Office:
    (1) Subject to paragraphs (b) and (d) of this section, a 
certification from the public agency in which the public safety officer 
served (as of the injury date) that he died as a direct and proximate 
result of a line of duty injury, and either--
    (i) That his survivors (listed by name, address, relationship to 
him, and amount received) have received (or legally are entitled to 
receive) the maximum death benefits legally payable by the agency with 
respect to deaths of public safety officers of his kind, rank, and 
tenure; or
    (ii) Subject to paragraph (c) of this section, that the agency is 
not legally authorized to pay--
    (A) Any benefits described in paragraph (a)(1)(i) of this section, 
to any person; or
    (B) Any benefits described in paragraph (a)(1)(i) of this section, 
to public safety officers of the kind, rank, and tenure described in 
such paragraph;
    (2) A copy of any findings or rulings made by any public agency that 
relate to the officer's death; and
    (3) A certification from the claimant listing every individual known 
to him who is or might be the officer's child, spouse, or parent.
    (b) The provisions of paragraphs (a)(1) and (d) of this section 
shall also apply with respect to every public agency that legally is 
authorized to pay death benefits with respect to the agency described in 
that paragraph.
    (c) No certification described in paragraph (a)(1)(ii) of this 
section shall be deemed complete for purposes of this section unless 
it--
    (1) Lists every public agency (other than BJA) that legally is 
authorized to pay death benefits with respect to the certifying agency; 
or
    (2) States that no public agency (other than BJA) legally is 
authorized to pay death benefits with respect to the certifying agency.
    (d) Subject to paragraphs (b) and (c) of this section, if the 
Director finds that the conditions specified in the Act, at 42 U.S.C. 
3796(k), are satisfied with respect to a particular public safety 
officer's death, and that no circumstance specified in the Act, at 42 
U.S.C. 3796a(1), (2), or (3), applies with respect thereto--
    (1) The certification as to death, described in paragraph (a)(1) of 
this section, shall not be required; and
    (2) The certification as to benefits, described in paragraph 
(a)(1)(ii) of this section, shall be deemed complete for purposes of 
this section if it--
    (i) Describes the public agency's understanding of the circumstances 
(including such causes of which it may be aware) of the officer's death; 
and
    (ii) States that, in connection with deaths occurring under the 
circumstances described in paragraph (d)(2)(i) of this section, the 
public agency is not legally authorized to pay any benefits described in 
paragraph (a)(1)(i) of this section.

[73 FR 76534, Dec. 17, 2008]



Sec. 32.16  Payment.

    (a) No payment shall be made to (or on behalf of) more than one 
individual, on the basis of being a public safety officer's parent as 
his mother, or on that

[[Page 516]]

basis as his father. If more than one parent qualifies as the officer's 
mother, or as his father, payment shall be made to the one with whom the 
officer considered himself, as of the injury date, to have the closest 
relationship, except that any biological or legally adoptive parent 
whose parental rights have not been terminated as of the injury date 
shall be presumed rebuttably to be such one.
    (b) Any amount payable with respect to a minor or incompetent shall 
be paid to his legal guardian, to be expended solely for the benefit of 
such minor or incompetent.
    (c) If more than one individual should qualify for payment--
    (1) Under the Act, at 42 U.S.C. 3796(a)(4)(i), payment shall be made 
to each of them in equal shares, except that, if the designation itself 
should manifest a different distribution, payment shall be made to each 
of them in shares in accordance with such distribution; or
    (2) Under the Act, at 42 U.S.C. 3796(a)(4)(ii), payment shall be 
made to each of them in equal shares.

[73 FR 76535, Dec. 17, 2008]



Sec. 32.17  Request for Hearing Officer determination.

    In order to exhaust his administrative remedies, a claimant seeking 
relief from the denial of his claim shall request a Hearing Officer 
determination under subpart E of this part. Consistent with Sec. 32.8, 
any denial that is not the subject of such a request shall constitute 
the final agency determination.



                   Subpart C_Disability Benefit Claims



Sec. 32.21  Scope of subpart.

    Consistent with Sec. 32.1, this subpart contains provisions 
applicable to claims made under the Act--
    (a) At 42 U.S.C. 3796(b); or
    (b) At 42 U.S.C. 3796c-1 or Public Law 107-37, with respect to a 
public safety officer's disability.



Sec. 32.22  Time for filing claim.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no claim shall be considered if it is filed with the PSOB Office 
after the later of--
    (1) Three years after the injury date; or
    (2) One year after--
    (i) A final determination of entitlement to receive, or of denial 
of, the benefits, if any, described in Sec. 32.25(a)(1)(i); or
    (ii) The receipt of the certification described in Sec. 
32.25(a)(1)(ii).
    (b) A claimant may file with his claim such supporting documentary, 
electronic, video, or other nonphysical evidence and legal arguments as 
he may wish to provide.

[73 FR 76535, Dec. 17, 2008]



Sec. 32.23  Definitions.

    Direct result of an injury--A disability results directly from an 
injury if the injury is a substantial factor in bringing the disability 
about.
    Gainful work means full-or part-time activity that actually is 
compensated or commonly is compensated.
    Medical certainty--A fact exists to a degree of medical certainty, 
when, pursuant to a medical assessment, the fact is demonstrated by 
convincing evidence.
    Permanently disabled--An individual is permanently disabled only if 
there is a degree of medical certainty (given the current state of 
medicine in the United States) that his disabled condition--
    (1) Will progressively deteriorate or remain constant, over his 
expected lifetime; or
    (2) Otherwise has reached maximum medical improvement.
    Product of an injury--Permanent and total disability is produced by 
a catastrophic injury suffered as a direct and proximate result of a 
personal injury if the disability is a direct result of the personal 
injury.
    Residual functional capacity means that which an individual still is 
capable of doing, as shown by medical (and, as appropriate, vocational) 
assessment, despite a disability.
    Totally disabled--An individual is totally disabled only if there is 
a degree of medical certainty (given the current state of medicine in 
the United States) that his residual functional capacity is

[[Page 517]]

such that he cannot perform any gainful work.



Sec. 32.24  PSOB Office determination.

    (a) Upon its approving or denying a claim, the PSOB Office shall 
serve notice of the same upon the claimant. In the event of a denial, 
such notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) Provide information as to--
    (i) Requesting a Hearing Officer determination; or
    (ii) As applicable, moving to reconsider a negative disability 
finding.
    (b) Upon a claimant's failure (without reasonable justification or 
excuse) to pursue in timely fashion the determination of his filed 
claim, the Director may, at his discretion, deem the same to be 
abandoned. Not less than thirty-three days prior thereto, the PSOB 
Office shall serve the claimant with notice of the Director's intention 
to exercise such discretion.



Sec. 32.25  Prerequisite certification.

    (a) Except as provided in the Act, at 42 U.S.C. 3796c-1 or Public 
Law 107-37, and unless, for good cause shown, the Director grants a 
waiver, no claim shall be approved unless the following (which shall be 
necessary, but not sufficient, for such approval) are filed with the 
PSOB Office:
    (1) Subject to paragraph (b) of this section, a certification from 
the public agency in which the public safety officer served (as of the 
injury date) that he was permanently and totally disabled as a direct 
result of a line of duty injury, and either--
    (i) That he has received (or legally is entitled to receive) the 
maximum disability benefits (including workers' compensation) legally 
payable by the agency with respect to disabled public safety officers of 
his kind, rank, and tenure; or
    (ii) Subject to paragraph (c) of this section, that the agency is 
not legally authorized to pay--
    (A) Any benefits described in paragraph (a)(1)(i) of this section, 
to any person; or
    (B) Any benefits described in paragraph (a)(1)(i) of this section, 
to public safety officers of the kind, rank, and tenure described in 
such paragraph; and
    (2) A copy of--
    (i) Each State, local, and federal income tax return filed by or on 
behalf of the public safety officer from the year before the injury date 
to the date of determination by the PSOB determining official; and
    (ii) Any rulings made by any public agency that relate to the 
claimed disability.
    (b) The provisions of paragraph (a)(1) of this section shall also 
apply with respect to every public agency that legally is authorized to 
pay disability benefits with respect to the agency described in that 
paragraph.
    (c) No certification described in paragraph (a)(1)(ii) of this 
section shall be deemed complete unless it--
    (1) Lists every public agency (other than BJA) that legally is 
authorized to pay disability benefits with respect to the certifying 
agency; or
    (2) States that no public agency (other than BJA) legally is 
authorized to pay disability benefits with respect to the certifying 
agency.



Sec. 32.26  Payment.

    The amount payable on a claim shall be the amount payable, as of the 
injury date, pursuant to the Act, at 42 U.S.C. 3796(b).



Sec. 32.27  Motion for reconsideration of negative disability finding.

    A claimant whose claim is denied in whole or in part on the ground 
that he has not shown that his claimed disability is total and permanent 
may move for reconsideration, under Sec. 32.28, of the specific finding 
as to the total and permanent character of the claimed disability (in 
lieu of his requesting a Hearing Officer determination with respect to 
the same).



Sec. 32.28  Reconsideration of negative disability finding.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no negative disability finding described in Sec. 32.27 shall be 
reconsidered if the motion under that section is filed with the PSOB 
Office later than thirty-three days after the service of notice of the 
denial.

[[Page 518]]

    (b) Notwithstanding any other provision of this section, no negative 
disability finding described in Sec. 32.27 shall be reconsidered--
    (1) If or after such reconsideration is rendered moot (e.g., by the 
final denial of the claim on other grounds, without possibility of 
further administrative or judicial recourse); or
    (2) If a request for a Hearing Officer determination has been filed 
in timely fashion with respect to such finding.
    (c) Unless, for good cause shown, the Director grants a waiver, upon 
the making of a motion under Sec. 32.27, reconsideration of the 
negative disability finding described in that section shall be stayed 
for three years. Upon the conclusion of the stay, the claimant shall 
have not more than six years to file evidence with the PSOB Office in 
support of his claimed disability.
    (d) Upon a claimant's failure (without reasonable justification or 
excuse) to file in timely fashion evidence pursuant to paragraph (c) of 
this section, the Director may, at his discretion, deem the motion for 
reconsideration to be abandoned, as though never filed. Not less than 
thirty-three days prior thereto, the PSOB Office shall serve the 
claimant with notice of the Director's intention to exercise such 
discretion.
    (e) No negative disability finding described in Sec. 32.27 shall be 
reversed unless a copy (which shall be necessary, but not sufficient, 
for such reversal) of each federal, State, and local income tax return 
filed by or on behalf of the claimant from the year before the date of 
the motion for reconsideration under that section to the date of 
reversal is filed with the PSOB Office.
    (f) Upon its affirming or reversing a negative disability finding 
described in Sec. 32.27, the PSOB Office shall serve notice of the same 
upon the claimant. In the event of an affirmance, such notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) Provide information as to requesting a Hearing Officer 
determination of the disability finding.



Sec. 32.29  Request for Hearing Officer determination.

    (a) In order to exhaust his administrative remedies, a claimant 
seeking relief from the denial of his claim shall request a Hearing 
Officer determination under subpart E of this part--
    (1) Of--
    (i) His entire claim, if he has not moved for reconsideration of a 
negative disability finding under Sec. 32.27; or
    (ii) Consistent with Sec. 32.42(c), the grounds (if any) of the 
denial that are not the subject of such motion, if he has moved for 
reconsideration of a negative disability finding under Sec. 32.27; and
    (2) Of a negative disability finding that is affirmed pursuant to 
his motion for reconsideration under Sec. 32.27.
    (b) Consistent with Sec. 32.8, the following shall constitute the 
final agency determination:
    (1) Any denial not described in Sec. 32.27 that is not the subject 
of a request for a Hearing Officer determination under paragraph 
(a)(1)(i) of this section;
    (2) Any denial described in Sec. 32.27 that is not the subject of a 
request for a Hearing Officer determination under paragraph (a)(1)(ii) 
of this section, unless the negative disability finding is the subject 
of a motion for reconsideration; and
    (3) Any affirmance that is not the subject of a request for a 
Hearing Officer determination under paragraph (a)(2) of this section.

[73 FR 76535, Dec. 17, 2008]



             Subpart D_Educational Assistance Benefit Claims



Sec. 32.31  Scope of subpart.

    Consistent with Sec. 32.1, this subpart contains provisions 
applicable to claims (i.e., threshold claims and financial claims) made 
under the Act, at 42 U.S.C. 3796d-1.



Sec. 32.32  Time for filing claim.

    (a) Subject to the Act, at 42 U.S.C. 3796d-1(c), and to paragraph 
(b) of this section, a claim may be filed with the PSOB Office at any 
time after the injury date.
    (b) Unless, for good cause shown, the Director grants a waiver, no 
financial

[[Page 519]]

claim may be filed with the PSOB Office, with respect to a grading 
period that commences more than six months after the date of filing.
    (c) A claimant may file with his claim such supporting documentary, 
electronic, video, or other nonphysical evidence and legal arguments as 
he may wish to provide.

[73 FR 76535, Dec. 17, 2008]



Sec. 32.33  Definitions.

    Application means claim (i.e., a threshold claim or a financial 
claim).
    Assistance means financial assistance.
    Child of an eligible public safety officer means the child of a 
public safety officer, which officer is an eligible public safety 
officer.
    Dependent--An individual is a dependent of an eligible public safety 
officer, if--
    (1) Being a child of the officer, the individual--
    (i) Was claimed properly as the officer's dependent (within the 
meaning of the Internal Revenue Code, at 26 U.S.C. 152) on the officer's 
federal income-tax return (or could have been claimed if such a return 
had been required by law)--
    (A) For the tax year of (or immediately preceding) either the injury 
date or the date of the officer's death (with respect to a claim by 
virtue of such death); or
    (B) For the relevant tax year (with respect to a claim by virtue of 
the officer's disability); or
    (ii) Is the officer's posthumous child; or
    (2) Being a spouse of the officer at the time of the officer's death 
or on the date of the officer's totally and permanently disabling 
injury, the individual received over half of his support from the 
officer (or had as his principal place of abode the home of the officer 
and was a member of the officer's household)--
    (i) As of either the injury date or the date of the officer's death 
(with respect to a claim by virtue of such death); or
    (ii) In the relevant tax year (with respect to a claim by virtue of 
the officer's disability).
    Educational assistance benefits means benefits specifically to 
assist in paying educational expenses.
    Educational expenses means such of the following as may be in 
furtherance of the educational, professional, or vocational objective of 
the program of education that forms the basis of a financial claim:
    (1) Tuition and fees, as described in 20 U.S.C. 1087ll(1) (higher 
education assistance);
    (2) Reasonable expenses for--
    (i) Room and board (if incurred for attendance on at least a half-
time basis);
    (ii) Books;
    (iii) Computer equipment;
    (iv) Supplies;
    (v) Transportation; and
    (3) For attendance on at least a three-quarter-time basis, a 
standard allowance for miscellaneous personal expenses that is the 
greater of--
    (i) The allowance for such expenses, as established by the eligible 
educational institution for purposes of financial aid; or
    (ii) $200.00 per month.
    Eligible dependent means an individual who--
    (1) Is a dependent of an eligible public safety officer;
    (2) Attends a program of education, as described in the Act, at 42 
U.S.C. 3796d-1(a)(1); and
    (3) Is otherwise eligible to receive financial assistance pursuant 
to the Act or this subpart.
    Eligible educational expenses means a claimant's educational 
expenses, reduced by the amount of educational assistance benefits from 
non-governmental organizations that the claimant has received or will 
receive.
    Eligible public safety officer means a public safety officer--
    (1) With respect to whose death, benefits under subpart B of this 
part properly have been paid; or
    (2) With respect to whose disability, benefits under subpart C of 
this part properly--
    (i) Have been paid; or
    (ii) Would have been paid, but for the operation of paragraph (b)(1) 
of Sec. 32.6.
    Financial assistance means financial assistance, as described in the 
Act, at 42 U.S.C. 3796d-1.

[[Page 520]]

    Financial claim means a request for financial assistance, with 
respect to attendance at a program of education, for a particular 
grading period.
    Financial need--An individual is in financial need for a particular 
grading period to the extent that the amount of his eligible educational 
expenses for that period exceed the sum of--
    (1) The amount of his educational assistance benefits as described 
in the Act, at 42 U.S.C. 3796d-1(a)(3)(A); and
    (2) His expected family contribution calculated pursuant to 20 
U.S.C. 1087nn (higher education assistance).
    Funds means financial assistance.
    Grading period means the period of attendance (e.g., a semester, a 
trimester, a quarter) in a program of education, after (or with respect 
to) which period grades are assigned, units of credit are awarded, or 
courses are considered completed, as determined by the eligible 
educational institution.
    Prospective financial claim means a financial claim with respect to 
a grading period that ends after the claim is filed.
    Public safety agency means a public agency--
    (1) In which a public safety officer serves in an official capacity, 
with or without compensation, as such an officer (of any kind but 
disaster relief worker); or
    (2) Of which a public safety officer is an employee, performing 
official duties as described in the Act, at 42 U.S.C. 3796b(9)(B) or 
(C), as a disaster relief worker.
    Retroactive financial claim means a financial claim with respect to 
a grading period that ends before the claim is filed.
    Spouse of an eligible public safety officer at the time of the 
officer's death or on the date of a totally and permanently disabling 
injury means the spouse of a public safety officer (which officer is an 
eligible public safety officer) as of--
    (1) The date of the officer's death (with respect to a claim by 
virtue of such death); or
    (2) The injury date (with respect to a claim by virtue of the 
officer's disability).
    Tax Year--With respect to a claim by virtue of an eligible public 
safety officer's disability, the relevant tax year is--
    (1) The tax year of (or immediately preceding) the injury date;
    (2) Any tax year during which the program of education that forms 
the basis of the claim is attended or is pursued;
    (3) The tax year immediately preceding the date on which the program 
of education that forms the basis of the claim commenced (or is to 
commence); or
    (4) The tax year of (or immediately preceding) the officer's death, 
where the program of education that forms the basis of the claim 
commenced (or is to commence) after the date of such death.
    Threshold claim means a request for determination of general 
eligibility to receive financial assistance.



Sec. 32.34  PSOB Office determination.

    (a) In the event of the PSOB Office's denying a claim, the notice it 
serves upon the claimant shall--
    (1) Specify the factual findings and legal conclusions that support 
the denial; and
    (2) Provide information as to requesting a Hearing Officer 
determination.
    (b) No financial claim shall be approved, unless the claimant's 
threshold claim has been approved.
    (c) Upon a claimant's failure (without reasonable justification or 
excuse) to pursue in timely fashion the determination of his filed 
claim, the Director may, at his discretion, deem the same to be 
abandoned. Not less than thirty-three days prior thereto, the PSOB 
Office shall serve the claimant with notice of the Director's intention 
to exercise such discretion.



Sec. 32.35  Disqualification.

    No claim shall be approved if the claimant is--
    (a) In default on any student loan obtained under 20 U.S.C. 1091 
(higher education assistance), unless, for good cause shown, the 
Director grants a waiver; or
    (b) Subject to a denial of federal benefits under 21 U.S.C. 862 
(drug traffickers and possessors).

[[Page 521]]



Sec. 32.36  Payment and repayment.

    (a) The computation described in the Act, at 42 U.S.C. 3796d-
1(a)(2), shall be based on a certification from the eligible educational 
institution as to the claimant's full-, three-quarter-, half-, or less-
than-half-time student status, according to such institution's own 
academic standards and practices.
    (b) No payment shall be made with respect to any grading period that 
ended before the injury date.
    (c) With respect to any financial claim, no amount shall be payable 
that exceeds the amount of the eligible educational expenses that form 
the basis of the claim.
    (d) In the event that appropriations for a fiscal year are 
insufficient for full payment of all approved or anticipated financial 
claims, the following payments shall be made--
    (1) The amounts payable on approved prospective financial claims 
from claimants in financial need, to the extent of such need (if 
sufficient funds be available therefor), in the order the claims are 
approved;
    (2) All other amounts payable on approved prospective financial 
claims (in the order the claims are approved), if sufficient funds be 
available therefor--
    (i) After payment of all amounts payable pursuant to paragraph 
(d)(1) of this section; and
    (ii) After making allowance for anticipated amounts payable in the 
fiscal year pursuant to paragraph (d)(1) of this section; and
    (3) The amounts payable on approved retroactive financial claims (in 
the order the claims are approved), if sufficient funds be available 
therefor--
    (i) After payment of all amounts payable pursuant to paragraphs 
(d)(1) and (2) of this section; and
    (ii) After making allowance for anticipated amounts payable in the 
fiscal year, pursuant to paragraphs (d)(1) and (2) of this section.
    (e) In the event that, at the conclusion of a fiscal year, any 
amounts remain payable on an approved financial claim, such amounts 
shall remain payable thereafter until paid (when appropriations be 
sufficient therefor).
    (f) In the event that any amounts remain payable on an approved 
prospective financial claim after the end of the grading period that 
forms its basis, such claim shall be deemed an approved retroactive 
financial claim for purposes of paragraph (d) of this section.
    (g) No payment shall be made to (or on behalf of) any individual, on 
the basis of being a particular living public safety officer's spouse, 
unless the individual is the officer's spouse on the date of payment.
    (h) Unless, for good cause shown, the Director grants a full or 
partial waiver, a payee shall repay the amount paid to him (or on his 
behalf) pursuant to a prospective financial claim if, during the grading 
period that forms its basis--
    (1) He fails to maintain satisfactory progress under 20 U.S.C. 
1091(c) (higher education assistance);
    (2) He fails to maintain the enrollment status described in his 
claim; or
    (3) By his acts or omissions, he is or becomes ineligible for 
financial assistance.



Sec. 32.37  Request for Hearing Officer determination.

    In order to exhaust his administrative remedies, a claimant seeking 
relief from the denial of his claim shall request a Hearing Officer 
determination under subpart E of this part. Consistent with Sec. 32.8, 
any denial that is not the subject of such a request shall constitute 
the final agency determination.



                Subpart E_Hearing Officer Determinations



Sec. 32.41  Scope of subpart.

    Consistent with Sec. 32.1, this subpart contains provisions 
applicable to requests for Hearing Officer determination of claims 
denied under subpart B, C (including affirmances of negative disability 
findings described in Sec. 32.27), or D of this part, and of claims 
remanded (or matters referred) under Sec. 32.54(c).

[73 FR 76535, Dec. 17, 2008]



Sec. 32.42  Time for filing request for determination.

    (a) Subject to paragraph (c) of this section, and unless, for good 
cause

[[Page 522]]

shown, the Director extends the time for filing, no claim shall be 
determined if the request therefor is filed with the PSOB Office later 
than thirty-three days after the service of notice of--
    (1) The denial (under subpart B, C (except as may be provided in 
paragraph (a)(2) of this section), or D of this part) of a claim; or
    (2) The affirmance (under subpart C of this part) of a negative 
disability finding described in Sec. 32.27.
    (b) A claimant may file with his request for a Hearing Officer 
determination such supporting documentary, electronic, video, or other 
non-physical evidence and legal arguments as he may wish to provide.
    (c) The timely filing of a motion for reconsideration under Sec. 
32.28(a) shall be deemed to constitute a timely filing, under paragraph 
(a) of this section, of a request for determination with respect to any 
grounds described in Sec. 32.29(a)(1)(ii) that may be applicable.

[73 FR 76535, Dec. 17, 2008]



Sec. 32.43  Appointment and assignment of Hearing Officers.

    (a) Pursuant to 42 U.S.C. 3787 (employment and authority of hearing 
officers), Hearing Officers may be appointed from time to time by the 
Director, to remain on the roster of such Officers at his pleasure.
    (b) Upon the filing of a request for a Hearing Officer determination 
(or upon remand or referral), the PSOB Office shall assign the claim to 
a Hearing Officer on the roster; the PSOB Office may assign a particular 
claim to a specific Hearing Officer if it judges, in its discretion, 
that his experience or expertise suit him especially for it.
    (c) Upon its making the assignment described in paragraph (b) of 
this section, the PSOB Office shall serve notice of the same upon the 
claimant, with an indication that any evidence or legal argument he 
wishes to provide is to be filed simultaneously with the PSOB Office and 
the Hearing Officer.
    (d) With respect to an assignment described in paragraph (b) of this 
section, the Hearing Officer's consideration shall be--
    (1) De novo (unless the Director should expressly prescribe 
otherwise, with respect to a particular remand or referral), rather than 
in review of the findings, determinations, affirmances, reversals, 
assignments, authorizations, decisions, judgments, rulings, or other 
actions of the PSOB Office; and
    (2) Consistent with subpart B, C, or D of this part, as applicable.
    (e) OJP's General Counsel shall provide advice to the Hearing 
Officer as to all questions of law relating to any matter assigned 
pursuant to paragraph (b) of this section.

[73 FR 76535, Dec. 17, 2008]



Sec. 32.44  Hearing Officer determination.

    (a) Upon his determining a claim, the Hearing Officer shall file 
notice of the same simultaneously with the Director (for his review 
under subpart F of this part (in the event of approval)), the PSOB 
Office, and OJP's General Counsel, which notice shall specify the 
factual findings and legal conclusions that support it.
    (b) Upon a Hearing Officer's denying a claim, the PSOB Office shall 
serve notice of the same upon the claimant (and upon any other claimant 
who may have filed a claim with respect to the same public safety 
officer), which notice shall--
    (1) Specify the Hearing Officer's factual findings and legal 
conclusions that support it; and
    (2) Provide information as to Director appeals.
    (c) Upon a claimant's failure (without reasonable justification or 
excuse) to pursue in timely fashion the determination of his claim 
pursuant to his filed request therefor, the Director may, at his 
discretion, deem the request to be abandoned, as though never filed. Not 
less than thirty-three days prior thereto, the PSOB Office shall serve 
the claimant with notice of the Director's intention to exercise such 
discretion.



Sec. 32.45  Hearings.

    (a) Except with respect to a remand or referral, at the election of 
a claimant under subpart B or C of this part, the Hearing Officer shall 
hold a hearing, at a location agreeable to the claimant and the Officer 
(or, otherwise,

[[Page 523]]

at a location ruled by the Hearing Officer to be suitable), for the sole 
purposes of obtaining, consistent with Sec. 32.5(c),
    (1) Evidence from the claimant and his fact or expert witnesses; and
    (2) Such other evidence as the Hearing Officer, at his discretion, 
may rule to be necessary or useful.
    (b) Unless, for good cause shown, the Director extends the time for 
filing, no election under paragraph (a) of this section shall be honored 
if it is filed with the PSOB Office later than ninety days after service 
of the notice described in Sec. 32.43(c).
    (c) Not less than seven days prior to any hearing, the claimant 
shall file simultaneously with the PSOB Office and the Hearing Officer a 
list of all expected fact or expert witnesses and a brief summary of the 
evidence each witness is expected to provide.
    (d) At any hearing, the Hearing Officer--
    (1) May exclude any evidence whose probative value is substantially 
outweighed by considerations of undue delay, waste of time, or needless 
presentation of cumulative evidence; and
    (2) Shall exclude witnesses (other than the claimant, or any person 
whose presence is shown by the claimant to be essential to the 
presentation of his claim), so that they cannot hear the testimony of 
other witnesses.
    (e) Each hearing shall be recorded, and the original of the complete 
record or transcript thereof shall be made a part of the claim file.
    (f) Unless, for good cause shown, the Director grants a waiver, a 
claimant's failure to appear at a hearing (in person or through a 
representative) shall constitute a withdrawal of his election under 
paragraph (a) of this section.
    (g) Upon a claimant's failure to pursue in timely fashion his filed 
election under paragraph (a) of this section, the Director may, at his 
discretion, deem the same to be abandoned. Not less than thirty-three 
days prior thereto, the PSOB Office shall serve the claimant with notice 
of the Director's intention to exercise such discretion.

[73 FR 76536, Dec. 17, 2008]



Sec. 32.46  Director appeal.

    (a) In order to exhaust his administrative remedies, a claimant 
seeking relief from the denial of his claim shall appeal to the Director 
under subpart F of this part.
    (b) Consistent with Sec. 32.8, any claim denial that is not 
appealed to the Director under paragraph (a) of this section shall 
constitute the final agency determination, unless the denial is reviewed 
otherwise under subpart F of this part.



                 Subpart F_Director Appeals and Reviews



Sec. 32.51  Scope of subpart.

    Consistent with Sec. 32.1, this subpart contains provisions 
applicable to Director appeals and reviews of claim approvals and 
denials made under subpart E of this part, and reviews of claim 
approvals under the Act, at 42 U.S.C. 3796c-1 or Public Law 107-37.



Sec. 32.52  Time for filing Director appeal.

    (a) Unless, for good cause shown, the Director extends the time for 
filing, no Director appeal shall be considered if it is filed with the 
PSOB Office later than thirty-three days after the service of notice of 
the denial (under subpart E of this part) of a claim.
    (b) A claimant may file with his Director appeal such supporting 
documentary, electronic, video, or other nonphysical evidence and legal 
arguments as he may wish to provide.

[73 FR 76536, Dec. 17, 2008]



Sec. 32.53  Review.

    (a) Upon the filing of the approval (under subpart E of this part) 
of a claim, the Director shall review the same.
    (b) The Director may review--
    (1) Any claim denial made under subpart E of this part; and
    (2) Any claim approval made under the Act, at 42 U.S.C. 3796c-1 or 
Public Law 107-37.
    (c) Unless the Director judges that it would be unnecessary, the 
PSOB Office shall serve notice upon the claimant (and upon any other 
claimant who may have filed a claim with respect to the

[[Page 524]]

same public safety officer) of the initiation of a review under 
paragraph (a) or (b) of this section. Unless the Director judges that it 
would be unnecessary, such notice shall--
    (1) Indicate the principal factual findings or legal conclusions at 
issue; and
    (2) Offer a reasonable opportunity for filing of evidence or legal 
arguments.



Sec. 32.54  Director determination.

    (a) Upon the Director's approving or denying a claim, the PSOB 
Office shall serve notice of the same simultaneously upon the claimant 
(and upon any other claimant who may have filed a claim with respect to 
the same public safety officer), and upon any Hearing Officer who made a 
determination with respect to the claim. In the event of a denial, such 
notice shall--
    (1) Specify the factual findings and legal conclusions that support 
it; and
    (2) Provide information as to judicial appeals (for the claimant or 
claimants).
    (b) Upon a claimant's failure (without reasonable justification or 
excuse) to pursue in timely fashion the determination of his claim 
pursuant to his filed Director appeal, the Director may, at his 
discretion, deem the same to be abandoned, as though never filed. Not 
less than thirty-three days prior thereto, the PSOB Office shall serve 
the claimant with notice of the Director's intention to exercise such 
discretion.
    (c) With respect to any claim before him, the Director, as 
appropriate, may--
    (1) Remand the same to the PSOB Office, or to a Hearing Officer;
    (2) Vacate any related determination under this part; or
    (3) Refer any related matters to a Hearing Officer (as a special 
master), to recommend factual findings and dispositions in connection 
therewith.

[73 FR 76536, Dec. 17, 2008]



Sec. 32.55  Judicial appeal.

    (a) Consistent with Sec. 32.8, any approval or denial described in 
Sec. 32.54(a) shall constitute the final agency determination.
    (b) A claimant seeking relief from the denial of his claim may 
appeal judicially pursuant to the Act, at 42 U.S.C. 3796c-2.

[73 FR 76536, Dec. 17, 2008]



PART 33_BUREAU OF JUSTICE ASSISTANCE GRANT PROGRAMS--Table of Contents




                 Subpart A_Criminal Justice Block Grants

                           General Provisions

Sec.
33.1 General.
33.2 Statutory authority.
33.3 OMB approval of information collection requirements.

                           Eligible Applicants

33.10 State government.
33.11 Units of local government.
33.12 Establishment of State Office.

                           Allocation of Funds

33.20 Fund availability.
33.21 Match.
33.22 Title to personal property.
33.23 Limitations on fund use.

                      Purposes of Block Grant Funds

33.30 Program criteria.
33.31 Eligible purposes and programs.
33.32 Certified programs.

                        Application Requirements

33.40 General.
33.41 Application content.

                         Additional Requirements

33.50 General financial requirements.
33.51 Audit.
33.52 Civil rights.
33.53 Participation by faith-based organizations.

                  Submission and Review of Applications

33.60 General.
33.61 Review of State applications.

                                 Reports

33.70 Annual performance report.
33.71 Initial project report.

                          Suspension of Funding

33.80 Suspension of funding.

 Subpart B_Bulletproof Vest Partnership Grant Program Applying for the 
                                 Program

33.100 Definitions.
33.101 Standards and requirements.
33.102 Preferences.
33.103 How to apply.

    Authority: 42 U.S.C. 3701 through 3797y-4; 5 U.S.C. 301.

[[Page 525]]


    Source: 50 FR 22990, May 30, 1985, unless otherwise noted.



                 Subpart A_Criminal Justice Block Grants

                           General Provisions



Sec. 33.1  General.

    This subpart defines eligibility criteria and sets forth 
requirements for application for and administration of block grants by 
state and local governments.

[50 FR 22990, May 30, 1985, as amended at 63 FR 50761, Sept. 23, 1998]



Sec. 33.2  Statutory authority.

    The statutory authority for the regulations is the Omnibus Crime 
Control and Safe Streets Act of 1968, 42 U.S.C. 3701, et. seq., as 
amended (Pub. L. 90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, 
Pub. L. 94-430, Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. 
L. 98-473) (hereinafter referred to as the Justice Assistance Act of 
1984 or the Act).



Sec. 33.3  OMB approval of information collection requirements.

    The information collection requirements in this subpart A have been 
approved by the Office of Management and Budget under control no. 1121-
0113.

[50 FR 22990, May 30, 1985, as amended at 63 FR 50761, Sept. 23, 1998]

                           Eligible Applicants



Sec. 33.10  State government.

    All states are eligible to apply for and receive block grants. 
Section 404 of the Act. State, as defined in the statute, means any 
state of the United States and includes the District of Columbia, the 
Commonwealth of Puerto Rico, and the Virgin Islands. Section 901(a)(2) 
of the Act.



Sec. 33.11  Units of local government.

    (a) Units of local government are eligible to receive subgrants from 
a participating state. Unit of local government means any city, county, 
township, borough, parish, village, or other general purpose political 
subdivision of a state and includes Indian tribes which perform law 
enforcement functions as determined by the Secretary of the Interior. 
Section 901(a)(3) of the Act.
    (b) If the Bureau determines, during any fiscal year, that a portion 
of the funds allocated to a state will not be required, or that a state 
will be unable to qualify and receive funds, or that a state chooses not 
to participate in the program, then the Bureau shall award the funds 
allocated to the state directly to urban, rural, and suburban units of 
local government or combinations thereof within the state, giving 
priority to those jurisdictions with the greatest need. Section 407(d) 
of the Act.



Sec. 33.12  Establishment of State Office.

    (a) Section 408(a) of the Act provides that the chief executive of 
each participating state shall designate a State Office for the purposes 
of:
    (1) Preparing an application to obtain funds; and
    (2) Administering funds received from the Bureau of Justice 
Assistance, including receipt, review, processing, monitoring, progress 
and financial report review, technical assistance, grant adjustments, 
accounting, auditing, and fund disbursements.
    (b) An office or agency performing other functions within the 
state's executive branch may be designated as the State Office. Section 
408(b) of the Act.

                           Allocation of Funds



Sec. 33.20  Fund availability.

    Section 407(a) of the Justice Assistance Act provides that 80 
percent of the total amount appropriated for part D (block grants) and 
part E (discretionary grants) shall be allocated for block grants.
    (a) Allocation to States. Each participating state shall receive a 
base amount of $250,000 with the remaining funds allocated to each state 
on the basis of the state's relative share of total U.S. population. 
Section 407(a) of the Act. If a state does not elect to participate in 
the Act, the states allocation shall be awarded by the Bureau directly 
to local units of government and combinations of units of local 
government within the state. Section 407(d) of the Act.

[[Page 526]]

    (b) Allocation of funds within the State. (1) Funds granted to the 
state are further subgranted by the state to state agencies and units of 
local government to carry out programs and projects contained in an 
approved application. Each state shall distribute to its local units of 
government, in the aggregate, a portion of the state's block grant funds 
equal to the local government share of total state and local criminal 
justice expenditures. Section 407(b) of the Act. In determining the 
portion to be distributed to local units, the most recent and complete 
data available from the Bureau of Justice Statistics of the U.S. 
Department of Justice shall be used unless the use of other data has 
been approved in advance by the Bureau of Justice Assistance.
    (2) To request approval of a distribution ratio other than that 
based on data of the Bureau of Justice Statistics, the head of the State 
Office must certify in writing to the Bureau of Justice Assistance that 
the ratio it proposes is a correct reflection of the local share of 
total state and local criminal justice expenditures and that the state 
has notified its major local governments of the request and informed 
them of the opportunity to contact the Bureau within 30 days, if they 
have any objections. The written request must also cite the expenditure 
data used to substantiate the proposed change.
    (c) Allocation based on greatest need. In distributing funds among 
urban, rural, and suburban units of local government, the state shall 
give priority to those jurisdictions with the greatest need. Section 
407(b)(2) of the Act.



Sec. 33.21  Match.

    (a) Funds may be used to pay up to 50 percent of the cost of a 
program or project. Section 403(b)(1) of the Act. The remaining non-
Federal share shall be in cash. Section 403(b)(2) of the Act. Match will 
be provided on a project by project basis. However, states may request 
the Bureau to approve exceptions such as match on a program by program 
basis, state-wide basis, unit-of-government basis, or a combination of 
the above. States must include any requests for approval of other than 
project-by-project match in their applications to the Bureau.
    (b) Funds subgranted to an Indian tribe which performs law 
enforcement functions (as determined by the Secretary of the Interior) 
shall be used to pay 100 percent of the cost of a program or project. 
Section 403(b)(1) of the Act.



Sec. 33.22  Title to personal property.

    Section 808 of the Justice Assistance Act provides that 
notwithstanding any other provision of law, title to all expendable and 
nonexpendable personal property purchased with funds made available 
under this title, including property with funds made available under 
this title as in effect before the effective date of the Justice 
Assistance Act of 1984, shall vest in the criminal justice agency or 
nonprofit organization that purchased the property if it certifies to 
the State Office that it will use the property for criminal justice 
purposes. If such certification is not made, title to the property shall 
vest in the State Office, which shall seek to have the property used for 
criminal justice purposes elsewhere in the state prior to using it or 
disposing of it in any other manner. If a State Office does not exist, 
certification will be made directly to the Bureau of Justice Assistance.



Sec. 33.23  Limitations on fund use.

    In order to insure the most efficient and effective use of grant 
funds, the Justice Assistance Act places restrictions on the award of 
block monies for routine equipment, personnel costs, construction, 
supplanting of state and local funds, and land acquisition.
    (a) Equipment and hardware. The purchase or acquisition of equipment 
or hardware with grant funds is prohibited unless the purchase or 
acquisition is an incidental and necessary part of a program. Section 
406(c)(1) of the Act.
    (b) General salaries and personnel costs. Payment of personnel costs 
with grant funds is prohibited unless the costs are an incidental and 
necessary part of a program. Section 406(c)(1) of the Act. Programs 
which have as their primary purpose the payment of usual salaries paid 
to employees generally, or to specific classes of employees within a 
jurisdiction, are prohibited. Notwithstanding the above, grant funds may 
be

[[Page 527]]

used to compensate personnel for time engaged in conducting or 
undergoing training programs or the compensation of personnel engaged in 
research, development demonstration, or short-term programs. Section 
406(c)(2) of the Act.
    (c) Construction. Construction projects are prohibited. Section 
406(c)(3) of the Act.
    (d) Land acquisition. Acquisition of land with grant funds is 
prohibited. Section 406(c)(3) of the Act.
    (e) Ineffective programs. The use of grant funds is prohibited for 
programs or projects which, based upon evaluations by the National 
Institute of Justice, Bureau of Justice Assistance, Bureau of Justice 
Statistics, state or local agencies, and other public or private 
organizations, have been demonstrated to offer a low probability of 
improving the functioning of the criminal justice system. The Bureau of 
Justice Assistance will formally identify ineffective programs by notice 
in the Federal Register after opportunity for public comment. Section 
406(c)(4) of the Act.
    (f) Administrative costs. The use of grant funds to pay for costs 
incurred in applying for or administering the block grant is prohibited. 
Block grant funds may only be used to carry out programs that fall 
within one of the purposes listed in section 403(a) of the Justice 
Assistance Act. Section 403(a) of the Act.
    (g) Period of project support. A grant recipient may receive block 
grant funds for a specific program or project for a period not to exceed 
four years. The four-year maximum allowable period of funding includes 
any period prior to the Justice Assistance Act when the program or 
project was supported by funds made available under title I of the 
Omnibus Crime Control and Safe Streets Act. Section 403(c) of the Act.
    (h) Non-supplantation. Block grant funds shall not be used to 
supplant state or local funds, but will be used to increase the amounts 
of such funds that would, in the absence of Federal aid, be made 
available for criminal justice activities. Section 405(2) of the Act.

                      Purposes of Block Grant Funds



Sec. 33.30  Program criteria.

    The Justice Assistance Act requires that block grant funds assist 
states and local governments to carry out specific programs which offer 
a high probability of improving the functioning of the criminal justice 
system, with special emphasis on violent crime and serious offenders. 
Section 403(a) of the Act.
    (a) High probability of improving the criminal justice system. High 
probability of improving the criminal justice system means that a 
prudent assessment of the concepts and implementation plans included in 
a proposed program, project, approach, or practice, together with an 
assessment of the problem to which it is addressed and of data and 
information bearing on the problem, concept, and implementation plan, 
provides strong evidence that the proposed activities would result in 
identifiable improvements in the criminal justice system if implemented 
as proposed. Section 901(a)(21) of the Act.
    (b) Special emphasis on violent crime and serious offenders. Special 
emphasis on violent crime and serious offenders means that a 
relationship exists between the program and violent crime, the victims 
of violent crime, serious offenders and their acts, and the prevention 
of violent crime and serious offenses. Violent crime, for the purpose of 
this program, includes homicide, robbery, assault, arson, residential 
burglary, child abuse and molestation, sexual assault, kidnapping, and 
all felonies involving weapons or narcotics trafficking. Serious 
offenders are those who commit violent crimes.
    (c) Criminal justice. Criminal justice means activities pertaining 
to crime prevention, control, or reduction, or the enforcement of the 
criminal law, including but not limited to, police efforts to prevent, 
control, or reduce crime or to apprehend criminals, including juveniles, 
activities of courts having criminal jurisdiction, and related agencies 
(including but not limited to prosecutorial and defender services, 
juvenile delinquency agencies, and pretrial service or release 
agencies), activities of corrections, probation or parole authorities 
and related

[[Page 528]]

agencies assisting in the rehabilitation, supervision, and care of 
criminal offenders, and programs relating to the prevention, control, or 
reduction of narcotic addiction and juvenile delinquency. Section 
901(a)(1) of the Act.



Sec. 33.31  Eligible purposes and programs.

    (a) Eligible purposes. Block grant funds may be used for the 
following purposes listed in section 403(a) of the Justice Assistance 
Act:
    (1) Providing community and neighborhood programs that enable 
citizens and police to undertake initiatives to prevent and control 
neighborhood crime;
    (2) Disrupting illicit commerce in stolen goods and property;
    (3) Combating arson;
    (4) Effectively investing and bringing to trial white-collar crime, 
organized crime, public corruption crimes, and fraud against the 
Government;
    (5) Identifying criminal cases involving persons (including juvenile 
offenders) with a history of serious criminal conduct in order to 
expedite the processing of such cases and to improve court system 
management and sentencing practices and procedures in such cases;
    (6) Developing and implementing programs which provide assistance to 
jurors and witnesses, and assistance (other than compensation) to 
victims of crimes;
    (7) Providing alternatives to pretrial detention, jail, and prison 
for persons who pose no danger to the community;
    (8) Providing programs which identify and meet the needs of drug-
dependent offenders;
    (9) Providing programs which alleviate prison and jail overcrowding 
and programs which identify existing state and Federal buildings 
suitable for prison use;
    (10) Providing, management, and technical assistance to criminal 
justice personnel and determining appropriate prosecutorial and judicial 
personnel needs;
    (11) Providing prison industry projects designed to place inmates in 
a realistic working and training environment in which they will be 
enabled to acquire marketable skills and to make financial payments for 
restitution to their victims, for support of their own families, and for 
support of themselves in the institution;
    (12) Providing for operational information systems and workload 
management systems which improve the effectiveness of criminal justice 
agencies;
    (13) Not more than 10 percent of the state's block grant funds for 
providing programs of the same types as described in section 501(a)(4) 
of the Act which:
    (i) The Bureau establishes under section 503(a) of the Act as 
discretionary programs for financial assistance; or
    (ii) Are innovative and have been deemed by the Bureau as likely to 
prove successful;
    (14) Implementing programs which address critical problems of crime, 
such as drug trafficking, which have been certified by the Director of 
the Bureau of Justice Assistance as having proved successful, after a 
process of consultation coordinated by the Assistant Attorney General of 
the Office of Justice Programs with the Director of the National 
Institute of Justice, Director of the Bureau of Justice Statistics, and 
Administrator of the Office of Juvenile Justice and Delinquency 
Prevention;
    (15) Providing programs which address the problem of serious 
offenses committed by juveniles;
    (16) Addressing the problem of crime committed against the elderly;
    (17) Providing training, technical assistance, and programs to 
assist state and local law enforcement authorities in rural areas in 
combating crime, with particular emphasis on violent crime, juvenile 
delinquency, and crime prevention; and
    (18) Improving the operational effectiveness of law enforcement by 
integrating and maximizing the effectiveness of police field operations 
and the use of crime analysis techniques.
    (b) Programs. The Bureau of Justice Assistance has certified that 
specific programs meet these purposes, conform with the program 
criteria, and are eligible for block grant support. (See Sec. 33.32 of 
the regulations, Certified Programs). These programs are described in 
Program Briefs that are available from the Bureau of Justice Assistance. 
The

[[Page 529]]

list of certified programs will be expanded in the future based on the 
statutory criteria to permit a more complete coverage of each of the 
purposes. This certification will be done in consultation with state and 
local governments and published in the Federal Register. States and 
localities may use block funds to implement one or more of these 
certified programs, if they agree to comply with the critical elements 
set forth in Sec. 33.32 of these regulations, and to provide data on 
the performance indicators listed. States and localities selecting these 
programs may identify the certified program in their application by name 
only, without further description. Programs other than those certified 
by the Bureau of Justice Assistance may be proposed by the state and/or 
units of local government and approved for funding by the Bureau. To 
obtain approval to fund a proposed program, the applicant must provide 
in its application a description of the program and evidence that it 
meets the statutory program criteria. The application requirements for 
program approval are contained in Subpart E--Application Requirements.



Sec. 33.32  Certified programs.

    (a) The Act encourages the implementation of programs that have been 
proven successful. Pursuant to section 403(a)(14) of the Act, the Bureau 
of Justice Assistance, after a process of consultation coordinated by 
the Assistant Attorney General of the Office of Justice Programs with 
the National Institute of Justice, the Bureau of Justice Statistics, and 
the Office of Juvenile Justice and Delinquency Prevention, certifies 
that the following programs have been proven successful:
    (1)(i) Purpose: Providing community and neighborhood programs that 
enable citizens and police to undertake initiatives to prevent and 
control neighborhood crime.
    (ii) Certified program: Community crime prevention. This program 
aims to prevent crime and reduce the fear of crime through organized 
collective citizen action. Community crime prevention programs may be 
initiated by either law enforcement agencies or existing community 
groups, but each must have the active support and involvement of the 
other. Local programs must be designed to meet the needs and problems of 
specific neighborhoods or communities and particular population groups, 
including the elderly. They must make extensive use of volunteers. The 
specific services or activities to be implemented depend on the local 
situation and crime problem, but usually have, as a core element, 
neighborhood (block) watch with additional activities optional. Programs 
to provide training, technical assistance and other support services are 
also eligible for funding. Program objectives and elements are described 
in greater detail in the Program Brief on Community Crime Prevention.
    (A) Critical elements:
    (1) Pre-program planning to determine needs and problems of 
community.
    (2) Targeting of activities and services to meet local situation.
    (3) Maximum use of volunteers.
    (4) Cooperation of community organizations and law enforcement.
    (B) Optional activities: Projects must implement one or more of the 
following:
    (1) Neighborhood Watch
    (2) Operation ID
    (3) Security Surveys
    (4) Citizen Patrols
    (5) Escort or Special Services for the Elderly
    (6) Block Homes or Safe-Houses
    (7) Neighborhood Clean-Ups in High Crime Areas
    (8) Public Education
    (9) Training
    (10) Technical Assistance
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of services provided.
    (3) Units of service delivered (e.g., number of block watches 
organized).
    (4) Number of volunteers participating.
    (2)(i) Purpose: Disrupting illicit commerce in stolen goods and 
property.
    (ii) Certified program: Property Crime (STING) Program. This program 
targets the apprehension and prosecution of burglars/thieves as well as 
those individuals who provide the outlets for receipt of stolen goods 
and property. The majority of the model programs have

[[Page 530]]

established storefronts in which law enforcement officers pose as fences 
who buy stolen goods. In areas where there is a high concentration of 
organized crime, programs have employed techniques to infiltrate 
organizations in order to obtain evidence for prosecution of serious 
crime. Program objectives and elements are described in greater detail 
in the Program Brief on Property Crime (STING) Program.
    (A) Critical elements:
    (1) Program planning, which consists of:
    (i) Analysis of the stolen property redistribution system in the 
jurisdiction.
    (ii) Selection of the target criminal population and/or property at 
which the program will be directed.
    (iii) Establishment of policies and procedures governing roles of 
participants, and program implementation.
    (2) Establishment of records maintenance and management system; 
security management procedures; and stolen property/contraband/evidence 
management.
    (3) Implementation of operations, including undercover activities 
and ongoing intelligence gathering and analysis.
    (4) Coordination with prosecutorial personnel in case development 
and proper use of undercover techniques; and cooperation with victims to 
assure return of property.
    (B) Performance indicators:
    (1) Number of arrest and type of offense.
    (2) Number of convictions.
    (3) Dollar value of property received.
    (4) Dollar value of property returned to victims.
    (5) Number of fencing operations disrupted.
    (3)(i) Purpose: Combating arson.
    (ii) Certified program: Arson Prevention and Control Program. This 
program employs the task force concept as a strategy to prevent and 
control the malicious or fraudulent burning of property. It attempts to 
reduce the incidence of arson and increase arrest, prosecution and 
conviction rates. The program focuses on arson that is economically 
motivated. Program objectives and elements are described in greater 
detail in the Program Brief on Arson Prevention and Control.
    (A) Critical elements:
    (1) Program planning to establish:
    (i) An understanding to the area's specific arson problems.
    (ii) A selection of program priorities, strategies, and the 
targeting of the criminal population.
    (iii) An outline of policies and procedures for program participants 
and program implementation.
    (iv) Written agreements indicating participation in the program, 
acceptance of established criteria and procedures, and commitment of 
resources.
    (2) Establishment of a system for collecting and analyzing data to 
target and identify arson patterns, methods and areas of vulnerability.
    (3) Establishment of investigative and prosecutorial elements 
directed at the crime of arson.
    (4) Involvement of community groups and private industry in support 
of the program.
    (B) Performance indicators:
    (1) Number of staff assigned to the project.
    (2) Number of confirmed arson incidents reported during reporting 
period.
    (3) Number of confirmed arson incidents reported during equivalent 
pre-reporting period.
    (4) Number of incidents resulting in a prosecution during program 
period.
    (5) Number of incidents resulting in a prosecution during equivalent 
pre-reporting period.
    (6) Number of prosecutions resulting in conviction.
    (7) Amount of property damage/loss caused by incendiary/suspicious 
fires during program period.
    (8) Amount of property damage/loss by incendiary/suspicious fires 
during equivalent pre-reporting period.
    (4)(i) Purpose: Effectively investigating and bringing to trial 
white-collar crime, organized crime, public corruption crime, and fraud 
against the Government. (No specific program has been certified by the 
Bureau. Applicants may propose programs for approval in accordance with 
the provisions of Sec. 33.41.)
    (5)(i) Purpose: Identifying criminal cases involving persons 
(including juvenile offenders) with a history of serious criminal 
conduct in order to expedite the processing of such cases and to

[[Page 531]]

improve court system management and sentencing practices and procedures 
in such cases.
    (ii) Certificate program: Career Criminal Prosecution Program. This 
program targets the identification and prosecution of violent and repeat 
offenders. Model efforts include a full time prosecutorial unit devoted 
to increasing the rate of prosecution of such offenders, special 
screening criteria, and policies that initiate or enhance vertical 
prosecution. Program objectives and elements are described in greater 
detail in the Program Brief on Career Criminal Prosecution.
    (A) Critical elements:
    (1) Screening and prosecution criteria to identify cases involving 
violent offenses and repeat offenders.
    (2) A separate, full-time prosecutorial unit for violent and repeat 
offenders to enable vertical prosecution of assigned cases.
    (3) Reduction of caseload to enable thorough case preparation/
presentation.
    (4) A policy requiring limited or no plea negotiations.
    (5) A policy of opposing pre-trial motions for continuances.
    (6) A policy to maintain effective communications with victims and 
witnesses.
    (B) Performance indicators:
    (1) Number of full-time prosecutors assigned to unit.
    (2) Number of cases meeting established criteria.
    (3) Number of cases prosecuted.
    (4) Number of and percentage of cases resulting in conviction.
    (5) Number and percentage of individuals incarcerated.
    (iii) Certified program: Court Delay Reduction Program. This program 
expedites the processing of felony cases in trial courts. It emphasizes 
reduction of backlogs while maintaining equitable treatment and due 
process. Model programs result in reduction of case processing time, 
minimization of court appearances for victims and witnesses, and 
improvement of the public's perception of the quality of the criminal 
justice system. This program is available for both metropolitan trial 
courts and state-level court systems. Program objectives and elements 
are described in greater detail in the Program Brief on Court Delay 
Reduction.
    (A) Critical elements: Both the metropolitan and the state level 
programs are divided into two phases, planning and implementation.
    (1) Planning (Phase I):
    (i) Formation of delay reduction advisory committee.
    (ii) Data collection, analysis, and problem identification.
    (iii) Adoption of case processing goals for criminal cases.
    (iv) Development of action plan(s).
    (2) Implementation (Phase II):
    (i) Education of trial judges and others on objectives, standards 
and procedures.
    (ii) Systematic monitoring of all criminal cases filed in 
participating courts.
    (iii) System for regular acquisition and assessment of data from 
each trial court (state level only).
    (iv) Modification of rules and procedures at all levels of program 
participation when program results indicate need for changes.
    (B) Performance indicators. (1) Time standard established for 
processing of criminal cases under the project (days from arrest to 
trial).
    (2) Percentage of criminal cases prior to project that met standard.
    (3) Percentage of criminal cases disposed of during the project 
reporting period that met time disposition standard.
    (4) Reduction in the average number of continuances from the 
equivalent pre-project period.
    (6)(i) Purpose: Developing and implementing programs which provide 
assistance to jurors and witnesses, and assistance (other than 
compensation) to victims of crimes.
    (ii) Certified program: victim assistance. This program provides 
services and assistance to victims in order to speed their recovery from 
the financial loss, physical suffering and emotional trauma of 
victimization, and to assure proper and sensitive treatment of innocent 
victims in the criminal justice process. Victim assistance programs 
usually encompass a wide range of support services. The specific 
services to be provided, and the specific target group should reflect 
local needs and

[[Page 532]]

priorities. Program objectives and elements are described in greater 
detail in the Program Brief on Victim Assistance.
    (A) Critical elements:
    (1) Analysis of the community's victim/witness needs and problems.
    (2) Targeting of existing and planned activities and services to 
respond to this community situation.
    (3) Formulation of agreements for cooperation between criminal 
justice system agencies and public and private victim/witness service 
providers.
    (B) Optional activities: Projects must implement a minimum of three 
(3) or more of the following:
    (1) 24 hour crisis intervention and support or emergency services.
    (2) Counseling.
    (3) Assistance with compensation claims, creditors, community 
referrals, and restitution.
    (4) Police, prosecutor or court-related services.
    (5) Safety (including shelter), supportive counseling, social 
services support and criminal justice advocacy.
    (6) Training and education for individuals having direct contact 
with the victims, i.e., police, medical personnel, prosecutors, judges, 
etc.
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of services provided.
    (3) Number of victims/witnesses served (by type of service).
    (4) Number of criminal justice personnel and others trained.
    (7)(i) Purpose: Providing alternatives to pretrial detention, jail, 
and prison for persons who pose no danger to the community.
    (ii) Certified program: Jail overcrowding/alternatives to pretrial 
detention. This program aims to control jail population through improved 
intake screening which assures that persons who should be in jail are 
detained, and that alternatives are available for those requiring less 
than maximum supervision. Particular care must be taken that persons 
charged with violent crimes be detained and that the impact on victims 
and witnesses be a factor in screening decisions. The program calls for 
the development of a jail population management plan as part of a 
planning phase, followed by implementation of specific activities and 
services. Among the activities and services that may be funded are 
central intake and screening, pretrial services, diversion to 
detoxification centers, citation release, community corrections, 
sentencing alternatives, and jail management information systems. 
Program objectives and elements are described in greater detail in the 
Program Brief on Jail Overcrowding/Alternatives to Pretrial Detention.
    (A) Critical elements:
    (1) Implementation of program by state.
    (2) Formation of broad-based jail policy committee.
    (3) Program planning that includes data collection, analysis, 
problem identification, and development of jail population management 
plan, including the removal of juveniles from adult jails and lockups.
    (4) Implementation of plan.
    (B) Optional activities: Based on their plans, projects must 
implement one or more of the following activities or components:
    (1) Central intake and classification.
    (2) Comprehensive pre-trial services.
    (3) Diversion of public inebriates to detoxification centers.
    (4) Diversion of juveniles to secure and non-secure alternatives.
    (5) Citation release.
    (6) Community correction centers.
    (7) Sentencing alternatives (including restitution and work 
release).
    (8) Jail management information system.
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Pretrial jail population.
    (3) Types of services and alternatives implemented.
    (4) Numbers of arrestees served/diverted by type of alternative.
    (5) Convicted clients completing alternative punishment 
successfully.
    (6) Re-arrest rate of released defendants.
    (7) Estimated jail days saved.
    (8)(i) Purpose: Providing programs which identify and meet the needs 
of drug-dependent offenders.
    (ii) Certified program: Treatment Alternatives to Street Crime 
Program (TASC).

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This program intervenes in the criminal justice process by early 
identification of substance-abusing offenders, referral to community 
treatment resources, and monitoring of treatment. Model programs provide 
the following services: screening arrestees, providing diagnostic/
referral services for treatment, and monitoring progress of clients. 
Persons charged with or convicted of violent crimes including murder, 
rape, arson, armed robbery, sexual assault, burglary, child molestation, 
and manslaughter are excluded. Program objectives and elements are 
described in greater detail in the Program Brief on Treatment 
Alternatives to Street Crime.
    (A) Critical elements:
    (1) Broad-based support by criminal justice agencies.
    (2) Establishment of TASC advisory board.
    (3) Establishment of administrative management unit with full-time 
director.
    (4) Development of specific program eligibility criteria.
    (5) Establishment of a process for screening potential clients and 
court liaison.
    (6) Development of methods for assessing most appropriate treatment 
approaches.
    (7) Documentation of the availability of community treatment 
programs and their willingness to accept TASC clients.
    (8) Establishment of monitoring/tracking system.
    (B) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Number of persons screened.
    (3) Number of clients accepted.
    (4) Number of clients completing program.
    (5) Number of client re-arrests while in the program.
    (9) Purpose: Providing programs which alleviate prison and jail 
overcrowding and programs which identify existing state and Federal 
buildings suitable for prison use. (No specific program has been 
certified by the Bureau. Applicants may propose programs for approval in 
accordance with the provisions of Sec. 33.41.)
    (10)(i) Purpose: Provide training, management, and technical 
assistance to criminal justice personnel and determining appropriate 
prosecutorial and judicial personnel needs. (No specific program has 
been certified by the Bureau. Applicants may propose programs for 
approval in accordance with the provisions in Sec. 33.41. Training, 
management, and technical assistance programs must be focused on one of 
the 17 other statutory purposes and be based on a needs assessment. 
Entry level or basic training is prohibited.)
    (11) Purpose: Providing prison industry projects designed to place 
inmates in a realistic working and training environment in which they 
will be enabled to acquire marketable skills and to make financial 
payments for restitution to their victims, for support of their own 
familes, and for support of themselves in the institution. (No specific 
program has been certified by the Bureau. Applicants may propose 
programs for approval in accordance with the provisions of Sec. 33.41.)
    (12)(i) Purpose: Providing for operational information systems and 
workload management systems which improve the effectiveness of criminal 
justice agencies. All operational information system programs must be 
based on a needs assessment and requirements analysis and must include 
the definition of goals and objectives. In addition, they must assure 
that if public domain software is not available, any improvements to 
proprietary software will be placed in the public domain.
    (ii) Certified program: Prosecution Management Support System 
(PMSS). This program is a specific application of the generic planning, 
implementation, and assessment requirements for effective system 
development and performance. PMSS uses automated data processing systems 
to support priority prosecution, improved conviction rates, speedy trial 
management, and improved efficiency/effectiveness of the prosecutor's 
office. Model programs result in information systems which support 
prosecution activities such as identification of violent and career 
criminals, case and subpoena preparation and witness notification. 
Systems

[[Page 534]]

are used to monitor management decisions and prosecutor actions and to 
reduce case processing time and case preparation time. Program 
objectives and elements are described in greater detail in the Program 
Brief on Prosecution Management Support System. This Program Brief has 
been designed to provide guidance for all criminal justice information 
systems. The critical elements for PMSS are transferable to and are 
equally critical for other criminal justice information systems.
    (A) Critical elements:
    (1) Pre-program needs assessment.
    (2) Implementation plan for fulfilling information needs and 
improving management and research capabilities.
    (3) Process for monitoring management decisions and prosecutor 
actions.
    (B) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Case processing time.
    (3) Conviction rates.
    (13) Purpose: Providing programs of the same types as programs 
described in section 501(a)(4) of the Act which:
    (i) The Director establishes under section 503(a) of the Justice 
Assistance Act as discretionary programs for financial assistance; or
    (ii) Are innovative and have been deemed by the Director as likely 
to prove successful.
    (14) Purpose: Implementing programs which address critical problems 
of crime, such as drug trafficking, which have been certified by the 
Director, after a process of consultation coordinated by the Assistant 
Attorney General, Office of Justice Programs, with the Director of the 
National Institute of Justice, Director of the Bureau of Justice 
Statistics, and Administrator of the Office of Juvenile Justice and 
Delinquency Prevention, as having proved successful.
    (15)(i) Purpose: Providing programs which address the problem of 
serious offenses committed by juveniles.
    (ii) Certified program: Restitution by juvenile offenders: This 
program promotes the use of restitution by juvenile offenders to make 
juveniles accountable to the victim and the community and to increase 
community confidence in the juvenile justice system. Juvenile 
restitution has been an effective alternative to incarceration in 
jurisdictions that have used it, reducing recidivism and providing 
benefits to victims. Assistance in the design and development of 
Juvenile Restitution Programs funded under this Program is available 
through the Restitution Education, Training and Technical Assistance 
(RESTTA) Program funded by the Office of Juvenile Justice and 
Delinquency Prevention. Program objectives and elements are described in 
greater detail in the Program Brief on Restitution by Juvenile 
Offenders.
    (A) Critical elements:
    (1) Legal authority to order restitution as a disposition for 
delinquent offenses.
    (2) Commitment of the court and juvenile justice personnel.
    (3) Pre-program planning to establish written policies and 
procedures, including:
    (i) The stage of the system at which restitution will be initiated;
    (ii) Specification of the target population; and
    (iii) Establishment of procedures for determining the appropriate 
restitution to be rendered by the juvenile offender, enforcing 
restitution orders.
    (4) Program management and administration should describe:
    (i) Agency roles and responsibilities; and
    (ii) Case management and tracking system for performance indicators.
    (5) Community involvement in the program.
    (B) Performance indicators:
    (1) Personnel:
    (i) Number employed full and part-time in restitution; and
    (ii) Average restitution caseload per restitution/probation officer.
    (2) Program participation:
    (i) Number of juveniles by offense type;
    (ii) Type and amount of restitution ordered; and
    (iii) Number of victims (by type and amount of loss/injury) 
receiving restitution.
    (3) Number/percent juveniles successfully completing their 
restitution orders.
    (4) Total amount of restitution collected/completed.

[[Page 535]]

    (5) Number obtaining restitution-related employment/job services.
    (6) Operational costs per case.
    (7) Number of participants rearrested during the program.
    (8) Number of participants incarcerated as a result of a rearrest or 
program failure.
    (9) Number retaining restitution-related employment following 
completion.
    (10) Victim satisfaction with the program.
    (16) Purpose: Addressing the problem of crime committed against the 
elderly. (No specific program has been certified by the Bureau. 
Applicants may propose programs for approval in accordance with the 
provisions of Sec. 33.41. Many of the programs identified under other 
purposes indirectly address the problem of crime against the elderly. 
Victim assistance programs and community crime prevention programs in 
particular often provide services that meet the special needs of the 
elderly.)
    (17) Purpose: Provide training, technical assistance, and programs 
to assist state and local law enforcement authorities in rural areas in 
combating crime, with particular emphasis on violent crime, juvenile 
delinquency, and crime prevention. (No specific program has been 
certified by the Bureau. Applicants may propose programs for approval in 
accordance with the provisions of Sec. 33.41. Many of the programs 
identified under other purposes are equally applicable to rural and 
urban areas.)
    (18)(i) Purpose: Improve the operational effectiveness of law 
enforcement by integrating and maximizing the effectiveness of police 
field operations and the use of crime analysis techniques.
    (ii) Certified program: Integrated Criminal Apprehension Program 
(ICAP). This program integrates and directs law enforcement activities 
relative to the prevention, detection and investigation of serious and 
violent crime. Components of model programs have included systematic 
data collection and analysis, crime analysis, structured planning and 
service delivery. The program emphasizes better use of existing 
resources and better management of the patrol operation and 
investigative process. It results in a process which increases arrests 
for serious crimes. Program objectives and elements are described in 
greater detail in the Program Brief on the Integrated Criminal 
Apprehension Program.
    (A) Critical elements:
    (1) Commitment of law enforcement agency top management to concept 
of manpower deployment based on crime analysis.
    (2) Modification of agency data gathering methods to enhance 
planning and crime analysis.
    (3) Establishment of crime analysis and planning function.
    (4) Implementation of strategies, tactics and processes based on 
analysis that contribute to better management of criminal investigation 
and patrol.
    (B) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of strategies implementations e.g., directed patrol, crime 
analysis.
    (3) Types of crimes targeted.
    (4) Clearance rates (by arrest) for targeted crimes.
    (5) Conviction rates for targeted crimes.

                        Application Requirements



Sec. 33.40  General.

    Sections 33.40 and 33.41 set forth the required programmatic content 
of block grant applications.

[50 FR 22990, May 30, 1985, as amended at 63 FR 50761, Sept. 23, 1998]



Sec. 33.41  Application content.

    (a) Format. Applications from the states for criminal justice block 
grants must be submitted on Standard Form 424, Application for Federal 
Assistance, at a time specified by the Bureau of Justice Assistance. The 
Bureau will provide to the states an ``Application Kit'' that includes 
SF 424, a list of assurances that the applicant must agree to, a table 
of fund allocations, and additional guidance on how to prepare and 
submit an application for criminal justice block grants.
    (b) Programs. Applications must set forth programs and projects 
covering a two-year period which meet the purposes and criteria of 
section 403(a) of

[[Page 536]]

the Justice Assistance Act and these regulations. Applications must be 
amended annually, if new programs or projects are to be added or if the 
programs or projects contained in the approved application are not 
implemented. The application must designate which statutory purpose the 
program or project is intended to achieve, identify the state agency or 
unit of local government that will implement the program or project, and 
provide the estimated funding level for the program or project including 
the amount and source of cash matching funds. Section 405 of the Act.
    (1) Section 33.32 of the regulations identifies specific programs 
which have been certified by the Bureau to meet the requirements of the 
Act. Approval will be given for implementation of any of these programs, 
if the applicant agrees to include all the critical elements in the 
program design. An applicant need only identify the program, which 
purpose it is intended to achieve, the state agency or unit of local 
government which will implement it, the funding level (including amount 
and source of match).
    (2) Applicants may request approval of programs other than one of 
those certified by the Bureau. The application must contain, in addition 
to the information in Sec. 33.41(b), a description of the program 
(including its critical elements and performance indicators) and 
evidence that it meets the criteria of offering a high probability of 
improving the functions of the criminal justice system. Evidence may 
include, but is not necessarily limited to, the results of any 
evaluations of previous tests or demonstrations of the program concept.
    (3) Applicants may also request approval to expend up to 10 per 
centum of their funds for programs which the Director of the Bureau of 
Justice Assistance has established as priorities for discretionary 
grants under section 503 of the Act, or which are innovative programs 
that are deemed by the Director as likely to prove successful. For a 
program the same as a discretionary program, the applicant may identify 
it by name only and provide the information required under Sec. 
33.41(b)(1) of the regulations. For an innovative program, the applicant 
must describe the program (including its critical elements and 
performance indicators) and provide evidence that it is likely to prove 
successful.
    (c) Confidential information. Applications which request funds for 
the STING Program should not state the location of the project. The 
application should only include the program designation, the funds 
involved, and the number of projects. The state agency or unit of local 
government implementing the project will be made known to the Bureau of 
Justice Assistance upon request or upon completion of the project.
    (d) Audit requirement. Applications from the state must include the 
date of the State Office's last audit and the anticipated date of the 
next audit.
    (e) Civil rights contact. Applications from the state must include 
the name of a civil rights contact person who has lead responsibility in 
insuring that all applicable civil rights requirements are met and who 
shall act as liaison in civil rights matters with the Office of Civil 
Rights Compliance of the Office of Justice Programs.
    (f) Application assurances. Applications must include the following 
assurances:
    (1) An assurance that, following the first fiscal year covered by an 
application and each fiscal year thereafter, the applicant will submit 
to the Bureau of Justice Assistance, where the applicant is a state or 
jurisdiction in a non-participating state, a performance report 
concerning the activities carried out, and an assessment of their 
impact; section 405(1) of the Act.
    (2) A certification that Federal funds made available under this 
title will not be used to supplant state or local funds, but will be 
used to increase the amounts of such funds that would, in the absence of 
Federal funds, be made available for criminal justice activities; 
section 405(2) of the Act.
    (3) An assurance that funds accounting, auditing, monitoring, and 
such evaluation procedures as may be necessary to keep such records as 
the Bureau of Justice Assistance shall prescribe will be provided to 
assure fiscal control, proper management, and efficient disbursement of 
funds received

[[Page 537]]

under this title; section 405(3) of the Act.
    (4) An assurance that the applicant shall maintain such data and 
information and submit such reports, in such form, at such times, and 
containing such information as the Bureau of Justice Assistance may 
require; section 405(4) of the Act.
    (5) A certification that the programs meet all the requirements, 
that all the information contained in the application is correct, that 
there has been appropriate coordination with affected agencies, and that 
the applicant will comply with all provisions of the Justice Assistance 
Act 1984 and all other applicable Federal laws; section 405(5) of the 
Act.
    (6) If the applicant is a state, an assurance that not more than 10 
percent of the aggregate amount of funds received by a State under this 
part for a fiscal year will be distributed for programs and projects 
designated as intended to achieve the purpose specified in section 
403(a)(13) of the Act; section 405(6) of the Act.
    (7) An assurance that the state will take into account the needs and 
requests of units of general local government in the state and encourage 
local initiative in the development of programs which meet the purposes 
of the Act; section 405(7) of the Act.
    (8) An assurance that the state application and any amendment to 
such application, has been submitted for review to the state legislature 
or its designated body (for purpose of this requirement, an application 
or amendment shall be deemed to be reviewed if the state legislature or 
its designated body does not review it within 60 days from the time it 
was submitted to it); section 405(8) of the Act.
    (9) An assurance that the state application and any amendment 
thereto was made public before submission to the Bureau and, to the 
extent provided under state law or established procedure, an opportunity 
to comment thereon was provided to citizens and to neighborhood and 
community groups; section 405(9) of the Act.
    (10) An assurance that the applicant will comply, and all its 
subgrantees and contractors will comply, with the non-discrimination 
requirements of the Justice Assistance Act; title VI of the Civil Rights 
Act of 1964; section 504 of the Rehabilitation Act of 1973, as amended; 
title IX of the Education Amendments of 1972; the Age Discrimination Act 
of 1975; and the Department of Justice Non-Discrimination regulations 28 
CFR part 42, subparts C, D, E, and G;
    (11) An assurance that in the event a Federal or state court or 
Federal or state administrative agency makes a finding of discrimination 
after a due process hearing on the grounds of race, color, religion, 
national orgin or sex against a recipient of funds, the recipient will 
forward a copy of the finding to the Office of Civil Rights Compliance 
(OCRC) of the Office of Justice Programs;
    (12) An assurance that the applicant will require that every 
recipient required to formulate an Equal Employment Opportunity Program 
(EEOP) in accordance with 28 CFR 42.301 et. seq., submit a certification 
to the state that it has a current EEOP on file which meets the 
requirements herein;
    (13) An assurance that the applicant will provide an EEOP, if 
required to maintain one, where the application is for $500,000 or more 
and provide the EEOP of any subgrantee of $500,000 or more;
    (14) An assurance that the applicant will comply with the provisions 
of the Office of Justice Programs ``Financial and Administrative Guide 
for Grants,'' M 7100.1;
    (15) An assurance that the applicant will comply with the provisions 
of 28 CFR applicable to grants and cooperative agreements including part 
18, Administrative Review Procedure; part 20, Criminal Justice 
Information Systems; part 22, Confidentiality of Identifiable Research 
and Statistical Information; part 23, Criminal Intelligence Systems 
Operating Policies; part 30, Intergovernmental Review of Department of 
Justice Programs and Activities; part 42; Non-discrimination Equal 
Employment Opportunity Policies and Procedures; part 61, Procedures for 
Implementing the National Environmental Policy Act; and part 63, 
Floodplain Management and Wetland Protection Procedures.

[[Page 538]]

    (g) Non-participating State. If a state notifies the Bureau of 
Justice Assistance of its intent not to apply for block grant funds or 
fails to submit an application by the submission date, the Bureau will 
announce the availability of the block grant funds to local units of 
government in the non-participating state and will invite them to submit 
applications directly to the Bureau. A unit of local government 
receiving a block grant award directly from the Bureau assumes 
responsibility for all activities which would normally be the 
responsibility of the State Office.

                         Additional Requirements



Sec. 33.50  General financial requirements.

    Grants funded under the criminal justice block grant program are 
governed by the provisions of the Office of Management and Budget (OMB) 
Circulars applicable to financial assistance. These Circulars along with 
additional information and guidance are contained in ``Financial and 
Administrative Guide for Grants,'' Guideline Manual 7100.1, available 
from the Office of Justice Programs. This Guideline Manual provides 
information on cost allowability, methods of payment, audit, accounting 
systems and financial records.



Sec. 33.51  Audit.

    Pursuant to Office of Management and Budget Circular A-128 ``Audits 
of State and Local Governments,'' all grantees and subgrantees must 
provide for an independent audit of their activities on a periodic 
basis. For additional information on audit requirements, applicants 
should refer to the ``Financial and Administrative Guide for Grants,'' 
Guideline Manual 7100.1, Office of Justice Programs.



Sec. 33.52  Civil rights.

    The Justice Assistance Act provides that ``no person in any state 
shall on the ground of race, color, religion, national origin, or sex be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under or denied employment in connection 
with any programs or activity funded in whole or in part with funds made 
available under this title.'' Section 809(c)(1) of the Act. Recipients 
of funds under the Act are also subject to the provisions of title VI of 
the Civil Rights Act of 1964; section 504 of the Rehabilitation Act of 
1973, as amended; title IX of the Education Amendments of 1972; the Age 
Discrimination Act of 1975; and the Department of Justice Non-
Discrimination regulations 28 CFR part 42, subparts C, D, E, and G.



Sec. 33.53  Participation by faith-based organizations.

    The funds provided under this part shall be administered in 
compliance with the standards set forth in part 38 (Equal Treatment for 
Faith-based Organizations) of this chapter.

[Order No. 2703-2004, 69 FR 2838, Jan. 21, 2004]

                  Submission and Review of Applications



Sec. 33.60  General.

    This subpart describes the process and criteria for Bureau of 
Justice Assistance review and approval of state applications and 
amendments.



Sec. 33.61  Review of State applications.

    (a) Review criteria. The Act provides the basis for review and 
approval or disapproval of state applications and amendments in whole or 
in part. These are:
    (1) Compliance with the statutory requirements of the Justice 
Assistance Act and the regulations of the Bureau of Justice Assistance. 
Section 406(a)(1) of the Act.
    (2) Compliance with Executive Order 12372, ``Intergovernmental 
Review of Federal Programs.'' This program is covered by Executive Order 
12372 and Department of Justice Implementing regulations 28 CFR part 30. 
States must submit block grant applications to the state ``Single Point 
of Contact'', if there is a ``Single Point of Contact'', and if this 
program has been selected for coverage by the state process, at the same 
time applications are submitted to the Bureau of Justice Assistance. 
State processes have 60 days starting from the application submission 
date to comment on applications. Applicants should contact their state 
``Single Point of Contact'' as soon as

[[Page 539]]

possible to alert them of the prospective application and receive 
instructions regarding the process.
    (b) Sixty day rule. The Bureau of Justice Assistance shall approve 
or disapprove applications or amendments within sixty (60) days of 
official receipt. The application or amendment shall be considered 
approved unless the Bureau of Justice Assistance informs the applicant 
in writing of specific reasons for disapproval prior to the expiration 
of the 60-day period. Applications that are incomplete, as determined by 
the Bureau of Justice Assistance, shall not be considered officially 
received for purposes of the 60-day rule. Section 406(a)(2) of the Act.
    (c) Written notification and reasons for disapproval. The Bureau of 
Justice Assistance shall notify the applicant in writing of the specific 
reasons for the disapproval of the application or amendment, in whole or 
in part. Section 406(a)(2) of the Act.
    (d) Affirmative finding. The Bureau of Justice Assistance, prior to 
approval of the application or amendments, must make an affirmative 
finding in writing that the program or project has been reviewed in 
accordance with section 405 of the Act and is likely to contribute 
effectively to the achievement of the objectives of the Act. Section 
406(a)(2) of the Act.

                                 Reports



Sec. 33.70  Annual performance report.

    (a) Section 405 of the Justice Assistance Act requires that the 
state, or a local unit of government in the case of a non-participating 
state, submit annually to the Bureau of Justice Assistance a performance 
report (including an assessment of impact) concerning the activities 
carried out under the grant. These performance reports will provide the 
basis for the annual report from the Bureau to the President and the 
Congress as required by section 810 of the Act.
    (b) The performance report will describe the activities undertaken 
and results achieved of each project funded. It will include the data 
gathered on the approved performance indicators. The report is due to 
the Bureau by no later than December 31 and must cover projects for the 
prior Federal fiscal year that have either been completed or been in 
operation for 12 months or more. The first performance report shall be 
due to the Bureau by December 31, 1986.
    (c) In order to help states and localities prepare these performance 
reports, the Bureau will provide data collection forms and instructions 
that will enable information to be gathered and reported in the most 
convenient manner possible. These forms and instructions will be 
developed in consultation with states and localities.



Sec. 33.71  Initial project report.

    States are required to provide to the Bureau of Justice Assistance 
within 30 days after the award of a subgrant, an initial project report 
which provides information on the subgrant recipient (name, address, 
contact person), the subgrant period, the type of award (new or 
renewal), the subgrant funding level, and the general target area 
(geographic area, population group) to be impacted. The Bureau of 
Justice Assistance will provide a form to assist the states in reporting 
this information.

                          Suspension of Funding



Sec. 33.80  Suspension of funding.

    The Bureau of Justice Assistance shall, after reasonable notice and 
opportunity for a hearing on the record, terminate or suspend funding 
for a state that implements programs or projects which fail to conform 
to the requirements or statutory objectives of the Act, or that fails to 
comply substantially with the Justice Assistance Act, these regulations 
or the terms and conditions of its grant award. Hearing and appeal 
procedures are set forth in Department of Justice regulations 28 CFR 
part 18.



 Subpart B_Bulletproof Vest Partnership Grant Program Applying for the 
                                 Program

    Source: 63 FR 50761, Sept. 23, 1998, unless otherwise noted.

[[Page 540]]



Sec. 33.100  Definitions.

    The Bureau of Justice Assistance (BJA) will use the following 
definitions in providing guidance to your jurisdiction regarding the 
purchase of armor vests under the Bulletproof Vest Partnership Grant Act 
of 1998--
    (a) The term program will refer to the activities administered by 
BJA to implement the Bulletproof Vest Partnership Grant Act of 1998;
    (b) The terms you and your will refer to a jurisdiction applying to 
this program;
    (c) The term armor vest under this program will mean a vest that has 
met the performance standards established by the National Law 
Enforcement and Corrections Technology Center of the National Institute 
of Justice (NIJ) as published in NIJ Standard 0101.03, or any formal 
revision of this standard;
    (d) The term State will be used to mean each of the 50 States, as 
well as the District of Columbia, the Commonwealth of Puerto Rico, the 
United States Virgin Islands, American Samoa, Guam, and the Northern 
Mariana Islands;
    (e) The term unit of local government will mean a county, 
municipality, town, township, village, parish, borough, or other unit of 
general government below the State level;
    (f) The term Indian tribe has the same meaning as in section 4(e) of 
the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450b(e)) which defines Indian tribe as meaning any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
Native village or regional or village corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688) (43 U.S.C. 1601 et seq.);
    (g) The term law enforcement officer will mean any officer, agent, 
or employee of a State, unit of local government, or Indian tribe 
authorized by law or by a government agency to engage in or supervise 
the prevention, detection, or investigation of any violation of criminal 
law, or authorized by law to supervise sentenced criminal offenders; and
    (h) The term mandatory wear policy will mean a policy formally 
adopted by a jurisdiction that requires a law enforcement officer to 
wear an armor vest throughout each duty shift whenever feasible.



Sec. 33.101  Standards and requirements.

    This program has been developed to assist your jurisdiction with 
selecting and obtaining high quality armor vests in the quickest and 
easiest manner available. The program will assist your jurisdiction in 
determining which type of armor vest will best suit your jurisdiction's 
needs, and will ensure that each armor vest obtained through this 
program meets the NIJ standard.
    (a) Your jurisdiction will be provided with model numbers for armor 
vests that meet the NIJ Standard in order to ensure your jurisdiction 
receives the approved vests in the quickest manner;
    (b) If you are a State or unit of local government, your 
jurisdiction will be required to partner with the Federal government in 
this program by paying at least 50 percent of the total cost for each 
armor vest purchased under this program. These matching funds may not be 
obtained from another Federal source;
    (c) If you are an Indian tribe, your jurisdiction will be required 
to partner with the Federal government in this program by paying at 
least 50 percent of the total cost for each armor vest purchased under 
this program. Total cost will include the cost of the armor vests, 
taxes, shipping, and handling. You may use any funds appropriated by 
Congress toward the performing of law enforcement functions on your 
lands as matching funds for this program or any funds appropriated by 
Congress for the activities of any agency of your tribal government;
    (d) BJA will conduct outreach to ensure that at least half of all 
funds available for armor vest purchases be given to units of local 
government with fewer than 100,000 residents;
    (e) Each State government is responsible for coordinating the needs 
of law enforcement officers across agencies within its own jurisdiction 
and making one application per fiscal year;
    (f) Each unit of local government and Indian tribe is responsible 
for coordinating the needs of law enforcement officers across agencies 
within its own

[[Page 541]]

jurisdiction and making one application per fiscal year;
    (g) Your individual jurisdiction may not receive more than 5 percent 
of the total program funds in any fiscal year;
    (h) The 50 States, the District of Columbia, and the Commonwealth of 
Puerto Rico, together with their units of local government, each may not 
receive less than one half percent and not more than 20 percent of the 
total program funds during a fiscal year;
    (i) The United States Virgin Islands, American Samoa, Guam, and the 
Northern Mariana Islands, together with their units of local government, 
each may not receive less than one fourth percent and not more than 20 
percent of the total program funds during a fiscal year; and
    (j) If your jurisdiction also is applying for a Local Law 
Enforcement Block Grant (LLEBG), then you will be asked to certify:
    (1) Whether LLEBG funds will be used to purchase vests; and, if not,
    (2) Whether your jurisdiction considered using LLEBG funds to 
purchase vests, but has concluded it will not use its LLEBG funds in 
that manner.



Sec. 33.102  Preferences.

    BJA may give preferential consideration, at its discretion, to an 
application from a jurisdiction that--
    (a) Has the greatest need for armor vests based on the percentage of 
law enforcement officers who do not have access to an armor vest;
    (b) Has, or will institute, a mandatory wear policy that requires 
on-duty law enforcement officers to wear armor vests whenever feasible; 
and
    (c) Has a violent crime rate at or above the national average as 
determined by the Federal Bureau of Investigation; or
    (d) Has not received a Local Law Enforcement Block Grant.



Sec. 33.103  How to apply.

    BJA will issue Guidelines regarding the process to follow in 
applying to the program for grants of armor vests.



PART 34_OJJDP COMPETITION AND PEER REVIEW PROCEDURES--Table of Contents




                          Subpart A_Competition

Sec.
34.1 Purpose and applicability.
34.2 Exceptions to applicability.
34.3 Selection criteria.
34.4 Additional competitive application requirements and procedures.

                          Subpart B_Peer Review

34.100 Purpose and applicability.
34.101 Exceptions to applicability.
34.102 Peer review procedures.
34.103 Definition.
34.104 Use of peer review.
34.105 Peer review methods.
34.106 Number of peer reviewers.
34.107 Use of Department of Justice staff.
34.108 Selection of reviewers.
34.109 Qualifications of peer reviewers.
34.110 Management of peer reviews.
34.111 Compensation.

Subpart C--Emergency Expedited Review [Reserved]

    Authority: Juvenile Justice and Delinquency Prevention Act of 1974, 
as amended, (42 U.S.C. 5601 et seq.).

    Source: 55 FR 39234, Sept. 25, 1990, unless otherwise noted.



                          Subpart A_Competition



Sec. 34.1  Purpose and applicability.

    (a) This subpart of the regulation implements section 262(d)(1) (A) 
and (B) of the Juvenile Justice and Delinquency Prevention Act of 1974, 
as amended (42 U.S.C. 5601 et seq.). This provision requires that 
project applications, selected for categorical assistance awards under 
part C--National Programs shall be selected through a competitive 
process established by rule by the Administrator, OJJDP. The statute 
specifies that this process must include announcement in the Federal 
Register of the availability of funds for assistance programs, the 
general criteria applicable to the selection of applications for 
assistance, and a description of the procedures applicable to the 
submission and review of assistance applications.

[[Page 542]]

    (b) This subpart of the regulation applies to all grant, cooperative 
agreement, and other assistance awards selected by the Administrator, 
OJJDP, or the Administrator's designee, under part C--National Programs, 
of the Juvenile Justice and Delinquency Prevention Act of 1974, as 
amended, except as provided in the exceptions to applicability set forth 
below.



Sec. 34.2  Exceptions to applicability.

    The following are assistance and procurement contract award 
situations that OJJDP considers to be outside the scope of the section 
262(d)(1) competition requirement:
    (a) Assistance awards to initially fund or continue projects if the 
Administrator has made a written determination that the proposed program 
is not within the scope of any program announcement expected to be 
issued, is otherwise eligible for an award, and the proposed project is 
of such outstanding merit, as determined through peer review under 
subpart B of this part, that an assistance award without competition is 
justified (section 262(d)(1)(B)(i));
    (b) Assistance awards to initially fund or continue training 
services to be funded under part C, section 244, if the Administrator 
has made a written determination that the applicant is uniquely 
qualified to provide proposed training services and other qualified 
sources are not capable of providing such services (section 
262(d)(1)(B)(ii));
    (c) Assistance awards of funds transferred to OJJDP by another 
Federal agency to augment authorized juvenile justice programs, 
projects, or purposes;
    (d) Funds transferred to other Federal agencies by OJJDP for program 
purposes as authorized by law;
    (e) Procurement contract awards which are subject to applicable 
Federal laws and regulations governing the procurement of goods and 
services for the benefit and use of the government;
    (f) Assistance awards from the 5% ``set aside'' of Special Emphasis 
funds under section 261(e); and
    (g) Assistance awards under section 241(f).



Sec. 34.3  Selection criteria.

    (a) All individual project applications will, at a minimum, be 
subject to review based on the extent to which they meet the following 
general selection criteria:
    (1) The problem to be addressed by the project is clearly stated;
    (2) The objectives of the proposed project are clearly defined;
    (3) The project design is sound and contains program elements 
directly linked to the achievement of project objectives;
    (4) The project management structure is adequate to the successful 
conduct of the project;
    (5) Organizational capability is demonstrated at a level sufficient 
to successfully support the project; and
    (6) Budgeted costs are reasonable, allowable and cost effective for 
the activities proposed to be undertaken.
    (b) The general selection criteria set forth under paragraph (a) of 
this section, may be supplemented for each announced competitive program 
by program-specific selection criteria for the particular part C 
program. Such announcements may also modify the general selection 
criteria to provide greater specificity or otherwise improve their 
applicability to a given program. The relative weight (point value) for 
each selection criterion will be specified in the program announcement.



Sec. 34.4  Additional competitive application requirements and procedures.

    (a) Applications for grants. Any applicant eligible for assistance 
may submit on or before such submission deadline date or dates as the 
Administrator may establish in program announcements, an application 
containing such pertinent information and in accordance with the forms 
and instructions as prescribed therein and any additional forms and 
instructions as may be specified by the Administrator. Such application 
shall be executed by the applicant or an official or representative of 
the applicant duly authorized to make such application and to assume on 
behalf of the applicant the obligations imposed by law, applicable 
regulations, and any additional terms and conditions of the assistance 
award. The Administrator may require any applicant eligible for 
assistance under this subpart to submit a preliminary proposal

[[Page 543]]

for review and approval prior to the acceptance of an application.
    (b) Cooperative arrangements. (1) When specified in program 
announcements, eligible parties may enter into cooperative arrangements 
with other eligible parties, including those in another State, and 
submit joint applications for assistance.
    (2) A joint application made by two or more applicants for 
assistance may have separate budgets corresponding to the programs, 
services and activities performed by each of the joint applicants or may 
have a combined budget. If joint applications present separate budgets, 
the Administrator may make separate awards, or may award a single 
assistance award authorizing separate amounts for each of the joint 
applicants.
    (c) Evaluation of applications submitted under part C of the Act. 
All applications filed in accordance with Sec. 34.1 of this subpart for 
assistance with part C--National Programs funds shall be evaluated by 
the Administrator through OJJDP and other DOJ personnel (internal 
review) and by such experts or consultants required for this purpose 
that the Administrator determines are specially qualified in the 
particular part C program area covered by the announced program (peer 
review). Supplementary application review procedures, in addition to 
internal review and peer review, may be used for each competitive part C 
program announcement. The program announcement shall clearly state the 
application review procedures (peer review and other) to be used for 
each competitive part C program announcement.
    (d) Applicant's performance on prior award. When the applicant has 
previously received an award from OJJDP or another Federal agency, the 
applicant's noncompliance with requirements applicable to such prior 
award as reflected in past written evaluation reports and memoranda on 
performance, and the completeness of required submissions, may be 
considered by the Administrator. In any case where the Administrator 
proposes to deny assistance based upon the applicant's noncompliance 
with requirements applicable to a prior award, the Administrator shall 
do so only after affording the applicant reasonable notice and an 
opportunity to rebut the proposed basis for denial of assistance.
    (e) Applicant's fiscal integrity. Applicants must meet OJP standard 
of fiscal integrity (see OJP M 7100.1C, par. 24 and OJP HB 4500.2B, par. 
48 a and b).
    (f) Disposition of applications. On the basis of competition and 
applicable review procedures completed pursuant to this regulation, the 
Administrator will either:
    (1) Approve the application for funding, in whole or in part, for 
such amount of funds, and subject to such conditions as the 
Administrator deems necessary or desirable for the completion of the 
approved project;
    (2) Determine that the application is of acceptable quality for 
funding, in that it meets minimum criteria, but that the application 
must be disapproved for funding because it did not rank sufficiently 
high in relation to other applications approved for funding to qualify 
for an award based on the level of funding allocated to the program; or
    (3) Reject the application for failure to meet the applicable 
selection criteria at a sufficiently high level to justify an award of 
funds, or for other reason which the Administrator deems compelling, as 
provided in the documentation of the funding decision.
    (g) Notification of disposition. The Administrator will notify the 
applicant in writing of the disposition of the application. A signed 
Grant/Cooperative Agreement form will be issued to notify the applicant 
of an approved project application.
    (h) Effective date of approved grant. Federal financial assistance 
is normally available only with respect to obligations incurred 
subsequent to the effective date of an approved assistance project. The 
effective date of the project will be set forth in the Grant/Cooperative 
Agreement form. Recipients may be reimbursed for costs resulting from 
obligations incurred before the effective date of the assistance award, 
if such costs are authorized by the Administrator in the notification of 
assistance award or subsequently in writing, and otherwise would be 
allowable as costs of the assistance award

[[Page 544]]

under applicable guidelines, regulations, and award terms and 
conditions.



                          Subpart B_Peer Review



Sec. 34.100  Purpose and applicability.

    (a) This subpart of the regulation implements section 262(d)(2) of 
the Juvenile Justice and Delinquency Prevention Act of 1974, as amended. 
This provision requires that projects funded as new or continuation 
programs selected for categorical assistance awards under part C--
National Programs shall be reviewed before selection and thereafter as 
appropriate through a formal peer review process. Such process must 
utilize experts (other than officials and employees of the Department of 
Justice) in fields related to the technical and/or subject matter of the 
proposed program.
    (b) This subpart of the regulation applies to all applications for 
grants, cooperative agreements, and other assistance awards selected by 
the Administrator, OJJDP, for funding under part C--National Programs 
that are being considered for competitive and noncompetitive (including 
continuation) awards to begin new project periods, except as provided in 
the exceptions to applicability set forth below.



Sec. 34.101  Exceptions to applicability.

    The assistance and procurement contract situations specified in 
Sec. 34.2 (c), (d), (e), (f), and (g) of subpart A of this part are 
considered by OJJDP to be outside the scope of the section 262(d) peer 
review requirement as set forth in this subpart.



Sec. 34.102  Peer review procedures.

    The OJJDP peer review process is contained in an OJJDP ``Peer Review 
Guideline,'' developed in consultation with the Directors and other 
appropriate officials of the National Science Foundation and the 
National Institute of Mental Health. In addition to specifying 
substantive and procedural matters related to the peer review process, 
the ``Guideline'' addresses such issues as standards of conduct, 
conflict of interest, compensation of peer reviewers, etc. The 
``Guideline'' describes a process that evolves in accordance with 
experience and opportunities to effect improvements. The peer review 
process for all part C--National Programs assistance awards subject to 
this regulation will be conducted in a manner consistent with this 
subpart as implemented in the ``Peer Review Guideline''.



Sec. 34.103  Definition.

    Peer review means the technical and programmatic evaluation by a 
group of experts (other than officers and employees of the Department of 
Justice) qualified by training and experience to give expert advice, 
based on selection criteria established under subpart A of this part, in 
a program announcement, or as established by the Administrator, on the 
technical and programmatic merit of assistance.



Sec. 34.104  Use of peer review.

    (a) Peer review for competitive and noncompetitive applications. (1) 
For competitive applications, each program announcement will indicate 
the program specific peer review procedures and selection criteria to be 
followed in peer review for that program. In the case of competitive 
programs for which a large number of applications is expected, 
preapplications (concept papers) may be required. Preapplications will 
be reviewed by qualified OJJDP staff to eliminate those pre-applications 
which fail to meet minimum program requirements, as specified in a 
program announcement, or clearly lack sufficient merit to qualify as 
potential candidates for funding consideration. The Administrator may 
subject both pre-applications and formal applications to the peer review 
process.
    (2) For noncompetitive applications, the general selection criteria 
set forth under subpart A of this part may be supplemented by program 
specific selection criteria for the particular part C program. 
Applicants for noncompetitive continuation awards will be fully informed 
of any additional specific criteria in writing.
    (b) When formal applications are required in response to a program 
announcement, an initial review will be conducted by qualified OJJDP 
staff, in order to eliminate from peer review consideration applications 
which do

[[Page 545]]

not meet minimum program requirements. Such requirements will be 
specified in the program announcement. Applications determined to be 
qualified and eligible for further consideration will then be considered 
under the peer review process.
    (c) Ratings will be in the form of numerical scores assigned by 
individual peer reviewers as illustrated in the OJJDP ``Peer Review 
Guideline.'' The results of peer review under a competitive program will 
be a relative aggregate ranking of applications in the form of ``Summary 
Ratings.'' The results of peer review for a noncompetitive new or 
continuation project will be in the form of numerical scores based on 
criteria established by the Administrator.
    (d) Peer review recommendations, in conjunction with the results of 
internal review and any necessary supplementary review, will assist the 
Administrator's consideration of competitive, noncompetitive, 
applications and selection of applications for funding.
    (e) Peer review recommendations are advisory only and are binding on 
the Administrator only as provided by section 262(d)(B)(i) for 
noncompetitive assistance awards to programs determined through peer 
review not to be of such outstanding merit that an award without 
competition is justified. In such case, the determination of whether to 
issue a competitive program announcement will be subject to the exercise 
of the Administrator's discretion.



Sec. 34.105  Peer review methods.

    (a) For both competitive and noncompetitive applications, peer 
review will normally consist of written comments provided in response to 
the general selection criteria established under subpart A of this part 
and any program specific selection criteria identified in the program 
announcement or otherwise established by the Administrator, together 
with the assignment of numerical values. Peer review may be conducted at 
meetings with peer reviewers held under OJJDP oversight, through mail 
reviews, or a combination of both. When advisable, site visits may also 
be employed. The method of peer review anticipated for each announced 
competitive program, including the evaluation criteria to be used by 
peer reviewers, will be specified in each program announcement.
    (b) When peer review is conducted through meetings, peer review 
panelists will be gathered together for instruction by OJJDP, including 
review of the OJJDP ``Peer Review Guideline''. OJJDP will oversee the 
conduct of individual and group review sessions, as appropriate. When 
time or other factors preclude the convening of a peer review panel, 
mail reviews will be used. For competitive programs, mail reviews will 
be used only where the Administrator makes a written determination of 
necessity.



Sec. 34.106  Number of peer reviewers.

    The number of peer reviewers will vary by program (as affected by 
the volume of applications anticipated or received). OJJDP will select a 
minimum of three peer reviewers (qualified individuals who are not 
officers or employees of the Department of Justice) for each program or 
project review in order to ensure a diversity of backgrounds and 
perspectives. In no case will fewer than three reviews be made of each 
individual application.



Sec. 34.107  Use of Department of Justice staff.

    OJJDP will use qualified OJJDP and other DOJ staff as internal 
reviewers. Internal reviewers determine applicant compliance with basic 
program and statutory requirements, review the results of peer review, 
and provide overall program evaluation and recommendations to the 
Administrator.



Sec. 34.108  Selection of reviewers.

    The Program Manager, through the Director of the OJJDP program 
division with responsibility for a particular program or project will 
propose a selection of peer reviewers from an extensive and varied pool 
of juvenile justice and delinquency prevention experts for approval by 
the Administrator. The selection process for peer reviewers is detailed 
in the OJJDP ``Peer Review Guideline''.

[[Page 546]]



Sec. 34.109  Qualifications of peer reviewers.

    The general reviewer qualification criteria to be used in the 
selection of peer reviewers are:
    (a) Generalized knowledge of juvenile justice or related fields; and
    (b) Specialized knowledge in areas or disciplines addressed by the 
applications to be reviewed under a particular program.
    (c) Must not have a conflict of interest (see OJP M7100.1C, par. 
94).

Additional details concerning peer reviewer qualifications are provided 
in the OJJDP ``Peer Review Guideline''.



Sec. 34.110  Management of peer reviews.

    A technical support contractor may assist in managing the peer 
review process.



Sec. 34.111  Compensation.

    All peer reviewers will be eligible to be paid according to 
applicable regulations and policies concerning consulting fees and 
reimbursement for expenses. Detailed information is provided in the 
OJJDP ``Peer Review Guideline''.

Subpart C--Emergency Expedited Review [Reserved]



PART 35_NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE
AND LOCAL GOVERNMENT SERVICES--Table of Contents




                            Subpart A_General

Sec.
35.101 Purpose.
35.102 Application.
35.103 Relationship to other laws.
35.104 Definitions.
35.105 Self-evaluation.
35.106 Notice.
35.107 Designation of responsible employee and adoption of grievance 
          procedures.
35.108-35.129 [Reserved]

                     Subpart B_General Requirements

35.130 General prohibitions against discrimination.
35.131 Illegal use of drugs.
35.132 Smoking.
35.133 Maintenance of accessible features.
35.134 Retaliation or coercion.
35.135 Personal devices and services.
35.136-35.139 [Reserved]

                          Subpart C_Employment

35.140 Employment discrimination prohibited.
35.141-35.148 [Reserved]

                     Subpart D_Program Accessibility

35.149 Discrimination prohibited.
35.150 Existing facilities.
35.151 New construction and alterations.
35.152-35.159 [Reserved]

                        Subpart E_Communications

35.160 General.
35.161 Telecommunication devices for the deaf (TDD's).
35.162 Telephone emergency services.
35.163 Information and signage.
35.164 Duties.
35.165-35.169 [Reserved]

                     Subpart F_Compliance Procedures

35.170 Complaints.
35.171 Acceptance of complaints.
35.172 Resolution of complaints.
35.173 Voluntary compliance agreements.
35.174 Referral.
35.175 Attorney's fees.
35.176 Alternative means of dispute resolution.
35.177 Effect of unavailability of technical assistance.
35.178 State immunity.
35.179-35.189 [Reserved]

                      Subpart G_Designated Agencies

35.190 Designated agencies.
35.191-35.999 [Reserved]

Appendix A to Part 35--Preamble to Regulation on Nondiscrimination on 
          the Basis of Disability in State and Local Government Services 
          (Published July 26, 1991)

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L. 101-
336 (42 U.S.C. 12134).

    Source: Order No. 1512-91, 56 FR 35716, July 26, 1991, unless 
otherwise noted.



                            Subpart A_General



Sec. 35.101  Purpose.

    The purpose of this part is to effectuate subtitle A of title II of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12131), which 
prohibits discrimination on the basis of disability by public entities.

[[Page 547]]



Sec. 35.102  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all services, programs, and activities provided or made 
available by public entities.
    (b) To the extent that public transportation services, programs, and 
activities of public entities are covered by subtitle B of title II of 
the ADA (42 U.S.C. 12141), they are not subject to the requirements of 
this part.



Sec. 35.103  Relationship to other laws.

    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Other laws. This part does not invalidate or limit the remedies, 
rights, and procedures of any other Federal laws, or State or local laws 
(including State common law) that provide greater or equal protection 
for the rights of individuals with disabilities or individuals 
associated with them.



Sec. 35.104  Definitions.

    For purposes of this part, the term--
    Act means the Americans with Disabilities Act (Pub. L. 101-336, 104 
Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids and services includes--
    (1) Qualified interpreters, notetakers, transcription services, 
written materials, telephone handset amplifiers, assistive listening 
devices, assistive listening systems, telephones compatible with hearing 
aids, closed caption decoders, open and closed captioning, 
telecommunications devices for deaf persons (TDD's), videotext displays, 
or other effective methods of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the public entity's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of this part. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Designated agency means the Federal agency designated under subpart 
G of this part to oversee compliance activities under this part for 
particular components of State and local governments.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1)(i) The phrase physical or mental impairment means--
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, hemic and lymphatic, skin, and endocrine;
    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.
    (ii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech and hearing impairments,

[[Page 548]]

cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (whether symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism.
    (iii) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a public entity as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a public entity as having such an 
impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal property, including 
the site where the building, property, structure, or equipment is 
located.
    Historic preservation programs means programs conducted by a public 
entity that have preservation of historic properties as a primary 
purpose.
    Historic Properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under State or local law.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term illegal use of drugs does not 
include the use of a drug taken under supervision by a licensed health 
care professional, or other uses authorized by the Controlled Substances 
Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term individual with a disability does not include an individual who 
is currently engaging in the illegal use of drugs, when the public 
entity acts on the basis of such use.
    Public entity means--
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act).
    Qualified individual with a disability means an individual with a 
disability who, with or without reasonable modifications to rules, 
policies, or practices, the removal of architectural, communication, or 
transportation barriers, or the provision of auxiliary aids and 
services, meets the essential eligibility requirements for the receipt 
of services or the participation in programs or activities provided by a 
public entity.
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary.

[[Page 549]]

    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin 
Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.



Sec. 35.105  Self-evaluation.

    (a) A public entity shall, within one year of the effective date of 
this part, evaluate its current services, policies, and practices, and 
the effects thereof, that do not or may not meet the requirements of 
this part and, to the extent modification of any such services, 
policies, and practices is required, the public entity shall proceed to 
make the necessary modifications.
    (b) A public entity shall provide an opportunity to interested 
persons, including individuals with disabilities or organizations 
representing individuals with disabilities, to participate in the self-
evaluation process by submitting comments.
    (c) A public entity that employs 50 or more persons shall, for at 
least three years following completion of the self-evaluation, maintain 
on file and make available for public inspection:
    (1) A list of the interested persons consulted;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.
    (d) If a public entity has already complied with the self-evaluation 
requirement of a regulation implementing section 504 of the 
Rehabilitation Act of 1973, then the requirements of this section shall 
apply only to those policies and practices that were not included in the 
previous self-evaluation.

(Approved by the Office of Management and Budget under control number 
1190-0006)

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.106  Notice.

    A public entity shall make available to applicants, participants, 
beneficiaries, and other interested persons information regarding the 
provisions of this part and its applicability to the services, programs, 
or activities of the public entity, and make such information available 
to them in such manner as the head of the entity finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and this part.



Sec. 35.107  Designation of responsible employee and adoption of
grievance procedures.

    (a) Designation of responsible employee. A public entity that 
employs 50 or more persons shall designate at least one employee to 
coordinate its efforts to comply with and carry out its responsibilities 
under this part, including any investigation of any complaint 
communicated to it alleging its noncompliance with this part or alleging 
any actions that would be prohibited by this part. The public entity 
shall make available to all interested individuals the name, office 
address, and telephone number of the employee or employees designated 
pursuant to this paragraph.
    (b) Complaint procedure. A public entity that employs 50 or more 
persons shall adopt and publish grievance procedures providing for 
prompt and equitable resolution of complaints alleging any action that 
would be prohibited by this part.



Sec. Sec. 35.108-35.129  [Reserved]



                     Subpart B_General Requirements



Sec. 35.130  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the benefits 
of the services, programs, or activities of a public entity, or be 
subjected to discrimination by any public entity.
    (b)(1) A public entity, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;

[[Page 550]]

    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aids, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aids, benefits, 
or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program;
    (vi) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vii) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity enjoyed 
by others receiving the aid, benefit, or service.
    (2) A public entity may not deny a qualified individual with a 
disability the opportunity to participate in services, programs, or 
activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) A public entity may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the public entity's 
program with respect to individuals with disabilities; or
    (iii) That perpetuate the discrimination of another public entity if 
both public entities are subject to common administrative control or are 
agencies of the same State.
    (4) A public entity may not, in determining the site or location of 
a facility, make selections--
    (i) That have the effect of excluding individuals with disabilities 
from, denying them the benefits of, or otherwise subjecting them to 
discrimination; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the service, program, 
or activity with respect to individuals with disabilities.
    (5) A public entity, in the selection of procurement contractors, 
may not use criteria that subject qualified individuals with 
disabilities to discrimination on the basis of disability.
    (6) A public entity may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
public entity establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities that are licensed or certified by a public 
entity are not, themselves, covered by this part.
    (7) A public entity shall make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless the public entity can 
demonstrate that making the modifications would fundamentally alter the 
nature of the service, program, or activity.
    (8) A public entity shall not impose or apply eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered.
    (c) Nothing in this part prohibits a public entity from providing 
benefits,

[[Page 551]]

services, or advantages to individuals with disabilities, or to a 
particular class of individuals with disabilities beyond those required 
by this part.
    (d) A public entity shall administer services, programs, and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    (e)(1) Nothing in this part shall be construed to require an 
individual with a disability to accept an accommodation, aid, service, 
opportunity, or benefit provided under the ADA or this part which such 
individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.
    (f) A public entity may not place a surcharge on a particular 
individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    (g) A public entity shall not exclude or otherwise deny equal 
services, programs, or activities to an individual or entity because of 
the known disability of an individual with whom the individual or entity 
is known to have a relationship or association.



Sec. 35.131  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A public entity shall not discriminate on the basis of illegal 
use of drugs against an individual who is not engaging in current 
illegal use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) A public entity 
shall not deny health services, or services provided in connection with 
drug rehabilitation, to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled to 
such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit a public entity 
from adopting or administering reasonable policies or procedures, 
including but not limited to drug testing, designed to ensure that an 
individual who formerly engaged in the illegal use of drugs is not now 
engaging in current illegal use of drugs.
    (2) Nothing in paragraph (c) of this section shall be construed to 
encourage, prohibit, restrict, or authorize the conduct of testing for 
the illegal use of drugs.



Sec. 35.132  Smoking.

    This part does not preclude the prohibition of, or the imposition of 
restrictions on, smoking in transportation covered by this part.



Sec. 35.133  Maintenance of accessible features.

    (a) A public entity shall maintain in operable working condition 
those features of facilities and equipment that are required to be 
readily accessible to and usable by persons with disabilities by the Act 
or this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.134  Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under the Act or this part.

[[Page 552]]

    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.



Sec. 35.135  Personal devices and services.

    This part does not require a public entity to provide to individuals 
with disabilities personal devices, such as wheelchairs; individually 
prescribed devices, such as prescription eyeglasses or hearing aids; 
readers for personal use or study; or services of a personal nature 
including assistance in eating, toileting, or dressing.



Sec. Sec. 35.136-35.139  [Reserved]



                          Subpart C_Employment



Sec. 35.140  Employment discrimination prohibited.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
service, program, or activity conducted by a public entity.
    (b)(1) For purposes of this part, the requirements of title I of the 
Act, as established by the regulations of the Equal Employment 
Opportunity Commission in 29 CFR part 1630, apply to employment in any 
service, program, or activity conducted by a public entity if that 
public entity is also subject to the jurisdiction of title I.
    (2) For the purposes of this part, the requirements of section 504 
of the Rehabilitation Act of 1973, as established by the regulations of 
the Department of Justice in 28 CFR part 41, as those requirements 
pertain to employment, apply to employment in any service, program, or 
activity conducted by a public entity if that public entity is not also 
subject to the jurisdiction of title I.



Sec. Sec. 35.141-35.148  [Reserved]



                     Subpart D_Program Accessibility



Sec. 35.149  Discrimination prohibited.

    Except as otherwise provided in Sec. 35.150, no qualified 
individual with a disability shall, because a public entity's facilities 
are inaccessible to or unusable by individuals with disabilities, be 
excluded from participation in, or be denied the benefits of the 
services, programs, or activities of a public entity, or be subjected to 
discrimination by any public entity.



Sec. 35.150  Existing facilities.

    (a) General. A public entity shall operate each service, program, or 
activity so that the service, program, or activity, when viewed in its 
entirety, is readily accessible to and usable by individuals with 
disabilities. This paragraph does not--
    (1) Necessarily require a public entity to make each of its existing 
facilities accessible to and usable by individuals with disabilities;
    (2) Require a public entity to take any action that would threaten 
or destroy the historic significance of an historic property; or
    (3) Require a public entity to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity or in undue financial and administrative 
burdens. In those circumstances where personnel of the public entity 
believe that the proposed action would fundamentally alter the service, 
program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with Sec. 35.150(a) of this part would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the head of a public entity or his 
or her designee after considering all resources available for use in the 
funding and operation of the service, program, or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, a public entity shall take any other action that would

[[Page 553]]

not result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the benefits or 
services provided by the public entity.
    (b) Methods--(1) General. A public entity may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock or other 
conveyances, or any other methods that result in making its services, 
programs, or activities readily accessible to and usable by individuals 
with disabilities. A public entity is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. A public entity, in making 
alterations to existing buildings, shall meet the accessibility 
requirements of Sec. 35.151. In choosing among available methods for 
meeting the requirements of this section, a public entity shall give 
priority to those methods that offer services, programs, and activities 
to qualified individuals with disabilities in the most integrated 
setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 35.150(a) in historic preservation programs, a public entity shall 
give priority to methods that provide physical access to individuals 
with disabilities. In cases where a physical alteration to an historic 
property is not required because of paragraph (a)(2) or (a)(3) of this 
section, alternative methods of achieving program accessibility 
include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. Where structural changes in 
facilities are undertaken to comply with the obligations established 
under this section, such changes shall be made within three years of 
January 26, 1992, but in any event as expeditiously as possible.
    (d) Transition plan. (1) In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, a public 
entity that employs 50 or more persons shall develop, within six months 
of January 26, 1992, a transition plan setting forth the steps necessary 
to complete such changes. A public entity shall provide an opportunity 
to interested persons, including individuals with disabilities or 
organizations representing individuals with disabilities, to participate 
in the development of the transition plan by submitting comments. A copy 
of the transition plan shall be made available for public inspection.
    (2) If a public entity has responsibility or authority over streets, 
roads, or walkways, its transition plan shall include a schedule for 
providing curb ramps or other sloped areas where pedestrian walks cross 
curbs, giving priority to walkways serving entities covered by the Act, 
including State and local government offices and facilities, 
transportation, places of public accommodation, and employers, followed 
by walkways serving other areas.
    (3) The plan shall, at a minimum--
    (i) Identify physical obstacles in the public entity's facilities 
that limit the accessibility of its programs or activities to 
individuals with disabilities;
    (ii) Describe in detail the methods that will be used to make the 
facilities accessible;
    (iii) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (iv) Indicate the official responsible for implementation of the 
plan.
    (4) If a public entity has already complied with the transition plan 
requirement of a Federal agency regulation implementing section 504 of 
the Rehabilitation Act of 1973, then the requirements of this paragraph 
(d) shall apply

[[Page 554]]

only to those policies and practices that were not included in the 
previous transition plan.

(Approved by the Office of Management and Budget under control number 
1190-0004)

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. 35.151  New construction and alterations.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a public entity shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by individuals with 
disabilities, if the construction was commenced after January 26, 1992.
    (b) Alteration. Each facility or part of a facility altered by, on 
behalf of, or for the use of a public entity in a manner that affects or 
could affect the usability of the facility or part of the facility 
shall, to the maximum extent feasible, be altered in such manner that 
the altered portion of the facility is readily accessible to and usable 
by individuals with disabilities, if the alteration was commenced after 
January 26, 1992.
    (c) Accessibility standards. Design, construction, or alteration of 
facilities in conformance with the Uniform Federal Accessibility 
Standards (UFAS) (appendix A to 41 CFR part 101-19.6) or with the 
Americans with Disabilities Act Accessibility Guidelines for Buildings 
and Facilities (ADAAG) (appendix A to 28 CFR part 36) shall be deemed to 
comply with the requirements of this section with respect to those 
facilities, except that the elevator exemption contained at section 
4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures 
from particular requirements of either standard by the use of other 
methods shall be permitted when it is clearly evident that equivalent 
access to the facility or part of the facility is thereby provided.
    (d) Alterations: Historic properties. (1) Alterations to historic 
properties shall comply, to the maximum extent feasible, with section 
4.1.7 of UFAS or section 4.1.7 of ADAAG.
    (2) If it is not feasible to provide physical access to an historic 
property in a manner that will not threaten or destroy the historic 
significance of the building or facility, alternative methods of access 
shall be provided pursuant to the requirements of Sec. 35.150.
    (e) Curb ramps. (1) Newly constructed or altered streets, roads, and 
highways must contain curb ramps or other sloped areas at any 
intersection having curbs or other barriers to entry from a street level 
pedestrian walkway.
    (2) Newly constructed or altered street level pedestrian walkways 
must contain curb ramps or other sloped areas at intersections to 
streets, roads, or highways.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993]



Sec. Sec. 35.152-35.159  [Reserved]



                        Subpart E_Communications



Sec. 35.160  General.

    (a) A public entity shall take appropriate steps to ensure that 
communications with applicants, participants, and members of the public 
with disabilities are as effective as communications with others.
    (b)(1) A public entity shall furnish appropriate auxiliary aids and 
services where necessary to afford an individual with a disability an 
equal opportunity to participate in, and enjoy the benefits of, a 
service, program, or activity conducted by a public entity.
    (2) In determining what type of auxiliary aid and service is 
necessary, a public entity shall give primary consideration to the 
requests of the individual with disabilities.



Sec. 35.161  Telecommunication devices for the deaf (TDD's).

    Where a public entity communicates by telephone with applicants and 
beneficiaries, TDD's or equally effective telecommunication systems 
shall be used to communicate with individuals with impaired hearing or 
speech.



Sec. 35.162  Telephone emergency services.

    Telephone emergency services, including 911 services, shall provide 
direct access to individuals who use TDD's and computer modems.

[[Page 555]]



Sec. 35.163  Information and signage.

    (a) A public entity shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (b) A public entity shall provide signage at all inaccessible 
entrances to each of its facilities, directing users to an accessible 
entrance or to a location at which they can obtain information about 
accessible facilities. The international symbol for accessibility shall 
be used at each accessible entrance of a facility.



Sec. 35.164  Duties.

    This subpart does not require a public entity to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens. In those circumstances where personnel of the 
public entity believe that the proposed action would fundamentally alter 
the service, program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with this subpart would result in such alteration or burdens. 
The decision that compliance would result in such alteration or burdens 
must be made by the head of the public entity or his or her designee 
after considering all resources available for use in the funding and 
operation of the service, program, or activity and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action required to comply with this subpart would result in such an 
alteration or such burdens, a public entity shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, individuals 
with disabilities receive the benefits or services provided by the 
public entity.



Sec. Sec. 35.165-35.169  [Reserved]



                     Subpart F_Compliance Procedures



Sec. 35.170  Complaints.

    (a) Who may file. An individual who believes that he or she or a 
specific class of individuals has been subjected to discrimination on 
the basis of disability by a public entity may, by himself or herself or 
by an authorized representative, file a complaint under this part.
    (b) Time for filing. A complaint must be filed not later than 180 
days from the date of the alleged discrimination, unless the time for 
filing is extended by the designated agency for good cause shown. A 
complaint is deemed to be filed under this section on the date it is 
first filed with any Federal agency.
    (c) Where to file. An individual may file a complaint with any 
agency that he or she believes to be the appropriate agency designated 
under subpart G of this part, or with any agency that provides funding 
to the public entity that is the subject of the complaint, or with the 
Department of Justice for referral as provided in Sec. 35.171(a)(2).



Sec. 35.171  Acceptance of complaints.

    (a) Receipt of complaints. (1)(i) Any Federal agency that receives a 
complaint of discrimination on the basis of disability by a public 
entity shall promptly review the complaint to determine whether it has 
jurisdiction over the complaint under section 504.
    (ii) If the agency does not have section 504 jurisdiction, it shall 
promptly determine whether it is the designated agency under subpart G 
of this part responsible for complaints filed against that public 
entity.
    (2)(i) If an agency other than the Department of Justice determines 
that it does not have section 504 jurisdiction and is not the designated 
agency, it shall promptly refer the complaint, and notify the 
complainant that it is referring the complaint to the Department of 
Justice.
    (ii) When the Department of Justice receives a complaint for which 
it does not have jurisdiction under section 504 and is not the 
designated agency, it

[[Page 556]]

shall refer the complaint to an agency that does have jurisdiction under 
section 504 or to the appropriate agency designated in subpart G of this 
part or, in the case of an employment complaint that is also subject to 
title I of the Act, to the Equal Employment Opportunity Commission.
    (3)(i) If the agency that receives a complaint has section 504 
jurisdiction, it shall process the complaint according to its procedures 
for enforcing section 504.
    (ii) If the agency that receives a complaint does not have section 
504 jurisdiction, but is the designated agency, it shall process the 
complaint according to the procedures established by this subpart.
    (b) Employment complaints. (1) If a complaint alleges employment 
discrimination subject to title I of the Act, and the agency has section 
504 jurisdiction, the agency shall follow the procedures issued by the 
Department of Justice and the Equal Employment Opportunity Commission 
under section 107(b) of the Act.
    (2) If a complaint alleges employment discrimination subject to 
title I of the Act, and the designated agency does not have section 504 
jurisdiction, the agency shall refer the complaint to the Equal 
Employment Opportunity Commission for processing under title I of the 
Act.
    (3) Complaints alleging employment discrimination subject to this 
part, but not to title I of the Act shall be processed in accordance 
with the procedures established by this subpart.
    (c) Complete complaints. (1) A designated agency shall accept all 
complete complaints under this section and shall promptly notify the 
complainant and the public entity of the receipt and acceptance of the 
complaint.
    (2) If the designated agency receives a complaint that is not 
complete, it shall notify the complainant and specify the additional 
information that is needed to make the complaint a complete complaint. 
If the complainant fails to complete the complaint, the designated 
agency shall close the complaint without prejudice.



Sec. 35.172  Resolution of complaints.

    (a) The designated agency shall investigate each complete complaint, 
attempt informal resolution, and, if resolution is not achieved, issue 
to the complainant and the public entity a Letter of Findings that shall 
include--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) Notice of the rights available under paragraph (b) of this 
section.
    (b) If the designated agency finds noncompliance, the procedures in 
Sec. Sec. 35.173 and 35.174 shall be followed. At any time, the 
complainant may file a private suit pursuant to section 203 of the Act, 
whether or not the designated agency finds a violation.



Sec. 35.173  Voluntary compliance agreements.

    (a) When the designated agency issues a noncompliance Letter of 
Findings, the designated agency shall--
    (1) Notify the Assistant Attorney General by forwarding a copy of 
the Letter of Findings to the Assistant Attorney General; and
    (2) Initiate negotiations with the public entity to secure 
compliance by voluntary means.
    (b) Where the designated agency is able to secure voluntary 
compliance, the voluntary compliance agreement shall--
    (1) Be in writing and signed by the parties;
    (2) Address each cited violation;
    (3) Specify the corrective or remedial action to be taken, within a 
stated period of time, to come into compliance;
    (4) Provide assurance that discrimination will not recur; and
    (5) Provide for enforcement by the Attorney General.



Sec. 35.174  Referral.

    If the public entity declines to enter into voluntary compliance 
negotiations or if negotiations are unsuccessful, the designated agency 
shall refer the matter to the Attorney General with a recommendation for 
appropriate action.

[[Page 557]]



Sec. 35.175  Attorney's fees.

    In any action or administrative proceeding commenced pursuant to the 
Act or this part, the court or agency, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee, including litigation expenses, and costs, and the United States 
shall be liable for the foregoing the same as a private individual.



Sec. 35.176  Alternative means of dispute resolution.

    Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement 
negotiations, conciliation, facilitation, mediation, factfinding, 
minitrials, and arbitration, is encouraged to resolve disputes arising 
under the Act and this part.



Sec. 35.177  Effect of unavailability of technical assistance.

    A public entity shall not be excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance, including any failure in the development or dissemination of 
any technical assistance manual authorized by the Act.



Sec. 35.178  State immunity.

    A State shall not be immune under the eleventh amendment to the 
Constitution of the United States from an action in Federal or State 
court of competent jurisdiction for a violation of this Act. In any 
action against a State for a violation of the requirements of this Act, 
remedies (including remedies both at law and in equity) are available 
for such a violation to the same extent as such remedies are available 
for such a violation in an action against any public or private entity 
other than a State.



Sec. Sec. 35.179-35.189  [Reserved]



                      Subpart G_Designated Agencies



Sec. 35.190  Designated agencies.

    (a) The Assistant Attorney General shall coordinate the compliance 
activities of Federal agencies with respect to State and local 
government components, and shall provide policy guidance and 
interpretations to designated agencies to ensure the consistent and 
effective implementation of the requirements of this part.
    (b) The Federal agencies listed in paragraph (b) (1) through (8) of 
this section shall have responsibility for the implementation of subpart 
F of this part for components of State and local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities in the following functional areas.
    (1) Department of Agriculture: All programs, services, and 
regulatory activities relating to farming and the raising of livestock, 
including extension services.
    (2) Department of Education: All programs, services, and regulatory 
activities relating to the operation of elementary and secondary 
education systems and institutions, institutions of higher education and 
vocational education (other than schools of medicine, dentistry, 
nursing, and other health-related schools), and libraries.
    (3) Department of Health and Human Services: All programs, services, 
and regulatory activities relating to the provision of health care and 
social services, including schools of medicine, dentistry, nursing, and 
other health-related schools, the operation of health care and social 
service providers and institutions, including ``grass-roots'' and 
community services organizations and programs, and preschool and daycare 
programs.
    (4) Department of Housing and Urban Development: All programs, 
services, and regulatory activities relating to state and local public 
housing, and housing assistance and referral.
    (5) Department of Interior: All programs, services, and regulatory 
activities relating to lands and natural resources, including parks and 
recreation, water and waste management, environmental protection, 
energy, historic and cultural preservation, and museums.
    (6) Department of Justice: All programs, services, and regulatory 
activities relating to law enforcement, public safety, and the 
administration of

[[Page 558]]

justice, including courts and correctional institutions; commerce and 
industry, including general economic development, banking and finance, 
consumer protection, insurance, and small business; planning, 
development, and regulation (unless assigned to other designated 
agencies); state and local government support services (e.g., audit, 
personnel, comptroller, administrative services); all other government 
functions not assigned to other designated agencies.
    (7) Department of Labor: All programs, services, and regulatory 
activities relating to labor and the work force.
    (8) Department of Transportation: All programs, services, and 
regulatory activities relating to transportation, including highways, 
public transportation, traffic management (non-law enforcement), 
automobile licensing and inspection, and driver licensing.
    (c) Responsibility for the implementation of subpart F of this part 
for components of State or local governments that exercise 
responsibilities, regulate, or administer services, programs, or 
activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section may be assigned to other 
specific agencies by the Department of Justice.
    (d) If two or more agencies have apparent responsibility over a 
complaint, the Assistant Attorney General shall determine which one of 
the agencies shall be the designated agency for purposes of that 
complaint.



Sec. Sec. 35.191-35.999  [Reserved]



Sec. Appendix A to Part 35--Preamble to Regulation on Nondiscrimination 
   on the Basis of Disability in State and Local Government Services 
                        (Published July 26, 1991)

    Note: For the convenience of the reader, this appendix contains the 
text of the preamble to the final regulation on nondiscrimination on the 
basis of disability in State and local government services beginning at 
the heading ``Section-by-Section Analysis'' and ending before ``List of 
Subjects in 28 CFR Part 35'' (56 FR 35696, July 26, 1991).

                       Section-by-Section Analysis

                           Subpart A--General

                         Section 35.101 Purpose

    Section 35.101 states the purpose of the rule, which is to 
effectuate subtitle A of title II of the Americans with Disabilities Act 
of 1990 (the Act), which prohibits discrimination on the basis of 
disability by public entities. This part does not, however, apply to 
matters within the scope of the authority of the Secretary of 
Transportation under subtitle B of title II of the Act.

                       Section 35.102 Application

    This provision specifies that, except as provided in paragraph (b), 
the regulation applies to all services, programs, and activities 
provided or made available by public entities, as that term is defined 
in Sec. 35.104. Section 504 of the Rehabilitation Act of 1973 (29 
U.S.C. 794), which prohibits discrimination on the basis of handicap in 
federally assisted programs and activities, already covers those 
programs and activities of public entities that receive Federal 
financial assistance. Title II of the ADA extends this prohibition of 
discrimination to include all services, programs, and activities 
provided or made available by State and local governments or any of 
their instrumentalities or agencies, regardless of the receipt of 
Federal financial assistance. Except as provided in Sec. 35.l34, this 
part does not apply to private entities.
    The scope of title II's coverage of public entities is comparable to 
the coverage of Federal Executive agencies under the 1978 amendment to 
section 504, which extended section 504's application to all programs 
and activities ``conducted by'' Federal Executive agencies, in that 
title II applies to anything a public entity does. Title II coverage, 
however, is not limited to ``Executive'' agencies, but includes 
activities of the legislative and judicial branches of State and local 
governments. All governmental activities of public entities are covered, 
even if they are carried out by contractors. For example, a State is 
obligated by title II to ensure that the services, programs, and 
activities of a State park inn operated under contract by a private 
entity are in compliance with title II's requirements. The private 
entity operating the inn would also be subject to the obligations of 
public accommodations under title III of the Act and the Department's 
title III regulations at 28 CFR part 36.
    Aside from employment, which is also covered by title I of the Act, 
there are two major categories of programs or activities covered by this 
regulation: those involving general public contact as part of ongoing 
operations of the entity and those directly administered by the entities 
for program beneficiaries and participants. Activities in the first 
category include communication with

[[Page 559]]

the public (telephone contacts, office walk-ins, or interviews) and the 
public's use of the entity's facilities. Activities in the second 
category include programs that provide State or local government 
services or benefits.
    Paragraph (b) of Sec. 35.102 explains that to the extent that the 
public transportation services, programs, and activities of public 
entities are covered by subtitle B of title II of the Act, they are 
subject to the regulation of the Department of Transportation (DOT) at 
49 CFR part 37, and are not covered by this part. The Department of 
Transportation's ADA regulation establishes specific requirements for 
construction of transportation facilities and acquisition of vehicles. 
Matters not covered by subtitle B, such as the provision of auxiliary 
aids, are covered by this rule. For example, activities that are covered 
by the Department of Transportation's regulation implementing subtitle B 
are not required to be included in the self-evaluation required by Sec. 
35.105. In addition, activities not specifically addressed by DOT's ADA 
regulation may be covered by DOT's regulation implementing section 504 
for its federally assisted programs and activities at 49 CFR part 27. 
Like other programs of public entities that are also recipients of 
Federal financial assistance, those programs would be covered by both 
the section 504 regulation and this part. Although airports operated by 
public entities are not subject to DOT's ADA regulation, they are 
subject to subpart A of title II and to this rule.
    Some commenters asked for clarification about the responsibilities 
of public school systems under section 504 and the ADA with respect to 
programs, services, and activities that are not covered by the 
Individuals with Disabilities Education Act (IDEA), including, for 
example, programs open to parents or to the public, graduation 
ceremonies, parent-teacher organization meetings, plays and other events 
open to the public, and adult education classes. Public school systems 
must comply with the ADA in all of their services, programs, or 
activities, including those that are open to parents or to the public. 
For instance, public school systems must provide program accessibility 
to parents and guardians with disabilities to these programs, 
activities, or services, and appropriate auxiliary aids and services 
whenever necessary to ensure effective communication, as long as the 
provision of the auxiliary aids results neither in an undue burden or in 
a fundamental alteration of the program.

                Section 35.103 Relationship to Other Laws

    Section 35.103 is derived from sections 501 (a) and (b) of the ADA. 
Paragraph (a) of this section provides that, except as otherwise 
specifically provided by this part, title II of the ADA is not intended 
to apply lesser standards than are required under title V of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 790-94), or the 
regulations implementing that title. The standards of title V of the 
Rehabilitation Act apply for purposes of the ADA to the extent that the 
ADA has not explicitly adopted a different standard than title V. 
Because title II of the ADA essentially extends the antidiscrimination 
prohibition embodied in section 504 to all actions of State and local 
governments, the standards adopted in this part are generally the same 
as those required under section 504 for federally assisted programs. 
Title II, however, also incorporates those provisions of titles I and 
III of the ADA that are not inconsistent with the regulations 
implementing section 504. Judiciary Committee report, H.R. Rep. No. 485, 
101st Cong., 2d Sess., pt. 3, at 51 (1990) (hereinafter ``Judiciary 
report'') ; Education and Labor Committee report, H.R. Rep. No. 485, 
101st Cong., 2d Sess., pt. 2, at 84 (1990) (hereinafter ``Education and 
Labor report''). Therefore, this part also includes appropriate 
provisions derived from the regulations implementing those titles. The 
inclusion of specific language in this part, however, should not be 
interpreted as an indication that a requirement is not included under a 
regulation implementing section 504.
    Paragraph (b) makes clear that Congress did not intend to displace 
any of the rights or remedies provided by other Federal laws (including 
section 504) or other State laws (including State common law) that 
provide greater or equal protection to individuals with disabilities. As 
discussed above, the standards adopted by title II of the ADA for State 
and local government services are generally the same as those required 
under section 504 for federally assisted programs and activities. 
Subpart F of the regulation establishes compliance procedures for 
processing complaints covered by both this part and section 504.
    With respect to State law, a plaintiff may choose to pursue claims 
under a State law that does not confer greater substantive rights, or 
even confers fewer substantive rights, if the alleged violation is 
protected under the alternative law and the remedies are greater. For 
example, a person with a physical disability could seek damages under a 
State law that allows compensatory and punitive damages for 
discrimination on the basis of physical disability, but not on the basis 
of mental disability. In that situation, the State law would provide 
narrower coverage, by excluding mental disabilities, but broader 
remedies, and an individual covered by both laws could choose to bring 
an action under both laws. Moreover, State tort claims confer greater 
remedies and are not preempted by the ADA. A plaintiff may join a State 
tort claim to a case brought under the

[[Page 560]]

ADA. In such a case, the plaintiff must, of course, prove all the 
elements of the State tort claim in order to prevail under that cause of 
action.

                       Section 35.104 Definitions

    ``Act.'' The word ``Act'' is used in this part to refer to the 
Americans with Disabilities Act of 1990, Public Law 101-336, which is 
also referred to as the ``ADA.''
    ``Assistant Attorney General.'' The term ``Assistant Attorney 
General'' refers to the Assistant Attorney General of the Civil Rights 
Division of the Department of Justice.
    ``Auxiliary aids and services.'' Auxiliary aids and services include 
a wide range of services and devices for ensuring effective 
communication. The proposed definition in Sec. 35.104 provided a list 
of examples of auxiliary aids and services that were taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
were supplemented by examples from regulations implementing section 504 
in federally conducted programs (see 28 CFR 39.103).
    A substantial number of commenters suggested that additional 
examples be added to this list. The Department has added several items 
to this list but wishes to clarify that the list is not an all-inclusive 
or exhaustive catalogue of possible or available auxiliary aids or 
services. It is not possible to provide an exhaustive list, and an 
attempt to do so would omit the new devices that will become available 
with emerging technology.
    Subparagraph (1) lists several examples, which would be considered 
auxiliary aids and services to make aurally delivered materials 
available to individuals with hearing impairments. The Department has 
changed the phrase used in the proposed rules, ``orally delivered 
materials,'' to the statutory phrase, ``aurally delivered materials,'' 
to track section 3 of the ADA and to include non-verbal sounds and 
alarms, and computer generated speech.
    The Department has added videotext displays, transcription services, 
and closed and open captioning to the list of examples. Videotext 
displays have become an important means of accessing auditory 
communications through a public address system. Transcription services 
are used to relay aurally delivered material almost simultaneously in 
written form to persons who are deaf or hearing-impaired. This 
technology is often used at conferences, conventions, and hearings. 
While the proposed rule expressly included television decoder equipment 
as an auxiliary aid or service, it did not mention captioning itself. 
The final rule rectifies this omission by mentioning both closed and 
open captioning.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf persons'' or 
``TDD's'' with the term ``text telephone.'' The Department has declined 
to do so. The Department is aware that the Architectural and 
Transportation Barriers Compliance Board (ATBCB) has used the phrase 
``text telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf'' and the Department believes 
it would be inappropriate to abandon this statutory term at this time.
    Several commenters urged the Department to include in the definition 
of ``auxiliary aids and services'' devices that are now available or 
that may become available with emerging technology. The Department 
declines to do so in the rule. The Department, however, emphasizes that, 
although the definition would include ``state of the art'' devices, 
public entities are not required to use the newest or most advanced 
technologies as long as the auxiliary aid or service that is selected 
affords effective communication.
    Subparagraph (2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples, such as 
signage or mapping, audio description services, secondary auditory 
programs, telebraillers, and reading machines. While the Department 
declines to add these items to the list, they are auxiliary aids and 
services and may be appropriate depending on the circumstances.
    Subparagraph (3) refers to acquisition or modification of equipment 
or devices. Several commenters suggested the addition of current 
technological innovations in microelectronics and computerized control 
systems (e.g., voice recognition systems, automatic dialing telephones, 
and infrared elevator and light control systems) to the list of 
auxiliary aids. The Department interprets auxiliary aids and services as 
those aids and services designed to provide effective communications, 
i.e., making aurally and visually delivered information available to 
persons with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the provision for 
modifications in policies, practices, or procedures (Sec. 35.130 
(b)(7)).
    Paragraph (b)(4) deals with other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind

[[Page 561]]

person who could not locate the item without assistance, it might be a 
method of providing program access for a person using a wheelchair who 
could not reach the shelf, or a reasonable modification to a self-
service policy for an individual who lacked the ability to grasp the 
item. As explained above, auxiliary aids and services are those aids and 
services required to provide effective communications. Other forms of 
assistance are more appropriately addressed by other provisions of the 
final rule.
    ``Complete complaint.'' ``Complete complaint'' is defined to include 
all the information necessary to enable the Federal agency designated 
under subpart G as responsible for investigation of a complaint to 
initiate its investigation.
    ``Current illegal use of drugs.'' The phrase ``current illegal use 
of drugs'' is used in Sec. 35.131. Its meaning is discussed in the 
preamble for that section.
    ``Designated agency.'' The term ``designated agency'' is used to 
refer to the Federal agency designated under subpart G of this rule as 
responsible for carrying out the administrative enforcement 
responsibilities established by subpart F of the rule.
    ``Disability.'' The definition of the term ``disability'' is the 
same as the definition in the title III regulation codified at 28 CFR 
part 36. It is comparable to the definition of the term ``individual 
with handicaps'' in section 7(8) of the Rehabilitation Act and section 
802(h) of the Fair Housing Act. The Education and Labor Committee report 
makes clear that the analysis of the term ``individual with handicaps'' 
by the Department of Health, Education, and Welfare (HEW) in its 
regulations implementing section 504 (42 FR 22685 (May 4, 1977)) and the 
analysis by the Department of Housing and Urban Development in its 
regulation implementing the Fair Housing Amendments Act of 1988 (54 FR 
3232 (Jan. 23, 1989)) should also apply fully to the term ``disability'' 
(Education and Labor report at 50).
    The use of the term ``disability'' instead of ``handicap'' and the 
term ``individual with a disability'' instead of ``individual with 
handicaps'' represents an effort by Congress to make use of up-to-date, 
currently accepted terminology. As with racial and ethnic epithets, the 
choice of terms to apply to a person with a disability is overlaid with 
stereotypes, patronizing attitudes, and other emotional connotations. 
Many individuals with disabilities, and organizations representing such 
individuals, object to the use of such terms as ``handicapped person'' 
or ``the handicapped.'' In other recent legislation, Congress also 
recognized this shift in terminology, e.g., by changing the name of the 
National Council on the Handicapped to the National Council on 
Disability (Pub. L. 100-630).
    In enacting the Americans with Disabilities Act, Congress concluded 
that it was important for the current legislation to use terminology 
most in line with the sensibilities of most Americans with disabilities. 
No change in definition or substance is intended nor should one be 
attributed to this change in phraseology.
    The term ``disability'' means, with respect to an individual--
    (A) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment. If an individual 
meets any one of these three tests, he or she is considered to be an 
individual with a disability for purposes of coverage under the 
Americans with Disabilities Act.
    Congress adopted this same basic definition of ``disability,'' first 
used in the Rehabilitation Act of 1973 and in the Fair Housing 
Amendments Act of 1988, for a number of reasons. First, it has worked 
well since it was adopted in 1974. Second, it would not be possible to 
guarantee comprehensiveness by providing a list of specific 
disabilities, especially because new disorders may be recognized in the 
future, as they have since the definition was first established in 1974.

Test A--A physical or mental impairment that substantially limits one or 
          more of the major life activities of such individual

    Physical or mental impairment. Under the first test, an individual 
must have a physical or mental impairment. As explained in paragraph 
(1)(i) of the definition, ``impairment'' means any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: neurological; 
musculoskeletal; special sense organs (which would include speech organs 
that are not respiratory such as vocal cords, soft palate, tongue, 
etc.); respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine. It also means any mental or psychological disorder, such as 
mental retardation, organic brain syndrome, emotional or mental illness, 
and specific learning disabilities. This list closely tracks the one 
used in the regulations for section 504 of the Rehabilitation Act of 
1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).
    Many commenters asked that ``traumatic brain injury'' be added to 
the list in paragraph (1)(i). Traumatic brain injury is already included 
because it is a physiological condition affecting one of the listed body 
systems, i.e., ``neurological.'' Therefore, it was unnecessary to add 
the term to the regulation, which only provides representative examples 
of physiological disorders.

[[Page 562]]

    It is not possible to include a list of all the specific conditions, 
contagious and noncontagious diseases, or infections that would 
constitute physical or mental impairments because of the difficulty of 
ensuring the comprehensiveness of such a list, particularly in light of 
the fact that other conditions or disorders may be identified in the 
future. However, the list of examples in paragraph (1)(ii) of the 
definition includes: orthopedic, visual, speech and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase 
``symptomatic or asymptomatic'' was inserted in the final rule after 
``HIV disease'' in response to commenters who suggested the 
clarification was necessary.
    The examples of ``physical or mental impairments'' in paragraph 
(1)(ii) are the same as those contained in many section 504 regulations, 
except for the addition of the phrase ``contagious and noncontagious'' 
to describe the types of diseases and conditions included, and the 
addition of ``HIV disease (symptomatic or asymptomatic)'' and 
``tuberculosis'' to the list of examples. These additions are based on 
the committee reports, caselaw, and official legal opinions interpreting 
section 504. In School Board of Nassau County v. Arline, 480 U.S. 273 
(1987), a case involving an individual with tuberculosis, the Supreme 
Court held that people with contagious diseases are entitled to the 
protections afforded by section 504. Following the Arline decision, this 
Department's Office of Legal Counsel issued a legal opinion that 
concluded that symptomatic HIV disease is an impairment that 
substantially limits a major life activity; therefore it has been 
included in the definition of disability under this part. The opinion 
also concluded that asymptomatic HIV disease is an impairment that 
substantially limits a major life activity, either because of its actual 
effect on the individual with HIV disease or because the reactions of 
other people to individuals with HIV disease cause such individuals to 
be treated as though they are disabled. See Memorandum from Douglas W. 
Kmiec, Acting Assistant Attorney General, Office of Legal Counsel, 
Department of Justice, to Arthur B. Culvahouse, Jr., Counsel to the 
President (Sept. 27, 1988), reprinted in Hearings on S. 933, the 
Americans with Disabilities Act, Before the Subcomm. on the Handicapped 
of the Senate Comm. on Labor and Human Resources, 101st. Cong., 1st 
Sess. 346 (1989).
    Paragraph (1)(iii) states that the phrase ``physical or mental 
impairment'' does not include homosexuality or bisexuality. These 
conditions were never considered impairments under other Federal 
disability laws. Section 511(a) of the statute makes clear that they are 
likewise not to be considered impairments under the Americans with 
Disabilities Act.
    Physical or mental impairment does not include simple physical 
characteristics, such as blue eyes or black hair. Nor does it include 
environmental, cultural, economic, or other disadvantages, such as 
having a prison record, or being poor. Nor is age a disability. 
Similarly, the definition does not include common personality traits 
such as poor judgment or a quick temper where these are not symptoms of 
a mental or psychological disorder. However, a person who has these 
characteristics and also has a physical or mental impairment may be 
considered as having a disability for purposes of the Americans with 
Disabilities Act based on the impairment.
    Substantial Limitation of a Major Life Activity. Under Test A, the 
impairment must be one that ``substantially limits a major life 
activity.'' Major life activities include such things as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    For example, a person who is paraplegic is substantially limited in 
the major life activity of walking, a person who is blind is 
substantially limited in the major life activity of seeing, and a person 
who is mentally retarded is substantially limited in the major life 
activity of learning. A person with traumatic brain injury is 
substantially limited in the major life activities of caring for one's 
self, learning, and working because of memory deficit, confusion, 
contextual difficulties, and inability to reason appropriately.
    A person is considered an individual with a disability for purposes 
of Test A, the first prong of the definition, when the individual's 
important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people. A person with a minor, trivial impairment, such as a simple 
infected finger, is not impaired in a major life activity. A person who 
can walk for 10 miles continuously is not substantially limited in 
walking merely because, on the eleventh mile, he or she begins to 
experience pain, because most people would not be able to walk eleven 
miles without experiencing some discomfort.
    The Department received many comments on the proposed rule's 
inclusion of the word ``temporary'' in the definition of ``disability.'' 
The preamble indicated that impairments are not necessarily excluded 
from the definition of ``disability'' simply because they are temporary, 
but that the duration, or expected duration, of an impairment is one 
factor that may properly be considered in determining whether the 
impairment substantially limits a major life activity. The

[[Page 563]]

preamble recognized, however, that temporary impairments, such as a 
broken leg, are not commonly regarded as disabilities, and only in rare 
circumstances would the degree of the limitation and its expected 
duration be substantial. Nevertheless, many commenters objected to 
inclusion of the word ``temporary'' both because it is not in the 
statute and because it is not contained in the definition of 
``disability'' set forth in the title I regulations of the Equal 
Employment Opportunity Commission (EEOC). The word ``temporary'' has 
been deleted from the final rule to conform with the statutory language.
    The question of whether a temporary impairment is a disability must 
be resolved on a case-by-case basis, taking into consideration both the 
duration (or expected duration) of the impairment and the extent to 
which it actually limits a major life activity of the affected 
individual.
    The question of whether a person has a disability should be assessed 
without regard to the availability of mitigating measures, such as 
reasonable modification or auxiliary aids and services. For example, a 
person with hearing loss is substantially limited in the major life 
activity of hearing, even though the loss may be improved through the 
use of a hearing aid. Likewise, persons with impairments, such as 
epilepsy or diabetes, that substantially limit a major life activity, 
are covered under the first prong of the definition of disability, even 
if the effects of the impairment are controlled by medication.
    Many commenters asked that environmental illness (also known as 
multiple chemical sensitivity) as well as allergy to cigarette smoke be 
recognized as disabilities. The Department, however, declines to state 
categorically that these types of allergies or sensitivities are 
disabilities, because the determination as to whether an impairment is a 
disability depends on whether, given the particular circumstances at 
issue, the impairment substantially limits one or more major life 
activities (or has a history of, or is regarded as having such an 
effect).
    Sometimes respiratory or neurological functioning is so severely 
affected that an individual will satisfy the requirements to be 
considered disabled under the regulation. Such an individual would be 
entitled to all of the protections afforded by the Act and this part. In 
other cases, individuals may be sensitive to environmental elements or 
to smoke but their sensitivity will not rise to the level needed to 
constitute a disability. For example, their major life activity of 
breathing may be somewhat, but not substantially, impaired. In such 
circumstances, the individuals are not disabled and are not entitled to 
the protections of the statute despite their sensitivity to 
environmental agents.
    In sum, the determination as to whether allergies to cigarette 
smoke, or allergies or sensitivities characterized by the commenters as 
environmental illness are disabilities covered by the regulation must be 
made using the same case-by-case analysis that is applied to all other 
physical or mental impairments. Moreover, the addition of specific 
regulatory provisions relating to environmental illness in the final 
rule would be inappropriate at this time pending future consideration of 
the issue by the Architectural and Transportation Barriers Compliance 
Board, the Environmental Protection Agency, and the Occupational Safety 
and Health Administration of the Department of Labor.

                 Test B--A record of such an impairment

    This test is intended to cover those who have a record of an 
impairment. As explained in paragraph (3) of the rule's definition of 
disability, this includes a person who has a history of an impairment 
that substantially limited a major life activity, such as someone who 
has recovered from an impairment. It also includes persons who have been 
misclassified as having an impairment.
    This provision is included in the definition in part to protect 
individuals who have recovered from a physical or mental impairment that 
previously substantially limited them in a major life activity. 
Discrimination on the basis of such a past impairment is prohibited. 
Frequently occurring examples of the first group (those who have a 
history of an impairment) are persons with histories of mental or 
emotional illness, heart disease, or cancer; examples of the second 
group (those who have been misclassified as having an impairment) are 
persons who have been misclassified as having mental retardation or 
mental illness.

           Test C--Being regarded as having such an impairment

    This test, as contained in paragraph (4) of the definition, is 
intended to cover persons who are treated by a public entity as having a 
physical or mental impairment that substantially limits a major life 
activity. It applies when a person is treated as if he or she has an 
impairment that substantially limits a major life activity, regardless 
of whether that person has an impairment.
    The Americans with Disabilities Act uses the same ``regarded as'' 
test set forth in the regulations implementing section 504 of the 
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:
    (iv) ``Is regarded as having an impairment'' means (A) Has a 
physical or mental impairment that does not substantially limit major 
life activities but that is treated by a recipient as constituting such 
a limitation; (B) Has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) Has none of

[[Page 564]]

the impairments defined in paragraph (k)(2)(i) of this section but is 
treated by a recipient as having such an impairment.
    The perception of the covered entity is a key element of this test. 
A person who perceives himself or herself to have an impairment, but 
does not have an impairment, and is not treated as if he or she has an 
impairment, is not protected under this test.
    A person would be covered under this test if a public entity refused 
to serve the person because it perceived that the person had an 
impairment that limited his or her enjoyment of the goods or services 
being offered.
    For example, persons with severe burns often encounter 
discrimination in community activities, resulting in substantial 
limitation of major life activities. These persons would be covered 
under this test based on the attitudes of others towards the impairment, 
even if they did not view themselves as ``impaired.''
    The rationale for this third test, as used in the Rehabilitation Act 
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 
(1987). The Court noted that although an individual may have an 
impairment that does not in fact substantially limit a major life 
activity, the reaction of others may prove just as disabling. ``Such an 
impairment might not diminish a person's physical or mental 
capabilities, but could nevertheless substantially limit that person's 
ability to work as a result of the negative reactions of others to the 
impairment.'' Id. at 283. The Court concluded that, by including this 
test in the Rehabilitation Act's definition, ``Congress acknowledged 
that society's accumulated myths and fears about disability and diseases 
are as handicapping as are the physical limitations that flow from 
actual impairment.'' Id. at 284.
    Thus, a person who is denied services or benefits by a public entity 
because of myths, fears, and stereotypes associated with disabilities 
would be covered under this third test whether or not the person's 
physical or mental condition would be considered a disability under the 
first or second test in the definition.
    If a person is refused admittance on the basis of an actual or 
perceived physical or mental condition, and the public entity can 
articulate no legitimate reason for the refusal (such as failure to meet 
eligibility criteria), a perceived concern about admitting persons with 
disabilities could be inferred and the individual would qualify for 
coverage under the ``regarded as'' test. A person who is covered because 
of being regarded as having an impairment is not required to show that 
the public entity's perception is inaccurate (e.g., that he will be 
accepted by others) in order to receive benefits from the public entity.
    Paragraph (5) of the definition lists certain conditions that are 
not included within the definition of ``disability.'' The excluded 
conditions are: Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, other sexual behavior disorders, compulsive gambling, 
kleptomania, pyromania, and psychoactive substance use disorders 
resulting from current illegal use of drugs. Unlike homosexuality and 
bisexuality, which are not considered impairments under either section 
504 or the Americans with Disabilities Act (see the definition of 
``disability,'' paragraph (1)(iv)), the conditions listed in paragraph 
(5), except for transvestism, are not necessarily excluded as 
impairments under section 504. (Transvestism was excluded from the 
definition of disability for section 504 by the Fair Housing Amendments 
Act of 1988, Pub. L. 100-430, section 6(b)).
    ``Drug.'' The definition of the term ``drug'' is taken from section 
510(d)(2) of the ADA.
    ``Facility.'' ``Facility'' means all or any portion of buildings, 
structures, sites, complexes, equipment, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located. It includes both indoor and outdoor 
areas where human-constructed improvements, structures, equipment, or 
property have been added to the natural environment.
    Commenters raised questions about the applicability of this part to 
activities operated in mobile facilities, such as bookmobiles or mobile 
health screening units. Such activities would be covered by the 
requirement for program accessibility in Sec. 35.150, and would be 
included in the definition of ``facility'' as ``other real or personal 
property,'' although standards for new construction and alterations of 
such facilities are not yet included in the accessibility standards 
adopted by Sec. 35.151. Sections 35.150 and 35.151 specifically address 
the obligations of public entities to ensure accessibility by providing 
curb ramps at pedestrian walkways.
    ``Historic preservation programs'' and ``Historic properties'' are 
defined in order to aid in the interpretation of Sec. Sec. 35.150 
(a)(2) and (b)(2), which relate to accessibility of historic 
preservation programs, and Sec. 35.151(d), which relates to the 
alteration of historic properties.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public entity acts on the basis of such use. The phrase 
``current illegal use of drugs'' is explained in Sec. 35.131.

[[Page 565]]

    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; or the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act).
    ``Qualified individual with a disability.'' The definition of 
``qualified individual with a disability'' is taken from section 201(2) 
of the Act, which is derived from the definition of ``qualified 
handicapped person'' in the Department of Health and Human Services' 
regulation implementing section 504 (45 CFR Sec. 84.3(k)). It combines 
the definition at 45 CFR 84.3(k)(1) for employment (``a handicapped 
person who, with reasonable accommodation, can perform the essential 
functions of the job in question'') with the definition for other 
services at 45 CFR 84.3(k)(4) (``a handicapped person who meets the 
essential eligibility requirements for the receipt of such services'').
    Some commenters requested clarification of the term ``essential 
eligibility requirements.'' Because of the variety of situations in 
which an individual's qualifications will be at issue, it is not 
possible to include more specific criteria in the definition. The 
``essential eligibility requirements'' for participation in some 
activities covered under this part may be minimal. For example, most 
public entities provide information about their operations as a public 
service to anyone who requests it. In such situations, the only 
``eligibility requirement'' for receipt of such information would be the 
request for it. Where such information is provided by telephone, even 
the ability to use a voice telephone is not an ``essential eligibility 
requirement,'' because Sec. 35.161 requires a public entity to provide 
equally effective telecommunication systems for individuals with 
impaired hearing or speech.
    For other activities, identification of the ``essential eligibility 
requirements'' may be more complex. Where questions of safety are 
involved, the principles established in Sec. 36.208 of the Department's 
regulation implementing title III of the ADA, to be codified at 28 CFR, 
part 36, will be applicable. That section implements section 302(b)(3) 
of the Act, which provides that a public accommodation is not required 
to permit an individual to participate in or benefit from the goods, 
services, facilities, privileges, advantages and accommodations of the 
public accommodation, if that individual poses a direct threat to the 
health or safety of others.
    A ``direct threat'' is a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services. In School Board of Nassau County v. Arline, 480 U.S. 273 
(1987), the Supreme Court recognized that there is a need to balance the 
interests of people with disabilities against legitimate concerns for 
public safety. Although persons with disabilities are generally entitled 
to the protection of this part, a person who poses a significant risk to 
others will not be ``qualified,'' if reasonable modifications to the 
public entity's policies, practices, or procedures will not eliminate 
that risk.
    The determination that a person poses a direct threat to the health 
or safety of others may not be based on generalizations or stereotypes 
about the effects of a particular disability. It must be based on an 
individualized assessment, based on reasonable judgment that relies on 
current medical evidence or on the best available objective evidence, to 
determine: the nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures will 
mitigate the risk. This is the test established by the Supreme Court in 
Arline. Such an inquiry is essential if the law is to achieve its goal 
of protecting disabled individuals from discrimination based on 
prejudice, stereotypes, or unfounded fear, while giving appropriate 
weight to legitimate concerns, such as the need to avoid exposing others 
to significant health and safety risks. Making this assessment will not 
usually require the services of a physician. Sources for medical 
knowledge include guidance from public health authorities, such as the 
U.S. Public Health Service, the Centers for Disease Control, and the 
National Institutes of Health, including the National Institute of 
Mental Health.
    ``Qualified interpreter.'' The Department received substantial 
comment regarding the lack of a definition of ``qualified interpreter.'' 
The proposed rule defined auxiliary aids and services to include the 
statutory term, ``qualified interpreters'' (Sec. 35.104), but did not 
define it. Section 35.160 requires the use of auxiliary aids including 
qualified interpreters and commenters stated that a lack of guidance on 
what the term means would create confusion among those trying to secure 
interpreting services and often result in less than effective 
communication.
    Many commenters were concerned that, without clear guidance on the 
issue of ``qualified'' interpreter, the rule would be interpreted to 
mean ``available, rather than qualified'' interpreters. Some claimed 
that few public entities would understand the difference between a 
qualified interpreter and a person who simply knows a few signs or how 
to fingerspell.
    In order to clarify what is meant by ``qualified interpreter'' the 
Department has added a definition of the term to the final rule. A 
qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively

[[Page 566]]

and expressively, using any necessary specialized vocabulary. This 
definition focuses on the actual ability of the interpreter in a 
particular interpreting context to facilitate effective communication 
between the public entity and the individual with disabilities.
    Public comment also revealed that public entities have at times 
asked persons who are deaf to provide family members or friends to 
interpret. In certain circumstances, notwithstanding that the family 
member of friend is able to interpret or is a certified interpreter, the 
family member or friend may not be qualified to render the necessary 
interpretation because of factors such as emotional or personal 
involvement or considerations of confidentiality that may adversely 
affect the ability to interpret``effectively, accurately, and 
impartially.''
    The definition of ``qualified interpreter'' in this rule does not 
invalidate or limit standards for interpreting services of any State or 
local law that are equal to or more stringent than those imposed by this 
definition. For instance, the definition would not supersede any 
requirement of State law for use of a certified interpreter in court 
proceedings.
    ``Section 504.'' The Department added a definition of ``section 
504'' because the term is used extensively in subpart F of this part.
    ``State.'' The definition of ``State'' is identical to the statutory 
definition in section 3(3) of the ADA.

                     Section 35.105 Self-evaluation

    Section 35.105 establishes a requirement, based on the section 504 
regulations for federally assisted and federally conducted programs, 
that a public entity evaluate its current policies and practices to 
identify and correct any that are not consistent with the requirements 
of this part. As noted in the discussion of Sec. 35.102, activities 
covered by the Department of Transportation's regulation implementing 
subtitle B of title II are not required to be included in the self-
evaluation required by this section.
    Experience has demonstrated the self-evaluation process to be a 
valuable means of establishing a working relationship with individuals 
with disabilities, which has promoted both effective and efficient 
implementation of section 504. The Department expects that it will 
likewise be useful to public entities newly covered by the ADA.
    All public entities are required to do a self-evaluation. However, 
only those that employ 50 or more persons are required to maintain the 
self-evaluation on file and make it available for public inspection for 
three years. The number 50 was derived from the Department of Justice's 
section 504 regulations for federally assisted programs, 28 CFR 
42.505(c). The Department received comments critical of this limitation, 
some suggesting the requirement apply to all public entities and others 
suggesting that the number be changed from 50 to 15. The final rule has 
not been changed. Although many regulations implementing section 504 for 
federally assisted programs do use 15 employees as the cut-off for this 
record-keeping requirement, the Department believes that it would be 
inappropriate to extend it to those smaller public entities covered by 
this regulation that do not receive Federal financial assistance. This 
approach has the benefit of minimizing paperwork burdens on small 
entities.
    Paragraph (d) provides that the self-evaluation required by this 
section shall apply only to programs not subject to section 504 or those 
policies and practices, such as those involving communications access, 
that have not already been included in a self-evaluation required under 
an existing regulation implementing section 504. Because most self-
evaluations were done from five to twelve years ago, however, the 
Department expects that a great many public entities will be reexamining 
all of their policies and programs. Programs and functions may have 
changed, and actions that were supposed to have been taken to comply 
with section 504 may not have been fully implemented or may no longer be 
effective. In addition, there have been statutory amendments to section 
504 which have changed the coverage of section 504, particularly the 
Civil Rights Restoration Act of 1987, Public Law No. 100-259, 102 Stat. 
28 (1988), which broadened the definition of a covered ``program or 
activity.''
    Several commenters suggested that the Department clarify public 
entities' liability during the one-year period for compliance with the 
self-evaluation requirement. The self-evaluation requirement does not 
stay the effective date of the statute nor of this part. Public entities 
are, therefore, not shielded from discrimination claims during that 
time.
    Other commenters suggested that the rule require that every self-
evaluation include an examination of training efforts to assure that 
individuals with disabilities are not subjected to discrimination 
because of insensitivity, particularly in the law enforcement area. 
Although the Department has not added such a specific requirement to the 
rule, it would be appropriate for public entities to evaluate training 
efforts because, in many cases, lack of training leads to discriminatory 
practices, even when the policies in place are nondiscriminatory.

                          Section 35.106 Notice

    Section 35.106 requires a public entity to disseminate sufficient 
information to applicants, participants, beneficiaries, and other 
interested persons to inform them of the rights and protections afforded 
by the ADA and this regulation. Methods of providing this information 
include, for example, the publication of information in handbooks, 
manuals, and pamphlets that are distributed

[[Page 567]]

to the public to describe a public entity's programs and activities; the 
display of informative posters in service centers and other public 
places; or the broadcast of information by television or radio. In 
providing the notice, a public entity must comply with the requirements 
for effective communication in Sec. 35.160. The preamble to that 
section gives guidance on how to effectively communicate with 
individuals with disabilities.

   Section 35.107 Designation of Responsible Employee and Adoption of 
                          Grievance Procedures

    Consistent with Sec. 35.105, self-evaluation, the final rule 
requires that public entities with 50 or more employees designate a 
responsible employee and adopt grievance procedures. Most of the 
commenters who suggested that the requirement that self-evaluation be 
maintained on file for three years not be limited to those employing 50 
or more persons made a similar suggestion concerning Sec. 35.107. 
Commenters recommended either that all public entities be subject to 
Sec. 35.107, or that ``50 or more persons'' be changed to ``15 or more 
persons.'' As explained in the discussion of Sec. 35.105, the 
Department has not adopted this suggestion.
    The requirement for designation of an employee responsible for 
coordination of efforts to carry out responsibilities under this part is 
derived from the HEW regulation implementing section 504 in federally 
assisted programs. The requirement for designation of a particular 
employee and dissemination of information about how to locate that 
employee helps to ensure that individuals dealing with large agencies 
are able to easily find a responsible person who is familiar with the 
requirements of the Act and this part and can communicate those 
requirements to other individuals in the agency who may be unaware of 
their responsibilities. This paragraph in no way limits a public 
entity's obligation to ensure that all of its employees comply with the 
requirements of this part, but it ensures that any failure by individual 
employees can be promptly corrected by the designated employee.
    Section 35.107(b) requires public entities with 50 or more employees 
to establish grievance procedures for resolving complaints of violations 
of this part. Similar requirements are found in the section 504 
regulations for federally assisted programs (see, e.g., 45 CFR 84.7(b)). 
The rule, like the regulations for federally assisted programs, provides 
for investigation and resolution of complaints by a Federal enforcement 
agency. It is the view of the Department that public entities subject to 
this part should be required to establish a mechanism for resolution of 
complaints at the local level without requiring the complainant to 
resort to the Federal complaint procedures established under subpart F. 
Complainants would not, however, be required to exhaust the public 
entity's grievance procedures before filing a complaint under subpart F. 
Delay in filing the complaint at the Federal level caused by pursuit of 
the remedies available under the grievance procedure would generally be 
considered good cause for extending the time allowed for filing under 
Sec. 35.170(b).

                     Subpart B--General Requirements

       Section 35.130 General Prohibitions Against Discrimination

    The general prohibitions against discrimination in the rule are 
generally based on the prohibitions in existing regulations implementing 
section 504 and, therefore, are already familiar to State and local 
entities covered by section 504. In addition, Sec. 35.130 includes a 
number of provisions derived from title III of the Act that are implicit 
to a certain degree in the requirements of regulations implementing 
section 504.
    Several commenters suggested that this part should include the 
section of the proposed title III regulation that implemented section 
309 of the Act, which requires that courses and examinations related to 
applications, licensing, certification, or credentialing be provided in 
an accessible place and manner or that alternative accessible 
arrangements be made. The Department has not adopted this suggestion. 
The requirements of this part, including the general prohibitions of 
discrimination in this section, the program access requirements of 
subpart D, and the communications requirements of subpart E, apply to 
courses and examinations provided by public entities. The Department 
considers these requirements to be sufficient to ensure that courses and 
examinations administered by public entities meet the requirements of 
section 309. For example, a public entity offering an examination must 
ensure that modifications of policies, practices, or procedures or the 
provision of auxiliary aids and services furnish the individual with a 
disability an equal opportunity to demonstrate his or her knowledge or 
ability. Also, any examination specially designed for individuals with 
disabilities must be offered as often and in as timely a manner as are 
other examinations. Further, under this part, courses and examinations 
must be offered in the most integrated setting appropriate. The analysis 
of Sec. 35.130(d) is relevant to this determination.
    A number of commenters asked that the regulation be amended to 
require training of law enforcement personnel to recognize the 
difference between criminal activity and the effects of seizures or 
other disabilities such as mental retardation, cerebral palsy, traumatic 
brain injury, mental illness, or deafness. Several disabled commenters 
gave personal statements about the abuse they had

[[Page 568]]

received at the hands of law enforcement personnel. Two organizations 
that commented cited the Judiciary report at 50 as authority to require 
law enforcement training.
    The Department has not added such a training requirement to the 
regulation. Discriminatory arrests and brutal treatment are already 
unlawful police activities. The general regulatory obligation to modify 
policies, practices, or procedures requires law enforcement to make 
changes in policies that result in discriminatory arrests or abuse of 
individuals with disabilities. Under this section law enforcement 
personnel would be required to make appropriate efforts to determine 
whether perceived strange or disruptive behavior or unconsciousness is 
the result of a disability. The Department notes that a number of States 
have attempted to address the problem of arresting disabled persons for 
noncriminal conduct resulting from their disability through adoption of 
the Uniform Duties to Disabled Persons Act, and encourages other 
jurisdictions to consider that approach.
    Paragraph (a) restates the nondiscrimination mandate of section 202 
of the ADA. The remaining paragraphs in Sec. 35.130 establish the 
general principles for analyzing whether any particular action of the 
public entity violates this mandate.
    Paragraph (b) prohibits overt denials of equal treatment of 
individuals with disabilities. A public entity may not refuse to provide 
an individual with a disability with an equal opportunity to participate 
in or benefit from its program simply because the person has a 
disability.
    Paragraph (b)(1)(i) provides that it is discriminatory to deny a 
person with a disability the right to participate in or benefit from the 
aid, benefit, or service provided by a public entity. Paragraph 
(b)(1)(ii) provides that the aids, benefits, and services provided to 
persons with disabilities must be equal to those provided to others, and 
paragraph (b)(1)(iii) requires that the aids, benefits, or services 
provided to individuals with disabilities must be as effective in 
affording equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement as those provided to 
others. These paragraphs are taken from the regulations implementing 
section 504 and simply restate principles long established under section 
504.
    Paragraph (b)(1)(iv) permits the public entity to develop separate 
or different aids, benefits, or services when necessary to provide 
individuals with disabilities with an equal opportunity to participate 
in or benefit from the public entity's programs or activities, but only 
when necessary to ensure that the aids, benefits, or services are as 
effective as those provided to others. Paragraph (b)(1)(iv) must be read 
in conjunction with paragraphs (b)(2), (d), and (e). Even when separate 
or different aids, benefits, or services would be more effective, 
paragraph (b)(2) provides that a qualified individual with a disability 
still has the right to choose to participate in the program that is not 
designed to accommodate individuals with disabilities. Paragraph (d) 
requires that a public entity administer services, programs, and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    Paragraph (b)(2) specifies that, notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this section, an individual with a disability shall not be denied the 
opportunity to participate in such programs or activities that are not 
separate or different. Paragraph (e), which is derived from section 
501(d) of the Americans with Disabilities Act, states that nothing in 
this part shall be construed to require an individual with a disability 
to accept an accommodation, aid, service, opportunity, or benefit that 
he or she chooses not to accept.
    Taken together, these provisions are intended to prohibit exclusion 
and segregation of individuals with disabilities and the denial of equal 
opportunities enjoyed by others, based on, among other things, 
presumptions, patronizing attitudes, fears, and stereotypes about 
individuals with disabilities. Consistent with these standards, public 
entities are required to ensure that their actions are based on facts 
applicable to individuals and not on presumptions as to what a class of 
individuals with disabilities can or cannot do.
    Integration is fundamental to the purposes of the Americans with 
Disabilities Act. Provision of segregated accommodations and services 
relegates persons with disabilities to second-class status. For example, 
it would be a violation of this provision to require persons with 
disabilities to eat in the back room of a government cafeteria or to 
refuse to allow a person with a disability the full use of recreation or 
exercise facilities because of stereotypes about the person's ability to 
participate.
    Many commenters objected to proposed paragraphs (b)(1)(iv) and (d) 
as allowing continued segregation of individuals with disabilities. The 
Department recognizes that promoting integration of individuals with 
disabilities into the mainstream of society is an important objective of 
the ADA and agrees that, in most instances, separate programs for 
individuals with disabilities will not be permitted. Nevertheless, 
section 504 does permit separate programs in limited circumstances, and 
Congress clearly intended the regulations issued under title II to adopt 
the standards of section 504. Furthermore, Congress included authority 
for

[[Page 569]]

separate programs in the specific requirements of title III of the Act. 
Section 302(b)(1)(A)(iii) of the Act provides for separate benefits in 
language similar to that in Sec. 35.130(b)(1)(iv), and section 
302(b)(1)(B) includes the same requirement for ``the most integrated 
setting appropriate'' as in Sec. 35.130(d).
    Even when separate programs are permitted, individuals with 
disabilities cannot be denied the opportunity to participate in programs 
that are not separate or different. This is an important and overarching 
principle of the Americans with Disabilities Act. Separate, special, or 
different programs that are designed to provide a benefit to persons 
with disabilities cannot be used to restrict the participation of 
persons with disabilities in general, integrated activities.
    For example, a person who is blind may wish to decline participating 
in a special museum tour that allows persons to touch sculptures in an 
exhibit and instead tour the exhibit at his or her own pace with the 
museum's recorded tour. It is not the intent of this section to require 
the person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, 
not a requirement.
    In addition, it would not be a violation of this section for a 
public entity to offer recreational programs specially designed for 
children with mobility impairments. However, it would be a violation of 
this section if the entity then excluded these children from other 
recreational services for which they are qualified to participate when 
these services are made available to nondisabled children, or if the 
entity required children with disabilities to attend only designated 
programs.
    Many commenters asked that the Department clarify a public entity's 
obligations within the integrated program when it offers a separate 
program but an individual with a disability chooses not to participate 
in the separate program. It is impossible to make a blanket statement as 
to what level of auxiliary aids or modifications would be required in 
the integrated program. Rather, each situation must be assessed 
individually. The starting point is to question whether the separate 
program is in fact necessary or appropriate for the individual. Assuming 
the separate program would be appropriate for a particular individual, 
the extent to which that individual must be provided with modifications 
in the integrated program will depend not only on what the individual 
needs but also on the limitations and defenses of this part. For 
example, it may constitute an undue burden for a public accommodation, 
which provides a full-time interpreter in its special guided tour for 
individuals with hearing impairments, to hire an additional interpreter 
for those individuals who choose to attend the integrated program. The 
Department cannot identify categorically the level of assistance or aid 
required in the integrated program.
    Paragraph (b)(1)(v) provides that a public entity may not aid or 
perpetuate discrimination against a qualified individual with a 
disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program. This paragraph is taken from the regulations 
implementing section 504 for federally assisted programs.
    Paragraph (b)(1)(vi) prohibits the public entity from denying a 
qualified individual with a disability the opportunity to participate as 
a member of a planning or advisory board.
    Paragraph (b)(1)(vii) prohibits the public entity from limiting a 
qualified individual with a disability in the enjoyment of any right, 
privilege, advantage, or opportunity enjoyed by others receiving any 
aid, benefit, or service.
    Paragraph (b)(3) prohibits the public entity from utilizing criteria 
or methods of administration that deny individuals with disabilities 
access to the public entity's services, programs, and activities or that 
perpetuate the discrimination of another public entity, if both public 
entities are subject to common administrative control or are agencies of 
the same State. The phrase ``criteria or methods of administration'' 
refers to official written policies of the public entity and to the 
actual practices of the public entity. This paragraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny individuals with 
disabilities an effective opportunity to participate. This standard is 
consistent with the interpretation of section 504 by the U.S. Supreme 
Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate 
explained that members of Congress made numerous statements during 
passage of section 504 regarding eliminating architectural barriers, 
providing access to transportation, and eliminating discriminatory 
effects of job qualification procedures. The Court then noted: ``These 
statements would ring hollow if the resulting legislation could not 
rectify the harms resulting from action that discriminated by effect as 
well as by design.'' Id. at 297 (footnote omitted).
    Paragraph (b)(4) specifically applies the prohibition enunciated in 
Sec. 35.130(b)(3) to the process of selecting sites for construction of 
new facilities or selecting existing facilities to be used by the public 
entity. Paragraph (b)(4) does not apply to construction of additional 
buildings at an existing site.

[[Page 570]]

    Paragraph (b)(5) prohibits the public entity, in the selection of 
procurement contractors, from using criteria that subject qualified 
individuals with disabilities to discrimination on the basis of 
disability.
    Paragraph (b)(6) prohibits the public entity from discriminating 
against qualified individuals with disabilities on the basis of 
disability in the granting of licenses or certification. A person is a 
``qualified individual with a disability'' with respect to licensing or 
certification if he or she can meet the essential eligibility 
requirements for receiving the license or certification (see Sec. 
35.104).
    A number of commenters were troubled by the phrase ``essential 
eligibility requirements'' as applied to State licensing requirements, 
especially those for health care professions. Because of the variety of 
types of programs to which the definition of ``qualified individual with 
a disability'' applies, it is not possible to use more specific language 
in the definition. The phrase ``essential eligibility requirements,'' 
however, is taken from the definitions in the regulations implementing 
section 504, so caselaw under section 504 will be applicable to its 
interpretation. In Southeastern Community College v. Davis, 442 U.S. 
397, for example, the Supreme Court held that section 504 does not 
require an institution to ``lower or effect substantial modifications of 
standards to accommodate a handicapped person,'' 442 U.S. at 413, and 
that the school had established that the plaintiff was not ``qualified'' 
because she was not able to ``serve the nursing profession in all 
customary ways,'' id. Whether a particular requirement is ``essential'' 
will, of course, depend on the facts of the particular case.
    In addition, the public entity may not establish requirements for 
the programs or activities of licensees or certified entities that 
subject qualified individuals with disabilities to discrimination on the 
basis of disability. For example, the public entity must comply with 
this requirement when establishing safety standards for the operations 
of licensees. In that case the public entity must ensure that standards 
that it promulgates do not discriminate against the employment of 
qualified individuals with disabilities in an impermissible manner.
    Paragraph (b)(6) does not extend the requirements of the Act or this 
part directly to the programs or activities of licensees or certified 
entities themselves. The programs or activities of licensees or 
certified entities are not themselves programs or activities of the 
public entity merely by virtue of the license or certificate.
    Paragraph (b)(7) is a specific application of the requirement under 
the general prohibitions of discrimination that public entities make 
reasonable modifications in policies, practices, or procedures where 
necessary to avoid discrimination on the basis of disability. Section 
302(b)(2)(A)(ii) of the ADA sets out this requirement specifically for 
public accommodations covered by title III of the Act, and the House 
Judiciary Committee Report directs the Attorney General to include those 
specific requirements in the title II regulation to the extent that they 
do not conflict with the regulations implementing section 504. Judiciary 
report at 52.
    Paragraph (b)(8), a new paragraph not contained in the proposed 
rule, prohibits the imposition or application of eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered. This prohibition is also a specific application 
of the general prohibitions of discrimination and is based on section 
302(b)(2)(A)(i) of the ADA. It prohibits overt denials of equal 
treatment of individuals with disabilities, or establishment of 
exclusive or segregative criteria that would bar individuals with 
disabilities from participation in services, benefits, or activities.
    Paragraph (b)(8) also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public entities may not require that a 
qualified individual with a disability be accompanied by an attendant. A 
public entity is not, however, required to provide attendant care, or 
assistance in toileting, eating, or dressing to individuals with 
disabilities, except in special circumstances, such as where the 
individual is an inmate of a custodial or correctional institution.
    In addition, paragraph (b)(8) prohibits the imposition of criteria 
that ``tend to'' screen out an individual with a disability. This 
concept, which is derived from current regulations under section 504 
(see, e.g., 45 CFR 84.13), makes it discriminatory to impose policies or 
criteria that, while not creating a direct bar to individuals with 
disabilities, indirectly prevent or limit their ability to participate. 
For example, requiring presentation of a driver's license as the sole 
means of identification for purposes of paying by check would violate 
this section in situations where, for example, individuals with severe 
vision impairments or developmental disabilities or epilepsy are 
ineligible to receive a driver's license and the use of an alternative 
means of identification, such as another photo I.D. or credit card, is 
feasible.
    A public entity may, however, impose neutral rules and criteria that 
screen out, or tend to screen out, individuals with disabilities if the 
criteria are necessary for the safe operation of the program in 
question. Examples of safety qualifications that would be justifiable in 
appropriate circumstances

[[Page 571]]

would include eligibility requirements for drivers' licenses, or a 
requirement that all participants in a recreational rafting expedition 
be able to meet a necessary level of swimming proficiency. Safety 
requirements must be based on actual risks and not on speculation, 
stereotypes, or generalizations about individuals with disabilities.
    Paragraph (c) provides that nothing in this part prohibits a public 
entity from providing benefits, services, or advantages to individuals 
with disabilities, or to a particular class of individuals with 
disabilities, beyond those required by this part. It is derived from a 
provision in the section 504 regulations that permits programs conducted 
pursuant to Federal statute or Executive order that are designed to 
benefit only individuals with disabilities or a given class of 
individuals with disabilities to be limited to those individuals with 
disabilities. Section 504 ensures that federally assisted programs are 
made available to all individuals, without regard to disabilities, 
unless the Federal program under which the assistance is provided is 
specifically limited to individuals with disabilities or a particular 
class of individuals with disabilities. Because coverage under this part 
is not limited to federally assisted programs, paragraph (c) has been 
revised to clarify that State and local governments may provide special 
benefits, beyond those required by the nondiscrimination requirements of 
this part, that are limited to individuals with disabilities or a 
particular class of individuals with disabilities, without thereby 
incurring additional obligations to persons without disabilities or to 
other classes of individuals with disabilities.
    Paragraphs (d) and (e), previously referred to in the discussion of 
paragraph (b)(1)(iv), provide that the public entity must administer 
services, programs, and activities in the most integrated setting 
appropriate to the needs of qualified individuals with disabilities, 
i.e., in a setting that enables individuals with disabilities to 
interact with nondisabled persons to the fullest extent possible, and 
that persons with disabilities must be provided the option of declining 
to accept a particular accommodation.
    Some commenters expressed concern that Sec. 35.130(e), which states 
that nothing in the rule requires an individual with a disability to 
accept special accommodations and services provided under the ADA, could 
be interpreted to allow guardians of infants or older people with 
disabilities to refuse medical treatment for their wards. Section 
35.130(e) has been revised to make it clear that paragraph (e) is 
inapplicable to the concern of the commenters. A new paragraph (e)(2) 
has been added stating that nothing in the regulation authorizes the 
representative or guardian of an individual with a disability to decline 
food, water, medical treatment, or medical services for that individual. 
New paragraph (e) clarifies that neither the ADA nor the regulation 
alters current Federal law ensuring the rights of incompetent 
individuals with disabilities to receive food, water, and medical 
treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 
U.S.C. 794); the Developmentally Disabled Assistance and Bill of Rights 
Act (42 U.S.C. 6042).
    Sections 35.130(e) (1) and (2) are based on section 501(d) of the 
ADA. Section 501(d) was designed to clarify that nothing in the ADA 
requires individuals with disabilities to accept special accommodations 
and services for individuals with disabilities that may segregate them:
    The Committee added this section [501(d)] to clarify that nothing in 
the ADA is intended to permit discriminatory treatment on the basis of 
disability, even when such treatment is rendered under the guise of 
providing an accommodation, service, aid or benefit to the individual 
with disability. For example, a blind individual may choose not to avail 
himself or herself of the right to go to the front of a line, even if a 
particular public accommodation has chosen to offer such a modification 
of a policy for blind individuals. Or, a blind individual may choose to 
decline to participate in a special museum tour that allows persons to 
touch sculptures in an exhibit and instead tour the exhibits at his or 
her own pace with the museum's recorded tour.

Judiciary report at 71-72. The Act is not to be construed to mean that 
an individual with disabilities must accept special accommodations and 
services for individuals with disabilities when that individual can 
participate in the regular services already offered. Because medical 
treatment, including treatment for particular conditions, is not a 
special accommodation or service for individuals with disabilities under 
section 501(d), neither the Act nor this part provides affirmative 
authority to suspend such treatment. Section 501(d) is intended to 
clarify that the Act is not designed to foster discrimination through 
mandatory acceptance of special services when other alternatives are 
provided; this concern does not reach to the provision of medical 
treatment for the disabling condition itself.
    Paragraph (f) provides that a public entity may not place a 
surcharge on a particular individual with a disability, or any group of 
individuals with disabilities, to cover any costs of measures required 
to provide that individual or group with the nondiscriminatory treatment 
required by the Act or this part. Such measures may include the 
provision of auxiliary aids or of modifications required to provide 
program accessibility.
    Several commenters asked for clarification that the costs of 
interpreter services may not be assessed as an element of ``court

[[Page 572]]

costs.'' The Department has already recognized that imposition of the 
cost of courtroom interpreter services is impermissible under section 
504. The preamble to the Department's section 504 regulation for its 
federally assisted programs states that where a court system has an 
obligation to provide qualified interpreters, ``it has the corresponding 
responsibility to pay for the services of the interpreters.'' (45 FR 
37630 (June 3, 1980)). Accordingly, recouping the costs of interpreter 
services by assessing them as part of court costs would also be 
prohibited.
    Paragraph (g), which prohibits discrimination on the basis of an 
individual's or entity's known relationship or association with an 
individual with a disability, is based on sections 102(b)(4) and 
302(b)(1)(E) of the ADA. This paragraph was not contained in the 
proposed rule. The individuals covered under this paragraph are any 
individuals who are discriminated against because of their known 
association with an individual with a disability. For example, it would 
be a violation of this paragraph for a local government to refuse to 
allow a theater company to use a school auditorium on the grounds that 
the company had recently performed for an audience of individuals with 
HIV disease.
    This protection is not limited to those who have a familial 
relationship with the individual who has a disability. Congress 
considered, and rejected, amendments that would have limited the scope 
of this provision to specific associations and relationships. Therefore, 
if a public entity refuses admission to a person with cerebral palsy and 
his or her companions, the companions have an independent right of 
action under the ADA and this section.
    During the legislative process, the term ``entity'' was added to 
section 302(b)(1)(E) to clarify that the scope of the provision is 
intended to encompass not only persons who have a known association with 
a person with a disability, but also entities that provide services to 
or are otherwise associated with such individuals. This provision was 
intended to ensure that entities such as health care providers, 
employees of social service agencies, and others who provide 
professional services to persons with disabilities are not subjected to 
discrimination because of their professional association with persons 
with disabilities.

                   Section 35.131 Illegal Use of Drugs

    Section 35.131 effectuates section 510 of the ADA, which clarifies 
the Act's application to people who use drugs illegally. Paragraph (a) 
provides that this part does not prohibit discrimination based on an 
individual's current illegal use of drugs.
    The Act and the regulation distinguish between illegal use of drugs 
and the legal use of substances, whether or not those substances are 
``controlled substances,'' as defined in the Controlled Substances Act 
(21 U.S.C. 812). Some controlled substances are prescription drugs that 
have legitimate medical uses. Section 35.131 does not affect use of 
controlled substances pursuant to a valid prescription under supervision 
by a licensed health care professional, or other use that is authorized 
by the Controlled Substances Act or any other provision of Federal law. 
It does apply to illegal use of those substances, as well as to illegal 
use of controlled substances that are not prescription drugs. The key 
question is whether the individual's use of the substance is illegal, 
not whether the substance has recognized legal uses. Alcohol is not a 
controlled substance, so use of alcohol is not addressed by Sec. 35.131 
(although alcoholics are individuals with disabilities, subject to the 
protections of the statute).
    A distinction is also made between the use of a substance and the 
status of being addicted to that substance. Addiction is a disability, 
and addicts are individuals with disabilities protected by the Act. The 
protection, however, does not extend to actions based on the illegal use 
of the substance. In other words, an addict cannot use the fact of his 
or her addiction as a defense to an action based on illegal use of 
drugs. This distinction is not artificial. Congress intended to deny 
protection to people who engage in the illegal use of drugs, whether or 
not they are addicted, but to provide protection to addicts so long as 
they are not currently using drugs.
    A third distinction is the difficult one between current use and 
former use. The definition of ``current illegal use of drugs'' in Sec. 
35.104, which is based on the report of the Conference Committee, H.R. 
Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990) (hereinafter 
``Conference report''), is ``illegal use of drugs that occurred recently 
enough to justify a reasonable belief that a person's drug use is 
current or that continuing use is a real and ongoing problem.''
    Paragraph (a)(2)(i) specifies that an individual who has 
successfully completed a supervised drug rehabilitation program or has 
otherwise been rehabilitated successfully and who is not engaging in 
current illegal use of drugs is protected. Paragraph (a)(2)(ii) 
clarifies that an individual who is currently participating in a 
supervised rehabilitation program and is not engaging in current illegal 
use of drugs is protected. Paragraph (a)(2)(iii) provides that a person 
who is erroneously regarded as engaging in current illegal use of drugs, 
but who is not engaging in such use, is protected.
    Paragraph (b) provides a limited exception to the exclusion of 
current illegal users of drugs from the protections of the Act. It 
prohibits denial of health services, or services provided in connection 
with drug rehabilitation to an individual on the basis of current

[[Page 573]]

illegal use of drugs, if the individual is otherwise entitled to such 
services. A health care facility, such as a hospital or clinic, may not 
refuse treatment to an individual in need of the services it provides on 
the grounds that the individual is illegally using drugs, but it is not 
required by this section to provide services that it does not ordinarily 
provide. For example, a health care facility that specializes in a 
particular type of treatment, such as care of burn victims, is not 
required to provide drug rehabilitation services, but it cannot refuse 
to treat an individual's burns on the grounds that the individual is 
illegally using drugs.
    Some commenters pointed out that abstention from the use of drugs is 
an essential condition of participation in some drug rehabilitation 
programs, and may be a necessary requirement in inpatient or residential 
settings. The Department believes that this comment is well-founded. 
Congress clearly intended to prohibit exclusion from drug treatment 
programs of the very individuals who need such programs because of their 
use of drugs, but, once an individual has been admitted to a program, 
abstention may be a necessary and appropriate condition to continued 
participation. The final rule therefore provides that a drug 
rehabilitation or treatment program may prohibit illegal use of drugs by 
individuals while they are participating in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure that an 
individual who is participating in a supervised rehabilitation program, 
or who has completed such a program or otherwise been rehabilitated 
successfully is no longer engaging in the illegal use of drugs. The 
section is not to be ``construed to encourage, prohibit, restrict, or 
authorize the conducting of testing for the illegal use of drugs.''
    Paragraph 35.131(c) clarifies that it is not a violation of this 
part to adopt or administer reasonable policies or procedures to ensure 
that an individual who formerly engaged in the illegal use of drugs is 
not currently engaging in illegal use of drugs. Any such policies or 
procedures must, of course, be reasonable, and must be designed to 
identify accurately the illegal use of drugs. This paragraph does not 
authorize inquiries, tests, or other procedures that would disclose use 
of substances that are not controlled substances or are taken under 
supervision by a licensed health care professional, or other uses 
authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.'' A commenter argued that the rule should permit 
testing for lawful use of prescription drugs, but most commenters 
preferred that tests must be limited to unlawful use in order to avoid 
revealing the lawful use of prescription medicine used to treat 
disabilities.

                         Section 35.132 Smoking

    Section 35.132 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking in transportation covered by title II. Some 
commenters argued that this section is too limited in scope, and that 
the regulation should prohibit smoking in all facilities used by public 
entities. The reference to smoking in section 501, however, merely 
clarifies that the Act does not require public entities to accommodate 
smokers by permitting them to smoke in transportation facilities.

            Section 35.133 Maintenance of Accessible Features

    Section 35.133 provides that a public entity shall maintain in 
operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public entity to ensure that accessible routes are

[[Page 574]]

properly maintained and free of obstructions, or failure to arrange 
prompt repair of inoperable elevators or other equipment intended to 
provide access would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further details are not necessary.

                 Section 35.134 Retaliation or Coercion

    Section 35.134 implements section 503 of the ADA, which prohibits 
retaliation against any individual who exercises his or her rights under 
the Act. This section is unchanged from the proposed rule. Paragraph (a) 
of Sec. 35.134 provides that no private or public entity shall 
discriminate against any individual because that individual has 
exercised his or her right to oppose any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the Act or this part.
    Paragraph (b) provides that no private or public entity shall 
coerce, intimidate, threaten, or interfere with any individual in the 
exercise of his or her rights under this part or because that individual 
aided or encouraged any other individual in the exercise or enjoyment of 
any right granted or protected by the Act or this part.
    This section protects not only individuals who allege a violation of 
the Act or this part, but also any individuals who support or assist 
them. This section applies to all investigations or proceedings 
initiated under the Act or this part without regard to the ultimate 
resolution of the underlying allegations. Because this section prohibits 
any act of retaliation or coercion in response to an individual's effort 
to exercise rights established by the Act and this part (or to support 
the efforts of another individual), the section applies not only to 
public entities subject to this part, but also to persons acting in an 
individual capacity or to private entities. For example, it would be a 
violation of the Act and this part for a private individual to harass or 
intimidate an individual with a disability in an effort to prevent that 
individual from attending a concert in a State-owned park. It would, 
likewise, be a violation of the Act and this part for a private entity 
to take adverse action against an employee who appeared as a witness on 
behalf of an individual who sought to enforce the Act.

              Section 35.135 Personal Devices and Services

    The final rule includes a new Sec. 35.135, entitles ``Personal 
devices and services,'' which states that the provision of personal 
devices and services is not required by title II. This new section, 
which serves as a limitation on all of the requirements of the 
regulation, replaces Sec. 35.160(b)(2) of the proposed rule, which 
addressed the issue of personal devices and services explicitly only in 
the context of communications. The personal devices and services 
limitation was intended to have general application in the proposed rule 
in all contexts where it was relevant. The final rule, therefore, 
clarifies this point by including a general provision that will 
explicitly apply not only to auxiliary aids and services but across-the-
board to include other relevant areas such as, for example, 
modifications in policies, practices, and procedures (Sec. 
35.130(b)(7)). The language of Sec. 35.135 parallels an analogous 
provision in the Department's title III regulations (28 CFR 36.306) but 
preserves the explicit reference to ``readers for personal use or 
study'' in Sec. 35.160(b)(2) of the proposed rule. This section does 
not preclude the short-term loan of personal receivers that are part of 
an assistive listening system.

                          Subpart C--Employment

           Section 35.140 Employment Discrimination Prohibited

    Title II of the ADA applies to all activities of public entities, 
including their employment practices. The proposed rule cross-referenced 
the definitions, requirements, and procedures of title I of the ADA, as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1630. This proposal would have resulted in use, under Sec. 35.140, 
of the title I definition of ``employer,'' so that a public entity with 
25 or more employees would have become subject to the requirements of 
Sec. 35.140 on July 26, 1992, one with 15 to 24 employees on July 26, 
1994, and one with fewer than 15 employees would have been excluded 
completely.
    The Department received comments objecting to this approach. The 
commenters asserted that Congress intended to establish 
nondiscrimination requirements for employment by all public entities, 
including those that employ fewer than 15 employees; and that Congress 
intended the employment requirements of title II to become effective at 
the same time that the other requirements of this regulation become 
effective, January 26, 1992. The Department has reexamined the statutory 
language and legislative history of the ADA on this issue and has 
concluded that Congress intended to cover the employment practices of 
all public entities and that the applicable effective date is that of 
title II.

[[Page 575]]

    The statutory language of section 204(b) of the ADA requires the 
Department to issue a regulation that is consistent with the ADA and the 
Department's coordination regulation under section 504, 28 CFR part 41. 
The coordination regulation specifically requires nondiscrimination in 
employment, 28 CFR 41.52-41.55, and does not limit coverage based on 
size of employer. Moreover, under all section 504 implementing 
regulations issued in accordance with the Department's coordination 
regulation, employment coverage under section 504 extends to all 
employers with federally assisted programs or activities, regardless of 
size, and the effective date for those employment requirements has 
always been the same as the effective date for nonemployment 
requirements established in the same regulations. The Department 
therefore concludes that Sec. 35.140 must apply to all public entities 
upon the effective date of this regulation.
    In the proposed regulation the Department cross-referenced the 
regulations implementing title I of the ADA, issued by the Equal 
Employment Opportunity Commission at 29 CFR part 1630, as a compliance 
standard for Sec. 35.140 because, as proposed, the scope of coverage 
and effective date of coverage under title II would have been 
coextensive with title I. In the final regulation this language is 
modified slightly. Subparagraph (1) of new paragraph (b) makes it clear 
that the standards established by the Equal Employment Opportunity 
Commission in 29 CFR part 1630 will be the applicable compliance 
standards if the public entity is subject to title I. If the public 
entity is not covered by title I, or until it is covered by title I, 
subparagraph (b)(2) cross-references section 504 standards for what 
constitutes employment discrimination, as established by the Department 
of Justice in 28 CFR part 41. Standards for title I of the ADA and 
section 504 of the Rehabilitation Act are for the most part identical 
because title I of the ADA was based on requirements set forth in 
regulations implementing section 504.
    The Department, together with the other Federal agencies responsible 
for the enforcement of Federal laws prohibiting employment 
discrimination on the basis of disability, recognizes the potential for 
jurisdictional overlap that exists with respect to coverage of public 
entities and the need to avoid problems related to overlapping coverage. 
The other Federal agencies include the Equal Employment Opportunity 
Commission, which is the agency primarily responsible for enforcement of 
title I of the ADA, the Department of Labor, which is the agency 
responsible for enforcement of section 503 of the Rehabilitation Act of 
1973, and 26 Federal agencies with programs of Federal financial 
assistance, which are responsible for enforcing section 504 in those 
programs. Section 107 of the ADA requires that coordination mechanisms 
be developed in connection with the administrative enforcement of 
complaints alleging discrimination under title I and complaints alleging 
discrimination in employment in violation of the Rehabilitation Act. 
Although the ADA does not specifically require inclusion of employment 
complaints under title II in the coordinating mechanisms required by 
title I, Federal investigations of title II employment complaints will 
be coordinated on a government-wide basis also. The Department is 
currently working with the EEOC and other affected Federal agencies to 
develop effective coordinating mechanisms, and final regulations on this 
issue will be issued on or before January 26, 1992.

                    Subpart D--Program Accessibility

                Section 35.149 Discrimination Prohibited

    Section 35.149 states the general nondiscrimination principle 
underlying the program accessibility requirements of Sec. Sec. 35.150 
and 35.151.

                   Section 35.150 Existing Facilities

    Consistent with section 204(b) of the Act, this regulation adopts 
the program accessibility concept found in the section 504 regulations 
for federally conducted programs or activities (e.g., 28 CFR part 39). 
The concept of ``program accessibility'' was first used in the section 
504 regulation adopted by the Department of Health, Education, and 
Welfare for its federally assisted programs and activities in 1977. It 
allowed recipients to make their federally assisted programs and 
activities available to individuals with disabilities without extensive 
retrofitting of their existing buildings and facilities, by offering 
those programs through alternative methods. Program accessibility has 
proven to be a useful approach and was adopted in the regulations issued 
for programs and activities conducted by Federal Executive agencies. The 
Act provides that the concept of program access will continue to apply 
with respect to facilities now in existence, because the cost of 
retrofitting existing facilities is often prohibitive.
    Section 35.150 requires that each service, program, or activity 
conducted by a public entity, when viewed in its entirety, be readily 
accessible to and usable by individuals with disabilities. The 
regulation makes clear, however, that a public entity is not required to 
make each of its existing facilities accessible (Sec. 35.150(a)(1)). 
Unlike title III of the Act, which requires public accommodations to 
remove architectural barriers where such removal is ``readily 
achievable,'' or to provide goods and services through alternative 
methods, where those methods are ``readily achievable,'' title II 
requires a public entity to make its programs accessible in all cases, 
except where to do so would result

[[Page 576]]

in a fundamental alteration in the nature of the program or in undue 
financial and administrative burdens. Congress intended the ``undue 
burden'' standard in title II to be significantly higher than the 
``readily achievable'' standard in title III. Thus, although title II 
may not require removal of barriers in some cases where removal would be 
required under title III, the program access requirement of title II 
should enable individuals with disabilities to participate in and 
benefit from the services, programs, or activities of public entities in 
all but the most unusual cases.
    Paragraph (a)(2), which establishes a special limitation on the 
obligation to ensure program accessibility in historic preservation 
programs, is discussed below in connection with paragraph (b).
    Paragraph (a)(3), which is taken from the section 504 regulations 
for federally conducted programs, generally codifies case law that 
defines the scope of the public entity's obligation to ensure program 
accessibility. This paragraph provides that, in meeting the program 
accessibility requirement, a public entity is not required to take any 
action that would result in a fundamental alteration in the nature of 
its service, program, or activity or in undue financial and 
administrative burdens. A similar limitation is provided in Sec. 
35.164.
    This paragraph does not establish an absolute defense; it does not 
relieve a public entity of all obligations to individuals with 
disabilities. Although a public entity is not required to take actions 
that would result in a fundamental alteration in the nature of a 
service, program, or activity or in undue financial and administrative 
burdens, it nevertheless must take any other steps necessary to ensure 
that individuals with disabilities receive the benefits or services 
provided by the public entity.
    It is the Department's view that compliance with Sec. 35.150(a), 
like compliance with the corresponding provisions of the section 504 
regulations for federally conducted programs, would in most cases not 
result in undue financial and administrative burdens on a public entity. 
In determining whether financial and administrative burdens are undue, 
all public entity resources available for use in the funding and 
operation of the service, program, or activity should be considered. The 
burden of proving that compliance with paragraph (a) of Sec. 35.150 
would fundamentally alter the nature of a service, program, or activity 
or would result in undue financial and administrative burdens rests with 
the public entity.
    The decision that compliance would result in such alteration or 
burdens must be made by the head of the public entity or his or her 
designee and must be accompanied by a written statement of the reasons 
for reaching that conclusion. The Department recognizes the difficulty 
of identifying the official responsible for this determination, given 
the variety of organizational forms that may be taken by public entities 
and their components. The intention of this paragraph is that the 
determination must be made by a high level official, no lower than a 
Department head, having budgetary authority and responsibility for 
making spending decisions.
    Any person who believes that he or she or any specific class of 
persons has been injured by the public entity head's decision or failure 
to make a decision may file a complaint under the compliance procedures 
established in subpart F.
    Paragraph (b)(1) sets forth a number of means by which program 
accessibility may be achieved, including redesign of equipment, 
reassignment of services to accessible buildings, and provision of 
aides.
    The Department wishes to clarify that, consistent with longstanding 
interpretation of section 504, carrying an individual with a disability 
is considered an ineffective and therefore an unacceptable method for 
achieving program accessibility. Department of Health, Education, and 
Welfare, Office of Civil Rights, Policy Interpretation No. 4, 43 FR 
36035 (August 14, 1978). Carrying will be permitted only in manifestly 
exceptional cases, and only if all personnel who are permitted to 
participate in carrying an individual with a disability are formally 
instructed on the safest and least humiliating means of carrying. 
``Manifestly exceptional'' cases in which carrying would be permitted 
might include, for example, programs conducted in unique facilities, 
such as an oceanographic vessel, for which structural changes and 
devices necessary to adapt the facility for use by individuals with 
mobility impairments are unavailable or prohibitively expensive. 
Carrying is not permitted as an alternative to structural modifications 
such as installation of a ramp or a chairlift.
    In choosing among methods, the public entity shall give priority 
consideration to those that will be consistent with provision of 
services in the most integrated setting appropriate to the needs of 
individuals with disabilities. Structural changes in existing facilities 
are required only when there is no other feasible way to make the public 
entity's program accessible. (It should be noted that ``structural 
changes'' include all physical changes to a facility; the term does not 
refer only to changes to structural features, such as removal of or 
alteration to a load-bearing structural member.) The requirements of 
Sec. 35.151 for alterations apply to structural changes undertaken to 
comply with this section. The public entity may comply with the program 
accessibility requirement by delivering services at alternate accessible 
sites or making home visits as appropriate.

[[Page 577]]

                     Historic Preservation Programs

    In order to avoid possible conflict between the congressional 
mandates to preserve historic properties, on the one hand, and to 
eliminate discrimination against individuals with disabilities on the 
other, paragraph (a)(2) provides that a public entity is not required to 
take any action that would threaten or destroy the historic significance 
of an historic property. The special limitation on program accessibility 
set forth in paragraph (a)(2) is applicable only to historic 
preservation programs, as defined in Sec. 35.104, that is, programs 
that have preservation of historic properties as a primary purpose. 
Narrow application of the special limitation is justified because of the 
inherent flexibility of the program accessibility requirement. Where 
historic preservation is not a primary purpose of the program, the 
public entity is not required to use a particular facility. It can 
relocate all or part of its program to an accessible facility, make home 
visits, or use other standard methods of achieving program accessibility 
without making structural alterations that might threaten or destroy 
significant historic features of the historic property. Thus, government 
programs located in historic properties, such as an historic State 
capitol, are not excused from the requirement for program access.
    Paragraph (a)(2), therefore, will apply only to those programs that 
uniquely concern the preservation and experience of the historic 
property itself. Because the primary benefit of an historic preservation 
program is the experience of the historic property, paragraph (b)(2) 
requires the public entity to give priority to methods of providing 
program accessibility that permit individuals with disabilities to have 
physical access to the historic property. This priority on physical 
access may also be viewed as a specific application of the general 
requirement that the public entity administer programs in the most 
integrated setting appropriate to the needs of qualified individuals 
with disabilities (Sec. 35.130(d)). Only when providing physical access 
would threaten or destroy the historic significance of an historic 
property, or would result in a fundamental alteration in the nature of 
the program or in undue financial and administrative burdens, may the 
public entity adopt alternative methods for providing program 
accessibility that do not ensure physical access. Examples of some 
alternative methods are provided in paragraph (b)(2).

                              Time Periods

    Paragraphs (c) and (d) establish time periods for complying with the 
program accessibility requirement. Like the regulations for federally 
assisted programs (e.g., 28 CFR 41.57(b)), paragraph (c) requires the 
public entity to make any necessary structural changes in facilities as 
soon as practicable, but in no event later than three years after the 
effective date of this regulation.
    The proposed rule provided that, aside from structural changes, all 
other necessary steps to achieve compliance with this part must be taken 
within sixty days. The sixty day period was taken from regulations 
implementing section 504, which generally were effective no more than 
thirty days after publication. Because this regulation will not be 
effective until January 26, 1992, the Department has concluded that no 
additional transition period for non-structural changes is necessary, so 
the sixty day period has been omitted in the final rule. Of course, this 
section does not reduce or eliminate any obligations that are already 
applicable to a public entity under section 504.
    Where structural modifications are required, paragraph (d) requires 
that a transition plan be developed by an entity that employs 50 or more 
persons, within six months of the effective date of this regulation. The 
legislative history of title II of the ADA makes it clear that, under 
title II, ``local and state governments are required to provide curb 
cuts on public streets.'' Education and Labor report at 84. As the 
rationale for the provision of curb cuts, the House report explains, 
``The employment, transportation, and public accommodation sections of * 
* * (the ADA) would be meaningless if people who use wheelchairs were 
not afforded the opportunity to travel on and between the streets.'' Id. 
Section 35.151(e), which establishes accessibility requirements for new 
construction and alterations, requires that all newly constructed or 
altered streets, roads, or highways must contain curb ramps or other 
sloped areas at any intersection having curbs or other barriers to entry 
from a street level pedestrian walkway, and all newly constructed or 
altered street level pedestrian walkways must have curb ramps or other 
sloped areas at intersections to streets, roads, or highways. A new 
paragraph (d)(2) has been added to the final rule to clarify the 
application of the general requirement for program accessibility to the 
provision of curb cuts at existing crosswalks. This paragraph requires 
that the transition plan include a schedule for providing curb ramps or 
other sloped areas at existing pedestrian walkways, giving priority to 
walkways serving entities covered by the Act, including State and local 
government offices and facilities, transportation, public 
accommodations, and employers, followed by walkways serving other areas. 
Pedestrian ``walkways'' include locations where access is required for 
use of public transportation, such as bus stops that are not located at 
intersections or crosswalks.
    Similarly, a public entity should provide an adequate number of 
accessible parking

[[Page 578]]

spaces in existing parking lots or garages over which it has 
jurisdiction.
    Paragraph (d)(3) provides that, if a public entity has already 
completed a transition plan required by a regulation implementing 
section 504, the transition plan required by this part will apply only 
to those policies and practices that were not covered by the previous 
transition plan. Some commenters suggested that the transition plan 
should include all aspects of the public entity's operations, including 
those that may have been covered by a previous transition plan under 
section 504. The Department believes that such a duplicative requirement 
would be inappropriate. Many public entities may find, however, that it 
will be simpler to include all of their operations in the transition 
plan than to attempt to identify and exclude specifically those that 
were addressed in a previous plan. Of course, entities covered under 
section 504 are not shielded from their obligations under that statute 
merely because they are included under the transition plan developed 
under this section.

             Section 35.151 New Construction and Alterations

    Section 35.151 provides that those buildings that are constructed or 
altered by, on behalf of, or for the use of a public entity shall be 
designed, constructed, or altered to be readily accessible to and usable 
by individuals with disabilities if the construction was commenced after 
the effective date of this part. Facilities under design on that date 
will be governed by this section if the date that bids were invited 
falls after the effective date. This interpretation is consistent with 
Federal practice under section 504.
    Section 35.151(c) establishes two standards for accessible new 
construction and alteration. Under paragraph (c), design, construction, 
or alteration of facilities in conformance with the Uniform Federal 
Accessibility Standards (UFAS) or with the Americans with Disabilities 
Act Accessibility Guidelines for Buildings and Facilities (hereinafter 
ADAAG) shall be deemed to comply with the requirements of this section 
with respect to those facilities except that, if ADAAG is chosen, the 
elevator exemption contained at Sec. Sec. 36.40l(d) and 36.404 does not 
apply. ADAAG is the standard for private buildings and was issued as 
guidelines by the Architectural and Transportation Barriers Compliance 
Board (ATBCB) under title III of the ADA. It has been adopted by the 
Department of Justice and is published as appendix A to the Department's 
title III rule in today's Federal Register. Departures from particular 
requirements of these standards by the use of other methods shall be 
permitted when it is clearly evident that equivalent access to the 
facility or part of the facility is thereby provided. Use of two 
standards is a departure from the proposed rule.
    The proposed rule adopted UFAS as the only interim accessibility 
standard because that standard was referenced by the regulations 
implementing section 504 of the Rehabilitation Act promulgated by most 
Federal funding agencies. It is, therefore, familiar to many State and 
local government entities subject to this rule. The Department, however, 
received many comments objecting to the adoption of UFAS. Commenters 
pointed out that, except for the elevator exemption, UFAS is not as 
stringent as ADAAG. Others suggested that the standard should be the 
same to lessen confusion.
    Section 204(b) of the Act states that title II regulations must be 
consistent not only with section 504 regulations but also with ``this 
Act.'' Based on this provision, the Department has determined that a 
public entity should be entitled to choose to comply either with ADAAG 
or UFAS.
    Public entities who choose to follow ADAAG, however, are not 
entitled to the elevator exemption contained in title III of the Act and 
implemented in the title III regulation at Sec. 36.401(d) for new 
construction and Sec. 36.404 for alterations. Section 303(b) of title 
III states that, with some exceptions, elevators are not required in 
facilities that are less than three stories or have less than 3000 
square feet per story. The section 504 standard, UFAS, contains no such 
exemption. Section 501 of the ADA makes clear that nothing in the Act 
may be construed to apply a lesser standard to public entities than the 
standards applied under section 504. Because permitting the elevator 
exemption would clearly result in application of a lesser standard than 
that applied under section 504, paragraph (c) states that the elevator 
exemption does not apply when public entities choose to follow ADAAG. 
Thus, a two-story courthouse, whether built according to UFAS or ADAAG, 
must be constructed with an elevator. It should be noted that Congress 
did not include an elevator exemption for public transit facilities 
covered by subtitle B of title II, which covers public transportation 
provided by public entities, providing further evidence that Congress 
intended that public buildings have elevators.
    Section 504 of the ADA requires the ATBCB to issue supplemental 
Minimum Guidelines and Requirements for Accessible Design of buildings 
and facilities subject to the Act, including title II. Section 204(c) of 
the ADA provides that the Attorney General shall promulgate regulations 
implementing title II that are consistent with the ATBCB's ADA 
guidelines. The ATBCB has announced its intention to issue title II 
guidelines in the future. The Department anticipates that, after the 
ATBCB's title II guidelines have been published, this rule will be 
amended to adopt new accessibility standards consistent with

[[Page 579]]

the ATBCB's rulemaking. Until that time, however, public entities will 
have a choice of following UFAS or ADAAG, without the elevator 
exemption.
    Existing buildings leased by the public entity after the effective 
date of this part are not required by the regulation to meet 
accessibility standards simply by virtue of being leased. They are 
subject, however, to the program accessibility standard for existing 
facilities in Sec. 35.150. To the extent the buildings are newly 
constructed or altered, they must also meet the new construction and 
alteration requirements of Sec. 35.151.
    The Department received many comments urging that the Department 
require that public entities lease only accessible buildings. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Section 
204(b) of the Act states that, in the area of ``program accessibility, 
existing facilities,'' the title II regulations must be consistent with 
section 504 regulations. Thus, the Department has adopted the section 
504 principles for these types of leased buildings. Unlike the 
construction of new buildings where architectural barriers can be 
avoided at little or no cost, the application of new construction 
standards to an existing building being leased raises the same prospect 
of retrofitting buildings as the use of an existing Federal facility, 
and the same program accessibility standard should apply to both owned 
and leased existing buildings. Similarly, requiring that public entities 
only lease accessible space would significantly restrict the options of 
State and local governments in seeking leased space, which would be 
particularly burdensome in rural or sparsely populated areas.
    On the other hand, the more accessible the leased space is, the 
fewer structural modifications will be required in the future for 
particular employees whose disabilities may necessitate barrier removal 
as a reasonable accommodation. Pursuant to the requirements for leased 
buildings contained in the Minimum Guidelines and Requirements for 
Accessible Design published under the Architectural Barriers Act by the 
ATBCB, 36 CFR 1190.34, the Federal Government may not lease a building 
unless it contains (1) One accessible route from an accessible entrance 
to those areas in which the principal activities for which the building 
is leased are conducted, (2) accessible toilet facilities, and (3) 
accessible parking facilities, if a parking area is included within the 
lease (36 CFR 1190.34). Although these requirements are not applicable 
to buildings leased by public entities covered by this regulation, such 
entities are encouraged to look for the most accessible space available 
to lease and to attempt to find space complying at least with these 
minimum Federal requirements.
    Section 35.151(d) gives effect to the intent of Congress, expressed 
in section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act, 36 CFR 800.9, 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. A definition of ``historic property,'' 
drawn from section 504 of the ADA, has been added to Sec. 35.104 to 
clarify that the term applies to those properties listed or eligible for 
listing in the National Register of Historic Places, or properties 
designated as historic under State or local law.
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions established by UFAS and ADAAG. Therefore, paragraph (d)(1) of 
Sec. 35.151 has been revised to clearly state that alterations to 
historic properties shall comply, to the maximum extent feasible, with 
section 4.1.7 of UFAS or section 4.1.7 of ADAAG. Paragraph (d)(2) has 
been revised to provide that, if it has been determined under the 
procedures established in UFAS and ADAAG that it is not feasible to 
provide physical access to an historic property in a manner that will 
not threaten or destroy the historic significance of the property, 
alternative methods of access shall be provided pursuant to the 
requirements of Sec. 35.150.
    In response to comments, the Department has added to the final rule 
a new paragraph (e) setting out the requirements of Sec. 36.151 as 
applied to curb ramps. Paragraph (e) is taken from the statement 
contained in the preamble to the proposed rule that all newly 
constructed or altered streets, roads, and highways must contain curb 
ramps at any intersection having curbs or other barriers to entry from a 
street level pedestrian walkway, and that all newly constructed or 
altered street level pedestrian walkways must have curb ramps at 
intersections to streets, roads, or highways.

[[Page 580]]

                        Subpart E--Communications

                         Section 35.160 General

    Section 35.160 requires the public entity to take such steps as may 
be necessary to ensure that communications with applicants, 
participants, and members of the public with disabilities are as 
effective as communications with others.
    Paragraph (b)(1) requires the public entity to furnish appropriate 
auxiliary aids and services when necessary to afford an individual with 
a disability an equal opportunity to participate in, and enjoy the 
benefits of, the public entity's service, program, or activity. The 
public entity must provide an opportunity for individuals with 
disabilities to request the auxiliary aids and services of their choice. 
This expressed choice shall be given primary consideration by the public 
entity (Sec. 35.160(b)(2)). The public entity shall honor the choice 
unless it can demonstrate that another effective means of communication 
exists or that use of the means chosen would not be required under Sec. 
35.164.
    Deference to the request of the individual with a disability is 
desirable because of the range of disabilities, the variety of auxiliary 
aids and services, and different circumstances requiring effective 
communication. For instance, some courtrooms are now equipped for 
``computer-assisted transcripts,'' which allow virtually instantaneous 
transcripts of courtroom argument and testimony to appear on displays. 
Such a system might be an effective auxiliary aid or service for a 
person who is deaf or has a hearing loss who uses speech to communicate, 
but may be useless for someone who uses sign language.
    Although in some circumstances a notepad and written materials may 
be sufficient to permit effective communication, in other circumstances 
they may not be sufficient. For example, a qualified interpreter may be 
necessary when the information being communicated is complex, or is 
exchanged for a lengthy period of time. Generally, factors to be 
considered in determining whether an interpreter is required include the 
context in which the communication is taking place, the number of people 
involved, and the importance of the communication.
    Several commenters asked that the rule clarify that the provision of 
readers is sometimes necessary to ensure access to a public entity's 
services, programs or activities. Reading devices or readers should be 
provided when necessary for equal participation and opportunity to 
benefit from any governmental service, program, or activity, such as 
reviewing public documents, examining demonstrative evidence, and 
filling out voter registration forms or forms needed to receive public 
benefits. The importance of providing qualified readers for examinations 
administered by public entities is discussed under Sec. 35.130. Reading 
devices and readers are appropriate auxiliary aids and services where 
necessary to permit an individual with a disability to participate in or 
benefit from a service, program, or activity.
    Section 35.160(b)(2) of the proposed rule, which provided that a 
public entity need not furnish individually prescribed devices, readers 
for personal use or study, or other devices of a personal nature, has 
been deleted in favor of a new section in the final rule on personal 
devices and services (see Sec. 35.135).
    In response to comments, the term ``auxiliary aids and services'' is 
used in place of ``auxiliary aids'' in the final rule. This phrase 
better reflects the range of aids and services that may be required 
under this section.
    A number of comments raised questions about the extent of a public 
entity's obligation to provide access to television programming for 
persons with hearing impairments. Television and videotape programming 
produced by public entities are covered by this section. Access to audio 
portions of such programming may be provided by closed captioning.

      Section 35.161 Telecommunication Devices for the Deaf (TDD's)

    Section 35.161 requires that, where a public entity communicates 
with applicants and beneficiaries by telephone, TDD's or equally 
effective telecommunication systems be used to communicate with 
individuals with impaired speech or hearing.
    Problems arise when a public entity which does not have a TDD needs 
to communicate with an individual who uses a TDD or vice versa. Title IV 
of the ADA addresses this problem by requiring establishment of 
telephone relay services to permit communications between individuals 
who communicate by TDD and individuals who communicate by the telephone 
alone. The relay services required by title IV would involve a relay 
operator using both a standard telephone and a TDD to type the voice 
messages to the TDD user and read the TDD messages to the standard 
telephone user.
    Section 204(b) of the ADA requires that the regulation implementing 
title II with respect to communications be consistent with the 
Department's regulation implementing section 504 for its federally 
conducted programs and activities at 28 CFR part 39. Section 35.161, 
which is taken from Sec. 39.160(a)(2) of that regulation, requires the 
use of TDD's or equally effective telecommunication systems for 
communication with people who use TDD's. Of course, where relay 
services, such as those required by title IV of the ADA are available, a 
public entity may use those services to meet the requirements of this 
section.
    Many commenters were concerned that public entities should not rely 
heavily on the

[[Page 581]]

establishment of relay services. The commenters explained that while 
relay services would be of vast benefit to both public entities and 
individuals who use TDD's, the services are not sufficient to provide 
access to all telephone services. First, relay systems do not provide 
effective access to the increasingly popular automated systems that 
require the caller to respond by pushing a button on a touch tone phone. 
Second, relay systems cannot operate fast enough to convey messages on 
answering machines, or to permit a TDD user to leave a recorded message. 
Third, communication through relay systems may not be appropriate in 
cases of crisis lines pertaining to rape, domestic violence, child 
abuse, and drugs. The Department believes that it is more appropriate 
for the Federal Communications Commission to address these issues in its 
rulemaking under title IV.
    Some commenters requested that those entities with frequent contacts 
with clients who use TDD's have on-site TDD's to provide for direct 
communication between the entity and the individual. The Department 
encourages those entities that have extensive telephone contact with the 
public such as city halls, public libraries, and public aid offices, to 
have TDD's to insure more immediate access. Where the provision of 
telephone service is a major function of the entity, TDD's should be 
available.

               Section 35.162 Telephone Emergency Services

    Many public entities provide telephone emergency services by which 
individuals can seek immediate assistance from police, fire, ambulance, 
and other emergency services. These telephone emergency services--
including ``911'' services--are clearly an important public service 
whose reliability can be a matter of life or death. The legislative 
history of title II specifically reflects congressional intent that 
public entities must ensure that telephone emergency services, including 
911 services, be accessible to persons with impaired hearing and speech 
through telecommunication technology (Conference report at 67; Education 
and Labor report at 84-85).
    Proposed Sec. 35.162 mandated that public entities provide 
emergency telephone services to persons with disabilities that are 
``functionally equivalent'' to voice services provided to others. Many 
commenters urged the Department to revise the section to make clear that 
direct access to telephone emergency services is required by title II of 
the ADA as indicated by the legislative history (Conference report at 
67-68; Education and Labor report at 85). In response, the final rule 
mandates ``direct access,'' instead of ``access that is functionally 
equivalent'' to that provided to all other telephone users. Telephone 
emergency access through a third party or through a relay service would 
not satisfy the requirement for direct access.
    Several commenters asked about a separate seven-digit emergency call 
number for the 911 services. The requirement for direct access disallows 
the use of a separate seven-digit number where 911 service is available. 
Separate seven-digit emergency call numbers would be unfamiliar to many 
individuals and also more burdensome to use. A standard emergency 911 
number is easier to remember and would save valuable time spent in 
searching in telephone books for a local seven-digit emergency number.
    Many commenters requested the establishment of minimum standards of 
service (e.g., the quantity and location of TDD's and computer modems 
needed in a given emergency center). Instead of establishing these 
scoping requirements, the Department has established a performance 
standard through the mandate for direct access.
    Section 35.162 requires public entities to take appropriate steps, 
including equipping their emergency systems with modern technology, as 
may be necessary to promptly receive and respond to a call from users of 
TDD's and computer modems. Entities are allowed the flexibility to 
determine what is the appropriate technology for their particular needs. 
In order to avoid mandating use of particular technologies that may 
become outdated, the Department has eliminated the references to the 
Baudot and ASCII formats in the proposed rule.
    Some commenters requested that the section require the installation 
of a voice amplification device on the handset of the dispatcher's 
telephone to amplify the dispatcher's voice. In an emergency, a person 
who has a hearing loss may be using a telephone that does not have an 
amplification device. Installation of speech amplification devices on 
the handsets of the dispatchers' telephones would respond to that 
situation. The Department encourages their use.
    Several commenters emphasized the need for proper maintenance of 
TDD's used in telephone emergency services. Section 35.133, which 
mandates maintenance of accessible features, requires public entities to 
maintain in operable working condition TDD's and other devices that 
provide direct access to the emergency system.

                 Section 35.163 Information and Signage

    Section 35.163(a) requires the public entity to provide information 
to individuals with disabilities concerning accessible services, 
activities, and facilities. Paragraph (b) requires the public entity to 
provide signage at all inaccessible entrances to each of its facilities 
that directs users to an accessible entrance or to a location with 
information about accessible facilities.
    Several commenters requested that, where TDD-equipped pay phones or 
portable TDD's

[[Page 582]]

exist, clear signage should be posted indicating the location of the 
TDD. The Department believes that this is required by paragraph (a). In 
addition, the Department recommends that, in large buildings that house 
TDD's, directional signage indicating the location of available TDD's 
should be placed adjacent to banks of telephones that do not contain a 
TDD.

                          Section 35.164 Duties

    Section 35.164, like paragraph (a)(3) of Sec. 35.150, is taken from 
the section 504 regulations for federally conducted programs. Like 
paragraph (a)(3), it limits the obligation of the public entity to 
ensure effective communication in accordance with Davis and the circuit 
court opinions interpreting it. It also includes specific requirements 
for determining the existence of undue financial and administrative 
burdens. The preamble discussion of Sec. 35.150(a) regarding that 
determination is applicable to this section and further explains the 
public entity's obligation to comply with Sec. Sec. 35.160-35.164. 
Because of the essential nature of the services provided by telephone 
emergency systems, the Department assumes that Sec. 35.164 will rarely 
be applied to Sec. 35.162.

                    Subpart F--Compliance Procedures

    Subpart F sets out the procedures for administrative enforcement of 
this part. Section 203 of the Act provides that the remedies, 
procedures, and rights set forth in section 505 of the Rehabilitation 
Act of 1973 (29 U.S.C. 794a) for enforcement of section 504 of the 
Rehabilitation Act, which prohibits discrimination on the basis of 
handicap in programs and activities that receive Federal financial 
assistance, shall be the remedies, procedures, and rights for 
enforcement of title II. Section 505, in turn, incorporates by reference 
the remedies, procedures, and rights set forth in title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Title VI, which 
prohibits discrimination on the basis of race, color, or national origin 
in federally assisted programs, is enforced by the Federal agencies that 
provide the Federal financial assistance to the covered programs and 
activities in question. If voluntary compliance cannot be achieved, 
Federal agencies enforce title VI either by the termination of Federal 
funds to a program that is found to discriminate, following an 
administrative hearing, or by a referral to this Department for judicial 
enforcement.
    Title II of the ADA extended the requirements of section 504 to all 
services, programs, and activities of State and local governments, not 
only those that receive Federal financial assistance. The House 
Committee on Education and Labor explained the enforcement provisions as 
follows:
    It is the Committee's intent that administrative enforcement of 
section 202 of the legislation should closely parallel the Federal 
government's experience with section 504 of the Rehabilitation Act of 
1973. The Attorney General should use section 504 enforcement procedures 
and the Department's coordination role under Executive Order 12250 as 
models for regulation in this area.
    The Committee envisions that the Department of Justice will identify 
appropriate Federal agencies to oversee compliance activities for State 
and local governments. As with section 504, these Federal agencies, 
including the Department of Justice, will receive, investigate, and 
where possible, resolve complaints of discrimination. If a Federal 
agency is unable to resolve a complaint by voluntary means, * * * the 
major enforcement sanction for the Federal government will be referral 
of cases by these Federal agencies to the Department of Justice.
    The Department of Justice may then proceed to file suits in Federal 
district court. As with section 504, there is also a private right of 
action for persons with disabilities, which includes the full panoply of 
remedies. Again, consistent with section 504, it is not the Committee's 
intent that persons with disabilities need to exhaust Federal 
administrative remedies before exercising their private right of action.

Education & Labor report at 98. See also S. Rep. No. 116, 101st Cong., 
1st Sess., at 57-58 (1989).
    Subpart F effectuates the congressional intent by deferring to 
section 504 procedures where those procedures are applicable, that is, 
where a Federal agency has jurisdiction under section 504 by virtue of 
its provision of Federal financial assistance to the program or activity 
in which the discrimination is alleged to have occurred. Deferral to the 
504 procedures also makes the sanction of fund termination available 
where necessary to achieve compliance. Because the Civil Rights 
Restoration Act (Pub. L. 100-259) extended the application of section 
504 to all of the operations of the public entity receiving the Federal 
financial assistance, many activities of State and local governments are 
already covered by section 504. The procedures in subpart F apply to 
complaints concerning services, programs, and activities of public 
entities that are covered by the ADA.
    Subpart G designates the Federal agencies responsible for enforcing 
the ADA with respect to specific components of State and local 
government. It does not, however, displace existing jurisdiction under 
section 504 of the various funding agencies. Individuals may still file 
discrimination complaints against recipients of Federal financial 
assistance with the agencies that provide that assistance, and the 
funding agencies will continue to process those complaints under

[[Page 583]]

their existing procedures for enforcing section 504. The substantive 
standards adopted in this part for title II of the ADA are generally the 
same as those required under section 504 for federally assisted 
programs, and public entities covered by the ADA are also covered by the 
requirements of section 504 to the extent that they receive Federal 
financial assistance. To the extent that title II provides greater 
protection to the rights of individuals with disabilities, however, the 
funding agencies will also apply the substantive requirements 
established under title II and this part in processing complaints 
covered by both this part and section 504, except that fund termination 
procedures may be used only for violations of section 504.
    Subpart F establishes the procedures to be followed by the agencies 
designated in subpart G for processing complaints against State and 
local government entities when the designated agency does not have 
jurisdiction under section 504.

                        Section 35.170 Complaints

    Section 35.170 provides that any individual who believes that he or 
she or a specific class of individuals has been subjected to 
discrimination on the basis of disability by a public entity may, by 
himself or herself or by an authorized representative, file a complaint 
under this part within 180 days of the date of the alleged 
discrimination, unless the time for filing is extended by the agency for 
good cause. Although Sec. 35.107 requires public entities that employ 
50 or more persons to establish grievance procedures for resolution of 
complaints, exhaustion of those procedures is not a prerequisite to 
filing a complaint under this section. If a complainant chooses to 
follow the public entity's grievance procedures, however, any resulting 
delay may be considered good cause for extending the time allowed for 
filing a complaint under this part.
    Filing the complaint with any Federal agency will satisfy the 
requirement for timely filing. As explained below, a complaint filed 
with an agency that has jurisdiction under section 504 will be processed 
under the agency's procedures for enforcing section 504.
    Some commenters objected to the complexity of allowing complaints to 
be filed with different agencies. The multiplicity of enforcement 
jurisdiction is the result of following the statutorily mandated 
enforcement scheme. The Department has, however, attempted to simplify 
procedures for complainants by making the Federal agency that receives 
the complaint responsible for referring it to an appropriate agency.
    The Department has also added a new paragraph (c) to this section 
providing that a complaint may be filed with any agency designated under 
subpart G of this part, or with any agency that provides funding to the 
public entity that is the subject of the complaint, or with the 
Department of Justice. Under Sec. 35.171(a)(2), the Department of 
Justice will refer complaints for which it does not have jurisdiction 
under section 504 to an agency that does have jurisdiction under section 
504, or to the agency designated under subpart G as responsible for 
complaints filed against the public entity that is the subject of the 
complaint or in the case of an employment complaint that is also subject 
to title I of the Act, to the Equal Employment Opportunity Commission. 
Complaints filed with the Department of Justice may be sent to the 
Coordination and Review Section, P.O. Box 66118, Civil Rights Division, 
U.S. Department of Justice, Washington, DC 20035-6118.

                 Section 35.171 Acceptance of Complaints

    Section 35.171 establishes procedures for determining jurisdiction 
and responsibility for processing complaints against public entities. 
The final rule provides complainants an opportunity to file with the 
Federal funding agency of their choice. If that agency does not have 
jurisdiction under section 504, however, and is not the agency 
designated under subpart G as responsible for that public entity, the 
agency must refer the complaint to the Department of Justice, which will 
be responsible for referring it either to an agency that does have 
jurisdiction under section 504 or to the appropriate designated agency, 
or in the case of an employment complaint that is also subject to title 
I of the Act, to the Equal Employment Opportunity Commission.
    Whenever an agency receives a complaint over which it has 
jurisdiction under section 504, it will process the complaint under its 
section 504 procedures. When the agency designated under subpart G 
receives a complaint for which it does not have jurisdiction under 
section 504, it will treat the complaint as an ADA complaint under the 
procedures established in this subpart.
    Section 35.171 also describes agency responsibilities for the 
processing of employment complaints. As described in connection with 
Sec. 35.140, additional procedures regarding the coordination of 
employment complaints will be established in a coordination regulation 
issued by DOJ and EEOC. Agencies with jurisdiction under section 504 for 
complaints alleging employment discrimination also covered by title I 
will follow the procedures established by the coordination regulation 
for those complaints. Complaints covered by title I but not section 504 
will be referred to the EEOC, and complaints covered by this part but 
not title I will be processed under the procedures in this part.

[[Page 584]]

                 Section 35.172 Resolution of Complaints

    Section 35.172 requires the designated agency to either resolve the 
complaint or issue to the complainant and the public entity a Letter of 
Findings containing findings of fact and conclusions of law and a 
description of a remedy for each violation found.
    The Act requires the Department of Justice to establish 
administrative procedures for resolution of complaints, but does not 
require complainants to exhaust these administrative remedies. The 
Committee Reports make clear that Congress intended to provide a private 
right of action with the full panoply of remedies for individual victims 
of discrimination. Because the Act does not require exhaustion of 
administrative remedies, the complainant may elect to proceed with a 
private suit at any time.

             Section 35.173 Voluntary Compliance Agreements

    Section 35.173 requires the agency to attempt to resolve all 
complaints in which it finds noncompliance through voluntary compliance 
agreements enforceable by the Attorney General.

                         Section 35.174 Referral

    Section 35.174 provides for referral of the matter to the Department 
of Justice if the agency is unable to obtain voluntary compliance.

                     Section 35.175 Attorney's Fees

    Section 35.175 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)

         Section 35.176 Alternative Means of Dispute Resolution

    Section 35.176 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution.

     Section 35.177 Effect of Unavailability of Technical Assistance

    Section 35.177 explains that, as provided in section 506(e) of the 
Act, a public entity is not excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance.

                      Section 35.178 State Immunity

    Section 35.178 restates the provision of section 502 of the Act that 
a State is not immune under the eleventh amendment to the Constitution 
of the United States from an action in Federal or State court for 
violations of the Act, and that the same remedies are available for any 
such violations as are available in an action against an entity other 
than a State.

                     Subpart G--Designated Agencies

                   Section 35.190 Designated Agencies

    Subpart G designates the Federal agencies responsible for 
investigating complaints under this part. At least 26 agencies currently 
administer programs of Federal financial assistance that are subject to 
the nondiscrimination requirements of section 504 as well as other civil 
rights statutes. A majority of these agencies administer modest programs 
of Federal financial assistance and/or devote minimal resources 
exclusively to ``external'' civil rights enforcement activities. Under 
Executive Order 12250, the Department of Justice has encouraged the use 
of delegation agreements under which certain civil rights compliance 
responsibilities for a class of recipients funded by more than one 
agency are delegated by an agency or agencies to a ``lead'' agency. For 
example, many agencies that fund institutions of higher education have 
signed agreements that designate the Department of Education as the 
``lead'' agency for this class of recipients.
    The use of delegation agreements reduces overlap and duplication of 
effort, and thereby strengthens overall civil rights enforcement. 
However, the use of these agreements to date generally has been limited 
to education and health care recipients. These classes of recipients are 
funded by numerous agencies and the logical connection to a lead agency 
is clear (e.g., the Department of Education for colleges and 
universities, and the Department of Health and Human Services for 
hospitals).
    The ADA's expanded coverage of State and local government operations 
further complicates the process of establishing Federal agency 
jurisdiction for the purpose of investigating complaints of 
discrimination on the basis of disability. Because all operations of 
public entities now are covered irrespective of the presence or absence 
of Federal financial assistance, many additional State and local 
government functions and organizations now are subject to Federal 
jurisdiction. In some cases, there is no historical or single clear-cut 
subject matter relationship with a Federal agency as was the case in the 
education example described above. Further, the 33,000 governmental 
jurisdictions subject to the ADA differ greatly in their organization,

[[Page 585]]

making a detailed and workable division of Federal agency jurisdiction 
by individual State, county, or municipal entity unrealistic.
    This regulation applies the delegation concept to the investigation 
of complaints of discrimination on the basis of disability by public 
entities under the ADA. It designates eight agencies, rather than all 
agencies currently administering programs of Federal financial 
assistance, as responsible for investigating complaints under this part. 
These ``designated agencies'' generally have the largest civil rights 
compliance staffs, the most experience in complaint investigations and 
disability issues, and broad yet clear subject area responsibilities. 
This division of responsibilities is made functionally rather than by 
public entity type or name designation. For example, all entities 
(regardless of their title) that exercise responsibilities, regulate, or 
administer services or programs relating to lands and natural resources 
fall within the jurisdiction of the Department of Interior.
    Complaints under this part will be investigated by the designated 
agency most closely related to the functions exercised by the 
governmental component against which the complaint is lodged. For 
example, a complaint against a State medical board, where such a board 
is a recognizable entity, will be investigated by the Department of 
Health and Human Services (the designated agency for regulatory 
activities relating to the provision of health care), even if the board 
is part of a general umbrella department of planning and regulation (for 
which the Department of Justice is the designated agency). If two or 
more agencies have apparent responsibility over a complaint, Sec. 
35.190(c) provides that the Assistant Attorney General shall determine 
which one of the agencies shall be the designated agency for purposes of 
that complaint.
    Thirteen commenters, including four proposed designated agencies, 
addressed the Department of Justice's identification in the proposed 
regulation of nine ``designated agencies'' to investigate complaints 
under this part. Most comments addressed the proposed specific 
delegations to the various individual agencies. The Department of 
Justice agrees with several commenters who pointed out that 
responsibility for ``historic and cultural preservation'' functions 
appropriately belongs with the Department of Interior rather than the 
Department of Education. The Department of Justice also agrees with the 
Department of Education that ``museums'' more appropriately should be 
delegated to the Department of Interior, and that ``preschool and 
daycare programs'' more appropriately should be assigned to the 
Department of Health and Human Services, rather than to the Department 
of Education. The final rule reflects these decisions.
    The Department of Commerce opposed its listing as the designated 
agency for ``commerce and industry, including general economic 
development, banking and finance, consumer protection, insurance, and 
small business''. The Department of Commerce cited its lack of a 
substantial existing section 504 enforcement program and experience with 
many of the specific functions to be delegated. The Department of 
Justice accedes to the Department of Commerce's position, and has 
assigned itself as the designated agency for these functions.
    In response to a comment from the Department of Health and Human 
Services, the regulation's category of ``medical and nursing schools'' 
has been clarified to read ``schools of medicine, dentistry, nursing, 
and other health-related fields''. Also in response to a comment from 
the Department of Health and Human Services, ``correctional 
institutions'' have been specifically added to the public safety and 
administration of justice functions assigned to the Department of 
Justice.
    The regulation also assigns the Department of Justice as the 
designated agency responsible for all State and local government 
functions not assigned to other designated agencies. The Department of 
Justice, under an agreement with the Department of the Treasury, 
continues to receive and coordinate the investigation of complaints 
filed under the Revenue Sharing Act. This entitlement program, which was 
terminated in 1986, provided civil rights compliance jurisdiction for a 
wide variety of complaints regarding the use of Federal funds to support 
various general activities of local governments. In the absence of any 
similar program of Federal financial assistance administered by another 
Federal agency, placement of designated agency responsibilities for 
miscellaneous and otherwise undesignated functions with the Department 
of Justice is an appropriate continuation of current practice.
    The Department of Education objected to the proposed rule's 
inclusion of the functional area of ``arts and humanities'' within its 
responsibilities, and the Department of Housing and Urban Development 
objected to its proposed designation as responsible for activities 
relating to rent control, the real estate industry, and housing code 
enforcement. The Department has deleted these areas from the lists 
assigned to the Departments of Education and Housing and Urban 
Development, respectively, and has added a new paragraph (c) to Sec. 
35.190, which provides that the Department of Justice may assign 
responsibility for components of State or local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section to other appropriate agencies. 
The Department believes

[[Page 586]]

that this approach will provide more flexibility in determining the 
appropriate agency for investigation of complaints involving those 
components of State and local governments not specifically addressed by 
the listings in paragraph (b). As provided in Sec. Sec. 35.170 and 
35.171, complaints filed with the Department of Justice will be referred 
to the appropriate agency.
    Several commenters proposed a stronger role for the Department of 
Justice, especially with respect to the receipt and assignment of 
complaints, and the overall monitoring of the effectiveness of the 
enforcement activities of Federal agencies. As discussed above, 
Sec. Sec. 35.170 and 35.171 have been revised to provide for referral 
of complaints by the Department of Justice to appropriate enforcement 
agencies. Also, language has been added to Sec. 35.190(a) of the final 
regulation stating that the Assistant Attorney General shall provide 
policy guidance and interpretations to designated agencies to ensure the 
consistent and effective implementation of this part.



PART 36_NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES--Table of Contents




                            Subpart A_General

Sec.
36.101 Purpose.
36.102 Application.
36.103 Relationship to other laws.
36.104 Definitions.
36.105-36.199 [Reserved]

                     Subpart B_General Requirements

36.201 General.
36.202 Activities.
36.203 Integrated settings.
36.204 Administrative methods.
36.205 Association.
36.206 Retaliation or coercion.
36.207 Places of public accommodations located in private residences.
36.208 Direct threat.
36.209 Illegal use of drugs.
36.210 Smoking.
36.211 Maintenance of accessible features.
36.212 Insurance.
36.213 Relationship of subpart B to subparts C and D of this part.
36.214-36.299 [Reserved]

                     Subpart C_Specific Requirements

36.301 Eligibility criteria.
36.302 Modifications in policies, practices, or procedures.
36.303 Auxiliary aids and services.
36.304 Removal of barriers.
36.305 Alternatives to barrier removal.
36.306 Personal devices and services.
36.307 Accessible or special goods.
36.308 Seating in assembly areas.
36.309 Examinations and courses.
36.310 Transportation provided by public accommodations.
36.311-36.399 [Reserved]

               Subpart D_New Construction and Alterations

36.401 New construction.
36.402 Alterations.
36.403 Alterations: Path of travel.
36.404 Alterations: Elevator exemption.
36.405 Alterations: Historic preservation.
36.406 Standards for new construction and alterations.
36.407 Temporary suspension of certain detectable warning requirements.
36.408-36.499 [Reserved]

                          Subpart E_Enforcement

36.501 Private suits.
36.502 Investigations and compliance reviews.
36.503 Suit by the Attorney General.
36.504 Relief.
36.505 Attorneys fees.
36.506 Alternative means of dispute resolution.
36.507 Effect of unavailability of technical assistance.
36.508 Effective date.
36.509-36.599 [Reserved]

      Subpart F_Certification of State Laws or Local Building Codes

36.601 Definitions.
36.602 General rule.
36.603 Filing a request for certification.
36.604 Preliminary determination.
36.605 Procedure following preliminary determination of equivalency.
36.606 Procedure following preliminary denial of certification.
36.607 Effect of certification.
36.608 Guidance concerning model codes.

Appendix A to Part 36--Standards for Accessible Design
Appendix B to Part 36--Preamble to Regulation on Nondiscrimination on 
          the Basis of Disability by Public Accommodations and in 
          Commercial Facilities (Published July 26, 1991)

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12188(b); 
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 
1321.

    Source: Order No. 1513-91, 56 FR 35592, July 26, 1991, unless 
otherwise noted.

[[Page 587]]



                            Subpart A_General



Sec. 36.101  Purpose.

    The purpose of this part is to implement title III of the Americans 
with Disabilities Act of 1990 (42 U.S.C. 12181), which prohibits 
discrimination on the basis of disability by public accommodations and 
requires places of public accommodation and commercial facilities to be 
designed, constructed, and altered in compliance with the accessibility 
standards established by this part.



Sec. 36.102  Application.

    (a) General. This part applies to any--
    (1) Public accommodation;
    (2) Commercial facility; or
    (3) Private entity that offers examinations or courses related to 
applications, licensing, certification, or credentialing for secondary 
or postsecondary education, professional, or trade purposes.
    (b) Public accommodations. (1) The requirements of this part 
applicable to public accommodations are set forth in subparts B, C, and 
D of this part.
    (2) The requirements of subparts B and C of this part obligate a 
public accommodation only with respect to the operations of a place of 
public accommodation.
    (3) The requirements of subpart D of this part obligate a public 
accommodation only with respect to--
    (i) A facility used as, or designed or constructed for use as, a 
place of public accommodation; or
    (ii) A facility used as, or designed and constructed for use as, a 
commercial facility.
    (c) Commercial facilities. The requirements of this part applicable 
to commercial facilities are set forth in subpart D of this part.
    (d) Examinations and courses. The requirements of this part 
applicable to private entities that offer examinations or courses as 
specified in paragraph (a) of this section are set forth in Sec. 
36.309.
    (e) Exemptions and exclusions. This part does not apply to any 
private club (except to the extent that the facilities of the private 
club are made available to customers or patrons of a place of public 
accommodation), or to any religious entity or public entity.



Sec. 36.103  Relationship to other laws.

    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Section 504. This part does not affect the obligations of a 
recipient of Federal financial assistance to comply with the 
requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 
794) and regulations issued by Federal agencies implementing section 
504.
    (c) Other laws. This part does not invalidate or limit the remedies, 
rights, and procedures of any other Federal laws, or State or local laws 
(including State common law) that provide greater or equal protection 
for the rights of individuals with disabilities or individuals 
associated with them.



Sec. 36.104  Definitions.

    For purposes of this part, the term--
    Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-
336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Commerce means travel, trade, traffic, commerce, transportation, or 
communication--
    (1) Among the several States;
    (2) Between any foreign country or any territory or possession and 
any State; or
    (3) Between points in the same State but through another State or 
foreign country.
    Commercial facilities means facilities--
    (1) Whose operations will affect commerce;
    (2) That are intended for nonresidential use by a private entity; 
and
    (3) That are not--
    (i) Facilities that are covered or expressly exempted from coverage 
under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631);
    (ii) Aircraft; or
    (iii) Railroad locomotives, railroad freight cars, railroad 
cabooses, commuter or intercity passenger rail cars

[[Page 588]]

(including coaches, dining cars, sleeping cars, lounge cars, and food 
service cars), any other railroad cars described in section 242 of the 
Act or covered under title II of the Act, or railroad rights-of-way. For 
purposes of this definition, ``rail'' and ``railroad'' have the meaning 
given the term ``railroad'' in section 202(e) of the Federal Railroad 
Safety Act of 1970 (45 U.S.C. 431(e)).
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Disability means, with respect to an individual, a physical or 
mental impairment that substantially limits one or more of the major 
life activities of such individual; a record of such an impairment; or 
being regarded as having such an impairment.
    (1) The phrase physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine;
    (ii) Any mental or psychological disorder such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities;
    (iii) The phrase physical or mental impairment includes, but is not 
limited to, such contagious and noncontagious diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, specific learning 
disabilities, HIV disease (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism;
    (iv) The phrase physical or mental impairment does not include 
homosexuality or bisexuality.
    (2) The phrase major life activities means functions such as caring 
for one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) The phrase has a record of such an impairment means has a 
history of, or has been misclassified as having, a mental or physical 
impairment that substantially limits one or more major life activities.
    (4) The phrase is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a private entity as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by a private entity as having such an 
impairment.
    (5) The term disability does not include--
    (i) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (ii) Compulsive gambling, kleptomania, or pyromania; or
    (iii) Psychoactive substance use disorders resulting from current 
illegal use of drugs.
    Drug means a controlled substance, as defined in schedules I through 
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal property, including 
the site where the building, property, structure, or equipment is 
located.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.

[[Page 589]]

    Individual with a disability means a person who has a disability. 
The term ``individual with a disability'' does not include an individual 
who is currently engaging in the illegal use of drugs, when the private 
entity acts on the basis of such use.
    Place of public accommodation means a facility, operated by a 
private entity, whose operations affect commerce and fall within at 
least one of the following categories--
    (1) An inn, hotel, motel, or other place of lodging, except for an 
establishment located within a building that contains not more than five 
rooms for rent or hire and that is actually occupied by the proprietor 
of the establishment as the residence of the proprietor;
    (2) A restaurant, bar, or other establishment serving food or drink;
    (3) A motion picture house, theater, concert hall, stadium, or other 
place of exhibition or entertainment;
    (4) An auditorium, convention center, lecture hall, or other place 
of public gathering;
    (5) A bakery, grocery store, clothing store, hardware store, 
shopping center, or other sales or rental establishment;
    (6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, 
travel service, shoe repair service, funeral parlor, gas station, office 
of an accountant or lawyer, pharmacy, insurance office, professional 
office of a health care provider, hospital, or other service 
establishment;
    (7) A terminal, depot, or other station used for specified public 
transportation;
    (8) A museum, library, gallery, or other place of public display or 
collection;
    (9) A park, zoo, amusement park, or other place of recreation;
    (10) A nursery, elementary, secondary, undergraduate, or 
postgraduate private school, or other place of education;
    (11) A day care center, senior citizen center, homeless shelter, 
food bank, adoption agency, or other social service center 
establishment; and
    (12) A gymnasium, health spa, bowling alley, golf course, or other 
place of exercise or recreation.
    Private club means a private club or establishment exempted from 
coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 
2000a(e)).
    Private entity means a person or entity other than a public entity.
    Public accommodation means a private entity that owns, leases (or 
leases to), or operates a place of public accommodation.
    Public entity means--
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act). (45 U.S.C. 541)
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately and impartially both receptively and 
expressively, using any necessary specialized vocabulary.
    Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. In determining whether 
an action is readily achievable factors to be considered include--
    (1) The nature and cost of the action needed under this part;
    (2) The overall financial resources of the site or sites involved in 
the action; the number of persons employed at the site; the effect on 
expenses and resources; legitimate safety requirements that are 
necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, type, 
and location of its facilities; and
    (5) If applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.

[[Page 590]]

    Religious entity means a religious organization, including a place 
of worship.
    Service animal means any guide dog, signal dog, or other animal 
individually trained to do work or perform tasks for the benefit of an 
individual with a disability, including, but not limited to, guiding 
individuals with impaired vision, alerting individuals with impaired 
hearing to intruders or sounds, providing minimal protection or rescue 
work, pulling a wheelchair, or fetching dropped items.
    Specified public transportation means transportation by bus, rail, 
or any other conveyance (other than by aircraft) that provides the 
general public with general or special service (including charter 
service) on a regular and continuing basis.
    State means each of the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin 
Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands.
    Undue burden means significant difficulty or expense. In determining 
whether an action would result in an undue burden, factors to be 
considered include--
    (1) The nature and cost of the action needed under this part;
    (2) The overall financial resources of the site or sites involved in 
the action; the number of persons employed at the site; the effect on 
expenses and resources; legitimate safety requirements that are 
necessary for safe operation, including crime prevention measures; or 
the impact otherwise of the action upon the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity; the overall size of the parent corporation or 
entity with respect to the number of its employees; the number, type, 
and location of its facilities; and
    (5) If applicable, the type of operation or operations of any parent 
corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.



Sec. Sec. 36.105-36.199  [Reserved]



                     Subpart B_General Requirements



Sec. 36.201  General.

    (a) Prohibition of discrimination. No individual shall be 
discriminated against on the basis of disability in the full and equal 
enjoyment of the goods, services, facilities, privileges, advantages, or 
accommodations of any place of public accommodation by any private 
entity who owns, leases (or leases to), or operates a place of public 
accommodation.
    (b) Landlord and tenant responsibilities. Both the landlord who owns 
the building that houses a place of public accommodation and the tenant 
who owns or operates the place of public accommodation are public 
accommodations subject to the requirements of this part. As between the 
parties, allocation of responsibility for complying with the obligations 
of this part may be determined by lease or other contract.



Sec. 36.202  Activities.

    (a) Denial of participation. A public accommodation shall not 
subject an individual or class of individuals on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, to a denial of 
the opportunity of the individual or class to participate in or benefit 
from the goods, services, facilities, privileges, advantages, or 
accommodations of a place of public accommodation.
    (b) Participation in unequal benefit. A public accommodation shall 
not afford an individual or class of individuals, on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, with the 
opportunity to participate in or benefit from a good, service, facility, 
privilege, advantage, or accommodation that is not equal to that 
afforded to other individuals.
    (c) Separate benefit. A public accommodation shall not provide an 
individual or class of individuals, on the

[[Page 591]]

basis of a disability or disabilities of such individual or class, 
directly, or through contractual, licensing, or other arrangements with 
a good, service, facility, privilege, advantage, or accommodation that 
is different or separate from that provided to other individuals, unless 
such action is necessary to provide the individual or class of 
individuals with a good, service, facility, privilege, advantage, or 
accommodation, or other opportunity that is as effective as that 
provided to others.
    (d) Individual or class of individuals. For purposes of paragraphs 
(a) through (c) of this section, the term ``individual or class of 
individuals'' refers to the clients or customers of the public 
accommodation that enters into the contractual, licensing, or other 
arrangement.



Sec. 36.203  Integrated settings.

    (a) General. A public accommodation shall afford goods, services, 
facilities, privileges, advantages, and accommodations to an individual 
with a disability in the most integrated setting appropriate to the 
needs of the individual.
    (b) Opportunity to participate. Notwithstanding the existence of 
separate or different programs or activities provided in accordance with 
this subpart, a public accommodation shall not deny an individual with a 
disability an opportunity to participate in such programs or activities 
that are not separate or different.
    (c) Accommodations and services. (1) Nothing in this part shall be 
construed to require an individual with a disability to accept an 
accommodation, aid, service, opportunity, or benefit available under 
this part that such individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.



Sec. 36.204  Administrative methods.

    A public accommodation shall not, directly or through contractual or 
other arrangements, utilize standards or criteria or methods of 
administration that have the effect of discriminating on the basis of 
disability, or that perpetuate the discrimination of others who are 
subject to common administrative control.



Sec. 36.205  Association.

    A public accommodation shall not exclude or otherwise deny equal 
goods, services, facilities, privileges, advantages, accommodations, or 
other opportunities to an individual or entity because of the known 
disability of an individual with whom the individual or entity is known 
to have a relationship or association.



Sec. 36.206  Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under the Act or this part.
    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.
    (c) Illustrations of conduct prohibited by this section include, but 
are not limited to:
    (1) Coercing an individual to deny or limit the benefits, services, 
or advantages to which he or she is entitled under the Act or this part;
    (2) Threatening, intimidating, or interfering with an individual 
with a disability who is seeking to obtain or use the goods, services, 
facilities, privileges, advantages, or accommodations of a public 
accommodation;
    (3) Intimidating or threatening any person because that person is 
assisting or encouraging an individual or group entitled to claim the 
rights granted or protected by the Act or this part to exercise those 
rights; or
    (4) Retaliating against any person because that person has 
participated in any investigation or action to enforce the Act or this 
part.

[[Page 592]]



Sec. 36.207  Places of public accommodation located in private residences.

    (a) When a place of public accommodation is located in a private 
residence, the portion of the residence used exclusively as a residence 
is not covered by this part, but that portion used exclusively in the 
operation of the place of public accommodation or that portion used both 
for the place of public accommodation and for residential purposes is 
covered by this part.
    (b) The portion of the residence covered under paragraph (a) of this 
section extends to those elements used to enter the place of public 
accommodation, including the homeowner's front sidewalk, if any, the 
door or entryway, and hallways; and those portions of the residence, 
interior or exterior, available to or used by customers or clients, 
including restrooms.



Sec. 36.208  Direct threat.

    (a) This part does not require a public accommodation to permit an 
individual to participate in or benefit from the goods, services, 
facilities, privileges, advantages and accommodations of that public 
accommodation when that individual poses a direct threat to the health 
or safety of others.
    (b) Direct threat means a significant risk to the health or safety 
of others that cannot be eliminated by a modification of policies, 
practices, or procedures, or by the provision of auxiliary aids or 
services.
    (c) In determining whether an individual poses a direct threat to 
the health or safety of others, a public accommodation must make an 
individualized assessment, based on reasonable judgment that relies on 
current medical knowledge or on the best available objective evidence, 
to ascertain: the nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures will 
mitigate the risk.



Sec. 36.209  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A public accommodation shall not discriminate on the basis of 
illegal use of drugs against an individual who is not engaging in 
current illegal use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Health and drug rehabilitation services. (1) A public 
accommodation shall not deny health services, or services provided in 
connection with drug rehabilitation, to an individual on the basis of 
that individual's current illegal use of drugs, if the individual is 
otherwise entitled to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit a public 
accommodation from adopting or administering reasonable policies or 
procedures, including but not limited to drug testing, designed to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not now engaging in current illegal use of drugs.
    (2) Nothing in this paragraph (c) shall be construed to encourage, 
prohibit, restrict, or authorize the conducting of testing for the 
illegal use of drugs.



Sec. 36.210  Smoking.

    This part does not preclude the prohibition of, or the imposition of 
restrictions on, smoking in places of public accommodation.



Sec. 36.211  Maintenance of accessible features.

    (a) A public accommodation shall maintain in operable working 
condition those features of facilities and equipment that are required 
to be readily accessible to and usable by persons with disabilities by 
the Act or this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.

[[Page 593]]



Sec. 36.212  Insurance.

    (a) This part shall not be construed to prohibit or restrict--
    (1) An insurer, hospital or medical service company, health 
maintenance organization, or any agent, or entity that administers 
benefit plans, or similar organizations from underwriting risks, 
classifying risks, or administering such risks that are based on or not 
inconsistent with State law; or
    (2) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that are based on underwriting risks, classifying risks, or 
administering such risks that are based on or not inconsistent with 
State law; or
    (3) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that is not subject to State laws that regulate insurance.
    (b) Paragraphs (a) (1), (2), and (3) of this section shall not be 
used as a subterfuge to evade the purposes of the Act or this part.
    (c) A public accommodation shall not refuse to serve an individual 
with a disability because its insurance company conditions coverage or 
rates on the absence of individuals with disabilities.



Sec. 36.213  Relationship of subpart B to subparts C and D of this part.

    Subpart B of this part sets forth the general principles of 
nondiscrimination applicable to all entities subject to this part. 
Subparts C and D of this part provide guidance on the application of the 
statute to specific situations. The specific provisions, including the 
limitations on those provisions, control over the general provisions in 
circumstances where both specific and general provisions apply.



Sec. Sec. 36.214-36.299  [Reserved]



                     Subpart C_Specific Requirements



Sec. 36.301  Eligibility criteria.

    (a) General. A public accommodation shall not impose or apply 
eligibility criteria that screen out or tend to screen out an individual 
with a disability or any class of individuals with disabilities from 
fully and equally enjoying any goods, services, facilities, privileges, 
advantages, or accommodations, unless such criteria can be shown to be 
necessary for the provision of the goods, services, facilities, 
privileges, advantages, or accommodations being offered.
    (b) Safety. A public accommodation may impose legitimate safety 
requirements that are necessary for safe operation. Safety requirements 
must be based on actual risks and not on mere speculation, stereotypes, 
or generalizations about individuals with disabilities.
    (c) Charges. A public accommodation may not impose a surcharge on a 
particular individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids, barrier removal, alternatives to barrier removal, and 
reasonable modifications in policies, practices, or procedures, that are 
required to provide that individual or group with the nondiscriminatory 
treatment required by the Act or this part.



Sec. 36.302  Modifications in policies, practices, or procedures.

    (a) General. A public accommodation shall make reasonable 
modifications in policies, practices, or procedures, when the 
modifications are necessary to afford goods, services, facilities, 
privileges, advantages, or accommodations to individuals with 
disabilities, unless the public accommodation can demonstrate that 
making the modifications would fundamentally alter the nature of the 
goods, services, facilities, privileges, advantages, or accommodations.
    (b) Specialties--(1) General. A public accommodation may refer an 
individual with a disability to another public accommodation, if that 
individual is seeking, or requires, treatment or services outside of the 
referring public accommodation's area of specialization, and if, in the 
normal course of its operations, the referring public accommodation 
would make a similar referral for an individual without a disability who 
seeks or requires the same treatment or services.

[[Page 594]]

    (2) Illustration--medical specialties. A health care provider may 
refer an individual with a disability to another provider, if that 
individual is seeking, or requires, treatment or services outside of the 
referring provider's area of specialization, and if the referring 
provider would make a similar referral for an individual without a 
disability who seeks or requires the same treatment or services. A 
physician who specializes in treating only a particular condition cannot 
refuse to treat an individual with a disability for that condition, but 
is not required to treat the individual for a different condition.
    (c) Service animals--(1) General. Generally, a public accommodation 
shall modify policies, practices, or procedures to permit the use of a 
service animal by an individual with a disability.
    (2) Care or supervision of service animals. Nothing in this part 
requires a public accommodation to supervise or care for a service 
animal.
    (d) Check-out aisles. A store with check-out aisles shall ensure 
that an adequate number of accessible check-out aisles are kept open 
during store hours, or shall otherwise modify its policies and 
practices, in order to ensure that an equivalent level of convenient 
service is provided to individuals with disabilities as is provided to 
others. If only one check-out aisle is accessible, and it is generally 
used for express service, one way of providing equivalent service is to 
allow persons with mobility impairments to make all their purchases at 
that aisle.



Sec. 36.303  Auxiliary aids and services.

    (a) General. A public accommodation shall take those steps that may 
be necessary to ensure that no individual with a disability is excluded, 
denied services, segregated or otherwise treated differently than other 
individuals because of the absence of auxiliary aids and services, 
unless the public accommodation can demonstrate that taking those steps 
would fundamentally alter the nature of the goods, services, facilities, 
privileges, advantages, or accommodations being offered or would result 
in an undue burden, i.e., significant difficulty or expense.
    (b) Examples. The term ``auxiliary aids and services'' includes--
    (1) Qualified interpreters, notetakers, computer-aided transcription 
services, written materials, telephone handset amplifiers, assistive 
listening devices, assistive listening systems, telephones compatible 
with hearing aids, closed caption decoders, open and closed captioning, 
telecommunications devices for deaf persons (TDD's), videotext displays, 
or other effective methods of making aurally delivered materials 
available to individuals with hearing impairments;
    (2) Qualified readers, taped texts, audio recordings, Brailled 
materials, large print materials, or other effective methods of making 
visually delivered materials available to individuals with visual 
impairments;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    (c) Effective communication. A public accommodation shall furnish 
appropriate auxiliary aids and services where necessary to ensure 
effective communication with individuals with disabilities.
    (d) Telecommunication devices for the deaf (TDD's). (1) A public 
accommodation that offers a customer, client, patient, or participant 
the opportunity to make outgoing telephone calls on more than an 
incidental convenience basis shall make available, upon request, a TDD 
for the use of an individual who has impaired hearing or a communication 
disorder.
    (2) This part does not require a public accommodation to use a TDD 
for receiving or making telephone calls incident to its operations.
    (e) Closed caption decoders. Places of lodging that provide 
televisions in five or more guest rooms and hospitals that provide 
televisions for patient use shall provide, upon request, a means for 
decoding captions for use by an individual with impaired hearing.
    (f) Alternatives. If provision of a particular auxiliary aid or 
service by a public accommodation would result in a fundamental 
alteration in the nature of the goods, services, facilities, privileges, 
advantages, or accommodations being offered or in an undue burden,

[[Page 595]]

i.e., significant difficulty or expense, the public accommodation shall 
provide an alternative auxiliary aid or service, if one exists, that 
would not result in an alteration or such burden but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the goods, services, facilities, privileges, 
advantages, or accommodations offered by the public accommodation.



Sec. 36.304  Removal of barriers.

    (a) General. A public accommodation shall remove architectural 
barriers in existing facilities, including communication barriers that 
are structural in nature, where such removal is readily achievable, 
i.e., easily accomplishable and able to be carried out without much 
difficulty or expense.
    (b) Examples. Examples of steps to remove barriers include, but are 
not limited to, the following actions--
    (1) Installing ramps;
    (2) Making curb cuts in sidewalks and entrances;
    (3) Repositioning shelves;
    (4) Rearranging tables, chairs, vending machines, display racks, and 
other furniture;
    (5) Repositioning telephones;
    (6) Adding raised markings on elevator control buttons;
    (7) Installing flashing alarm lights;
    (8) Widening doors;
    (9) Installing offset hinges to widen doorways;
    (10) Eliminating a turnstile or providing an alternative accessible 
path;
    (11) Installing accessible door hardware;
    (12) Installing grab bars in toilet stalls;
    (13) Rearranging toilet partitions to increase maneuvering space;
    (14) Insulating lavatory pipes under sinks to prevent burns;
    (15) Installing a raised toilet seat;
    (16) Installing a full-length bathroom mirror;
    (17) Repositioning the paper towel dispenser in a bathroom;
    (18) Creating designated accessible parking spaces;
    (19) Installing an accessible paper cup dispenser at an existing 
inaccessible water fountain;
    (20) Removing high pile, low density carpeting; or
    (21) Installing vehicle hand controls.
    (c) Priorities. A public accommodation is urged to take measures to 
comply with the barrier removal requirements of this section in 
accordance with the following order of priorities.
    (1) First, a public accommodation should take measures to provide 
access to a place of public accommodation from public sidewalks, 
parking, or public transportation. These measures include, for example, 
installing an entrance ramp, widening entrances, and providing 
accessible parking spaces.
    (2) Second, a public accommodation should take measures to provide 
access to those areas of a place of public accommodation where goods and 
services are made available to the public. These measures include, for 
example, adjusting the layout of display racks, rearranging tables, 
providing Brailled and raised character signage, widening doors, 
providing visual alarms, and installing ramps.
    (3) Third, a public accommodation should take measures to provide 
access to restroom facilities. These measures include, for example, 
removal of obstructing furniture or vending machines, widening of doors, 
installation of ramps, providing accessible signage, widening of toilet 
stalls, and installation of grab bars.
    (4) Fourth, a public accommodation should take any other measures 
necessary to provide access to the goods, services, facilities, 
privileges, advantages, or accommodations of a place of public 
accommodation.
    (d) Relationship to alterations requirements of subpart D of this 
part. (1) Except as provided in paragraph (d)(2) of this section, 
measures taken to comply with the barrier removal requirements of this 
section shall comply with the applicable requirements for alterations in 
Sec. 36.402 and Sec. Sec. 36.404-36.406 of this part for the element 
being altered. The path of travel requirements of Sec. 36.403 shall not 
apply to measures taken solely to comply with the barrier removal 
requirements of this section.
    (2) If, as a result of compliance with the alterations requirements 
specified in paragraph (d)(1) of this section, the measures required to 
remove a barrier

[[Page 596]]

would not be readily achievable, a public accommodation may take other 
readily achievable measures to remove the barrier that do not fully 
comply with the specified requirements. Such measures include, for 
example, providing a ramp with a steeper slope or widening a doorway to 
a narrower width than that mandated by the alterations requirements. No 
measure shall be taken, however, that poses a significant risk to the 
health or safety of individuals with disabilities or others.
    (e) Portable ramps. Portable ramps should be used to comply with 
this section only when installation of a permanent ramp is not readily 
achievable. In order to avoid any significant risk to the health or 
safety of individuals with disabilities or others in using portable 
ramps, due consideration shall be given to safety features such as 
nonslip surfaces, railings, anchoring, and strength of materials.
    (f) Selling or serving space. The rearrangement of temporary or 
movable structures, such as furniture, equipment, and display racks is 
not readily achievable to the extent that it results in a significant 
loss of selling or serving space.
    (g) Limitation on barrier removal obligations. (1) The requirements 
for barrier removal under Sec. 36.304 shall not be interpreted to 
exceed the standards for alterations in subpart D of this part.
    (2) To the extent that relevant standards for alterations are not 
provided in subpart D of this part, then the requirements of Sec. 
36.304 shall not be interpreted to exceed the standards for new 
construction in subpart D of this part.
    (3) This section does not apply to rolling stock and other 
conveyances to the extent that Sec. 36.310 applies to rolling stock and 
other conveyances.



Sec. 36.305  Alternatives to barrier removal.

    (a) General. Where a public accommodation can demonstrate that 
barrier removal is not readily achievable, the public accommodation 
shall not fail to make its goods, services, facilities, privileges, 
advantages, or accommodations available through alternative methods, if 
those methods are readily achievable.
    (b) Examples. Examples of alternatives to barrier removal include, 
but are not limited to, the following actions--
    (1) Providing curb service or home delivery;
    (2) Retrieving merchandise from inaccessible shelves or racks;
    (3) Relocating activities to accessible locations;
    (c) Multiscreen cinemas. If it is not readily achievable to remove 
barriers to provide access by persons with mobility impairments to all 
of the theaters of a multiscreen cinema, the cinema shall establish a 
film rotation schedule that provides reasonable access for individuals 
who use wheelchairs to all films. Reasonable notice shall be provided to 
the public as to the location and time of accessible showings.



Sec. 36.306  Personal devices and services.

    This part does not require a public accommodation to provide its 
customers, clients, or participants with personal devices, such as 
wheelchairs; individually prescribed devices, such as prescription 
eyeglasses or hearing aids; or services of a personal nature including 
assistance in eating, toileting, or dressing.



Sec. 36.307  Accessible or special goods.

    (a) This part does not require a public accommodation to alter its 
inventory to include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities.
    (b) A public accommodation shall order accessible or special goods 
at the request of an individual with disabilities, if, in the normal 
course of its operation, it makes special orders on request for 
unstocked goods, and if the accessible or special goods can be obtained 
from a supplier with whom the public accommodation customarily does 
business.
    (c) Examples of accessible or special goods include items such as 
Brailled versions of books, books on audio cassettes, closed-captioned 
video tapes, special sizes or lines of clothing, and special foods to 
meet particular dietary needs.

[[Page 597]]



Sec. 36.308  Seating in assembly areas.

    (a) Existing facilities. (1) To the extent that it is readily 
achievable, a public accommodation in assembly areas shall--
    (i) Provide a reasonable number of wheelchair seating spaces and 
seats with removable aisle-side arm rests; and
    (ii) Locate the wheelchair seating spaces so that they--
    (A) Are dispersed throughout the seating area;
    (B) Provide lines of sight and choice of admission prices comparable 
to those for members of the general public;
    (C) Adjoin an accessible route that also serves as a means of egress 
in case of emergency; and
    (D) Permit individuals who use wheelchairs to sit with family 
members or other companions.
    (2) If removal of seats is not readily achievable, a public 
accommodation shall provide, to the extent that it is readily achievable 
to do so, a portable chair or other means to permit a family member or 
other companion to sit with an individual who uses a wheelchair.
    (3) The requirements of paragraph (a) of this section shall not be 
interpreted to exceed the standards for alterations in subpart D of this 
part.
    (b) New construction and alterations. The provision and location of 
wheelchair seating spaces in newly constructed or altered assembly areas 
shall be governed by the standards for new construction and alterations 
in subpart D of this part.



Sec. 36.309  Examinations and courses.

    (a) General. Any private entity that offers examinations or courses 
related to applications, licensing, certification, or credentialing for 
secondary or postsecondary education, professional, or trade purposes 
shall offer such examinations or courses in a place and manner 
accessible to persons with disabilities or offer alternative accessible 
arrangements for such individuals.
    (b) Examinations. (1) Any private entity offering an examination 
covered by this section must assure that--
    (i) The examination is selected and administered so as to best 
ensure that, when the examination is administered to an individual with 
a disability that impairs sensory, manual, or speaking skills, the 
examination results accurately reflect the individual's aptitude or 
achievement level or whatever other factor the examination purports to 
measure, rather than reflecting the individual's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the examination purports to measure);
    (ii) An examination that is designed for individuals with impaired 
sensory, manual, or speaking skills is offered at equally convenient 
locations, as often, and in as timely a manner as are other 
examinations; and
    (iii) The examination is administered in facilities that are 
accessible to individuals with disabilities or alternative accessible 
arrangements are made.
    (2) Required modifications to an examination may include changes in 
the length of time permitted for completion of the examination and 
adaptation of the manner in which the examination is given.
    (3) A private entity offering an examination covered by this section 
shall provide appropriate auxiliary aids for persons with impaired 
sensory, manual, or speaking skills, unless that private entity can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the measurement of the skills or knowledge the examination is 
intended to test or would result in an undue burden. Auxiliary aids and 
services required by this section may include taped examinations, 
interpreters or other effective methods of making orally delivered 
materials available to individuals with hearing impairments, Brailled or 
large print examinations and answer sheets or qualified readers for 
individuals with visual impairments or learning disabilities, 
transcribers for individuals with manual impairments, and other similar 
services and actions.
    (4) Alternative accessible arrangements may include, for example, 
provision of an examination at an individual's home with a proctor if 
accessible facilities or equipment are unavailable.

[[Page 598]]

Alternative arrangements must provide comparable conditions to those 
provided for nondisabled individuals.
    (c) Courses. (1) Any private entity that offers a course covered by 
this section must make such modifications to that course as are 
necessary to ensure that the place and manner in which the course is 
given are accessible to individuals with disabilities.
    (2) Required modifications may include changes in the length of time 
permitted for the completion of the course, substitution of specific 
requirements, or adaptation of the manner in which the course is 
conducted or course materials are distributed.
    (3) A private entity that offers a course covered by this section 
shall provide appropriate auxiliary aids and services for persons with 
impaired sensory, manual, or speaking skills, unless the private entity 
can demonstrate that offering a particular auxiliary aid or service 
would fundamentally alter the course or would result in an undue burden. 
Auxiliary aids and services required by this section may include taped 
texts, interpreters or other effective methods of making orally 
delivered materials available to individuals with hearing impairments, 
Brailled or large print texts or qualified readers for individuals with 
visual impairments and learning disabilities, classroom equipment 
adapted for use by individuals with manual impairments, and other 
similar services and actions.
    (4) Courses must be administered in facilities that are accessible 
to individuals with disabilities or alternative accessible arrangements 
must be made.
    (5) Alternative accessible arrangements may include, for example, 
provision of the course through videotape, cassettes, or prepared notes. 
Alternative arrangements must provide comparable conditions to those 
provided for nondisabled individuals.



Sec. 36.310  Transportation provided by public accommodations.

    (a) General. (1) A public accommodation that provides transportation 
services, but that is not primarily engaged in the business of 
transporting people, is subject to the general and specific provisions 
in subparts B, C, and D of this part for its transportation operations, 
except as provided in this section.
    (2) Examples. Transportation services subject to this section 
include, but are not limited to, shuttle services operated between 
transportation terminals and places of public accommodation, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation systems, and transportation provided within 
recreational facilities such as stadiums, zoos, amusement parks, and ski 
resorts.
    (b) Barrier removal. A public accommodation subject to this section 
shall remove transportation barriers in existing vehicles and rail 
passenger cars used for transporting individuals (not including barriers 
that can only be removed through the retrofitting of vehicles or rail 
passenger cars by the installation of a hydraulic or other lift) where 
such removal is readily achievable.
    (c) Requirements for vehicles and systems. A public accommodation 
subject to this section shall comply with the requirements pertaining to 
vehicles and transportation systems in the regulations issued by the 
Secretary of Transportation pursuant to section 306 of the Act.



Sec. Sec. 36.311-36.399  [Reserved]



               Subpart D_New Construction and Alterations



Sec. 36.401  New construction.

    (a) General. (1) Except as provided in paragraphs (b) and (c) of 
this section, discrimination for purposes of this part includes a 
failure to design and construct facilities for first occupancy after 
January 26, 1993, that are readily accessible to and usable by 
individuals with disabilities.
    (2) For purposes of this section, a facility is designed and 
constructed for first occupancy after January 26, 1993, only--
    (i) If the last application for a building permit or permit 
extension for the facility is certified to be complete, by a State, 
County, or local government after January 26, 1992 (or, in those 
jurisdictions where the government does not certify completion of 
applications,

[[Page 599]]

if the last application for a building permit or permit extension for 
the facility is received by the State, County, or local government after 
January 26, 1992); and
    (ii) If the first certificate of occupancy for the facility is 
issued after January 26, 1993.
    (b) Commercial facilities located in private residences. (1) When a 
commercial facility is located in a private residence, the portion of 
the residence used exclusively as a residence is not covered by this 
subpart, but that portion used exclusively in the operation of the 
commercial facility or that portion used both for the commercial 
facility and for residential purposes is covered by the new construction 
and alterations requirements of this subpart.
    (2) The portion of the residence covered under paragraph (b)(1) of 
this section extends to those elements used to enter the commercial 
facility, including the homeowner's front sidewalk, if any, the door or 
entryway, and hallways; and those portions of the residence, interior or 
exterior, available to or used by employees or visitors of the 
commercial facility, including restrooms.
    (c) Exception for structural impracticability. (1) Full compliance 
with the requirements of this section is not required where an entity 
can demonstrate that it is structurally impracticable to meet the 
requirements. Full compliance will be considered structurally 
impracticable only in those rare circumstances when the unique 
characteristics of terrain prevent the incorporation of accessibility 
features.
    (2) If full compliance with this section would be structurally 
impracticable, compliance with this section is required to the extent 
that it is not structurally impracticable. In that case, any portion of 
the facility that can be made accessible shall be made accessible to the 
extent that it is not structurally impracticable.
    (3) If providing accessibility in conformance with this section to 
individuals with certain disabilities (e.g., those who use wheelchairs) 
would be structurally impracticable, accessibility shall nonetheless be 
ensured to persons with other types of disabilities (e.g., those who use 
crutches or who have sight, hearing, or mental impairments) in 
accordance with this section.
    (d) Elevator exemption. (1) For purposes of this paragraph (d)--
    (i) Professional office of a health care provider means a location 
where a person or entity regulated by a State to provide professional 
services related to the physical or mental health of an individual makes 
such services available to the public. The facility housing the 
``professional office of a health care provider'' only includes floor 
levels housing at least one health care provider, or any floor level 
designed or intended for use by at least one health care provider.
    (ii) Shopping center or shopping mall means--
    (A) A building housing five or more sales or rental establishments; 
or
    (B) A series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. For purposes of this section, places of public 
accommodation of the types listed in paragraph (5) of the definition of 
``place of public accommodation'' in section Sec. 36.104 are considered 
sales or rental establishments. The facility housing a ``shopping center 
or shopping mall'' only includes floor levels housing at least one sales 
or rental establishment, or any floor level designed or intended for use 
by at least one sales or rental establishment.
    (2) This section does not require the installation of an elevator in 
a facility that is less than three stories or has less than 3000 square 
feet per story, except with respect to any facility that houses one or 
more of the following:
    (i) A shopping center or shopping mall, or a professional office of 
a health care provider.
    (ii) A terminal, depot, or other station used for specified public 
transportation, or an airport passenger terminal. In such a facility, 
any area housing passenger services, including boarding and debarking, 
loading and unloading, baggage claim, dining facilities, and other 
common areas open to the public, must be on an accessible route from an 
accessible entrance.

[[Page 600]]

    (3) The elevator exemption set forth in this paragraph (d) does not 
obviate or limit, in any way the obligation to comply with the other 
accessibility requirements established in paragraph (a) of this section. 
For example, in a facility that houses a shopping center or shopping 
mall, or a professional office of a health care provider, the floors 
that are above or below an accessible ground floor and that do not house 
sales or rental establishments or a professional office of a health care 
provider, must meet the requirements of this section but for the 
elevator.



Sec. 36.402  Alterations.

    (a) General. (1) Any alteration to a place of public accommodation 
or a commercial facility, after January 26, 1992, shall be made so as to 
ensure that, to the maximum extent feasible, the altered portions of the 
facility are readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs.
    (2) An alteration is deemed to be undertaken after January 26, 1992, 
if the physical alteration of the property begins after that date.
    (b) Alteration. For the purposes of this part, an alteration is a 
change to a place of public accommodation or a commercial facility that 
affects or could affect the usability of the building or facility or any 
part thereof.
    (1) Alterations include, but are not limited to, remodeling, 
renovation, rehabilitation, reconstruction, historic restoration, 
changes or rearrangement in structural parts or elements, and changes or 
rearrangement in the plan configuration of walls and full-height 
partitions. Normal maintenance, reroofing, painting or wallpapering, 
asbestos removal, or changes to mechanical and electrical systems are 
not alterations unless they affect the usability of the building or 
facility.
    (2) If existing elements, spaces, or common areas are altered, then 
each such altered element, space, or area shall comply with the 
applicable provisions of appendix A to this part.
    (c) To the maximum extent feasible. The phrase ``to the maximum 
extent feasible,'' as used in this section, applies to the occasional 
case where the nature of an existing facility makes it virtually 
impossible to comply fully with applicable accessibility standards 
through a planned alteration. In these circumstances, the alteration 
shall provide the maximum physical accessibility feasible. Any altered 
features of the facility that can be made accessible shall be made 
accessible. If providing accessibility in conformance with this section 
to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches, those who have impaired vision or hearing, or those who 
have other impairments).



Sec. 36.403  Alterations: Path of travel.

    (a) General. An alteration that affects or could affect the 
usability of or access to an area of a facility that contains a primary 
function shall be made so as to ensure that, to the maximum extent 
feasible, the path of travel to the altered area and the restrooms, 
telephones, and drinking fountains serving the altered area, are readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the cost and scope of such 
alterations is disproportionate to the cost of the overall alteration.
    (b) Primary function. A ``primary function'' is a major activity for 
which the facility is intended. Areas that contain a primary function 
include, but are not limited to, the customer services lobby of a bank, 
the dining area of a cafeteria, the meeting rooms in a conference 
center, as well as offices and other work areas in which the activities 
of the public accommodation or other private entity using the facility 
are carried out. Mechanical rooms, boiler rooms, supply storage rooms, 
employee lounges or locker rooms, janitorial closets, entrances, 
corridors, and restrooms are not areas containing a primary function.
    (c) Alterations to an area containing a primary function. (1) 
Alterations that affect the usability of or access to an area containing 
a primary function include, but are not limited to--
    (i) Remodeling merchandise display areas or employee work areas in a 
department store;

[[Page 601]]

    (ii) Replacing an inaccessible floor surface in the customer service 
or employee work areas of a bank;
    (iii) Redesigning the assembly line area of a factory; or
    (iv) Installing a computer center in an accounting firm.
    (2) For the purposes of this section, alterations to windows, 
hardware, controls, electrical outlets, and signage shall not be deemed 
to be alterations that affect the usability of or access to an area 
containing a primary function.
    (d) Landlord/tenant: If a tenant is making alterations as defined in 
Sec. 36.402 that would trigger the requirements of this section, those 
alterations by the tenant in areas that only the tenant occupies do not 
trigger a path of travel obligation upon the landlord with respect to 
areas of the facility under the landlord's authority, if those areas are 
not otherwise being altered.
    (e) Path of travel. (1) A ``path of travel'' includes a continuous, 
unobstructed way of pedestrian passage by means of which the altered 
area may be approached, entered, and exited, and which connects the 
altered area with an exterior approach (including sidewalks, streets, 
and parking areas), an entrance to the facility, and other parts of the 
facility.
    (2) An accessible path of travel may consist of walks and sidewalks, 
curb ramps and other interior or exterior pedestrian ramps; clear floor 
paths through lobbies, corridors, rooms, and other improved areas; 
parking access aisles; elevators and lifts; or a combination of these 
elements.
    (3) For the purposes of this part, the term ``path of travel'' also 
includes the restrooms, telephones, and drinking fountains serving the 
altered area.
    (f) Disproportionality. (1) Alterations made to provide an 
accessible path of travel to the altered area will be deemed 
disproportionate to the overall alteration when the cost exceeds 20% of 
the cost of the alteration to the primary function area.
    (2) Costs that may be counted as expenditures required to provide an 
accessible path of travel may include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area, for example, the cost of widening 
doorways or installing ramps;
    (ii) Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
    (iii) Costs associated with providing accessible telephones, such as 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a telecommunications device for 
deaf persons (TDD);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (g) Duty to provide accessible features in the event of 
disproportionality. (1) When the cost of alterations necessary to make 
the path of travel to the altered area fully accessible is 
disproportionate to the cost of the overall alteration, the path of 
travel shall be made accessible to the extent that it can be made 
accessible without incurring disproportionate costs.
    (2) In choosing which accessible elements to provide, priority 
should be given to those elements that will provide the greatest access, 
in the following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom;
    (iv) Accessible telephones;
    (v) Accessible drinking fountains; and
    (vi) When possible, additional accessible elements such as parking, 
storage, and alarms.
    (h) Series of smaller alterations. (1) The obligation to provide an 
accessible path of travel may not be evaded by performing a series of 
small alterations to the area served by a single path of travel if those 
alterations could have been performed as a single undertaking.
    (2)(i) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alterations to the primary function areas 
on that

[[Page 602]]

path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
accessible is disproportionate.
    (ii) Only alterations undertaken after January 26, 1992, shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alterations.



Sec. 36.404  Alterations: Elevator exemption.

    (a) This section does not require the installation of an elevator in 
an altered facility that is less than three stories or has less than 
3,000 square feet per story, except with respect to any facility that 
houses a shopping center, a shopping mall, the professional office of a 
health care provider, a terminal, depot, or other station used for 
specified public transportation, or an airport passenger terminal.
    (1) For the purposes of this section, professional office of a 
health care provider means a location where a person or entity regulated 
by a State to provide professional services related to the physical or 
mental health of an individual makes such services available to the 
public. The facility that houses a professional office of a health care 
provider only includes floor levels housing by at least one health care 
provider, or any floor level designed or intended for use by at least 
one health care provider.
    (2) For the purposes of this section, shopping center or shopping 
mall means--
    (i) A building housing five or more sales or rental establishments; 
or
    (ii) A series of buildings on a common site, connected by a common 
pedestrian access route above or below the ground floor, that is either 
under common ownership or common control or developed either as one 
project or as a series of related projects, housing five or more sales 
or rental establishments. For purposes of this section, places of public 
accommodation of the types listed in paragraph (5) of the definition of 
place of public accommodation in Sec. 36.104 are considered sales or 
rental establishments. The facility housing a shopping center or 
shopping mall only includes floor levels housing at least one sales or 
rental establishment, or any floor level designed or intended for use by 
at least one sales or rental establishment.
    (b) The exemption provided in paragraph (a) of this section does not 
obviate or limit in any way the obligation to comply with the other 
accessibility requirements established in this subpart. For example, 
alterations to floors above or below the accessible ground floor must be 
accessible regardless of whether the altered facility has an elevator.



Sec. 36.405  Alterations: Historic preservation.

    (a) Alterations to buildings or facilities that are eligible for 
listing in the National Register of Historic Places under the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as 
historic under State or local law, shall comply to the maximum extent 
feasible with section 4.1.7 of appendix A to this part.
    (b) If it is determined under the procedures set out in section 
4.1.7 of appendix A that it is not feasible to provide physical access 
to an historic property that is a place of public accommodation in a 
manner that will not threaten or destroy the historic significance of 
the building or facility, alternative methods of access shall be 
provided pursuant to the requirements of subpart C of this part.



Sec. 36.406  Standards for new construction and alterations.

    (a) New construction and alterations subject to this part shall 
comply with the standards for accessible design published as appendix A 
to this part (ADAAG).
    (b) The chart in the appendix to this section provides guidance to 
the user in reading appendix A to this part (ADAAG) together with 
subparts A through D of this part, when determining requirements for a 
particular facility.

[[Page 603]]

                        Appendix to Sec. 36.406

    This chart has no effect for purposes of compliance or enforcement. 
It does not necessarily provide complete or mandatory information.

----------------------------------------------------------------------------------------------------------------
                                                         Subparts A-D                           ADAAG
----------------------------------------------------------------------------------------------------------------
Application, General.....................  36.102(b)(3): public accommodations.....  1, 2, 3, 4.1.1.
                                           36.102(c): commercial facilities........
                                           36.102(e): public entities..............
                                           36.103 (other laws).....................
                                           36.401 (``for first occupancy'')........
                                           36.402(a) (alterations).................
Definitions..............................  36.104: commercial facilities, facility,  3.5 Definitions, including:
                                            place of public accommodation, private    addition, alteration,
                                            club, public accommodation, public        building, element,
                                            entity, religious entity.                 facility, space, story.
                                           36.401(d)(1)(ii), 36.404(a)(2): shopping  4.1.6(j), technical
                                            center or shopping mall.                  infeasibility.
                                           36.401(d)(1)(i), 36.404(a)(1):
                                            professional office of a health care
                                            provider.
                                           36.402: alteration; usability...........
                                           36.402(c): to the maximum extent
                                            feasible.
New Construction:........................  36.401(a) General.......................  4.1.2.
General..................................  36.401(b) Commercial facilities in        4.1.3.
                                            private residences.
                                           36.207 Places of public accommodation in
                                            private residences.
Work Areas...............................  ........................................  4.1.1(3).
Structural Impracticability..............  36.401(c)...............................  4.1.1(5)(a).
Elevator Exemption.......................  36.401(d)...............................  4.1.3(5).
                                           36.404..................................
Other Exceptions.........................  ........................................  4.1.1(5), 4.1.3(5) and
                                                                                      throughout.
Alterations: General.....................  36.401(b): commercial facilities in
                                            private residences.
                                           36.402..................................  4.1.6(1).
Alterations Affecting an Area Containing   36.403..................................  4.1.6(2).
 A Primary Function; Path of Travel;
 Disproportionality.
Alterations: Special Technical Provisions  ........................................  4.1.6(3).
Additions................................  36.401-36.405...........................  4.1.5.
Historic Preservation....................  36.405..................................  4.1.7.
Technical Provisions.....................  ........................................  4.2 through 4.35.
Restaurants and Cafeterias...............  ........................................  5.
Medical Care Facilities..................  ........................................  6.
Business and Mercantile..................  ........................................  7.
Libraries................................  ........................................  8.
Transient Lodging (Hotels, Homeless        ........................................  9.
 Shelters, Etc.).
Transportation Facilities................  ........................................  10.
----------------------------------------------------------------------------------------------------------------


[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No. 
1836-94, 59 FR 2675, Jan. 18, 1994]



Sec. 36.407  Temporary suspension of certain detectable warning requirements.

    The detectable warning requirements contained in sections 4.7.7, 
4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily 
until July 26, 2001.

[Order No. 2191-98, 63 FR 64837, 64838, Nov. 23, 1998]



Sec. Sec. 36.408-36.499  [Reserved]



                          Subpart E_Enforcement



Sec. 36.501  Private suits.

    (a) General. Any person who is being subjected to discrimination on 
the basis of disability in violation of the Act or this part or who has 
reasonable grounds for believing that such person is about to be 
subjected to discrimination in violation of section 303 of the Act or 
subpart D of this part may institute a civil action for preventive 
relief,

[[Page 604]]

including an application for a permanent or temporary injunction, 
restraining order, or other order. Upon timely application, the court 
may, in its discretion, permit the Attorney General to intervene in the 
civil action if the Attorney General or his or her designee certifies 
that the case is of general public importance. Upon application by the 
complainant and in such circumstances as the court may deem just, the 
court may appoint an attorney for such complainant and may authorize the 
commencement of the civil action without the payment of fees, costs, or 
security. Nothing in this section shall require a person with a 
disability to engage in a futile gesture if the person has actual notice 
that a person or organization covered by title III of the Act or this 
part does not intend to comply with its provisions.
    (b) Injunctive relief. In the case of violations of Sec. 36.304, 
Sec. Sec. 36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of this 
part, injunctive relief shall include an order to alter facilities to 
make such facilities readily accessible to and usable by individuals 
with disabilities to the extent required by the Act or this part. Where 
appropriate, injunctive relief shall also include requiring the 
provision of an auxiliary aid or service, modification of a policy, or 
provision of alternative methods, to the extent required by the Act or 
this part.



Sec. 36.502  Investigations and compliance reviews.

    (a) The Attorney General shall investigate alleged violations of the 
Act or this part.
    (b) Any individual who believes that he or she or a specific class 
of persons has been subjected to discrimination prohibited by the Act or 
this part may request the Department to institute an investigation.
    (c) Where the Attorney General has reason to believe that there may 
be a violation of this part, he or she may initiate a compliance review.



Sec. 36.503  Suit by the Attorney General.

    Following a compliance review or investigation under Sec. 36.502, 
or at any other time in his or her discretion, the Attorney General may 
commence a civil action in any appropriate United States district court 
if the Attorney General has reasonable cause to believe that--
    (a) Any person or group of persons is engaged in a pattern or 
practice of discrimination in violation of the Act or this part; or
    (b) Any person or group of persons has been discriminated against in 
violation of the Act or this part and the discrimination raises an issue 
of general public importance.



Sec. 36.504  Relief.

    (a) Authority of court. In a civil action under Sec. 36.503, the 
court--
    (1) May grant any equitable relief that such court considers to be 
appropriate, including, to the extent required by the Act or this part--
    (i) Granting temporary, preliminary, or permanent relief;
    (ii) Providing an auxiliary aid or service, modification of policy, 
practice, or procedure, or alternative method; and
    (iii) Making facilities readily accessible to and usable by 
individuals with disabilities;
    (2) May award other relief as the court considers to be appropriate, 
including monetary damages to persons aggrieved when requested by the 
Attorney General; and
    (3) May, to vindicate the public interest, assess a civil penalty 
against the entity in an amount
    (i) Not exceeding $50,000 for a first violation occurring before 
September 29, 1999, and not exceeding $55,000 for a first violation 
occurring on or after September 29, 1999; and
    (ii) Not exceeding $100,000 for any subsequent violation occurring 
before September 29, 1999, and not exceeding $110,000 for any subsequent 
violation occurring on or after September 29, 1999.
    (b) Single violation. For purposes of paragraph (a) (3) of this 
section, in determining whether a first or subsequent violation has 
occurred, a determination in a single action, by judgment or settlement, 
that the covered entity has engaged in more than one discriminatory act 
shall be counted as a single violation.
    (c) Punitive damages. For purposes of paragraph (a)(2) of this 
section, the

[[Page 605]]

terms ``monetary damages'' and ``such other relief'' do not include 
punitive damages.
    (d) Judicial consideration. In a civil action under Sec. 36.503, 
the court, when considering what amount of civil penalty, if any, is 
appropriate, shall give consideration to any good faith effort or 
attempt to comply with this part by the entity. In evaluating good 
faith, the court shall consider, among other factors it deems relevant, 
whether the entity could have reasonably anticipated the need for an 
appropriate type of auxiliary aid needed to accommodate the unique needs 
of a particular individual with a disability.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No. 
2249-99, 64 FR 47103, Aug. 30, 1999]



Sec. 36.505  Attorneys fees.

    In any action or administrative proceeding commenced pursuant to the 
Act or this part, the court or agency, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee, including litigation expenses, and costs, and the United States 
shall be liable for the foregoing the same as a private individual.



Sec. 36.506  Alternative means of dispute resolution.

    Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement 
negotiations, conciliation, facilitation, mediation, factfinding, 
minitrials, and arbitration, is encouraged to resolve disputes arising 
under the Act and this part.



Sec. 36.507  Effect of unavailability of technical assistance.

    A public accommodation or other private entity shall not be excused 
from compliance with the requirements of this part because of any 
failure to receive technical assistance, including any failure in the 
development or dissemination of any technical assistance manual 
authorized by the Act.



Sec. 36.508  Effective date.

    (a) General. Except as otherwise provided in this section and in 
this part, this part shall become effective on January 26, 1992.
    (b) Civil actions. Except for any civil action brought for a 
violation of section 303 of the Act, no civil action shall be brought 
for any act or omission described in section 302 of the Act that 
occurs--
    (1) Before July 26, 1992, against businesses with 25 or fewer 
employees and gross receipts of $1,000,000 or less.
    (2) Before January 26, 1993, against businesses with 10 or fewer 
employees and gross receipts of $500,000 or less.
    (c) Transportation services provided by public accommodations. Newly 
purchased or leased vehicles required to be accessible by Sec. 36.310 
must be readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, if the 
solicitation for the vehicle is made after August 25, 1990.



Sec. Sec. 36.509-36.599  [Reserved]



      Subpart F_Certification of State Laws or Local Building Codes



Sec. 36.601  Definitions.

    Assistant Attorney General means the Assistant Attorney General for 
Civil Rights or his or her designee.
    Certification of equivalency means a final certification that a code 
meets or exceeds the minimum requirements of title III of the Act for 
accessibility and usability of facilities covered by that title.
    Code means a State law or local building code or similar ordinance, 
or part thereof, that establishes accessibility requirements.
    Model code means a nationally recognized document developed by a 
private entity for use by State or local jurisdictions in developing 
codes as defined in this section. A model code is intended for 
incorporation by reference or adoption in whole or in part, with or 
without amendment, by State or local jurisdictions.
    Preliminary determination of equivalency means a preliminary 
determination that a code appears to meet or exceed the minimum 
requirements of title III of the Act for accessibility and usability of 
facilities covered by that title.

[[Page 606]]

    Submitting official means the State or local official who--
    (1) Has principal responsibility for administration of a code, or is 
authorized to submit a code on behalf of a jurisdiction; and
    (2) Files a request for certification under this subpart.



Sec. 36.602  General rule.

    On the application of a State or local government, the Assistant 
Attorney General may certify that a code meets or exceeds the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part by 
issuing a certification of equivalency. At any enforcement proceeding 
under title III of the Act, such certification shall be rebuttable 
evidence that such State law or local ordinance does meet or exceed the 
minimum requirements of title III.



Sec. 36.603  Filing a request for certification.

    (a) A submitting official may file a request for certification of a 
code under this subpart.
    (b) Before filing a request for certification of a code, the 
submitting official shall ensure that--
    (1) Adequate public notice of intention to file a request for 
certification, notice of a hearing, and notice of the location at which 
the request and materials can be inspected is published within the 
relevant jurisdiction;
    (2) Copies of the proposed request and supporting materials are made 
available for public examination and copying at the office of the State 
or local agency charged with administration and enforcement of the code; 
and
    (3) The local or State jurisdiction holds a public hearing on the 
record, in the State or locality, at which the public is invited to 
comment on the proposed request for certification.
    (c) The submitting official shall include the following materials 
and information in support of the request:
    (1) The text of the jurisdiction's code; any standard, regulation, 
code, or other relevant document incorporated by reference or otherwise 
referenced in the code; the law creating and empowering the agency; any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code; and any formal opinions of the State Attorney 
General or the chief legal officer of the jurisdiction that pertain to 
the code;
    (2) Any model code or statute on which the pertinent code is based, 
and an explanation of any differences between the model and the 
pertinent code;
    (3) A transcript of the public hearing required by paragraph (b)(3) 
of this section; and
    (4) Any additional information that the submitting official may wish 
to be considered.
    (d) The submitting official shall file the original and one copy of 
the request and of supporting materials with the Assistant Attorney 
General. The submitting official shall clearly label the request as a 
``request for certification'' of a code. A copy of the request and 
supporting materials will be available for public examination and 
copying at the offices of the Assistant Attorney General in Washington, 
DC. The submitting official shall ensure that copies of the request and 
supporting materials are available for public examination and copying at 
the office of the State or local agency charged with administration and 
enforcement of the code. The submitting official shall ensure that 
adequate public notice of the request for certification and of the 
location at which the request and materials can be inspected is 
published within the relevant jurisdiction.
    (e) Upon receipt of a request for certification, the Assistant 
Attorney General may request further information that he or she 
considers relevant to the determinations required to be made under this 
subpart.

(Approved by the Office of Management and Budget under control number 
1190-0005)

[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR 
17522, Apr. 5, 1993]



Sec. 36.604  Preliminary determination.

    After consultation with the Architectural and Transportation 
Barriers Compliance Board, the Assistant Attorney General shall make a 
preliminary determination of equivalency or a preliminary determination 
to deny certification.

[[Page 607]]



Sec. 36.605  Procedure following preliminary determination of equivalency.

    (a) If the Assistant Attorney General makes a preliminary 
determination of equivalency under Sec. 36.604, he or she shall inform 
the submitting official, in writing, of that preliminary determination. 
The Assistant Attorney General shall also--
    (1) Publish a notice in the Federal Register that advises the public 
of the preliminary determination of equivalency with respect to the 
particular code, and invite interested persons and organizations, 
including individuals with disabilities, during a period of at least 60 
days following publication of the notice, to file written comments 
relevant to whether a final certification of equivalency should be 
issued;
    (2) After considering the information received in response to the 
notice described in paragraph (a) of this section, and after publishing 
a separate notice in the Federal Register, hold an informal hearing in 
Washington, DC at which interested persons, including individuals with 
disabilities, are provided an opportunity to express their views with 
respect to the preliminary determination of equivalency; and
    (b) The Assistant Attorney General, after consultation with the 
Architectural and Transportation Barriers Compliance Board, and 
consideration of the materials and information submitted pursuant to 
this section and Sec. 36.603, shall issue either a certification of 
equivalency or a final determination to deny the request for 
certification. He or she shall publish notice of the certification of 
equivalency or denial of certification in the Federal Register.



Sec. 36.606  Procedure following preliminary denial of certification.

    (a) If the Assistant Attorney General makes a Preliminary 
determination to deny certification of a code under Sec. 36.604, he or 
she shall notify the submitting official of the determination. The 
notification may include specification of the manner in which the code 
could be amended in order to qualify for certification.
    (b) The Assistant Attorney General shall allow the submitting 
official not less than 15 days to submit data, views, and arguments in 
opposition to the preliminary determination to deny certification. If 
the submitting official does not submit materials, the Assistant 
Attorney General shall not be required to take any further action. If 
the submitting official submits materials, the Assistant Attorney 
General shall evaluate those materials and any other relevant 
information. After evaluation of any newly submitted materials, the 
Assistant Attorney General shall make either a final denial of 
certification or a preliminary determination of equivalency.



Sec. 36.607  Effect of certification.

    (a)(1) A certification shall be considered a certification of 
equivalency only with respect to those features or elements that are 
both covered by the certified code and addressed by the standards 
against which equivalency is measured.
    (2) For example, if certain equipment is not covered by the code, 
the determination of equivalency cannot be used as evidence with respect 
to the question of whether equipment in a building built according to 
the code satisfies the Act's requirements with respect to such 
equipment. By the same token, certification would not be relevant to 
construction of a facility for children, if the regulations against 
which equivalency is measured do not address children's facilities.
    (b) A certification of equivalency is effective only with respect to 
the particular edition of the code for which certification is granted. 
Any amendments or other changes to the code after the date of the 
certified edition are not considered part of the certification.
    (c) A submitting official may reapply for certification of 
amendments or other changes to a code that has already received 
certification.



Sec. 36.608  Guidance concerning model codes.

    Upon application by an authorized representative of a private entity 
responsible for developing a model code, the Assistant Attorney General 
may review the relevant model code and issue guidance concerning whether 
and

[[Page 608]]

in what respects the model code is consistent with the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part.



       Sec. Appendix A to Part 36--Standards for Accessible Design
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[56 FR 35592, July 26, 1991, as amended by Order No. 1679-93, 58 FR 
17522, Apr. 5, 1993; Order No. 1836-94, 59 FR 2675, Jan. 18, 1994]

[[Page 699]]



Sec. Appendix B to Part 36--Preamble to Regulation on Nondiscrimination 
 on the Basis of Disability by Public Accommodations and in Commercial 
                  Facilities (Published July 26, 1991)

    Note: For the convenience of the reader, this appendix contains the 
text of the preamble to the final regulation on nondiscrimination on the 
basis of disability by public accommodations and in commercial 
facilities beginning at the heading ``Section-by-Section Analysis and 
Response to Comments'' and ending before ``List of Subjects in 28 CFR 
part 36'' (56 FR 35546, July 26, 1991).

          Section-By-Section Analysis and Response to Comments

                           Subpart A--General

                         Section 36.101 Purpose

    Section 36.101 states the purpose of the rule, which is to 
effectuate title III of the Americans with Disabilities Act of 1990. 
This title prohibits discrimination on the basis of disability by public 
accommodations, requires places of public accommodation and commercial 
facilities to be designed, constructed, and altered in compliance with 
the accessibility standards established by this part, and requires that 
examinations or courses related to licensing or certification for 
professional or trade purposes be accessible to persons with 
disabilities.

                       Section 36.102 Application

    Section 36.102 specifies the range of entities and facilities that 
have obligations under the final rule. The rule applies to any public 
accommodation or commercial facility as those terms are defined in Sec. 
36.104. It also applies, in accordance with section 309 of the ADA, to 
private entities that offer examinations or courses related to 
applications, licensing, certification, or credentialing for secondary 
or postsecondary education, professional, or trade purposes. Except as 
provided in Sec. 36.206, ``Retaliation or coercion,'' this part does 
not apply to individuals other than public accommodations or to public 
entities. Coverage of private individuals and public entities is 
discussed in the preamble to Sec. 36.206.
    As defined in Sec. 36.104, a public accommodation is a private 
entity that owns, leases or leases to, or operates a place of public 
accommodation. Section 36.102(b)(2) emphasizes that the general and 
specific public accommodations requirements of subparts B and C obligate 
a public accommodation only with respect to the operations of a place of 
public accommodation. This distinction is drawn in recognition of the 
fact that a private entity that meets the regulatory definition of 
public accommodation could also own, lease or lease to, or operate 
facilities that are not places of public accommodation. The rule would 
exceed the reach of the ADA if it were to apply the public 
accommodations requirements of subparts B and C to the operations of a 
private entity that do not involve a place of public accommodation. 
Similarly, Sec. 36.102(b)(3) provides that the new construction and 
alterations requirements of subpart D obligate a public accommodation 
only with respect to facilities used as, or designed or constructed for 
use as, places of public accommodation or commercial facilities.
    On the other hand, as mandated by the ADA and reflected in Sec. 
36.102(c), the new construction and alterations requirements of subpart 
D apply to a commercial facility whether or not the facility is a place 
of public accommodation, or is owned, leased, leased to, or operated by 
a public accommodation.
    Section 36.102(e) states that the rule does not apply to any private 
club, religious entity, or public entity. Each of these terms is defined 
in Sec. 36.104. The exclusion of private clubs and religious entities 
is derived from section 307 of the ADA; and the exclusion of public 
entities is based on the statutory definition of public accommodation in 
section 301(7) of the ADA, which excludes entities other than private 
entities from coverage under title III of the ADA.

                Section 36.103 Relationship to Other Laws

    Section 36.103 is derived from sections 501 (a) and (b) of the ADA. 
Paragraph (a) provides that, except as otherwise specifically provided 
by this part, the ADA is not intended to apply lesser standards than are 
required under title V of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 790-794), or the regulations implementing that title. The 
standards of title V of the Rehabilitation Act apply for purposes of the 
ADA to the extent that the ADA has not explicitly adopted a different 
standard from title V. Where the ADA explicitly provides a different 
standard from section 504, the ADA standard applies to the ADA, but not 
to section 504. For example, section 504 requires that all federally 
assisted programs and activities be readily accessible to and usable by 
individuals with handicaps, even if major structural alterations are 
necessary to make a program accessible. Title III of the ADA, in 
contrast, only requires alterations to existing facilities if the 
modifications are ``readily achievable,'' that is, able to be 
accomplished easily and without much difficulty or expense. A public 
accommodation that is covered under both section 504 and the ADA is 
still required to meet the ``program accessibility'' standard in order 
to comply with section 504, but would not be in violation of the ADA 
unless

[[Page 700]]

it failed to make ``readily achievable'' modifications. On the other 
hand, an entity covered by the ADA is required to make ``readily 
achievable'' modifications, even if the program can be made accessible 
without any architectural modifications. Thus, an entity covered by both 
section 504 and title III of the ADA must meet both the ``program 
accessibility'' requirement and the ``readily achievable'' requirement.
    Paragraph (b) makes explicit that the rule does not affect the 
obligation of recipients of Federal financial assistance to comply with 
the requirements imposed under section 504 of the Rehabilitation Act of 
1973.
    Paragraph (c) makes clear that Congress did not intend to displace 
any of the rights or remedies provided by other Federal laws or other 
State or local laws (including State common law) that provide greater or 
equal protection to individuals with disabilities. A plaintiff may 
choose to pursue claims under a State law that does not confer greater 
substantive rights, or even confers fewer substantive rights, if the 
alleged violation is protected under the alternative law and the 
remedies are greater. For example, assume that a person with a physical 
disability seeks damages under a State law that allows compensatory and 
punitive damages for discrimination on the basis of physical disability, 
but does not allow them on the basis of mental disability. In that 
situation, the State law would provide narrower coverage, by excluding 
mental disabilities, but broader remedies, and an individual covered by 
both laws could choose to bring an action under both laws. Moreover, 
State tort claims confer greater remedies and are not preempted by the 
ADA. A plaintiff may join a State tort claim to a case brought under the 
ADA. In such a case, the plaintiff must, of course, prove all the 
elements of the State tort claim in order to prevail under that cause of 
action.
    A commenter had concerns about privacy requirements for banking 
transactions using telephone relay services. Title IV of the Act 
provides adequate protections for ensuring the confidentiality of 
communications using the relay services. This issue is more 
appropriately addressed by the Federal Communications Commission in its 
regulation implementing title IV of the Act.

                       Section 36.104 Definitions

    ``Act.'' The word ``Act'' is used in the regulation to refer to the 
Americans with Disabilities Act of 1990, Pub. L. 101-336, which is also 
referred to as the ``ADA.''
    ``Commerce.'' The definition of ``commerce'' is identical to the 
statutory definition provided in section 301(l) of the ADA. It means 
travel, trade, traffic, commerce, transportation, or communication among 
the several States, between any foreign country or any territory or 
possession and any State, or between points in the same State but 
through another State or foreign country. Commerce is defined in the 
same manner as in title II of the Civil Rights Act of 1964, which 
prohibits racial discrimination in public accommodations.
    The term ``commerce'' is used in the definition of ``place of public 
accommodation.'' According to that definition, one of the criteria that 
an entity must meet before it can be considered a place of public 
accommodation is that its operations affect commerce. The term 
``commerce'' is similarly used in the definition of ``commercial 
facility.''
    The use of the phrase ``operations affect commerce'' applies the 
full scope of coverage of the Commerce Clause of the Constitution in 
enforcing the ADA. The Constitution gives Congress broad authority to 
regulate interstate commerce, including the activities of local business 
enterprises (e.g., a physician's office, a neighborhood restaurant, a 
laundromat, or a bakery) that affect interstate commerce through the 
purchase or sale of products manufactured in other States, or by 
providing services to individuals from other States. Because of the 
integrated nature of the national economy, the ADA and this final rule 
will have extremely broad application.
    ``Commercial facilities'' are those facilities that are intended for 
nonresidential use by a private entity and whose operations affect 
commerce. As explained under Sec. 36.401, ``New construction,'' the new 
construction and alteration requirements of subpart D of the rule apply 
to all commercial facilities, whether or not they are places of public 
accommodation. Those commercial facilities that are not places of public 
accommodation are not subject to the requirements of subparts B and C 
(e.g., those requirements concerning auxiliary aids and general 
nondiscrimination provisions).
    Congress recognized that the employees within commercial facilities 
would generally be protected under title I (employment) of the Act. 
However, as the House Committee on Education and Labor pointed out, 
``[t]o the extent that new facilities are built in a manner that make[s] 
them accessible to all individuals, including potential employees, there 
will be less of a need for individual employers to engage in reasonable 
accommodations for particular employees.'' H.R. Rep. No. 485, 101st 
Cong., 2d Sess., pt. 2, at 117 (1990) [hereinafter ``Education and Labor 
report'']. While employers of fewer than 15 employees are not covered by 
title I's employment discrimination provisions, there is no such 
limitation with respect to new construction covered under title III. 
Congress chose not to so limit the new construction provisions because 
of its desire for a uniform requirement of accessibility in new 
construction, because accessibility can be accomplished easily in the 
design and construction

[[Page 701]]

stage, and because future expansion of a business or sale or lease of 
the property to a larger employer or to a business that is a place of 
public accommodation is always a possibility.
    The term ``commercial facilities'' is not intended to be defined by 
dictionary or common industry definitions. Included in this category are 
factories, warehouses, office buildings, and other buildings in which 
employment may occur. The phrase, ``whose operations affect commerce,'' 
is to be read broadly, to include all types of activities reached under 
the commerce clause of the Constitution.
    Privately operated airports are also included in the category of 
commercial facilities. They are not, however, places of public 
accommodation because they are not terminals used for ``specified public 
transportation.'' (Transportation by aircraft is specifically excluded 
from the statutory definition of ``specified public transportation.'') 
Thus, privately operated airports are subject to the new construction 
and alteration requirements of this rule (subpart D) but not to subparts 
B and C. (Airports operated by public entities are covered by title II 
of the Act.) Places of public accommodation located within airports, 
such as restaurants, shops, lounges, or conference centers, however, are 
covered by subparts B and C of this part.
    The statute's definition of ``commercial facilities'' specifically 
includes only facilities ``that are intended for nonresidential use'' 
and specifically exempts those facilities that are covered or expressly 
exempted from coverage under the Fair Housing Act of 1968, as amended 
(42 U.S.C. 3601-3631). The interplay between the Fair Housing Act and 
the ADA with respect to those facilities that are ``places of public 
accommodation'' was the subject of many comments and is addressed in the 
preamble discussion of the definition of ``place of public 
accommodation.''
    ``Current illegal use of drugs.'' The phrase ``current illegal use 
of drugs'' is used in Sec. 36.209. Its meaning is discussed in the 
preamble for that section.
    ``Disability.'' The definition of the term ``disability'' is 
comparable to the definition of the term ``individual with handicaps'' 
in section 7(8)(B) of the Rehabilitation Act and section 802(h) of the 
Fair Housing Act. The Education and Labor Committee report makes clear 
that the analysis of the term ``individual with handicaps'' by the 
Department of Health, Education, and Welfare in its regulations 
implementing section 504 (42 FR 22685 (May 4, 1977)) and the analysis by 
the Department of Housing and Urban Development in its regulation 
implementing the Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan. 
23, 1989)) should also apply fully to the term ``disability'' (Education 
and Labor report at 50).
    The use of the term ``disability'' instead of ``handicap'' and the 
term ``individual with a disability'' instead of ``individual with 
handicaps'' represents an effort by the Congress to make use of up-to-
date, currently accepted terminology. The terminology applied to 
individuals with disabilities is a very significant and sensitive issue. 
As with racial and ethnic terms, the choice of words to describe a 
person with a disability is overlaid with stereotypes, patronizing 
attitudes, and other emotional connotations. Many individuals with 
disabilities, and organizations representing such individuals, object to 
the use of such terms as ``handicapped person'' or ``the handicapped.'' 
In other recent legislation, Congress also recognized this shift in 
terminology, e.g., by changing the name of the National Council on the 
Handicapped to the National Council on Disability (Pub. L. 100-630).
    In enacting the Americans with Disabilities Act, Congress concluded 
that it was important for the current legislation to use terminology 
most in line with the sensibilities of most Americans with disabilities. 
No change in definition or substance is intended nor should be 
attributed to this change in phraseology.
    The term ``disability'' means, with respect to an individual--
    (A) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (B) A record of such an impairment; or
    (C) Being regarded as having such an impairment.
    If an individual meets any one of these three tests, he or she is 
considered to be an individual with a disability for purposes of 
coverage under the Americans with Disabilities Act.
    Congress adopted this same basic definition of ``disability,'' first 
used in the Rehabilitation Act of 1973 and in the Fair Housing 
Amendments Act of 1988, for a number of reasons. It has worked well 
since it was adopted in 1974. There is a substantial body of 
administrative interpretation and judicial precedent on this definition. 
Finally, it would not be possible to guarantee comprehensiveness by 
providing a list of specific disabilities, especially because new 
disorders may be recognized in the future, as they have since the 
definition was first established in 1974.

Test A--A Physical or Mental Impairment That Substantially Limits One or 
          More of the Major Life Activities of Such Individual

    Physical or mental impairment. Under the first test, an individual 
must have a physical or mental impairment. As explained in paragraph (1) 
(i) of the definition, ``impairment'' means any physiological disorder 
or condition, cosmetic disfigurement, or anatomical

[[Page 702]]

loss affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs (including speech organs that are 
not respiratory, such as vocal cords, soft palate, and tongue); 
respiratory, including speech organs; cardiovascular; reproductive; 
digestive; genitourinary; hemic and lymphatic; skin; and endocrine. It 
also means any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. This list closely tracks the one used in 
the regulations for section 504 of the Rehabilitation Act of 1973 (see, 
e.g., 45 CFR 84.3(j)(2)(i)).
    Many commenters asked that ``traumatic brain injury'' be added to 
the list in paragraph (1)(i). Traumatic brain injury is already included 
because it is a physiological condition affecting one of the listed body 
systems, i.e., ``neurological.'' Therefore, it was unnecessary for the 
Department to add the term to the regulation.
    It is not possible to include a list of all the specific conditions, 
contagious and noncontagious diseases, or infections that would 
constitute physical or mental impairments because of the difficulty of 
ensuring the comprehensiveness of such a list, particularly in light of 
the fact that other conditions or disorders may be identified in the 
future. However, the list of examples in paragraph (1)(iii) of the 
definition includes: Orthopedic, visual, speech and hearing impairments; 
cerebral palsy; epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
specific learning disabilities, HIV disease (symptomatic or 
asymptomatic), tuberculosis, drug addiction, and alcoholism.
    The examples of ``physical or mental impairments'' in paragraph 
(1)(iii) are the same as those contained in many section 504 
regulations, except for the addition of the phrase ``contagious and 
noncontagious'' to describe the types of diseases and conditions 
included, and the addition of ``HIV disease (symptomatic or 
asymptomatic)'' and ``tuberculosis'' to the list of examples. These 
additions are based on the ADA committee reports, caselaw, and official 
legal opinions interpreting section 504. In School Board of Nassau 
County v. Arline, 480 U.S. 273 (1987), a case involving an individual 
with tuberculosis, the Supreme Court held that people with contagious 
diseases are entitled to the protections afforded by section 504. 
Following the Arline decision, this Department's Office of Legal Counsel 
issued a legal opinion that concluded that symptomatic HIV disease is an 
impairment that substantially limits a major life activity; therefore it 
has been included in the definition of disability under this part. The 
opinion also concluded that asymptomatic HIV disease is an impairment 
that substantially limits a major life activity, either because of its 
actual effect on the individual with HIV disease or because the 
reactions of other people to individuals with HIV disease cause such 
individuals to be treated as though they are disabled. See Memorandum 
from Douglas W. Kmiec, Acting Assistant Attorney General, Office of 
Legal Counsel, Department of Justice, to Arthur B. Culvahouse, Jr., 
Counsel to the President (Sept. 27, 1988), reprinted in Hearings on S. 
933, the Americans with Disabilities Act, Before the Subcomm. on the 
Handicapped of the Senate Comm. on Labor and Human Resources, 101st 
Cong., 1st Sess. 346 (1989). The phrase ``symptomatic or asymptomatic'' 
was inserted in the final rule after ``HIV disease'' in response to 
commenters who suggested that the clarification was necessary to give 
full meaning to the Department's opinion.
    Paragraph (1)(iv) of the definition states that the phrase 
``physical or mental impairment'' does not include homosexuality or 
bisexuality. These conditions were never considered impairments under 
other Federal disability laws. Section 511(a) of the statute makes clear 
that they are likewise not to be considered impairments under the 
Americans with Disabilities Act.
    Physical or mental impairment does not include simple physical 
characteristics, such as blue eyes or black hair. Nor does it include 
environmental, cultural, economic, or other disadvantages, such as 
having a prison record, or being poor. Nor is age a disability. 
Similarly, the definition does not include common personality traits 
such as poor judgment or a quick temper where these are not symptoms of 
a mental or psychological disorder. However, a person who has these 
characteristics and also has a physical or mental impairment may be 
considered as having a disability for purposes of the Americans with 
Disabilities Act based on the impairment.
    Substantial limitation of a major life activity. Under Test A, the 
impairment must be one that ``substantially limits a major life 
activity.'' Major life activities include such things as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working. For example, a person who is 
paraplegic is substantially limited in the major life activity of 
walking, a person who is blind is substantially limited in the major 
life activity of seeing, and a person who is mentally retarded is 
substantially limited in the major life activity of learning. A person 
with traumatic brain injury is substantially limited in the major life 
activities of caring for one's self, learning, and working because of 
memory deficit, confusion, contextual difficulties, and inability to 
reason appropriately.
    A person is considered an individual with a disability for purposes 
of Test A, the first prong of the definition, when the individual's

[[Page 703]]

important life activities are restricted as to the conditions, manner, 
or duration under which they can be performed in comparison to most 
people. A person with a minor, trivial impairment, such as a simple 
infected finger, is not impaired in a major life activity. A person who 
can walk for 10 miles continuously is not substantially limited in 
walking merely because, on the eleventh mile, he or she begins to 
experience pain, because most people would not be able to walk eleven 
miles without experiencing some discomfort.
    The Department received many comments on the proposed rule's 
inclusion of the word ``temporary'' in the definition of ``disability.'' 
The preamble indicated that impairments are not necessarily excluded 
from the definition of ``disability'' simply because they are temporary, 
but that the duration, or expected duration, of an impairment is one 
factor that may properly be considered in determining whether the 
impairment substantially limits a major life activity. The preamble 
recognized, however, that temporary impairments, such as a broken leg, 
are not commonly regarded as disabilities, and only in rare 
circumstances would the degree of the limitation and its expected 
duration be substantial: Nevertheless, many commenters objected to 
inclusion of the word ``temporary'' both because it is not in the 
statute and because it is not contained in the definition of 
``disability'' set forth in the title I regulations of the Equal 
Employment Opportunity Commission (EEOC). The word ``temporary'' has 
been deleted from the final rule to conform with the statutory language. 
The question of whether a temporary impairment is a disability must be 
resolved on a case-by-case basis, taking into consideration both the 
duration (or expected duration) of the impairment and the extent to 
which it actually limits a major life activity of the affected 
individual.
    The question of whether a person has a disability should be assessed 
without regard to the availability of mitigating measures, such as 
reasonable modifications or auxiliary aids and services. For example, a 
person with hearing loss is substantially limited in the major life 
activity of hearing, even though the loss may be improved through the 
use of a hearing aid. Likewise, persons with impairments, such as 
epilepsy or diabetes, that substantially limit a major life activity, 
are covered under the first prong of the definition of disability, even 
if the effects of the impairment are controlled by medication.
    Many commenters asked that environmental illness (also known as 
multiple chemical sensitivity) as well as allergy to cigarette smoke be 
recognized as disabilities. The Department, however, declines to state 
categorically that these types of allergies or sensitivities are 
disabilities, because the determination as to whether an impairment is a 
disability depends on whether, given the particular circumstances at 
issue, the impairment substantially limits one or more major life 
activities (or has a history of, or is regarded as having such an 
effect).
    Sometimes respiratory or neurological functioning is so severely 
affected that an individual will satisfy the requirements to be 
considered disabled under the regulation. Such an individual would be 
entitled to all of the protections afforded by the Act and this part. In 
other cases, individuals may be sensitive to environmental elements or 
to smoke but their sensitivity will not rise to the level needed to 
constitute a disability. For example, their major life activity of 
breathing may be somewhat, but not substantially, impaired. In such 
circumstances, the individuals are not disabled and are not entitled to 
the protections of the statute despite their sensitivity to 
environmental agents.
    In sum, the determination as to whether allergies to cigarette 
smoke, or allergies or sensitivities characterized by the commenters as 
environmental illness are disabilities covered by the regulation must be 
made using the same case-by-case analysis that is applied to all other 
physical or mental impairments. Moreover, the addition of specific 
regulatory provisions relating to environmental illness in the final 
rule would be inappropriate at this time pending future consideration of 
the issue by the Architectural and Transportation Barriers Compliance 
Board, the Environmental Protection Agency, and the Occupational Safety 
and Health Administration of the Department of Labor.

                 Test B--A Record of Such an Impairment

    This test is intended to cover those who have a record of an 
impairment. As explained in paragraph (3) of the rule's definition of 
disability, this includes a person who has a history of an impairment 
that substantially limited a major life activity, such as someone who 
has recovered from an impairment. It also includes persons who have been 
misclassified as having an impairment.
    This provision is included in the definition in part to protect 
individuals who have recovered from a physical or mental impairment that 
previously substantially limited them in a major life activity. 
Discrimination on the basis of such a past impairment is prohibited. 
Frequently occurring examples of the first group (those who have a 
history of an impairment) are persons with histories of mental or 
emotional illness, heart disease, or cancer; examples of the second 
group (those who have been misclassified as having an impairment) are 
persons who have been misclassified as having mental retardation or 
mental illness.

[[Page 704]]

           Test C--Being Regarded as Having Such an Impairment

    This test, as contained in paragraph (4) of the definition, is 
intended to cover persons who are treated by a private entity or public 
accommodation as having a physical or mental impairment that 
substantially limits a major life activity. It applies when a person is 
treated as if he or she has an impairment that substantially limits a 
major life activity, regardless of whether that person has an 
impairment.
    The Americans with Disabilities Act uses the same ``regarded as'' 
test set forth in the regulations implementing section 504 of the 
Rehabilitation Act. See, e.g., 28 CFR 42.540(k)(2)(iv), which provides:
    (iv) ``Is regarded as having an impairment'' means (A) Has a 
physical or mental impairment that does not substantially limit major 
life activities but that is treated by a recipient as constituting such 
a limitation; (B) Has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) Has none of the impairments defined in 
paragraph (k)(2)(i) of this section but is treated by a recipient as 
having such an impairment.
    The perception of the private entity or public accommodation is a 
key element of this test. A person who perceives himself or herself to 
have an impairment, but does not have an impairment, and is not treated 
as if he or she has an impairment, is not protected under this test. A 
person would be covered under this test if a restaurant refused to serve 
that person because of a fear of ``negative reactions'' of others to 
that person. A person would also be covered if a public accommodation 
refused to serve a patron because it perceived that the patron had an 
impairment that limited his or her enjoyment of the goods or services 
being offered.
    For example, persons with severe burns often encounter 
discrimination in community activities, resulting in substantial 
limitation of major life activities. These persons would be covered 
under this test based on the attitudes of others towards the impairment, 
even if they did not view themselves as ``impaired.''
    The rationale for this third test, as used in the Rehabilitation Act 
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273 
(1987). The Court noted that, although an individual may have an 
impairment that does not in fact substantially limit a major life 
activity, the reaction of others may prove just as disabling. ``Such an 
impairment might not diminish a person's physical or mental 
capabilities, but could nevertheless substantially limit that person's 
ability to work as a result of the negative reactions of others to the 
impairment.'' Id. at 283. The Court concluded that, by including this 
test in the Rehabilitation Act's definition, ``Congress acknowledged 
that society's accumulated myths and fears about disability and disease 
are as handicapping as are the physical limitations that flow from 
actual impairment.'' Id. at 284.
    Thus, a person who is not allowed into a public accommodation 
because of the myths, fears, and stereotypes associated with 
disabilities would be covered under this third test whether or not the 
person's physical or mental condition would be considered a disability 
under the first or second test in the definition.
    If a person is refused admittance on the basis of an actual or 
perceived physical or mental condition, and the public accommodation can 
articulate no legitimate reason for the refusal (such as failure to meet 
eligibility criteria), a perceived concern about admitting persons with 
disabilities could be inferred and the individual would qualify for 
coverage under the ``regarded as'' test. A person who is covered because 
of being regarded as having an impairment is not required to show that 
the public accommodation's perception is inaccurate (e.g., that he will 
be accepted by others, or that insurance rates will not increase) in 
order to be admitted to the public accommodation.
    Paragraph (5) of the definition lists certain conditions that are 
not included within the definition of ``disability.'' The excluded 
conditions are: transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, other sexual behavior disorders, compulsive gambling, 
kleptomania, pyromania, and psychoactive substance use disorders 
resulting from current illegal use of drugs. Unlike homosexuality and 
bisexuality, which are not considered impairments under either the 
Americans with Disabilities Act (see the definition of ``disability,'' 
paragraph (1)(iv)) or section 504, the conditions listed in paragraph 
(5), except for transvestism, are not necessarily excluded as 
impairments under section 504. (Transvestism was excluded from the 
definition of disability for section 504 by the Fair Housing Amendments 
Act of 1988, Pub. L. 100-430, Sec. 6(b).) The phrase ``current illegal 
use of drugs'' used in this definition is explained in the preamble to 
Sec. 36.209.
    ``Drug.'' The definition of the term ``drug'' is taken from section 
510(d)(2) of the ADA.
    ``Facility.'' ``Facility'' means all or any portion of buildings, 
structures, sites, complexes, equipment, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located. Committee reports made clear that 
the definition of facility was drawn from the definition of facility in 
current Federal regulations (see, e.g., Education and Labor report

[[Page 705]]

at 114). It includes both indoor and outdoor areas where human-
constructed improvements, structures, equipment, or property have been 
added to the natural environment.
    The term ``rolling stock or other conveyances'' was not included in 
the definition of facility in the proposed rule. However, commenters 
raised questions about the applicability of this part to places of 
public accommodation operated in mobile facilities (such as cruise 
ships, floating restaurants, or mobile health units). Those places of 
public accommodation are covered under this part, and would be included 
in the definition of ``facility.'' Thus the requirements of subparts B 
and C would apply to those places of public accommodation. For example, 
a covered entity could not discriminate on the basis of disability in 
the full and equal enjoyment of the facilities (Sec. 36.201). 
Similarly, a cruise line could not apply eligibility criteria to 
potential passengers in a manner that would screen out individuals with 
disabilities, unless the criteria are ``necessary,'' as provided in 
Sec. 36.301.
    However, standards for new construction and alterations of such 
facilities are not yet included in the Americans with Disabilities Act 
Accessibility Guidelines for Buildings and Facilities (ADAAG) adopted by 
Sec. 36.406 and incorporated in appendix A. The Department therefore 
will not interpret the new construction and alterations provisions of 
subpart D to apply to the types of facilities discussed here, pending 
further development of specific requirements.
    Requirements pertaining to accessible transportation services 
provided by public accommodations are included in Sec. 36.310 of this 
part; standards pertaining to accessible vehicles will be issued by the 
Secretary of Transportation pursuant to section 306 of the Act, and will 
be codified at 49 CFR part 37.
    A public accommodation has obligations under this rule with respect 
to a cruise ship to the extent that its operations are subject to the 
laws of the United States.
    The definition of ``facility'' only includes the site over which the 
private entity may exercise control or on which a place of public 
accommodation or a commercial facility is located. It does not include, 
for example, adjacent roads or walks controlled by a public entity that 
is not subject to this part. Public entities are subject to the 
requirements of title II of the Act. The Department's regulation 
implementing title II, which will be codified at 28 CFR part 35, 
addresses the obligations of public entities to ensure accessibility by 
providing curb ramps at pedestrian walkways.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public accommodation acts on the basis of such use. The 
phrase ``current illegal use of drugs'' is explained in the preamble to 
Sec. 36.209.
    ``Place of public accommodation.'' The term ``place of public 
accommodation'' is an adaptation of the statutory definition of ``public 
accommodation'' in section 301(7) of the ADA and appears as an element 
of the regulatory definition of public accommodation. The final rule 
defines ``place of public accommodation'' as a facility, operated by a 
private entity, whose operations affect commerce and fall within at 
least one of 12 specified categories. The term ``public accommodation,'' 
on the other hand, is reserved by the final rule for the private entity 
that owns, leases (or leases to), or operates a place of public 
accommodation. It is the public accommodation, and not the place of 
public accommodation, that is subject to the regulation's 
nondiscrimination requirements. Placing the obligation not to 
discriminate on the public accommodation, as defined in the rule, is 
consistent with section 302(a) of the ADA, which places the obligation 
not to discriminate on any person who owns, leases (or leases to), or 
operates a place of public accommodation.
    Facilities operated by government agencies or other public entities 
as defined in this section do not qualify as places of public 
accommodation. The actions of public entities are governed by title II 
of the ADA and will be subject to regulations issued by the Department 
of Justice under that title. The receipt of government assistance by a 
private entity does not by itself preclude a facility from being 
considered as a place of public accommodation.
    The definition of place of public accommodation incorporates the 12 
categories of facilities represented in the statutory definition of 
public accommodation in section 301(7) of the ADA:
    1. Places of lodging.
    2. Establishments serving food or drink.
    3. Places of exhibition or entertainment.
    4. Places of public gathering.
    5. Sales or rental establishments.
    6. Service establishments.
    7. Stations used for specified public transportation.
    8. Places of public display or collection.
    9. Places of recreation.
    10. Places of education.
    11. Social service center establishments.
    12. Places of exercise or recreation.
    In order to be a place of public accommodation, a facility must be 
operated by a private entity, its operations must affect commerce, and 
it must fall within one of these 12

[[Page 706]]

categories. While the list of categories is exhaustive, the 
representative examples of facilities within each category are not. 
Within each category only a few examples are given. The category of 
social service center establishments would include not only the types of 
establishments listed, day care centers, senior citizen centers, 
homeless shelters, food banks, adoption agencies, but also 
establishments such as substance abuse treatment centers, rape crisis 
centers, and halfway houses. As another example, the category of sales 
or rental establishments would include an innumerable array of 
facilities that would sweep far beyond the few examples given in the 
regulation. For example, other retail or wholesale establishments 
selling or renting items, such as bookstores, videotape rental stores, 
car rental establishment, pet stores, and jewelry stores would also be 
covered under this category, even though they are not specifically 
listed.
    Several commenters requested clarification as to the coverage of 
wholesale establishments under the category of ``sales or rental 
establishments.'' The Department intends for wholesale establishments to 
be covered under this category as places of public accommodation except 
in cases where they sell exclusively to other businesses and not to 
individuals. For example, a company that grows food produce and supplies 
its crops exclusively to food processing corporations on a wholesale 
basis does not become a public accommodation because of these 
transactions. If this company operates a road side stand where its crops 
are sold to the public, the road side stand would be a sales 
establishment covered by the ADA. Conversely, a sales establishment that 
markets its goods as ``wholesale to the public'' and sells to 
individuals would not be exempt from ADA coverage despite its use of the 
word ``wholesale'' as a marketing technique.
    Of course, a company that operates a place of public accommodation 
is subject to this part only in the operation of that place of public 
accommodation. In the example given above, the wholesale produce company 
that operates a road side stand would be a public accommodation only for 
the purposes of the operation of that stand. The company would be 
prohibited from discriminating on the basis of disability in the 
operation of the road side stand, and it would be required to remove 
barriers to physical access to the extent that it is readily achievable 
to do so (see Sec. 36.304); however, in the event that it is not 
readily achievable to remove barriers, for example, by replacing a 
gravel surface or regrading the area around the stand to permit access 
by persons with mobility impairments, the company could meet its 
obligations through alternative methods of making its goods available, 
such as delivering produce to a customer in his or her car (see Sec. 
36.305). The concepts of readily achievable barrier removal and 
alternatives to barrier removal are discussed further in the preamble 
discussion of Sec. Sec. 36.304 and 36.305.
    Even if a facility does not fall within one of the 12 categories, 
and therefore does not qualify as a place of public accommodation, it 
still may be a commercial facility as defined in Sec. 36.104 and be 
subject to the new construction and alterations requirements of subpart 
D.
    A number of commenters questioned the treatment of residential 
hotels and other residential facilities in the Department's proposed 
rule. These commenters were essentially seeking resolution of the 
relationship between the Fair Housing Act and the ADA concerning 
facilities that are both residential in nature and engage in activities 
that would cause them to be classified as ``places of public 
accommodation'' under the ADA. The ADA's express exemption relating to 
the Fair Housing Act applies only to ``commercial facilities'' and not 
to ``places of public accommodation.''
    A facility whose operations affect interstate commerce is a place of 
public accommodation for purposes of the ADA to the extent that its 
operations include those types of activities engaged in or services 
provided by the facilities contained on the list of 12 categories in 
section 301(7) of the ADA. Thus, a facility that provides social 
services would be considered a ``social service center establishment.'' 
Similarly, the category ``places of lodging'' would exclude solely 
residential facilities because the nature of a place of lodging 
contemplates the use of the facility for short-term stays.
    Many facilities, however, are mixed use facilities. For example, in 
a large hotel that has a separate residential apartment wing, the 
residential wing would not be covered by the ADA because of the nature 
of the occupancy of that part of the facility. This residential wing 
would, however, be covered by the Fair Housing Act. The separate 
nonresidential accommodations in the rest of the hotel would be a place 
of lodging, and thus a public accommodation subject to the requirements 
of this final rule. If a hotel allows both residential and short-term 
stays, but does not allocate space for these different uses in separate, 
discrete units, both the ADA and the Fair Housing Act may apply to the 
facility. Such determinations will need to be made on a case-by-case 
basis. Any place of lodging of the type described in paragraph (1) of 
the definition of place of public accommodation and that is an 
establishment located within a building that contains not more than five 
rooms for rent or hire and is actually occupied by the proprietor of the 
establishment as his or her residence is not covered by the ADA. (This 
exclusion from coverage does not apply to other categories of public 
accommodations, for example, professional offices or homeless

[[Page 707]]

shelters, that are located in a building that is also occupied as a 
private residence.)
    A number of commenters noted that the term ``residential hotel'' may 
also apply to a type of hotel commonly known as a ``single room 
occupancy hotel.'' Although such hotels or portions of such hotels may 
fall under the Fair Housing Act when operated or used as long-term 
residences, they are also considered ``places of lodging'' under the ADA 
when guests of such hotels are free to use them on a short-term basis. 
In addition, ``single room occupancy hotels'' may provide social 
services to their guests, often through the operation of Federal or 
State grant programs. In such a situation, the facility would be 
considered a ``social service center establishment'' and thus covered by 
the ADA as a place of public accommodation, regardless of the length of 
stay of the occupants.
    A similar analysis would also be applied to other residential 
facilities that provide social services, including homeless shelters, 
shelters for people seeking refuge from domestic violence, nursing 
homes, residential care facilities, and other facilities where persons 
may reside for varying lengths of time. Such facilities should be 
analyzed under the Fair Housing Act to determine the application of that 
statute. The ADA, however, requires a separate and independent analysis. 
For example, if the facility, or a portion of the facility, is intended 
for or permits short-term stays, or if it can appropriately be 
categorized as a service establishment or as a social service 
establishment, then the facility or that portion of the facility used 
for the covered purpose is a place of public accommodation under the 
ADA. For example, a homeless shelter that is intended and used only for 
long-term residential stays and that does not provide social services to 
its residents would not be covered as a place of public accommodation. 
However, if this facility permitted short-term stays or provided social 
services to its residents, it would be covered under the ADA either as a 
``place of lodging'' or as a ``social service center establishment,'' or 
as both.
    A private home, by itself, does not fall within any of the 12 
categories. However, it can be covered as a place of public 
accommodation to the extent that it is used as a facility that would 
fall within one of the 12 categories. For example, if a professional 
office of a dentist, doctor, or psychologist is located in a private 
home, the portion of the home dedicated to office use (including areas 
used both for the residence and the office, e.g., the entrance to the 
home that is also used as the entrance to the professional office) would 
be considered a place of public accommodation. Places of public 
accommodation located in residential facilities are specifically 
addressed in Sec. 36.207.
    If a tour of a commercial facility that is not otherwise a place of 
public accommodation, such as, for example, a factory or a movie studio 
production set, is open to the general public, the route followed by the 
tour is a place of public accommodation and the tour must be operated in 
accordance with the rule's requirements for public accommodations. The 
place of public accommodation defined by the tour does not include those 
portions of the commercial facility that are merely viewed from the tour 
route. Hence, the barrier removal requirements of Sec. 36.304 only 
apply to the physical route followed by the tour participants and not to 
work stations or other areas that are merely adjacent to, or within view 
of, the tour route. If the tour is not open to the general public, but 
rather is conducted, for example, for selected business colleagues, 
partners, customers, or consultants, the tour route is not a place of 
public accommodation and the tour is not subject to the requirements for 
public accommodations.
    Public accommodations that receive Federal financial assistance are 
subject to the requirements of section 504 of the Rehabilitation Act as 
well as the requirements of the ADA.
    Private schools, including elementary and secondary schools, are 
covered by the rule as places of public accommodation. The rule itself, 
however, does not require a private school to provide a free appropriate 
education or develop an individualized education program in accordance 
with regulations of the Department of Education implementing section 504 
of the Rehabilitation Act of 1973, as amended (34 CFR part 104), and 
regulations implementing the Individuals with Disabilities Education Act 
(34 CFR part 300). The receipt of Federal assistance by a private 
school, however, would trigger application of the Department of 
Education's regulations to the extent mandated by the particular type of 
assistance received.
    ``Private club.'' The term ``private club'' is defined in accordance 
with section 307 of the ADA as a private club or establishment exempted 
from coverage under title II of the Civil Rights Act of 1964. Title II 
of the 1964 Act exempts any ``private club or other establishment not in 
fact open to the public, except to the extent that the facilities of 
such establishment are made available to the customers or patrons of [a 
place of public accommodation as defined in title II].'' The rule, 
therefore, as reflected in Sec. 36.102(e) of the application section, 
limits the coverage of private clubs accordingly. The obligations of a 
private club that rents space to any other private entity for the 
operation of a place of public accommodation are discussed further in 
connection with Sec. 36.201.
    In determining whether a private entity qualifies as a private club 
under title II, courts have considered such factors as the degree of 
member control of club operations, the selectivity of the membership 
selection

[[Page 708]]

process, whether substantial membership fees are charged, whether the 
entity is operated on a nonprofit basis, the extent to which the 
facilities are open to the public, the degree of public funding, and 
whether the club was created specifically to avoid compliance with the 
Civil Rights Act. See e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 
410 U.S. 431 (1973); Daniel v. Paul, 395 U.S. 298 (1969); Olzman v. Lake 
Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir. 1974); Anderson v. Pass 
Christian Isles Golf Club, Inc., 488 F.2d 855 (5th Cir. 1974); Smith v. 
YMCA, 462 F.2d 634 (5th Cir. 1972); Stout v. YMCA, 404 F.2d 687 (5th 
Cir. 1968); United States v. Richberg, 398 F.2d 523 (5th Cir. 1968); 
Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968); United States v. Lansdowne 
Swim Club, 713 F. Supp. 785 (E.D. Pa. 1989); Durham v. Red Lake Fishing 
and Hunting Club, Inc., 666 F. Supp. 954 (W.D. Tex. 1987); New York v. 
Ocean Club, Inc., 602 F. Supp. 489 (E.D.N.Y. 1984); Brown v. Loudoun 
Golf and Country Club, Inc., 573 F. Supp. 399 (E.D. Va. 1983); United 
States v. Trustees of Fraternal Order of Eagles, 472 F. Supp. 1174 (E.D. 
Wis. 1979); Cornelius v. Benevolent Protective Order of Elks, 382 F. 
Supp. 1182 (D. Conn. 1974).
    ``Private entity.'' The term ``private entity'' is defined as any 
individual or entity other than a public entity. It is used as part of 
the definition of ``public accommodation'' in this section.
    The definition adds ``individual'' to the statutory definition of 
private entity (see section 301(6) of the ADA). This addition clarifies 
that an individual may be a private entity and, therefore, may be 
considered a public accommodation if he or she owns, leases (or leases 
to), or operates a place of public accommodation. The explicit inclusion 
of individuals under the definition of private entity is consistent with 
section 302(a) of the ADA, which broadly prohibits discrimination on the 
basis of disability by any person who owns, leases (or leases to), or 
operates a place of public accommodation.
    ``Public accommodation.'' The term ``public accommodation'' means a 
private entity that owns, leases (or leases to), or operates a place of 
public accommodation. The regulatory term, ``public accommodation,'' 
corresponds to the statutory term, ``person,'' in section 302(a) of the 
ADA. The ADA prohibits discrimination ``by any person who owns, leases 
(or leases to), or operates a place of public accommodation.'' The text 
of the regulation consequently places the ADA's nondiscrimination 
obligations on ``public accommodations'' rather than on ``persons'' or 
on ``places of public accommodation.''
    As stated in Sec. 36.102(b)(2), the requirements of subparts B and 
C obligate a public accommodation only with respect to the operations of 
a place of public accommodation. A public accommodation must also meet 
the requirements of subpart D with respect to facilities used as, or 
designed or constructed for use as, places of public accommodation or 
commercial facilities.
    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act). It is used 
in the definition of ``private entity'' in Sec. 36.104. Public entities 
are excluded from the definition of private entity and therefore cannot 
qualify as public accommodations under this regulation. However, the 
actions of public entities are covered by title II of the ADA and by the 
Department's title II regulations codified at 28 CFR part 35.
    ``Qualified interpreter.'' The Department received substantial 
comment regarding the lack of a definition of ``qualified interpreter.'' 
The proposed rule defined auxiliary aids and services to include the 
statutory term, ``qualified interpreters'' (Sec. 36.303(b)), but did 
not define that term. Section 36.303 requires the use of a qualified 
interpreter where necessary to achieve effective communication, unless 
an undue burden or fundamental alteration would result. Commenters 
stated that a lack of guidance on what the term means would create 
confusion among those trying to secure interpreting services and often 
result in less than effective communication.
    Many commenters were concerned that, without clear guidance on the 
issue of ``qualified'' interpreter, the rule would be interpreted to 
mean ``available, rather than qualified'' interpreters. Some claimed 
that few public accommodations would understand the difference between a 
qualified interpreter and a person who simply knows a few signs or how 
to fingerspell.
    In order to clarify what is meant by ``qualified interpreter'' the 
Department has added a definition of the term to the final rule. A 
qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially both receptively and 
expressively, using any necessary specialized vocabulary. This 
definition focuses on the actual ability of the interpreter in a 
particular interpreting context to facilitate effective communication 
between the public accommodation and the individual with disabilities.
    Public comment also revealed that public accommodations have at 
times asked persons who are deaf to provide family members or friends to 
interpret. In certain circumstances, notwithstanding that the family 
member or friend is able to interpret or is a certified interpreter, the 
family member or friend may not be qualified to render the necessary 
interpretation because of factors such as emotional or personal 
involvement

[[Page 709]]

or considerations of confidentiality that may adversely affect the 
ability to interpret ``effectively, accurately, and impartially.''
    ``Readily achievable.'' The definition of ``readily achievable'' 
follows the statutory definition of that term in section 301(9) of the 
ADA. Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. The term is used as a 
limitation on the obligation to remove barriers under Sec. Sec. 
36.304(a), 36.305(a), 36.308(a), and 36.310(b). Further discussion of 
the meaning and application of the term ``readily achievable'' may be 
found in the preamble section for Sec. 36.304.
    The definition lists factors to be considered in determining whether 
barrier removal is readily achievable in any particular circumstance. A 
significant number of commenters objected to Sec. 36.306 of the 
proposed rule, which listed identical factors to be considered for 
determining ``readily achievable'' and ``undue burden'' together in one 
section. They asserted that providing a consolidated section blurred the 
distinction between the level of effort required by a public 
accommodation under the two standards. The readily achievable standard 
is a ``lower'' standard than the ``undue burden'' standard in terms of 
the level of effort required, but the factors used in determining 
whether an action is readily achievable or would result in an undue 
burden are identical (See Education and Labor report at 109). Although 
the preamble to the proposed rule clearly delineated the relationship 
between the two standards, to eliminate any confusion the Department has 
deleted Sec. 36.306 of the proposed rule. That section, in any event, 
as other commenters noted, had merely repeated the lists of factors 
contained in the definitions of readily achievable and undue burden.
    The list of factors included in the definition is derived from 
section 301(9) of the ADA. It reflects the congressional intention that 
a wide range of factors be considered in determining whether an action 
is readily achievable. It also takes into account that many local 
facilities are owned or operated by parent corporations or entities that 
conduct operations at many different sites. This section makes clear 
that, in some instances, resources beyond those of the local facility 
where the barrier must be removed may be relevant in determining whether 
an action is readily achievable. One must also evaluate the degree to 
which any parent entity has resources that may be allocated to the local 
facility.
    The statutory list of factors in section 301(9) of the Act uses the 
term ``covered entity'' to refer to the larger entity of which a 
particular facility may be a part. ``Covered entity'' is not a defined 
term in the ADA and is not used consistently throughout the Act. The 
definition, therefore, substitutes the term ``parent entity'' in place 
of ``covered entity'' in paragraphs (3), (4), and (5) when referring to 
the larger private entity whose overall resources may be taken into 
account. This usage is consistent with the House Judiciary Committee's 
use of the term ``parent company'' to describe the larger entity of 
which the local facility is a part (H.R. Rep. No. 485, 101st Cong., 2d 
Sess., pt. 3, at 40-41, 54-55 (1990) (hereinafter ``Judiciary 
report'')).
    A number of commenters asked for more specific guidance as to when 
and how the resources of a parent corporation or entity are to be taken 
into account in determining what is readily achievable. The Department 
believes that this complex issue is most appropriately resolved on a 
case-by-case basis. As the comments reflect, there is a wide variety of 
possible relationships between the site in question and any parent 
corporation or other entity. It would be unwise to posit legal 
ramifications under the ADA of even generic relationships (e.g., banks 
involved in foreclosures or insurance companies operating as trustees or 
in other similar fiduciary relationships), because any analysis will 
depend so completely on the detailed fact situations and the exact 
nature of the legal relationships involved. The final rule does, 
however, reorder the factors to be considered. This shift and the 
addition of the phrase ``if applicable'' make clear that the line of 
inquiry concerning factors will start at the site involved in the action 
itself. This change emphasizes that the overall resources, size, and 
operations of the parent corporation or entity should be considered to 
the extent appropriate in light of ``the geographic separateness, and 
the administrative or fiscal relationship of the site or sites in 
question to any parent corporation or entity.''
    Although some commenters sought more specific numerical guidance on 
the definition of readily achievable, the Department has declined to 
establish in the final rule any kind of numerical formula for 
determining whether an action is readily achievable. It would be 
difficult to devise a specific ceiling on compliance costs that would 
take into account the vast diversity of enterprises covered by the ADA's 
public accommodations requirements and the economic situation that any 
particular entity would find itself in at any moment. The final rule, 
therefore, implements the flexible case-by-case approach chosen by 
Congress.
    A number of commenters requested that security considerations be 
explicitly recognized as a factor in determining whether a barrier 
removal action is readily achievable. The Department believes that 
legitimate safety requirements, including crime prevention measures, may 
be taken into account so long as they are based on actual risks and are 
necessary for safe operation of the public accommodation. This point has 
been included in the definition.

[[Page 710]]

    Some commenters urged the Department not to consider acts of barrier 
removal in complete isolation from each other in determining whether 
they are readily achievable. The Department believes that it is 
appropriate to consider the cost of other barrier removal actions as one 
factor in determining whether a measure is readily achievable.
    ``Religious entity.'' The term ``religious entity'' is defined in 
accordance with section 307 of the ADA as a religious organization or 
entity controlled by a religious organization, including a place of 
worship. Section 36.102(e) of the rule states that the rule does not 
apply to any religious entity.
    The ADA's exemption of religious organizations and religious 
entities controlled by religious organizations is very broad, 
encompassing a wide variety of situations. Religious organizations and 
entities controlled by religious organizations have no obligations under 
the ADA. Even when a religious organization carries out activities that 
would othervise make it a public accommodation, the religious 
organization is exempt from ADA coverage. Thus, if a church itself 
operates a day care center, a nursing home, a private school, or a 
diocesan school system, the operations of the center, home, school, or 
schools would not be subject to the requirements of the ADA or this 
part. The religious entity would not lose its exemption merely because 
the services provided were open to the general public. The test is 
whether the church or other religious organization operates the public 
accommodation, not which individuals receive the public accommodation's 
services.
    Religious entities that are controlled by religious organizations 
are also exempt from the ADA's requirements. Many religious 
organizations in the United States use lay boards and other secular or 
corporate mechanisms to operate schools and an array of social services. 
The use of a lay board or other mechanism does not itself remove the 
ADA's religious exemption. Thus, a parochial school, having religious 
doctrine in its curriculum and sponsored by a religious order, could be 
exempt either as a religious organization or as an entity controlled by 
a religious organization, even if it has a lay board. The test remains a 
factual one--whether the church or other religious organization controls 
the operations of the school or of the service or whether the school or 
service is itself a religious organization.
    Although a religious organization or a religious entity that is 
controlled by a religious organization has no obligations under the 
rule, a public accommodation that is not itself a religious 
organization, but that operates a place of public accommodation in 
leased space on the property of a religious entity, which is not a place 
of worship, is subject to the rule's requirements if it is not under 
control of a religious organization. When a church rents meeting space, 
which is not a place of worship, to a local community group or to a 
private, independent day care center, the ADA applies to the activities 
of the local community group and day care center if a lease exists and 
consideration is paid.
    ``Service animal.'' The term ``service animal'' encompasses any 
guide dog, signal dog, or other animal individually trained to provide 
assistance to an individual with a disability. The term is used in Sec. 
36.302(c), which requires public accommodations generally to modify 
policies, practices, and procedures to accommodate the use of service 
animals in places of public accommodation.
    ``Specified public transportation.'' The definition of ``specified 
public transportation'' is identical to the statutory definition in 
section 301(10) of the ADA. The term means transportation by bus, rail, 
or any other conveyance (other than by aircraft) that provides the 
general public with general or special service (including charter 
service) on a regular and continuing basis. It is used in category (7) 
of the definition of ``place of public accommodation,'' which includes 
stations used for specified public transportation.
    The effect of this definition, which excludes transportation by 
aircraft, is that it excludes privately operated airports from coverage 
as places of public accommodation. However, places of public 
accommodation located within airports would be covered by this part. 
Airports that are operated by public entities are covered by title II of 
the ADA and, if they are operated as part of a program receiving Federal 
financial assistance, by section 504 of the Rehabilitation Act. 
Privately operated airports are similarly covered by section 504 if they 
are operated as part of a program receiving Federal financial 
assistance. The operations of any portion of any airport that are under 
the control of an air carrier are covered by the Air Carrier Access Act. 
In addition, airports are covered as commercial facilities under this 
rule.
    ``State.'' The definition of ``State'' is identical to the statutory 
definition in section 3(3) of the ADA. The term is used in the 
definitions of ``commerce'' and ``public entity'' in Sec. 36.104.
    ``Undue burden.'' The definition of ``undue burden'' is analogous to 
the statutory definition of ``undue hardship'' in employment under 
section 101(10) of the ADA. The term undue burden means ``significant 
difficulty or expense'' and serves as a limitation on the obligation to 
provide auxiliary aids and services under Sec. 36.303 and Sec. Sec. 
36.309 (b)(3) and (c)(3). Further discussion of the meaning and 
application of the term undue burden may be found in the preamble 
discussion of Sec. 36.303.
    The definition lists factors considered in determining whether 
provision of an auxiliary aid or service in any particular circumstance 
would result in an undue burden.

[[Page 711]]

The factors to be considered in determining whether an action would 
result in an undue burden are identical to those to be considered in 
determining whether an action is readily achievable. However, ``readily 
achievable'' is a lower standard than ``undue burden'' in that it 
requires a lower level of effort on the part of the public accommodation 
(see Education and Labor report at 109).
    Further analysis of the factors to be considered in determining 
undue burden may be found in the preamble discussion of the definition 
of the term ``readily achievable.''

                     Subpart B--General Requirements

    Subpart B includes general prohibitions restricting a public 
accommodation from discriminating against people with disabilities by 
denying them the opportunity to benefit from goods or services, by 
giving them unequal goods or services, or by giving them different or 
separate goods or services. These general prohibitions are patterned 
after the basic, general prohibitions that exist in other civil rights 
laws that prohibit discrimination on the basis of race, sex, color, 
religion, or national origin.

                         Section 36.201 General

    Section 36.201(a) contains the general rule that prohibits 
discrimination on the basis of disability in the full and equal 
enjoyment of goods, services, facilities, privileges, advantages, and 
accommodations of any place of public accommodation.
    Full and equal enjoyment means the right to participate and to have 
an equal opportunity to obtain the same results as others to the extent 
possible with such accommodations as may be required by the Act and 
these regulations. It does not mean that an individual with a disability 
must achieve an identical result or level of achievement as persons 
without a disability. For example, an exercise class cannot exclude a 
person who uses a wheelchair because he or she cannot do all of the 
exercises and derive the same result from the class as persons without a 
disability.
    Section 302(a) of the ADA states that the prohibition against 
discrimination applies to ``any person who owns, leases (or leases to), 
or operates a place of public accommodation,'' and this language is 
reflected in Sec. 36.201(a). The coverage is quite extensive and would 
include sublessees, management companies, and any other entity that 
owns, leases, leases to, or operates a place of public accommodation, 
even if the operation is only for a short time.
    The first sentence of paragraph (b) of Sec. 36.201 reiterates the 
general principle that both the landlord that owns the building that 
houses the place of public accommodation, as well as the tenant that 
owns or operates the place of public accommodation, are public 
accommodations subject to the requirements of this part. Although the 
statutory language could be interpreted as placing equal responsibility 
on all private entities, whether lessor, lessee, or operator of a public 
accommodation, the committee reports suggest that liability may be 
allocated. Section 36.201(b) of that section of the proposed rule 
attempted to allocate liability in the regulation itself. Paragraph 
(b)(2) of that section made a specific allocation of liability for the 
obligation to take readily achievable measures to remove barriers, and 
paragraph (b)(3) made a specific allocation for the obligation to 
provide auxiliary aids.
    Numerous commenters pointed out that these allocations would not 
apply in all situations. Some asserted that paragraph (b)(2) of the 
proposed rule only addressed the situation when a lease gave the tenant 
the right to make alterations with permission of the landlord, but 
failed to address other types of leases, e.g., those that are silent on 
the right to make alterations, or those in which the landlord is not 
permitted to enter a tenant's premises to make alterations. Several 
commenters noted that many leases contain other clauses more relevant to 
the ADA than the alterations clause. For example, many leases contain a 
``compliance clause,'' a clause which allocates responsibility to a 
particular party for compliance with all relevant Federal, State, and 
local laws. Many commenters pointed out various types of relationships 
that were left unaddressed by the regulation, e.g., sale and leaseback 
arrangements where the landlord is a financial institution with no 
control or responsibility for the building; franchises; subleases; and 
management companies which, at least in the hotel industry, often have 
control over operations but are unable to make modifications to the 
premises.
    Some commenters raised specific questions as to how the barrier 
removal allocation would work as a practical matter. Paragraph (b)(2) of 
the proposed rule provided that the burden of making readily achievable 
modifications within the tenant's place of public accommodation would 
shift to the landlord when the modifications were not readily achievable 
for the tenant or when the landlord denied a tenant's request for 
permission to make such modifications. Commenters noted that the rule 
did not specify exactly when the burden would actually shift from tenant 
to landlord and whether the landlord would have to accept a tenant's 
word that a particular action is not readily achievable. Others 
questioned if the tenant should be obligated to use alternative methods 
of barrier removal before the burden shifts. In light of the fact that 
readily achievable removal of barriers can include such actions as 
moving of racks and displays, some commenters doubted the 
appropriateness of requiring a

[[Page 712]]

landlord to become involved in day-to-day operations of its tenants' 
businesses.
    The Department received widely differing comments in response to the 
preamble question asking whether landlord and tenant obligations should 
vary depending on the length of time remaining on an existing lease. 
Many suggested that tenants should have no responsibilities in ``shorter 
leases,'' which commenters defined as ranging anywhere from 90 days to 
three years. Other commenters pointed out that the time remaining on the 
lease should not be a factor in the rule's allocation of 
responsibilities, but is relevant in determining what is readily 
achievable for the tenant. The Department agrees with this latter 
approach and will interpret the rule in that manner.
    In recognition of the somewhat limited applicability of the 
allocation scheme contained in the proposed rule, paragraphs (b)(2) and 
(b)(3) have been deleted from the final rule. The Department has 
substituted instead a statement that allocation of responsibility as 
between the parties for taking readily achievable measures to remove 
barriers and to provide auxiliary aids and services both in common areas 
and within places of public accommodation may be determined by the lease 
or other contractual relationships between the parties. The ADA was not 
intended to change existing landlord/tenant responsibilities as set 
forth in the lease. By deleting specific provisions from the rule, the 
Department gives full recognition to this principle. As between the 
landlord and tenant, the extent of responsibility for particular 
obligations may be, and in many cases probably will be, determined by 
contract.
    The suggested allocation of responsibilities contained in the 
proposed rule may be used if appropriate in a particular situation. 
Thus, the landlord would generally be held responsible for making 
readily achievable changes and providing auxiliary aids and services in 
common areas and for modifying policies, practices, or procedures 
applicable to all tenants, and the tenant would generally be responsible 
for readily achievable changes, provision of auxiliary aids, and 
modification of policies within its own place of public accommodation.
    Many commenters objected to the proposed rule's allocation of 
responsibility for providing auxiliary aids and services solely to the 
tenant, pointing out that this exclusive allocation may not be 
appropriate in the case of larger public accommodations that operate 
their businesses by renting space out to smaller public accommodations. 
For example, large theaters often rent to smaller traveling companies 
and hospitals often rely on independent contractors to provide 
childbirth classes. Groups representing persons with disabilities 
objected to the proposed rule because, in their view, it permitted the 
large theater or hospital to evade ADA responsibilities by leasing to 
independent smaller entities. They suggested that these types of public 
accommodations are not really landlords because they are in the business 
of providing a service, rather than renting space, as in the case of a 
shopping center or office building landlord. These commenters believed 
that responsibility for providing auxiliary aids should shift to the 
landlord, if the landlord relies on a smaller public accommodation or 
independent contractor to provide services closely related to those of 
the larger public accommodation, and if the needed auxiliary aids prove 
to be an undue burden for the smaller public accommodation. The final 
rule no longer lists specific allocations to specific parties but, 
rather, leaves allocation of responsibilities to the lease negotiations. 
Parties are, therefore, free to allocate the responsibility for 
auxiliary aids.
    Section 36.201(b)(4) of the proposed rule, which provided that 
alterations by a tenant on its own premises do not trigger a path of 
travel obligation on the landlord, has been moved to Sec. 36.403(d) of 
the final rule.
    An entity that is not in and of itself a public accommodation, such 
as a trade association or performing artist, may become a public 
accommodation when it leases space for a conference or performance at a 
hotel, convention center, or stadium. For an entity to become a public 
accommodation when it is the lessee of space, however, the Department 
believes that consideration in some form must be given. Thus, a Boy 
Scout troop that accepts donated space does not become a public 
accommodation because the troop has not ``leased'' space, as required by 
the ADA.
    As a public accommodation, the trade association or performing 
artist will be responsible for compliance with this part. Specific 
responsibilities should be allocated by contract, but, generally, the 
lessee should be responsible for providing auxiliary aids and services 
(which could include interpreters, Braille programs, etc.) for the 
participants in its conference or performance as well as for assuring 
that displays are accessible to individuals with disabilities.
    Some commenters suggested that the rule should allocate 
responsibilities for areas other than removal of barriers and auxiliary 
aids. The final rule leaves allocation of all areas to the lease 
negotiations. However, in general landlords should not be given 
responsibility for policies a tenant applies in operating its business, 
if such policies are solely those of the tenant. Thus, if a restaurant 
tenant discriminates by refusing to seat a patron, it would be the 
tenant, and not the landlord, who would be responsible, because the 
discriminatory policy is imposed solely by the tenant and not by the 
landlord. If, however, a tenant refuses to modify a ``no

[[Page 713]]

pets'' rule to allow service animals in its restaurant because the 
landlord mandates such a rule, then both the landlord and the tenant 
would be liable for violation of the ADA when a person with a service 
dog is refused entrance. The Department wishes to emphasize, however, 
that the parties are free to allocate responsibilities in any way they 
choose.
    Private clubs are also exempt from the ADA. However, consistent with 
title II of the Civil Rights Act (42 U.S.C. 2000a(e), a private club is 
considered a public accommodation to the extent that ``the facilities of 
such establishment are made available to the customers or patrons'' of a 
place of public accommodation. Thus, if a private club runs a day care 
center that is open exclusively to its own members, the club, like the 
church in the example above, would have no responsibility for compliance 
with the ADA. Nor would the day care center have any responsibilities 
because it is part of the private club exempt from the ADA.
    On the other hand, if the private club rents to a day care center 
that is open to the public, then the private club would have the same 
obligations as any other public accommodation that functions as a 
landlord with respect to compliance with title III within the day care 
center. In such a situation, both the private club that ``leases to'' a 
public accommodation and the public accommodation lessee (the day care 
center) would be subject to the ADA. This same principle would apply if 
the private club were to rent to, for example, a bar association, which 
is not generally a public accommodation but which, as explained above, 
becomes a public accommodation when it leases space for a conference.

                        Section 36.202 Activities

    Section 36.202 sets out the general forms of discrimination 
prohibited by title III of the ADA. These general prohibitions are 
further refined by the specific prohibitions in subpart C. Section 
36.213 makes clear that the limitations on the ADA's requirements 
contained in subpart C, such as ``necessity'' (Sec. 36.301(a)) and 
``safety'' (Sec. 36.301(b)), are applicable to the prohibitions in 
Sec. 36.202. Thus, it is unnecessary to add these limitations to Sec. 
36.202 as has been requested by some commenters. In addition, the 
language of Sec. 36.202 very closely tracks the language of section 
302(b)(1)(A) of the Act, and that statutory provision does not expressly 
contain these limitations.
    Deny participation--Section 36.202(a) provides that it is 
discriminatory to deny a person with a disability the right to 
participate in or benefit from the goods, services, facilities, 
privileges, advantages, or accommodations of a place of public 
accommodation.
    A public accommodation may not exclude persons with disabilities on 
the basis of disability for reasons other than those specifically set 
forth in this part. For example, a public accommodation cannot refuse to 
serve a person with a disability because its insurance company 
conditions coverage or rates on the absence of persons with 
disabilities. This is a frequent basis of exclusion from a variety of 
community activities and is prohibited by this part.
    Unequal benefit--Section 36.202(b) prohibits services or 
accommodations that are not equal to those provided others. For example, 
persons with disabilities must not be limited to certain performances at 
a theater.
    Separate benefit--Section 36.202(c) permits different or separate 
benefits or services only when necessary to provide persons with 
disabilities opportunities as effective as those provided others. This 
paragraph permitting separate benefits ``when necessary'' should be read 
together with Sec. 36.203(a), which requires integration in ``the most 
integrated setting appropriate to the needs of the individual.'' The 
preamble to that section provides further guidance on separate programs. 
Thus, this section would not prohibit the designation of parking spaces 
for persons with disabilities.
    Each of the three paragraphs (a)-(c) prohibits discrimination 
against an individual or class of individuals ``either directly or 
through contractual, licensing, or other arrangements.'' The intent of 
the contractual prohibitions of these paragraphs is to prohibit a public 
accommodation from doing indirectly, through a contractual relationship, 
what it may not do directly. Thus, the ``individual or class of 
individuals'' referenced in the three paragraphs is intended to refer to 
the clients and customers of the public accommodation that entered into 
a contractual arrangement. It is not intended to encompass the clients 
or customers of other entities. A public accommodation, therefore, is 
not liable under this provision for discrimination that may be practiced 
by those with whom it has a contractual relationship, when that 
discrimination is not directed against its own clients or customers. For 
example, if an amusement park contracts with a food service company to 
operate its restaurants at the park, the amusement park is not 
responsible for other operations of the food service company that do not 
involve clients or customers of the amusement park. Section 36.202(d) 
makes this clear by providing that the term ``individual or class of 
individuals'' refers to the clients or customers of the public 
accommodation that enters into the contractual, licensing, or other 
arrangement.

                   Section 36.203 Integrated Settings

    Section 36.203 addresses the integration of persons with 
disabilities. The ADA recognizes that the provision of goods and 
services in an integrated manner is a fundamental tenet of 
nondiscrimination on the basis of

[[Page 714]]

disability. Providing segregated accommodations and services relegates 
persons with disabilities to the status of second-class citizens. For 
example, it would be a violation of this provision to require persons 
with mental disabilities to eat in the back room of a restaurant or to 
refuse to allow a person with a disability the full use of a health spa 
because of stereotypes about the person's ability to participate. 
Section 36.203(a) states that a public accommodation shall afford goods, 
services, facilities, privileges, advantages, and accommodations to an 
individual with a disability in the most integrated setting appropriate 
to the needs of the individual. Section 36.203(b) specifies that, 
notwithstanding the existence of separate or different programs or 
activities provided in accordance with this section, an individual with 
a disability shall not be denied the opportunity to participate in such 
programs or activities that are not separate or different. Section 
306.203(c), which is derived from section 501(d) of the Americans with 
Disabilities Act, states that nothing in this part shall be construed to 
require an individual with a disability to accept an accommodation, aid, 
service, opportunity, or benefit that he or she chooses not to accept.
    Taken together, these provisions are intended to prohibit exclusion 
and segregation of individuals with disabilities and the denial of equal 
opportunities enjoyed by others, based on, among other things, 
presumptions, patronizing attitudes, fears, and stereotypes about 
individuals with disabilities. Consistent with these standards, public 
accommodations are required to make decisions based on facts applicable 
to individuals and not on the basis of presumptions as to what a class 
of individuals with disabilities can or cannot do.
    Sections 36.203 (b) and (c) make clear that individuals with 
disabilities cannot be denied the opportunity to participate in programs 
that are not separate or different. This is an important and overarching 
principle of the Americans with Disabilities Act. Separate, special, or 
different programs that are designed to provide a benefit to persons 
with disabilities cannot be used to restrict the participation of 
persons with disabilities in general, integrated activities.
    For example, a person who is blind may wish to decline participating 
in a special museum tour that allows persons to touch sculptures in an 
exhibit and instead tour the exhibit at his or her own pace with the 
museum's recorded tour. It is not the intent of this section to require 
the person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, 
not a requirement.
    Further, it would not be a violation of this section for an 
establishment to offer recreational programs specially designed for 
children with mobility impairments in those limited circumstances. 
However, it would be a violation of this section if the entity then 
excluded these children from other recreational services made available 
to nondisabled children, or required children with disabilities to 
attend only designated programs.
    Many commenters asked that the Department clarify a public 
accommodation's obligations within the integrated program when it offers 
a separate program, but an individual with a disability chooses not to 
participate in the separate program. It is impossible to make a blanket 
statement as to what level of auxiliary aids or modifications are 
required in the integrated program. Rather, each situation must be 
assessed individually. Assuming the integrated program would be 
appropriate for a particular individual, the extent to which that 
individual must be provided with modifications will depend not only on 
what the individual needs but also on the limitations set forth in 
subpart C. For example, it may constitute an undue burden for a 
particular public accommodation, which provides a full-time interpreter 
in its special guided tour for individuals with hearing impairments, to 
hire an additional interpreter for those individuals who choose to 
attend the integrated program. The Department cannot identify 
categorically the level of assistance or aid required in the integrated 
program.
    The preamble to the proposed rule contained a statement that some 
interpreted as encouraging the continuation of separate schools, 
sheltered workshops, special recreational programs, and other similar 
programs. It is important to emphasize that Sec. 36.202(c) only calls 
for separate programs when such programs are ``necessary'' to provide as 
effective an opportunity to individuals with disabilities as to other 
individuals. Likewise, Sec. 36.203(a) only permits separate programs 
when a more integrated setting would not be ``appropriate.'' Separate 
programs are permitted, then, in only limited circumstances. The 
sentence at issue has been deleted from the preamble because it was too 
broadly stated and had been erroneously interpreted as Departmental 
encouragement of separate programs without qualification.
    The proposed rule's reference in Sec. 36.203(b) to separate 
programs or activities provided in accordance with ``this section'' has 
been changed to ``this subpart'' in recognition of the fact that 
separate programs or activities may, in some limited circumstances, be 
permitted not only by Sec. 36.203(a) but also by Sec. 36.202(c).
    In addition, some commenters suggested that the individual with the 
disability is the only one who can decide whether a setting is 
``appropriate'' and what the ``needs'' are.

[[Page 715]]

Others suggested that only the public accommodation can make these 
determinations. The regulation does not give exclusive responsibility to 
either party. Rather, the determinations are to be made based on an 
objective view, presumably one which would take into account views of 
both parties.
    Some commenters expressed concern that Sec. 36.203(c), which states 
that nothing in the rule requires an individual with a disability to 
accept special accommodations and services provided under the ADA, could 
be interpreted to allow guardians of infants or older people with 
disabilities to refuse medical treatment for their wards. Section 
36.203(c) has been revised to make it clear that paragraph (c) is 
inapplicable to the concern of the commenters. A new paragraph (c)(2) 
has been added stating that nothing in the regulation authorizes the 
representative or guardian of an individual with a disability to decline 
food, water, medical treatment, or medical services for that individual. 
New paragraph (c) clarifies that neither the ADA nor the regulation 
alters current Federal law ensuring the rights of incompetent 
individuals with disabilities to receive food, water, and medical 
treatment. See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 
U.S.C 794); Developmentally Disabled Assistance and Bill of Rights Act 
(42 U.S.C. 6042).
    Sections 36.203(c) (1) and (2) are based on section 501(d) of the 
ADA. Section Sec. 501(d) was designed to clarify that nothing in the 
ADA requires individuals with disabilities to accept special 
accommodations and services for individuals with disabilities that may 
segregate them:
    The Committee added this section (501(d)) to clarify that nothing in 
the ADA is intended to permit discriminatory treatment on the basis of 
disability, even when such treatment is rendered under the guise of 
providing an accommodation, service, aid or benefit to the individual 
with disability. For example, a blind individual may choose not to avail 
himself or herself of the right to go to the front of a line, even if a 
particular public accommodation has chosen to offer such a modification 
of a policy for blind individuals. Or, a blind individual may choose to 
decline to participate in a special museum tour that allows persons to 
touch sculptures in an exhibit and instead tour the exhibits at his or 
her own pace with the museum's recorded tour.

(Judiciary report at 71-72.) The Act is not to be construed to mean that 
an individual with disabilities must accept special accommodations and 
services for individuals with disabilities when that individual chooses 
to participate in the regular services already offered. Because medical 
treatment, including treatment for particular conditions, is not a 
special accommodation or service for individuals with disabilities under 
section 501(d), neither the Act nor this part provides affirmative 
authority to suspend such treatment. Section 501(d) is intended to 
clarify that the Act is not designed to foster discrimination through 
mandatory acceptance of special services when other alternatives are 
provided; this concern does not reach to the provision of medical 
treatment for the disabling condition itself.
    Section 36.213 makes clear that the limitations contained in subpart 
C are to be read into subpart B. Thus, the integration requirement is 
subject to the various defenses contained in subpart C, such as safety, 
if eligibility criteria are at issue (Sec. 36.301(b)), or fundamental 
alteration and undue burden, if the concern is provision of auxiliary 
aids (Sec. 36.303(a)).

                  Section 36.204 Administrative Methods

    Section 36.204 specifies that an individual or entity shall not, 
directly, or through contractual or other arrangements, utilize 
standards or criteria or methods of administration that have the effect 
of discriminating on the basis of disability or that perpetuate the 
discrimination of others who are subject to common administrative 
control. The preamble discussion of Sec. 36.301 addresses eligibility 
criteria in detail.
    Section 36.204 is derived from section 302(b)(1)(D) of the Americans 
with Disabilities Act, and it uses the same language used in the 
employment section of the ADA (section 102(b)(3)). Both sections 
incorporate a disparate impact standard to ensure the effectiveness of 
the legislative mandate to end discrimination. This standard is 
consistent with the interpretation of section 504 by the U.S. Supreme 
Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate 
explained that members of Congress made numerous statements during 
passage of section 504 regarding eliminating architectural barriers, 
providing access to transportation, and eliminating discriminatory 
effects of job qualification procedures. The Court then noted: ``These 
statements would ring hollow if the resulting legislation could not 
rectify the harms resulting from action that discriminated by effect as 
well as by design.'' Id at 297 (footnote omitted).
    Of course, Sec. 36.204 is subject to the various limitations 
contained in subpart C including, for example, necessity (Sec. 
36.301(a)), safety (Sec. 36.301(b)), fundamental alteration (Sec. 
36.302(a)), readily achievable (Sec. 36.304(a)), and undue burden 
(Sec. 36.303(a)).

                       Section 36.205 Association

    Section 36.205 implements section 302(b)(1)(E) of the Act, which 
provides that a public accommodation shall not exclude or

[[Page 716]]

otherwise deny equal goods, services, facilities, privileges, 
advantages, accommodations, or other opportunities to an individual or 
entity because of the known disability of an individual with whom the 
individual or entity is known to have a relationship or association. 
This section is unchanged from the proposed rule.
    The individuals covered under this section include any individuals 
who are discriminated against because of their known association with an 
individual with a disability. For example, it would be a violation of 
this part for a day care center to refuse admission to a child because 
his or her brother has HIV disease.
    This protection is not limited to those who have a familial 
relationship with the individual who has a disability. If a place of 
public accommodation refuses admission to a person with cerebral palsy 
and his or her companions, the companions have an independent right of 
action under the ADA and this section.
    During the legislative process, the term ``entity'' was added to 
section 302(b)(1)(E) to clarify that the scope of the provision is 
intended to encompass not only persons who have a known association with 
a person with a disability, but also entities that provide services to 
or are otherwise associated with such individuals. This provision was 
intended to ensure that entities such as health care providers, 
employees of social service agencies, and others who provide 
professional services to persons with disabilities are not subjected to 
discrimination because of their professional association with persons 
with disabilities. For example, it would be a violation of this section 
to terminate the lease of an entity operating an independent living 
center for persons with disabilities, or to seek to evict a health care 
provider because that individual or entity provides services to persons 
with mental impairments.

                 Section 36.206 Retaliation or Coercion

    Section 36.206 implements section 503 of the ADA, which prohibits 
retaliation against any individual who exercises his or her rights under 
the Act. This section is unchanged from the proposed rule. Paragraph (a) 
of Sec. 36.206 provides that no private entity or public entity shall 
discriminate against any individual because that individual has 
exercised his or her right to oppose any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the Act or this part.
    Paragraph (b) provides that no private entity or public entity shall 
coerce, intimidate, threaten, or interfere with any individual in the 
exercise of his or her rights under this part or because that individual 
aided or encouraged any other individual in the exercise or enjoyment of 
any right granted or protected by the Act or this part.
    Illustrations of practices prohibited by this section are contained 
in paragraph (c), which is modeled on a similar provision in the 
regulations issued by the Department of Housing and Urban Development to 
implement the Fair Housing Act (see 24 CFR 100.400(c)(l)). Prohibited 
actions may include:
    (1) Coercing an individual to deny or limit the benefits, services, 
or advantages to which he or she is entitled under the Act or this part;
    (2) Threatening, intimidating, or interfering with an individual who 
is seeking to obtain or use the goods, services, facilities, privileges, 
advantages, or accommodations of a public accommodation;
    (3) Intimidating or threatening any person because that person is 
assisting or encouraging an individual or group entitled to claim the 
rights granted or protected by the Act or this part to exercise those 
rights; or
    (4) Retaliating against any person because that person has 
participated in any investigation or action to enforce the Act or this 
part.
    This section protects not only individuals who allege a violation of 
the Act or this part, but also any individuals who support or assist 
them. This section applies to all investigations or proceedings 
initiated under the Act or this part without regard to the ultimate 
resolution of the underlying allegations. Because this section prohibits 
any act of retaliation or coercion in response to an individual's effort 
to exercise rights established by the Act and this part (or to support 
the efforts of another individual), the section applies not only to 
public accommodations that are otherwise subject to this part, but also 
to individuals other than public accommodations or to public entities. 
For example, it would be a violation of the Act and this part for a 
private individual, e.g., a restaurant customer, to harass or intimidate 
an individual with a disability in an effort to prevent that individual 
from patronizing the restaurant. It would, likewise, be a violation of 
the Act and this part for a public entity to take adverse action against 
an employee who appeared as a witness on behalf of an individual who 
sought to enforce the Act.

    Section 36.207 Places of Public Accommodation Located in Private 
                               Residences

    A private home used exclusively as a residence is not covered by 
title III because it is neither a ``commercial facility'' nor a ``place 
of public accommodation.'' In some situations, however, a private home 
is not used exclusively as a residence, but houses a place of public 
accommodation in all or part of a home (e.g., an accountant who meets 
with his or her clients at his or her residence). Section 36.207(a) 
provides that those portions of the private residence used in the 
operation

[[Page 717]]

of the place of public accommodation are covered by this part.
    For instance, a home or a portion of a home may be used as a day 
care center during the day and a residence at night. If all parts of the 
house are used for the day care center, then the entire residence is a 
place of public accommodation because no part of the house is used 
exclusively as a residence. If an accountant uses one room in the house 
solely as his or her professional office, then a portion of the house is 
used exclusively as a place of public accommodation and a portion is 
used exclusively as a residence. Section 36.207 provides that when a 
portion of a residence is used exclusively as a residence, that portion 
is not covered by this part. Thus, the portions of the accountant's 
house, other than the professional office and areas and spaces leading 
to it, are not covered by this part. All of the requirements of this 
rule apply to the covered portions, including requirements to make 
reasonable modifications in policies, eliminate discriminatory 
eligibility criteria, take readily achievable measures to remove 
barriers or provide readily achievable alternatives (e.g., making house 
calls), provide auxiliary aids and services and undertake only 
accessible new construction and alterations.
    Paragraph (b) was added in response to comments that sought 
clarification on the extent of coverage of the private residence used as 
the place of public accommodation. The final rule makes clear that the 
place of accommodation extends to all areas of the home used by clients 
and customers of the place of public accommodation. Thus, the ADA would 
apply to any door or entry way, hallways, a restroom, if used by 
customers and clients; and any other portion of the residence, interior 
or exterior, used by customers or clients of the public accommodation. 
This interpretation is simply an application of the general rule for all 
public accommodations, which extends statutory requirements to all 
portions of the facility used by customers and clients, including, if 
applicable, restrooms, hallways, and approaches to the public 
accommodation. As with other public accommodations, barriers at the 
entrance and on the sidewalk leading up to the public accommodation, if 
the sidewalk is under the control of the public accommodation, must be 
removed if doing so is readily achievable.
    The Department recognizes that many businesses that operate out of 
personal residences are quite small, often employing only the homeowner 
and having limited total revenues. In these circumstances the effect of 
ADA coverage would likely be quite minimal. For example, because the 
obligation to remove existing architectural barriers is limited to those 
that are easily accomplishable without much difficulty or expense (see 
Sec. 36.304), the range of required actions would be quite modest. It 
might not be readily achievable for such a place of public accommodation 
to remove any existing barriers. If it is not readily achievable to 
remove existing architectural barriers, a public accommodation located 
in a private residence may meet its obligations under the Act and this 
part by providing its goods or services to clients or customers with 
disabilities through the use of alternative measures, including delivery 
of goods or services in the home of the customer or client, to the 
extent that such alternative measures are readily achievable (See Sec. 
36.305).
    Some commenters asked for clarification as to how the new 
construction and alteration standards of subpart D will apply to 
residences. The new construction standards only apply to the extent that 
the residence or portion of the residence was designed or intended for 
use as a public accommodation. Thus, for example, if a portion of a home 
is designed or constructed for use exclusively as a lawyer's office or 
for use both as a lawyer's office and for residential purposes, then it 
must be designed in accordance with the new construction standards in 
the appendix. Likewise, if a homeowner is undertaking alterations to 
convert all or part of his residence to a place of public accommodation, 
that work must be done in compliance with the alterations standards in 
the appendix.
    The preamble to the proposed rule addressed the applicable 
requirements when a commercial facility is located in a private 
residence. That situation is now addressed in Sec. 36.401(b) of subpart 
D.

                      Section 36.208 Direct Threat

    Section 36.208(a) implements section 302(b)(3) of the Act by 
providing that this part does not require a public accommodation to 
permit an individual to participate in or benefit from the goods, 
services, facilities, privileges, advantages and accommodations of the 
public accommodation, if that individual poses a direct threat to the 
health or safety of others. This section is unchanged from the proposed 
rule.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported this provision, but suggested revisions to further limit its 
application. Commenters representing public accommodations generally 
endorsed modifications that would permit a public accommodation to 
exercise its own judgment in determining whether an individual poses a 
direct threat.
    The inclusion of this provision is not intended to imply that 
persons with disabilities pose risks to others. It is intended to 
address concerns that may arise in this area. It establishes a strict 
standard that must be met before denying service to an individual

[[Page 718]]

with a disability or excluding that individual from participation.
    Paragraph (b) of this section explains that a ``direct threat'' is a 
significant risk to the health or safety of others that cannot be 
eliminated by a modification of policies, practices, or procedures, or 
by the provision of auxiliary aids and services. This paragraph codifies 
the standard first applied by the Supreme Court in School Board of 
Nassau County v. Arline, 480 U.S. 273 (1987), in which the Court held 
that an individual with a contagious disease may be an ``individual with 
handicaps'' under section 504 of the Rehabilitation Act. In Arline, the 
Supreme Court recognized that there is a need to balance the interests 
of people with disabilities against legitimate concerns for public 
safety. Although persons with disabilities are generally entitled to the 
protection of this part, a person who poses a significant risk to others 
may be excluded if reasonable modifications to the public 
accommodation's policies, practices, or procedures will not eliminate 
that risk. The determination that a person poses a direct threat to the 
health or safety of others may not be based on generalizations or 
stereotypes about the effects of a particular disability; it must be 
based on an individual assessment that conforms to the requirements of 
paragraph (c) of this section.
    Paragraph (c) establishes the test to use in determining whether an 
individual poses a direct threat to the health or safety of others. A 
public accommodation is required to make an individualized assessment, 
based on reasonable judgment that relies on current medical evidence or 
on the best available objective evidence, to determine: The nature, 
duration, and severity of the risk; the probability that the potential 
injury will actually occur; and whether reasonable modifications of 
policies, practices, or procedures will mitigate the risk. This is the 
test established by the Supreme Court in Arline. Such an inquiry is 
essential if the law is to achieve its goal of protecting disabled 
individuals from discrimination based on prejudice, stereotypes, or 
unfounded fear, while giving appropriate weight to legitimate concerns, 
such as the need to avoid exposing others to significant health and 
safety risks. Making this assessment will not usually require the 
services of a physician. Sources for medical knowledge include guidance 
from public health authorities, such as the U.S. Public Health Service, 
the Centers for Disease Control, and the National Institutes of Health, 
including the National Institute of Mental Health.
    Many of the commenters sought clarification of the inquiry 
requirement. Some suggested that public accommodations should be 
prohibited from making any inquiries to determine if an individual with 
a disability would pose a direct threat to other persons. The Department 
believes that to preclude all such inquiries would be inappropriate. 
Under Sec. 36.301 of this part, a public accommodation is permitted to 
establish eligibility criteria necessary for the safe operation of the 
place of public accommodation. Implicit in that right is the right to 
ask if an individual meets the criteria. However, any eligibility or 
safety standard established by a public accommodation must be based on 
actual risk, not on speculation or stereotypes; it must be applied to 
all clients or customers of the place of public accommodation; and 
inquiries must be limited to matters necessary to the application of the 
standard.
    Some commenters suggested that the test established in the Arline 
decision, which was developed in the context of an employment case, is 
too stringent to apply in a public accommodations context where 
interaction between the public accommodation and its client or customer 
is often very brief. One suggested alternative was to permit public 
accommodations to exercise ``good faith'' judgment in determining 
whether an individual poses a direct threat, particularly when a public 
accommodation is dealing with a client or customer engaged in disorderly 
or disruptive behavior.
    The Department believes that the ADA clearly requires that any 
determination to exclude an individual from participation must be based 
on an objective standard. A public accommodation may establish neutral 
eligibility criteria as a condition of receiving its goods or services. 
As long as these criteria are necessary for the safe provision of the 
public accommodation's goods and services and applied neutrally to all 
clients or customers, regardless of whether they are individuals with 
disabilities, a person who is unable to meet the criteria may be 
excluded from participation without inquiry into the underlying reason 
for the inability to comply. In places of public accommodation such as 
restaurants, theaters, or hotels, where the contact between the public 
accommodation and its clients is transitory, the uniform application of 
an eligibility standard precluding violent or disruptive behavior by any 
client or customer should be sufficient to enable a public accommodation 
to conduct its business in an orderly manner.
    Some other commenters asked for clarification of the application of 
this provision to persons, particularly children, who have short-term, 
contagious illnesses, such as fevers, influenza, or the common cold. It 
is common practice in schools and day care settings to exclude persons 
with such illnesses until the symptoms subside. The Department believes 
that these commenters misunderstand the scope of this rule. The ADA only 
prohibits discrimination against an individual with a disability. Under 
the ADA and

[[Page 719]]

this part, a ``disability'' is defined as a physical or mental 
impairment that substantially limits one or more major life activities. 
Common, short-term illnesses that predictably resolve themselves within 
a matter of days do not ``substantially limit'' a major life activity; 
therefore, it is not a violation of this part to exclude an individual 
from receiving the services of a public accommodation because of such 
transitory illness. However, this part does apply to persons who have 
long-term illnesses. Any determination with respect to a person who has 
a chronic or long-term illness must be made in compliance with the 
requirements of this section.

                   Section 36.209 Illegal Use of Drugs

    Section 36.209 effectuates section 510 of the ADA, which clarifies 
the Act's application to people who use drugs illegally. Paragraph (a) 
provides that this part does not prohibit discrimination based on an 
individual's current illegal use of drugs.
    The Act and the regulation distinguish between illegal use of drugs 
and the legal use of substances, whether or not those substances are 
``controlled substances,'' as defined in the Controlled Substances Act 
(21 U.S.C. 812). Some controlled substances are prescription drugs that 
have legitimate medical uses. Section 36.209 does not affect use of 
controlled substances pursuant to a valid prescription, under 
supervision by a licensed health care professional, or other use that is 
authorized by the Controlled Substances Act or any other provision of 
Federal law. It does apply to illegal use of those substances, as well 
as to illegal use of controlled substances that are not prescription 
drugs. The key question is whether the individual's use of the substance 
is illegal, not whether the substance has recognized legal uses. Alcohol 
is not a controlled substance, so use of alcohol is not addressed by 
Sec. 36.209. Alcoholics are individuals with disabilities, subject to 
the protections of the statute.
    A distinction is also made between the use of a substance and the 
status of being addicted to that substance. Addiction is a disability, 
and addicts are individuals with disabilities protected by the Act. The 
protection, however, does not extend to actions based on the illegal use 
of the substance. In other words, an addict cannot use the fact of his 
or her addiction as a defense to an action based on illegal use of 
drugs. This distinction is not artificial. Congress intended to deny 
protection to people who engage in the illegal use of drugs, whether or 
not they are addicted, but to provide protection to addicts so long as 
they are not currently using drugs.
    A third distinction is the difficult one between current use and 
former use. The definition of ``current illegal use of drugs'' in Sec. 
36.104, which is based on the report of the Conference Committee, H.R. 
Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 (1990), is ``illegal use of 
drugs that occurred recently enough to justify a reasonable belief that 
a person's drug use is current or that continuing use is a real and 
ongoing problem.''
    Paragraph (a)(2)(i) specifies that an individual who has 
successfully completed a supervised drug rehabilitation program or has 
otherwise been rehabilitated successfully and who is not engaging in 
current illegal use of drugs is protected. Paragraph (a)(2)(ii) 
clarifies that an individual who is currently participating in a 
supervised rehabilitation program and is not engaging in current illegal 
use of drugs is protected. Paragraph (a)(2)(iii) provides that a person 
who is erroneously regarded as engaging in current illegal use of drugs, 
but who is not engaging in such use, is protected.
    Paragraph (b) provides a limited exception to the exclusion of 
current illegal users of drugs from the protections of the Act. It 
prohibits denial of health services, or services provided in connection 
with drug rehabilitation, to an individual on the basis of current 
illegal use of drugs, if the individual is otherwise entitled to such 
services. As explained further in the discussion of Sec. 36.302, a 
health care facility that specializes in a particular type of treatment, 
such as care of burn victims, is not required to provide drug 
rehabilitation services, but it cannot refuse to treat an individual's 
burns on the grounds that the individual is illegally using drugs.
    A commenter argued that health care providers should be permitted to 
use their medical judgment to postpone discretionary medical treatment 
of individuals under the influence of alcohol or drugs. The regulation 
permits a medical practitioner to take into account an individual's use 
of drugs in determining appropriate medical treatment. Section 36.209 
provides that the prohibitions on discrimination in this part do not 
apply when the public accommodation acts on the basis of current illegal 
use of drugs. Although those prohibitions do apply under paragraph (b), 
the limitations established under this part also apply. Thus, under 
Sec. 36.208, a health care provider or other public accommodation 
covered under Sec. 36.209(b) may exclude an individual whose current 
illegal use of drugs poses a direct threat to the health or safety of 
others, and, under Sec. 36.301, a public accommodation may impose or 
apply eligibility criteria that are necessary for the provision of the 
services being offered, and may impose legitimate safety requirements 
that are necessary for safe operation. These same limitations also apply 
to individuals with disabilities who use alcohol or prescription drugs. 
The Department believes that these provisions address this commenter's 
concerns.
    Other commenters pointed out that abstention from the use of drugs 
is an essential

[[Page 720]]

condition for participation in some drug rehabilitation programs, and 
may be a necessary requirement in inpatient or residential settings. The 
Department believes that this comment is well-founded. Congress clearly 
did not intend to exclude from drug treatment programs the very 
individuals who need such programs because of their use of drugs. In 
such a situation, however, once an individual has been admitted to a 
program, abstention may be a necessary and appropriate condition to 
continued participation. The final rule therefore provides that a drug 
rehabilitation or treatment program may deny participation to 
individuals who use drugs while they are in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure an individual 
who is participating in a supervised rehabilitation program, or who has 
completed such a program or otherwise been rehabilitated successfully, 
is no longer engaging in the illegal use of drugs. Paragraph (c) is not 
to be construed to encourage, prohibit, restrict, or authorize the 
conducting of testing for the illegal use of drugs.
    Paragraph (c) of Sec. 36.209 clarifies that it is not a violation 
of this part to adopt or administer reasonable policies or procedures to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not currently engaging in illegal use of drugs. Any such 
policies or procedures must, of course, be reasonable, and must be 
designed to identify accurately the illegal use of drugs. This paragraph 
does not authorize inquiries, tests, or other procedures that would 
disclose use of substances that are not controlled substances or are 
taken under supervision by a licensed health care professional, or other 
uses authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.''
    One commenter argued that the rule should permit testing for lawful 
use of prescription drugs, but most favored the explanation that tests 
must be limited to unlawful use in order to avoid revealing the use of 
prescription medicine used to treat disabilities. Tests revealing legal 
use of prescription drugs might violate the prohibition in Sec. 36.301 
of attempts to unnecessarily identify the existence of a disability.

                         Section 36.210 Smoking

    Section 36.210 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking. Some commenters argued that Sec. 36.210 does 
not go far enough, and that the regulation should prohibit smoking in 
all places of public accommodation. The reference to smoking in section 
501 merely clarifies that the Act does not require public accommodations 
to accommodate smokers by permitting them to smoke in places of public 
accommodations.

            Section 36.211 Maintenance of Accessible Features

    Section 36.211 provides that a public accommodation shall maintain 
in operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public accommodation to ensure that accessible routes are 
properly maintained and free of obstructions, or failure to arrange 
prompt repair of inoperable elevators or other equipment intended to 
provide access, would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further, more detailed requirements are not necessary.

[[Page 721]]

                        Section 36.212 Insurance

    The Department received numerous comments on proposed Sec. 36.212. 
Most supported the proposed regulation but felt that it did not go far 
enough in protecting individuals with disabilities and persons 
associated with them from discrimination. Many commenters argued that 
language from the preamble to the proposed regulation should be included 
in the text of the final regulation. Other commenters argued that even 
that language was not strong enough, and that more stringent standards 
should be established. Only a few commenters argued that the Act does 
not apply to insurance underwriting practices or the terms of insurance 
contracts. These commenters cited language from the Senate committee 
report (S. Rep. No. 116, 101st Cong., 1st Sess., at 84-86 (1989) 
(hereinafter ``Senate report'')), indicating that Congress did not 
intend to affect existing insurance practices.
    The Department has decided to adopt the language of the proposed 
rule without change. Sections 36.212 (a) and (b) restate section 501(c) 
of the Act, which provides that the Act shall not be construed to 
restrict certain insurance practices on the part of insurance companies 
and employers, as long as such practices are not used to evade the 
purposes of the Act. Section 36.212(c) is a specific application of 
Sec. 36.202(a), which prohibits denial of participation on the basis of 
disability. It provides that a public accommodation may not refuse to 
serve an individual with a disability because of limitations on coverage 
or rates in its insurance policies (see Judiciary report at 56).
    Many commenters supported the requirements of Sec. 36.212(c) in the 
proposed rule because it addressed an important reason for denial of 
services by public accommodations. One commenter argued that services 
could be denied if the insurance coverage required exclusion of people 
whose disabilities were reasonably related to the risks involved in that 
particular place of public accommodation. Sections 36.208 and 36.301 
establish criteria for denial of participation on the basis of 
legitimate safety concerns. This paragraph does not prohibit 
consideration of such concerns in insurance policies, but provides that 
any exclusion on the basis of disability must be based on the 
permissible criteria, rather than on the terms of the insurance 
contract.
    Language in the committee reports indicates that Congress intended 
to reach insurance practices by prohibiting differential treatment of 
individuals with disabilities in insurance offered by public 
accommodations unless the differences are justified. ``Under the ADA, a 
person with a disability cannot be denied insurance or be subject to 
different terms or conditions of insurance based on disability alone, if 
the disability does not pose increased risks'' (Senate report at 84; 
Education and Labor report at 136). Section 501(c) (1) of the Act was 
intended to emphasize that ``insurers may continue to sell to and 
underwrite individuals applying for life, health, or other insurance on 
an individually underwritten basis, or to service such insurance 
products, so long as the standards used are based on sound actuarial 
data and not on speculation'' (Judiciary report at 70 (emphasis added); 
see also Senate report at 85; Education and Labor report at 137).
    The committee reports indicate that underwriting and classification 
of risks must be ``based on sound actuarial principles or be related to 
actual or reasonably anticipated experience'' (see, e.g., Judiciary 
report at 71). Moreover, ``while a plan which limits certain kinds of 
coverage based on classification of risk would be allowed * * *, the 
plan may not refuse to insure, or refuse to continue to insure, or limit 
the amount, extent, or kind of coverage available to an individual, or 
charge a different rate for the same coverage solely because of a 
physical or mental impairment, except where the refusal, limitation, or 
rate differential is based on sound actuarial principles or is related 
to actual or reasonably anticipated experience'' (Senate report at 85; 
Education and Labor report at 136-37; Judiciary report at 71). The ADA, 
therefore, does not prohibit use of legitimate actuarial considerations 
to justify differential treatment of individuals with disabilities in 
insurance.
    The committee reports provide some guidance on how nondiscrimination 
principles in the disability rights area relate to insurance practices. 
For example, a person who is blind may not be denied coverage based on 
blindness independent of actuarial risk classification. With respect to 
group health insurance coverage, an individual with a pre-existing 
condition may be denied coverage for that condition for the period 
specified in the policy, but cannot be denied coverage for illness or 
injuries unrelated to the pre-existing condition. Also, a public 
accommodation may offer insurance policies that limit coverage for 
certain procedures or treatments, but may not entirely deny coverage to 
a person with a disability.
    The Department requested comment on the extent to which data that 
would establish statistically sound correlations are available. Numerous 
commenters cited pervasive problems in the availability and cost of 
insurance for individuals with disabilities and parents of children with 
disabilities. No commenters cited specific data, or sources of data, to 
support specific exclusionary practices. Several commenters reported 
that, even when statistics are available, they are often outdated and do 
not reflect current medical technology and treatment methods. Concern 
was expressed that adequate efforts are not made to distinguish those 
individuals

[[Page 722]]

who are high users of health care from individuals in the same 
diagnostic groups who may be low users of health care. One insurer 
reported that ``hard data and actuarial statistics are not available to 
provide precise numerical justifications for every underwriting 
determination,'' but argued that decisions may be based on ``logical 
principles generally accepted by actuarial science and fully consistent 
with state insurance laws.'' The commenter urged that the Department 
recognize the validity of information other than statistical data as a 
basis for insurance determinations.
    The most frequent comment was a recommendation that the final 
regulation should require the insurance company to provide a copy of the 
actuarial data on which its actions are based when requested by the 
applicant. Such a requirement would be beyond anything contemplated by 
the Act or by Congress and has therefore not been included in the 
Department's final rule. Because the legislative history of the ADA 
clarifies that different treatment of individuals with disabilities in 
insurance may be justified by sound actuarial data, such actuarial data 
will be critical to any potential litigation on this issue. This 
information would presumably be obtainable in a court proceeding where 
the insurer's actuarial data was the basis for different treatment of 
persons with disabilities. In addition, under some State regulatory 
schemes, insurers may have to file such actuarial information with the 
State regulatory agency and this information may be obtainable at the 
State level.
    A few commenters representing the insurance industry conceded that 
underwriting practices in life and health insurance are clearly covered, 
but argued that property and casualty insurance are not covered. The 
Department sees no reason for this distinction. Although life and health 
insurance are the areas where the regulation will have its greatest 
application, the Act applies equally to unjustified discrimination in 
all types of insurance provided by public accommodations. A number of 
commenters, for example, reported difficulties in obtaining automobile 
insurance because of their disabilities, despite their having good 
driving records.

      Section 36.213 Relationship of Subpart 8 to Subparts C and D

    This section explains that subpart B sets forth the general 
principles of nondiscrimination applicable to all entities subject to 
this regulation, while subparts C and D provide guidance on the 
application of this part to specific situations. The specific provisions 
in subparts C and D, including the limitations on those provisions, 
control over the general provisions in circumstances where both specific 
and general provisions apply. Resort to the general provisions of 
subpart B is only appropriate where there are no applicable specific 
rules of guidance in subparts C or D. This interaction between the 
specific requirements and the general requirements operates with regard 
to contractual obligations as well.
    One illustration of this principle is its application to the 
obligation of a public accommodation to provide access to services by 
removal of architectural barriers or by alternatives to barrier removal. 
The general requirement, established in subpart B by Sec. 36.203, is 
that a public accommodation must provide its services to individuals 
with disabilities in the most integrated setting appropriate. This 
general requirement would appear to categorically prohibit 
``segregated'' seating for persons in wheelchairs. Section 36.304, 
however, only requires removal of architectural barriers to the extent 
that removal is ``readily achievable.'' If providing access to all areas 
of a restaurant, for example, would not be ``readily achievable,'' a 
public accommodation may provide access to selected areas only. Also, 
Sec. 36.305 provides that, where barrier removal is not readily 
achievable, a public accommodation may use alternative, readily 
achievable methods of making services available, such as curbside 
service or home delivery. Thus, in this manner, the specific 
requirements of Sec. Sec. 36.304 and 36.305 control over the general 
requirement of Sec. 36.203.

                    Subpart C--Specific Requirements

    In general, subpart C implements the ``specific prohibitions'' that 
comprise section 302(b)(2) of the ADA. It also addresses the 
requirements of section 309 of the ADA regarding examinations and 
courses.

                   Section 36.301 Eligibility Criteria

    Section 36.301 of the rule prohibits the imposition or application 
of eligibility criteria that screen out or tend to screen out an 
individual with a disability or any class of individuals with 
disabilities from fully and equally enjoying any goods, services, 
facilities, privileges, advantages, and accommodations, unless such 
criteria can be shown to be necessary for the provision of the goods, 
services, facilities, privileges, advantages, or accommodations being 
offered. This prohibition is based on section 302(b)(2)(A)(i) of the 
ADA.
    It would violate this section to establish exclusive or segregative 
eligibility criteria that would bar, for example, all persons who are 
deaf from playing on a golf course or all individuals with cerebral 
palsy from attending a movie theater, or limit the seating of 
individuals with Down's syndrome to only particular areas of a 
restaurant. The wishes, tastes, or preferences of other customers may 
not be asserted to justify criteria that

[[Page 723]]

would exclude or segregate individuals with disabilities.
    Section 36.301 also prohibits attempts by a public accommodation to 
unnecessarily identify the existence of a disability; for example, it 
would be a violation of this section for a retail store to require an 
individual to state on a credit application whether the applicant has 
epilepsy, mental illness, or any other disability, or to inquire 
unnecessarily whether an individual has HIV disease.
    Section 36.301 also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public accommodations may not require 
that an individual with a disability be accompanied by an attendant. As 
provided by Sec. 36.306, however, a public accommodation is not 
required to provide services of a personal nature including assistance 
in toileting, eating, or dressing.
    Paragraph (c) of Sec. 36.301 provides that public accommodations 
may not place a surcharge on a particular individual with a disability 
or any group of individuals with disabilities to cover the costs of 
measures, such as the provision of auxiliary aids and services, barrier 
removal, alternatives to barrier removal, and reasonable modifications 
in policies, practices, and procedures, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    A number of commenters inquired as to whether deposits required for 
the use of auxiliary aids, such as assistive listening devices, are 
prohibited surcharges. It is the Department's view that reasonable, 
completely refundable, deposits are not to be considered surcharges 
prohibited by this section. Requiring deposits is an important means of 
ensuring the availability of equipment necessary to ensure compliance 
with the ADA.
    Other commenters sought clarification as to whether Sec. 36.301(c) 
prohibits professionals from charging for the additional time that it 
may take in certain cases to provide services to an individual with 
disabilities. The Department does not intend Sec. 36.301(c) to prohibit 
professionals who bill on the basis of time from charging individuals 
with disabilities on that basis. However, fees may not be charged for 
the provision of auxiliary aids and services, barrier removal, 
alternatives to barrier removal, reasonable modifications in policies, 
practices, and procedures, or any other measures necessary to ensure 
compliance with the ADA.
    Other commenters inquired as to whether day care centers may charge 
for extra services provided to individuals with disabilities. As stated 
above, Sec. 36.302(c) is intended only to prohibit charges for measures 
necessary to achieve compliance with the ADA.
    Another commenter asserted that charges may be assessed for home 
delivery provided as an alternative to barrier removal under Sec. 
36.305, when home delivery is provided to all customers for a fee. 
Charges for home delivery are permissible if home delivery is not 
considered an alternative to barrier removal. If the public 
accommodation offers an alternative, such as curb, carry-out, or 
sidewalk service for which no surcharge is assessed, then it may charge 
for home delivery in accordance with its standard pricing for home 
delivery.
    In addition, Sec. 36.301 prohibits the imposition of criteria that 
``tend to'' screen out an individual with a disability. This concept, 
which is derived from current regulations under section 504 (see, e.g., 
45 CFR 84.13), makes it discriminatory to impose policies or criteria 
that, while not creating a direct bar to individuals with disabilities, 
indirectly prevent or limit their ability to participate. For example, 
requiring presentation of a driver's license as the sole means of 
identification for purposes of paying by check would violate this 
section in situations where, for example, individuals with severe vision 
impairments or developmental disabilities or epilepsy are ineligible to 
receive a driver's license and the use of an alternative means of 
identification, such as another photo I.D. or credit card, is feasible.
    A public accommodation may, however, impose neutral rules and 
criteria that screen out, or tend to screen out, individuals with 
disabilities, if the criteria are necessary for the safe operation of 
the public accommodation. Examples of safety qualifications that would 
be justifiable in appropriate circumstances would include height 
requirements for certain amusement park rides or a requirement that all 
participants in a recreational rafting expedition be able to meet a 
necessary level of swimming proficiency. Safety requirements must be 
based on actual risks and not on speculation, stereotypes, or 
generalizations about individuals with disabilities.

   Section 36.302 Modifications in Policies, Practices, or Procedures

    Section 36.302 of the rule prohibits the failure to make reasonable 
modifications in policies, practices, and procedures when such 
modifications may be necessary to afford any goods, services, 
facilities, privileges, advantages, or accommodations, unless the entity 
can demonstrate that making such modifications would fundamentally alter 
the nature of such goods, services, facilities, privileges, advantages, 
or accommodations. This prohibition is based on section 302(b)(2)(A)(ii) 
of the ADA.
    For example, a parking facility would be required to modify a rule 
barring all vans or all vans with raised roofs, if an individual who 
uses a wheelchair-accessible van wishes to park in that facility, and if 
overhead structures are high enough to accommodate

[[Page 724]]

the height of the van. A department store may need to modify a policy of 
only permitting one person at a time in a dressing room, if an 
individual with mental retardation needs and requests assistance in 
dressing from a companion. Public accommodations may need to revise 
operational policies to ensure that services are available to 
individuals with disabilities. For instance, a hotel may need to adopt a 
policy of keeping an accessible room unoccupied until an individual with 
a disability arrives at the hotel, assuming the individual has properly 
reserved the room.
    One example of application of this principle is specifically 
included in a new Sec. 36.302(d) on check-out aisles. That paragraph 
provides that a store with check-out aisles must ensure that an adequate 
number of accessible check-out aisles is kept open during store hours, 
or must otherwise modify its policies and practices, in order to ensure 
that an equivalent level of convenient service is provided to 
individuals with disabilities as is provided to others. For example, if 
only one check-out aisle is accessible, and it is generally used for 
express service, one way of providing equivalent service is to allow 
persons with mobility impairments to make all of their purchases at that 
aisle. This principle also applies with respect to other accessible 
elements and services. For example, a particular bank may be in 
compliance with the accessibility guidelines for new construction 
incorporated in appendix A with respect to automated teller machines 
(ATM) at a new branch office by providing one accessible walk-up machine 
at that location, even though an adjacent walk-up ATM is not accessible 
and the drive-up ATM is not accessible. However, the bank would be in 
violation of this section if the accessible ATM was located in a lobby 
that was locked during evening hours while the drive-up ATM was 
available to customers without disabilities during those same hours. The 
bank would need to ensure that the accessible ATM was available to 
customers during the hours that any of the other ATM's was available.
    A number of commenters inquired as to the relationship between this 
section and Sec. 36.307, ``Accessible or special goods.'' Under Sec. 
36.307, a public accommodation is not required to alter its inventory to 
include accessible or special goods that are designed for, or facilitate 
use by, individuals with disabilities. The rule enunciated in Sec. 
36.307 is consistent with the ``fundamental alteration'' defense to the 
reasonable modifications requirement of Sec. 36.302. Therefore, Sec. 
36.302 would not require the inventory of goods provided by a public 
accommodation to be altered to include goods with accessibility 
features. For example, Sec. 36.302 would not require a bookstore to 
stock Brailled books or order Brailled books, if it does not do so in 
the normal course of its business.
    The rule does not require modifications to the legitimate areas of 
specialization of service providers. Section 36.302(b) provides that a 
public accommodation may refer an individual with a disability to 
another public accommodation, if that individual is seeking, or 
requires, treatment or services outside of the referring public 
accommodation's area of specialization, and if, in the normal course of 
its operations, the referring public accommodation would make a similar 
referral for an individual without a disability who seeks or requires 
the same treatment or services.
    For example, it would not be discriminatory for a physician who 
specializes only in burn treatment to refer an individual who is deaf to 
another physician for treatment of an injury other than a burn injury. 
To require a physician to accept patients outside of his or her 
specialty would fundamentally alter the nature of the medical practice 
and, therefore, not be required by this section.
    A clinic specializing exclusively in drug rehabilitation could 
similarly refuse to treat a person who is not a drug addict, but could 
not refuse to treat a person who is a drug addict simply because the 
patient tests positive for HIV. Conversely, a clinic that specializes in 
the treatment of individuals with HIV could refuse to treat an 
individual that does not have HIV, but could not refuse to treat a 
person for HIV infection simply because that person is also a drug 
addict.
    Some commenters requested clarification as to how this provision 
would apply to situations where manifestations of the disability in 
question, itself, would raise complications requiring the expertise of a 
different practitioner. It is not the Department's intention in Sec. 
36.302(b) to prohibit a physician from referring an individual with a 
disability to another physician, if the disability itself creates 
specialized complications for the patient's health that the physician 
lacks the experience or knowledge to address (see Education and Labor 
report at 106).
    Section 36.302(c)(1) requires that a public accommodation modify its 
policies, practices, or procedures to permit the use of a service animal 
by an individual with a disability in any area open to the general 
public. The term ``service animal'' is defined in Sec. 36.104 to 
include guide dogs, signal dogs, or any other animal individually 
trained to provide assistance to an individual with a disability.
    A number of commenters pointed to the difficulty of making the 
distinction required by the proposed rule between areas open to the 
general public and those that are not. The ambiguity and uncertainty 
surrounding these provisions has led the Department to adopt a single 
standard for all public accommodations.

[[Page 725]]

    Section 36.302(c)(1) of the final rule now provides that 
``[g]enerally, a public accommodation shall modify policies, practices, 
and procedures to permit the use of a service animal by an individual 
with a disability.'' This formulation reflects the general intent of 
Congress that public accommodations take the necessary steps to 
accommodate service animals and to ensure that individuals with 
disabilities are not separated from their service animals. It is 
intended that the broadest feasible access be provided to service 
animals in all places of public accommodation, including movie theaters, 
restaurants, hotels, retail stores, hospitals, and nursing homes (see 
Education and Labor report at 106; Judiciary report at 59). The section 
also acknowledges, however, that, in rare circumstances, accommodation 
of service animals may not be required because a fundamental alteration 
would result in the nature of the goods, services, facilities, 
privileges, or accommodations offered or provided, or the safe operation 
of the public accommodation would be jeopardized.
    As specified in Sec. 36.302(c)(2), the rule does not require a 
public accommodation to supervise or care for any service animal. If a 
service animal must be separated from an individual with a disability in 
order to avoid a fundamental alteration or a threat to safety, it is the 
responsibility of the individual with the disability to arrange for the 
care and supervision of the animal during the period of separation.
    A museum would not be required by Sec. 36.302 to modify a policy 
barring the touching of delicate works of art in order to enhance the 
participation of individuals who are blind, if the touching threatened 
the integrity of the work. Damage to a museum piece would clearly be a 
fundamental alteration that is not required by this section.

               Section 36.303 Auxiliary Aids and Services.

    Section 36.303 of the final rule requires a public accommodation to 
take such steps as may be necessary to ensure that no individual with a 
disability is excluded, denied services, segregated or otherwise treated 
differently than other individuals because of the absence of auxiliary 
aids and services, unless the public accommodation can demonstrate that 
taking such steps would fundamentally alter the nature of the goods, 
services, facilities, advantages, or accommodations being offered or 
would result in an undue burden. This requirement is based on section 
302(b)(2)(A)(iii) of the ADA.
    Implicit in this duty to provide auxiliary aids and services is the 
underlying obligation of a public accommodation to communicate 
effectively with its customers, clients, patients, or participants who 
have disabilities affecting hearing, vision, or speech. To give emphasis 
to this underlying obligation, Sec. 36.303(c) of the rule incorporates 
language derived from section 504 regulations for federally conducted 
programs (see e.g., 28 CFR 39.160(a)) that requires that appropriate 
auxiliary aids and services be furnished to ensure that communication 
with persons with disabilities is as effective as communication with 
others.
    Auxiliary aids and services include a wide range of services and 
devices for ensuring effective communication. Use of the most advanced 
technology is not required so long as effective communication is 
ensured. The Department's proposed Sec. 36.303(b) provided a list of 
examples of auxiliary aids and services that was taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
was supplemented by examples from regulations implementing section 504 
in federally conducted programs (see e.g., 28 CFR 39.103). A substantial 
number of commenters suggested that additional examples be added to this 
list. The Department has added several items to this list but wishes to 
clarify that the list is not an all-inclusive or exhaustive catalogue of 
possible or available auxiliary aids or services. It is not possible to 
provide an exhaustive list, and such an attempt would omit new devices 
that will become available with emerging technology.
    The Department has added videotext displays, computer-aided 
transcription services, and open and closed captioning to the list of 
examples. Videotext displays have become an important means of accessing 
auditory communications through a public address system. Transcription 
services are used to relay aurally delivered material almost 
simultaneously in written form to persons who are deaf or hard of 
hearing. This technology is often used at conferences, conventions, and 
hearings. While the proposed rule expressly included television decoder 
equipment as an auxiliary aid or service, it did not mention captioning 
itself. The final rule rectifies this omission by mentioning both closed 
and open captioning.
    In this section, the Department has changed the proposed rule's 
phrase, ``orally delivered materials,'' to the phrase, ``aurally 
delivered materials.'' This new phrase tracks the language in the 
definition of ``auxiliary aids and services'' in section 3 of the ADA 
and is meant to include nonverbal sounds and alarms and computer-
generated speech.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf persons'' or 
``TDD's'' with the term ``text telephone.'' The Department has declined 
to do so. The Department is aware that the Architectural and 
Transportation Barriers Compliance Board has used the phrase ``text 
telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf,''

[[Page 726]]

and the Department believes it would be inappropriate to abandon this 
statutory term at this time.
    Paragraph (b)(2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples such as 
signage or mapping, audio description services, secondary auditory 
programs (SAP), telebraillers, and reading machines. While the 
Department declines to add these items to the list in the regulation, 
they may be considered appropriate auxiliary aids and services.
    Paragraph (b)(3) refers to the acquisition or modification of 
equipment or devices. For example, tape players used for an audio-guided 
tour of a museum exhibit may require the addition of Brailled adhesive 
labels to the buttons on a reasonable number of the tape players to 
facilitate their use by individuals who are blind. Similarly, permanent 
or portable assistive listening systems for persons with hearing 
impairments may be required at a hotel conference center.
    Several commenters suggested the addition of current technological 
innovations in microelectronics and computerized control systems (e.g., 
voice recognition systems, automatic dialing telephones, and infrared 
elevator and light control systems) to the list of auxiliary aids and 
services. The Department interprets auxiliary aids and services as those 
aids and services designed to provide effective communications, i. e., 
making aurally and visually delivered information available to persons 
with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the requirements for 
modifications in policies, practices, or procedures (Sec. 36.302), the 
elimination of existing architectural barriers (Sec. 36.304), and the 
provision of alternatives to barriers removal (Sec. 36.305).
    Paragraph (b)(4) refers to other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind person who could not locate the item without 
assistance, it might be a readily achievable alternative to barrier 
removal for a person using a wheelchair who could not reach the shelf, 
or a reasonable modification to a self-service policy for an individual 
who lacked the ability to grasp the item. (Of course, a store would not 
be required to provide a personal shopper.) As explained above, 
auxiliary aids and services are those aids and services required to 
provide effective communications. Other forms of assistance are more 
appropriately addressed by other provisions of the final rule.
    The auxiliary aid requirement is a flexible one. A public 
accommodation can choose among various alternatives as long as the 
result is effective communication. For example, a restaurant would not 
be required to provide menus in Braille for patrons who are blind, if 
the waiters in the restaurant are made available to read the menu. 
Similarly, a clothing boutique would not be required to have Brailled 
price tags if sales personnel provide price information orally upon 
request; and a bookstore would not be required to make available a sign 
language interpreter, because effective communication can be conducted 
by notepad.
    A critical determination is what constitutes an effective auxiliary 
aid or service. The Department's proposed rule recommended that, in 
determining what auxiliary aid to use, the public accommodation consult 
with an individual before providing him or her with a particular 
auxiliary aid or service. This suggestion sparked a significant volume 
of public comment. Many persons with disabilities, particularly persons 
who are deaf or hard of hearing, recommended that the rule should 
require that public accommodations give ``primary consideration'' to the 
``expressed choice'' of an individual with a disability. These 
commenters asserted that the proposed rule was inconsistent with 
congressional intent of the ADA, with the Department's proposed rule 
implementing title II of the ADA, and with longstanding interpretations 
of section 504 of the Rehabilitation Act.
    Based upon a careful review of the ADA legislative history, the 
Department believes that Congress did not intend under title III to 
impose upon a public accommodation the requirement that it give primary 
consideration to the request of the individual with a disability. To the 
contrary, the legislative history demonstrates congressional intent to 
strongly encourage consulting with persons with disabilities. In its 
analysis of the ADA's auxiliary aids requirement for public 
accommodations, the House Education and Labor Committee stated that it 
``expects'' that ``public accommodation(s) will consult with the 
individual with a disability before providing a particular auxiliary aid 
or service'' (Education and Labor report at 107). Some commenters also 
cited a different committee statement that used mandatory language as 
evidence of legislative intent to require primary consideration. 
However, this statement was made in the context of reasonable 
accommodations required by title I with respect to employment (Education 
and Labor report at 67). Thus, the Department finds that strongly 
encouraging consultation with

[[Page 727]]

persons with disabilities, in lieu of mandating primary consideration of 
their expressed choice, is consistent with congressional intent.
    The Department wishes to emphasize that public accommodations must 
take steps necessary to ensure that an individual with a disability will 
not be excluded, denied services, segregated or otherwise treated 
differently from other individuals because of the use of inappropriate 
or ineffective auxiliary aids. In those situations requiring an 
interpreter, the public accommodations must secure the services of a 
qualified interpreter, unless an undue burden would result.
    In the analysis of Sec. 36.303(c) in the proposed rule, the 
Department gave as an example the situation where a note pad and written 
materials were insufficient to permit effective communication in a 
doctor's office when the matter to be decided was whether major surgery 
was necessary. Many commenters objected to this statement, asserting 
that it gave the impression that only decisions about major surgery 
would merit the provision of a sign language interpreter. The statement 
would, as the commenters also claimed, convey the impression to other 
public accommodations that written communications would meet the 
regulatory requirements in all but the most extreme situations. The 
Department, when using the example of major surgery, did not intend to 
limit the provision of interpreter services to the most extreme 
situations.
    Other situations may also require the use of interpreters to ensure 
effective communication depending on the facts of the particular case. 
It is not difficult to imagine a wide range of communications involving 
areas such as health, legal matters, and finances that would be 
sufficiently lengthy or complex to require an interpreter for effective 
communication. In some situations, an effective alternative to use of a 
notepad or an interpreter may be the use of a computer terminal upon 
which the representative of the public accommodation and the customer or 
client can exchange typewritten messages.
    Section 36.303(d) specifically addresses requirements for TDD's. 
Partly because of the availability of telecommunications relay services 
to be established under title IV of the ADA, Sec. 36.303(d)(2) provides 
that a public accommodation is not required to use a telecommunication 
device for the deaf (TDD) in receiving or making telephone calls 
incident to its operations. Several commenters were concerned that relay 
services would not be sufficient to provide effective access in a number 
of situations. Commenters argued that relay systems (1) do not provide 
effective access to the automated systems that require the caller to 
respond by pushing a button on a touch tone phone, (2) cannot operate 
fast enough to convey messages on answering machines, or to permit a TDD 
user to leave a recorded message, and (3) are not appropriate for 
calling crisis lines relating to such matters as rape, domestic 
violence, child abuse, and drugs where confidentiality is a concern. The 
Department believes that it is more appropriate for the Federal 
Communications Commission to address these issues in its rulemaking 
under title IV.
    A public accommodation is, however, required to make a TDD available 
to an individual with impaired hearing or speech, if it customarily 
offers telephone service to its customers, clients, patients, or 
participants on more than an incidental convenience basis. Where entry 
to a place of public accommodation requires use of a security entrance 
telephone, a TDD or other effective means of communication must be 
provided for use by an individual with impaired hearing or speech.
    In other words, individual retail stores, doctors' offices, 
restaurants, or similar establishments are not required by this section 
to have TDD's, because TDD users will be able to make inquiries, 
appointments, or reservations with such establishments through the relay 
system established under title IV of the ADA. The public accommodation 
will likewise be able to contact TDD users through the relay system. On 
the other hand, hotels, hospitals, and other similar establishments that 
offer nondisabled individuals the opportunity to make outgoing telephone 
calls on more than an incidental convenience basis must provide a TDD on 
request.
    Section 36.303(e) requires places of lodging that provide 
televisions in five or more guest rooms and hospitals to provide, upon 
request, a means for decoding closed captions for use by an individual 
with impaired hearing. Hotels should also provide a TDD or similar 
device at the front desk in order to take calls from guests who use 
TDD's in their rooms. In this way guests with hearing impairments can 
avail themselves of such hotel services as making inquiries of the front 
desk and ordering room service. The term ``hospital'' is used in its 
general sense and should be interpreted broadly.
    Movie theaters are not required by Sec. 36.303 to present open-
captioned films. However, other public accommodations that impart verbal 
information through soundtracks on films, video tapes, or slide shows 
are required to make such information accessible to persons with hearing 
impairments. Captioning is one means to make the information accessible 
to individuals with disabilities.
    The rule specifies that auxiliary aids and services include the 
acquisition or modification of equipment or devices. For example, tape 
players used for an audio-guided tour of a museum exhibit may require 
the addition of Brailled adhesive labels to the buttons on a reasonable 
number of the tape players to

[[Page 728]]

facilitate their use by individuals who are blind. Similarly, a hotel 
conference center may need to provide permanent or portable assistive 
listening systems for persons with hearing impairments.
    As provided in Sec. 36.303(f), a public accommodation is not 
required to provide any particular aid or service that would result 
either in a fundamental alteration in the nature of the goods, services, 
facilities, privileges, advantages, or accommodations offered or in an 
undue burden. Both of these statutory limitations are derived from 
existing regulations and caselaw under section 504 and are to be applied 
on a case-by-case basis (see, e.g., 28 CFR 39.160(d) and Southeastern 
Community College v. Davis, 442 U.S. 397 (1979)). Congress intended that 
``undue burden'' under Sec. 36.303 and ``undue hardship,'' which is 
used in the employment provisions of title I of the ADA, should be 
determined on a case-by-case basis under the same standards and in light 
of the same factors (Judiciary report at 59). The rule, therefore, in 
accordance with the definition of undue hardship in section 101(10) of 
the ADA, defines undue burden as ``significant difficulty or expense'' 
(see Sec. Sec. 36.104 and 36.303(a)) and requires that undue burden be 
determined in light of the factors listed in the definition in 36.104.
    Consistent with regulations implementing section 504 in federally 
conducted programs (see, e.g., 28 CFR 39.160(d)), Sec. 36.303(f) 
provides that the fact that the provision of a particular auxiliary aid 
or service would result in an undue burden does not relieve a public 
accommodation from the duty to furnish an alternative auxiliary aid or 
service, if available, that would not result in such a burden.
    Section 36.303(g) of the proposed rule has been deleted from this 
section and included in a new Sec. 36.306. That new section continues 
to make clear that the auxiliary aids requirement does not mandate the 
provision of individually prescribed devices, such as prescription 
eyeglasses or hearing aids.
    The costs of compliance with the requirements of this section may 
not be financed by surcharges limited to particular individuals with 
disabilities or any group of individuals with disabilities (Sec. 
36.301(c)).

                   Section 36.304 Removal of Barriers

    Section 36.304 requires the removal of architectural barriers and 
communication barriers that are structural in nature in existing 
facilities, where such removal is readily achievable, i.e., easily 
accomplishable and able to be carried out without much difficulty or 
expense. This requirement is based on section 302(b)(2)(A)(iv) of the 
ADA.
    A number of commenters interpreted the phrase ``communication 
barriers that are structural in nature'' broadly to encompass the 
provision of communications devices such as TDD's, telephone handset 
amplifiers, assistive listening devices, and digital check-out displays. 
The statute, however, as read by the Department, limits the application 
of the phrase ``communications barriers that are structural in nature'' 
to those barriers that are an integral part of the physical structure of 
a facility. In addition to the communications barriers posed by 
permanent signage and alarm systems noted by Congress (see Education and 
Labor report at 110), the Department would also include among the 
communications barriers covered by Sec. 36.304 the failure to provide 
adequate sound buffers, and the presence of physical partitions that 
hamper the passage of sound waves between employees and customers. Given 
that Sec. 36.304's proper focus is on the removal of physical barriers, 
the Department believes that the obligation to provide communications 
equipment and devices such as TDD's, telephone handset amplifiers, 
assistive listening devices, and digital check-out displays is more 
appropriately determined by the requirements for auxiliary aids and 
services under Sec. 36.303 (see Education and Labor report at 107-108). 
The obligation to remove communications barriers that are structural in 
nature under Sec. 36.304, of course, is independent of any obligation 
to provide auxiliary aids and services under Sec. 36.303.
    The statutory provision also requires the readily achievable removal 
of certain barriers in existing vehicles and rail passenger cars. This 
transportation requirement is not included in Sec. 36.304, but rather 
in Sec. 36.310(b) of the rule.
    In striking a balance between guaranteeing access to individuals 
with disabilities and recognizing the legitimate cost concerns of 
businesses and other private entities, the ADA establishes different 
standards for existing facilities and new construction. In existing 
facilities, which are the subject of Sec. 36.304, where retrofitting 
may prove costly, a less rigorous degree of accessibility is required 
than in the case of new construction and alterations (see Sec. Sec. 
36.401-36.406) where accessibility can be more conveniently and 
economically incorporated in the initial stages of design and 
construction.
    For example, a bank with existing automatic teller machines (ATM's) 
would have to remove barriers to the use of the ATM's, if it is readily 
achievable to do so. Whether or not it is necessary to take actions such 
as ramping a few steps or raising or lowering an ATM would be determined 
by whether the actions can be accomplished easily and without much 
difficulty or expense.
    On the other hand, a newly constructed bank with ATM's would be 
required by Sec. 36.401 to have an ATM that is ``readily accessible to 
and usable by'' persons with disabilities in accordance with 
accessibility guidelines incorporated under Sec. 36.406.
    The requirement to remove architectural barriers includes the 
removal of physical

[[Page 729]]

barriers of any kind. For example, Sec. 36.304 requires the removal, 
when readily achievable, of barriers caused by the location of temporary 
or movable structures, such as furniture, equipment, and display racks. 
In order to provide access to individuals who use wheelchairs, for 
example, restaurants may need to rearrange tables and chairs, and 
department stores may need to reconfigure display racks and shelves. As 
stated in Sec. 36.304(f), such actions are not readily achievable to 
the extent that they would result in a significant loss of selling or 
serving space. If the widening of all aisles in selling or serving areas 
is not readily achievable, then selected widening should be undertaken 
to maximize the amount of merchandise or the number of tables accessible 
to individuals who use wheelchairs. Access to goods and services 
provided in any remaining inaccessible areas must be made available 
through alternative methods to barrier removal, as required by Sec. 
36.305.
    Because the purpose of title III of the ADA is to ensure that public 
accommodations are accessible to their customers, clients, or patrons 
(as opposed to their employees, who are the focus of title I), the 
obligation to remove barriers under Sec. 36.304 does not extend to 
areas of a facility that are used exclusively as employee work areas.
    Section 36.304(b) provides a wide-ranging list of the types of 
modest measures that may be taken to remove barriers and that are likely 
to be readily achievable. The list includes examples of measures, such 
as adding raised letter markings on elevator control buttons and 
installing flashing alarm lights, that would be used to remove 
communications barriers that are structural in nature. It is not an 
exhaustive list, but merely an illustrative one. Moreover, the inclusion 
of a measure on this list does not mean that it is readily achievable in 
all cases. Whether or not any of these measures is readily achievable is 
to be determined on a case-by-case basis in light of the particular 
circumstances presented and the factors listed in the definition of 
readily achievable (Sec. 36.104).
    A public accommodation generally would not be required to remove a 
barrier to physical access posed by a flight of steps, if removal would 
require extensive ramping or an elevator. Ramping a single step, 
however, will likely be readily achievable, and ramping several steps 
will in many circumstances also be readily achievable. The readily 
achievable standard does not require barrier removal that requires 
extensive restructuring or burdensome expense. Thus, where it is not 
readily achievable to do, the ADA would not require a restaurant to 
provide access to a restroom reachable only by a flight of stairs.
    Like Sec. 36.405, this section permits deference to the national 
interest in preserving significant historic structures. Barrier removal 
would not be considered ``readily achievable'' if it would threaten or 
destroy the historic significance of a building or facility that is 
eligible for listing in the National Register of Historic Places under 
the National Historic Preservation Act (16 U.S.C. 470, et seq.), or is 
designated as historic under State or local law.
    The readily achievable defense requires a less demanding level of 
exertion by a public accommodation than does the undue burden defense to 
the auxiliary aids requirements of Sec. 36.303. In that sense, it can 
be characterized as a ``lower'' standard than the undue burden standard. 
The readily achievable defense is also less demanding than the undue 
hardship defense in section 102(b)(5) of the ADA, which limits the 
obligation to make reasonable accommodation in employment. Barrier 
removal measures that are not easily accomplishable and are not able to 
be carried out without much difficulty or expense are not required under 
the readily achievable standard, even if they do not impose an undue 
burden or an undue hardship.
    Section 36.304(f)(1) of the proposed rule, which stated that 
``barrier removal is not readily achievable if it would result in 
significant loss of profit or significant loss of efficiency of 
operation,'' has been deleted from the final rule. Many commenters 
objected to this provision because it impermissibly introduced the 
notion of profit into a statutory standard that did not include it. 
Concern was expressed that, in order for an action not to be considered 
readily achievable, a public accommodation would inappropriately have to 
show, for example, not only that the action could not be done without 
``much difficulty or expense'', but that a significant loss of profit 
would result as well. In addition, some commenters asserted use of the 
word ``significant,'' which is used in the definition of undue hardship 
under title I (the standard for interpreting the meaning of undue burden 
as a defense to title III's auxiliary aids requirements) (see Sec. Sec. 
36.104, 36.303(f)), blurs the fact that the readily achievable standard 
requires a lower level of effort on the part of a public accommodation 
than does the undue burden standard.
    The obligation to engage in readily achievable barrier removal is a 
continuing one. Over time, barrier removal that initially was not 
readily achievable may later be required because of changed 
circumstances. Many commenters expressed support for the Department's 
position that the obligation to comply with Sec. 36.304 is continuing 
in nature. Some urged that the rule require public accommodations to 
assess their compliance on at least an annual basis in light of changes 
in resources and other factors that would be relevant to determining 
what barrier removal measures would be readily achievable.

[[Page 730]]

    Although the obligation to engage in readily achievable barrier 
removal is clearly a continuing duty, the Department has declined to 
establish any independent requirement for an annual assessment or self-
evaluation. It is best left to the public accommodations subject to 
Sec. 36.304 to establish policies to assess compliance that are 
appropriate to the particular circumstances faced by the wide range of 
public accommodations covered by the ADA. However, even in the absence 
of an explicit regulatory requirement for periodic self-evaluations, the 
Department still urges public accommodations to establish procedures for 
an ongoing assessment of their compliance with the ADA's barrier removal 
requirements. The Department recommends that this process include 
appropriate consultation with individuals with disabilities or 
organizations representing them. A serious effort at self-assessment and 
consultation can diminish the threat of litigation and save resources by 
identifying the most efficient means of providing required access.
    The Department has been asked for guidance on the best means for 
public accommodations to comply voluntarily with this section. Such 
information is more appropriately part of the Department's technical 
assistance effort and will be forthcoming over the next several months. 
The Department recommends, however, the development of an implementation 
plan designed to achieve compliance with the ADA's barrier removal 
requirements before they become effective on January 26, 1992. Such a 
plan, if appropriately designed and diligently executed, could serve as 
evidence of a good faith effort to comply with the requirements of Sec. 
36.104. In developing an implementation plan for readily achievable 
barrier removal, a public accommodation should consult with local 
organizations representing persons with disabilities and solicit their 
suggestions for cost-effective means of making individual places of 
public accommodation accessible. Such organizations may also be helpful 
in allocating scarce resources and establishing priorities. Local 
associations of businesses may want to encourage this process and serve 
as the forum for discussions on the local level between disability 
rights organizations and local businesses.
    Section 36.304(c) recommends priorities for public accommodations in 
removing barriers in existing facilities. Because the resources 
available for barrier removal may not be adequate to remove all existing 
barriers at any given time, Sec. 36.304(c) suggests priorities for 
determining which types of barriers should be mitigated or eliminated 
first. The purpose of these priorities is to facilitate long-term 
business planning and to maximize, in light of limited resources, the 
degree of effective access that will result from any given level of 
expenditure.
    Although many commenters expressed support for the concept of 
establishing priorities, a significant number objected to their 
mandatory nature in the proposed rule. The Department shares the concern 
of these commenters that mandatory priorities would increase the 
likelihood of litigation and inappropriately reduce the discretion of 
public accommodations to determine the most effective mix of barrier 
removal measures to undertake in particular circumstances. Therefore, in 
the final rule the priorities are no longer mandatory.
    In response to comments that the priorities failed to address 
communications issues, the Department wishes to emphasize that the 
priorities encompass the removal of communications barriers that are 
structural in nature. It would be counter to the ADA's carefully wrought 
statutory scheme to include in this provision the wide range of 
communication devices that are required by the ADA's provisions on 
auxiliary aids and services. The final rule explicitly includes Brailled 
and raised letter signage and visual alarms among the examples of steps 
to remove barriers provided in Sec. 36.304(c)(2).
    Section 36.304(c)(1) places the highest priority on measures that 
will enable individuals with disabilities to physically enter a place of 
public accommodation. This priority on ``getting through the door'' 
recognizes that providing actual physical access to a facility from 
public sidewalks, public transportation, or parking is generally 
preferable to any alternative arrangements in terms of both business 
efficiency and the dignity of individuals with disabilities.
    The next priority, which is established in Sec. 36.304(c)(2), is 
for measures that provide access to those areas of a place of public 
accommodation where goods and services are made available to the public. 
For example, in a hardware store, to the extent that it is readily 
achievable to do so, individuals with disabilities should be given 
access not only to assistance at the front desk, but also access, like 
that available to other customers, to the retail display areas of the 
store.
    The Department agrees with those commenters who argued that access 
to the areas where goods and services are provided is generally more 
important than the provision of restrooms. Therefore, the final rule 
reverses priorities two and three of the proposed rule in order to give 
lower priority to accessible restrooms. Consequently, the third priority 
in the final rule (Sec. 36.304(c)(3)) is for measures to provide access 
to restroom facilities and the last priority is placed on any remaining 
measures required to remove barriers.
    Section 36.304(d) requires that measures taken to remove barriers 
under Sec. 36.304 be subject to subpart D's requirements for 
alterations (except for the path of travel requirements in Sec. 
36.403). It only permits deviations from the subpart D requirements

[[Page 731]]

when compliance with those requirements is not readily achievable. In 
such cases, Sec. 36.304(d) permits measures to be taken that do not 
fully comply with the subpart D requirements, so long as the measures do 
not pose a significant risk to the health or safety of individuals with 
disabilities or others.
    This approach represents a change from the proposed rule which 
stated that ``readily achievable'' measures taken solely to remove 
barriers under Sec. 36.304 are exempt from the alterations requirements 
of subpart D. The intent of the proposed rule was to maximize the 
flexibility of public accommodations in undertaking barrier removal by 
allowing deviations from the technical standards of subpart D. It was 
thought that allowing slight deviations would provide access and release 
additional resources for expanding the amount of barrier removal that 
could be obtained under the readily achievable standard.
    Many commenters, however, representing both businesses and 
individuals with disabilities, questioned this approach because of the 
likelihood that unsafe or ineffective measures would be taken in the 
absence of the subpart D standards for alterations as a reference point. 
Some advocated a rule requiring strict compliance with the subpart D 
standard.
    The Department in the final rule has adopted the view of many 
commenters that (1) public accommodations should in the first instance 
be required to comply with the subpart D standards for alterations where 
it is readily achievable to do so and (2) safe, readily achievable 
measures must be taken when compliance with the subpart D standards is 
not readily achievable. Reference to the subpart D standards in this 
manner will promote certainty and good design at the same time that 
permitting slight deviations will expand the amount of barrier removal 
that may be achieved under Sec. 36.304.
    Because of the inconvenience to individuals with disabilities and 
the safety problems involved in the use of portable ramps, Sec. 
36.304(e) permits the use of a portable ramp to comply with Sec. 
36.304(a) only when installation of a permanent ramp is not readily 
achievable. In order to promote safety, Sec. 36.304(e) requires that 
due consideration be given to the incorporation of features such as 
nonslip surfaces, railings, anchoring, and strength of materials in any 
portable ramp that is used.
    Temporary facilities brought in for use at the site of a natural 
disaster are subject to the barrier removal requirements of Sec. 
36.304.
    A number of commenters requested clarification regarding how to 
determine when a public accommodation has discharged its obligation to 
remove barriers in existing facilities. For example, is a hotel required 
by Sec. 36.304 to remove barriers in all of its guest rooms? Or is some 
lesser percentage adequate? A new paragraph (g) has been added to Sec. 
36.304 to address this issue. The Department believes that the degree of 
barrier removal required under Sec. 36.304 may be less, but certainly 
would not be required to exceed, the standards for alterations under the 
ADA Accessibility Guidelines incorporated by subpart D of this part 
(ADAAG). The ADA's requirements for readily achievable barrier removal 
in existing facilities are intended to be substantially less rigorous 
than those for new construction and alterations. It, therefore, would be 
obviously inappropriate to require actions under Sec. 36.304 that would 
exceed the ADAAG requirements. Hotels, then, in order to satisfy the 
requirements of Sec. 36.304, would not be required to remove barriers 
in a higher percentage of rooms than required by ADAAG. If relevant 
standards for alterations are not provided in ADAAG, then reference 
should be made to the standards for new construction.

             Section 36.305 Alternatives to Barrier Removal

    Section 36.305 specifies that where a public accommodation can 
demonstrate that removal of a barrier is not readily achievable, the 
public accommodation must make its goods, services, facilities, 
privileges, advantages, or accommodations available through alternative 
methods, if such methods are readily achievable. This requirement is 
based on section 302(b)(2)(A)(v) of the ADA.
    For example, if it is not readily achievable for a retail store to 
raise, lower, or remove shelves or to rearrange display racks to provide 
accessible aisles, the store must, if readily achievable, provide a 
clerk or take other alternative measures to retrieve inaccessible 
merchandise. Similarly, if it is not readily achievable to ramp a long 
flight of stairs leading to the front door of a restaurant or a 
pharmacy, the restaurant or the pharmacy must take alternative measures, 
if readily achievable, such as providing curb service or home delivery. 
If, within a restaurant, it is not readily achievable to remove physical 
barriers to a certain section of a restaurant, the restaurant must, 
where it is readily achievable to do so, offer the same menu in an 
accessible area of the restaurant.
    Where alternative methods are used to provide access, a public 
accommodation may not charge an individual with a disability for the 
costs associated with the alternative method (see Sec. 36.301(c)). 
Further analysis of the issue of charging for alternative measures may 
be found in the preamble discussion of Sec. 36.301(c).
    In some circumstances, because of security considerations, some 
alternative methods may not be readily achievable. The rule does not 
require a cashier to leave his or her post to retrieve items for 
individuals with disabilities, if there are no other employees on duty.

[[Page 732]]

    Section 36.305(c) of the proposed rule has been deleted and the 
requirements have been included in a new Sec. 36.306. That section 
makes clear that the alternative methods requirement does not mandate 
the provision of personal devices, such as wheelchairs, or services of a 
personal nature.
    In the final rule, Sec. 36.305(c) provides specific requirements 
regarding alternatives to barrier removal in multiscreen cinemas. In 
some situations, it may not be readily achievable to remove enough 
barriers to provide access to all of the theaters of a multiscreen 
cinema. If that is the case, Sec. 36.305(c) requires the cinema to 
establish a film rotation schedule that provides reasonable access for 
individuals who use wheelchairs to films being presented by the cinema. 
It further requires that reasonable notice be provided to the public as 
to the location and time of accessible showings. Methods for providing 
notice include appropriate use of the international accessibility symbol 
in a cinema's print advertising and the addition of accessibility 
information to a cinema's recorded telephone information line.

              Section 36.306 Personal Devices and Services

    The final rule includes a new Sec. 36.306, entitled ``Personal 
devices and services.'' Section 36.306 of the proposed rule, ``Readily 
achievable and undue burden: Factors to be considered,'' was deleted for 
the reasons described in the preamble discussion of the definition of 
the term ``readily achievable'' in Sec. 36.104. In place of Sec. Sec. 
36.303(g) and 36.305(c) of the proposed rule, which addressed the issue 
of personal devices and services in the contexts of auxiliary aids and 
alternatives to barrier removal, Sec. 36.306 provides a general 
statement that the regulation does not require the provision of personal 
devices and services. This section states that a public accommodation is 
not required to provide its customers, clients, or participants with 
personal devices, such as wheelchairs; individually prescribed devices, 
such as prescription eyeglasses or hearing aids; or services of a 
personal nature including assistance in eating, toileting, or dressing.
    This statement serves as a limitation on all the requirements of the 
regulation. The personal devices and services limitation was intended to 
have general application in the proposed rule in all contexts where it 
was relevant. The final rule, therefore, clarifies, this point by 
including a general provision that will explicitly apply not just to 
auxiliary aids and services and alternatives to barrier removal, but 
across-the-board to include such relevant areas as modifications in 
policies, practices, and procedures (Sec. 36.302) and examinations and 
courses (Sec. 36.309), as well.
    The Department wishes to clarify that measures taken as alternatives 
to barrier removal, such as retrieving items from shelves or providing 
curb service or home delivery, are not to be considered personal 
services. Similarly, minimal actions that may be required as 
modifications in policies, practices, or procedures under Sec. 36.302, 
such as a waiter's removing the cover from a customer's straw, a 
kitchen's cutting up food into smaller pieces, or a bank's filling out a 
deposit slip, are not services of a personal nature within the meaning 
of Sec. 36.306. (Of course, such modifications may be required under 
Sec. 36.302 only if they are ``reasonable.'') Similarly, this section 
does not preclude the short-term loan of personal receivers that are 
part of an assistive listening system.
    Of course, if personal services are customarily provided to the 
customers or clients of a public accommodation, e.g., in a hospital or 
senior citizen center, then these personal services should also be 
provided to persons with disabilities using the public accommodation.

               Section 36.307 Accessible or Special Goods.

    Section 36.307 establishes that the rule does not require a public 
accommodation to alter its inventory to include accessible or special 
goods with accessibility features that are designed for, or facilitate 
use by, individuals with disabilities. As specified in Sec. 36.307(c), 
accessible or special goods include such items as Brailled versions of 
books, books on audio-cassettes, closed captioned video tapes, special 
sizes or lines of clothing, and special foods to meet particular dietary 
needs.
    The purpose of the ADA's public accommodations requirements is to 
ensure accessibility to the goods offered by a public accommodation, not 
to alter the nature or mix of goods that the public accommodation has 
typically provided. In other words, a bookstore, for example, must make 
its facilities and sales operations accessible to individuals with 
disabilities, but is not required to stock Brailled or large print 
books. Similarly, a video store must make its facilities and rental 
operations accessible, but is not required to stock closed-captioned 
video tapes. The Department has been made aware, however, that the most 
recent titles in video-tape rental establishments are, in fact, closed 
captioned.
    Although a public accommodation is not required by Sec. 36.307(a) 
to modify its inventory, it is required by Sec. 36.307(b), at the 
request of an individual with disabilities, to order accessible or 
special goods that it does not customarily maintain in stock if, in the 
normal course of its operation, it makes special orders for unstocked 
goods, and if the accessible or special goods can be obtained from a 
supplier with whom the public accommodation customarily does business. 
For example, a clothing store would be required to order specially-sized 
clothing at the request

[[Page 733]]

of an individual with a disability, if it customarily makes special 
orders for clothing that it does not keep in stock, and if the clothing 
can be obtained from one of the store's customary suppliers.
    One commenter asserted that the proposed rule could be interpreted 
to require a store to special order accessible or special goods of all 
types, even if only one type is specially ordered in the normal course 
of its business. The Department, however, intends for Sec. 36.307(b) to 
require special orders only of those particular types of goods for which 
a public accommodation normally makes special orders. For example, a 
book and recording store would not have to specially order Brailled 
books if, in the normal course of its business, it only specially orders 
recordings and not books.

                Section 36.308 Seating in Assembly Areas.

    Section 36.308 establishes specific requirements for removing 
barriers to physical access in assembly areas, which include such 
facilities as theaters, concert halls, auditoriums, lecture halls, and 
conference rooms. This section does not address the provision of 
auxiliary aids or the removal of communications barriers that are 
structural in nature. These communications requirements are the focus of 
other provisions of the regulation (see Sec. Sec. 36.303-36.304).
    Individuals who use wheelchairs historically have been relegated to 
inferior seating in the back of assembly areas separate from 
accompanying family members and friends. The provisions of Sec. 36.308 
are intended to promote integration and equality in seating.
    In some instances it may not be readily achievable for auditoriums 
or theaters to remove seats to allow individuals with wheelchairs to sit 
next to accompanying family members or friends. In these situations, the 
final rule retains the requirement that the public accommodation provide 
portable chairs or other means to allow the accompanying individuals to 
sit with the persons in wheelchairs. Persons in wheelchairs should have 
the same opportunity to enjoy movies, plays, and similar events with 
their families and friends, just as other patrons do. The final rule 
specifies that portable chairs or other means to permit family members 
or companions to sit with individuals who use wheelchairs must be 
provided only when it is readily achievable to do so.
    In order to facilitate seating of wheelchair users who wish to 
transfer to existing seating, paragraph (a)(1) of the final rule adds a 
requirement that, to the extent readily achievable, a reasonable number 
of seats with removable aisle-side armrests must be provided. Many 
persons in wheelchairs are able to transfer to existing seating with 
this relatively minor modification. This solution avoids the potential 
safety hazard created by the use of portable chairs and fosters 
integration. The final ADA Accessibility Guidelines incorporated by 
subpart D (ADAAG) also add a requirement regarding aisle seating that 
was not in the proposed guidelines. In situations when a person in a 
wheelchair transfers to existing seating, the public accommodation shall 
provide assistance in handling the wheelchair of the patron with the 
disability.
    Likewise, consistent vith ADAAG, the final rule adds in Sec. 
36.308(a)(1)(ii)(B) a requirement that, to the extent readily 
achievable, wheelchair seating provide lines of sight and choice of 
admission prices comparable to those for members of the general public.
    Finally, because Congress intended that the requirements for barrier 
removal in existing facilities be substantially less rigorous than those 
required for new construction and alterations, the final rule clarifies 
in Sec. 36.308(a)(3) that in no event can the requirements for existing 
facilities be interpreted to exceed the standards for alterations under 
ADAAG. For example, Sec. 4.33 of ADAAG only requires wheelchair spaces 
to be provided in more than one location when the seating capacity of 
the assembly area exceeds 300. Therefore, paragraph (a) of Sec. 36.308 
may not be interpreted to require readily achievable dispersal of 
wheelchair seating in assembly areas with 300 or fewer seats. Similarly, 
Sec. 4.1.3(19) of ADAAG requires six accessible wheelchair locations in 
an assembly area with 301 to 500 seats. The reasonable number of 
wheelchair locations required by paragraph (a), therefore, may be less 
than six, but may not be interpreted to exceed six.

       Proposed Section 36.309 Purchase of Furniture and Equipment

    Section 36.309 of the proposed rule would have required that newly 
purchased furniture or equipment made available for use at a place of 
public accommodation be accessible, to the extent such furniture or 
equipment is available, unless this requirement would fundamentally 
alter the goods, services, facilities, privileges, advantages, or 
accommodations offered, or would not be readily achievable. Proposed 
Sec. 36.309 has been omitted from the final rule because the Department 
has determined that its requirements are more properly addressed under 
other sections, and because there are currently no appropriate 
accessibility standards addressing many types of furniture and 
equipment.
    Some types of equipment will be required to meet the accessibility 
requirements of subpart D. For example, ADAAG establishes technical and 
scoping requirements in new construction and alterations for automated 
teller machines and telephones. Purchase or modification of equipment is 
required in certain instances by the provisions in Sec. Sec. 36.201 and 
36.202. For example, an arcade may need

[[Page 734]]

to provide accessible video machines in order to ensure full and equal 
enjoyment of the facilities and to provide an opportunity to participate 
in the services and facilities it provides. The barrier removal 
requirements of Sec. 36.304 will apply as well to furniture and 
equipment (lowering shelves, rearranging furniture, adding Braille 
labels to a vending machine).

                 Section 36.309 Examinations and Courses

    Section 36.309(a) sets forth the general rule that any private 
entity that offers examinations or courses related to applications, 
licensing, certification, or credentialing for secondary or 
postsecondary education, professional, or trade purposes shall offer 
such examinations or courses in a place and manner accessible to persons 
with disabilities or offer alternative accessible arrangements for such 
individuals.
    Paragraph (a) restates section 309 of the Americans with 
Disabilities Act. Section 309 is intended to fill the gap that is 
created when licensing, certification, and other testing authorities are 
not covered by section 504 of the Rehabilitation Act or title II of the 
ADA. Any such authority that is covered by section 504, because of the 
receipt of Federal money, or by title II, because it is a function of a 
State or local government, must make all of its programs accessible to 
persons with disabilities, which includes physical access as well as 
modifications in the way the test is administered, e.g., extended time, 
written instructions, or assistance of a reader.
    Many licensing, certification, and testing authorities are not 
covered by section 504, because no Federal money is received; nor are 
they covered by title II of the ADA because they are not State or local 
agencies. However, States often require the licenses provided by such 
authorities in order for an individual to practice a particular 
profession or trade. Thus, the provision was included in the ADA in 
order to assure that persons with disabilities are not foreclosed from 
educational, professional, or trade opportunities because an examination 
or course is conducted in an inaccessible site or without needed 
modifications.
    As indicated in the ``Application'' section of this part (Sec. 
36.102), Sec. 36.309 applies to any private entity that offers the 
specified types of examinations or courses. This is consistent with 
section 309 of the Americans with Disabilities Act, which states that 
the requirements apply to ``any person'' offering examinations or 
courses.
    The Department received a large number of comments on this section, 
reflecting the importance of ensuring that the key gateways to education 
and employment are open to individuals with disabilities. The most 
frequent comments were objections to the fundamental alteration and 
undue burden provisions in Sec. Sec. 36.309 (b)(3) and (c)(3) and to 
allowing courses and examinations to be provided through alternative 
accessible arrangements, rather than in an integrated setting.
    Although section 309 of the Act does not refer to a fundamental 
alteration or undue burden limitation, those limitations do appear in 
section 302(b)(2)(A)(iii) of the Act, which establishes the obligation 
of public accommodations to provide auxiliary aids and services. The 
Department, therefore, included it in the paragraphs of Sec. 36.309 
requiring the provision of auxiliary aids. One commenter argued that 
similar limitations should apply to all of the requirements of Sec. 
36.309, but the Department did not consider this extension appropriate.
    Commenters who objected to permitting ``alternative accessible 
arrangements'' argued that such arrangements allow segregation and 
should not be permitted, unless they are the least restrictive available 
alternative, for example, for someone who cannot leave home. Some 
commenters made a distinction between courses, where interaction is an 
important part of the educational experience, and examinations, where it 
may be less important. Because the statute specifically authorizes 
alternative accessible arrangements as a method of meeting the 
requirements of section 309, the Department has not adopted this 
suggestion. The Department notes, however, that, while examinations of 
the type covered by Sec. 36.309 may not be covered elsewhere in the 
regulation, courses will generally be offered in a ``place of 
education,'' which is included in the definition of ``place of public 
accommodation'' in Sec. 36.104, and, therefore, will be subject to the 
integrated setting requirement of Sec. 36.203.
    Section 36.309(b) sets forth specific requirements for examinations. 
Examinations covered by this section would include a bar exam or the 
Scholastic Aptitude Test prepared by the Educational Testing Service. 
Paragraph (b)(1) is adopted from the Department of Education's section 
504 regulation on admission tests to postsecondary educational programs 
(34 CFR 104.42(b)(3)). Paragraph (b)(1)(i) requires that a private 
entity offering an examination covered by the section must assure that 
the examination is selected and administered so as to best ensure that 
the examination accurately reflects an individual's aptitude or 
achievement level or other factor the examination purports to measure, 
rather than reflecting the individual's impaired sensory, manual, or 
speaking skills (except where those skills are the factors that the 
examination purports to measure).
    Paragraph (b)(1)(ii) requires that any examination specially 
designed for individuals with disabilities be offered as often and in as 
timely a manner as other examinations. Some commenters noted that 
persons with disabilities may be required to travel long

[[Page 735]]

distances when the locations for examinations for individuals with 
disabilities are limited, for example, to only one city in a State 
instead of a variety of cities. The Department has therefore revised 
this paragraph to add a requirement that such examinations be offered at 
locations that are as convenient as the location of other examinations.
    Commenters representing organizations that administer tests wanted 
to be able to require individuals with disabilities to provide advance 
notice and appropriate documentation, at the applicants' expense, of 
their disabilities and of any modifications or aids that would be 
required. The Department agrees that such requirements are permissible, 
provided that they are not unreasonable and that the deadline for such 
notice is no earlier than the deadline for others applying to take the 
examination. Requiring individuals with disabilities to file earlier 
applications would violate the requirement that examinations designed 
for individuals with disabilities be offered in as timely a manner as 
other examinations.
    Examiners may require evidence that an applicant is entitled to 
modifications or aids as required by this section, but requests for 
documentation must be reasonable and must be limited to the need for the 
modification or aid requested. Appropriate documentation might include a 
letter from a physician or other professional, or evidence of a prior 
diagnosis or accommodation, such as eligibility for a special education 
program. The applicant may be required to bear the cost of providing 
such documentation, but the entity administering the examination cannot 
charge the applicant for the cost of any modifications or auxiliary 
aids, such as interpreters, provided for the examination.
    Paragraph (b)(1)(iii) requires that examinations be administered in 
facilities that are accessible to individuals with disabilities or 
alternative accessible arrangements are made.
    Paragraph (b)(2) gives examples of modifications to examinations 
that may be necessary in order to comply with this section. These may 
include providing more time for completion of the examination or a 
change in the manner of giving the examination, e.g., reading the 
examination to the individual.
    Paragraph (b)(3) requires the provision of auxiliary aids and 
services, unless the private entity offering the examination can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the examination or result in an undue burden. Examples of 
auxiliary aids include taped examinations, interpreters or other 
effective methods of making aurally delivered materials available to 
individuals with hearing impairments, readers for individuals with 
visual impairments or learning disabilities, and other similar services 
and actions. The suggestion that individuals with learning disabilities 
may need readers is included, although it does not appear in the 
Department of Education regulation, because, in fact, some individuals 
with learning disabilities have visual perception problems and would 
benefit from a reader.
    Many commenters pointed out the importance of ensuring that 
modifications provide the individual with a disability an equal 
opportunity to demonstrate his or her knowledge or ability. For example, 
a reader who is unskilled or lacks knowledge of specific terminology 
used in the examination may be unable to convey the information in the 
questions or to follow the applicant's instructions effectively. 
Commenters pointed out that, for persons with visual impairments who 
read Braille, Braille provides the closest functional equivalent to a 
printed test. The Department has, therefore, added Brailled examinations 
to the examples of auxiliary aids and services that may be required. For 
similar reasons, the Department also added to the list of examples of 
auxiliary aids and services large print examinations and answer sheets; 
``qualified'' readers; and transcribers to write answers.
    A commenter suggested that the phrase ``fundamentally alter the 
examination'' in this paragraph of the proposed rule be revised to more 
accurately reflect the function affected. In the final rule the 
Department has substituted the phrase ``fundamentally alter the 
measurement of the skills or knowledge the examination is intended to 
test.''
    Paragraph (b)(4) gives examples of alternative accessible 
arrangements. For instance, the private entity might be required to 
provide the examination at an individual's home with a proctor. 
Alternative arrangements must provide conditions for individuals with 
disabilities that are comparable to the conditions under which other 
individuals take the examinations. In other words, an examination cannot 
be offered to an individual with a disability in a cold, poorly lit 
basement, if other individuals are given the examination in a warm, well 
lit classroom.
    Some commenters who provide examinations for licensing or 
certification for particular occupations or professions urged that they 
be permitted to refuse to provide modifications or aids for persons 
seeking to take the examinations if those individuals, because of their 
disabilities, would be unable to perform the essential functions of the 
profession or occupation for which the examination is given, or unless 
the disability is reasonably determined in advance as not being an 
obstacle to certification. The Department has not changed its rule based 
on this comment. An examination is one stage of a licensing or 
certification process. An individual should not be barred from 
attempting

[[Page 736]]

to pass that stage of the process merely because he or she might be 
unable to meet other requirements of the process. If the examination is 
not the first stage of the qualification process, an applicant may be 
required to complete the earlier stages prior to being admitted to the 
examination. On the other hand, the applicant may not be denied 
admission to the examination on the basis of doubts about his or her 
abilities to meet requirements that the examination is not designed to 
test.
    Paragraph (c) sets forth specific requirements for courses. 
Paragraph (c)(1) contains the general rule that any course covered by 
this section must be modified to ensure that the place and manner in 
which the course is given is accessible. Paragraph (c)(2) gives examples 
of possible modifications that might be required, including extending 
the time permitted for completion of the course, permitting oral rather 
than written delivery of an assignment by a person with a visual 
impairment, or adapting the manner in which the course is conducted 
(i.e., providing cassettes of class handouts to an individual with a 
visual impairment). In response to comments, the Department has added to 
the examples in paragraph (c)(2) specific reference to distribution of 
course materials. If course materials are published and available from 
other sources, the entity offering the course may give advance notice of 
what materials will be used so as to allow an individual to obtain them 
in Braille or on tape but materials provided by the course offerer must 
be made available in alternative formats for individuals with 
disabilities.
    In language similar to that of paragraph (b), paragraph (c)(3) 
requires auxiliary aids and services, unless a fundamental alteration or 
undue burden would result, and paragraph (c)(4) requires that courses be 
administered in accessible facilities. Paragraph (c)(5) gives examples 
of alternative accessible arrangements. These may include provision of 
the course through videotape, cassettes, or prepared notes. Alternative 
arrangements must provide comparable conditions to those provided to 
others, including similar lighting, room temperature, and the like. An 
entity offering a variety of courses, to fulfill continuing education 
requirements for a profession, for example, may not limit the selection 
or choice of courses available to individuals with disabilities.

     Section 36.310 Transportation Provided by Public Accommodations

    Section 36.310 contains specific provisions relating to public 
accommodations that provide transportation to their clients or 
customers. This section has been substantially revised in order to 
coordinate the requirements of this section with the requirements 
applicable to these transportation systems that will be contained in the 
regulations issued by the Secretary of Transportation pursuant to 
section 306 of the ADA, to be codified at 49 CFR part 37. The Department 
notes that, although the responsibility for issuing regulations 
applicable to transportation systems operated by public accommodations 
is divided between this Department and the Department of -
Transportation, enforcement authority is assigned only to the Department 
of Justice.
    The Department received relatively few comments on this section of 
the proposed rule. Most of the comments addressed issues that are not 
specifically addressed in this part, such as the standards for 
accessible vehicles and the procedure for determining whether equivalent 
service is provided. Those standards will be contained in the regulation 
issued by the Department of Transportation. Other commenters raised 
questions about the types of transportation that will be subject to this 
section. In response to these inquiries, the Department has revised the 
list of examples contained in the regulation.
    Paragraph (a)(1) states the general rule that covered public 
accommodations are subject to all of the specific provisions of subparts 
B, C, and D, except as provided in Sec. 36.310. Examples of operations 
covered by the requirements are listed in paragraph (a)(2). The stated 
examples include hotel and motel airport shuttle services, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation, and shuttle operations of recreational 
facilities such as stadiums, zoos, amusement parks, and ski resorts. 
This brief list is not exhaustive. The section applies to any fixed 
route or demand responsive transportation system operated by a public 
accommodation for the benefit of its clients or customers. The section 
does not apply to transportation services provided only to employees. 
Employee transportation will be subject to the regulations issued by the 
Equal Employment Opportunity Commission to implement title I of the Act. 
However, if employees and customers or clients are served by the same 
transportation system, the provisions of this section will apply.
    Paragraph (b) specifically provides that a public accommodation 
shall remove transportation barriers in existing vehicles to the extent 
that it is readily achievable to do so, but that the installation of 
hydraulic or other lifts is not required.
    Paragraph (c) provides that public accommodations subject to this 
section shall comply with the requirements for transportation vehicles 
and systems contained in the regulations issued by the Secretary of 
Transportation.

[[Page 737]]

               Subpart D--New Construction and Alterations

    Subpart D implements section 303 of the Act, which requires that 
newly constructed or altered places of public accommodation or 
commercial facilities be readily accessible to and usable by individuals 
with disabilities. This requirement contemplates a high degree of 
convenient access. It is intended to ensure that patrons and employees 
of places of public accommodation and employees of commercial facilities 
are able to get to, enter, and use the facility.
    Potential patrons of places of public accommodation, such as retail 
establishments, should be able to get to a store, get into the store, 
and get to the areas where goods are being provided. Employees should 
have the same types of access, although those individuals require access 
to and around the employment area as well as to the area in which goods 
and services are provided.
    The ADA is geared to the future--its goal being that, over time, 
access will be the rule, rather than the exception. Thus, the Act only 
requires modest expenditures, of the type addressed in Sec. 36.304 of 
this part, to provide access to existing facilities not otherwise being 
altered, but requires all new construction and alterations to be 
accessible.
    The Act does not require new construction or alterations; it simply 
requires that, when a public accommodation or other private entity 
undertakes the construction or alteration of a facility subject to the 
Act, the newly constructed or altered facility must be made accessible. 
This subpart establishes the requirements for new construction and 
alterations.
    As explained under the discussion of the definition of ``facility,'' 
Sec. 36.104, pending development of specific requirements, the 
Department will not apply this subpart to places of public accommodation 
located in mobile units, boats, or other conveyances.

                     Section 36.401 New Construction

                                 General

    Section 36.401 implements the new construction requirements of the 
ADA. Section 303 (a)(1) of the Act provides that discrimination for 
purposes of section 302(a) of the Act includes a failure to design and 
construct facilities for first occupancy later than 30 months after the 
date of enactment (i.e., after January 26, 1993) that are readily 
accessible to and usable by individuals with disabilities.
    Paragraph 36.401(a)(1) restates the general requirement for 
accessible new construction. The proposed rule stated that ``any public 
accommodation or other private entity responsible for design and 
construction'' must ensure that facilities conform to this requirement. 
Various commenters suggested that the proposed language was not 
consistent with the statute because it substituted ``private entity 
responsible for design and construction'' for the statutory language; 
because it did not address liability on the part of architects, 
contractors, developers, tenants, owners, and other entities; and 
because it limited the liability of entities responsible for commercial 
facilities. In response, the Department has revised this paragraph to 
repeat the language of section 303(a) of the ADA. The Department will 
interpret this section in a manner consistent with the intent of the 
statute and with the nature of the responsibilities of the various 
entities for design, for construction, or for both.

              Designed and Constructed for First Occupancy

    According to paragraph (a)(2), a facility is subject to the new 
construction requirements only if a completed application for a building 
permit or permit extension is filed after January 26, 1992, and the 
facility is occupied after January 26, 1993.
    The proposed rule set forth for comment two alternative ways by 
which to determine what facilities are subject to the Act and what 
standards apply. Paragraph (a)(2) of the final rule is a slight 
variation on Option One in the proposed rule. The reasons for the 
Department's choice of Option One are discussed later in this section.
    Paragraph (a)(2) acknowledges that Congress did not contemplate 
having actual occupancy be the sole trigger for the accessibility 
requirements, because the statute prohibits a failure to ``design and 
construct for first occupancy,'' rather than requiring accessibility in 
facilities actually occupied after a particular date.
    The commenters overwhelmingly agreed with the Department's proposal 
to use a date certain; many cited the reasons given in the preamble to 
the proposed rule. First, it is helpful for designers and builders to 
have a fixed date for accessible design, so that they can determine 
accessibility requirements early in the planning and design stage. It is 
difficult to determine accessibility requirements in anticipation of the 
actual date of first occupancy because of unpredictable and 
uncontrollable events (e.g., strikes affecting suppliers or labor, or 
natural disasters) that may delay occupancy. To redesign or reconstruct 
portions of a facility if it begins to appear that occupancy will be 
later than anticipated would be quite costly. A fixed date also assists 
those responsible for enforcing, or monitoring compliance with, the 
statute, and those protected by it.
    The Department considered using as a trigger date for application of 
the accessibility standards the date on which a permit is granted. The 
Department chose instead the date on which a complete permit application 
is certified as received by the appropriate

[[Page 738]]

government entity. Almost all commenters agreed with this choice of a 
trigger date. This decision is based partly on information that several 
months or even years can pass between application for a permit and 
receipt of a permit. Design is virtually complete at the time an 
application is complete (i.e., certified to contain all the information 
required by the State, county, or local government). After an 
application is filed, delays may occur before the permit is granted due 
to numerous factors (not necessarily relating to accessibility): for 
example, hazardous waste discovered on the property, flood plain 
requirements, zoning disputes, or opposition to the project from various 
groups. These factors should not require redesign for accessibility if 
the application was completed before January 26, 1992. However, if the 
facility must be redesigned for other reasons, such as a change in 
density or environmental preservation, and the final permit is based on 
a new application, the rule would require accessibility if that 
application was certified complete after January 26, 1992.
    The certification of receipt of a complete application for a 
building permit is an appropriate point in the process because 
certifications are issued in writing by governmental authorities. In 
addition, this approach presents a clear and objective standard.
    However, a few commenters pointed out that in some jurisdictions it 
is not possible to receive a ``certification'' that an application is 
complete, and suggested that in those cases the fixed date should be the 
date on which an application for a permit is received by the government 
agency. The Department has included such a provision in Sec. 
36.401(a)(2)(i).
    The date of January 26, 1992, is relevant only with respect to the 
last application for a permit or permit extension for a facility. Thus, 
if an entity has applied for only a ``foundation'' permit, the date of 
that permit application has no effect, because the entity must also 
apply for and receive a permit at a later date for the actual 
superstructure. In this case, it is the date of the later application 
that would control, unless construction is not completed within the time 
allowed by the permit, in which case a third permit would be issued and 
the date of the application for that permit would be determinative for 
purposes of the rule.

 Choice of Option One for Defining ``Designed and Constructed for First 
                               Occupancy''

    Under the option the Department has chosen for determining 
applicability of the new construction standards, a building would be 
considered to be ``for first occupancy'' after January 26, 1993, only 
(1) if the last application for a building permit or permit extension 
for the facility is certified to be complete (or, in some jurisdictions, 
received) by a State, county, or local government after January 26, 
1992, and (2) if the first certificate of occupancy is issued after 
January 26, 1993. The Department also asked for comment on an Option 
Two, which would have imposed new construction requirements if a 
completed application for a building permit or permit extension was 
filed after the enactment of the ADA (July 26, 1990), and the facility 
was occupied after January 26, 1993.
    The request for comment on this issue drew a large number of 
comments expressing a wide range of views. Most business groups and some 
disability rights groups favored Option One, and some business groups 
and most disability rights groups favored Option Two. Individuals and 
government entities were equally divided; several commenters proposed 
other options.
    Those favoring Option One pointed out that it is more reasonable in 
that it allows time for those subject to the new construction 
requirements to anticipate those requirements and to receive technical 
assistance pursuant to the Act. Numerous commenters said that time 
frames for designing and constructing some types of facilities (for 
example, health care facilities) can range from two to four years or 
more. They expressed concerns that Option Two, which would apply to some 
facilities already under design or construction as of the date the Act 
was signed, and to some on which construction began shortly after 
enactment, could result in costly redesign or reconstruction of those 
facilities. In the same vein, some Option One supporters found Option 
Two objectionable on due process grounds. In their view, Option Two 
would mean that in July 1991 (upon issuance of the final DOJ rule) the 
responsible entities would learn that ADA standards had been in effect 
since July 26, 1990, and this would amount to retroactive application of 
standards. Numerous commenters characterized Option Two as having no 
support in the statute and Option One as being more consistent with 
congressional intent.
    Those who favored Option Two pointed out that it would include more 
facilities within the coverage of the new construction standards. They 
argued that because similar accessibility requirements are in effect 
under State laws, no hardship would be imposed by this option. Numerous 
commenters said that hardship would also be eliminated in light of their 
view that the ADA requires compliance with the Uniform Federal 
Accessibility Standards (UFAS) until issuance of DOJ standards. Those 
supporting Option Two claimed that it was more consistent with the 
statute and its legislative history.
    The Department has chosen Option One rather than Option Two, 
primarily on the

[[Page 739]]

basis of the language of three relevant sections of the statute. First, 
section 303(a) requires compliance with accessibility standards set 
forth, or incorporated by reference in, regulations to be issued by the 
Department of Justice. Standing alone, this section cannot be read to 
require compliance with the Department's standards before those 
standards are issued (through this rulemaking). Second, according to 
section 310 of the statute, section 303 becomes effective on January 26, 
1992. Thus, section 303 cannot impose requirements on the design of 
buildings before that date. Third, while section 306(d) of the Act 
requires compliance with UFAS if final regulations have not been issued, 
that provision cannot reasonably be read to take effect until July 26, 
1991, the date by which the Department of Justice must issue final 
regulations under title III.
    Option Two was based on the premise that the interim standards in 
section 306(d) take effect as of the ADA's enactment (July 26, 1990), 
rather than on the date by which the Department of Justice regulations 
are due to be issued (July 26, 1991). The initial clause of section 
306(d)(1) itself is silent on this question:
    If final regulations have not been issued pursuant to this section, 
for new construction for which a * * * building permit is obtained prior 
to the issuance of final regulations * * * (interim standards apply).
    The approach in Option Two relies partly on the language of section 
310 of the Act, which provides that section 306, the interim standards 
provision, takes effect on the date of enactment. Under this 
interpretation the interim standards provision would prevail over the 
operative provision, section 303, which requires that new construction 
be accessible and which becomes effective January 26, 1992. This 
approach would also require construing the language of section 306(d)(1) 
to take effect before the Department's standards are due to be issued. 
The preferred reading of section 306 is that it would require that, if 
the Department's final standards had not been issued by July 26, 1991, 
UFAS would apply to certain buildings until such time as the 
Department's standards were issued.

   General Substantive Requirements of the New Construction Provisions

    The rule requires, as does the statute, that covered newly 
constructed facilities be readily accessible to and usable by 
individuals with disabilities. The phrase ``readily accessible to and 
usable by individuals with disabilities'' is a term that, in slightly 
varied formulations, has been used in the Architectural Barriers Act of 
1968, the Fair Housing Act, the regulations implementing section 504 of 
the Rehabilitation Act of 1973, and current accessibility standards. It 
means, with respect to a facility or a portion of a facility, that it 
can be approached, entered, and used by individuals with disabilities 
(including mobility, sensory, and cognitive impairments) easily and 
conveniently. A facility that is constructed to meet the requirements of 
the rule's accessibility standards will be considered readily accessible 
and usable with respect to construction. To the extent that a particular 
type or element of a facility is not specifically addressed by the 
standards, the language of this section is the safest guide.
    A private entity that renders an ``accessible'' building 
inaccessible in its operation, through policies or practices, may be in 
violation of section 302 of the Act. For example, a private entity can 
render an entrance to a facility inaccessible by keeping an accessible 
entrance open only during certain hours (whereas the facility is 
available to others for a greater length of time). A facility could 
similarly be rendered inaccessible if a person with disabilities is 
significantly limited in her or his choice of a range of accommodations.
    Ensuring access to a newly constructed facility will include 
providing access to the facility from the street or parking lot, to the 
extent the responsible entity has control over the route from those 
locations. In some cases, the private entity will have no control over 
access at the point where streets, curbs, or sidewalks already exist, 
and in those instances the entity is encouraged to request modifications 
to a sidewalk, including installation of curb cuts, from a public entity 
responsible for them. However, as some commenters pointed out, there is 
no obligation for a private entity subject to title III of the ADA to 
seek or ensure compliance by a public entity with title II. Thus, 
although a locality may have an obligation under title II of the Act to 
install curb cuts at a particular location, that responsibility is 
separate from the private entity's title III obligation, and any 
involvement by a private entity in seeking cooperation from a public 
entity is purely voluntary in this context.

                               Work Areas

    Proposed paragraph 36.401(b) addressed access to employment areas, 
rather than to the areas where goods or services are being provided. The 
preamble noted that the proposed paragraph provided guidance for new 
construction and alterations until more specific guidance was issued by 
the ATBCB and reflected in this Department's regulation. The entire 
paragraph has been deleted from this section in the final rule. The 
concepts of paragraphs (b) (1), (2), and (5) of the proposed rule are 
included, with modifications and expansion, in ADAAG. Paragraphs (3) and 
(4) of the proposed rule, concerning fixtures and equipment, are not 
included in the rule or in ADAAG.
    Some commenters asserted that questions relating to new construction 
and alterations of work areas should be addressed by the

[[Page 740]]

EEOC under title I, as employment concerns. However, the legislative 
history of the statute clearly indicates that the new construction and 
alterations requirements of title III were intended to ensure 
accessibility of new facilities to all individuals, including employees. 
The language of section 303 sweeps broadly in its application to all 
public accommodations and commercial facilities. EEOC's title I 
regulations will address accessibility requirements that come into play 
when ``reasonable accommodation'' to individual employees or applicants 
with disabilities is mandated under title I.
    The issues dealt with in proposed Sec. 36.401(b) (1) and (2) are 
now addressed in ADAAG section 4.1.1(3). The Department's proposed 
paragraphs would have required that areas that will be used only by 
employees as work stations be constructed so that individuals with 
disabilities could approach, enter, and exit the areas. They would not 
have required that all individual work stations be constructed or 
equipped (for example, with shelves that are accessible or adaptable) to 
be accessible. This approach was based on the theory that, as long as an 
employee with disabilities could enter the building and get to and 
around the employment area, modifications in a particular work station 
could be instituted as a ``reasonable accommodation'' to that employee 
if the modifications were necessary and they did not constitute an undue 
hardship.
    Almost all of the commenters agreed with the proposal to require 
access to a work area but not to require accessibility of each 
individual work station. This principle is included in ADAAG 4.1.1(3). 
Several of the comments related to the requirements of the proposed 
ADAAG and have been addressed in the accessibility standards.
    Proposed paragraphs (b) (3) and (4) would have required that 
consideration be given to placing fixtures and equipment at accessible 
heights in the first instance, and to purchasing new equipment and 
fixtures that are adjustable. These paragraphs have not been included in 
the final rule because the rule in most instances does not establish 
accessibility standards for purchased equipment. (See discussion 
elsewhere in the preamble of proposed Sec. 36.309.) While the 
Department encourages entities to consider providing accessible or 
adjustable fixtures and equipment for employees, this rule does not 
require them to do so.
    Paragraph (b)(5) of proposed Sec. 36.401 clarified that proposed 
paragraph (b) did not limit the requirement that employee areas other 
than individual work stations must be accessible. For example, areas 
that are employee ``common use'' areas and are not solely used as work 
stations (e.g., employee lounges, cafeterias, health units, exercise 
facilities) are treated no differently under this regulation than other 
parts of a building; they must be constructed or altered in compliance 
with the accessibility standards. This principle is not stated in Sec. 
36.401 but is implicit in the requirements of this section and ADAAG.

               Commercial Facilities in Private Residences

    Section 36.401(b) of the final rule is a new provision relating to 
commercial facilities located in private residences. The proposed rule 
addressed these requirements in the preamble to Sec. 36.207, ``Places 
of public accommodation located in private residences.'' The preamble 
stated that the approach for commercial facilities would be the same as 
that for places of public accommodation, i.e., those portions used 
exclusively as a commercial facility or used as both a commercial 
facility and for residential purposes would be covered. Because 
commercial facilities are only subject to new construction and 
alterations requirements, however, the covered portions would only be 
subject to subpart D. This approach is reflected in Sec. 36.401(b)(1).
    The Department is aware that the statutory definition of 
``commercial facility'' excludes private residences because they are 
``expressly exempted from coverage under the Fair Housing Act of 1968, 
as amended.'' However, the Department interprets that exemption as 
applying only to facilities that are exclusively residential. When a 
facility is used as both a residence and a commercial facility, the 
exemption does not apply.
    Paragraph (b)(2) is similar to the new paragraph (b) under Sec. 
36.207, ``Places of public accommodation located in private 
residences.'' The paragraph clarifies that the covered portion includes 
not only the space used as a commercial facility, but also the elements 
used to enter the commercial facility, e.g., the homeowner's front 
sidewalk, if any; the doorway; the hallways; the restroom, if used by 
employees or visitors of the commercial facility; and any other portion 
of the residence, interior or exterior, used by employees or visitors of 
the commercial facility.
    As in the case of public accommodations located in private 
residences, the new construction standards only apply to the extent that 
a portion of the residence is designed or intended for use as a 
commercial facility. Likewise, if a homeowner alters a portion of his 
home to convert it to a commercial facility, that work must be done in 
compliance with the alterations standards in appendix A.

                       Structural Impracticability

    Proposed Sec. 36.401(c) is included in the final rule with minor 
changes. It details a statutory exception to the new construction 
requirement: the requirement that new construction be accessible does 
not apply where

[[Page 741]]

an entity can demonstrate that it is structurally impracticable to meet 
the requirements of the regulation. This provision is also included in 
ADAAG, at section 4.1.1(5)(a).
    Consistent with the legislative history of the ADA, this narrow 
exception will apply only in rare and unusual circumstances where unique 
characteristics of terrain make accessibility unusually difficult. Such 
limitations for topographical problems are analogous to an acknowledged 
limitation in the application of the accessibility requirements of the 
Fair Housing Amendments Act (FHAA) of 1988.
    Almost all commenters supported this interpretation. Two commenters 
argued that the DOJ requirement is too limiting and would not exempt 
some buildings that should be exempted because of soil conditions, 
terrain, and other unusual site conditions. These commenters suggested 
consistency with HUD's Fair Housing Accessibility Guidelines (56 FR 9472 
(1991)), which generally would allow exceptions from accessibility 
requirements, or allow compliance with less stringent requirements, on 
sites with slopes exceeding 10%.
    The Department is aware of the provisions in HUD's guidelines, which 
were issued on March 6, 1991, after passage of the ADA and publication 
of the Department's proposed rule. The approach taken in these 
guidelines, which apply to different types of construction and implement 
different statutory requirements for new construction, does not bind 
this Department in regulating under the ADA. The Department has included 
in the final rule the substance of the proposed provision, which is 
faithful to the intent of the statute, as expressed in the legislative 
history. (See Senate report at 70-71; Education and Labor report at 
120.)
    The limited structural impracticability exception means that it is 
acceptable to deviate from accessibility requirements only where unique 
characteristics of terrain prevent the incorporation of accessibility 
features and where providing accessibility would destroy the physical 
integrity of a facility. A situation in which a building must be built 
on stilts because of its location in marshlands or over water is an 
example of one of the few situations in which the exception for 
structural impracticability would apply.
    This exception to accessibility requirements should not be applied 
to situations in which a facility is located in ``hilly'' terrain or on 
a plot of land upon which there are steep grades. In such circumstances, 
accessibility can be achieved without destroying the physical integrity 
of a structure, and is required in the construction of new facilities.
    Some commenters asked for clarification concerning when and how to 
apply the ADA rules or the Fair Housing Accessibility Guidelines, 
especially when a facility may be subject to both because of mixed use. 
Guidance on this question is provided in the discussion of the 
definitions of place of public accommodation and commercial facility. 
With respect to the structural impracticability exception, a mixed-use 
facility could not take advantage of the Fair Housing exemption, to the 
extent that it is less stringent than the ADA exemption, except for 
those portions of the facility that are subject only to the Fair Housing 
Act.
    As explained in the preamble to the proposed rule, in those rare 
circumstances in which it is structurally impracticable to achieve full 
compliance with accessibility retirements under the ADA, places of 
public accommodation and commercial facilities should still be designed 
and constructed to incorporate accessibility features to the extent that 
the features are structurally practicable. The accessibility 
requirements should not be viewed as an all-or-nothing proposition in 
such circumstances.
    If it is structurally impracticable for a facility in its entirety 
to be readily accessible to and usable by people with disabilities, then 
those portions that can be made accessible should be made accessible. If 
a building cannot be constructed in compliance with the full range of 
accessibility requirements because of structural impracticability, then 
it should still incorporate those features that are structurally 
practicable. If it is structurally impracticable to make a particular 
facility accessible to persons who have particular types of 
disabilities, it is still appropriate to require it to be made 
accessible to persons with other types of disabilities. For example, a 
facility that is of necessity built on stilts and cannot be made 
accessible to persons who use wheelchairs because it is structurally 
impracticable to do so, must be made accessible for individuals with 
vision or hearing impairments or other kinds of disabilities.

                           Elevator Exemption

    Section 36.401(d) implements the ``elevator exemption'' for new 
construction in section 303(b) of the ADA. The elevator exemption is an 
exception to the general requirement that new facilities be readily 
accessible to and usable by individuals with disabilities. Generally, an 
elevator is the most common way to provide individuals who use 
wheelchairs ``ready access'' to floor levels above or below the ground 
floor of a multi-story building. Congress, however, chose not to require 
elevators in new small buildings, that is, those with less than three 
stories or less than 3,000 square feet per story. In buildings eligible 
for the exemption, therefore, ``ready access'' from the building 
entrance to a floor above

[[Page 742]]

or below the ground floor is not required, because the statute does not 
require that an elevator be installed in such buildings. The elevator 
exemption does not apply, however, to a facility housing a shopping 
center, a shopping mall, or the professional office of a health care 
provider, or other categories of facilities as determined by the 
Attorney General. For example, a new office building that will have only 
two stories, with no elevator planned, will not be required to have an 
elevator, even if each story has 20,000 square feet. In other words, 
having either less than 3000 square feet per story or less than three 
stories qualifies a facility for the exemption; it need not qualify for 
the exemption on both counts. Similarly, a facility that has five 
stories of 2800 square feet each qualifies for the exemption. If a 
facility has three or more stories at any point, it is not eligible for 
the elevator exemption unless all the stories are less than 3000 square 
feet.
    The terms ``shopping center or shopping mall'' and ``professional 
office of a health care provider'' are defined in this section. They are 
substantively identical to the definitions included in the proposed rule 
in Sec. 36.104, ``Definitions.'' They have been moved to this section 
because, as commenters pointed out, they are relevant only for the 
purposes of the elevator exemption, and inclusion in the general 
definitions section could give the incorrect impression that an office 
of a health care provider is not covered as a place of public 
accommodation under other sections of the rule, unless the office falls 
within the definition.
    For purposes of Sec. 36.401, a ``shopping center or shopping mall'' 
is (1) a building housing five or more sales or rental establishments, 
or (2) a series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. The term ``shopping center or shopping mall'' only 
includes floor levels containing at least one sales or rental 
establishment, or any floor level that was designed or intended for use 
by at least one sales or rental establishment.
    Any sales or rental establishment of the type that is included in 
paragraph (5) of the definition of ``place of public accommodation'' 
(for example, a bakery, grocery store, clothing store, or hardware 
store) is considered a sales or rental establishment for purposes of 
this definition; the other types of public accommodations (e.g., 
restaurants, laundromats, banks, travel services, health spas) are not.
    In the preamble to the proposed rule, the Department sought comment 
on whether the definition of ``shopping center or mall'' should be 
expanded to include any of these other types of public accommodations. 
The Department also sought comment on whether a series of buildings 
should fall within the definition only if they are physically connected.
    Most of those responding to the first question (overwhelmingly 
groups representing people with disabilities, or individual commenters) 
urged that the definition encompass more places of public accommodation, 
such as restaurants, motion picture houses, laundromats, dry cleaners, 
and banks. They pointed out that often it is not known what types of 
establishments will be tenants in a new facility. In addition, they 
noted that malls are advertised as entities, that their appeal is in the 
``package'' of services offered to the public, and that this package 
often includes the additional types of establishments mentioned.
    Commenters representing business groups sought to exempt banks, 
travel services, grocery stores, drug stores, and freestanding retail 
stores from the elevator requirement. They based this request on the 
desire to continue the practice in some locations of incorporating 
mezzanines housing administrative offices, raised pharmacist areas, and 
raised areas in the front of supermarkets that house safes and are used 
by managers to oversee operations of check-out aisles and other 
functions. Many of these concerns are adequately addressed by ADAAG. 
Apart from those addressed by ADAAG, the Department sees no reason to 
treat a particular type of sales or rental establishment differently 
from any other. Although banks and travel services are not included as 
``sales or rental establishments,'' because they do not fall under 
paragraph (5) of the definition of place of public accommodation, 
grocery stores and drug stores are included.
    The Department has declined to include places of public 
accommodation other than sales or rental establishments in the 
definition. The statutory definition of ``public accommodation'' 
(section 301(7)) lists 12 types of establishments that are considered 
public accommodations. Category (E) includes ``a bakery, grocery store, 
clothing store, hardware store, shopping center, or other sales or 
rental establishment.'' This arrangement suggests that it is only these 
types of establishments that would make up a shopping center for 
purposes of the statute. To include all types of places of public 
accommodation, or those from 6 or 7 of the categories, as commenters 
suggest, would overly limit the elevator exemption; the universe of 
facilities covered by the definition of ``shopping center'' could well 
exceed the number of multitenant facilities not covered, which would 
render the exemption almost meaningless.
    For similar reasons, the Department is retaining the requirement 
that a building or series of buildings must house five or more sales or 
rental establishments before it falls within the definition of 
``shopping center.''

[[Page 743]]

Numerous commenters objected to the number and requested that the number 
be lowered from five to three or four. Lowering the number in this 
manner would include an inordinately large number of two-story 
multitenant buildings within the category of those required to have 
elevators.
    The responses to the question concerning whether a series of 
buildings should be connected in order to be covered were varied. 
Generally, disability rights groups and some government agencies said a 
series of buildings should not have to be connected, and pointed to a 
trend in some areas to build shopping centers in a garden or village 
setting. The Department agrees that this design choice should not negate 
the elevator requirement for new construction. Some business groups 
answered the question in the affirmative, and some suggested a different 
definition of shopping center. For example, one commenter recommended 
the addition of a requirement that the five or more establishments be 
physically connected on the non-ground floors by a common pedestrian 
walkway or pathway, because otherwise a series of stand-alone facilities 
would have to comply with the elevator requirement, which would be 
unduly burdensome and perhaps infeasible. Another suggested use of what 
it characterized as the standard industry definition: ``A group of 
retail stores and related business facilities, the whole planned, 
developed, operated and managed as a unit.'' While the rule's definition 
would reach a series of related projects that are under common control 
but were not developed as a single project, the Department considers 
such a facility to be a shopping center within the meaning of the 
statute. However, in light of the hardship that could confront a series 
of existing small stand-alone buildings if elevators were required in 
alterations, the Department has included a common access route in the 
definition of shopping center or shopping mall for purposes of Sec. 
36.404.
    Some commenters suggested that access to restrooms and other shared 
facilities open to the public should be required even if those 
facilities were not on a shopping floor. Such a provision with respect 
to toilet or bathing facilities is included in the elevator exception in 
final ADAAG 4.1.3(5).
    For purposes of this subpart, the rule does not distinguish between 
a ``shopping mall'' (usually a building with a roofed-over common 
pedestrian area serving more than one tenant in which a majority of the 
tenants have a main entrance from the common pedestrian area) and a 
``shopping center'' (e.g., a ``shopping strip''). Any facility housing 
five or more of the types of sales or rental establishments described, 
regardless of the number of other types of places of public 
accommodation housed there (e.g., offices, movie theatres, restaurants), 
is a shopping center or shopping mall.
    For example, a two-story facility built for mixed-use occupancy on 
both floors (e.g., by sales and rental establishments, a movie theater, 
restaurants, and general office space) is a shopping center or shopping 
mall if it houses five or more sales or rental establishments. If none 
of these establishments is located on the second floor, then only the 
ground floor, which contains the sales or rental establishments, would 
be a ``shopping center or shopping mall,'' unless the second floor was 
designed or intended for use by at least one sales or rental 
establishment. In determining whether a floor was intended for such use, 
factors to be considered include the types of establishments that first 
occupied the floor, the nature of the developer's marketing strategy, 
i.e., what types of establishments were sought, and inclusion of any 
design features particular to rental and sales establishments.
    A ``professional office of a health care provider'' is defined as a 
location where a person or entity regulated by a State to provide 
professional services related to the physical or mental health of an 
individual makes such services available to the public. In a two-story 
development that houses health care providers only on the ground floor, 
the ``professional office of a health care provider'' is limited to the 
ground floor unless the second floor was designed or intended for use by 
a health care provider. In determining if a floor was intended for such 
use, factors to be considered include whether the facility was 
constructed with special plumbing, electrical, or other features needed 
by health care providers, whether the developer marketed the facility as 
a medical office center, and whether any of the establishments that 
first occupied the floor was, in fact, a health care provider.
    In addition to requiring that a building that is a shopping center, 
shopping mall, or the professional office of a health care provider have 
an elevator regardless of square footage or number of floors, the ADA 
(section 303(b)) provides that the Attorney General may determine that a 
particular category of facilities requires the installation of elevators 
based on the usage of the facilities. The Department, as it proposed to 
do, has added to the nonexempt categories terminals, depots, or other 
stations used for specified public transportation, and airport passenger 
terminals. Numerous commenters in all categories endorsed this proposal; 
none opposed it. It is not uncommon for an airport passenger terminal or 
train station, for example, to have only two floors, with gates on both 
floors. Because of the significance of transportation, because a person 
with disabilities could be arriving or departing at any gate, and 
because inaccessible facilities could result in a total denial of 
transportation services, it is reasonable to require that newly 
constructed transit facilities be

[[Page 744]]

accessible, regardless of square footage or number of floors. One 
comment suggested an amendment that would treat terminals and stations 
similarly to shopping centers, by requiring an accessible route only to 
those areas used for passenger loading and unloading and for other 
passenger services. Paragraph (d)(2)(ii) has been modified accordingly.
    Some commenters suggested that other types of facilities (e.g., 
educational facilities, libraries, museums, commercial facilities, and 
social service facilities) should be included in the category of 
nonexempt facilities. The Department has not found adequate 
justification for including any other types of facilities in the 
nonexempt category at this time.
    Section 36.401(d)(2) establishes the operative requirements 
concerning the elevator exemption and its application to shopping 
centers and malls, professional offices of health care providers, 
transit stations, and airport passenger terminals. Under the rule's 
framework, it is necessary first to determine if a new facility 
(including one or more buildings) houses places of public accommodation 
or commercial facilities that are in the categories for which elevators 
are required. If so, and the facility is a shopping center or shopping 
mall, or a professional office of a health care provider, then any area 
housing such an office or a sales or rental establishment or the 
professional office of a health care provider is not entitled to the 
elevator exemption.
    The following examples illustrate the application of these 
principles:
    1. A shopping mall has an upper and a lower level. There are two 
``anchor stores'' (in this case, major department stores at either end 
of the mall, both with exterior entrances and an entrance on each level 
from the common area). In addition, there are 30 stores (sales or rental 
establishments) on the upper level, all of which have entrances from a 
common central area. There are 30 stores on the lower level, all of 
which have entrances from a common central area. According to the rule, 
elevator access must be provided to each store and to each level of the 
anchor stores. This requirement could be satisfied with respect to the 
60 stores through elevators connecting the two pedestrian levels, 
provided that an individual could travel from the elevator to any other 
point on that level (i.e., into any store through a common pedestrian 
area) on an accessible path.
    2. A commercial (nonresidential) ``townhouse'' development is 
composed of 20 two-story attached buildings. The facility is developed 
as one project, with common ownership, and the space will be leased to 
retailers. Each building has one accessible entrance from a pedestrian 
walk to the first floor. From that point, one can enter a store on the 
first floor, or walk up a flight of stairs to a store on the second 
floor. All 40 stores must be accessible at ground floor level or by 
accessible vertical access from that level. This does not mean, however, 
that 20 elevators must be installed. Access could be provided to the 
second floor by an elevator from the pedestrian area on the lower level 
to an upper walkway connecting all the areas on the second floor.
    3. In the same type of development, it is planned that retail stores 
will be housed exclusively on the ground floor, with only office space 
(not professional offices of health care providers) on the second. 
Elevator access need not be provided to the second floor because all the 
sales or rental establishments (the entities that make the facility a 
shopping center) are located on an accessible ground floor.
    4. In the same type of development, the space is designed and 
marketed as medical or office suites, or as a medical office facility. 
Accessible vertical access must be provided to all areas, as described 
in example 2.
    Some commenters suggested that building owners who knowingly lease 
or rent space to nonexempt places of public accommodation would violate 
Sec. 36.401. However, the Department does not consider leasing or 
renting inaccessible space in itself to constitute a violation of this 
part. Nor does a change in use of a facility, with no accompanying 
alterations (e.g., if a psychiatrist replaces an attorney as a tenant in 
a second-floor office, but no alterations are made to the office) 
trigger accessibility requirements.
    Entities cannot evade the requirements of this section by 
constructing facilities in such a way that no story is intended to 
constitute a ``ground floor.'' For example, if a private entity 
constructs a building whose main entrance leads only to stairways or 
escalators that connect with upper or lower floors, the Department would 
consider at least one level of the facility a ground story.
    The rule requires in Sec. 36.401(d)(3), consistent with the 
proposed rule, that, even if a building falls within the elevator 
exemption, the floor or floors other than the ground floor must 
nonetheless be accessible, except for elevator access, to individuals 
with disabilities, including people who use wheelchairs. This 
requirement applies to buildings that do not house sales or rental 
establishments or the professional offices of a health care provider as 
well as to those in which such establishments or offices are all located 
on the ground floor. In such a situation, little added cost is entailed 
in making the second floor accessible, because it is similar in 
structure and floor plan to the ground floor.
    There are several reasons for this provision. First, some 
individuals who are mobility impaired may work on a building's second 
floor, which they can reach by stairs and

[[Page 745]]

the use of crutches; however, the same individuals, once they reach the 
second floor, may then use a wheelchair that is kept in the office. 
Secondly, because the first floor will be accessible, there will be 
little additional cost entailed in making the second floor, with the 
same structure and generally the same floor plan, accessible. In 
addition, the second floor must be accessible to those persons with 
disabilities who do not need elevators for level changes (for example, 
persons with sight or hearing impairments and those with certain 
mobility impairments). Finally, if an elevator is installed in the 
future for any reason, full access to the floor will be facilitated.
    One commenter asserted that this provision goes beyond the 
Department's authority under the Act, and disagreed with the 
Department's claim that little additional cost would be entailed in 
compliance. However, the provision is taken directly from the 
legislative history (see Education and Labor report at 114).
    One commenter said that where an elevator is not required, platform 
lifts should be required. Two commenters pointed out that the elevator 
exemption is really an exemption from the requirement for providing an 
accessible route to a second floor not served by an elevator. The 
Department agrees with the latter comment. Lifts to provide access 
between floors are not required in buildings that are not required to 
have elevators. This point is specifically addressed in the appendix to 
ADAAG (Sec. 4.1.3(5)). ADAAG also addresses in detail the situations in 
which lifts are permitted or required.

                       Section 36.402 Alterations

    Sections 36.402-36.405 implement section 303(a)(2) of the Act, which 
requires that alterations to existing facilities be made in a way that 
ensures that the altered portion is readily accessible to and usable by 
individuals with disabilities. This part does not require alterations; 
it simply provides that when alterations are undertaken, they must be 
made in a manner that provides access.
    Section 36.402(a)(1) provides that any alteration to a place of 
public accommodation or a commercial facility, after January 26, 1992, 
shall be made so as to ensure that, to the maximum extent feasible, the 
altered portions of the facility are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    The proposed rule provided that an alteration would be deemed to be 
undertaken after January 26, 1992, if the physical alteration of the 
property is in progress after that date. Commenters pointed out that 
this provision would, in some cases, produce an unjust result by 
requiring the redesign or retrofitting of projects initiated before this 
part established the ADA accessibility standards. The Department agrees 
that the proposed rule would, in some instances, unfairly penalize 
projects that were substantially completed before the effective date. 
Therefore, paragraph (a)(2) has been revised to specify that an 
alteration will be deemed to be undertaken after January 26, 1992, if 
the physical alteration of the property begins after that date. As a 
matter of interpretation, the Department will construe this provision to 
apply to alterations that require a permit from a State, County or local 
government, if physical alterations pursuant to the terms of the permit 
begin after January 26, 1992. The Department recognizes that this 
application of the effective date may require redesign of some 
facilities that were planned prior to the publication of this part, but 
no retrofitting will be required of facilities on which the physical 
alterations were initiated prior to the effective date of the Act. Of 
course, nothing in this section in any way alters the obligation of any 
facility to remove architectural barriers in existing facilities to the 
extent that such barrier removal is readily achievable.
    Paragraph (b) provides that, for the purposes of this part, an 
``alteration'' is a change to a place of public accommodation or a 
commercial facility that affects or could affect the usability of the 
building or facility or any part thereof. One commenter suggested that 
the concept of usability should apply only to those changes that affect 
access by persons with disabilities. The Department remains convinced 
that the Act requires the concept of ``usability'' to be read broadly to 
include any change that affects the usability of the facility, not 
simply changes that relate directly to access by individuals with 
disabilities.
    The Department received a significant number of comments on the 
examples provided in paragraphs (b)(1) and (b)(2) of the proposed rule. 
Some commenters urged the Department to limit the application of this 
provision to major structural modifications, while others asserted that 
it should be expanded to include cosmetic changes such as painting and 
wallpapering. The Department believes that neither approach is 
consistent with the legislative history, which requires this 
Department's regulation to be consistent with the accessibility 
guidelines (ADAAG) developed by the Architectural and Transportation 
Barriers Compliance Board (ATBCB). Although the legislative history 
contemplates that, in some instances, the ADA accessibility standards 
will exceed the current MGRAD requirements, it also clearly indicates 
the view of the drafters that ``minor changes such as painting or 
papering walls * * * do not affect usability'' (Education and Labor 
report at 111, Judiciary report at 64), and, therefore, are not 
alterations. The proposed rule was based on the existing MGRAD 
definition of ``alteration.''

[[Page 746]]

The language of the final rule has been revised to be consistent with 
ADAAG, incorporated as appendix A to this part.
    Some commenters sought clarification of the intended scope of this 
section. The proposed rule contained illustrations of changes that 
affect usability and those that do not. The intent of the illustrations 
was to explain the scope of the alterations requirement; the effect was 
to obscure it. As a result of the illustrations, some commenters 
concluded that any alteration to a facility, even a minor alteration 
such as relocating an electrical outlet, would trigger an extensive 
obligation to provide access throughout an entire facility. That result 
was never contemplated.
    Therefore, in this final rule paragraph (b)(1) has been revised to 
include the major provisions of paragraphs (b)(1) and (b)(2) of the 
proposed rule. The examples in the proposed rule have been deleted. 
Paragraph (b)(1) now provides that alterations include, but are not 
limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical and 
electrical systems are not alterations unless they affect the usability 
of building or facility.
    Paragraph (b)(2) of this final rule was added to clarify the scope 
of the alterations requirement. Paragraph (b)(2) provides that if 
existing elements, spaces, or common areas are altered, then each such 
altered element, space, or area shall comply with the applicable 
provisions of appendix A (ADAAG). As provided in Sec. 36.403, if an 
altered space or area is an area of the facility that contains a primary 
function, then the requirements of that section apply.
    Therefore, when an entity undertakes a minor alteration to a place 
of public accommodation or commercial facility, such as moving an 
electrical outlet, the new outlet must be installed in compliance with 
ADAAG. (Alteration of the elements listed in Sec. 36.403(c)(2) cannot 
trigger a path of travel obligation.) If the alteration is to an area, 
such as an employee lounge or locker room, that is not an area of the 
facility that contains a primary function, that area must comply with 
ADAAG. It is only when an alteration affects access to or usability of 
an area containing a primary function, as opposed to other areas or the 
elements listed in Sec. 36.403(c)(2), that the path of travel to the 
altered area must be made accessible.
    The Department received relatively few comments on paragraph (c), 
which explains the statutory phrase ``to the maximum extent feasible.'' 
Some commenters suggested that the regulation should specify that cost 
is a factor in determining whether it is feasible to make an altered 
area accessible. The legislative history of the ADA indicates that the 
concept of feasibility only reaches the question of whether it is 
possible to make the alteration accessible in compliance with this part. 
Costs are to be considered only when an alteration to an area containing 
a primary function triggers an additional requirement to make the path 
of travel to the altered area accessible.
    Section 36.402(c) is, therefore, essentially unchanged from the 
proposed rule. At the recommendation of a commenter, the Department has 
inserted the word ``virtually'' to modify ``impossible'' to conform to 
the language of the legislative history. It explains that the phrase 
``to the maximum extent feasible'' as used in this section applies to 
the occasional case where the nature of an existing facility makes it 
virtually impossible to comply fully with applicable accessibility 
standards through a planned alteration. In the occasional cases in which 
full compliance is impossible, alterations shall provide the maximum 
physical accessibility feasible. Any features of the facility that are 
being altered shall be made accessible unless it is technically 
infeasible to do so. If providing accessibility in conformance with this 
section to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches or who have impaired vision or hearing, or those who have 
other types of impairments).

               Section 36.403 Alterations: Path of Travel

    Section 36.403 implements the statutory requirement that any 
alteration that affects or could affect the usability of or access to an 
area of a facility that contains a primary function shall be made so as 
to ensure that, to the maximum extent feasible, the path of travel to 
the altered area, and the restrooms, telephones, and drinking fountains 
serving the altered area, are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs, unless the cost and scope of such alterations is 
disproportionate to the cost of the overall alteration. Paragraph (a) 
restates this statutory requirement.
    Paragraph (b) defines a ``primary function'' as a major activity for 
which the facility is intended. This paragraph is unchanged from the 
proposed rule. Areas that contain a primary function include, but are 
not limited to, the customer services lobby of a bank, the dining area 
of a cafeteria, the meeting rooms in a conference center, as well as 
offices and all other work areas in which the activities of the public 
accommodation or other private entities using the facility are

[[Page 747]]

carried out. The concept of ``areas containing a primary function'' is 
analogous to the concept of ``functional spaces'' in Sec. 3.5 of the 
existing Uniform Federal Accessibility Standards, which defines 
``functional spaces'' as ``[t]he rooms and spaces in a building or 
facility that house the major activities for which the building or 
facility is intended.''
    Paragraph (b) provides that areas such as mechanical rooms, boiler 
rooms, supply storage rooms, employee lounges and locker rooms, 
janitorial closets, entrances, corridors, and restrooms are not areas 
containing a primary function. There may be exceptions to this general 
rule. For example, the availability of public restrooms at a place of 
public accommodation at a roadside rest stop may be a major factor 
affecting customers' decisions to patronize the public accommodation. In 
that case, a restroom would be considered to be an ``area containing a 
primary function'' of the facility.
    Most of the commenters who addressed this issue supported the 
approach taken by the Department; but a few commenters suggested that 
areas not open to the general public or those used exclusively by 
employees should be excluded from the definition of primary function. 
The preamble to the proposed rule noted that the Department considered 
an alternative approach to the definition of ``primary function,'' under 
which a primary function of a commercial facility would be defined as a 
major activity for which the facility was intended, while a primary 
function of a place of public accommodation would be defined as an 
activity which involves providing significant goods, services, 
facilities, privileges, advantages, or accommodations. However, the 
Department concluded that, although portions of the legislative history 
of the ADA support this alternative, the better view is that the 
language now contained in Sec. 36.403(b) most accurately reflects 
congressional intent. No commenter made a persuasive argument that the 
Department's interpretation of the legislative history is incorrect.
    When the ADA was introduced, the requirement to make alterations 
accessible was included in section 302 of the Act, which identifies the 
practices that constitute discrimination by a public accommodation. 
Because section 302 applies only to the operation of a place of public 
accommodation, the alterations requirement was intended only to provide 
access to clients and customers of a public accommodation. It was 
anticipated that access would be provided to employees with disabilities 
under the ``reasonable accommodation'' requirements of title I. However, 
during its consideration of the ADA, the House Judiciary Committee 
amended the bill to move the alterations provision from section 302 to 
section 303, which applies to commercial facilities as well as public 
accommodations. The Committee report accompanying the bill explains 
that:
    New construction and alterations of both public accommodations and 
commercial facilities must be made readily accessible to and usable by 
individuals with disabilities * * *. Essentially, [this requirement] is 
designed to ensure that patrons and employees of public accommodations 
and commercial facilities are able to get to, enter and use the facility 
* * *. The rationale for making new construction accessible applies with 
equal force to alterations.
Judiciary report at 62-63 (emphasis added).
    The ADA, as enacted, contains the language of section 303 as it was 
reported out of the Judiciary Committee. Therefore, the Department has 
concluded that the concept of ``primary function'' should be applied in 
the same manner to places of public accommodation and to commercial 
facilities, thereby including employee work areas in places of public 
accommodation within the scope of this section.
    Paragraph (c) provides examples of alterations that affect the 
usability of or access to an area containing a primary function. The 
examples include: Remodeling a merchandise display area or employee work 
areas in a department store; installing a new floor surface to replace 
an inaccessible surface in the customer service area or employee work 
areas of a bank; redesigning the assembly line area of a factory; and 
installing a computer center in an accounting firm. This list is 
illustrative, not exhaustive. Any change that affects the usability of 
or access to an area containing a primary function triggers the 
statutory obligation to make the path of travel to the altered area 
accessible.
    When the proposed rule was drafted, the Department believed that the 
rule made it clear that the ADA would require alterations to the path of 
travel only when such alterations are not disproportionate to the 
alteration to the primary function area. However, the comments that the 
Department received indicated that many commenters believe that even 
minor alterations to individual elements would require additional 
alterations to the path of travel. To address the concern of these 
commenters, a new paragraph (c)(2) has been added to the final rule to 
provide that alterations to such elements as windows, hardware, controls 
(e.g. light switches or thermostats), electrical outlets, or signage 
will not be deemed to be alterations that affect the usability of or 
access to an area containing a primary function. Of course, each element 
that is altered must comply with ADAAG (appendix A) . The cost of 
alterations to individual elements would be included in the overall cost 
of an alteration for purposes of determining disproportionality and 
would be counted

[[Page 748]]

when determining the aggregate cost of a series of small alterations in 
accordance with Sec. 36.401(h) if the area is altered in a manner that 
affects access to or usability of an area containing a primary function.
    Paragraph (d) concerns the respective obligations of landlords and 
tenants in the cases of alterations that trigger the path of travel 
requirement under Sec. 36.403. This paragraph was contained in the 
landlord/tenant section of the proposed rule, Sec. 36.201(b). If a 
tenant is making alterations upon its premises pursuant to terms of a 
lease that grant it the authority to do so (even if they constitute 
alterations that trigger the path of travel requirement), and the 
landlord is not making alterations to other parts of the facility, then 
the alterations by the tenant on its own premises do not trigger a path 
of travel obligation upon the landlord in areas of the facility under 
the landlord's authority that are not otherwise being altered. The 
legislative history makes clear that the path of travel requirement 
applies only to the entity that is already making the alteration, and 
thus the Department has not changed the final rule despite numerous 
comments suggesting that the tenant be required to provide a path of 
travel.
    Paragraph (e) defines a ``path of travel'' as a continuous, 
unobstructed way of pedestrian passage by means of which an altered area 
may be approached, entered, and exited; and which connects the altered 
area with an exterior approach (including sidewalks, streets, and 
parking areas), an entrance to the facility, and other parts of the 
facility. This concept of an accessible path of travel is analogous to 
the concepts of ``accessible route'' and ``circulation path'' contained 
in section 3.5 of the current UFAS. Some commenters suggested that this 
paragraph should address emergency egress. The Department disagrees. 
``Path of travel'' as it is used in this section is a term of art under 
the ADA that relates only to the obligation of the public accommodation 
or commercial facility to provide additional accessible elements when an 
area containing a primary function is altered. The Department recognizes 
that emergency egress is an important issue, but believes that it is 
appropriately addressed in ADAAG (appendix A), not in this paragraph. 
Furthermore, ADAAG does not require changes to emergency egress areas in 
alterations.
    Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides that 
an accessible path of travel may consist of walks and sidewalks, curb 
ramps and other interior or exterior pedestrian ramps; clear floor paths 
through lobbies, corridors, rooms, and other improved areas; parking 
access aisles; elevators and lifts; or a combination of such elements. 
Paragraph (e)(3) provides that, for the purposes of this part, the term 
``path of travel'' also includes the restrooms, telephones, and drinking 
fountains serving an altered area.
    Although the Act establishes an expectation that an accessible path 
of travel should generally be included when alterations are made to an 
area containing a primary function, Congress recognized that, in some 
circumstances, providing an accessible path of travel to an altered area 
may be sufficiently burdensome in comparison to the alteration being 
undertaken to the area containing a primary function as to render this 
requirement unreasonable. Therefore, Congress provided, in section 
303(a)(2) of the Act, that alterations to the path of travel that are 
disproportionate in cost and scope to the overall alteration are not 
required.
    The Act requires the Attorney General to determine at what point the 
cost of providing an accessible path of travel becomes disproportionate. 
The proposed rule provided three options for making this determination.
    Two committees of Congress specifically addressed this issue: the 
House Committee on Education and Labor and the House Committee on the 
Judiciary. The reports issued by each committee suggested that 
accessibility alterations to a path of travel might be 
``disproportionate'' if they exceed 30% of the alteration costs 
(Education and Labor report at 113; Judiciary report at 64). Because the 
Department believed that smaller percentage rates might be appropriate, 
the proposed rule sought comments on three options: 10%, 20%, or 30%.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported the use of 30% (or more); commenters representing covered 
entities supported a figure of 10% (or less). The Department believes 
that alterations made to provide an accessible path of travel to the 
altered area should be deemed disproportionate to the overall alteration 
when the cost exceeds 20% of the cost of the alteration to the primary 
function area. This approach appropriately reflects the intent of 
Congress to provide access for individuals with disabilities without 
causing economic hardship for the covered public accommodations and 
commercial facilities.
    The Department has determined that the basis for this cost 
calculation shall be the cost of the alterations to the area containing 
the primary function. This approach will enable the public accommodation 
or other private entity that is making the alteration to calculate its 
obligation as a percentage of a clearly ascertainable base cost, rather 
than as a percentage of the ``total'' cost, an amount that will change 
as accessibility alterations to the path of travel are made.

[[Page 749]]

    Paragraph (f)(2) (paragraph (e)(2) in the proposed rule) is 
unchanged. It provides examples of costs that may be counted as 
expenditures required to provide an accessible path of travel. They 
include:
     Costs associated with providing an accessible 
entrance and an accessible route to the altered area, for example, the 
cost of widening doorways or installing ramps;
     Costs associated with making restrooms 
accessible, such as installing grab bars, enlarging toilet stalls, 
insulating pipes, or installing accessible faucet controls;
     Costs associated with providing accessible 
telephones, such as relocating telephones to an accessible height, 
installing amplification devices, or installing telecommunications 
devices for deaf persons (TDD's);
     Costs associated with relocating an inaccessible 
drinking fountain.
    Paragraph (f)(1) of the proposed rule provided that when the cost of 
alterations necessary to make the path of travel serving an altered area 
fully accessible is disproportionate to the cost of the overall 
alteration, the path of travel shall be made accessible to the maximum 
extent feasible. In response to the suggestion of a commenter, the 
Department has made an editorial change in the final rule (paragraph 
(g)(1)) to clarify that if the cost of providing a fully accessible path 
of travel is disproportionate, the path of travel shall be made 
accessible ``to the extent that it can be made accessible without 
incurring disproportionate costs.''
    Paragraph (g)(2) (paragraph (f)(2) in the NPRM) establishes that 
priority should be given to those elements that will provide the 
greatest access, in the following order: An accessible entrance; an 
accessible route to the altered area; at least one accessible restroom 
for each sex or a single unisex restroom; accessible telephones; 
accessible drinking fountains; and, whenever possible, additional 
accessible elements such as parking, storage, and alarms. This paragraph 
is unchanged from the proposed rule.
    Paragraph (h) (paragraph (g) in the proposed rule) provides that the 
obligation to provide an accessible path of travel may not be evaded by 
performing a series of small alterations to the area served by a single 
path of travel if those alterations could have been performed as a 
single undertaking. If an area containing a primary function has been 
altered without providing an accessible path of travel to serve that 
area, and subsequent alterations of that area, or a different area on 
the same path of travel, are undertaken within three years of the 
original alteration, the total cost of alterations to primary function 
areas on that path of travel during the preceding three year period 
shall be considered in determining whether the cost of making the path 
of travel serving that area accessible is disproportionate. Only 
alterations undertaken after January 26, 1992, shall be considered in 
determining if the cost of providing accessible features is 
disproportionate to the overall cost of the alterations.

             Section 36.404 Alterations: Elevator Exemption

    Section 36.404 implements the elevator exemption in section 303(b) 
of the Act as it applies to altered facilities. The provisions of 
section 303(b) are discussed in the preamble to Sec. 36.401(d) above. 
The statute applies the same exemption to both new construction and 
alterations. The principal difference between the requirements of Sec. 
36.401(d) and Sec. 36.404 is that, in altering an existing facility 
that is not eligible for the statutory exemption, the public 
accommodation or other private entity responsible for the alteration is 
not required to install an elevator if the installation of an elevator 
would be disproportionate in cost and scope to the cost of the overall 
alteration as provided in Sec. 36.403(f)(1). In addition, the standards 
referenced in Sec. 36.406 (ADAAG) provide that installation of an 
elevator in an altered facility is not required if it is ``technically 
infeasible.''
    This section has been revised to define the terms ``professional 
office of a health care provider'' and ``shopping center or shopping 
mall'' for the purposes of this section. The definition of 
``professional office of a health care provider'' is identical to the 
definition included in Sec. 36.401(d).
    It has been brought to the attention of the Department that there is 
some misunderstanding about the scope of the elevator exemption as it 
applies to the professional office of a health care provider. A public 
accommodation, such as the professional office of a health care 
provider, is required to remove architectural barriers to its facility 
to the extent that such barrier removal is readily achievable (see Sec. 
36.304), but it is not otherwise required by this part to undertake new 
construction or alterations. This part does not require that an existing 
two story building that houses the professional office of a health care 
provider be altered for the purpose of providing elevator access. If, 
however, alterations to the area housing the office of the health care 
provider are undertaken for other purposes, the installation of an 
elevator might be required, but only if the cost of the elevator is not 
disproportionate to the cost of the overall alteration. Neither the Act 
nor this part prohibits a health care provider from locating his or her 
professional office in an existing facility that does not have an 
elevator.
    Because of the unique challenges presented in altering existing 
facilities, the Department has adopted a definition of ``shopping center 
or shopping mall'' for the purposes of this section that is slightly 
different from the definition adopted under Sec. 36.401(d). For

[[Page 750]]

the purposes of this section, a ``shopping center or shopping mall'' is 
(1) a building housing five or more sales or rental establishments, or 
(2) a series of buildings on a common site, connected by a common 
pedestrian access route above or below the ground floor, either under 
common ownership or common control or developed either as one project or 
as a series of related projects, housing five or more sales or rental 
establishments. As is the case with new construction, the term 
``shopping center or shopping mall'' only includes floor levels housing 
at least one sales or rental establishment, or any floor level that was 
designed or intended for use by at least one sales or rental 
establishment.
    The Department believes that it is appropriate to use a different 
definition of ``shopping center or shopping mall'' for this section than 
for Sec. 36.401, in order to make it clear that a series of existing 
buildings on a common site that is altered for the use of sales or 
rental establishments does not become a ``shopping center or shopping 
mall'' required to install an elevator, unless there is a common means 
of pedestrian access above or below the ground floor. Without this 
exemption, separate, but adjacent, buildings that were initially 
designed and constructed independently of each other could be required 
to be retrofitted with elevators, if they were later renovated for a 
purpose not contemplated at the time of construction.
    Like Sec. 36.401(d), Sec. 36.404 provides that the exemptions in 
this paragraph do not obviate or limit in any way the obligation to 
comply with the other accessibility requirements established in this 
subpart. For example, alterations to floors above or below the ground 
floor must be accessible regardless of whether the altered facility has 
an elevator. If a facility that is not required to install an elevator 
nonetheless has an elevator, that elevator shall meet, to the maximum 
extent feasible, the accessibility requirements of this section.

            Section 36.405 Alterations: Historic Preservation

    Section 36.405 gives effect to the intent of Congress, expressed in 
section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act (36 CFR 800.9) 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. Therefore, the language of this section 
has been revised to make it clear that this provision applies to 
buildings or facilities that are eligible for listing in the National 
Register of Historic Places under the National Historic Preservation Act 
(16 U.S.C. 470 et seq.) and to buildings or facilities that are 
designated as historic under State or local law. The Department 
believes, however, that the criteria of adverse effect employed under 
the National Historic Preservation Act are inappropriate for this rule 
because section 504(c) of the ADA specifies that special alterations 
provisions shall apply only when an alteration would ``threaten or 
destroy the historic significance of qualified historic buildings and 
facilities.''
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions in ADAAG. Therefore, paragraph (a) of Sec. 36.405 has been 
revised to provide that alterations to historic properties shall comply, 
to the maximum extent feasible, with section 4.1.7 of ADAAG. Paragraph 
(b) of this section has been revised to provide that if it has been 
determined, under the procedures established in ADAAG, that it is not 
feasible to provide physical access to an historic property that is a 
place of public accommodation in a manner that will not threaten or 
destroy the historic significance of the property, alternative methods 
of access shall be provided pursuant to the requirements of Subpart C.

      Section 36.406 Standards for New Construction and Alterations

    Section 36.406 implements the requirements of sections 306(b) and 
306(c) of the Act, which require the Attorney General to promulgate 
standards for accessible design for buildings and facilities subject to 
the Act and this part that are consistent with the supplemental minimum 
guidelines and requirements for accessible design published by the 
Architectural and Transportation Barriers Compliance Board (ATBCB or 
Board) pursuant to section 504 of the Act. This section of the rule 
provides that new construction and alterations subject to this part 
shall comply with the standards for accessible design published as 
appendix A to this part.
    Appendix A contains the Americans with Disabilities Act 
Accessibility Guidelines for

[[Page 751]]

Buildings and Facilities (ADAAG) which is being published by the ATBCB 
as a final rule elsewhere in this issue of the Federal Register. As 
proposed in this Department's proposed rule, Sec. 36.406(a) adopts 
ADAAG as the accessibility standard applicable under this rule.
    Paragraph (b) was not included in the proposed rule. It provides, in 
chart form, guidance for using ADAAG together with subparts A through D 
of this part when determining requirements for a particular facility. 
This chart is intended solely as guidance for the user; it has no effect 
for purposes of compliance or enforcement. It does not necessarily 
provide complete or mandatory information.
    Proposed Sec. 36.406(b) is not included in the final rule. That 
provision, which would have taken effect only if the final rule had 
followed the proposed Option Two for Sec. 36.401(a), is unnecessary 
because the Department has chosen Option One, as explained in the 
preamble for that section.
    Section 504(a) of the ADA requires the ATBCB to issue minimum 
guidelines to supplement the existing Minimum Guidelines and 
Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for 
purposes of title III. According to section 504(b) of the Act, the 
guidelines are to establish additional requirements, consistent with the 
Act, ``to ensure that buildings and facilities are accessible, in terms 
of architecture and design, . . . and communication, to individuals with 
disabilities.'' Section 306(c) of the Act requires that the 
accessibility standards included in the Department's regulations be 
consistent with the minimum guidelines, in this case ADAAG.
    As explained in the ATBCB's preamble to ADAAG, the substance and 
form of the guidelines are drawn from several sources. They use as their 
model the 1984 Uniform Federal Accessibility Standards (UFAS) (41 CFR 
part 101, subpart 101-19.6, appendix), which are the standards 
implementing the Architectural Barriers Act. UFAS is based on the 
Board's 1982 MGRAD. ADAAG follows the numbering system and format of the 
private sector American National Standard Institute's ANSI A117.1 
standards. (American National Specifications for Making Buildings and 
Facilities Accessible to and Usable by Physically Handicapped People 
(ANSI A117-1980) and American National Standard for Buildings and 
Facilities--Providing Accessibility and Usability for Physically 
Handicapped People (ANSI A117.1-1986).) ADAAG supplements MGRAD. In 
developing ADAAG, the Board made every effort to be consistent with 
MGRAD and the current and proposed ANSI Standards, to the extent 
consistent with the ADA.
    ADAAG consists of nine main sections and a separate appendix. 
Sections 1 through 3 contain general provisions and definitions. Section 
4 contains scoping provisions and technical specifications applicable to 
all covered buildings and facilities. The scoping provisions are listed 
separately for new construction of sites and exterior facilities; new 
construction of buildings; additions; alterations; and alterations to 
historic properties. The technical specifications generally reprint the 
text and illustrations of the ANSI A117.1 standard, except where 
differences are noted by italics. Sections 5 through 9 of the guidelines 
are special application sections and contain additional requirements for 
restaurants and cafeterias, medical care facilities, business and 
mercantile facilities, libraries, and transient lodging. The appendix to 
the guidelines contains additional information to aid in understanding 
the technical specifications. The section numbers in the appendix 
correspond to the sections of the guidelines to which they relate. An 
asterisk after a section number indicates that additional information 
appears in the appendix.
    ADAAG's provisions are further explained under Summary of ADAAG 
below.

                            General Comments

    One commenter urged the Department to move all or portions of 
subpart D, New Construction and Alterations, to the appendix (ADAAG) or 
to duplicate portions of subpart D in the appendix. The commenter 
correctly pointed out that subpart D is inherently linked to ADAAG, and 
that a self-contained set of rules would be helpful to users. The 
Department has attempted to simplify use of the two documents by 
deleting some paragraphs from subpart D (e.g., those relating to work 
areas), because they are included in ADAAG. However, the Department has 
retained in subpart D those sections that are taken directly from the 
statute or that give meaning to specific statutory concepts (e.g., 
structural impracticability, path of travel). While some of the subpart 
D provisions are duplicated in ADAAG, others are not. For example, 
issues relating to path of travel and disproportionality in alterations 
are not addressed in detail in ADAAG. (The structure and contents of the 
two documents are addressed below under Summary of ADAAG.) While the 
Department agrees that it would be useful to have one self-contained 
document, the different focuses of this rule and ADAAG do not permit 
this result at this time. However, the chart included in Sec. 36.406(b) 
should assist users in applying the provisions of subparts A through D, 
and ADAAG together.
    Numerous business groups have urged the Department not to adopt the 
proposed ADAAG as the accessibility standards, because the requirements 
established are too high, reflect the ``state of the art,'' and are 
inflexible, rigid, and impractical. Many of these objections have been 
lodged on the

[[Page 752]]

basis that ADAAG exceeds the statutory mandate to establish ``minimum'' 
guidelines. In the view of the Department, these commenters have 
misconstrued the meaning of the term ``minimum guidelines.'' The statute 
clearly contemplates that the guidelines establish a level of access--a 
minimum--that the standards must meet or exceed. The guidelines are not 
to be ``minimal'' in the sense that they would provide for a low level 
of access. To the contrary, Congress emphasized that the ADA requires a 
``high degree of convenient access.'' Education and Labor report at 117-
18. The legislative history explains that the guidelines may not 
``reduce, weaken, narrow or set less accessibility standards than those 
included in existing MGRAD'' and should provide greater guidance in 
communication accessibility for individuals with hearing and vision 
impairments. Id. at 139. Nor did Congress contemplate a set of 
guidelines less detailed than ADAAG; the statute requires that the ADA 
guidelines supplement the existing MGRAD. When it established the 
statutory scheme, Congress was aware of the content and purpose of the 
1982 MGRAD; as ADAAG does with respect to ADA, MGRAD establishes a 
minimum level of access that the Architectural Barriers Act standards 
(i.e., UFAS) must meet or exceed, and includes a high level of detail.
    Many of the same commenters urged the Department to incorporate as 
its accessibility standards the ANSI standard's technical provisions and 
to adopt the proposed scoping provisions under development by the 
Council of American Building Officials' Board for the Coordination of 
Model Codes (BCMC). They contended that the ANSI standard is familiar to 
and accepted by professionals, and that both documents are developed 
through consensus. They suggested that ADAAG will not stay current, 
because it does not follow an established cyclical review process, and 
that it is not likely to be adopted by nonfederal jurisdictions in State 
and local codes. They urged the Department and the Board to coordinate 
the ADAAG provisions and any substantive changes to them with the ANSI 
A117 committee in order to maintain a consistent and uniform set of 
accessibility standards that can be efficiently and effectively 
implemented at the State and local level through the existing building 
regulatory processes.
    The Department shares the commenters' goal of coordination between 
the private sector and Federal standards, to the extent that 
coordination can lead to substantive requirements consistent with the 
ADA. A single accessibility standard, or consistent accessibility 
standards, that can be used for ADA purposes and that can be 
incorporated or referenced by State and local governments, would help to 
ensure that the ADA requirements are routinely implemented at the design 
stage. The Department plans to work toward this goal.
    The Department, however, must comply with the requirements of the 
ADA, the Federal Advisory Committee Act (5 U.S.C app. 1 et seq.) and the 
Administrative Procedure Act (5 U.S.C 551 et seq.). Neither the 
Department nor the Board can adopt private requirements wholesale. 
Furthermore, neither the 1991 ANSI A117 Standard revision nor the BCMC 
process is complete. Although the ANSI and BCMC provisions are not 
final, the Board has carefully considered both the draft BCMC scoping 
provisions and draft ANSI technical standards and included their 
language in ADAAG wherever consistent with the ADA.
    Some commenters requested that, if the Department did not adopt ANSI 
by reference, the Department declare compliance with ANSI/BCMC to 
constitute equivalency with the ADA standards. The Department has not 
adopted this recommendation but has instead worked as a member of the 
ATBCB to ensure that its accessibility standards are practical and 
usable. In addition, as explained under subpart F, Certification of 
State Laws or Local Building Codes, the proper forum for further 
evaluation of this suggested approach would be in conjunction with the 
certification process.
    Some commenters urged the Department to allow an additional comment 
period after the Board published its guidelines in final form, for 
purposes of affording the public a further opportunity to evaluate the 
appropriateness of including them as the Departments accessibility 
standards. Such an additional comment period is unnecessary and would 
unduly delay the issuance of final regulations. The Department put the 
public on notice, through the proposed rule, of its intention to adopt 
the proposed ADAAG, with any changes made by the Board, as the 
accessibility standards. As a member of the Board and of its ADA Task 
Force, the Department participated actively in the public hearings held 
on the proposed guidelines and in preparation of both the proposed and 
final versions of ADAAG. Many individuals and groups commented directly 
to the Department's docket, or at its public hearings, about ADAAG. The 
comments received on ADAAG, whether by the Board or by this Department, 
were thoroughly analyzed and considered by the Department in the context 
of whether the proposed ADAAG was consistent with the ADA and suitable 
for adoption as both guidelines and standards. The Department is 
convinced that ADAAG as adopted in its final form is appropriate for 
these purposes. The final guidelines, adopted here as standards, will 
ensure the high level of access contemplated by Congress, consistent 
with the ADA's balance between the interests of people with disabilities 
and the business community.

[[Page 753]]

    A few commenters, citing the Senate report (at 70) and the Education 
and Labor report (at 119), asked the Department to include in the 
regulations a provision stating that departures from particular 
technical and scoping requirements of the accessibility standards will 
be permitted so long as the alternative methods used will provide 
substantially equivalent or greater access to and utilization of the 
facility. Such a provision is found in ADAAG 2.2 and by virtue of that 
fact is included in these regulations.

            Comments on specific provisions of proposed ADAAG

    During the course of accepting comments on its proposed rule, the 
Department received numerous comments on ADAAG. Those areas that 
elicited the heaviest response included assistive listening systems, 
automated teller machines, work areas, parking, areas of refuge, 
telephones (scoping for TDD's and volume controls) and visual alarms. 
Strenuous objections were raised by some business commenters to the 
proposed provisions of the guidelines concerning check-out aisles, 
counters, and scoping for hotels and nursing facilities. All these 
comments were considered in the same manner as other comments on the 
Department's proposed rule and, in the Department's view, have been 
addressed adequately in the final ADAAG.
    Largely in response to comments, the Board made numerous changes 
from its proposal, including the following:
     Generally, at least 50% of public entrances to 
new buildings must be accessible, rather than all entrances, as would 
often have resulted from the proposed approach.
     Not all check-out aisles are required to be 
accessible.
     The final guidelines provide greater flexibility 
in providing access to sales counters, and no longer require a portion 
of every counter to be accessible.
     Scoping for TDD's or text telephones was 
increased. One TDD or text telephone, for speech and hearing impaired 
persons, must be provided at locations with 4, rather than 6, pay 
phones, and in hospitals and shopping malls. Use of portable (less 
expensive) TDD's is allowed.
     Dispersal of wheelchair seating areas in theaters 
will be required only where there are more than 300 seats, rather than 
in all cases. Seats with removable armrests (i.e., seats into which 
persons with mobility impairments can transfer) will also be required.
     Areas of refuge (areas with direct access to a 
stairway, and where people who cannot use stairs may await assistance 
during an emergency evacuation) will be required, as proposed, but the 
final provisions are based on the Uniform Building Code. Such areas are 
not required in alterations.
     Rather than requiring 5% of new hotel rooms to be 
accessible to people with mobility impairments, between 2 and 4% 
accessibility (depending on total number of rooms) is required. In 
addition, 1% of the rooms must have roll-in showers.
     The proposed rule reserved the provisions on 
alterations to homeless shelters. The final guidelines apply alterations 
requirements to homeless shelters, but the requirements are less 
stringent than those applied to other types of facilities.
     Parking spaces that can be used by people in vans 
(with lifts) will be required.
     As mandated by the ADA, the Board has established 
a procedure to be followed with respect to alterations to historic 
facilities.

                            Summary of ADAAG

    This section of the preamble summarizes the structure of ADAAG, and 
highlights the more important portions.

                  Sections 1 Through 3

    Sections 1 through 3 contain general requirements, including 
definitions.

               Section 4.1.1, Application

    Section 4 contains scoping requirements. Section 4.1.1, Application, 
provides that all areas of newly designed or newly constructed buildings 
and facilities and altered portions of existing buildings and facilities 
required to be accessible by Sec. 4.1.6 must comply with the guidelines 
unless otherwise provided in Sec. 4.1.1 or a special application 
section. It addresses areas used only by employees as work areas, 
temporary structures, and general exceptions.
    Section 4.1.1(3) preserves the basic principle of the proposed rule: 
Areas that may be used by employees with disabilities shall be designed 
and constructed so that an individual with a disability can approach, 
enter, and exit the area. The language has been clarified to provide 
that it applies to any area used only as a work area (not just to areas 
``that may be used by employees with disabilities''), and that the 
guidelines do not require that any area used as an individual work 
station be designed with maneuvering space or equipped to be accessible. 
The appendix to ADAAG explains that work areas must meet the guidelines' 
requirements for doors and accessible routes, and recommends, but does 
not require, that 5% of individual work stations be designed to permit a 
person using a wheelchair to maneuver within the space.
    Further discussion of work areas is found in the preamble concerning 
proposed Sec. 36.401(b).
    Section 4.1.1(5)(a) includes an exception for structural 
impracticability that corresponds to the one found in Sec. 36.401(c) 
and discussed in that portion of the preamble.

[[Page 754]]

     Section 4.1.2, Accessible Sites and Exterior 
                      Facilities: New Construction

    This section addresses exterior features, elements, or spaces such 
as parking, portable toilets, and exterior signage, in new construction. 
Interior elements and spaces are covered by Sec. 4.1.3.
    The final rule retains the UFAS scoping for parking but also 
requires that at least one of every eight accessible parking spaces be 
designed with adequate adjacent space to deploy a lift used with a van. 
These spaces must have a sign indicating that they are van-accessible, 
but they are not to be reserved exclusively for van users.

 Section 4.1.3, Accessible Buildings: New Construction

    This section establishes scoping requirements for new construction 
of buildings and facilities.
    Sections 4.1.3 (1) through (4) cover accessible routes, protruding 
objects, ground and floor surfaces, and stairs.
    Section 4.1.3(5) generally requires elevators to serve each level in 
a newly constructed building, with four exceptions included in the 
subsection. Exception 1 is the ``elevator exception'' established in 
Sec. 36.401(d), which must be read with this section. Exception 4 
allows the use of platform lifts under certain conditions.
    Section 4.1.3(6), Windows, is reserved. Section 4.1.3(7) applies to 
doors.
    Under Sec. 4.1.3(8), at least 50% of all public entrances must be 
accessible. In addition, if a building is designed to provide access to 
enclosed parking, pedestrian tunnels, or elevated walkways, at least one 
entrance that serves each such function must be accessible. Each tenancy 
in a building must be served by an accessible entrance. Where local 
regulations (e.g., fire codes) require that a minimum number of exits be 
provided, an equivalent number of accessible entrances must be provided. 
(The latter provision does not require a greater number of entrances 
than otherwise planned.)
    ADAAG Section 4.1.3(9), with accompanying technical requirements in 
Section 4.3, requires an area of rescue assistance (i.e., an area with 
direct access to an exit stairway and where people who are unable to use 
stairs may await assistance during an emergency evacuation) to be 
established on each floor of a multi-story building. This was one of the 
most controversial provisions in the guidelines. The final ADAAG is 
based on current Uniform Building Code requirements and retains the 
requirement that areas of refuge (renamed ``areas of rescue 
assistance'') be provided, but specifies that this requirement does not 
apply to buildings that have a supervised automatic sprinkler system. 
Areas of refuge are not required in alterations.
    The next seven subsections deal with drinking fountains (Sec. 
4.1.3(10)); toilet facilities (Sec. 4.1.3(11)); storage, shelving, and 
display units (Sec. 4.1.3(12)), controls and operating mechanisms 
(Sec. 4.1.3(13)), emergency warning systems (Sec. 4.1.3(14)), 
detectable warnings (Sec. 4.1.3(15)), and building signage (Sec. 
4.1.3(16)). Paragraph 11 requires that toilet facilities comply with 
Sec. 4.22, which requires one accessible toilet stall 
(60<x60<) in each newly constructed restroom. In 
response to public comments, the final rule requires that a second 
accessible stall (36<x60<) be provided in 
restrooms that have six or more stalls.
    ADAAG Section 4.1.3(17) establishes requirements for accessibility 
of pay phones to persons with mobility impairments, hearing impairments 
(requiring some phones with volume controls), and those who cannot use 
voice telephones. It requires one interior ``text telephone'' to be 
provided at any facility that has a total of four or more public pay 
phones. (The term ``text telephone'' has been adopted to reflect current 
terminology and changes in technology.) In addition, text telephones 
will be required in specific locations, such as covered shopping malls, 
hospitals (in emergency rooms, waiting rooms, and recovery areas), and 
convention centers.
    Paragraph 18 of Section 4.1.3 generally requires that at least five 
percent of fixed or built-in seating or tables be accessible.
    Paragraph 19, covering assembly areas, specifies the number of 
wheelchair seating spaces and types and numbers of assistive listening 
systems required. It requires dispersal of wheelchair seating locations 
in facilities where there are more than 300 seats. The guidelines also 
require that at least one percent of all fixed seats be aisle seats 
without armrests (or with moveable armrests) on the aisle side to 
increase accessibility for persons with mobility impairments who prefer 
to transfer from their wheelchairs to fixed seating. In addition, the 
final ADAAG requires that fixed seating for a companion be located 
adjacent to each wheelchair location.
    Paragraph 20 requires that where automated teller machines are 
provided, at least one must comply with section 4.34, which, among other 
things, requires accessible controls, and instructions and other 
information that are accessible to persons with sight impairments.
    Under paragraph 21, where dressing rooms are provided, five percent 
or at least one must comply with section 4.35.

                Section 4.1.5, Additions

    Each addition to an existing building or facility is regarded as an 
alteration subject to Sec. Sec. 36.402 through 36.406 of subpart D, 
including the date established in Sec. 36.402(a). But additions also 
have attributes of new construction, and to the extent that a space or 
element in the addition is newly constructed,

[[Page 755]]

each new space or element must comply with the applicable scoping 
provisions of sections 4.1.1 to 4.1.3 for new construction, the 
applicable technical specifications of sections 4.2 through 4.34, and 
any applicable special provisions in sections 5 through 10. For 
instance, if a restroom is provided in the addition, it must comply with 
the requirements for new construction. Construction of an addition does 
not, however, create an obligation to retrofit the entire existing 
building or facility to meet requirements for new construction. Rather, 
the addition is to be regarded as an alteration and to the extent that 
it affects or could affect the usability of or access to an area 
containing a primary function, the requirements in section 4.1.6(2) are 
triggered with respect to providing an accessible path of travel to the 
altered area and making the restrooms, telephones, and drinking 
fountains serving the altered area accessible. For example, if a museum 
adds a new wing that does not have a separate entrance as part of the 
addition, an accessible path of travel would have to be provided through 
the existing building or facility unless it is disproportionate to the 
overall cost and scope of the addition as established in Sec. 
36.403(f).

               Section 4.1.6, Alterations

    An alteration is a change to a building or facility that affects or 
could affect the usability of or access to the building or facility or 
any part thereof. There are three general principles for alterations. 
First, if any existing element or space is altered, the altered element 
or space must meet new construction requirements (section 4.1.6(1)(b)). 
Second, if alterations to the elements in a space when considered 
together amount to an alteration of the space, the entire space must 
meet new construction requirements (section 4.1.6(1)(c)). Third, if the 
alteration affects or could affect the usability of or access to an area 
containing a primary function, the path of travel to the altered area 
and the restrooms, drinking fountains, and telephones serving the 
altered area must be made accessible unless it is disproportionate to 
the overall alterations in terms of cost and scope as determined under 
criteria established by the Attorney General (Sec. 4.1.6(2)).
    Section 4.1.6 should be read with Sec. Sec. 36.402 through 36.405. 
Requirements concerning alterations to an area serving a primary 
function are addressed with greater detail in the latter sections than 
in section 4.1.6(2). Section 4.1.6(1)(j) deals with technical 
infeasibility. Section 4.1.6(3) contains special technical provisions 
for alterations to existing buildings and facilities.

          Section 4.1.7, Historic Preservation

    This section contains scoping provisions and alternative 
requirements for alterations to qualified historic buildings and 
facilities. It clarifies the procedures under the National Historic 
Preservation Act and their application to alterations covered by the 
ADA. An individual seeking to alter a facility that is subject to the 
ADA guidelines and to State or local historic preservation statutes 
shall consult with the State Historic Preservation Officer to determine 
if the planned alteration would threaten or destroy the historic 
significance of the facility.

               Sections 4.2 Through 4.35

    Sections 4.2 through 4.35 contain the technical specifications for 
elements and spaces required to be accessible by the scoping provisions 
(sections 4.1 through 4.1.7) and special application sections (sections 
5 through 10). The technical specifications are the same as the 1980 
version of ANSI A117.1 standard, except as noted in the text by italics.

                  Sections 5 Through 9

    These are special application sections and contain additional 
requirements for restaurants and cafeterias, medical care facilities, 
business and mercantile facilities, libraries, and transient lodging. 
For example, at least 5 percent, but not less than one, of the fixed 
tables in a restaurant must be accessible.
    In section 7, Business and Mercantile, paragraph 7.2 (Sales and 
Service Counters, Teller Windows, Information Counters) has been revised 
to provide greater flexibility in new construction than did the proposed 
rule. At least one of each type of sales or service counter where a cash 
register is located shall be made accessible. Accessible counters shall 
be dispersed throughout the facility. At counters such as bank teller 
windows or ticketing counters, alternative methods of compliance are 
permitted. A public accommodation may lower a portion of the counter, 
provide an auxiliary counter, or provide equivalent facilitation through 
such means as installing a folding shelf on the front of the counter at 
an accessible height to provide a work surface for a person using a 
wheelchair.
    Section 7.3., Check-out Aisles, provides that, in new construction, 
a certain number of each design of check-out aisle, as listed in a chart 
based on the total number of check-out aisles of each design, shall be 
accessible. The percentage of check-outs required to be accessible 
generally ranges from 20% to 40%. In a newly constructed or altered 
facility with less than 5,000 square feet of selling space, at least one 
of each type of check-out aisle must be accessible. In altered 
facilities with 5,000 or more square feet of selling space, at least one 
of each design of check-out aisle must be made accessible when altered, 
until the number of accessible aisles

[[Page 756]]

of each design equals the number that would be required for new 
construction.

        Section 9, Accessible Transient Lodging

    Section 9 addresses two types of transient lodging: hotels, motels, 
inns, boarding houses, dormitories, resorts, and other similar places 
(sections 9.1 through 9.4); and homeless shelters, halfway houses, 
transient group homes, and other social service establishments (section 
9.5). The interplay of the ADA and Fair Housing Act with respect to such 
facilities is addressed in the preamble discussion of the definition of 
``place of public accommodation'' in Sec. 36.104.
    The final rule establishes scoping requirements for accessibility of 
newly constructed hotels. Four percent of the first hundred rooms, and 
roughly two percent of rooms in excess of 100, must meet certain 
requirements for accessibility to persons with mobility or hearing 
impairments, and an additional identical percentage must be accessible 
to persons with hearing impairments. An additional 1% of the available 
rooms must be equipped with roll-in showers, raising the actual scoping 
for rooms accessible to persons with mobility impairments to 5% of the 
first hundred rooms and 3% thereafter. The final ADAAG also provides 
that when a hotel is being altered, one fully accessible room and one 
room equipped with visual alarms, notification devices, and amplified 
telephones shall be provided for each 25 rooms being altered until the 
number of accessible rooms equals that required under the new 
construction standard. Accessible rooms must be dispersed in a manner 
that will provide persons with disabilities with a choice of single or 
multiple-bed accommodations.
    In new construction, homeless shelters and other social service 
entities must comply with ADAAG; at least one type of amenity in each 
common area must be accessible. In a facility that is not required to 
have an elevator, it is not necessary to provide accessible amenities on 
the inaccessible floors if at least one of each type of amenity is 
provided in accessible common areas. The percentage of accessible 
sleeping accommodations required is the same as that required for other 
places of transient lodging. Requirements for facilities altered for use 
as a homeless shelter parallel the current MGRAD accessibility 
requirements for leased buildings. A shelter located in an altered 
facility must have at least one accessible entrance, accessible sleeping 
accommodations in a number equivalent to that established for new 
construction, at least one accessible toilet and bath, at least one 
accessible common area, and an accessible route connecting all 
accessible areas. All accessible areas in a homeless shelter in an 
altered facility may be located on one level.

                  Section 10, Transportation Facilities

    Section 10 of ADAAG is reserved. On March 20, 1991, the ATBCB 
published a supplemental notice of proposed rulemaking (56 FR 11874) to 
establish special access requirements for transportation facilities. The 
Department anticipates that when the ATBCB issues final guidelines for 
transportation facilities, this part will be amended to include those 
provisions.

                         Subpart E--Enforcement

    Because the Department of Justice does not have authority to 
establish procedures for judicial review and enforcement, subpart E 
generally restates the statutory procedures for enforcement.
    Section 36.501 describes the procedures for private suits by 
individuals and the judicial remedies available. In addition to the 
language in section 308(a)(1) of the Act, Sec. 36.501(a) of this part 
includes the language from section 204(a) of the Civil Rights Act of 
1964 (42 U.S.C. 2000a-3(a)) which is incorporated by reference in the 
ADA. A commenter noted that the proposed rule did not include the 
provision in section 204(a) allowing the court to appoint an attorney 
for the complainant and authorize the commencement of the civil action 
without the payment of fees, costs, or security. That provision has been 
included in the final rule.
    Section 308(a)(1) of the ADA permits a private suit by an individual 
who has reasonable grounds for believing that he or she is ``about to 
be'' subjected to discrimination in violation of section 303 of the Act 
(subpart D of this part), which requires that new construction and 
alterations be readily accessible to and usable by individuals with 
disabilities. Authorizing suits to prevent construction of facilities 
with architectural barriers will avoid the necessity of costly 
retrofitting that might be required if suits were not permitted until 
after the facilities were completed. To avoid unnecessary suits, this 
section requires that the individual bringing the suit have `reasonable 
grounds' for believing that a violation is about to occur, but does not 
require the individual to engage in a futile gesture if he or she has 
notice that a person or organization covered by title III of the Act 
does not intend to comply with its provisions.
    Section 36.501(b) restates the provisions of section 308(a)(2) of 
the Act, which states that injunctive relief for the failure to remove 
architectural barriers in existing facilities or the failure to make new 
construction and alterations accessible ``shall include'' an order to 
alter these facilities to make them readily accessible to and usable by 
persons with disabilities to the extent required by title III. The 
Report of the Energy and Commerce Committee notes that ``an order to 
make a facility readily accessible to and usable by

[[Page 757]]

individuals with disabilities is mandatory'' under this standard. H.R. 
Rep. No. 485, 101st Cong., 2d Sess, pt 4, at 64 (1990). Also, injunctive 
relief shall include, where appropriate, requiring the provision of an 
auxiliary aid or service, modification of a policy, or provision of 
alternative methods, to the extent required by title III of the Act and 
this part.
    Section 36.502 is based on section 308(b)(1)(A)(i) of the Act, which 
provides that the Attorney General shall investigate alleged violations 
of title III and undertake periodic reviews of compliance of covered 
entities. Although the Act does not establish a comprehensive 
administrative enforcement mechanism for investigation and resolution of 
all complaints received, the legislative history notes that 
investigation of alleged violations and periodic compliance reviews are 
essential to effective enforcement of title III, and that the Attorney 
General is expected to engage in active enforcement and to allocate 
sufficient resources to carry out this responsibility. Judiciary Report 
at 67.
    Many commenters argued for inclusion of more specific provisions for 
administrative resolution of disputes arising under the Act and this 
part in order to promote voluntary compliance and avoid the need for 
litigation. Administrative resolution is far more efficient and 
economical than litigation, particularly in the early stages of 
implementation of complex legislation when the specific requirements of 
the statute are not widely understood. The Department has added a new 
paragraph (c) to this section authorizing the Attorney General to 
initiate a compliance review where he or she has reason to believe there 
may be a violation of this rule.
    Section 36.503 describes the procedures for suits by the Attorney 
General set out in section 308(b)(1)(B) of the Act. If the Department 
has reasonable cause to believe that any person or group of persons is 
engaged in a pattern or practice of resistance to the full enjoyment of 
any of the rights granted by title III or that any person or group of 
persons has been denied any of the rights granted by title III and such 
denial raises an issue of general public importance, the Attorney 
General may commence a civil action in any appropriate United States 
district court. The proposed rule provided for suit by the Attorney 
General ``or his or her designee.'' The reference to a ``designee'' has 
been omitted in the final rule because it is unnecessary. The Attorney 
General has delegated enforcement authority under the ADA to the 
Assistant Attorney General for Civil Rights. 55 FR 40653 (October 4, 
1990) (to be codified at 28 CFR 0.50(l).)
    Section 36.504 describes the relief that may be granted in a suit by 
the Attorney General under section 308(b)(2) of the Act. In such an 
action, the court may grant any equitable relief it considers to be 
appropriate, including granting temporary, preliminary, or permanent 
relief, providing an auxiliary aid or service, modification of policy or 
alternative method, or making facilities readily accessible to and 
usable by individuals with disabilities, to the extent required by title 
III. In addition, a court may award such other relief as the court 
considers to be appropriate, including monetary damages to persons 
aggrieved, when requested by the Attorney General.
    Furthermore, the court may vindicate the public interest by 
assessing a civil penalty against the covered entity in an amount not 
exceeding $50,000 for a first violation and not exceeding $100,000 for 
any subsequent violation. Section 36.504(b) of the rule adopts the 
standard of section 308(b)(3) of the Act. This section makes it clear 
that, in counting the number of previous determinations of violations 
for determining whether a ``first'' or ``subsequent'' violation has 
occurred, determinations in the same action that the entity has engaged 
in more than one discriminatory act are to be counted as a single 
violation. A ``second violation'' would not accrue to that entity until 
the Attorney General brought another suit against the entity and the 
entity was again held in violation. Again, all of the violations found 
in the second suit would be cumulatively considered as a ``subsequent 
violation.''
    Section 36.504(c) clarifies that the terms ``monetary damages'' and 
``other relief'' do not include punitive damages. They do include, 
however, all forms of compensatory damages, including out-of-pocket 
expenses and damages for pain and suffering.
    Section 36.504(a)(3) is based on section 308(b)(2)(C) of the Act, 
which provides that, ``to vindicate the public interest,'' a court may 
assess a civil penalty against the entity that has been found to be in 
violation of the Act in suits brought by the Attorney General. In 
addition, Sec. 36.504(d), which is taken from section 308(b)(5) of the 
Act, further provides that, in considering what amount of civil penalty, 
if any, is appropriate, the court shall give consideration to ``any good 
faith effort or attempt to comply with this part.'' In evaluating such 
good faith, the court shall consider ``among other factors it deems 
relevant, whether the entity could have reasonably anticipated the need 
for an appropriate type of auxiliary aid needed to accommodate the 
unique needs of a particular individual with a disability.''
    The ``good faith'' standard referred to in this section is not 
intended to imply a willful or intentional standard--that is, an entity 
cannot demonstrate good faith simply by showing that it did not 
willfully, intentionally, or recklessly disregard the law. At the same 
time, the absence of such a course of conduct would be a factor a court 
should weigh in determining the existence of good faith.

[[Page 758]]

    Section 36.505 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)
    Section 36.506 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution. Section 36.507 explains 
that, as provided in section 506(e) of the Act, a public accommodation 
or other private entity is not excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance.

                      Section 36.305 Effective Date

    In general, title III is effective 18 months after enactment of the 
Americans with Disabilities Act, i.e., January 26, 1992. However, there 
are several exceptions to this general rule contained throughout title 
III. Section 36.508 sets forth all of these exceptions in one place.
    Paragraph (b) contains the rule on civil actions. It states that, 
except with respect to new construction and alterations, no civil action 
shall be brought for a violation of this part that occurs before July 
26, 1992, against businesses with 25 or fewer employees and gross 
receipts of $1,000,000 or less; and before January 26, 1993, against 
businesses with 10 or fewer employees and gross receipts of $500,000 or 
less. In determining what constitutes gross receipts, it is appropriate 
to exclude amounts collected for sales taxes.
    Paragraph (c) concerns transportation services provided by public 
accommodations not primarily engaged in the business of transporting 
people. The 18-month effective date applies to all of the transportation 
provisions except those requiring newly purchased or leased vehicles to 
be accessible. Vehicles subject to that requirement must be accessible 
to and usable by individuals with disabilities if the solicitation for 
the vehicle is made on or after August 26, 1990.

     Subpart F--Certification of State Labs or Local Building Codes

    Subpart F establishes procedures to implement section 
308(b)(1)(A)(ii) of the Act, which provides that, on the application of 
a State or local government, the Attorney General may certify that a 
State law or local building code or similar ordinance meets or exceeds 
the minimum accessibility requirements of the Act. In enforcement 
proceedings, this certification will constitute rebuttable evidence that 
the law or code meets or exceeds the ADA's requirements.
    Three significant changes, further explained below, were made from 
the proposed subpart, in response to comments. First, the State or local 
jurisdiction is required to hold a public hearing on its proposed 
request for certification and to submit to the Department, as part of 
the information and materials in support of a request for certification, 
a transcript of the hearing. Second, the time allowed for interested 
persons and organizations to comment on the request filed with the 
Department (Sec. 36.605(a)(1)) has been changed from 30 to 60 days. 
Finally, a new Sec. 36.608, Guidance concerning model codes, has been 
added.
    Section 36.601 establishes the definitions to be used for purposes 
of this subpart. Two of the definitions have been modified, and a 
definition of ``model code'' has been added. First, in response to a 
comment, a reference to a code ``or part thereof'' has been added to the 
definition of ``code.'' The purpose of this addition is to clarify that 
an entire code need not be submitted if only part of it is relevant to 
accessibility, or if the jurisdiction seeks certification of only some 
of the portions that concern accessibility. The Department does not 
intend to encourage ``piecemeal'' requests for certification by a single 
jurisdiction. In fact, the Department expects that in some cases, rather 
than certifying portions of a particular code and refusing to certify 
others, it may notify a submitting jurisdiction of deficiencies and 
encourage a reapplication that cures those deficiencies, so that the 
entire code can be certified eventually. Second, the definition of 
``submitting official'' has been modified. The proposed rule defined the 
submitting official to be the State or local official who has principal 
responsibility for administration of a code. Commenters pointed out that 
in some cases more than one code within the same jurisdiction is 
relevant for purposes of certification. It was also suggested that the 
Department allow a State to submit a single application on behalf of the 
State, as well as on behalf of any local jurisdictions required to 
follow the State accessibility requirements. Consistent with these 
comments, the Department has added to the definition language clarifying 
that the official can be one authorized to submit a code on behalf of a 
jurisdiction.
    A definition of ``model code'' has been added in light of new Sec. 
36.608.
    Most commenters generally approved of the proposed certification 
process. Some approved of what they saw as the Department's attempt to 
bring State and local codes into alignment with the ADA. A State agency 
said that this section will be the backbone of the intergovernmental 
cooperation essential

[[Page 759]]

if the accessibility provisions of the ADA are to be effective.
    Some comments disapproved of the proposed process as timeconsuming 
and laborious for the Department, although some of these comments 
pointed out that, if the Attorney General certified model codes on which 
State and local codes are based, many perceived problems would be 
alleviated. (This point is further addressed by new Sec. 36.608.)
    Many of the comments received from business organizations, as well 
as those from some individuals and disability rights groups, addressed 
the relationship of the ADA requirements and their enforcement, to 
existing State and local codes and code enforcement systems. These 
commenters urged the Department to use existing code-making bodies for 
interpretations of the ADA, and to actively participate in the 
integration of the ADA into the text of the national model codes that 
are adopted by State and local enforcement agencies. These issues are 
discussed in preamble section 36.406 under General comments.
    Many commenters urged the Department to evaluate or certify the 
entire code enforcement system (including any process for hearing 
appeals from builders of denials by the building code official of 
requests for variances, waivers, or modifications). Some urged that 
certification not be allowed in jurisdictions where waivers can be 
granted, unless there is a clearly identified decision-making process, 
with written rulings and notice to affected parties of any waiver or 
modification request. One commenter urged establishment of a dispute 
resolution mechanism, providing for interpretation (usually through a 
building official) and an administrative appeals mechanism (generally 
called Boards of Appeal, Boards of Construction Appeals, or Boards of 
Review), before certification could be granted.
    The Department thoroughly considered these proposals but has 
declined to provide for certification of processes of enforcement or 
administration of State and local codes. The statute clearly authorizes 
the Department to certify the codes themselves for equivalency with the 
statute; it would be ill-advised for the Department at this point to 
inquire beyond the face of the code and written interpretations of it. 
It would be inappropriate to require those jurisdictions that grant 
waivers or modifications to establish certain procedures before they can 
apply for certification, or to insist that no deviations can be 
permitted. In fact, the Department expects that many jurisdictions will 
allow slight variations from a particular code, consistent with ADAAG 
itself. ADAAG includes in Sec. 2.2 a statement allowing departures from 
particular requirements where substantially equivalent or greater access 
and usability is provided. Several sections specifically allow for 
alternative methods providing equivalent facilitation and, in some 
cases, provide examples. (See, e.g., section 4.31.9, Text Telephones; 
section 7.2(2) (iii), Sales and Service Counters.) Section 4.1.6 
includes less stringent requirements that are permitted in alterations, 
in certain circumstances.
    However, in an attempt to ensure that it does not certify a code 
that in practice has been or will be applied in a manner that defeats 
its equivalency with the ADA, the Department will require that the 
submitting official include, with the application for certification, any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code. (Sec. 36.603(c)(1).) The requirement that 
this information be provided is in addition to the NPRM's requirement 
that the official provide any pertinent formal opinions of the State 
Attorney General or the chief legal officer of the jurisdiction.
    The first step in the certification process is a request for 
certification, filed by a ``submitting official'' (Sec. 36.603). The 
Department will not accept requests for certification until after 
January 26, 1992, the effective date of this part. The Department 
received numerous comments from individuals and organizations 
representing a variety of interests, urging that the hearing required to 
be held by the Assistant Attorney General in Washington, DC, after a 
preliminary determination of equivalency (Sec. 36.605(a)(2)), be held 
within the State or locality requesting certification, in order to 
facilitate greater participation by all interested parties. While the 
Department has not modified the requirement that it hold a hearing in 
Washington, it has added a new subparagraph 36.603(b)(3) requiring a 
hearing within the State or locality before a request for certification 
is filed. The hearing must be held after adequate notice to the public 
and must be on the record; a transcript must be provided with the 
request for certification. This procedure will insure input from the 
public at the State or local level and will also insure a Washington, 
DC, hearing as mentioned in the legislative history.
    The request for certification, along with supporting documents 
(Sec. 36.603(c)), must be filed in duplicate with the office of the 
Assistant Attorney General for Civil Rights. The Assistant Attorney 
General may request further information. The request and supporting 
materials will be available for public examination at the office of the 
Assistant Attorney General and at the office of the State or local 
agency charged with administration and enforcement of the code. The 
submitting official must publish public notice of the request for 
certification.
    Next, under Sec. 36.604, the Assistant Attorney General's office 
will consult with the ATBCB and make a preliminary determination to 
either (1) find that the code is equivalent

[[Page 760]]

(make a ``preliminary determination of equivalency'') or (2) deny 
certification. The next step depends on which of these preliminary 
determinations is made.
    If the preliminary determination is to find equivalency, the 
Assistant Attorney General, under Sec. 36.605, will inform the 
submitting official in writing of the preliminary determination and 
publish a notice in the Federal Register informing the public of the 
preliminary determination and inviting comment for 60 days. (This time 
period has been increased from 30 days in light of public comment 
pointing out the need for more time within which to evaluate the code.) 
After considering the information received in response to the comments, 
the Department will hold a hearing in Washington. This hearing will not 
be subject to the formal requirements of the Administrative Procedure 
Act. In fact, this requirement could be satisfied by a meeting with 
interested parties. After the hearing, the Assistant Attorney General's 
office will consult again with the ATBCB and make a final determination 
of equivalency or a final determination to deny the request for 
certification, with a notice of the determination published in the 
Federal Register.
    1If the preliminary determination is to deny certification, there 
will be no hearing (Sec. 36.606). The Department will notify the 
submitting official of the preliminary determination, and may specify 
how the code could be modified in order to receive a preliminary 
determination of equivalency. The Department will allow at least 15 days 
for the submitting official to submit relevant material in opposition to 
the preliminary denial. If none is received, no further action will be 
taken. If more information is received, the Department will consider it 
and make either a final decision to deny certification or a preliminary 
determination of equivalency. If at that stage the Assistant Attorney 
General makes a preliminary determination of equivalency, the hearing 
procedures set out in Sec. 36.605 will be followed.
    Section 36.607 addresses the effect of certification. First, 
certification will only be effective concerning those features or 
elements that are both (1) covered by the certified code and (2) 
addressed by the regulations against which they are being certified. For 
example, if children's facilities are not addressed by the Department's 
standards, and the building in question is a private elementary school, 
certification will not be effective for those features of the building 
to be used by children. And if the Department's regulations addressed 
equipment but the local code did not, a building's equipment would not 
be covered by the certification.
    In addition, certification will be effective only for the particular 
edition of the code that is certified. Amendments will not automatically 
be considered certified, and a submitting official will need to reapply 
for certification of the changed or additional provisions.
    Certification will not be effective in those situations where a 
State or local building code official allows a facility to be 
constructed or altered in a manner that does not follow the technical or 
scoping provisions of the certified code. Thus, if an official either 
waives an accessible element or feature or allows a change that does not 
provide equivalent facilitation, the fact that the Department has 
certified the code itself will not stand as evidence that the facility 
has been constructed or altered in accordance with the minimum 
accessibility requirements of the ADA. The Department's certification of 
a code is effective only with respect to the standards in the code; it 
is not to be interpreted to apply to a State or local government's 
application of the code. The fact that the Department has certified a 
code with provisions concerning waivers, variances, or equivalent 
facilitation shall not be interpreted as an endorsement of actions taken 
pursuant to those provisions.
    The final rule includes a new Sec. 36.608 concerning model codes. 
It was drafted in response to concerns raised by numerous commenters, 
many of which have been discussed under General comments (Sec. 36.406). 
It is intended to assist in alleviating the difficulties posed by 
attempting to certify possibly tens of thousands of codes. It is 
included in recognition of the fact that many codes are based on, or 
incorporate, model or consensus standards developed by nationally 
recognized organizations (e.g., the American National Standards 
Institute (ANSI); Building Officials and Code Administrators (BOCA) 
International; Council of American Building Officials (CABO) and its 
Board for the Coordination of Model Codes (BCMC); Southern Building Code 
Congress International (SBCCI)). While the Department will not certify 
or ``precertify'' model codes, as urged by some commenters, it does wish 
to encourage the continued viability of the consensus and model code 
process consistent with the purposes of the ADA.
    The new section therefore allows an authorized representative of a 
private entity responsible for developing a model code to apply to the 
Assistant Attorney General for review of the code. The review process 
will be informal and will not be subject to the procedures of Sec. Sec. 
36.602 through 36.607. The result of the review will take the form of 
guidance from the Assistant Attorney General as to whether and in what 
respects the model code is consistent with the ADA's requirements. The 
guidance will not be binding on any entity or on the Department; it will 
assist in evaluations of individual State or local codes and may serve 
as a basis for establishing priorities for consideration of individual 
codes. The Department anticipates

[[Page 761]]

that this approach will foster further cooperation among various 
government levels, the private entities developing standards, and 
individuals with disabilities.



 PART 37_PROCEDURES FOR COORDINATING THE INVESTIGATION OF COMPLAINTS 
  OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON DISABILITY SUBJECT 
  
 TO THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE 
 REHABILITATION ACT OF 1973--Table of Contents




Sec.
37.1 Purpose and application.
37.2 Definitions.
37.3 Exchange of information.
37.4 Confidentiality.
37.5 Date of receipt.
37.6 Processing of complaints of employment discrimination filed with an 
          agency other than the EEOC.
37.7 Processing of charges of employment discrimination filed with the 
          EEOC.
37.8 Processing of complaints or charges of employment discrimination 
          filed with both the EEOC and a section 504 agency.
37.9 Processing of complaints or charges of employment discrimination 
          filed with a designated agency and either a section 504 
          agency, the EEOC, or both.
37.10 Section 504 agency review of deferred complaints.
37.11 EEOC review of deferred charges.
37.12 Standards.
37.13 Agency specific memoranda of understanding.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 794 (d); 42 
U.S.C. 12117(b); 28 CFR 0.50(l).

    Source: Order No. 1899-94, 59 FR 39904, 39908, Aug. 4, 1994, unless 
otherwise noted.



Sec. 37.1  Purpose and application.

    (a) This part establishes the procedures to be followed by the 
Federal agencies responsible for processing and resolving complaints or 
charges of employment discrimination filed against recipients of Federal 
financial assistance when jurisdiction exists under both section 504 and 
title I.
    (b) This part also repeats the provisions established by 28 CFR 
35.171 for determining which Federal agency shall process and resolve 
complaints or charges of employment discrimination:
    (1) That fall within the overlapping jurisdiction of titles I and II 
(but are not covered by section 504); and
    (2) That are covered by title II, but not title I (whether or not 
they are also covered by section 504).
    (c) This part also describes the procedures to be followed when a 
complaint or charge arising solely under section 504 or title I is filed 
with a section 504 agency or the EEOC.
    (d) This part does not apply to complaints or charges against 
Federal contractors under section 503 of the Rehabilitation Act.
    (e) This part does not create rights in any person or confer agency 
jurisdiction not created or conferred by the ADA or section 504 over any 
complaint or charge.



Sec. 37.2  Definitions.

    As used in this part, the term:
    Americans with Disabilities Act of 1990 or ADA means the Americans 
with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 
12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General refers to the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice, or his or 
her designee.
    Chairman of the Equal Employment Opportunity Commission refers to 
the Chairman of the United States Equal Employment Opportunity 
Commission, or his or her designee.
    Civil Rights Division means the Civil Rights Division of the United 
States Department of Justice.
    Designated agency means any one of the eight agencies designated 
under Sec. 35.190 of 28 CFR part 35 (the Department's title II 
regulation) to implement and enforce title II of the ADA with respect to 
the functional areas within their jurisdiction.
    Dual-filed complaint or charge means a complaint or charge of 
employment discrimination that:
    (1) Arises under both section 504 and title I;
    (2) Has been filed with both a section 504 agency that has 
jurisdiction under section 504 and with the EEOC, which has jurisdiction 
under title I; and
    (3) Alleges the same facts and raises the same issues in both 
filings.

[[Page 762]]

    Due weight shall mean, with respect to the weight a section 504 
agency or the EEOC shall give to the other agency's findings and 
conclusions, such full and careful consideration as is appropriate, 
taking into account such factors as:
    (1) The extent to which the underlying investigation is complete and 
the evidence is supportive of the findings and conclusions;
    (2) The nature and results of any subsequent proceedings;
    (3) The extent to which the findings, conclusions and any actions 
taken:
    (i) Under title I are consistent with the effective enforcement of 
section 504; or
    (ii) Under section 504 are consistent with the effective enforcement 
of title I; and
    (4) The section 504 agency's responsibilities under section 504 or 
the EEOC's responsibilities under title I.
    Equal Employment Opportunity Commission or EEOC refers to the United 
States Equal Employment Opportunity Commission, and, when appropriate, 
to any of its headquarters, district, area, local, or field offices.
    Federal financial assistance shall have the meaning, with respect to 
each section 504 agency, as defined in such agency's regulations 
implementing section 504 for Federally- assisted programs.
    Program or activity shall have the meaning defined in the 
Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 
794), as amended.
    Public entity means:
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act, 45 U.S.C. 502(8)).
    Recipient means any State, political subdivision of any State, or 
instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assignee, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    Section 504 agency means any Federal department or agency that 
extends Federal financial assistance to programs or activities of 
recipients.
    Title I means title I of the ADA.
    Title II means subtitle A of title II of the ADA.



Sec. 37.3  Exchange of information.

    The EEOC, section 504 agencies, and designated agencies shall share 
any information relating to the employment policies and practices of a 
respondent that may assist each agency in carrying out its 
responsibilities, to the extent permissible by law. Such information 
shall include, but is not limited to, complaints, charges, investigative 
files, compliance review reports and files, affirmative action programs, 
and annual employment reports.



Sec. 37.4  Confidentiality.

    (a) When a section 504 agency or a designated agency receives 
information obtained by the EEOC, such agency shall observe the 
confidentiality requirements of section 706(b) and section 709(e) of the 
Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-5(b) and 2000e-
8(e)), as incorporated by section 107(a) of the ADA, to the same extent 
as these provisions would bind the EEOC, except when the agency receives 
the same information from a source independent of the EEOC. Agency 
questions concerning the confidentiality requirements of title I shall 
be directed to the Associate Legal Counsel for Legal Services, Office of 
Legal Counsel, the EEOC.
    (b) When the EEOC receives information from a section 504 or a 
designated agency, the EEOC shall observe any confidentiality 
requirements applicable to that information.



Sec. 37.5  Date of receipt.

    A complaint or charge of employment discrimination is deemed to be

[[Page 763]]

filed, for purposes of determining timeliness, on the date the complaint 
or charge is first received by a Federal agency with section 504 or ADA 
jurisdiction, regardless of whether it is subsequently transferred to 
another agency for processing.



Sec. 37.6  Processing of complaints of employment discrimination
filed with an agency other than the EEOC.

    (a) Agency determination of jurisdiction. Upon receipt of a 
complaint of employment discrimination, an agency other than the EEOC 
shall:
    (1) Determine whether it has jurisdiction over the complaint under 
section 504 or under title II of the ADA; and
    (2) Determine whether the EEOC may have jurisdiction over the 
complaint under title I of the ADA.
    (b) Referral to the Civil Rights Division. If the agency determines 
that it does not have jurisdiction under section 504 or title II, and 
determines that the EEOC does not have jurisdiction under title I, the 
agency shall promptly refer the complaint to the Civil Rights Division. 
The Civil Rights Division shall determine if another Federal agency may 
have jurisdiction over the complaint under section 504 or title II, and, 
if so, shall promptly refer the complaint to a section 504 or a 
designated agency with jurisdiction over the complaint.
    (c) Referral to the EEOC--(1) Referral by an agency without 
jurisdiction. If an agency determines that it does not have jurisdiction 
over a complaint of employment discrimination under either section 504 
or title II and determines that the EEOC may have jurisdiction under 
title I, the agency shall promptly refer the complaint to the EEOC for 
investigation and processing under title I of the ADA.
    (2) Referral by a section 504 agency. (i) A section 504 agency that 
otherwise has jurisdiction over a complaint of employment discrimination 
under section 504 shall promptly refer to the EEOC, for investigation 
and processing under title I of the ADA, any complaint of employment 
discrimination that solely alleges discrimination against an individual 
(and that does not allege discrimination in both employment and in other 
practices or services of the respondent or a pattern or practice of 
employment discrimination), unless:
    (A) The section 504 agency determines that the EEOC does not have 
jurisdiction over the complaint under title I; or
    (B) The EEOC has jurisdiction over the complaint under title I, but 
the complainant, either independently, or following receipt of the 
notification letter required to be sent to the complainant pursuant to 
paragraph (c)(2)(ii) of this section, specifically requests that the 
complaint be investigated by the section 504 agency.
    (ii) Prior to referring an individual complaint of employment 
discrimination to the EEOC pursuant to paragraph (c)(2)(i) of this 
section (but not prior to making such a referral pursuant to paragraph 
(c)(1) of this section), a section 504 agency that otherwise has 
jurisdiction over the complaint shall promptly notify the complainant, 
in writing, of its intention to make such a referral. The notice letter 
shall:
    (A) Inform the complainant that, unless the agency receives a 
written request from the complainant within twenty days of the date of 
the notice letter requesting that the agency retain the complaint for 
investigation, the agency will forward the complaint to the EEOC for 
investigation and processing; and
    (B) Describe the basic procedural differences between an 
investigation under section 504 and an investigation under title I, and 
inform the complainant of the potential for differing remedies under 
each statute.
    (3) Referral by a designated agency. A designated agency that does 
not have section 504 jurisdiction over a complaint of employment 
discrimination and that has determined that the EEOC may have 
jurisdiction over the complaint under title I shall promptly refer the 
complaint to the EEOC.
    (4) Processing of complaints referred to the EEOC. (i) A complaint 
referred to the EEOC in accordance with this section by an agency with 
jurisdiction over the complaint under section 504 shall be deemed to be 
a dual-filed complaint under section 504 and title I. When a section 504 
agency with jurisdiction over a complaint refers the complaint to the 
EEOC, the section 504

[[Page 764]]

agency shall defer its processing of the complaint pursuant to Sec. 
--.10, pending resolution by the EEOC.
    (ii) A complaint referred to the EEOC by an agency that has 
jurisdiction over the complaint solely under title II (and not under 
section 504) will be treated as a complaint filed under title I only.
    (iii) Any complaint referred to the EEOC pursuant to this section 
shall be processed by the EEOC under its title I procedures.
    (d) Retention by the agency for investigation--(1) Retention by a 
section 504 agency. A section 504 agency shall retain a complaint for 
investigation when the agency determines that it has jurisdiction over 
the complaint under section 504, and one or more of the following 
conditions are met:
    (i) The EEOC does not have jurisdiction over the complaint under 
title I; or
    (ii) The EEOC has jurisdiction over the complaint, but the 
complainant elects to have the section 504 agency process the complaint 
and the section 504 agency receives a written request from the 
complainant for section 504 agency processing within twenty days of the 
date of the notice letter required to be sent pursuant to paragraph 
(c)(2)(ii) of this section; or
    (iii) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent that are covered by 
section 504; or
    (iv) The complaint alleges a pattern or practice of employment 
discrimination.
    (2) Retention by a designated agency. A designated agency that does 
not have jurisdiction over the complaint under section 504 shall retain 
a complaint for investigation when the agency determines that it has 
jurisdiction over the complaint under title II of the ADA and that the 
EEOC does not have jurisdiction over the complaint under title I.
    (3) Processing of complaints retained by an agency. Any complaint 
retained for investigation and processing by an agency pursuant to 
paragraphs (d)(1) and (d)(2) of this section will be investigated and 
processed under section 504, title II, or both, as applicable, and will 
not be considered to be dual filed under title I.



Sec. 37.7  Processing of charges of employment discrimination filed
with the EEOC.

    (a) EEOC determination of jurisdiction. Upon receipt of a charge of 
employment discrimination, the EEOC shall:
    (1) Determine whether it has jurisdiction over the charge under 
title I of the ADA. If it has jurisdiction, except as provided in 
paragraph (b)(2) of this section, the EEOC shall process the charge 
pursuant to title I procedures.
    (2) If the EEOC determines that it does not have jurisdiction under 
title I, the EEOC shall promptly refer the charge to the Civil Rights 
Division. The Civil Rights Division shall determine if a Federal agency 
may have jurisdiction over the charge under section 504 or title II, 
and, if so, shall refer the charge to a section 504 agency or to a 
designated agency with jurisdiction over the complaint.
    (b) Retention by the EEOC for investigation. (1) The EEOC shall 
retain a charge for investigation when it determines that it has 
jurisdiction over the charge under title I.
    (2) Referral to an agency. Any charge retained by the EEOC for 
investigation and processing will be investigated and processed under 
title I only, and will not be deemed dual filed under section 504, 
except that ADA cause charges (as defined in 29 CFR 1601.21) that also 
fall within the jurisdiction of a section 504 agency and that the EEOC 
(or the Civil Rights Division, if such a charge is against a government, 
governmental agency, or political subdivision) has declined to litigate 
shall be referred to the appropriate section 504 agency for review of 
the file and any administrative or other action deemed appropriate under 
section 504. Such charges shall be deemed complaints, dual filed under 
section 504, solely for the purposes of the agency review and action 
described in this paragraph. The date of such dual filing shall be 
deemed to be the date the complaint was received by the EEOC.

[[Page 765]]



Sec. 37.8  Processing of complaints or charges of employment discrimination
filed with both the EEOC and a section 504 agency.

    (a) Procedures for handling dual-filed complaints or charges. As 
between the EEOC and a section 504 agency, except as provided in 
paragraph (e) of this section, a complaint or charge of employment 
discrimination that is dual filed with both the EEOC and a section 504 
agency shall be processed as follows:
    (1) EEOC processing. The EEOC shall investigate and process the 
charge when the EEOC determines that it has jurisdiction over the charge 
under title I and the charge solely alleges employment discrimination 
against an individual, unless the charging party elects to have the 
section 504 agency process the charge and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec. 37.6(c)(2)(ii).
    (2) Section 504 agency processing. A section 504 agency shall 
investigate and process the complaint when the agency determines that it 
has jurisdiction over the complaint under section 504, and:
    (i) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent; or
    (ii) The complaint alleges a pattern or practice of discrimination 
in employment; or
    (iii) In the case of a complaint solely alleging employment 
discrimination against an individual, the complainant elects to have a 
section 504 agency process the complaint and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec. 37.6(c)(2)(ii).
    (b) Referral to the Civil Rights Division. If the EEOC determines 
that it does not have jurisdiction under title I, and the section 504 
agency determines that it does not have jurisdiction under section 504 
or title II, the complaint or charge shall be promptly referred to the 
Civil Rights Division. The Civil Rights Division shall determine if 
another Federal agency may have jurisdiction over the complaint under 
section 504 or title II, and, if so, shall promptly refer the complaint 
to a section 504 or a designated agency with jurisdiction over the 
complaint.
    (c) Procedures for determining whether a complaint or charge has 
been dual filed. The EEOC and each agency with jurisdiction to 
investigate and process complaints of employment discrimination under 
section 504 shall jointly develop procedures for determining whether 
complaints or charges of discrimination have been dual filed with the 
EEOC and with one or more other agencies.
    (d) Notification of deferral. The agency required to process a dual-
filed complaint or charge under this section shall notify the 
complainant or charging party and the respondent that the complaint or 
charge was dual filed with one or more other agencies and that such 
other agencies have agreed to defer processing and will take no further 
action except as provided in Sec. 37.10 or Sec. 37.11, as applicable.
    (e) Exceptions. When special circumstances make deferral as provided 
in this section inappropriate, the EEOC, and an agency with 
investigative authority under section 504, may jointly determine to 
reallocate investigative responsibilities. Special circumstances 
include, but are not limited to, cases in which the EEOC has already 
commenced its investigation at the time that the agency discovers that 
the complaint or charge is a dual-filed complaint or charge in which the 
complainant has elected section 504 processing, alleged discrimination 
in both employment and in other practices or services of the respondent, 
or alleged a pattern or practice of employment discrimination.



Sec. 37.9  Processing of complaints or charges of employment discrimination
filed with a designated agency and either a section 504 agency,

the EEOC, or both.

    (a) Designated agency processing. A designated agency shall 
investigate and process a complaint that has been filed with it and with 
the EEOC, a section 504 agency, or both, when either of the following 
conditions is met:

[[Page 766]]

    (1) The designated agency determines that it has jurisdiction over 
the complaint under title II and that neither the EEOC nor a section 504 
agency (other than the designated agency, if the designated agency is 
also a section 504 agency) has jurisdiction over the complaint; or
    (2) The designated agency determines that it has jurisdiction over 
the complaint under section 504 and the complaint meets the requirements 
for processing by a section 504 agency set forth in Sec. 37.8(a)(2).
    (b) Referral by a designated agency. A designated agency that has 
jurisdiction over a complaint solely under title II (and not under 
section 504) shall forward a complaint that has been filed with it and 
with the EEOC, a section 504 agency, or both, to either the EEOC or to a 
section 504 agency, as follows:
    (1) If the designated agency determines that the EEOC is the sole 
agency, other than the designated agency, with jurisdiction over the 
complaint, the designated agency shall forward the complaint to the EEOC 
for processing under title I; or
    (2) If the designated agency determines that the section 504 agency 
is the sole agency, other than the designated agency, with jurisdiction 
over the complaint, the designated agency shall forward the complaint to 
the section 504 agency for processing under section 504; or
    (3) If the designated agency determines that both the EEOC and a 
section 504 agency have jurisdiction over the complaint, the designated 
agency shall forward the complaint to the EEOC if it determines that the 
complaint solely alleges employment discrimination against an 
individual, or it shall forward the complaint to the section 504 agency 
if it determines that the complaint meets the requirements for 
processing by a section 504 agency set out in Sec. 37.8(a)(2)(i) or 
(a)(2)(ii).



Sec. 37.10  Section 504 agency review of deferred complaints.

    (a) Deferral by the section 504 agency. When a section 504 agency 
refers a complaint to the EEOC pursuant to Sec. 37.6(c)(2) or when it 
is determined that, as between the EEOC and a section 504 agency, the 
EEOC is the agency that shall process a dual-filed complaint or charge 
under Sec. 37.8(a)(1) or Sec. 37.8(e), the section 504 agency shall 
defer further action until:
    (1) The EEOC issues a no cause finding and a notice of right-to-sue 
pursuant to 29 CFR 1601.19; or
    (2) The EEOC enters into a conciliation agreement; or
    (3) The EEOC issues a cause finding and a notice of failure of 
conciliation pursuant to 29 CFR 1601.21, and:
    (i) If the recipient is not a government, governmental agency, or 
political subdivision, the EEOC completes enforcement proceedings or 
issues a notice of right-to-sue in accordance with 29 CFR 1601.28; or
    (ii) If the recipient is a government, governmental agency, or 
political subdivision, the EEOC refers the charge to the Civil Rights 
Division in accordance with 29 CFR 1601.29, and the Civil Rights 
Division completes enforcement proceedings or issues a notice of right-
to-sue in accordance with 29 CFR 1601.28(d); or
    (4) The EEOC or, when a case has been referred pursuant to 29 CFR 
1601.29, the Civil Rights Division, otherwise resolves the charge.
    (b) Notification of the deferring agency. The EEOC or the Civil 
Rights Division, as appropriate, shall notify the agency that has 
deferred processing of the charge upon resolution of any dual-filed 
complaint or charge.
    (c) Agency review. After receipt of notification that the EEOC or 
the Civil Rights Division, as appropriate, has resolved the complaint or 
charge, the agency shall promptly determine what further action by the 
agency is warranted. In reaching that determination, the agency shall 
give due weight to the findings and conclusions of the EEOC and to those 
of the Civil Rights Division, as applicable. If the agency proposes to 
take an action inconsistent with the EEOC's or the Civil Rights 
Division's findings and conclusions as to whether a violation has 
occurred, the agency shall notify in writing the Assistant Attorney 
General, the Chairman of the EEOC, and the head of the EEOC office that 
processed the complaint. In the written notification, the agency shall 
state the action that it

[[Page 767]]

proposes to take and the basis of its decision to take such action.
    (d) Provision of information. Upon written request, the EEOC or the 
Civil Rights Division shall provide the section 504 agency with any 
materials relating to its resolution of the charge, including its 
findings and conclusions, investigative reports and files, and any 
conciliation agreement.



Sec. 37.11  EEOC review of deferred charges.

    (a) Deferral by the EEOC. When it is determined that a section 504 
agency is the agency that shall process a dual-filed complaint or charge 
under Sec. 37.8(a)(2) or Sec. 37.8(e), the EEOC shall defer further 
action until the section 504 agency takes one of the following actions:
    (1) Makes a finding that a violation has not occurred;
    (2) Enters into a voluntary compliance agreement;
    (3) Following a finding that a violation has occurred, refers the 
complaint to the Civil Rights Division for judicial enforcement and the 
Civil Rights Division resolves the complaint;
    (4) Following a finding that a violation has occurred, resolves the 
complaint through final administrative enforcement action; or
    (5) Otherwise resolves the charge.
    (b) Notification of the EEOC. The section 504 agency shall notify 
the EEOC upon resolution of any dual-filed complaint or charge.
    (c) Agency review. After receipt of notification that the section 
504 agency has resolved the complaint, the EEOC shall promptly determine 
what further action by the EEOC is warranted. In reaching that 
determination, the EEOC shall give due weight to the section 504 
agency's findings and conclusions. If the EEOC proposes to take an 
action inconsistent with the section 504 agency's findings and 
conclusions as to whether a violation has occurred, the EEOC shall 
notify in writing the Assistant Attorney General, the Chairman of the 
EEOC, and the head of the section 504 agency that processed the 
complaint. In the written notification, the EEOC shall state the action 
that it proposes to take and the basis of its decision to take such 
action.
    (d) Provision of information. Upon written request, the section 504 
agency shall provide the EEOC with any materials relating to its 
resolution of the complaint, including its conclusions, investigative 
reports and files, and any voluntary compliance agreement.



Sec. 37.12  Standards.

    In any investigation, compliance review, hearing or other 
proceeding, the standards used to determine whether section 504 has been 
violated in a complaint alleging employment discrimination shall be the 
standards applied under title I of the ADA and the provisions of 
sections 501 through 504, and 510, of the ADA, as such sections relate 
to employment. Section 504 agencies shall consider the regulations and 
appendix implementing title I of the ADA, set forth at 29 CFR part 1630, 
and case law arising under such regulations, in determining whether a 
recipient of Federal financial assistance has engaged in an unlawful 
employment practice.



Sec. 37.13  Agency specific memoranda of understanding.

    When a section 504 agency amends its regulations to make them 
consistent with title I of the ADA, the EEOC and the individual section 
504 agency may elect to enter into a memorandum of understanding 
providing for the investigation and processing of complaints dual filed 
under both section 504 and title I of the ADA by the section 504 agency.



PART 38_EQUAL TREATMENT FOR FAITH-BASED ORGANIZATIONS--
Table of Contents




Sec.
38.1 Discretionary grants, contracts, and cooperative agreements.
38.2 Formula grants.

    Authority: 28 U.S.C. 509; 5 U.S.C. 301; E.O. 13279, 67 FR 77141, 3 
CFR, 2002 Comp., p. 258; 18 U.S.C. 4001, 4042, 5040; 20 U.S.C. 1152; 21 
U.S.C. 871; 25 U.S.C. 3681; Pub. L. 107-273, 116 Stat. 1758 (42 U.S.C. 
3751, 3753, 3762b, 3782, 3796dd-1, 3796dd-7, 3796gg-1, 3796gg-0b, 
3796gg-3, 3796h, 3796ii-2, 3797u-3, 3797w, 5611, 5672, 10604, 14071).

    Source: Order No. 2703-2004, 69 FR 2838, Jan. 21, 2004, unless 
otherwise noted.

[[Page 768]]



Sec. 38.1  Discretionary grants, contracts, and cooperative agreements.

    (a) Religious organizations are eligible, on the same basis as any 
other organization, to participate in any Department program for which 
they are otherwise eligible. Neither the Department nor any State or 
local government receiving funds under any Department program shall, in 
the selection of service providers, discriminate for or against an 
organization on the basis of the organization's religious character or 
affiliation. As used in this section, ``program'' refers to a grant, 
contract, or cooperative agreement funded by a discretionary grant from 
the Department. As used in this section, the term ``grantee'' includes a 
recipient of a grant, a signatory to a cooperative agreement, or a 
contracting party.
    (b) (1) Organizations that receive direct financial assistance from 
the Department under any Department program may not engage in inherently 
religious activities, such as worship, religious instruction, or 
proselytization, as part of the programs or services funded with direct 
financial assistance from the Department. If an organization conducts 
such activities, the activities must be offered separately, in time or 
location, from the programs or services funded with direct financial 
assistance from the Department, and participation must be voluntary for 
beneficiaries of the programs or services funded with such assistance.
    (2) The restrictions on inherently religious activities set forth in 
paragraph (b)(1) of this section do not apply to programs where 
Department funds are provided to chaplains to work with inmates in 
prisons, detention facilities, or community correction centers, or where 
Department funds are provided to religious or other organizations for 
programs in prisons, detention facilities, or community correction 
centers, in which such organizations assist chaplains in carrying out 
their duties.
    (c) A religious organization that participates in the Department-
funded programs or services will retain its independence from Federal, 
State, and local governments, and may continue to carry out its mission, 
including the definition, practice, and expression of its religious 
beliefs, provided that it does not use direct financial assistance from 
the Department to support any inherently religious activities, such as 
worship, religious instruction, or proselytization. Among other things, 
a faith-based organization that receives financial assistance from the 
Department may use space in its facilities, without removing religious 
art, icons, scriptures, or other religious symbols. In addition, a 
religious organization that receives financial assistance from the 
Department retains its authority over its internal governance, and it 
may retain religious terms in its organization's name, select its board 
members on a religious basis, and include religious references in its 
organization's mission statements and other governing documents.
    (d) An organization that participates in programs funded by direct 
financial assistance from the Department shall not, in providing 
services, discriminate against a program beneficiary or prospective 
program beneficiary on the basis of religion or religious belief.
    (e) No grant document, agreement, covenant, memorandum of 
understanding, policy, or regulation that is used by the Department or a 
State or local government in administering financial assistance from the 
Department shall require only religious organizations to provide 
assurances that they will not use monies or property for inherently 
religious activities. Any such restrictions shall apply equally to 
religious and non-religious organizations. All organizations that 
participate in Department programs, including religious ones, must carry 
out eligible activities in accordance with all program requirements and 
other applicable requirements governing the conduct of Department-funded 
activities, including those prohibiting the use of direct financial 
assistance from the Department to engage in inherently religious 
activities. No grant document, agreement, covenant, memorandum of 
understanding, policy, or regulation that is used by the Department or a 
State or local government in administering financial assistance from the 
Department shall disqualify religious organizations from participating 
in the Department's programs because such

[[Page 769]]

organizations are motivated or influenced by religious faith to provide 
social services, or because of their religious character or affiliation.
    (f) Exemption from Title VII employment discrimination requirements. 
A religious organization's exemption from the Federal prohibition on 
employment discrimination on the basis of religion, set forth in section 
702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-1, is not 
forfeited when the organization receives direct or indirect financial 
assistance from the Department. Some Department programs, however, 
contain independent statutory provisions requiring that all grantees 
agree not to discriminate in employment on the basis of religion. 
Accordingly, grantees should consult with the appropriate Department 
program office to determine the scope of any applicable requirements.
    (g) In general, the Department does not require that a grantee, 
including a religious organization, obtain tax-exempt status under 
section 501(c)(3) of the Internal Revenue Code to be eligible for 
funding under Department programs. Many grant programs, however, do 
require an organization to be a ``nonprofit organization'' in order to 
be eligible for funding. Individual solicitations that require 
organizations to have nonprofit status will specifically so indicate in 
the eligibility section of a solicitation. In addition, any solicitation 
that requires an organization to maintain tax-exempt status will 
expressly state the statutory authority for requiring such status. 
Grantees should consult with the appropriate Department program office 
to determine the scope of any applicable requirements. In Department 
programs in which an applicant must show that it is a nonprofit 
organization, the applicant may do so by any of the following means:
    (1) Proof that the Internal Revenue Service currently recognizes the 
applicant as an organization to which contributions are tax deductible 
under section 501(c)(3) of the Internal Revenue Code;
    (2) A statement from a State taxing body or the State secretary of 
state certifying that:
    (i) The organization is a nonprofit organization operating within 
the State; and
    (ii) No part of its net earnings may lawfully benefit any private 
shareholder or individual;
    (3) A certified copy of the applicant's certificate of incorporation 
or similar document that clearly establishes the nonprofit status of the 
applicant; or
    (4) Any item described in paragraphs (b)(1) through (3) of this 
section if that item applies to a State or national parent organization, 
together with a statement by the State or parent organization that the 
applicant is a local nonprofit affiliate.
    (h) Effect on State and local funds. If a State or local government 
voluntarily contributes its own funds to supplement activities carried 
out under the applicable programs, the State or local government has the 
option to separate out the Federal funds or commingle them. If the funds 
are commingled, the provisions of this section shall apply to all of the 
commingled funds in the same manner, and to the same extent, as the 
provisions apply to the Federal funds.
    (i) To the extent otherwise permitted by Federal law, the 
restrictions on inherently religious activities set forth in this 
section do not apply where Department funds are provided to religious 
organizations as a result of a genuine and independent private choice of 
a beneficiary, provided the religious organizations otherwise satisfy 
the requirements of the program. A religious organization may receive 
such funds as the result of a beneficiary's genuine and independent 
choice if, for example, a beneficiary redeems a voucher, coupon, or 
certificate, allowing the beneficiary to direct where funds are to be 
paid, or a similar funding mechanism provided to that beneficiary and 
designed to give that beneficiary a choice among providers.



Sec. 38.2  Formula grants.

    (a) Religious organizations are eligible, on the same basis as any 
other organization, to participate in any Department program for which 
they are

[[Page 770]]

otherwise eligible. Neither the Department nor any State or local 
government receiving funds under any Department program shall, in the 
selection of service providers, discriminate for or against an 
organization on the basis of the organization's religious character or 
affiliation. As used in this section, ``program'' refers to a grant, 
contract, or cooperative agreement funded by a formula or block grant 
from the Department. As used in this section, the term ``grantee'' 
includes a recipient of a grant, a signatory to a cooperative agreement, 
or a contracting party.
    (b) (1) Organizations that receive direct financial assistance from 
the Department may not engage in inherently religious activities, such 
as worship, religious instruction, or proselytization, as part of the 
programs or services funded with direct financial assistance from the 
Department. If an organization conducts such activities, the activities 
must be offered separately, in time or location, from the programs or 
services funded with direct financial assistance from the Department, 
and participation must be voluntary for beneficiaries of the programs or 
services funded with such assistance.
    (2) The restrictions on inherently religious activities set forth in 
paragraph (b)(1) of this section do not apply to programs where 
Department funds are provided to chaplains to work with inmates in 
prisons, detention facilities, or community correction centers, or where 
Department funds are provided to religious or other organizations for 
programs in prisons, detention facilities, or community correction 
centers, in which such organizations assist chaplains in carrying out 
their duties.
    (c) A religious organization that participates in the Department-
funded programs or services will retain its independence from Federal, 
State, and local governments, and may continue to carry out its mission, 
including the definition, practice, and expression of its religious 
beliefs, provided that it does not use direct financial assistance from 
the Department to support any inherently religious activities, such as 
worship, religious instruction, or proselytization. Among other things, 
a faith-based organization that receives financial assistance from the 
Department may use space in its facilities, without removing religious 
art, icons, scriptures, or other religious symbols. In addition, a 
religious organization that receives financial assistance from the 
Department retains its authority over its internal governance, and it 
may retain religious terms in its organization's name, select its board 
members on a religious basis, and include religious references in its 
organization's mission statements and other governing documents.
    (d) An organization that participates in programs funded by direct 
financial assistance from the Department shall not, in providing 
services, discriminate against a program beneficiary or prospective 
program beneficiary on the basis of religion or religious belief.
    (e) No grant document, agreement, covenant, memorandum of 
understanding, policy, or regulation that is used by the Department or a 
State or local government in administering financial assistance from the 
Department shall require only religious organizations to provide 
assurances that they will not use monies or property for inherently 
religious activities. Any such restrictions shall apply equally to 
religious and non-religious organizations. All organizations that 
participate in Department programs, including religious ones, must carry 
out eligible activities in accordance with all program requirements and 
other applicable requirements governing the conduct of Department-funded 
activities, including those prohibiting the use of direct financial 
assistance to engage in inherently religious activities. No grant 
document, agreement, covenant, memorandum of understanding, policy, or 
regulation that is used by the Department or a State or local government 
in administering financial assistance from the Department shall 
disqualify religious organizations from participating in the 
Department's programs because such organizations are motivated or 
influenced by religious faith to provide social services, or because of 
their religious character or affiliation.
    (f) Exemption from Title VII employment discrimination requirements. 
A religious organization's exemption from

[[Page 771]]

the Federal prohibition on employment discrimination on the basis of 
religion, set forth in section 702(a) of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-1, is not forfeited when the religious organization 
receives direct or indirect financial assistance from Department. Some 
Department programs, however, contain independent statutory provisions 
requiring that all grantees agree not to discriminate in employment on 
the basis of religion. Accordingly, grantees should consult with the 
appropriate Department program office to determine the scope of any 
applicable requirements.
    (g) In general, the Department does not require that a grantee, 
including a religious organization, obtain tax-exempt status under 
section 501(c)(3) of the Internal Revenue Code to be eligible for 
funding under Department programs. Many grant programs, however, do 
require an organization to be a ``nonprofit organization'' in order to 
be eligible for funding. Individual solicitations that require 
organizations to have nonprofit status will specifically so indicate in 
the eligibility section of a solicitation. In addition, any solicitation 
that requires an organization to maintain tax-exempt status will 
expressly state the statutory authority for requiring such status. 
Grantees should consult with the appropriate Department program office 
to determine the scope of any applicable requirements. In Department 
programs in which an applicant must show that it is a nonprofit 
organization, the applicant may do so by any of the following means:
    (1) Proof that the Internal Revenue Service currently recognizes the 
applicant as an organization to which contributions are tax deductible 
under section 501(c)(3) of the Internal Revenue Code;
    (2) A statement from a State taxing body or the State secretary of 
state certifying that:
    (i) The organization is a nonprofit organization operating within 
the State; and
    (ii) No part of its net earnings may lawfully benefit any private 
shareholder or individual;
    (3) A certified copy of the applicant's certificate of incorporation 
or similar document that clearly establishes the nonprofit status of the 
applicant; or
    (4) Any item described in paragraphs (b)(1) through (3) of this 
section if that item applies to a State or national parent organization, 
together with a statement by the State or parent organization that the 
applicant is a local nonprofit affiliate.
    (h) Effect on State and local funds. If a State or local government 
voluntarily contributes its own funds to supplement activities carried 
out under the applicable programs, the State or local government has the 
option to separate out the Federal funds or commingle them. If the funds 
are commingled, the provisions of this section shall apply to all of the 
commingled funds in the same manner, and to the same extent, as the 
provisions apply to the Federal funds.
    (i) To the extent otherwise permitted by Federal law, the 
restrictions on inherently religious activities set forth in this 
section do not apply where Department funds are provided to religious 
organizations as a result of a genuine and independent private choice of 
a beneficiary, provided the religious organizations otherwise satisfy 
the requirements of the program. A religious organization may receive 
such funds as the result of a beneficiary's genuine and independent 
choice if, for example, a beneficiary redeems a voucher, coupon, or 
certificate, allowing the beneficiary to direct where funds are to be 
paid, or a similar funding mechanism provided to that beneficiary and 
designed to give that beneficiary a choice among providers.



PART 39_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF JUSTICE--

Table of Contents




Sec.
39.101 Purpose.
39.102 Application.
39.103 Definitions.
39.104-39.109 [Reserved]
39.110 Self-evaluation.
39.111 Notice.
39.112-39.129 [Reserved]
39.130 General prohibitions against discrimination.
39.131-39.139 [Reserved]

[[Page 772]]

39.140 Employment.
39.141-39.148 [Reserved]
39.149 Program accessibility: Discrimination prohibited.
39.150 Program accessibility: Existing facilities.
39.151 Program accessibility: New construction and alterations.
39.152-39.159 [Reserved]
39.160 Communications.
39.161-39.169 [Reserved]
39.170 Compliance procedures.

    Authority: 29 U.S.C. 794.

    Source: Order No. 1065-84, 49 FR 35734, Sept. 11, 1984, unless 
otherwise noted.



Sec. 39.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the U.S. Postal Service.



Sec. 39.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 39.103  Definitions.

    For purposes of this part, the term--
    Agency means the Department of Justice.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complaint Adjudication Officer means the Complaint Adjudication 
Officer appointed by the Assistant Attorney General for Civil Rights.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitorurinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or

[[Page 773]]

physical impairment that substantially limits one or more major life 
activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Official or Responsible Official means the Director of Equal 
Employment Opportunity for the Department of Justice or his or her 
designee.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    Respondent means the organizational unit in which a complainant 
alleges that discrimination occurred.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.



Sec. Sec. 39.104-39.109  [Reserved]



Sec. 39.110  Self-evaluation.

    (a) The agency shall, by October 11, 1985, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until October 11, 1987, maintain on file and 
make available for public inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 39.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the program or activities conducted by the agency, and make such 
information available to them in such manner as the Attorney General 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 39.112-39.129  [Reserved]



Sec. 39.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--

[[Page 774]]

    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 39.131-39.139  [Reserved]



Sec. 39.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.

[[Page 775]]



Sec. Sec. 39.141-39.148  [Reserved]



Sec. 39.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 39.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 39.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 39.150(a) would result in such 
alterations or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Attorney General or his 
or her designee after considering all agency resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by December 10, 1984, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by October 11, 1987, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by April 11, 1985, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including handicapped persons or 
organizations representing handicapped persons, to participate in the 
development of the transition by submitting comments (both oral and 
written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;

[[Page 776]]

    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 39.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 39.152-39.159  [Reserved]



Sec. 39.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 39.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the Attorney General or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 39.161-39.169  [Reserved]



Sec. 39.170  Compliance procedures.

    (a) Applicability. Except as provided in paragraph (b) of this 
section, this section applies to all allegations of discrimination on 
the basis of handicap in programs or activities conducted by the agency.
    (b) Employment complaints. The agency shall process complaints 
alleging violations of section 504 with respect to employment according 
to the procedures established by the Equal Employment Opportunity 
Commission in 29 CFR part 1613 pursuant to section 501

[[Page 777]]

of the Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Responsible Official. The Responsible Official shall coordinate 
implementation of this section.
    (d) Filing a complaint--(1) Who may file. (i) Any person who 
believes that he or she has been subjected to discrimination prohibited 
by this part may by him or herself or by his or her authorized 
representative file a complaint with the Official. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized representative of a member of that class may file a 
complaint with the Official.
    (ii) Before filing a complaint under this section, an inmate of a 
Federal penal institution must exhaust the Bureau of Prisons 
Administrative Remedy Procedure as set forth in 28 CFR part 542.
    (2) Confidentiality. The Official shall hold in confidence the 
identity of any person submitting a complaint, unless the person submits 
written authorization otherwise, and except to the extent necessary to 
carry out the purposes of this part, including the conduct of any 
investigation, hearing, or proceeding under this part.
    (3) When to file. Complaints shall be filed within 180 days of the 
alleged act of discrimination, except that complaints by inmates of 
Federal penal institutions shall be filed within 180 days of the final 
administrative decision of the Bureau of Prisons under 28 CFR part 542. 
The Official may extend this time limit for good cause shown. For 
purposes of determining when a complaint is timely filed under this 
subparagraph, a complaint mailed to the agency shall be deemed filed on 
the date it is postmarked. Any other complaint shall be deemed filed on 
the date it is received by the agency.
    (4) How to file. Complaints may be delivered or mailed to the 
Attorney General, the Responsible Official, or agency officials. 
Complaints should be sent to the Director for Equal Employment 
Opportunity, U.S. Department of Justice, 10th and Pennsylvania Avenue, 
NW., Room 1232, Washington, DC 20530. If any agency official other than 
the Official receives a complaint, he or she shall forward the complaint 
to the Official immediately.
    (e) Notification to the Architectural and Transportation Barriers 
Compliance Board. The agency shall promptly send to the Architectural 
and Transportation Barriers Compliance Board a copy of any complaint 
alleging that a building or facility that is subject to the 
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or 
section 502 of the Rehabilitation Act, as amended (29 U.S.C. 792), is 
not readily accessible to and usable by handicapped persons. The agency 
shall delete the identity of the complainant from the copy of the 
complaint.
    (f) Acceptance of complaint. (1) The Official shall accept a 
complete complaint that is filed in accordance with paragraph (d) of 
this section and over which the agency has jurisdiction. The Official 
shall notify the complainant and the respondent of receipt and 
acceptance of the complaint.
    (2) If the Official receives a complaint that is not complete, he or 
she shall notify the complainant, within 30 days of receipt of the 
incomplete complaint, that additional information is needed. If the 
complainant fails to complete the complaint within 30 days of receipt of 
this notice, the Official shall dismiss the complaint without prejudice.
    (3) If the Official receives a complaint over which the agency does 
not have jurisdiction, the Official shall promptly notify the 
complainant and shall make reasonable efforts to refer the complaint to 
the appropriate Government entity.
    (g) Investigation/conciliation. (1) Within 180 days of the receipt 
of a complete complaint, the Official shall complete the investigation 
of the complaint, attempt informal resolution, and, if no informal 
resolution is achieved, issue a letter of findings.
    (2) The Official may require agency employees to cooperate in the 
investigation and attempted resolution of complaints. Employees who are 
required by the Official to participate in any investigation under this 
section shall do so as part of their official duties and during the 
course of regular duty hours.

[[Page 778]]

    (3) The Official shall furnish the complainant and the respondent a 
copy of the investigative report promptly after receiving it from the 
investigator and provide the complainant and respondent with an 
opportunity for informal resolution of the complaint.
    (4) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made part of the complaint 
file, with a copy of the agreement provided to the complainant and 
respondent. The written agreement may include a finding on the issue of 
discrimination and shall describe any corrective action to which the 
complainant and respondent have agreed.
    (h) Letter of findings. If an informal resolution of the complaint 
is not reached, the Official shall, within 180 days of receipt of the 
complete complaint, notify the complainant and the respondent of the 
results of the investigation in a letter sent by certified mail, return 
receipt requested, containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right of the complainant and respondent to 
appeal to the Complaint Adjudication Officer; and
    (4) A notice of the right of the complainant and respondent to 
request a hearing.
    (i) Filing an appeal. (1) Notice of appeal to the Complaint 
Adjudication Officer, with or without a request for hearing, shall be 
filed by the complainant or the respondent with the Responsible Official 
within 30 days of receipt from the Official of the letter required by 
paragraph (h) of this section.
    (2) If a timely appeal without a request for hearing is filed by a 
party, any other party may file a written request for hearing within the 
time limit specified in paragraph (i)(1) of this section or within 10 
days of the date on which the first timely appeal without a request for 
hearing was filed, whichever is later.
    (3) If no party requests a hearing, the Responsible Official shall 
promptly transmit the notice of appeal and investigative record to the 
Complaint Adjudication Officer.
    (4) If neither party files an appeal within the time prescribed in 
paragraph (i)(1) of this section, the Responsible Official shall certify 
that the letter of findings is the final agency decision on the 
complaint at the expiration of that time.
    (j) Acceptance of appeal. The Responsible Official shall accept and 
process any timely appeal. A party may appeal to the Complaint 
Adjudication Officer from a decision of the Official that an appeal is 
untimely. This appeal shall be filed within 15 days of receipt of the 
decision from the Official.
    (k) Hearing. (1) Upon a timely request for a hearing, the 
Responsible Official shall appoint an administrative law judge to 
conduct the hearing. The administrative law judge shall issue a notice 
to all parties specifying the date, time, and place of the scheduled 
hearing. The hearing shall be commenced no earlier than 15 days after 
the notice is issued and no later than 60 days after the request for a 
hearing is filed, unless all parties agree to a different date.
    (2) The complainant and respondent shall be parties to the hearing. 
Any interested person or organization may petition to become a party or 
amicus curiae. The administrative law judge may, in his or her 
discretion, grant such a petition if, in his or her opinion, the 
petitioner has a legitimate interest in the proceedings and the 
participation will not unduly delay the outcome and may contribute 
materially to the proper disposition of the proceedings.
    (3) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of 
the Administrative Procedure Act). The administrative law judge shall 
have the duty to conduct a fair hearing, to take all necessary action to 
avoid delay, and to maintain order. He or she shall have all powers 
necessary to these ends, including (but not limited to) the power to--
    (i) Arrange and change the date, time, and place of hearings and 
prehearing conferences and issue notice thereof;
    (ii) Hold conferences to settle, simplify, or determine the issues 
in a hearing, or to consider other matters that

[[Page 779]]

may aid in the expeditious disposition of the hearing;
    (iii) Require parties to state their position in writing with 
respect to the various issues in the hearing and to exchange such 
statements with all other parties;
    (iv) Examine witnesses and direct witnesses to testify;
    (v) Receive, rule on, exclude, or limit evidence;
    (vi) Rule on procedural items pending before him or her; and
    (vii) Take any action permitted to the administrative law judge as 
authorized by this part or by the provisions of the Administrative 
Procedure Act (5 U.S.C. 551-559).
    (4) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this paragraph, but rules or principles designed 
to assure production of credible evidence and to subject testimony to 
cross-examination shall be applied by the administrative law judge 
whenever reasonably necessary. The administrative law judge may exclude 
irrelevant, immaterial, or unduly repetitious evidence. All documents 
and other evidence offered or taken for the record shall be open to 
examination by the parties, and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. All decisions shall be based upon 
the hearing record.
    (5) The costs and expenses for the conduct of a hearing shall be 
allocated as follows:
    (i) Persons employed by the agency, shall, upon request to the 
agency by the administrative law judge, be made available to participate 
in the hearing and shall be on official duty status for this purpose. 
They shall not receive witness fees.
    (ii) Employees of other Federal agencies called to testify at a 
hearing shall, at the request of the administrative law judge and with 
the approval of the employing agency, be on official duty status during 
any period of absence from normal duties caused by their testimony, and 
shall not receive witness fees.
    (iii) The fees and expenses of other persons called to testify at a 
hearing shall be paid by the party requesting their appearance.
    (iv) The administrative law judge may require the agency to pay 
travel expenses necessary for the complainant to attend the hearing.
    (v) The respondent shall pay the required expenses and charges for 
the administrative law judge and court reporter.
    (vi) All other expenses shall be paid by the party, the intervening 
party, or amicus curiae incurring them.
    (6) The administrative law judge shall submit in writing recommended 
findings of fact, conclusions of law, and remedies to all parties and 
the Complaint Adjudication Officer within 30 days after receipt of the 
hearing transcripts, or within 30 days after the conclusion of the 
hearing if no transcript is made. This time limit may be extended with 
the permission of the Complaint Adjudication Officer.
    (7) Within 15 days after receipt of the recommended decision of the 
administrative law judge, any party may file exceptions to the decision 
with the Complaint Adjudication Officer. Thereafter, each party will 
have ten days to file reply exceptions with the Officer.
    (l) Decision. (1) The Complaint Adjudication Officer shall make the 
decision of the agency based on information in the investigative record 
and, if a hearing is held, on the hearing record. The decision shall be 
made within 60 days of receipt of the transmittal of the notice of 
appeal and investigative record pursuant to Sec. 39.170(i)(3) or after 
the period for filing exceptions ends, whichever is applicable. If the 
Complaint Adjudication Officer determines that he or she needs 
additional information from any party, he or she shall request the 
information and provide the other party or parties an opportunity to 
respond to that information. The Complaint Adjudication Officer shall 
have 60 days from receipt of the additional information to render the 
decision on the appeal. The Complaint Adjudication Officer shall 
transmit his or her decision by letter to the parties. The decision 
shall set forth the findings, remedial action required, and reasons for 
the decision. If

[[Page 780]]

the decision is based on a hearing record, the Complaint Adjudication 
Officer shall consider the recommended decision of the administrative 
law judge and render a final decision based on the entire record. The 
Complaint Adjudication Officer may also remand the hearing record to the 
administrative law judge for a fuller development of the record.
    (2) Any respondent required to take action under the terms of the 
decision of the agency shall do so promptly. The Official may require 
periodic compliance reports specifying--
    (i) The manner in which compliance with the provisions of the 
decision has been achieved;
    (ii) The reasons any action required by the final decision has not 
yet been taken; and
    (iii) The steps being taken to ensure full compliance.

The Complaint Adjudication Officer may retain responsibility for 
resolving disagreements that arise between the parties over 
interpretation of the final agency decision, or for specific 
adjudicatory decisions arising out of implementation.

    Editorial Note: For the convenience of the user, the ``Supplementary 
Information'' portion of the document published at 49 FR 35724, Sept. 
11, 1984, is set forth below:


SUPPLEMENTARY INFORMATION: On December 16, 1983, the Department of 
Justice published a Notice of Proposed Rulemaking (NPRM) for the 
enforcement of section 504 of the Rehabilitation Act of 1973, as 
amended, which prohibits discrimination on the basis of handicap, as it 
applies to programs and activities conducted by the Department of 
Justice. 48 FR 55996. Shortly after the NPRM was published, the 
Department received a number of preliminary comments from handicapped 
individuals and from organizations representing handicapped individuals. 
The tone and nature of these comments indicated to the Department that 
some of the regulatory provisions of the NPRM were being misunderstood. 
As a result, the Department, on March 1, 1984, published a Supplementary 
Notice further explaining the NPRM and requesting comments on possible 
revisions to the original NPRM. 49 FR 7792.

    By April 16, 1984, close of the comment period, the Department 
received 1,194 comments. Two hundred and six of these comments also 
addressed the supplemental notice. Over 90% of the comments that the 
Department received came from individuals (908), most frequently 
handicapped persons, and from organizations representing the interests 
of handicapped persons (180). The Department received comments from all 
fifty states, the District of Columbia, Puerto Rico, Canada, and 
Denmark. Most of the comments that the Department received were general 
in nature. The Department received 721 comments based on a form letter. 
This form letter, written before issuance of the Supplemental Notice, 
expressed dismay at the inclusion of the regulation's ``undue financial 
and administrative burdens'' language, asserted that the Department was 
imposing a lesser requirement on the Federal government than on 
recipients of Federal assistance, and requested that the regulation be 
withdrawn. This form letter did not contain any substantive or detailed 
analysis. In fact, only 55 of the 1,194 comments contained specific, 
detailed analysis of the Department's proposal.

    The Department read and analyzed each comment. Each comment was then 
subdivided according to one or more of over 90 issue categories. Because 
comments often addressed, even in general terms, more than one issue, 
the 1,194 comments were translated into 4,256 issue-specific comments. 
The decisions that the Department made in response to these comments, 
however, were not made on the basis of the number of commenters 
addressing any one point but on a thorough consideration of the merits 
of the points of view expressed in the comments. Copies of the written 
comments will remain available for public inspection in Room 854 of the 
HOLC Building, 320 First Street, NW., Washington, DC from 9:00 a.m. to 
5:30 p.m., Monday through Friday, except for legal holidays, until 
November 13, 1984.

    Section 504 requires that regulations that apply to the programs and 
activities of Federal executive agencies shall be submitted to the 
appropriate authorizing committees of Congress and that such regulations 
may take effect no earlier than the thirtieth day after they have been 
so submitted. The Department has today submitted this regulation to the 
Senate Committee on Labor and Human Resources and its Subcommittee on 
the Handicapped and the House Committee on Education and Labor and its 
Subcommittee on Select Education pursuant to the terms of section 504. 
The regulation will become effective on October 11, 1984.

    This rule applies to all programs and activities conducted by the 
Department of Justice. Thus, this rule regulates the activities of over 
30 separate subunits in the Department, including, for example, the 
Federal Bureau of Investigation, the Drug Enforcement Administration, 
the Immigration and Naturalization Service, the Bureau of Prisons, 
Federal Prison Industries, and the United States Attorneys.


[[Page 781]]



Background


    The purpose of this rule is to provide for the enforcement of 
section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 
794), as it applies to programs and activities conducted by the 
Department of Justice (DOJ). As amended by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978 (Sec. 119, Pub. L. 95-602, 92 Stat. 2982), section 504 of the 
Rehabilitation Act of 1973 states that:


    No otherwise qualified handicapped individual in the United States, 
. . . shall, solely by reason of his handicap, be excluded from the 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance or under any program or activity conducted by any Executive 
agency or by the United States Postal Service. The head of each such 
agency shall promulgate such regulations as may be necessary to carry 
out the amendments to this section made by the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Act of 1978. 
Copies of any proposed regulation shall be submitted to appropriate 
authorizing committees of the Congress, and such regulation may take 
effect no earlier than the thirtieth day after the date on which such 
regulation is so submitted to such committees.


(29 U.S.C. 794) (amendment italicized).


    The substantive nondiscrimination obligations of the agency, as set 
forth in this rule, are identical, for the most part, to those 
established by Federal regulations for programs or activities receiving 
Federal financial assistance. See 28 CFR part 41 (section 504 
coordination regulation for federally assisted programs). This general 
parallelism is in accord with the intent expressed by supporters of the 
1978 amendment in floor debate, including its sponsor, Rep. James M. 
Jeffords, that the Federal government should have the same section 504 
obligations as recipients of Federal financial assistance. 124 Cong. 
Rec. 13,901 (1978) (remarks of Rep. Jeffords); 124 Cong. Rec. E2668, 
E2670 (daily ed. May 17, 1984) id., 124 Cong. Rec. 13,897 (remarks of 
Rep. Brademas); id. at 38,552 (remarks of Rep. Sarasin).

    Nine hundred and two comments that the Department received agreed 
that the obligations of section 504 for federally conducted programs 
should be identical to those developed by the Federal agencies over the 
past seven years for federally assisted programs. These commenters, 
however, objected to any language differences between the Department's 
proposed rule for federally conducted programs and the Department's 
section 504 coordination regulation for federally assisted programs (28 
CFR part 41). The commenters asserted that a number of language 
differences that the Department had proposed created less stringent 
standards for the Federal government than those applied to recipients of 
Federal assistance under section 504. They wrote that such a result 
could not be justified by Executive Order 12250, by the wording of the 
statute itself, nor by the legislative history of the 1978 amendments.

    The commenters appear to have misunderstood the basis for inclusion 
of the new language in the DOJ regulation. The changes in this 
regulation are based on the Supreme Court's decision in Southeastern 
Community College v. Davis, 442 U.S. 397 (1979), and the subsequent 
circuit court decisions interpreting Davis and section 504. See Dopico 
v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982); American Public Transit 
Association v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981) (APTA); see also 
Rhode Island Handicapped Action Committee v. Rhode Island Public Transit 
Authority, 718 F.2d 490 (1st Cir. 1983).

    Some commenters questioned the use of Davis as justification for the 
inclusion of the new provisions in the federally conducted regulation. 
They noted that the Department had not included these changes when, 
subsequent to the Davis decision, it issued a regulation implementing 
section 504 in programs receiving Federal financial assistance from this 
Department. The Department's section 504 federally assisted regulation, 
however, was issued prior to the D.C. circuit's decision in APTA. In 
APTA, the Department had argued a position similar to that advocated by 
the commenters. Judge Abner Mikva's decision in APTA clearly rejected 
the Department's position in that case. Other circuit court decisions 
followed the APTA interpretation of Davis. Since these decisions, the 
Department has interpreted its section 504 regulation for federally 
assisted programs in a manner consistent with the language of this final 
rule. The Department believes that judicial interpretation of section 
504 compels it to incorporate the new language in the federally 
conducted regulation.

    Incorporation of these changes, therefore, makes this section 504 
federally conducted regulation consistent with the Federal government's 
section 504 federally assisted regulations. Because many of these 
federally assisted regulations were issued prior to the judicial 
interpretations of Davis and its progeny, their language does not 
reflect the interpretation of section 504 provided by the Supreme Court 
and by the various circuit courts. Of course, these federally assisted 
regulations must be interpreted to reflect the holdings of the Federal 
judiciary. Hence the Department believes that there are no significant 
differences between this final rule for federally conducted programs and 
the Federal government's interpretation of section 504 regulations for 
federally assisted programs.

[[Page 782]]


    This regulation has been reviewed by the Equal Employment 
Opportunity Commission under Executive Order 12067 (43 FR 28967, 3 CFR, 
1978 Comp., p. 206). It is not a major rule within the meaning of 
Executive Order 12291 (46 FR 13193, 3 CFR, 1981 Comp., p. 127) and, 
therefore, a regulatory impact analysis has not been prepared. This 
regulation does not have an impact on small entities. It is not, 
therefore, subject to the Regulatory Flexibility Act (5 U.S.C. 601-612).


Section-by-Section Analysis and Response to Comments


Section 39.101 Purpose


    Section 39.101 states the purpose of the rule, which is to 
effectuate section 119 of the Rehabilitation, Comprehensive Services, 
and Developmental Disabilities Amendments of 1978, which amended section 
504 of the Rehabilitation Act of 1973 to prohibit discrimination on the 
basis of handicap in programs or activities conducted by Executive 
agencies or the United States Postal Service.

    The Department received no comments on this section and it remains 
unchanged from the Department's proposed rule.


Section 39.102 Application


    The regulation applies to all programs or activities conducted by 
the Department of Justice. Under this section, a federally conducted 
program or activity is, in simple terms, anything a Federal agency does. 
Aside from employment, there are two major categories of federally 
conducted programs or activities covered by this regulation: those 
involving general public contact as part of ongoing agency operations 
and those directly administered by the Department for program 
beneficiaries and participants. Activities in the first part include 
communication with the public (telephone contacts, office walk-ins, or 
interviews) and the public's use of the Department's facilities 
(cafeteria, library). Activities in the second category include programs 
that provide Federal services or benefits (immigration activities, 
operation of the Federal prison system). No comments were received on 
this section.


Section 39.103 Definitions


    The Department received 469 comments on the definitions section. 
Most of the comment, however, concentrated on the definition of 
``qualified handicapped person.''

    ``Agency'' is defined as the Department of Justice.

    ``Assistant Attorney General.'' ``Assistant Attorney General'' 
refers to the Assistant Attorney General, Civil Rights Division, United 
States Department of Justice.

    ``Auxiliary aids.'' ``Auxiliary aids'' means services or devices 
that enable persons with impaired sensory, manual, or speaking skills to 
have an equal opportunity to participate in and enjoy the benefits of 
the agency's programs or activities. The definition provides examples of 
commonly used auxiliary aids. Auxiliary aids are addressed in Sec. 
39.160(a)(1). Comments on the definition of ``auxiliary aids'' are 
discussed in connection with that section.

    ``Complete complaint.'' ``Complete complaint'' is defined to include 
all the information necessary to enable the agency to investigate the 
complaint. The definition is necessary, because the 180 day period for 
the agency's investigation (see Sec. 39.170(g)) begins when it receives 
a complete complaint.

    ``Facility.'' The definition of ``facility'' is similar to that in 
the section 504 coordination regulation for federally assisted programs, 
28 CFR 41.3(f), except that the term ``rolling stock or other 
conveyances'' has been added and the phrase ``or interest in such 
property'' has been deleted.

    Twenty commenters on the NPRM objected to the omission of the phrase 
``or interest in such property'' from the definition of ``facility.'' As 
explained in the Supplemental Notice, the term ``facility,'' as used in 
this regulation, refers to structures, and does not include intangible 
property rights. The definition, therefore, has no effect on the scope 
of coverage of programs, including those conducted in facilities not 
included in the definition. The phrase has been omitted because the 
requirement that facilities be accessible would be a logical absurdity 
if applied to a lease, life estate, mortgage, or other intangible 
property interest. The regulation applies to all programs and activities 
conducted by the agency regardless of whether the facility in which they 
are conducted is owned, leased, or used on some other basis by the 
agency. Sixty commenters supported the clarification of this issue in 
the Supplemental Notice.

    ``Handicapped person.'' The definition of ``handicapped person'' has 
been revised to make it identical to the definition appearing in the 
section 504 coordination regulation for federally assisted programs (28 
CFR 41.31). In its NPRM, the Department omitted the list of physical or 
mental impairments included in the definition of ``handicapped 
persons.'' The Department received 19 negative comments on this 
omission, and, in the Supplemental Notice, requested comments on whether 
it should be re-inserted. On the basis of the comments received, we have 
included the list in the final rule.

    ``Qualified handicapped person'' The definition of ``qualified 
handicapped person'' is a revised version of the definition appearing in 
the section 504 coordination regulation for federally assisted programs 
(28 CFR 41.32).

[[Page 783]]


    Subparagraph (1) of the definition states that a ``qualified 
handicapped person'' with regard to any program under which a person is 
required to perform services or to achieve a level of accomplishment is 
a handicapped person who can achieve the purpose of the program without 
modifications in the program that the agency can demonstrate would 
result in a fundamental alteration in its nature. This definition is 
based on the Supreme Court's Davis decision.

    In Davis, the Court ruled that a hearing-impaired applicant to a 
nursing school was not a ``qualified handicapped person'' because her 
hearing impairment would prevent her from participating in the clinical 
training portion of the program. The Court found that, if the program 
were modified so as to enable the respondent to participate (by 
exempting her from the clinical training requirements), ``she would not 
receive even a rough equivalent of the training a nursing program 
normally gives.'' 442 U.S. at 410. It also found that ``the purpose of 
[the] program was to train persons who could serve the nursing 
profession in all customary ways,'' id. at 413, and that the respondent 
would be unable, because of her hearing impairment, to perform some 
functions expected of a registered nurse. It therefore concluded that 
the school was not required by section 504 to make such modifications 
that would result in ``a fundamental alteration in the nature of the 
program.'' Id. at 410.

    The Department incorporated the Court's language in the definition 
of ``qualified handicapped person'' in order to make clear that such a 
person must be able to participate in the program offered by the agency. 
The agency is required to make modifications in order to enable a 
handicapped applicant to participate, but is not required to offer a 
program of a fundamentally different nature. The test is whether, with 
appropriate modifications, the applicant can achieve the purpose of the 
program offered; not whether the applicant could benefit or obtain 
results from some other program that the agency does not offer. Although 
the revised definition allows exclusion of some handicapped people from 
some programs, it requires that a handicapped person who is capable of 
achieving the purpose of the program must be accommodated, provided that 
the modifications do not fundamentally alter the nature of the program.

    Two hundred and forty-four commenters objected to this revised 
definition for a variety of reasons. Several commenters stated that the 
Department incorrectly used Davis as the justification for explaining 
the differences between the federally assisted and the federally 
conducted regulations because the Supreme Court upheld the validity of 
the existing regulations in Consolidated Rail Corp. v. Darrone, 104 S. 
Ct. 1248 (1984). This view misunderstands the Court's actions in 
Darrone. In that case the Court ruled on a series of issues, the most 
important of which was under what circumstances section 504 applied to 
employment discrimination by recipients. The Court did not concern 
itself either directly or indirectly with the definition of ``qualified 
handicapped person'' or whether section 504 included limitations based 
on ``undue financial and administrative burdens.''

    Many commenters stated that the proposal would change the definition 
of qualified handicapped person for employment. ``Qualified handicapped 
person'' is defined for purposes of employment in 29 CFR 1613.702(f), 
which is made applicable to this part by Sec. 39.140. Nothing in this 
part changes existing regulations applicable to employment.

    Many commenters assumed that the definition would have the effect of 
placing on the handicapped person the burden of proving that he or she 
is qualified. The definition has been revised to make it clear that the 
agency has the burden of demonstrating that a proposed modification 
would constitute a fundamental alteration in the nature of its program 
or activity. Furthermore, in demonstrating that a modification would 
result in such an alteration, the agency must follow the procedures 
established in Sec. Sec. 39.150(a)(2) and 39.160(d), which are 
discussed below, for demonstrating that an action would result in undue 
financial and administrative burdens. That is, the decision must be made 
by the agency head or his or her designee in writing after consideration 
of all resources available for the program or activity and must be 
accompanied by an explanation of the reasons for the decision. If the 
agency head determines that an action would result in a fundamental 
alteration, the agency must consider options that would enable the 
handicapped person to achieve the purpose of the program but would not 
result in such an alteration.

    Some commenters said that the definition of ``qualified handicapped 
person'' places handicapped persons in a ``Catch-22'' situation: because 
only qualified handicapped persons are protected by the statute, a 
determination that a person is not qualified would make enforcement 
remedies unavailable to that person. This concern is misplaced. If the 
Department determined that a handicapped person was not ``qualified,'' 
the person could use the procedures established by Sec. 39.170 to 
challenge that determination, just as he or she could challenge any 
other decision by the agency that he or she believed to be 
discriminatory.

    Many commenters argued that the definition of ``qualified 
handicapped person'' confused what should be two separate inquiries: 
whether a person meets essential eligibility

[[Page 784]]

requirements and, if so, whether accommodation is required. They argued 
that the reference to ``fundamental alteration'' in the definition 
focuses attention on accommodations rather than on a handicapped 
person's abilities. As another commenter noted, however, the Supreme 
Court in Davis developed the ``fundamental alteration'' language in a 
decision that was determining the nature and scope of what constitutes a 
qualified handicapped person. The Department continues to believe that 
the concept of ``qualified handicapped person'' properly encompasses 
both the notion of ``essential eligibility requirements'' and the notion 
of program modifications that might fundamentally alter a program.

    Some commenters argued that our analysis of Davis was inappropriate 
because Davis was decided on the basis of individual facts unique to 
that case or because Davis involved federally assisted and not federally 
conducted programs. While cases are decided on the basis of specific 
factual situations, courts, especially the Supreme Court, develop 
general principles of law for use in analyzing facts. The Davis decision 
was the Supreme Court's first comprehensive view of section 504, a major 
new civil rights statute. The Davis holding, that a person who cannot 
achieve the purpose of a program without fundamental changes in its 
nature is not a ``qualified handicapped person,'' is a general 
principle, a statement by the Court on how it views section 504. It is 
therefore necessary to reflect it in the Department's regulation.

    Subparagraph (2) of the definition adopts the existing definition in 
the coordination regulation of ``qualified handicapped person'' with 
respect to services for programs receiving Federal financial assistance 
(28 CFR 41.32(b)). Under this part of the definition, a qualified 
handicapped person is a handicapped person who meets the essential 
eligibility requirements for participation in the program or activity.

    ``Section 504.'' This definition makes clear that, as used in this 
regulation, ``section 504'' applies only to programs or activities 
conducted by the agency and not to programs or activities to which it 
provides Federal financial assistance.


Section 39.110 Self-evaluation


    This section requires that the agency conduct a self-evaluation of 
its compliance with section 504 within one year of the effective date of 
this regulation. The self-evaluation requirement is present in the 
existing section 504 coordination regulation for programs or activities 
receiving Federal financial assistance (28 CFR 41.5(b)(2)). Experience 
has demonstrated the self-evaluation process to be a valuable means of 
establishing a working relationship with handicapped persons that 
promotes both effective and efficient implementation of section 504.

    In response to preliminary comments that the proposed rule had no 
specific criteria for conducting a self-evaluation, we requested comment 
on a proposed alternative in our Supplemental Notice (49 FR 7792). We 
received 64 comments, 57 of which were positive. The comments generally 
favored adoption of the alternative section, instead of the proposed 
section. We agree.

    With respect to the applicability of the Federal Advisory Committee 
Act (5 U.S.C. App. 1 et seq.) (FACA), several comments were received. 
They argued that the FACA is not intended to apply to meetings with a 
self-evaluation group comprised of private individuals because they are 
rather unstructured, ad hoc meetings.

    Authority for interpreting FACA was delegated to the General 
Services Administration (GSA) by Executive Order 12024 in 1977. 
Regulations issued by GSA place specific limitations on the scope of the 
Act by delineating examples of meetings or groups not covered. 41 CFR 
part 101-6. GSA identified a major issue in the promulgation of the 
regulations to be the extent of applicability of the Act

    Some commenters believe, as a matter of general policy, that 
advisory groups which are not formally structured, which do not have a 
continuing existence, which meet to deal with specific issues, and whose 
meetings do not constitute an established pattern of conduct should not 
be covered under the Act. * * * This rule reflects our judgment that the 
exclusion of certain non-recurring meetings from the Act's coverage is 
fully consistent with the statute, its legislative history, and judicial 
interpretation. * * * The interim rule provides guidance for those 
meetings between Federal officials and non-Federal individuals which do 
not fall within the scope of the Act, and for which a charter and 
consultation with GSA is not required.


48 FR 19324 (Preamble to interim rules).


    The regulations define ``advisory committee'' in pertinent part as:


    Any committee, board, commission, council, conference, panel, task 
force or other similar group * * * established by * * * or utilized by * 
* * any agency official for the purpose of obtaining advice or 
recommendations on issues or policy which are within the scope of his or 
her responsibilities.


41 CFR 101-6. 1003 (emphasis added).


    In turn, ``utilized'' is defined in pertinent part as a


group * * * which * * * agency official(s) adopts, such as through 
institutional arrangements, as a preferred source from which

[[Page 785]]

to obtain advice or recommendations on a specific issue or policy within 
the scope of his or her responsibilities in the same manner as that 
individual would obtain advice or recommendations from an established 
advisory committee.


41 CFR 101-6.1003 (emphasis added).


    The GSA regulation further provides that the Act does not apply to

    (g) Any meeting initiated by the President or one or more Federal 
official [sic] for the purpose of obtaining advice or recommendations 
from one individual;

    (h) Except with respect to established advisory committees:

    (1) Any meeting with a group initiated by the President or one or 
more Federal official(s) for the purpose of exchanging facts or 
information; or

    (2) Any meeting initiated by a group with the President or one or 
more Federal official(s) for the purpose of expressing the group's view, 
provided that the President or Federal official(s) does not use the 
group as a preferred source of advice or recommendations;

 * * * * *

    (j) Any meeting initiated by a Federal official(s) with more than 
one individual for the purpose of obtaining the advice of individual 
attendees and not for the purpose of utilizing the group to obtain 
consensus advice or recommendations.


41 CFR 101-6.1004 (g), (h), and (j).


    This final rule provides that the agency shall provide an 
opportunity for interested persons, including handicapped persons or 
organizations representing handicapped persons, to participate in the 
self-evaluation process and development of transition plans by 
submitting comments (both oral and written).


Section 39.111 Notice


    The Department received negative comments on its omission of a 
paragraph routinely used in section 504 regulations for federally 
assisted programs requiring recipients to inform interested persons of 
their rights under section 504. In the Department's Supplemental Notice, 
we requested comments on inclusion of specific regulatory language. 
Fifty-four positive comments were received. As a result, the Department 
has incorporated that new provision on notice into the final rule. It 
appears as Sec. 39.111.

    Section 39.111 requires the agency to disseminate sufficient 
information to employees, applicants, participants, beneficiaries, and 
other interested persons to apprise them of rights and protections 
afforded by section 504 of this regulation. Methods of providing this 
information include, for example, the publication of information in 
handbooks, manuals, and pamphlets that are distributed to the public to 
describe the agency's programs and activities; the display of 
informative posters in service centers and other public places; or the 
broadcast of information by television or radio.

    Section 39.111 is, in fact, a broader and more detailed version of 
the proposed rule's requirement (at Sec. 39.160(d)) that the agency 
provide handicapped persons with information concerning their rights. 
Because Sec. 39.111 encompasses the requirements of proposed Sec. 
39.160(d), that latter paragraph has been deleted as duplicative.


Section 39.130 General prohibitions against discrimination


    Section 39.130 is an adaptation of the corresponding section of the 
section 504 coordination regulation for programs or activities receiving 
Federal financial assistance (28 CFR 41.51). This regulatory provision 
attracted relatively few public comments and has not been changed from 
the proposed rule.

    Paragraph (a) restates the nondiscrimination mandate of section 504. 
The remaining paragraphs in Sec. 39.130 establish the general 
principles for analyzing whether any particular action of the agency 
violates this mandate. These principles serve as the analytical 
foundation for the remaining sections of the regulation. If the agency 
violates a provision in any of the subsequent sections, it will also 
violate one of the general prohibitions found in Sec. 39.130. When 
there is no applicable subsequent provision, the general prohibitions 
stated in this section apply.

    Paragraph (b) prohibits overt denials of equal treatment of 
handicapped persons. The agency may not refuse to provide a handicapped 
person with an equal opportunity to participate in or benefit from its 
program simply because the person is handicapped. Such blatantly 
exclusionary practices often result from the use of irrebuttable 
presumptions that absolutely exclude certain classes of disabled persons 
(e.g., epileptics, hearing-impaired persons, persons with heart 
ailments) from participation in programs or activities without regard to 
an individual's actual ability to participate. Use of an irrebuttable 
presumption is permissible only when in all cases a physical condition 
by its very nature would prevent an individual from meeting the 
essential eligiblity requirements for participation in the activity in 
question. It would be permissible, therefore, to exclude without an 
individual evaluation all persons who are blind in both eyes from 
eligibility for a license to operate a commercial vehicle in interstate 
commerce; but it may not be permissible to disqualify automatically all 
those who are blind in just one eye.

[[Page 786]]


    In addition, section 504 prohibits more than just the most obvious 
denials of equal treatment. It is not enough to admit persons in 
wheelchairs to a program if the facilities in which the program is 
conducted are inaccessible. Subparagraph (b)(1)(iii), therefore, 
requires that the opportunity to participate or benefit afforded to a 
handicapped person be as effective as that afforded to others. The later 
sections on program accessibility (Sec. Sec. 39.149-39.151) and 
communications (Sec. 39.160) are specific applications of this 
principle.

    Despite the mandate of paragraph (d) that the agency administer its 
programs and activities in the most integrated setting appropriate to 
the needs of qualified handicapped persons, subparagraph (b)(1)(iv), in 
conjunction with paragraph (d), permits the agency to develop separate 
or different aids, benefits, or services when necessary to provide 
handicapped persons with an equal opportunity to participate in or 
benefit from the agency's programs or activities. Subparagraph 
(b)(1)(iv) requires that different or separate aids, benefits, or 
services be provided only when necessary to ensure that the aids, 
benefits, or services are as effective as those provided to others. Even 
when separate or different aids, benefits, or services would be more 
effective, subparagraph (b)(2) provides that a qualified handicapped 
person still has the right to choose to participate in the program that 
is not designed to accommodate handicapped persons.

    Subparagraph (b)(1)(v) prohibits the agency from denying a qualified 
handicapped person the opportunity to participate as a member of a 
planning or advisory board.

    Subparagraph (b)(1)(vi) prohibits the agency from limiting a 
qualified handicapped person in the enjoyment of any right, privilege, 
advantage, or opportunity enjoyed by others receiving any aid, benefit, 
or service.

    Subparagraph (b)(3) prohibits the agency from utilizing criteria or 
methods of administration that deny handicapped persons access to the 
agency's programs or activities. The phrase ``criteria or methods of 
administration'' refers to official written agency policies and to the 
actual practices of the agency. This subparagraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny handicapped 
persons an effective opportunity to participate.

    Subparagraph (b)(4) specifically applies the prohibition enunciated 
in Sec. 39.130(b)(3) to the process of selecting sites for construction 
of new facilities or existing facilities to be used by the agency. 
Subparagraph (b)(4) does not apply to construction of additional 
buildings at an existing site.

    Subparagraph (b)(5) prohibits the agency, in the selection of 
procurement contractors, from using criteria that subject qualified 
handicapped persons to discrimination on the basis of handicap.

    Subparagraph (b)(6) prohibits the agency from discriminating against 
qualified handicapped persons on the basis of handicap in the granting 
of licenses or certification. A person is a ``qualified handicapped 
person'' with respect to licensing or certification, if he or she can 
meet the essential eligibility requirements for receiving the license or 
certification (see Sec. 39.103).

    In addition, the agency may not establish requirements for the 
programs or activities of licensees or certified entities that subject 
qualified handicapped persons to discrimination on the basis of 
handicap. For example, the agency must comply with this requirement when 
establishing safety standards for the operations of licensees. In that 
case the agency must ensure that standards that it promulgates do not 
discriminate in an impermissible manner against the employment of 
qualified handicapped persons.

    Subparagraph (b)(6) does not extend section 504 directly to the 
programs or activities of licensees or certified entities themselves. 
The programs or activities of Federal licensees or certified entities 
are not themselves federally conducted programs or activities nor are 
they programs or activities receiving Federal financial assistance 
merely by virtue of the Federal license or certificate. However, as 
noted above, section 504 may affect the content of the rules established 
by the agency for the operation of the program or activity of the 
licensee or certified entity, and thereby indirectly affect limited 
aspects of its operations.

    Twenty-three commenters argued that the regulation should extend to 
the activities of licensees or certified entities, citing Community 
Television of Southern California v. Gottfried, 103 S. Ct. 885 (1983). 
In that case, the Court held that section 504 as applied to federally 
assisted programs did not require the Federal Communications Commission 
to prohibit discrimination on the basis of handicap by licensed 
broadcasters, but that ``the policies underlying the Communications 
Act'' might authorize the Commission to issue a regulation governing 
such discrimination. The Court did not, however, indicate that section 
504 itself could serve as the source of such regulatory authority.

    The Court has held that ``the use of the words `public interest' in 
a regulatory statute is not a broad license to promote the general 
public welfare. Rather the words take meaning from the purposes of the 
regulatory legislation.'' National Association for the Advancement of 
Colored People v. Federal Power Commission, 425 U.S. 662, 669 (1976). In 
our view, section 504 does not of itself extend an agency's regulatory 
authority to the activities of licensees or certified entities.

[[Page 787]]

Where an agency has existing regulatory authority that is broad enough 
to enable it to establish a nondiscrimination requirement for its 
licensees or certified entities, section 504 may support the exercise of 
that authority. Because the Department of Justice has no such underlying 
authority, it cannot prohibit discrimination by licensees.

    Twenty-two commenters objected to the omission of a paragraph from 
the regulations for federally assisted programs that prohibits a 
recipient from providing significant assistance to an organization that 
discriminates. To the extent that assistance from the agency would 
provide significant support to an organization, it would constitute 
Federal financial assistance and the organization, as a recipient of 
such assistance, would be covered by the agency's section 504 regulation 
for federally assisted programs. The regulatory ``significant 
assistance'' provision, however, would be inappropriate in a regulation 
applying only to federally conducted programs or activities.

    Paragraph (c) provides that programs conducted pursuant to Federal 
statute or Executive order that are designed to benefit only handicapped 
persons or a given class of handicapped persons may be limited to those 
handicapped persons.

    Paragraph (d), discussed above, provides that the agency must 
administer programs and activities in the most integrated setting 
appropriate to the needs of qualified handicapped persons.


Section 39.140 Employment


    Section 39.140 prohibits discrimination on the basis of handicap in 
employment by the agency. Comments on proposed Sec. 39.140 identified 
two types of problems. First, several commenters felt that the rule's 
treatment of employment was not sufficiently comprehensive. They pointed 
out that the rule does not enumerate the employment practices covered 
(e.g., hiring, promotion, assignment); it does not say what must be done 
to avoid or correct possible discrimination (e.g., reasonable 
accommodation, review of preemployment tests, limitations on 
preemployment inquiries and the use of medical examinations); nor does 
it define a ``qualified handicapped person'' with respect to employment.

    Second, one commenter objected to the rule's adoption of ``the 
definitions, requirements and procedures of section 501 of the 
Rehabilitation Act'' as established in rules of the Equal Employment 
Opportunity Commission (EEOC) at 29 CFR part 1613. This commenter argued 
that EEOC's rules on physical examinations were too restrictive and 
claimed that the proposed rule did not limit employment coverage to the 
program conducted by the Federal government in a manner similar to the 
``program or activity'' limitation on coverage of programs receiving 
Federal financial assistance. Finally, the commenter asserted that 
reliance on section 501 was misplaced because that section of the 
Rehabilitation Act requires affirmative action whereas section 504, 
which the rule implements, contains only a nondiscrimination 
requirement.

    The original notice of proposed rulemaking explained that the 
regulation is in accord with Prewitt v. United States Postal Service, 
662 F.2d 292 (5th Cir. 1981), which held that Congress intended section 
504 to cover the employment practices of Executive agencies. In Prewitt, 
the court also held that, in order to give effect to sections 501 and 
504, both of which cover Federal employment, the administrative 
procedures of section 501 must be followed. Accordingly, the proposed 
rule adopted the definitions, requirements and procedures of section 501 
as established in EEOC's rules.

    The final rule has not been changed. The Department intends to avoid 
duplicative, competing or conflicting standards under the Rehabilitation 
Act with respect to Federal employment. While the rule could define 
terms with respect to employment and enumerate what practices are 
covered and what requirements apply, reference to the Government-wide 
rules of the Equal Employment Opportunity Commission is sufficient and 
avoids duplication. The class of Federal employees and applicants for 
employment covered by section 504 is identical to or subsumed within 
that covered by section 501. To apply different or lesser standards to 
persons alleging violations of section 504 could lead unnecessarily to 
confusion in the enforcement of the Rehabilitation Act with respect to 
Federal employment.


Section 39.149 Program accessibility: Discrimination prohibited


    The proposed regulation did not contain a general statement of the 
program accessibility requirement similar to that appearing in the 
section 504 coordination regulation for federally assisted programs (28 
CFR 41.56). The decision not to include this language in the proposed 
regulation created the misperception that a change in substance was 
intended. In order to remedy this misunderstanding, the Supplemental 
Notice requested comments on explicitly including it. Sixty-two 
commenters favored inclusion of the specific regulatory language that 
was published in the Supplemental Notice. Consequently, the final rule 
has been revised to include the language of the Supplemental Notice. The 
language appears at Sec. 39.149.


Section 39.150 Program accessibility: Existing facilities


[[Page 788]]



    This regulation adopts the program accessibility concept found in 
the existing section 504 coordination regulation for programs or 
activities receiving Federal financial assistance (28 CFR 41.57), with 
certain modifications. Thus, Sec. 39.150 requires that the agency's 
program or activity, when viewed in its entirety, be readily accessible 
to and usable by handicapped persons. The regulation also makes clear 
that the agency is not required to make each of its existing facilities 
accessible (Sec. 39.150(a)(1)). However, Sec. 39.150, unlike 28 CFR 
41.56-41.57, places explicit limits on the agency's obligation to ensure 
program accessibility (Sec. 39.150(a)(2)). This provision provoked 959 
comments, the largest number received on any single issue. Most 
commenters sought the deletion of the ``undue financial and 
administrative burdens'' language from the regulation. On the basis of 
preliminary comments on this paragraph, the Department published 
clarifying language in its Supplemental Notice. The final version 
includes that clarification.

    The ``undue financial and administrative burdens'' language (found 
at Sec. Sec. 39.150(a)(2) and 39.160(d)) is based on the Supreme 
Court's Davis holding that section 504 does not require program 
modifications that result in a fundamental alteration in the nature of a 
program, and on the Court's statement that section 504 does not require 
modifications that would result in ``undue financial and administrative 
burdens.'' 442 U.S. at 412. Since Davis, circuit courts have applied 
this limitation on a showing that only one of the two ``undue burdens'' 
would be created as a result of the modification sought to be imposed 
under section 504. See, e.g., Dopico v. Goldschmidt, supra; American 
Public Transit Association v. Lewis, supra (APTA). In APTA the United 
States Court of Appeals for the District of Columbia Circuit applied the 
Davis language and invalidated the section 504 regulations of the 
Department of Transportation (DOT). The court in APTA noted ``that at 
some point a transit system's refusal to take modest, affirmative steps 
to accommodate handicapped persons might well violate section 504. But 
DOT's rules do not mandate only modest expenditures. The regulations 
require extensive modifications of existing systems and impose extremely 
heavy financial burdens on local transit authorities.'' 655 F.2d at 
1278.

    The inclusion of subparagraph (a)(2) is an effort to conform the 
agency's regulation implementing section 504 to the Supreme Court's 
interpretation of the statute in Davis as well as to the decisions of 
lower courts following the Davis opinion. This subparagraph 
acknowledges, in light of recent case law, that, in some situations, 
certain accommodations for a handicapped person may so alter an agency's 
program or activity, or entail such extensive costs and administrative 
burdens that the refusal to undertake the accommodations is not 
discriminatory. The failure to include such a provision could lead to 
judicial invalidation of the regulation or reversal of a particular 
enforcement action taken pursuant to the regulation.

    Many commenters argued that the Supreme Court's decision in Davis 
did not require inclusion of an undue burdens defense in this 
regulation. These commenters asserted that the holding in Davis was that 
the plaintiff was not a qualified handicapped person and that the 
subsequent reference to ``undue financial and administrative burdens'' 
was mere dicta. These commenters overlook the interpretations of Davis 
provided by the Federal circuit court cases mentioned above. The APTA 
and Dopico decisions make it clear that financial burdens can limit the 
obligation to comply with section 504. See also New Mexico Association 
for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir. 1982).

    Many commenters argued that inclusion of the undue burdens defense 
was inconsistent with the position taken by Vice President Bush in his 
letter of March 21, 1983, in which he announced the Administration's 
decision not to revise the coordination regulation for federally 
assisted programs. The decision to include the undue burdens defense 
represents no contradiction with the position taken by Vice President 
Bush on the guidelines for federally assisted programs. In his letter 
the Vice President stated that ``extensive change of the existing 504 
coordination regulations was not required, and that with respect to 
those few areas where clarification might be desirable, the courts are 
currently providing useful guidance and can be expected to continue to 
do so in the future.'' One element of that ``useful guidance'' obviously 
comes from interpretations of the Davis decision by the lower Federal 
courts.

    The Department has carefully considered the comments on the process 
that the Department should follow in determining whether a program 
modification would result in undue financial and administrative burdens. 
The Department intends to be guided by six principles in its application 
of the ``fundamental alteration'' and ``undue financial and 
administrative burdens'' language.

    First, because of the extensive resources and capabilities that 
could properly be drawn upon for section 504 purposes by a large Federal 
agency like the Department of Justice, the Department explicitly 
acknowledges that, in most cases, making a Department program accessible 
will likely not result in undue burdens. Second, the burden of proving 
that the accommodation request will result in a fundamental alteration 
or undue burdens has been placed squarely on the Department of Justice, 
not on the handicapped

[[Page 789]]

person. Third, in determining whether financial and administrative 
burdens are undue, the Department is to consider all Department 
resources available for use in the funding and operation of the 
conducted program. Fourth, the ``fundamental alteration''/``undue 
burdens'' decision is to be made by the Attorney General or his designee 
and must be accompanied by a written statement of reasons for reaching 
such a conclusion. Fifth, if a disabled person disagrees with the 
Attorney General's finding, he or she can file a complaint under the 
complaint procedures established by the final regulation. A significant 
feature of this complaint adjudication procedure is the availability of 
a hearing before an independent administrative law judge under the due 
process protections of the Administrative Procedure Act. Sixth and 
finally, even if there is a determination that making a program 
accessible will fundamentally alter the nature of the program, or will 
result in undue financial and administrative burdens, the Department 
must still take action, short of that outer limit, that will open 
participation in the Department's program to disabled persons to the 
fullest extent possible.

    One hundred and eighty-one commenters on the Supplemental Notice 
objected to the provision that the ``undue burdens'' decision would be 
based on consideration of ``all agency resources available for use in 
the funding and operation of the conducted program,'' arguing that it 
should be based on the resources of the agency as a whole. Some argued 
that this formulation was required because all agency resources come 
from taxpayer monies and should not be used to support discrimination.

    The Department's entire budget is an inappropriate touchstone for 
making determinations as to undue financial and administrative burdens. 
Many parts of the Department's budget are earmarked for specific 
purposes and are simply not available for use in making the Department's 
programs accessible to disabled persons. For example, funds for the 
operation of the Bureau of Prisons are unavailable for defraying the 
cost of a sign language interpreter at a deportation hearing conducted 
by the Immigration and Naturalization Service. There are extensive 
resources available to the Department and it is expected that the 
Department will, only on very rare occasions, be faced with ``undue 
burdens'' in meeting the program accessibility or communications 
sections of the regulation.

    One commenter said that the term ``undue hardship'' used in 
regulations for federally assisted programs is more specific and less 
discriminatory than the term ``undue burdens.'' The term ``undue 
hardship'' is a term of art used in connection with employment. The term 
``undue burdens'' is taken from the Supreme Court's opinion in Davis and 
is appropriately included in this regulation.

    Some commenters argued that section 504 creates an absolute right to 
access, and that cost cannot limit this right, although it may be a 
factor in determining timeframes for compliance. Section 504 does not 
create an absolute right to access. The Supreme Court stated in Davis 
that recipients need not undertake modifications to their programs to 
meet the requirements of section 504 that would result in ``undue 
financial and administrative burdens.'' This understanding of section 
504 and its implementing regulations for federally assisted programs is 
shared by the lower Federal courts, which have routinely applied the 
``undue burdens'' limitation to accessibility issues. Congress suggested 
no different interpretation of section 504 when applying it to federally 
conducted programs. Spreading the cost of compliance over a period of 
time is, however, one way of avoiding undue financial and administrative 
burdens, and the Department will consider that as an option whenever it 
considers asserting that defense.

    Paragraph (b) sets forth a number of means by which program 
accessibility may be achieved, including redesign of equipment, 
reassignment of services to accessible buildings, and provision of 
aides. In choosing among methods, the agency shall give priority 
consideration to those that will be consistent with provision of 
services in the most integrated setting appropriate to the needs of 
handicapped persons. Structural changes in existing facilities are 
required only when there is no other feasible way to make the agency's 
program accessible. The agency may comply with the program accessibility 
requirement by delivering services at alternate accessible sites or 
making home visits as appropriate.

    Paragraphs (c) and (d) establish time periods for complying with the 
program accessibility requirement. As currently required for federally 
assisted programs by 28 CFR 41.57(b), the agency must make any necessary 
structural changes in facilities as soon as practicable, but in no event 
later than three years after the effective date of this regulation. 
Where structural modifications are required, a transition plan shall be 
developed within six months of the effective date of this regulation. 
Aside from structural changes, all other necessary steps to achieve 
compliance shall be taken within sixty days.


Section 39.151 Program accessibility: New construction and alterations


    Overlapping coverage exists with respect to new construction under 
section 504, section 502 of the Rehabilitation Act of 1973, as

[[Page 790]]

amended (29 U.S.C 792), and the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157). Section 39.151 provides that those 
buildings that are constructed or altered by, on behalf of, or for the 
use of the agency shall be designed, constructed, or altered to be 
readily accessible to and usable by handicapped persons in accordance 
with 41 CFR 101-19.600 to 101-19.607. This standard was promulgated 
pursuant to the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157). It is appropriate to adopt the existing Architectural 
Barriers Act standard for section 504 compliance because new and altered 
buildings subject to this regulation are also subject to the 
Architectural Barriers Act and because adoption of the standard will 
avoid duplicative and possibly inconsistent standards.

    Existing buildings leased by the agency after the effective date of 
this regulation are not required to meet the new construction standard. 
They are subject, however, to the requirements of Sec. 39.150.

    A commenter has recommended that the regulation should require that 
buildings leased after the effective date of the regulation should meet 
the new construction standards of Sec. 39.151, rather than the program 
accessibility standard for existing facilities in Sec. 39.150. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Unlike 
the construction of new buildings where architectural barriers can be 
avoided at little or no cost, the application of new construction 
standards to an existing building being leased raises the same prospect 
of retrofitting buildings as the use of an existing Federal facility, 
and the Department believes the same program accessibility standard 
should apply to both owned and leased existing buildings.


Section 39.160 Communications


    Section 39.160 requires the agency to take appropriate steps to 
ensure effective communication with personnel of other Federal entities, 
applicants, participants, and members of the public. These steps include 
procedures for determining when auxiliary aids are necessary under Sec. 
39.160(a)(1) to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, the agency's program or 
activity. They also include an opportunity for handicapped persons to 
request the auxiliary aids of their choice. This expressed choice shall 
be given primary consideration by the agency (Sec. 39.160(a)(1)(i)). 
The agency shall honor the choice unless it can demonstrate that another 
effective means of communication exists or that use of the means chosen 
would not be required under Sec. 39.160(d). That paragraph limits the 
obligation of the agency to ensure effective communication in accordance 
with Davis and the circuit court opinions interpreting it (see supra 
preamble Sec. 39.150(a)(2)). Unless not required by Sec. 39.160(d), 
the agency shall provide auxiliary aids at no cost to the handicapped 
person.

    In some circumstances, a notepad and written materials may be 
sufficient to permit effective communication with a hearing-impaired 
person. In many circumstances, however, they may not be, particularly 
when the information being communicated is complex or exchanged for a 
lengthy period of time (e.g., a meeting) or where the hearing-impaired 
applicant or participant is not skilled in spoken or written language. 
In these cases, a sign language interpreter may be appropriate. For 
vision-impaired persons, effective communication might be achieved by 
several means, including readers and audio recordings. In general, the 
agency intends to inform the public of (1) the communications services 
it offers to afford handicapped persons an equal opportunity to 
participate in or benefit from its programs or activities, (2) the 
opportunity to request a particular mode of communication, and (3) the 
agency's preferences regarding auxiliary aids when several different 
modes are effective.

    The agency shall ensure effective communication with vision-impaired 
and hearing-impaired persons involved in hearings conducted by the 
agency, e.g., INS deportation proceedings. Auxiliary aids in these 
proceedings must be afforded where they are necessary to ensure 
effective communication at the proceedings. When sign language 
interpreters are necessary, the agency may require that it be given 
reasonable notice prior to the proceeding of the need for an 
interpreter. Moreover, the agency need not provide individually 
prescribed devices, readers for personal use or study, or other devices 
of a personal nature (Sec. 39.160(a)(1)(ii)). For example, the agency 
need not provide eye glasses or hearing aids to applicants or 
participants in its programs. Similarly, the regulation does not require 
the agency to provide wheelchairs to persons with mobility impairments.

    Some commenters suggested that the Department's language in Sec. 
39.160(a)(1)(ii) that states that the agency need not provide 
individually prescribed devices or readers for personal use or study be 
modified to state that such devices are not required for ``nonprogram 
material.'' This suggestion has not been adopted because it is less 
clear than the existing formulation, which is intended to distinguish 
between communications that are necessary to obtain the benefits of the 
federal programs and those that are not and which parallels the 
requirements of the Federal government's section 504 regulations for 
federally assisted programs. For example, a

[[Page 791]]

federally operated library would have to ensure effective communication 
between its librarian and a patron, but not between the patron and a 
friend who had accompanied him or her to the library.

    Several comments suggested that the definition of auxiliary aids 
should include attendant services that may be needed to aid disabled 
persons to travel to meetings. Other comments recommended that in some 
cases attendant services may be an appropriate auxiliary aid to achieve 
program accessiblity.

    The Department has not adopted the approach recommended by these 
comments. To the extent that the services of an attendant are not 
directly related to a federally conducted program or activity, it would 
be inappropriate to require them at Federal expense. For example, the 
services of a sign language interpreter make a workshop as available to 
any deaf participant as it is to other participants. The need for 
services of interpreters arises directly out of the presentation of 
information in a form that can be understood by hearing persons. 
However, the Department views the services of an attendant for a 
disabled person as generally personal in nature and not directly related 
to the federally conducted program.

    A different conclusion, however, might be reached for Federal 
employees or other persons traveling for the agency. Where a disabled 
person who is unable to travel without an attendant is required to 
perform official travel, the travel expenses of an attendant, including 
per diem and transportation expenses, may be paid by the Department. See 
5 U.S.C. 3102(d) (1982).

    Paragraph (b) requires the agency to provide information to 
handicapped persons concerning accessible services, activities, and 
facilities. Paragraph (c) requires the agency to provide signage at 
inaccessible facilities that directs users to locations with information 
about accessible facilities.


Section 39.170 Compliance procedures


    Section 39.170 establishes a detailed complaint processing and 
review procedure for resolving allegations of discrimination in 
violation of section 504 in the Department of Justice's programs and 
activities. The 1978 amendments to section 504 failed to provide a 
specific statutory remedy for violations of section 504 in federally 
conducted programs. The amendment's legislative history suggesting 
parallelism between section 504 for federally conducted and federally 
assisted programs is unhelpful in this area because the fund termination 
mechanism used in section 504 federally assisted regulations depends on 
the legal relationship between a Federal funding agency and the 
recipients to which the Federal funding is extended. The Department has 
decided that the most effective and appropriate manner in which to 
enforce section 504 in the federally conducted area is through an 
equitable complaint resolution process. Section 39.170 establishes this 
process.

    The complaint process in the final rule is substantially the same as 
the one that the Department proposed. The Department received 57 
comments on this section. These comments did not question the use of a 
complaint-responsive enforcement scheme as appropriate for section 504 
for federally conducted programs. The Department continues to view its 
specific proposal as satisfactory.

    Paragraph (a) specifies that paragraphs (c) through (l) of this 
section establish the procedures for processing complaints other than 
employment complaints. Paragraph (b) provides that the agency will 
process employment complaints according to procedures established in 
existing regulations of the EEOC (29 CFR part 1613) pursuant to section 
501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).

    Paragraph (c) vests in the Responsible Official the responsibility 
for the overall management of the 504 compliance program. ``Responsible 
Official'' or ``Official,'' as defined in Sec. 39.103, refers to the 
Director of Equal Employment Opportunity, who is designated as the 
official responsible for coordinating implementation of compliance 
procedures set forth in Sec. 39.170. The definition of ``Official'' 
includes other Department Officials to whom authority has been delegated 
by the Official. The Assistant Attorney General for Administration has 
been designated as the Director of Equal Employment Opportunity for the 
Department. See 28 CFR 42.2(a).

    Although one person has responsibility both for administering the 
Equal Employment Opportunity Program for the Department and for 
coordinating implementation of the compliance procedures under this 
part, the procedures for carrying out these two responsibilities are 
different. The Official would follow the procedures for enforcing equal 
employment opportunity, as set forth in 29 CFR part 1613, only for 
complaints alleging employment discrimination (see Sec. 39.170(b)). 
Other complaints would be processed under the procedures in Sec. 
39.170. Authority for processing complaints of employment discrimination 
has been delegated to Equal Employment Opportunity Officers in some 
Department components, and it is expected that authority for enforcing 
this part will be similarly delegated.

    Subparagraphs (d) (1) and (3) provide that any person who believes 
that he or she has been discriminated against may file a complaint 
within 180 days from the date of the alleged discrimination. The 
Official may extend the time limit when the complainant shows good 
cause. Good cause could be found

[[Page 792]]

if, for example, (1) the complainant mistakenly filed with the wrong 
agency and was not informed of the mistake within the 180 days; or (2) 
the complainant could not reasonably be expected to know of the act or 
event said to be discriminatory.

    Several commenters argued that the proposed rule unnecessarily 
restricted the right to file a complaint by not allowing an individual 
victim of discrimination to authorize a representative to file on his or 
her behalf. The final rule permits filing by the authorized 
representative of an individual victim, or, in the case of class 
discrimination, of a member of the class, as well as by an individual 
victim or class member. The final rule has been revised to make it clear 
that complaints alleging that a specific class of persons has been 
discriminated against may only be filed by a member of that specific 
class or by a representative authorized to file the complaint by a 
member of that class (Sec. 39.170(d)(1)).

    The Federal Bureau of Prisons has established an Administrative 
Remedy Procedure for handling grievances of inmates of Federal penal 
institutions (28 CFR part 542). This procedure allows an inmate to file 
a formal written complaint with the Warden of the Institution or with 
the Regional Director. While these remedies are not a substitute for the 
right to an independent investigation by a civil rights office and 
appeal to the Complaint Adjudication Officer, the final rule requires 
inmates to exhaust these procedural remedies before filing a complaint 
with the Official. The time period for filing a complaint with the 
Official would be extended by the time spent exhausting these remedies. 
This requirement applies only to inmates and does not extend to visitors 
and employees.

    The Department received several comments on how prisoners' 
complaints should be handled. Some of them suggested that both the 
discrimination procedure and the prison grievance procedures should be 
invoked simultaneously. The Department believes that this proposal would 
require the unnecessary duplication of efforts without materially 
enhancing results. The Bureau of Prisons reported that thousands of 
inmate complaints were filed in 1983 alone and that several court 
decisions have held that the inmate administrative remedy procedure must 
be exhausted before suit can be filed. Although the volume of complaints 
by prison inmates might be burdensome, it is not possible now to 
forecast the number that will be filed. The Department believes, 
however, that handicapped prisoners must be afforded the right to have 
their complaints investigated by an office that specializes in 
discrimination complaints, including section 504 complaints, as well as 
the right to appeal to the Complaint Adjudication Officer. It is 
expected that the requirement that inmates first exhaust prison 
administrative remedies will be effective in resolving most meritorious 
complaints. It may be necessary, of course, for the Department to 
provide additional resources to handle complaints filed under the new 
regulation.

    Subparagraph (d)(2) requires that the name and identity of a 
complainant be held in confidence unless he or she waives that right in 
writing and except to the extent necessary for compliance purposes.

    Complaints may be mailed or delivered to the Attorney General, the 
Responsible Official, or other agency officials. Complaints received by 
any agency official other than the Responsible Official must be 
forwarded immediately to the Responsible Official (subparagraph (d)(4)).

    Paragraph (e) requires the agency to send to the Architectural and 
Transportation Barriers Compliance Board a copy of any complaint 
alleging that a building or facility subject to the Architectural 
Barriers Act or section 502 was designed, constructed, or altered in a 
manner that does not provide ready access to and use by handicapped 
persons.

    The Official is required to accept all complete complaints over 
which the agency has jurisdiction (Sec. 39.170(f)(1)). If the Official 
determines that the agency does not have jurisdiction over a complaint, 
the Official shall promptly notify the complainant and make reasonable 
efforts to refer the complaint to the appropriate entity of the Federal 
government (Sec. 39.170(f)(3)).

    If a complaint is not complete when it is filed, the Official must 
notify the complainant within 30 days that additional information is 
needed. The complainant must furnish the necessary information within 30 
days of receipt of the notice, or the complaint will be dismissed 
without prejudice. Filing an incomplete complaint within 180 days from 
the date of the alleged discrimination satisfies the requirement of 
subparagraph (d)(3), but the timeframes governing the Official's other 
obligations to process the complaint (see, e.g., Sec. 39.170(g)(1), 
Sec. 39.170(h)) do not begin to operate until the Official receives a 
complete complaint.

    Within 180 days of receipt of the complete complaint, the Official 
is to investigate the complaint, attempt an informal resolution, and, if 
informal resolution is not achieved, issue a letter of findings (Sec. 
39.170(h)). Within the time limit, the Official should make every effort 
to achieve informal resolution whenever possible.

    In response to a suggestion from a commenter, the Department no 
longer refers to the letter of findings as ``preliminary.'' The

[[Page 793]]

word ``preliminary'' has been deleted because, if there is no appeal, 
the determination made in the letter of findings will constitute the 
final agency decision.

    Paragraph (h) requires that the Official's letter be sent to the 
complainant and respondent, and that it contain findings of fact and 
conclusions of law, the relief granted if discrimination is found, and 
notice of the right to appeal. The regulation provides that a party may 
appeal the Official's letter or findings to the Complaint Adjudication 
Officer (CAO). If neither party files an appeal from the letter of 
findings within 30 days after receipt of the letter, the letter will 
constitute the final decision of the agency (Sec. 39.170(i)(4)).

    The Department's final rule provides an opportunity for a hearing 
before an administrative law judge (ALJ). The ALJ would make a 
recommended decision to the CAO, who would make the final agency 
decision. The purpose of the hearing is to provide a forum in which the 
complainant or respondent can have an opportunity to be heard, confront 
witnesses, and present evidence so that an administrative law judge can 
issue a recommended decision that is well-reasoned and justified on the 
basis of the evidence presented.

    The opportunity for a hearing before an ALJ assures more 
impartiality and the appearance of more impartiality than a decision 
made by one agency official concerning other officials of the same 
agency. The Department expects that agency decisions based on a hearing 
record would more likely survive later judicial review.

    Under the regulation, another person or organization would be 
allowed to participate as a third party or amicus curiae if the ALJ 
determines that the petitioner has a legitimate interest in the 
proceedings, that participation will not duly delay the outcome, and 
that petitioner's participation may contribute materially to the 
disposition of the proceedings.

    The Department received comments on the proposed opportunity for a 
hearing before an administrative law judge. Some commenters were 
primarily concerned that by invoking a hearing before the ALJ with the 
procedural safeguards adopted from the Administrative Procedure Act 
(APA) (5 U.S.C. 554-557), the complainant would lose the right to a de 
novo review of the agency's final decision, because the APA allows a 
Federal court only to determine if the agency's final decisions are 
``arbitrary and capricious'' (5 U.S.C. 706(2)(A)). It is beyond our 
jurisdiction to specify that a de novo review is available to complaints 
seeking judicial review of final agency decisions. This issue is for the 
courts to decide. That is also true for the issue of the availability of 
a private right of action, either without invoking our compliance 
procedures or after the issuance of letters of findings.

    Given the inherent conflicts of interest in situations where 
complaints allege discrimination on the part of the Department, it is 
critically important to ensure that a complaint be reviewed in a fair, 
independent process. The availability of a hearing before an independent 
ALJ would provide the appearance as well as the actuality of an 
impartial compliance mechanism. The Department has therefore included 
the provision for a hearing in the final regulation.

    One comment requested the addition of a provision whereby the 
Department would award attorneys fees to complainants. Another comment 
suggested that the Equal Access to Justice Act (5 U.S.C. 504) might 
provide for the award of fees. Nothing contained in title V of the 
Rehabilitation Act provides for the agency award of attorneys fees in 
administrative proceedings other than those involving Federal 
employment. Nor does the EAJA and the Department's implementing 
regulations at 28 CFR part 24 provide for such awards in hearings 
conducted under Sec. 39.170(k). We have therefore included no attorneys 
fee provision in the current regulations.

    Under paragraph (1), the CAO renders a final agency decision after 
appeal without a hearing or after a hearing. The CAO directs appropriate 
remedial action if discrimination is found. The CAO's decision will 
involve reviewing the entire file, including the investigation report, 
letter of findings, and, if a hearing was held, the hearing record and 
recommended decision of the administrative law judge. The decision shall 
be made within 60 days of receipt of the complaint file or the hearing 
record.

    One commenter objected to the requirement in subparagraph (l)(1) 
that the CAO explain specifically a decision to reject or modify the 
ALJ's proposed findings, arguing that it would inappropriately limit the 
CAO's consideration of the issues. We have adopted the suggestion and 
eliminated the requirement.

    In response to recommendations from the Department's CAO and the 
Drug Enforcement Administration's ALJ, some changes have been made in 
the compliance procedures. Among the changes are a new requirement that 
the ALJ provide findings to all parties, not just the CAO, an added 
provision for filing exceptions to an ALJ's recommended decision, a 
delineation of the authorities of the ALJ, and a clarification of the 
responsibility for supervising compliance with the final agency decision 
between the Responsible Official and the CAO.

    The Department also received some comments on the appropriateness of 
providing for an appeal by either the complainant or

[[Page 794]]

respondent. Some commenters objected to allowing a respondent to obtain 
an administrative appeal because it could delay remedying 
discrimination. On the other hand, an impartial adjudicatory mechanism 
would require that opportunity is provided for both sides to appeal. For 
this reason, the Department finds it necessary and appropriate for both 
complainant and respondent to have the right to an administrative 
appeal.



PART 40_STANDARDS FOR INMATE GRIEVANCE PROCEDURES--Table of Contents




       Subpart A_Minimum Standards for Inmate Grievance Procedures

Sec.
40.1 Definitions.
40.2 Adoption of procedures.
40.3 Communication of procedures.
40.4 Accessibility.
40.5 Applicability.
40.6 Remedies.
40.7 Operation and decision.
40.8 Emergency procedure.
40.9 Reprisals.
40.10 Records--nature; confidentiality.

    Subpart B_Procedures for Obtaining Certification of a Grievance 
                                Procedure

40.11 Submissions by applicant.
40.12 Notice of intent to apply for certification.
40.13 Review by the Attorney General.
40.14 Conditional certification.
40.15 Full certification.
40.16 Denial of certification.
40.17 Reapplication after denial of certification.
40.18 Suspension of certification.
40.19 Withdrawal of certification.
40.20 Contemplated change in certified procedure.
40.21 Notification of court.
40.22 Significance of certification.

    Authority: 42 U.S.C. 1997e.

    Source: Order No. 957-81, 46 FR 48186, Oct. 1, 1981, unless 
otherwise noted.



       Subpart A_Minimum Standards for Inmate Grievance Procedures



Sec. 40.1  Definitions.

    For the purposes of this part--
    (a) Act means the Civil Rights of Institutionalized Persons Act, 
Public Law 96-247, 94 Stat. 349 (42 U.S.C. 1997).
    (b) Applicant means a state or political subdivision of a state that 
submits to the Attorney General a request for certification of a 
grievance procedure.
    (c) Attorney General means the Attorney General of the United States 
or the Attorney General's designees.
    (d) Grievance means a written complaint by an inmate on the inmate's 
own behalf regarding a policy applicable within an institution, a 
condition in an institution, an action involving an inmate of an 
institution, or an incident occurring within an institution. The term 
``grievance'' does not include a complaint relating to a parole 
decision.
    (e) Inmate means an individual confined in an institution for 
adults, who has been convicted of a crime.
    (f) Institution means a jail, prison, or other correctional 
facility, or pretrial detention facility that houses adult inmates and 
is owned, operated, or managed by or provides services on behalf of a 
State or political subdivision of a State.
    (g) State means a State of the United States, the District of 
Columbia, the commonwealth of Puerto Rico, or any of the territories and 
possessions of the United States.
    (h) Substantial compliance means that there is no omission of any 
essential part from compliance, that any omission consists only of an 
unimportant defect or omission, and that there has been a firm effort to 
comply fully with the standards.



Sec. 40.2  Adoption of procedures.

    Each applicant seeking certification of its grievance procedure for 
purposes of the Act shall adopt a written grievance procedure. Inmates 
and employees shall be afforded an advisory role in the formulation and 
implementation of a grievance procedure adopted after the effective date 
of these regulations, and shall be afforded an advisory role in 
reviewing the compliance with the standards set forth herein of a 
grievance procedure adopted prior to the effective date of these 
regulations.



Sec. 40.3  Communication of procedures.

    The written grievance procedure shall be readily available to all 
employees and inmates of the institution. Additionally, each inmate and 
employee shall, upon arrival at the institution, receive written 
notification and an oral explanation of the procedure,

[[Page 795]]

including the opportunity to have questions regarding the procedure 
answered orally. The written procedure shall be available in any 
language spoken by a significant portion of the institution's 
population, and appropriate provisions shall be made for those not 
speaking those languages, as well as for the impaired and the 
handicapped.



Sec. 40.4  Accessibility.

    Each inmate shall be entitled to invoke the grievance procedure 
regardless of any disciplinary, classification, or other administrative 
or legislative decision to which the inmate may be subject. The 
institution shall ensure that the procedure is accessible to impaired 
and handicapped inmates.



Sec. 40.5  Applicability.

    The grievance procedure shall be applicable to a broad range of 
complaints and shall state specifically the types of complaints covered 
and excluded. At a minimum, the grievance procedure shall permit 
complaints by inmates regarding policies and conditions within the 
jurisdiction of the institution or the correctional agency that affect 
them personally, as well as actions by employees and inmates, and 
incidents occurring within the institution that affect them personally. 
The grievance procedure shall not be used as a disciplinary procedure.



Sec. 40.6  Remedies.

    The grievance procedure shall afford a successful grievant a 
meaningful remedy. Although available remedies may vary among 
institutions, a reasonable range of meaningful remedies in each 
institution is necessary.



Sec. 40.7  Operation and decision.

    (a) Initiation. The institution may require an inmate to attempt 
informal resolution before the inmate files a grievance under this 
procedure. The procedure for initiating a grievance shall be simple and 
include the use of a standard form. Necessary materials shall be freely 
available to all inmates and assistance shall be readily available for 
inmates who cannot complete the forms themselves. Forms shall not demand 
unnecessary technical compliance with formal structure or detail, but 
shall encourage a simple and straightforward statement of the inmate's 
grievance.
    (b) Inmate and employee participation. The institution shall provide 
for an advisory role for employees and inmates in the operation of the 
grievance system. In-person hearings and committees consisting of either 
inmates or employees or both are not required by this paragraph, but 
they are permitted so long as no inmate participates in the resolution 
of any other inmate's grievance over the objection of the grievant.
    (c) Investigation and consideration. No inmate or employee who 
appears to be involved in the matter shall participate in any capacity 
in the resolution of the grievance.
    (d) Reasoned, written responses. Each grievance shall be answered in 
writing at each level of decision and review. The response shall state 
the reasons for the decision reached and shall include a statement that 
the inmate is entitled to further review, if such is available, and 
shall contain simple directions for obtaining such review.
    (e) Fixed time limits. Responses shall be made within fixed time 
limits at each level of decision. Time limits may vary between 
institutions, but expeditious processing of grievances at each level of 
decision is essential to prevent grievance from becoming moot. Unless 
the grievant has been notified of an extension of time for a response, 
expiration of a time limit at any stage of the process shall entitle the 
grievant to move to the next stage of the process. In all instances 
grievances must be processed from initiation to final disposition within 
180 days, inclusive of any extensions.
    (f) Review. The grievant shall be entitled to review by a person or 
other entity, not under the institution's supervision or control, of the 
disposition of all grievances, including alleged reprisals by an 
employee against an inmate. A request for review shall be allowed 
automatically without interference by

[[Page 796]]

administrators or employees of the institution and such review shall be 
conducted without influence or interference by administrators or 
employees of the institution.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1618-92, 57 FR 38773, Aug. 27, 1992; Order No. 1955-95, 60 FR 13902, 
Mar. 15, 1995]



Sec. 40.8  Emergency procedure.

    The grievance procedure shall contain special provision for 
responding to grievances of an emergency nature. Emergency grievances 
shall be defined, at a minimum, as matters regarding which disposition 
according to the regular time limits would subject the inmate to a 
substantial risk of personal injury, or cause other serious and 
irreparable harm to the inmate. Emergency grievances shall be forwarded 
immediately, without substantive review, to the level at which 
corrective action can be taken. The procedure for resolving emergency 
grievances shall provide for expedited responses at every level of 
decision. The emergency procedure shall also include review by a person 
or entity not under the supervision or control of the institution.



Sec. 40.9  Reprisals.

    The grievance procedure shall prohibit reprisals. ``Reprisal'' means 
any action or threat of action against anyone for the good faith use of 
or good faith participation in the grievance procedure. The written 
procedure shall include assurance that good faith use of or good faith 
participation in the grievance mechanism will not result in formal or 
informal reprisal. An inmate shall be entitled to pursue through the 
grievance procedure a complaint that a reprisal occurred.



Sec. 40.10  Records--nature; confidentiality.

    (a) Nature. Records regarding the filing and disposition of 
grievances shall be collected and maintained systematically by the 
institution. Such records shall be preserved for at least three years 
following final disposition of the grievance. At a minimum, such records 
shall include aggregate information regarding the numbers, types and 
dispositions of grievances, as well as individual records of the date of 
and the reasons for each disposition at each stage of the procedure.
    (b) Confidentiality. Records regarding the participation of an 
individual in the grievance proceedings shall be considered confidential 
and shall be handled under the same procedures used to protect other 
confidential case records. Consistent with ensuring confidentiality, 
staff who are participating in the disposition of a grievance shall have 
access to records essential to the resolution of the grievance.



    Subpart B_Procedures for Obtaining Certification of a Grievance 
                                Procedure



Sec. 40.11  Submissions by applicant.

    (a) Written statement. An application for certification of a 
grievance procedure under the Act shall be submitted to the Office of 
the Attorney General, U.S. Department of Justice, Main Justice Building, 
Washington, DC 20530, and shall include a written statement describing 
the grievance procedure, a brief description of the institution or 
institutions covered by the procedure, and accompanying plans for or 
evidence of implementation in each institution.
    (b) Evidence of compliance with established standards. An applicant 
seeking certification of a grievance procedure as being in substantial 
compliance with the standards promulgated herein should submit evidence 
of compliance with those standards, including the following information:
    (1) Instructional materials. A copy of the instructional materials 
for inmates and employees regarding use of the grievance procedure 
together with a description of the manner in which such materials are 
distributed, a description of the oral explanation of the grievance 
procedure, including the circumstances under which it is delivered, and 
a description of the training, if any, provided to employees and inmates 
in the skills necessary to operate the grievance procedure.
    (2) Form. A copy of the form used by inmates to initiate a grievance 
and to obtain review of the disposition of a grievance.

[[Page 797]]

    (3) Information regarding past compliance. For a grievance procedure 
that has operated for more than one year at the time of the application, 
the applicant shall submit information regarding the number and types of 
grievances filed over the preceding year, the disposition of the 
grievances with sample responses from each level of decision, the 
remedies granted, evidence of compliance with time limits at each level 
of decision, and a description of the role of inmates and employees in 
the formulation, implementation, and operation of the grievance 
procedure.
    (4) Plan for collecting information. For a grievance procedure that 
has operated for less than one year at the time of the application, the 
applicant shall submit a plan for collecting the information described 
in paragraph (b)(3) of this section.
    (5) Assurance of confidentiality. A description of the steps taken 
to ensure the confidentiality of records of individual use of or 
participation in the grievance procedure.
    (6) Evaluation. A description of the plans for periodic evaluation 
of the grievance procedure, including identification of the group, 
individuals or individual who will conduct the evaluation and 
identification of the person or entity not under the control of 
supervision of the institution who will review the evaluation, together 
with two copies of the most recent evaluation, if one has been 
performed.
    (c) Fair and effective procedures. The Attorney General shall also 
certify a grievance procedure under the Act, even if the procedure is 
not in substantial compliance with the standards promulgated herein, if 
the Attorney General determines that the procedure is otherwise fair and 
effective for the consideration and disposition of grievances filed by 
inmates. If a grievance procedure is not in substantial compliance with 
all standards herein, the applicant shall identify the aspects in which 
the procedure is in substantial compliance and those in which it is not, 
describe the other relevant features of the procedure, and explain why 
the procedure is otherwise fair and effective.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.12  Notice of intent to apply for certification.

    The applicant shall post notice of its intent to request 
certification in prominent places in each institution to be covered by 
the procedure and shall provide similar written notice to the U.S. 
District Court(s) having jurisdiction over each institution to be 
covered by the procedure. The notices shall invite comments regarding 
the grievance procedure and direct them to the Attorney General.



Sec. 40.13  Review by the Attorney General.

    The Attorney General shall review and respond to each application as 
promptly as the circumstances, including the need for independent 
investigation and consideration of the comments of agencies, and 
interested groups and persons, permit.



Sec. 40.14  Conditional certification.

    If, in the judgment of the Attorney General, a grievance procedure 
that has been in existence less than one year is at the time of 
application in substantial compliance with the standards promulgated 
herein or is otherwise fair and effective, the Attorney General shall 
grant conditional certification for one year or until the applicant 
satisfies the requirements of Sec. 40.15, whichever period is shorter.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.15  Full certification.

    If, in the judgment of the Attorney General, a grievance procedure 
that has been in existence longer than one year at the time of 
application is in substantial compliance with the standards promulgated 
herein or is otherwise fair and effective, the Attorney General shall 
grant full certification. Such certification shall remain in effect 
unless and until the Attorney General finds reasonable cause to believe 
that the grievance procedure is no longer in substantial compliance with 
the minimum standards or is no longer fair and effective, and so 
notifies the applicant in writing.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]

[[Page 798]]



Sec. 40.16  Denial of certification.

    If the Attorney General finds that the grievance procedure is not in 
substantial compliance with the standards promulgated herein or is no 
longer fair and effective, the Attorney General shall deny certification 
and inform the applicant in writing of the area or areas in which the 
grievance procedure or the application is deemed inadequate.

[Order No. 1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.17  Reapplication after denial of certification.

    An applicant denied certification may resubmit an application for 
certification at any time after the inadequacy in the application or the 
grievance procedure is corrected.



Sec. 40.18  Suspension of certification.

    (a) Reasonable belief of non-compliance. If the Attorney General has 
reasonable grounds to believe that a previously certified grievance 
procedure may no longer be in substantial compliance with the minimum 
standards or may no longer be fair and effective, the Attorney General 
shall suspend certification. The suspension shall continue until such 
time as the deficiency is corrected, in which case certification shall 
be reinstated, or until the Attorney General determines that substantial 
compliance no longer exists or that the procedure is no longer fair and 
effective, in which case, except as provided in paragraph (b) of this 
section, the Attorney General shall withdraw certification pursuant to 
Sec. 40.19 of this part.
    (b) Defect may be readily remedied; good faith effort. If the 
Attorney General determines that a grievance procedure is no longer in 
substantial compliance with the minimum standards or is no longer fair 
and effective, but has reason to believe that the defect may be readily 
corrected and that good faith efforts are underway to correct it, the 
Attorney General may suspend certification until the grievance procedure 
returns to compliance with the minimum standards or is otherwise fair 
and effective.
    (c) Recertification after suspension pursuant to paragraph (a) of 
this section. The Attorney General shall reinstate the certification of 
an applicant whose certification was suspended pursuant to paragraph (a) 
of this section upon a demonstration in writing by the applicant that 
the specific deficiency on which the suspension was based has been 
corrected or that the information that caused the Attorney General to 
suspend certification was erroneous.
    (d) Recertification after suspension pursuant to paragraph (b) of 
this section. The Attorney General shall reinstate the certification of 
an applicant whose certification has been suspended pursuant to 
paragraph (b) of this section upon a demonstration in writing that the 
deficiency on which the suspension was based has been corrected.
    (e) Notification in writing of suspension or reinstatement. The 
Attorney General shall notify an applicant in writing that certification 
has been suspended or reinstated and state the reasons for the action.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.19  Withdrawal of certification.

    (a) Finding of non-compliance. If the Attorney General finds that a 
grievance procedure is no longer in substantial compliance with the 
minimum standards or is no longer otherwise fair and effective, the 
Attorney General shall withdraw certification, unless the Attorney 
General concludes that suspension of certification under Sec. 40.18(b) 
of this part is appropriate.
    (b) Notification in writing of withdrawal of certification. The 
Attorney General shall notify an applicant in writing that certification 
has been withdrawn and state the reasons for the action.
    (c) Recertification after withdrawal. An applicant whose 
certification has been withdrawn and who wishes to receive 
recertification shall submit a new application for certification.

[Order No. 957-81, 46 FR 48186, Oct. 1, 1981, as amended by Order No. 
1955-95, 60 FR 13903, Mar. 15, 1995]



Sec. 40.20  Contemplated change in certified procedure.

    A proposed change in a certified procedure must be submitted to the 
Attorney General thirty days in advance of

[[Page 799]]

its proposed effective date. The Attorney General shall review such 
proposed change and notify the applicant in writing before the effective 
date of the proposed change if such change will result in suspension or 
withdrawal of the certification of the grievance procedure.



Sec. 40.21  Notification of court.

    The Attorney General shall notify in writing the Chief Judges of the 
U.S. Court of Appeals and of the U.S. District Court(s) within whose 
jurisdiction the applicant is located of the certification, suspension 
of certification, withdrawal of certification and recertification of the 
applicant's grievance procedure. The Attorney General shall also notify 
the court of the certification status of any grievance procedure at the 
request of the court or any party in an action by an adult inmate 
pursuant to 42 U.S.C. 1983.



Sec. 40.22  Significance of certification.

    Certification of a grievance procedure by the Attorney General shall 
signify only that on the basis of the information submitted, the 
Attorney General believes the grievance procedure is in substantial 
compliance with the minimum standards or is otherwise fair and 
effective. Certification shall not indicate approval of the use or 
application of the grievance procedure in a particular case.

[Order No. 1955-95, 60 FR 13904, Mar. 15, 1995]



PART 41_IMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION 
ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS--

Table of Contents




                Subpart A_Federal Agency Responsibilities

Sec.
41.1 Purpose.
41.2 Application.
41.3 Definitions.
41.4 Issuance of agency regulations.
41.5 Enforcement.
41.6 Interagency cooperation.
41.7 Coordination with sections 502 and 503.

     Subpart B_Standards for Determining Who Are Handicapped Persons

41.31 Handicapped person.
41.32 Qualified handicapped person.

      Subpart C_Guidelines for Determining Discriminatory Practices

                                 General

41.51 General prohibitions against discrimination.

                               Employment

41.52 General prohibitions against employment discrimination.
41.53 Reasonable accommodation.
41.54 Employment criteria.
41.55 Preemployment inquiries.

                          Program Accessibility

41.56 General requirement concerning program accessibility.
41.57 Existing facilities.
41.58 New construction.

Appendix A to Part 41--Leadership and Coordination of Nondiscrimination 
          Laws

    Authority: Executive Order 12250, 45 FR 72995; sec. 504, 
Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 
794); sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L. 93-
516, 88 Stat. 1619 (29 U.S.C. 706).

    Source: 43 FR 2132, Jan. 13, 1978, unless otherwise noted. 
Redesignated at 46 FR 40686, 40687, Aug. 11, 1981.

    Effective Date Note: At 46 FR 40687, Aug. 11, 1981, the application 
of part 41 with respect to mass transportation was suspended until 
further notice.



                Subpart A_Federal Agency Responsibilities



Sec. 41.1  Purpose.

    The purpose of this part is to implement Executive Order 12250, 
which requires the Department of Justice to coordinate the 
implementation of section 504 of the Rehabilitation Act of 1973.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.2  Application.

    This part applies to each Federal department and agency that is 
empowered to extend Federal financial assistance.

[[Page 800]]



Sec. 41.3  Definitions.

    As used in this regulation, the term:
    (a) Executive Order means Executive Order 12250, titled ``Leadership 
and Coordination of Nondiscrimination Laws,'' issued November 2, 1980.
    (b) Section 504 means section 504 of the Rehabilitation Act of 1973, 
Public Law 93-112, as amended by the Rehabilitation Act Amendments of 
1974, Public Law 93-516, 29 U.S.C. 794.
    (c) Agency means a Federal department or agency that is empowered to 
extend financial assistance.
    (d) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (e) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (f) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.4  Issuance of agency regulations.

    (a) Each agency shall issue, after notice and opportunity for 
comment, a regulation to implement section 504 with respect to the 
programs and activities to which it provides assistance. The regulation 
shall be consistent with this part.
    (b) Each agency shall issue a notice of proposed rulemaking no later 
than 90 days after the effective date of this part. Each agency shall 
issue a final regulation no later than 135 days after the end of the 
period for comment on its proposed regulation: Provided, That the agency 
shall submit its proposed final regulation to the Assistant Attorney 
General, Civil Rights Division, Department of Justice, for review at 
least 45 days before it is to be issued.
    (c) Each such agency regulation shall:
    (1) Define appropriate terms, consistent with the definitions set 
forth in Sec. 41.3 and with the standards for determining who are 
handicapped persons set forth in subpart B of this part; and
    (2) Prohibit discriminatory practices against qualified handicapped 
persons in employment and in the provision of aid, benefits, or 
services, consistent with the guidelines set forth in subpart C of this 
part.

The regulation shall include, where appropriate, specific provisions 
adapted to the particular programs and activities receiving financial 
assistance from the agency.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.5  Enforcement.

    (a) Each agency shall establish a system for the enforcement of 
section 504 and its implementing regulation with respect to the programs 
and activities to which it provides assistance. The system shall 
include:
    (1) The enforcement and hearing procedures that the agency has 
adopted for the enforcement of title VI of the Civil Rights Act of 1964, 
and
    (2) A requirement that recipients sign assurances of compliance with 
section 504.
    (b) Each agency regulation shall also include requirements that 
recipients:
    (1) Notify employees and beneficiaries of their rights under section 
504,
    (2) Conduct a self-evaluation of their compliance with section 504, 
with the

[[Page 801]]

assistance of interested persons, including handicapped persons or 
organizations representing handicapped persons, and
    (3) Otherwise consult with interested persons, including handicapped 
persons or organizations representing handicapped persons, in achieving 
compliance with section 504.



Sec. 41.6  Interagency cooperation.

    (a) Where each of a substantial number of recipients is receiving 
assistance for similar or related purposes from two or more agencies or 
where two or more agencies cooperate in administering assistance for a 
given class of recipients, the agencies shall:
    (1) Coordinate compliance with section 504, and
    (2) Designate one of the agencies as the primary agency for section 
504 compliance purposes.
    (b) Any agency conducting a compliance review or investigating a 
compliant of an alleged section 504 violation shall notify any other 
affected agency upon discovery of its jurisdiction and shall inform it 
of the findings made. Reviews or investigations may be made on a joint 
basis.



Sec. 41.7  Coordination with sections 502 and 503.

    (a) Agencies shall consult with the Architectural and Transportation 
Barriers Compliance Board in developing requirements for the 
accessibility of new facilities and alterations, as required in Sec. 
41.58, and shall coordinate with the Board in enforcing such 
requirements with respect to facilities that are subject to section 502 
of the Rehabilitation Act of 1973, as amended, as well as to section 
504.
    (b) Agencies shall coordinate with the Department of Labor in 
enforcing requirements concerning employment discrimination with respect 
to recipients that are also federal contractors subject to section 503 
of the Rehabilitation Act of 1973, as amended.



     Subpart B_Standards for Determining Who Are Handicapped Persons



Sec. 41.31  Handicapped person.

    (a) Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    (b) As used in paragraph (a) of this section, the phrase:
    (1) Physical or mental impairment means:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.

The term ``physical or mental impairment'' includes, but is not limited 
to, such diseases and conditions as orthopedic, visual, speech, and 
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug addiction and alcoholism.
    (2) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major

[[Page 802]]

life activities only as a result of the attitudes of others toward such 
impairment; or
    (iii) Has none of the impairments defined in paragraph (b)(1) of 
this section but is treated by a recipient as having such an impairment.



Sec. 41.32  Qualified handicapped person.

    Qualified handicapped person means:
    (a) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question and
    (b) With respect to services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.



      Subpart C_Guidelines for Determining Discriminatory Practices

                                 General



Sec. 41.51  General prohibitions against discrimination.

    (a) No qualified handicapped person, shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity that receives or benefits from federal financial assistance.
    (b)(1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of handicap,
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program 
with respect to handicapped persons, or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (4) A recipient may not, in determining the site or location of a 
facility, make selections:
    (i) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives or benefits 
from federal financial assistance or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives

[[Page 803]]

of the program or activity with respect to handicapped persons.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by federal statute or executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by federal statute or executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) Recipients shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (e) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.

                               Employment



Sec. 41.52  General prohibitions against employment discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment under any program or 
activity that receives or benefits from federal financial assistance.
    (b) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (c) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including social or recreational 
programs; and
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeship programs.



Sec. 41.53  Reasonable accommodation.

    A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.



Sec. 41.54  Employment criteria.

    A recipient may not use employment tests or criteria that 
discriminate against handicapped persons and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.



Sec. 41.55  Preemployment inquiries.

    A recipient may not conduct a preemployment medical examination or 
make a preemployment inquiry as to whether an applicant is a handicapped 
person or as to the nature or severity of a handicap except under the 
circumstances described in 28 CFR 42.513.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]

[[Page 804]]

                          Program Accessibility



Sec. 41.56  General requirement concerning program accessibility.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity that 
receives or benefits from federal financial assistance.



Sec. 41.57  Existing facilities.

    (a) A recipient shall operate each program or activity so that the 
program or activity, when viewed in its entirety, is readily accessible 
to and usable by handicapped persons. This paragraph does not 
necessarily require a recipient to make each of its existing facilities 
or every part of an existing facility accessible to and usable by 
handicapped persons.
    (b) Where structural changes are necessary to make programs or 
activities in existing facilities accessible, such changes shall be made 
as soon as practicable, but in no event later than three years after the 
effective date of the agency regulation: Provided, That, if the program 
is a particular mode of transportation (e.g., a subway system) that can 
be made accessible only through extraordinarily expensive structural 
changes to, or replacement of, existing facilities and if other 
accessible modes of transportation are available, the federal agency 
responsible for enforcing section 504 with respect to that program may 
extend this period of time, but only for a reasonable and definite 
period, such period to be set forth in the agency's regulation.
    (c) In the event that structural changes to facilities are necessary 
to meet the requirement of paragraph (a) of this section, a recipient 
shall develop, within a definite period to be established in each 
agency's regulation, a transition plan setting forth the steps necessary 
to complete such changes. The plan shall be developed with the 
assistance of interested persons, including handicapped persons or 
organizations representing handicapped persons.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]

    Effective Date Note: At Order No. 1301-88, 53 FR 37754, Sept. 28, 
1988, the application of Sec. 41.57(b) to public housing timeframes was 
suspended.



Sec. 41.58  New construction.

    (a) Except as provided in paragraph (b) of this section, new 
facilities shall be designed and constructed to be readily accessible to 
and usable by handicapped persons. Alterations to existing facilities 
shall, to the maximum extent feasible, be designed and constructed to be 
readily accessible to and usable by handicapped persons.
    (b) The Department of Transportation may defer the effective date 
for requiring all new buses to be accessible if it concludes on the 
basis of its section 504 rulemaking process that it is not feasible to 
require compliance on the effective date of its regulation: Provided, 
That comparable, accessible services are available to handicapped 
persons in the interim and that the date is not deferred later than 
October 1, 1979.



       Sec. Appendix A to Part 41--Leadership and Coordination of 
                         Nondiscrimination Laws

                   Executive Order 12250, Nov. 2, 1980

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

    1-1. Delegation of Function.

    1-101. The function vested in the President by section 602 of the 
Civil Rights Act of 1964 (42 U.S.C. 2000d-1), relating to the approval 
of rules, regulations, and orders of general applicability, is hereby 
delegated to the Attorney General.
    1-102. The function vested in the President by section 902 of the 
Education Amendments

[[Page 805]]

of 1972 (20 U.S.C. 1682), relating to the approval of rules, 
regulations, and orders of general applicability, is hereby delegated to 
the Attorney General.

    1-2. Coordination of Nondiscrimination Provisions.

    1-201. The Attorney General shall coordinate the implementation and 
enforcement by Executive agencies of various nondiscrimination 
provisions of the following laws:
    (a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 
seq.).
    (b) Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
seq.).
    (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 
U.S.C. 794).
    (d) Any other provision of Federal statutory law which provides, in 
whole or in part, that no person in the United States shall, on the 
ground of race, color, national origin, handicap, religion, or sex, be 
excluded from participation in, be denied the benefits of, or be subject 
to discrimination under any program or activity receiving Federal 
financial assistance.
    1-202. In furtherance of the Attorney General's responsibility for 
the coordination of the implementation and enforcement of the 
nondiscrimination provisions of laws covered by this Order, the Attorney 
General shall review the existing and proposed rules, regulations, and 
orders of general applicability of the Executive agencies in order to 
identify those which are inadequate, unclear or unnecessarily 
inconsistent.
    1-203. The Attorney General shall develop standards and procedures 
for taking enforcement actions and for conducting investigations and 
compliance reviews.
    1-204. The Attorney General shall issue guidelines for establishing 
reasonable time limits on efforts to secure voluntary compliance, on the 
initiation of sanctions, and for referral to the Department of Justice 
for enforcement where there is noncompliance.
    1-205. The Attorney General shall establish and implement a schedule 
for the review of the agencies' regulations which implement the various 
nondiscrimination laws covered by this Order.
    1-206. The Attorney General shall establish guidelines and standards 
for the development of consistent and effective recordkeeping and 
reporting requirements by Executive agencies; for the sharing and 
exchange by agencies of compliance records, findings, and supporting 
documentation; for the development of comprehensive employee training 
programs; for the development of effective information programs; and for 
the development of cooperative programs with State and local agencies, 
including sharing of information, deferring of enforcement activities, 
and providing technical assistance.
    1-207. The Attorney General shall initiate cooperative programs 
between and among agencies, including the development of sample 
memoranda of understanding, designed to improve the coordination of the 
laws covered by this Order.

    1-3. Implementation by the Attorney General.

    1-301. In consultation with the affected agencies, the Attorney 
General shall promptly prepare a plan for the implementation of this 
Order. This plan shall be submitted to the Director of the Office of 
Management and Budget.
    1-302. The Attorney General shall periodically evaluate the 
implementation of the nondiscrimination provisions of the laws covered 
by this Order, and advise the heads of the agencies concerned on the 
results of such evaluations as to recommendations for needed improvement 
in implementation or enforcement.
    1-303. The Attorney General shall carry out his functions under this 
Order, including the issuance of such regulations as he deems necessary, 
in consultation with affected agencies.
    1-304. The Attorney General shall annually report to the President 
through the Director of the Office of Management and Budget on the 
progress in achieving the purposes of this Order. This report shall 
include any recommendations for changes in the implementation or 
enforcement of the nondiscrimination provisions of the laws covered by 
this Order.
    1-305. The Attorney General shall chair the Interagency Coordinating 
Council established by section 507 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 794c).

    1-4. Agency Implementation.

    1-401. Each Executive agency shall cooperate with the Attorney 
General in the performance of the Attorney General's functions under 
this Order and shall, unless prohibited by law, furnish such reports and 
information as the Attorney General may request.
    1-402. Each Executive agency responsible for implementing a 
nondiscrimination provision of a law covered by this Order shall issue 
appropriate implementing directives (whether in the nature of 
regulations or policy guidance). To the extent permitted by law, they 
shall be consistent with the requirements prescribed by the Attorney 
General pursuant to this Order and shall be subject to the approval of 
the Attorney General, who may require that some or all of them be 
submitted for approval before taking effect.
    1-403. Within 60 days after a date set by the Attorney General, 
Executive agencies shall submit to the Attorney General their plans for 
implementing their responsibilities under this Order.

    1-5. General Provisions.


[[Page 806]]


    1-501. Executive Order No. 11764 is revoked. The present regulations 
of the Attorney General relating to the coordination of enforcement of 
title VI of the Civil Rights Act of 1964 shall continue in effect until 
revoked or modified (28 CFR 42.401 to 42.415).
    1-502. Executive Order No. 11914 is revoked. The present regulations 
of the Secretary of Health and Human Services relating to the 
coordination of the implementation of section 504 of the Rehabilitation 
Act of 1973, as amended, shall be deemed to have been issued by the 
Attorney General pursuant to this Order and shall continue in effect 
until revoked or modified by the Attorney General.
    1-503. Nothing in this Order shall vest the Attorney General with 
the authority to coordinate the implementation and enforcement by 
Executive agencies of statutory provisions relating to equal employment.
    1-504. Existing agency regulations implementing the 
nondiscrimination provisions of laws covered by this Order shall 
continue in effect until revoked or modified.

Jimmy Carter

The White House,
    November 2, 1980.

[47 FR 32421, July 27, 1982]



PART 42_NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES 
AND PROCEDURES--Table of Contents




 Subpart A_Equal Employment Opportunity Within the Department of Justice

Sec.
42.1 Policy.
42.2 Designation of Director of Equal Employment Opportunity and 
          Complaint Adjudication Officer.
42.3 Responsibility for Department of Justice Equal Opportunity 
          Recruitment Program.

Subpart B [Reserved]

       Subpart C_Nondiscrimination in Federally Assisted Programs_
       Implementation of Title VI of the Civil Rights Act of 1964

42.101 Purpose.
42.102 Definitions.
42.103 Application of this subpart.
42.104 Discrimination prohibited.
42.105 Assurance required.
42.106 Compliance information.
42.107 Conduct of investigations.
42.108 Procedure for effecting compliance.
42.109 Hearings.
42.110 Decisions and notices.
42.111 Judicial review.
42.112 Effect on other regulations; forms and instructions.

Appendix A to Subpart C--Federal Financial Assistance Administered by 
          the Department of Justice to Which This Subpart Applies

       Subpart D_Nondiscrimination in Federally Assisted Programs_
 Implementation of Section 815(c)(1) of the Justice System Improvement 
                               Act of 1979

42.201 Purpose and application.
42.202 Definitions.
42.203 Discrimination prohibited.
42.204 Applicants' obligations.
42.205 Complaint investigation.
42.206 Compliance reviews.
42.207 Compliance information.
42.208 Notice of noncompliance.
42.209 Compliance secured.
42.210 Compliance not secured.
42.211 Resumption of suspended funds.
42.212 Preliminary hearing.
42.213 Full hearing.
42.214 Judicial review.
42.215 Other actions authorized under the JSIA.

Appendix A to Subpart D--Commentary

        Subpart E_Equal Employment Opportunity Program Guidelines

42.301 Purpose.
42.302 Application.
42.303 Evaluation of employment opportunities.
42.304 Written equal employment opportunity program.
42.305 Recordkeeping and certification.
42.306 Guidelines.
42.307 Obligations of recipients.
42.308 Noncompliance.

Subpart F_Coordination of Enforcement of Non-discrimination in Federally 
                            Assisted Programs

42.401 Purpose and application.
42.402 Definitions.
42.403 Agency regulations.
42.404 Guidelines.
42.405 Public dissemination of title VI information.
42.406 Data and information collection.
42.407 Procedures to determine compliance.
42.408 Complaint procedures.
42.409 Employment practices.
42.410 Continuing State programs.
42.411 Methods of resolving noncompliance.
42.412 Coordination.
42.413 Interagency cooperation and delegations.
42.414 Federal agency staff.

[[Page 807]]

42.415 Federal agency title VI enforcement plan.

  Subpart G_Nondiscrimination Based on Handicap in Federally Assisted 
      Programs or Activities_Implementation of Section 504 of the 
                       Rehabilitation Act of 1973

                           General Provisions

42.501 Purpose.
42.502 Application.
42.503 Discrimination prohibited.
42.504 Assurances required.
42.505 Administrative requirements for recipients.

                               Employment

42.510 Discrimination prohibited.
42.511 Reasonable accommodation.
42.512 Employment criteria.
42.513 Preemployment inquiries.

                          Program Accessibility

42.520 Discrimination prohibited.
42.521 Existing facilities.
42.522 New construction.

                               Procedures

42.530 Procedures.

                               Definitions

42.540 Definitions.

Appendix A to Subpart G--Federal Financial Assistance Administered by 
          the Department of Justice to Which This Subpart Applies
Appendix B to Subpart G [Reserved]
Appendix C to Subpart G--Department Regulations Under Title VI of the 
          Civil Rights Act of 1964 (28 CFR 42.106-42.110) Which Apply to 
          This Subpart [Note]
Appendix D to Subpart G--OJARS' Regulations Under the Omnibus Crime 
          Control and Safe Streets Act, as Amended, Which Apply to This 
          Subpart (28 CFR 42.205 and 42.206) [Note]

 Subpart H_Procedures for Complaints of Employment Discrimination Filed 
           Against Recipients of Federal Financial Assistance

42.601 Purpose and application.
42.602 Exchange of information.
42.603 Confidentiality.
42.604 Standards for investigation, reviews and hearings.
42.605 Agency processing of complaints of employment discrimination.
42.606 General rules concerning EEOC action on complaints.
42.607 EEOC dismissals of complaints.
42.608 Agency action on complaints dismissed by EEOC.
42.609 EEOC reasonable cause determination and conciliation efforts.
42.610 Agency enforcement of unresolved complaints.
42.611 EEOC negotiated settlements and conciliation agreements.
42.612 Interagency consultation.
42.613 Definitions.

 Subpart I_Nondiscrimination on the Basis of Age in Federally Assisted 
Programs or Activities; Implementation of the Age Discrimination Act of 
                                  1975

                           General Provisions

42.700 Purpose.
42.701 Application.
42.702 Definitions.
42.703-42.709 [Reserved]

              Standards for Determining Age Discrimination

42.710 General prohibition.
42.711 Exception; authorized by law.
42.712 Exception; normal operation or statutory objective.
42.713 Exception; reasonable factors other than age.
42.714 Special benefits.
42.715 Burden of proof regarding exceptions.
42.716-42.719 [Reserved]

                          Duties of Recipients

42.720 General responsibility.
42.721 Notice to subrecipients.
42.722 Recipient assessment of age distinctions.
42.723 Compliance information.
42.724 Remedial and affirmative action.
42.725 Assurance of compliance.
42.726-42.729 [Reserved]

                          Compliance Procedures

42.730 Compliance reviews.
42.731 Complaints.
42.732 Prohibition against intimidation.
42.733 Enforcement procedures.
42.734 Alternative funding.
42.735 Judicial review.
42.736 Private lawsuits.
42.737-42.799 [Reserved]

Appendix A to Subpart I of Part 42--Federal Financial Assistance 
          Administered by the Department of Justice to Which This 
          Subpart Applies
Appendix B to Subpart I of Part 42--Age Distinctions in Federal Statutes 
          or Regulations Affecting Financial Assistance Administered by 
          the Department of Justice

[[Page 808]]



 Subpart A_Equal Employment Opportunity Within the Department of Justice

    Authority: 5 U.S.C. 301, 28 U.S.C. 509, 510; E.O. 11246, 3 CFR 1964-
1965 Comp., p. 339; E.O. 11478, 3 CFR 1966-1970 Comp., p. 803.



Sec. 42.1  Policy.

    (a) It is the policy of the Department of Justice to seek to 
eliminate discrimination on the basis of race, color, religion, sex, 
sexual orientation, national origin, marital status, political 
affiliation, age, or physical or mental handicap in employment within 
the Department and to assure equal employment opportunity for all 
employees and applicants for employment.
    (b) No person shall be subject to retaliation for opposing any 
practice prohibited by the above policy or for participating in any 
stage of administrative or judicial proceedings related to this policy.

[Order No. 2037-96, 61 FR 34730, July 3, 1996; 61 FR 43119, Aug. 20, 
1996]



Sec. 42.2  Designation of Director of Equal Employment Opportunity and
Complaint Adjudication Officer.

    (a) In compliance with the regulations of the Equal Employment 
Opportunity Commission (29 CFR 1613.204(c)), the Assistant Attorney 
General for Administration is hereby designated as Director of Equal 
Employment Opportunity for the Department of Justice with 
responsibilities for administration of the Equal Employment Opportunity 
Program within the Department. The Director of Equal Employment 
Opportunity shall publish and implement the Department of Justice 
regulations, which shall include a positive action program to eliminate 
causes of discrimination and shall include procedures for processing 
complaints of discrimination within the Department.
    (b) The Assistant Attorney General in charge of the Civil Rights 
Division shall appoint a Complaint Adjudication Officer, who shall 
render final decisions for the Department of Justice on complaints of 
discrimination filed by employees and applicants for employment in the 
Department pursuant to the Department's Equal Employment Opportunity 
Regulations. In rendering decisions, the Complaint Adjudication Officer 
shall order such remedial action as may be appropriate, whether or not 
there is a finding of discrimination, but in cases where no 
discrimination is found any remedial action ordered shall have the prior 
approval of the Assistant Attorney General in charge of the Civil Rights 
Division, who shall consult with the Deputy Attorney General on the 
matter.

[Order No. 420-69, 34 FR 12281, July 25, 1969, as amended by Order No. 
721-77, 42 FR 25725, May 19, 1977; Order No. 731-77, 42 FR 35646, July 
11, 1977; Order No. 899-80, 45 FR 43703, June 30, 1980; Order No. 960-
81, 46 FR 52357, Oct. 27, 1981]



Sec. 42.3  Responsibility for Department of Justice Equal Opportunity 
Recruitment Program.

    The Assistant Attorney General for Administration shall be 
responsible for establishing and implementing the Department of Justice 
Equal Opportunity Recruitment Program under 5 U.S.C. 7201.

[Order No. 865-79, 44 FR 77157, Dec. 31, 1979, as amended by Order No. 
960-81, 46 FR 52357, Oct. 27, 1981]

Subpart B [Reserved]



       Subpart C_Nondiscrimination in Federally Assisted Programs_
     Implementation of Title VI of the Civil Rights Act of 1964 \1\
---------------------------------------------------------------------------

    \1\ See also 28 CFR 50.3. Guidelines for enforcement of Title VI, 
Civil Rights Act.

    Authority: 42 U.S.C. 2000d-2000d-7; E.O. 12250, 45 FR 72995, 3 CFR, 
---------------------------------------------------------------------------
1980 Comp., p. 298.

    Source: Order No. 365-66, 31 FR 10265, July 29, 1966, unless 
otherwise noted.

    Editorial Note: Nomenclature changes by Order No. 2679-2003, appear 
at 68 FR 51364, Aug. 26, 2003.



Sec. 42.101  Purpose.

    The purpose of this subpart is to implement the provisions of title 
VI of the Civil Rights Act of 1964, 78 Stat. 252 (hereafter referred to 
as the ``Act''), to the end that no person in the United States shall, 
on the ground of race,

[[Page 809]]

color, or national origin, be excluded from participation in, be denied 
the benefits of, or otherwise be subjected to discrimination under any 
program or activity receiving Federal financial assistance from the 
Department of Justice.



Sec. 42.102  Definitions.

    As used in this subpart--
    (a) The term responsible Department official with respect to any 
program receiving Federal financial assistance means the Attorney 
General, or Deputy Attorney General, or such other official of the 
Department as has been assigned the principal responsibility within the 
Department for the administration of the law extending such assistance.
    (b) The term United States includes the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and 
all other territories and possessions of the United States, and the term 
State includes any one of the foregoing.
    (c) The term Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (d) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (d)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (d)(1), (2), or (3) of this section.
    (e) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration, or acquisition of facilities.
    (f) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assign, or transferee thereof, but such term does not include 
any ultimate beneficiary.
    (g) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.

[[Page 810]]

    (h) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Department 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.
    (i) The term academic institution includes any school, academy, 
college, university, institute, or other association, organization, or 
agency conducting or administering any program, project, or facility 
designed to educate or train individuals.
    (j) The term disposition means any treatment, handling, decision, 
sentencing, confinement, or other prescription of conduct.
    (k) The term governmental organization means the political 
subdivision for a prescribed geographical area.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct. 
27, 1981; Order No. 2679-2003, 68 FR 51363, 51364, Aug. 26, 2003]



Sec. 42.103  Application of this subpart.

    This subpart applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department. It 
applies to money paid, property transferred, or other Federal financial 
assistance extended after the date of this subpart pursuant to an 
application whether approved before or after such date. This subpart 
does not apply to:
    (a) Any Federal financial assistance by way of insurance or guaranty 
contracts, or
    (b) Employment practices except to the extent described in Sec. 
42.104(c).

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.104  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this subpart applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this subpart applies may not, directly or through contractual or 
other arrangements, on the ground of race, color, or national origin:
    (i) Deny an individual any disposition, service, financial aid, or 
benefit provided under the program;
    (ii) Provide any disposition, service, financial aid, or benefit to 
an individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any disposition, service, financial 
aid, or benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any disposition, 
service, financial aid, or benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership, or other requirement or condition which individuals must 
meet in order to be provided any disposition, service, financial aid, 
function or benefit provided under the program; or
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the type of disposition, services, 
financial aid, benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such will be provided under any such program, or the class of 
individuals to be afforded an opportunity to participate in any such 
program, may not, directly or through contractual or other arrangements, 
utilize criteria or methods of administration which have the effect of 
subjecting individuals to discrimination because of their race, color, 
or national

[[Page 811]]

origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this subpart applies, 
on the ground of race, color, or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this subpart.
    (4) For the purposes of this section the disposition, services, 
financial aid, or benefits provided under a program receiving Federal 
financial assistance shall be deemed to include all portions of the 
recipient's program or activity, including facilities, equipment, or 
property provided with the aid of Federal financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and in paragraph (c) of this section does not limit 
the generality of the prohibition in paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color, or national origin.
    (c) Employment practices. (1) Whenever a primary objective of the 
Federal financial assistance to a program to which this subpart applies, 
is to provide employment, a recipient of such assistance may not 
(directly or through contractual or other arrangements) subject any 
individual to discrimination on the ground of race, color, or national 
origin in its employment practices under such program (including 
recruitment or recruitment advertising, employment, layoff, or 
termination, upgrading, demotion, or transfer, rates of pay or other 
forms of compensation, and use of facilities). That prohibition also 
applies to programs as to which a primary objective of the Federal 
financial assistance is (i) to assist individuals, through employment, 
to meet expenses incident to the commencement or continuation of their 
education or training, or (ii) to provide work experience which 
contributes to the education or training of the individuals involved. 
The requirements applicable to construction employment under any such 
program shall be those specified in or pursuant to part III of Executive 
Order 11246 or any Executive order which supersedes it.
    (2) In regard to Federal financial assistance which does not have 
providing employment as a primary objective, the provisions of paragraph 
(c)(1) of this section apply to the employment practices of the 
recipient if discrimination on the ground of race, color, or national 
origin in such employment practices tends, on the ground of race, color, 
or national origin, to exclude persons from participation in, to deny 
them the benefits of or to subject them to discrimination under the 
program receiving Federal financial assistance. In any such case, the 
provisions of paragraph (c)(1) of this section shall apply to the extent 
necessary to assure equality of opportunity to and nondiscriminatory 
treatment of beneficiaries.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973; Order No. 2679-2003, 68 FR 51364, 
Aug. 26, 2003]



Sec. 42.105  Assurance required.

    (a) General. (1) Every application for Federal financial assistance 
to which this subpart applies, and every application for Federal 
financial assistance to provide a facility shall, as a condition to its 
approval and the extension of any Federal financial assistance pursuant 
to the application, contain or be accompanied by an assurance that the 
program will be conducted or the facility operated in compliance with 
all requirements imposed by or pursuant to this subpart. In the case 
where the

[[Page 812]]

Federal financial assistance is to provide or is in the form of personal 
property, or real property or interest therein or structures thereon, 
such assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases, such assurance shall obligate the recipient for the period 
during which Federal financial assistance is extended pursuant to the 
application. The responsible Department official shall specify the form 
of the foregoing assurances, and the extent to which like assurances 
will be required of subgrantees, contractors, and subcontractors, 
transferees, successors in interest, and other participants. Any such 
assurance shall include provisions which give the United States a right 
to seek its judicial enforcement.
    (2) In the case of real property, structures or improvements 
thereon, or interest therein, which was acquired with Federal financial 
assistance, or in the case where Federal financial assistance is 
provided in the form of a transfer of real property or interest therein 
from the Federal Government, the instrument effecting or recording the 
transfer shall contain a convenant running with the land assuring 
nondiscrimination for the period during which the real property is used 
for a purpose for which the Federal financial assistance is extended or 
for another purpose involving the provision of similar services or 
benefits. Where no transfer of property is involved, but property is 
improved with Federal financial assistance, the recipient shall agree to 
include such a covenant in any subsequent transfer of such property. 
Where the property is obtained from the Federal Government, such 
covenant may also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a breach of the covenant where, in the discretion of the responsible 
Department official, such a condition and right of reverter are 
appropriate to the statute under which the real property is obtained and 
to the nature of the grant and the grantee.
    (b) Assurances from government agencies. In the case of any 
application from any department, agency, or office of any State or local 
government for Federal financial assistance for any specified purpose, 
the assurance required by this section shall extend to any other 
department, agency, or office of the same governmental unit if the 
policies of such other department, agency, or office will substantially 
affect the project for which Federal financial assistance is requested.
    (c) Assurance from academic and other institutions. (1) In the case 
of any application for Federal financial assistance for any purpose to 
an academic institution, the assurance required by this section shall 
extend to admission practices and to all other practices relating to the 
treatment of students.
    (2) The assurance required with respect to an academic institution, 
detention or correctional facility, or any other institution or 
facility, insofar as the assurance relates to the institution's 
practices with respect to admission or other treatment of individuals as 
students, patients, wards, inmates, persons subject to control, or 
clients of the institution or facility or to the opportunity to 
participate in the provision of services, disposition, treatment, or 
benefits to such individuals, shall be applicable to the entire 
institution or facility.
    (d) Continuing Federal financial assistance. Any State or State 
agency applying for continuing Federal financial assistance subject to 
this regulation shall as a condition for the extension of such 
assistance:
    (1) Provide a statement that the program is (or, in the case of a 
new program, will be) conducted in compliance with this regulation, and
    (2) Provide for such methods of administration as are found by the 
responsible Department official to give reasonable assurance that the 
primary recipient and all other recipients of Federal financial 
assistance under such

[[Page 813]]

program will comply with this regulation.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973; Order No. 2679-2003, 68 FR 51364, 
Aug. 26, 2003]



Sec. 42.106  Compliance information.

    (a) Cooperation and assistance. Each responsible Department official 
shall, to the fullest extent practicable, seek the cooperation of 
recipients in obtaining compliance with this subpart and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this subpart.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible Department official or his designee timely, 
complete, and accurate compliance reports at such times, and in such 
form and containing such information, as the responsible Department 
official or his designee may determine to be necessary to enable him to 
ascertain whether the recipient has complied or is complying with this 
subpart. In general, recipients should have available for the Department 
racial and ethnic data showing the extent to which members of minority 
groups are beneficiaries of federally assisted programs. In the case in 
which a primary recipient extends Federal financial assistance to any 
other recipient or subcontracts with any other person or group, such 
other recipient shall also submit such compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this subpart.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Department official or his designee during 
normal business hours to such of its books, records, accounts, and other 
sources of information, and its facilities, as may be pertinent to 
ascertain compliance with this subpart. Whenever any information 
required of a recipient is in the exclusive possession of any other 
agency, institution, or person and that agency, institution, or person 
fails or refuses to furnish that information, the recipient shall so 
certify in its report and set forth the efforts which it has made to 
obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
subpart and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible Department official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this subpart.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.107  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Department official 
or his designee shall from time to time review the practices of 
recipients to determine whether they are complying with this subpart.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this subpart may by himself or by a representative file with the 
responsible Department official or his designee a written complaint. A 
complaint must be filed not later than 180 days from the date of the 
alleged discrimination, unless the time for filing is extended by the 
responsible Department official or his designee.
    (c) Investigations. The responsible Department official or his 
designee will make a prompt investigation whenever a compliance review, 
report, complaint, or any other information indicates a possible failure 
to comply with this subpart. The investigation should include, whenever 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this subpart occurred, and other factors relevant to a determination as 
to whether the recipient has failed to comply with this subpart.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to

[[Page 814]]

comply with this subpart, the responsible Department official or his 
designee will so inform the recipient and the matter will be resolved by 
informal means whenever possible. If it has been determined that the 
matter cannot be resolved by informal means, action will be taken as 
provided for in Sec. 42.108.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the responsible Department official or 
his designee will so inform the recipient and the complainant, if any, 
in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this subpart, or because 
he has made a complaint, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under this subpart. 
The identity of complainants shall be kept confidential except to the 
extent necessary to carry out the purpose of this subpart, including the 
conduct of any investigation, hearing, or judicial proceeding arising 
thereunder.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.108  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this subpart and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, the responsible 
Department official may suspend or terminate, or refuse to grant or 
continue, Federal financial assistance, or use any other means 
authorized by law, to induce compliance with this subpart. Such other 
means include, but are not limited to:
    (1) Appropriate proceedings brought by the Department to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with assurance requirement. If an applicant or 
recipient fails or refuses to furnish an assurance required under Sec. 
42.105, or fails or refuses to comply with the provisions of the 
assurance it has furnished, or otherwise fails or refuses to comply with 
any requirement imposed by or pursuant to title VI or this subpart, 
Federal financial assistance may be suspended, terminated, or refused in 
accordance with the procedures of title VI and this subpart. The 
Department shall not be required to provide assistance in such a case 
during the pendency of administrative proceedings under this subpart, 
except that the Department will continue assistance during the pendency 
of such proceedings whenever such assistance is due and payable pursuant 
to a final commitment made or an application finally approved prior to 
the effective date of this subpart.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The responsible Department official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means,
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this subpart,
    (3) The action has been approved by the Attorney General pursuant to 
Sec. 42.110, and
    (4) The expiration of 30 days after the Attorney General has filed 
with the committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.

Any action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or

[[Page 815]]

part thereof, in which such noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until:
    (1) The responsible Department official has determined that 
compliance cannot be secured by voluntary means,
    (2) The action has been approved by the Attorney General, and
    (3) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance.



Sec. 42.109  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 42.108(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. That notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for that action. The notice 
shall (1) Fix a date, not less than 20 days after the date of such 
notice, within which the applicant or recipient may request that the 
responsible Department official schedule the matter for hearing, or (2) 
advise the applicant or recipient that a hearing concerning the matter 
in question has been scheduled and advise the applicant or recipient of 
the place and time of that hearing. The time and place so fixed shall be 
reasonable and shall be subject to change for cause. The complainant, if 
any, shall be advised of the time and place of the hearing. An applicant 
or recipient may waive a hearing and submit written information and 
argument for the record. The failure of an applicant or recipient to 
request a hearing under this paragraph or to appear at a hearing for 
which a date has been set shall be deemed to be a waiver of the right to 
a hearing afforded by section 602 of the Act and Sec. 42.108(c) and 
consent to the making of a decision on the basis of such information as 
is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the responsible 
Department official, unless he determines that the convenience of the 
applicant or recipient or of the Department requires that another place 
be selected. Hearings shall be held before the responsible Department 
official or, at his discretion, before a hearing examiner designated in 
accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative 
Procedure Act).
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and 
in accordance with such rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments and briefs, 
requests for findings, and other related matters. Both the Department 
and the applicant or recipient shall be entitled to introduce all 
relevant evidence on the issues as stated in the notice for hearing or 
as determined by the officer conducting the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this subpart, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied whenever 
reasonably necessary by the officer conducting the hearing. The hearing 
officer may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record shall be open to examination by the parties and opportunity shall 
be given to refute facts and arguments advanced on either side of the 
issues. A transcript shall be made of the oral evidence except to the 
extent the substance thereof is stipulated for the record. All decisions 
shall be based upon the hearing record and written findings shall be 
made.

[[Page 816]]

    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this subpart 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this subpart applies, or noncompliance with this subpart and the 
regulations of one or more other Federal Departments or agencies issued 
under title VI of the Act, the Attorney General may, by agreement with 
such other departments or agencies, whenever appropriate, provide for 
the conduct of consolidated or joint hearings, and for the application 
to such hearings of rules of procedure not inconsistent with this 
subpart. Final decisions in such cases, insofar as this subpart is 
concerned, shall be made in accordance with Sec. 42.110.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17955, July 5, 1973]



Sec. 42.110  Decisions and notices.

    (a) Decisions by person other than the responsible Department 
official. If the hearing is held by a hearing examiner, such hearing 
examiner shall either make an initial decision, if so authorized, or 
certify the entire record, including his recommended findings and 
proposed decision, to the responsible Department official for a final 
decision, and a copy of such initial decision or certification shall be 
mailed to the applicant or recipient. Whenever the initial decision is 
made by the hearing examiner, the applicant or recipient may, within 30 
days of the mailing of such notice of initial decision, file with the 
responsible Department official his exceptions to the initial decision, 
with his reasons therefor. In the absence of exceptions, the responsible 
Department official may on his own motion, within 45 days after the 
initial decision, serve on the applicant or recipient a notice that he 
will review the decision. Upon filing of such exceptions, or of such 
notice of review, the responsible Department official shall review the 
initial decision and issue his own decision thereon including the 
reasons therefor. In the absence of either exceptions or a notice of 
review the initial decision shall constitute the final decision of the 
responsible Department official.
    (b) Decisions on the record or on review by the responsible 
Department official. Whenever a record is certified to the responsible 
Department official for decision or he reviews the decision of a hearing 
examiner pursuant to paragraph (a) of this section, or whenever the 
responsible Department official conducts the hearing, the applicant or 
recipient shall be given a reasonable opportunity to file with him 
briefs or other written statements of its contentions, and a copy of the 
final decision of the responsible Department official shall be given in 
writing to the applicant or recipient and to the complainant, if any.
    (c) Decisions on the record whenever a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 42.109(a), a decision shall be made 
by the responsible Department official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible Department official shall set forth his ruling on each 
findings, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this subpart with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by Attorney General. Any final decision of a 
responsible Department official (other than the Attorney General) which 
provides for the suspension or termination of, or the refusal to grant 
or continue Federal financial assistance, or the imposition of any other 
sanction available under this subpart or the Act, shall promptly be 
transmitted to the Attorney General, who may approve such decision, 
vacate it, or remit or mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue, Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with, and will effectuate the purposes of, the Act and this 
subpart, including provisions designed

[[Page 817]]

to assure that no Federal financial assistance to which this regulation 
applies will thereafter be extended to the applicant or recipient 
determined by such decision to be in default in its performance of an 
assurance given by it pursuant to this subpart, or to have otherwise 
failed to comply with this subpart, unless and until, it corrects its 
noncompliance and satisfies the responsible Department official that it 
will fully comply with this subpart.
    (g) Post-termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this subpart and provides reasonable assurance that it will fully comply 
with this subpart.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Department official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Department official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with a decision on the 
record, in accordance with rules of procedure issued by the responsible 
Department official. The applicant or recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph are pending, sanctions imposed by the order issued 
under paragraph (f) of this section shall remain in effect.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17956, July 5, 1973]



Sec. 42.111  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 42.112  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. Nothing in this subpart shall be 
deemed to supersede any provision of subpart A or B of this part or 
Executive Order 11114 or 11246, as amended, or of any other regulation 
or instruction which prohibits discrimination on the ground of race, 
color, or national origin in any program or situation to which this 
subpart is inapplicable, or which prohibits discrimination on any other 
ground.
    (b) Forms and instructions. Each responsible Department official, 
other than the Attorney General or Deputy Attorney General, shall issue 
and promptly make available to interested persons forms and detailed 
instructions and procedures for effectuating this subpart as applied to 
programs to which this subpart applies and for which he is responsible.
    (c) Supervision and coordination. The Attorney General may from time 
to time assign to officials of the Department, or to officials of other 
departments or agencies of the Government, with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this subpart 
(other than responsibility for final decision as provided in Sec. 
42.110(e)), including the achievement of the effective coordination and 
maximum uniformity within the Department and within the Executive Branch 
of the Government in the application of title VI of the Act and this 
subpart to similar programs and in similar situations. Any action taken, 
determination made, or requirement imposed by an official of another 
Department or agency acting pursuant to an assignment of responsibility 
under this subsection shall have the same effect as though such action 
had been taken by the Attorney General.

[Order No. 365-66, 31 FR 10265, July 29, 1966, as amended by Order No. 
519-73, 38 FR 17956, July 5, 1973; Order No. 568-74, 39 FR 18646, May 
29, 1974]

[[Page 818]]



 Sec. Appendix A to Subpart C of Part 42--Federal Financial Assistance 
 Administered by the Department of Justice to Which This Subpart Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if title VI is otherwise applicable, that a program is 
not covered.
    1. Assistance provided by the Office of Justice Programs (OJP), the 
Bureau of Justice Assistance (BJA), the National Institute of Justice 
(NIJ), the Bureau of Justice Statistics (BJS), and the Office of 
Juvenile Justice and Delinquency Prevention (OJJDP), including block, 
formula, and discretionary grants, victim compensation payments, and 
victim assistance grants (title I of the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701-3796, as amended (Pub. L. 90-351, as 
amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430, Pub. L. 94-
503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473); the Juvenile 
Justice and Delinquency Prevention Act of 1974, 42 U.S.C. 5601-5751, as 
amended (Pub. L. 93-415, as amended by Pub. L. 94-503, Pub. L. 95-115, 
Pub. L. 96-509, and Pub. L. 98-473); the Victims of Crime Act of 1984, 
42 U.S.C. 10601-10604, (Pub. L. 98-473)).
    2. Assistance provided by the Bureau of Prisons (BOP) including 
technical assistance to State and local governments for improvement of 
correctional systems; training of law enforcement personnel, and 
assistance to legal services programs (18 U.S.C. 4042).
    3. Assistance provided by the National Institute of Corrections 
(NIC) including training, grants, and technical assistance to State and 
local governments, public and private agencies, educational 
institutions, organizations and individuals, in the area of corrections 
(18 U.S.C. 4351-4353).
    4. Assistance provided by the Drug Enforcement Administration (DEA) 
including training, joint task forces, information sharing agreements, 
cooperative agreements, and logistical support, primarily to State and 
local government agencies (21 U.S.C. 871-886).
    5. Assistance provided by the Community Relations Service (CRS) in 
the form of discretionary grants to public and private agencies under 
the Cuban-Haitian Entrant Program (title V of the Refugee Education 
Assistance Act of 1980, Pub. L. 96-422).
    6. Assistance provided by the U.S. Parole Commission in the form of 
workshops and training programs for State and local agencies and public 
and private organizations (18 U.S.C. 4204).
    7. Assistance provided by the Federal Bureau of Investigation (FBI) 
including field training, training through its National Academy, 
National Crime Information Center, and laboratory facilities, primarily 
to State and local criminal justice agencies (Omnibus Crime Control and 
Safe Streets Act of 1968, as amended 42 U.S.C. 3701-3796).
    8. Assistance provided by the Immigration and Naturalization Service 
(INS) including training and services primarily to State and local 
governments under the Alien Status Verification Index (ASVI); and 
citizenship textbooks and training primarily to schools and public and 
private service agencies (8 U.S.C. 1360, 8 U.S.C. 1457).
    9. Assistance provided by the United States Marshals Service through 
its Cooperative Agreement Program for improvement of State and local 
correctional facilities (Pub. L. 99-180, 99 Stat. 1142).
    10. Assistance provided by the Attorney General through the 
Equitable Transfer of Forfeited Property Program (Equitable Sharing) 
primarily to State and local law enforcement agencies (21 U.S.C. 
881(e)).
    11. Assistance provided by the Department of Justice participating 
agencies that conduct specialized training through the National Center 
for State and Local Law Enforcement Training, a component of the Federal 
Law Enforcement Training Center (FLETC), Glenco, Georgia (Pursuant to 
Memorandum Agreement with the Department of Treasury).

[Order No. 1204-87, 52 FR 24449, July 1, 1987]



       Subpart D_Nondiscrimination in Federally Assisted Programs_
 Implementation of Section 815(c)(1) of the Justice System Improvement 
                               Act of 1979

    Authority: Secs. 802(a), 815(c), and 817(d) of the Justice System 
Improvement Act of 1979, 42 U.S.C. 3701, et seq., as amended (Pub. L. 
90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-503, and 
Pub. L. 96-157 (December 27, 1979) (JSIA) and Sec. 262 of the Juvenile 
Justice and Delinquency Prevention Act of 1974, as amended, 42 U.S.C. 
5672 (Pub. L. 93-415, as amended by Pub. L. 95-115)).

    Source: 45 FR 28705, Apr. 30, 1980, unless otherwise noted.



Sec. 42.201  Purpose and application.

    (a) The purpose of this subpart is to implement the provisions of 
section 815(c) of the Justice System Improvement Act of 1979 (42 U.S.C. 
3789d(c); title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d; and 
title IX of the Education Amendments of 1972, 20 U.S.C. 1681, et seq., 
to the end that no person in any State shall on the ground of

[[Page 819]]

race, color, national origin, sex, or religion be excluded from 
participation in, be denied the benefits of, be subjected to 
discrimination under, or be denied employment in connection with any 
program or activity funded in whole or in part with funds made available 
under either the Justice System Improvement Act or the Juvenile Justice 
Act by the Law Enforcement Assistance Administration, the National 
Institute of Justice, or the Bureau of Justice Statistics. These 
regulations also implement Executive Order 12138, which requires all 
Federal agencies awarding financial assistance to take certain steps to 
advance women's business enterprise.
    (b) The regulations in this subpart apply to the delivery of 
services by, and employment practices of recipients administering, 
participating in, or substantially benefiting from any program or 
activity receiving Federal financial assistance extended under the 
Justice System Improvement Act of 1979, or the Juvenile Justice and 
Delinquency Prevention Act of 1974, as amended.
    (c) Where a private recipient which receives such assistance through 
a unit of government is engaged in prohibited discrimination, the Office 
of Justice Assistance, Research, and Statistics will invoke the 
enforcement procedures of this subpart (Sec. 42.208, et seq.) against 
the appropriate unit of government for failure to enforce the assurances 
of nondiscrimination given it by the private recipient pursuant to Sec. 
42.204(a). Where a private recipient receives assistance either directly 
from the Law Enforcement Assistance Administration, the National 
Institute of Justice, or the Bureau of Justice Statistics or through 
another private entity which receives funds directly from one of those 
agencies, compliance will be enforced pursuant to section 803(a) of the 
Justice System Improvement Act.



Sec. 42.202  Definitions.

    (a) JSIA means the Justice System Improvement Act of 1979, Public 
Law 96-157, 42 U.S.C. 3701, et seq.
    (b) Juvenile Justice Act means title I and II of the Juvenile 
Justice and Delinquency Prevention Act of 1974, Public Law 93-415, as 
amended by Public Law 94-503 and Public Law 95-115.
    (c) OJARS or Office means the Office of Justice Assistance, 
Research, and Statistics.
    (d) LEAA means the Law Enforcement Assistance Administration.
    (e) NIJ means the National Institute of Justice.
    (f) BJS means the Bureau of Justice Statistics.
    (g) Employment practices means all terms and conditions of 
employment including but not limited to, all practices relating to the 
screening, recruitment, referral, selection, training, appointment, 
promotion, demotion, and assignment of personnel, and includes 
advertising, hiring, assignments, classification, discipline, layoff and 
termination, upgrading, transfer, leave practices, rate of pay, fringe 
benefits, or other forms of pay or credit for services rendered and use 
of facilities.
    (h) Investigation includes fact-finding efforts and, pursuant to 
Sec. 42.205(c)(3), attempts to secure the voluntary resolution of 
complaints.
    (i) Compliance review means a review of a recipient's selected 
employment practices or delivery of services for compliance with the 
provisions of section 815(c)(1) of the Justice System Improvement Act, 
or this subpart.
    (j) Noncompliance means the failure of a recipient to comply with 
section 815(c)(1) of the Justice System Improvement Act, or this 
subpart.
    (k) Program or activity means the operation of the agency or 
organizational unit of government receiving or substantially benefiting 
from financial assistance awarded, e.g., a police department or 
department of corrections.
    (l) Pattern or practice means any procedure, custom, or act 
affecting or potentially affecting, more than a single individual in a 
single or isolated instance.
    (m) Religion includes all aspects of religious observance and 
practice as well as belief.
    (n) Recipient means any State or local unit of government or agency 
thereof, and any private entity, institution, or organization, to which 
Federal financial assistance is extended directly, or through such 
government or agency, but such term does not include any ultimate 
beneficiary of such assistance.

[[Page 820]]

    (o) State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands;
    (p) Unit of local government means any city, county, township, town, 
borough, parish, village or other general purpose political subdivision 
of a State, an Indian tribe which performs law enforcement functions as 
determined by the Secretary of the Interior, or, for the purpose of 
assistance eligiblity, any agency of the District of Columbia government 
or the U.S. Government performing law enforcement functions in and for 
the District of Columbia;
    (q) Combination as applied to States or units of local government 
means any grouping or joining together of such States or units for the 
purpose of preparing, developing, or implementing a criminal justice 
program or project;
    (r) Criminal justice council or CJC means the agency designated by a 
State to perform the functions listed in section 402(b)(1) of the 
Justice System Improvement Act.
    (s) All masculine terms such as he, his, and him should be construed 
to mean their respective feminine counterparts, she, hers, and her, 
where appropriate.

[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]



Sec. 42.203  Discrimination prohibited.

    (a) No person in any State shall on the ground of race, color, 
religion, national origin, or sex be excluded from participation in, be 
denied the benefits of, be subjected to discrimination under, or denied 
employment in connection with any program or activity funded in whole or 
in part with funds made available under the JSIA or the Juvenile Justice 
Act.
    (b) A recipient may not, directly or through contractual or other 
arrangements, on the grounds set forth in paragraph (a) of this section:
    (1) Deny an individual any disposition, service, financial aid, or 
benefit provided under the program;
    (2) Provide any disposition, service, financial aid, or benefit to 
an individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any disposition, service, financial 
aid, or benefit under the program;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any disposition, 
service, or financial aid or benefit under the program;
    (5) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership, or other requirement or condition which individuals must 
meet in order to be provided any disposition, service, financial aid, 
function, or benefit provided under the program;
    (6) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program;
    (7) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program;
    (8) Subject any individual to physical abuse or summary punishment, 
or deny any individual the rights guaranteed by the Constitution to all 
persons;
    (9) Subject any individual to discrimination in its employment 
practices in connection with any program or activity funded in whole or 
in part with funds made available under the JSIA or the Juvenile Justice 
Act;
    (10) Use any selection device in a manner which is inconsistent with 
the Department of Justice Uniform on Employee Selection Guidelines, 28 
CFR 50.14.
    (c) In matters involving employment discrimination, section 
815(c)(1) of the JSIA shall be interpreted by the Office consistently 
with title VII of the Civil Rights Act of 1964, Public Law 88-352, 79 
Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 
Public Law 92-261, 87 Stat. 103, and the Pregnancy Discrimination Act, 
Public Law 95-555, 92 Stat. 2076.
    (d) The use of a minimum height or weight requirement which operates 
to disproportionately exclude women and

[[Page 821]]

persons of certain national origins, such as persons of Hispanic or 
Asian descent, is a violation of this subpart, unless the recipient is 
able to demonstrate convincingly, through use of supportive factual 
data, that the requirement has been validated as set forth in the 
Department of Justice Guidelines on Employee Selection Procedures, 28 
CFR 50.14.
    (e) A recipient, in determining the type of disposition, services, 
financial aid, benefits, or facilities which will be provided under any 
program, or the class of individuals to whom, or the situations in 
which, such will be provided under any program, may not directly or 
through contractual or other arrangements, utilize criteria or methods 
of administration which have the effect of subjecting individuals to 
discrimination under section 815(c)(1) of the JSIA, or have the effect 
of defeating or substantially impairing accomplishment of the objectives 
of the program as respects individuals of a particular race, color, sex, 
national origin, or religion.
    (f) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, subjecting 
them to discrimination under, or denying them employment in connection 
with any program or activity to which this subpart applies; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the JSIA, the Juvenile Justice Act, 
or this subpart.
    (g) For the purposes of this section, the disposition, services, 
financial aid, or benefits provided under a program or activity 
receiving Federal financial assistance shall be deemed to include any 
portion of any program or function or activity conducted by any 
recipient of Federal financial assistance which program, function, or 
activity is directly or indirectly improved, enhanced, enlarged, or 
benefited by such Federal financial assistance or which makes use of any 
facility, equipment, or property provided with the aid of Federal 
financial assistance.
    (h) The enumeration of specific forms of prohibited discrimination 
in paragraphs (b) through (g) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (i)(1) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
religion, national origin, or sex, the recipient must take affirmative 
action to overcome the effects of prior discrimination.
    (2) Even in the absence of such prior discrimination, a recipient in 
administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color, religion, national origin, or sex.
    (j) Nothing contained in this subpart shall be construed as 
requiring any recipient to adopt a percentage ratio, quota system, or 
other program to achieve racial balance. The use of goals and timetables 
is not use of a quota prohibited by this section.

[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54036, Aug. 14, 1980]



Sec. 42.204  Applicants' obligations.

    (a) Every application for Federal financial assistance to which this 
subpart applies shall, as a condition of approval of such application 
and the extension of any Federal financial assistance pursuant to such 
application, contain or be accompanied by an assurance that the 
applicant will comply with all applicable nondiscrimination requirements 
and will obtain such assurances from its subgrantees, contractors, or 
subcontractors to which this subpart applies, as a condition of the 
extension of Federal financial assistance to them.
    (b) Every unit of State or local government and every agency of such 
unit that applies for a grant of $500,000 or more under the JSIA or the 
Juvenile Justice Act, must submit a copy of its current Equal Employment 
Opportunity Program (if required to develop one under 28 CFR 42.301, et. 
seq.) to OJARS at the same time it submits its grant application. No 
application for $500,000 or more will be approved until OJARS has 
approved the applicant's EEOP.

[[Page 822]]

    (c) Every application for Federal financial assistance from a State 
or local unit of government or agency thereof shall contain an assurance 
that in the event a Federal or State court or Federal or State 
administrative agency makes a finding of discrimination after a due 
process hearing, on the ground of race, color, religion, national 
origin, or sex against the recipient State or local government unit, or 
agency, the recipient will forward a copy of the finding to the 
appropriate CJC and to OJARS.

[45 FR 28705, Apr. 30, 1980, as amended at 45 FR 54037, Aug. 14, 1980]



Sec. 42.205  Complaint investigation.

    (a) The Office shall investigate complaints filed by or on behalf of 
an individual claiming to be aggrieved, that allege a violation of 
section 815(c)(1) of the JSIA, or this subpart.
    (b) No complaint will be investigated if it is received more than 
one year after the date of the alleged discrimination, unless the time 
for filing is extended by the Director of OJARS for good cause shown.
    (c) The Office shall conduct investigations of complaints as 
follows:
    (1) Within 21 days of receipt of a complaint, the Office shall:
    (i) Ascertain whether it had jurisdiction under paragraphs (a) and 
(b) of this section;
    (ii) If jurisdiction is found, notify the recipient alleged to be 
discriminating of its receipt of the complaint; and
    (iii) Initiate the investigation.
    (2) The investigation will ordinarily be initiated by a letter 
requesting data pertinent to the complaint and advising the recipient 
of:
    (i) The nature of the complaint, and, with the written consent of 
the complainant, the identity of the complainant;
    (ii) The programs or activities affected by the complaint;
    (iii) The opportunity to make, at any time prior to receipt of the 
Office's preliminary findings, a documentary submission, responding to, 
rebutting, or denying the allegations made in the complaint; and
    (iv) The schedule under which the complaint will be investigated and 
a determination of compliance or non-compliance made.

Copies of this letter will also be sent to the chief executive of the 
appropriate unit(s) of government, and to the appropriate CJC.
    (3) Within 150 days or, where an on-site investigation is required, 
within 175 days after the initiation of the investigation, the Office 
shall advise the complainant, the recipient, the chief executive(s) of 
the appropriate unit(s) of government, and the appropriate CJC of:
    (i) Its investigative findings;
    (ii) Where appropriate, its recommendations for compliance; and
    (iii) If it is likely that satisfactory resolution of the complaint 
can be obtained, the recipient's opportunity to request the Office to 
engage in voluntary compliance negotiations prior to the Director of 
OJARS' determination of compliance or non-compliance.
    (4) If, within 30 days, the Office's recommendations for compliance 
are not met, or voluntary compliance is not secured, the matter will be 
forwarded to the Director of OJARS for a determination of compliance or 
non-compliance. The determination shall be made no later than 14 days 
after the conclusion of the 30-day period. If the Director makes a 
determination of non-compliance with section 815(c)(1) of the JSIA, the 
Office shall institute administrative proceedings pursuant to Sec. 
42.208 et seq.
    (5) If the complainant or another party, other than the Attorney 
General, has filed suit in Federal or State court alleging the same 
discrimination alleged in a complaint to OJARS, and, during OJARS' 
investigation, the trial of that suit would be in progress, OJARS will 
suspend its investigation and monitor the litigation through the court 
docket and, where necessary, contacts with the complainant. Upon receipt 
of notice that the court has made a finding of a pattern or practice of 
discrimination within the meaning of Sec. 42.208, the Office will 
institute administrative proceedings pursuant to Sec. 42.208, et seq. 
Upon receipt of notice that the court has made a finding affecting only 
the complainant, the Office will adopt the findings of the court as its 
investigative findings pursuant to Sec. 42.205(c)(3).

[[Page 823]]

    (6) The time limits listed in paragraphs (c)(1) through (c)(5) of 
this section shall be appropriately adjusted where OJARS requests 
another Federal agency or another branch of the Department of Justice to 
act on the complaint. OJARS will monitor the progress of the matter 
through liaison with the other agency. Where the request to act does not 
result in timely resolution of the matter, OJARS will institute 
appropriate proceedings pursuant to this section.

[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]



Sec. 42.206  Compliance reviews.

    (a) The Office shall periodically conduct:
    (1) Pre-award compliance reviews of all applicants requesting a 
grant from LEAA, NIJ, or BJS for $500,000 or more; and
    (2) Post-award compliance reviews of selected recipients of LEAA, 
NIJ, or BJS assistance.
    (b) Pre-award reviews. The Office shall review selected formula, 
discretionary, and national priority applications for $500,000 or more 
in order to determine whether the application presents a possibility of 
discrimination in the services to be performed under the grant, or in 
the employment practices of the applicant. In those instances where it 
finds such a possibility, the Office shall special condition, disapprove 
or take other action with respect to the application to assure that the 
project complies with section 815(c)(1) of the JSIA.
    (c) Post-award reviews. The Office shall seek to review those 
recipients which appear to have the most serious equal employment 
opportunity problems, or the greatest disparity in the delivery of 
services to the minority and non-minority or male and female communities 
they serve. Selection for review shall be made on the basis of:
    (1) The relative disparity between the percentage of minorities, or 
women, in the relevant labor market, and the percentage of minorities, 
or women, employed by the recipient;
    (2) The percentage of women and minorities in the population 
receiving program benefits;
    (3) The number and nature of discrimination complaints filed against 
a recipient with OJARS or other Federal agencies;
    (4) The scope of the problems revealed by an investigation commenced 
on the basis of a complaint filed with the Office against a recipient or 
by a pre-award compliance review; and
    (5) The amount of assistance provided to the recipient.
    (d) Within 15 days after selection of a recipient for review, the 
Office shall inform the recipient that it has been selected and will 
initiate the review. The review will ordinarily be initiated by a letter 
requesting data pertinent to the review and advising the recipient of:
    (1) The practices to be reviewed;
    (2) The programs or activities affected by the review;
    (3) The opportunity to make, at any time prior to receipt of the 
Office's investigative findings, a documentary submission responding to 
the Office, explaining, validating, or otherwise addressing the 
practices under review; and
    (4) The schedule under which the review will be conducted and a 
determination of compliance or non-compliance made.

Copies of this letter will also be sent to the chief executive of the 
appropriate unit(s) of government, and to the appropriate CJC.
    (e) Within 150 days or, where an on-site investigation is required, 
within 175 days after the initiation of the review, the Office shall 
advise the recipient, the chief executive(s) of the appropriate unit(s) 
of government, and the appropriate CJC, of:
    (1) Its investigative findings;
    (2) Where appropriate, its recommendations for compliance; and
    (3) The opportunity to request the Office to engage in voluntary 
compliance negotiations prior to the Director of OJARS' determination of 
compliance or noncompliance.
    (f) If, within 30 days, the Office's recommendations for compliance 
are not met, or voluntary compliance is not secured, the Director of 
OJARS shall make a determination of compliance or non-compliance. The 
determination shall be made no later than 14 days after the conclusion 
of the 30-day negotiation period. If the Director makes a determination 
of non-compliance with

[[Page 824]]

section 815(c) of the JSIA, the Office shall institute administrative 
proceedings pursuant to Sec. 42.208, et seq.

[45 FR 28705, Apr. 30, 1980; 45 FR 54037, Aug. 14, 1980]



Sec. 42.207  Compliance information.

    (a) Each recipient shall:
    (1) Keep such records, and submit to OJARS such timely, complete, 
and accurate information as OJARS may request to determine whether the 
recipient is complying with section 815(c)(1) of the JSIA; and
    (2) Permit reasonable access by OJARS to its books, documents, 
papers, and records, to the extent necessary to determine whether the 
recipient is complying with section 815(c)(1) of the JSIA.
    (b) Failure to comply with Sec. 42.207(a) shall subject the 
recipient to the sanctions provided in section 803(a) of the JSIA, 42 
U.S.C. 3783(a).



Sec. 42.208  Notice of noncompliance.

    (a) Whenever the Office has:
    (1) Received notice of a finding, after notice and opportunity for a 
hearing by:
    (i) A Federal court (other than in an action brought by the Attorney 
General under section 815(c)(3) of the JSIA);
    (ii) A State court; or
    (iii) A Federal or State administrative agency (other than the 
Office under paragraph (a)(2) of this section); to the effect that there 
has been a pattern or practice of discrimination in violation of section 
815(c)(1) of the JSIA; or
    (2) Made a determination after an investigation by the Office 
pursuant to Sec. 42.205 or Sec. 42.206 of this subpart that a State 
government or unit of general local government, or agency thereof, is 
not in compliance with this subpart, or section 815(c)(1) of the JSIA, 
or this subpart: the Office shall, within 10 days after such occurrence, 
notify the chief executive of the affected State and, if the action 
involves a unit of general local government, the chief executive of such 
unit of general local government, that such program or activity has been 
so found or determined not to be in compliance with this subpart or 
section 815(c)(1) of the JSIA or this subpart, and shall request each 
chief executive notified under this section with respect to such 
violation to secure compliance.
    (b) For the purposes of this section, notice means:
    (1) Publication in--
    (i) Employment Practices Decisions, Commerce Clearinghouse, Inc.;
    (ii) Fair Employment Practices, Bureau of National Affairs, Inc.;
    (iii) The United States Law Week, Bureau of National Affairs, Inc.; 
or
    (iv) Federal Supplement, Federal Reporter, or Supreme Reporter, West 
Publishing Company; or
    (2) Receipt by the Office of a reliable copy of a pattern or 
practice finding, made after a due process hearing from any source.
    (c) When the Office receives notice of a finding which has been made 
more than 120 days prior to receipt, the Office will determine if the 
finding is currently applicable.
    (1) In determining the current applicability of the finding, the 
Office will contact the clerk of the court and the office of the 
deciding judge (or the appropriate agency official) to determine whether 
any subsequent orders have been entered.
    (2) If the information is unavailable through the clerk or the 
office of the judge (or the appropriate agency official), the Office 
will contact the attorneys of record for both the plaintiff and 
defendant to determine whether any subsequent orders have been entered, 
or if the recipient is in compliance.
    (3) If, within 10 days of receipt of notice, it is not determined 
through the procedures set forth in paragraphs (c)(1) and (2) of this 
section, that the recipient is in full compliance with a final order of 
the court (or agency) within the meaning of Sec. 42.211(b), the Office 
will notify the appropriate chief executive of the recipient's 
noncompliance as provided in Sec. 42.208(a).
    (d) For purposes of paragraph (a)(1)(iii) of this section a finding 
by a Federal or State administrative agency shall be deemed rendered 
after notice and opportunity for a hearing if it is rendered pursuant to 
procedures consistent with the provisions of subchapter II of chapter 5, 
title 5, U.S.

[[Page 825]]

Code (the Administrative Procedures Act).
    (e) The procedures of a Federal or State administrative agency shall 
be deemed to be consistent with the Administrative Procedure Act (APA) 
if:
    (1) The agency gives all interested parties opportunity for--
    (i) The submission and consideration of facts, arguments, offers of 
settlement, or proposals of adjustment when time, the nature of the 
proceeding, and the public interest permit; and
    (ii) Hearing on notice, and a decision by an individual who did not 
participate in the investigation or prosecution of the matter.
    (2) A party is entitled to be represented by counsel or other 
qualified representative, to present his case or defense by oral or 
documentary evidence, to submit rebuttal evidence, and to conduct such 
cross-examination as may be required for a full and true disclosure of 
the facts; and
    (3) The record shows the ruling on each finding, conclusion, or 
exception presented. All decisions, including initial recommended, and 
tentative decisions, shall be a part of the record and shall include a 
statement of--
    (i) Findings and conclusions, and the reasons or basis therefor, on 
all the material issues of fact, law, or discretion presented on the 
record; and
    (ii) The appropriate rule, order, sanction, relief, or definal 
thereof.
    (f) If within 10 days of receipt of notice the Office cannot 
determine whether the finding was rendered pursuant to procedures 
consistent with the APA, it shall presume the APA procedures were 
applied, and send notification under Sec. 42.208(a) to the appropriate 
chief executive(s).
    (g) Each notification under Sec. 42.208(a) shall advise the 
appropriate chief executive of:
    (1) The program or activity determined to be in noncompliance;
    (2) The general legal and factual basis for its determination;
    (3) The Office's request to secure compliance;
    (4) The action to be taken by the Office and the provisions of law 
under which the proposed action is to be taken should the chief 
executive fail to secure compliance; and
    (5) The right of the recipient to request a preliminary hearing, 
pursuant to Sec. 42.212, and a full hearing, pursuant to Sec. 42.213.



Sec. 42.209  Compliance secured.

    (a) In the event a chief executive secures compliance after notice 
pursuant to Sec. 42.208, the terms and conditions with which the 
affected State government or unit of general local government agrees to 
comply shall be set forth in writing and signed by the chief executive 
of the State, by the chief executive of such unit (in the event of a 
violation by a unit of general local government), and by the Director of 
OJARS.
    (b) Prior to the effective date of the agreement, the Office shall 
send a copy of the agreement to each complainant, if any, with respect 
to such violation, and to the appropriate CJC.
    (c) The chief executive of the State, or the chief executive of the 
unit (in the event of a violation by a unit of general local government) 
shall file semi-annual reports with the Office detailing the steps taken 
to comply with the agreement.
    (d) Within 15 days of receipt of such reports, the Office shall send 
a copy to each complainant, if any.
    (e) The Director of OJARS shall also determine a recipient to be in 
compliance if it complies fully with the final order or judgement of a 
Federal or State court, pursuant to Sec. 42.211 (a)(2) and (b), or if 
found by such court to be in compliance with section 815(c)(1).



Sec. 42.210  Compliance not secured.

    (a) If, at the conclusion of 90 days after notification of 
noncompliance with section 815(c)(1):
    (1) Compliance has not been secured by the chief executive of that 
State or the chief executive of that unit of general local government; 
and
    (2) An administrative law judge has not made a determination under 
Sec. 42.212 that it is likely the State government or unit of local 
government will prevail on the merits;

the Office shall notify the Attorney General that compliance has not 
been secured and shall cause to have suspended further payment of any 
funds under the JSIA or Juvenile Justice

[[Page 826]]

Act, as appropriate, to the specific program or activity in which the 
noncompliance has been found.
    (b) If a hearing is requested pursuant to Sec. 42.213, the 
suspension of funds shall be effective for a period of not more than 30 
days after the conclusion of the hearing, or in the absence of a hearing 
under Sec. 42.213, funds shall be suspended for not more than 120 days, 
unless there has been an express finding by the Director of OJARS after 
notice and opportunity for such a hearing, that the recipient is not in 
compliance with section 815(c)(1) of the JSIA, or this subpart.



Sec. 42.211  Resumption of suspended funds.

    (a) Payment of suspended funds made available under the JSIA or the 
Juvenile Justice Act shall resume only if--
    (1) Such State government or unit of general local government enters 
into a compliance agreement signed by the Director of OJARS in 
accordance with Sec. 42.209;
    (2) Such State government or unit of general local government:
    (i) Complies fully with the final order or judgment of a Federal or 
State court, if that order or judgement covers all matters raised by the 
Director of OJARS in the notice pursuant to Sec. 42.208, or
    (ii) Is found to be in compliance with section 815(c)(1) of the JSIA 
by such court;
    (3) After a hearing, the Director of OJARS, pursuant to Sec. 
42.213, finds that noncompliance has not been demonstrated; or
    (4) An administrative law judge has determined, under Sec. 42.212, 
that it is likely that the State government or unit of local government 
will prevail on the merits.
    (b) Full compliance with a court order, for the purposes of 
paragraph (2) of this section, includes the securing of an agreement to 
comply over a period of time, particularly in complex cases or where 
compliance would require an extended period of time for implementation.



Sec. 42.212  Preliminary hearing.

    (a) Prior to the suspension of funds under Sec. 42.210(a), but 
within the 90-day period after notification under Sec. 42.208, the 
State government or unit of local government may request an expedited 
preliminary hearing on the record in accordance with 5 U.S.C. 554 in 
order to determine whether it is likely that the State government or 
unit of local government would, at a full hearing under Sec. 42.213, 
prevail on the merits on the issue of the alleged noncompliance.
    (b) The preliminary hearing shall be initiated within 30 days of 
request. The ALJ shall make his finding within 15 days after the 
conclusion of the preliminary hearing.



Sec. 42.213  Full hearing.

    (a) At any time after notification of noncompliance under Sec. 
42.208, but before the conclusion of the 120-day suspension period 
referred to in Sec. 42.210, a State government or unit of general local 
government may request a hearing on the record in accordance with 5 
U.S.C. 554 in order to contest the findings of determination of 
noncompliance made under Sec. 42.208. The Office shall initiate the 
hearing within 60 days of request.
    (b) Within 30 days after the conclusion of the hearing, or, in the 
absence of a hearing, at the conclusion of the 120-day period referred 
to in Sec. 42.210, the Director of OJARS shall make a finding of 
compliance or noncompliance.
    (1) If the Director makes a finding of noncompliance, the Director 
shall:
    (i) Notify the Attorney General in order that the Attorney General 
may institute a civil action under section 815(c)(3) of the JSIA;
    (ii) Cause to have terminated the payment of funds under the JSIA 
and/or the Juvenile Justice Act; and
    (iii) If appropriate, seek repayment of funds.
    (2) If the Director makes a finding of compliance, payment of the 
suspended funds and reconsideration of applications shall resume.



Sec. 42.214  Judicial review.

    Any State government or unit of general local government aggrieved 
by a final determination of the Office under Sec. 42.213 may appeal 
such determination as provided in section 805 of the JSIA.

[[Page 827]]



Sec. 42.215  Other actions authorized under the JSIA.

    (a) The Director of OJARS may, at any time, request the Attorney 
General to file suit to enforce compliance with section 815(c)(1). OJARS 
will monitor the litigation through the court docket and liaison with 
the Civil Rights Division of the Department of Justice. Where the 
litigation does not result in timely resolution of the matter, and funds 
have not been suspended pursuant to Sec. 42.215(b), OJARS will 
institute administrative proceedings unless enjoined from doing so by 
the court.
    (b)(1) Whenever the Attorney General files a civil action alleging a 
pattern or practice of discriminatory conduct on the basis of race, 
color, religion, national origin, or sex in any program or activity of a 
State government or unit of local government which State government or 
unit of local government receives funds made available under the JSIA or 
the Juvenile Justice Act and the conduct allegedly violates or would 
violate the provisions of this subpart or section 815(c)(1) of the JSIA 
and neither party within 45 days after such filing has been granted such 
preliminary relief with regard to the suspension or payment of funds as 
may otherwise be available by law, the Director of OJARS shall suspend 
further payment of any funds under the JSIA and the Juvenile Justice Act 
to that specific program or activity alleged by the Attorney General to 
be in violation of the provisions of section 815(c)(1) of the JSIA until 
such time as the court orders resumption of payment.
    (2) The Office expects that preliminary relief authorized by this 
subsection will not be granted unless the party making application for 
such relief meets the standards for a preliminary injunction.
    (c)(1) Whenever a State government or unit of local government or 
any officer or employee thereof acting in an official capacity, has 
engaged or is engaging in any act or practice prohibited by section 
815(c)(1) of the JSIA, a civil action may be instituted after exhaustion 
of administrative remedies by the person aggrieved in an appropriate 
U.S. District Court or in a State court or general jurisdiction.
    (2) Administrative remedies shall be deemed to be exhausted upon the 
expiration of 60 days after the date the administrative complaint was 
filed with the Office or any other administrative enforcement agency, 
unless within such period there has been a determination by the Office 
or the agency on the merits of the complaint, in which case such 
remedies shall be deemed exhausted at the time the determination becomes 
final.
    (3) The Attorney General, or a specifically designated assistant for 
or in the name of the United States may intervene upon timely 
application in any civil action brought to enforce compliance with 
section 815(c)(1) of the JSIA if he certifies that the action is of 
general public importance. In such action the United States shall be 
entitled to the same relief as if it had instituted the action.



           Sec. Appendix A to Subpart D of Part 42--Commentary

    Section 42.201(c). The compliance enforcement mechanism of section 
815(c)(2) applies by its terms to State and local government. The 
prohibitions in section 815(c)(1), however, apply to all recipients of 
OJARS assistance. Accordingly, where a private entity which has received 
LEAA, NIJ, or BJS assistance through a State or local unit of government 
is determined by OJARS to be in non-compliance, OJARS will invoke the 
section 815(c)(2) mechanism against the appropriate unit of government 
for its failure to enforce the assurances of compliance given it by the 
private recipient, unless the unit has initiated its own compliance 
action against the private recipient. The fund termination procedures of 
section 803(a) will be invoked against non-complying private recipients 
which receive assistance directly from LEAA, NIJ, or BJS, or through 
another private entity.
    Section 42.202(g). Section 815(c)(1) of the JSIA limits suspension 
and termination of assistance in the event of noncompliance to the 
``programs or activity'' in which the noncompliance is found. The phrase 
``program or activity'' was first used in section 815(c)(1) of the Crime 
Control Act of 1976, the substantially identical predecessor to section 
815(c)(1).
    House Report No. 94-1155 (94th Congress, 2d Session), at p. 26, 
explained the provision as follows:
    ``Suspension may be limited to the specific program or activity 
found to have discriminated, rather than all of the recipients' LEAA 
funds.

[[Page 828]]

    ``For example, if discriminatory employment practices in a city's 
police department were cited in the notification, LEAA may only suspend 
that part of the city's payments which fund the police department. LEAA 
may not suspend the city's LEAA funds which are used in the city courts, 
prisons, or juvenile justice agencies.''

This passage makes it clear that OJARS need not demonstrate a nexus 
between the particular project funded and the discriminatory activity. 
See Lau v. Nichols, 414 U.S. 563, 566 (1974).
    Sections 42.203(b) and 42.203(e-i). These provisions are derived 
from 28 CFR 42.104(b) of subpart C of the Department of Justice 
Nondiscrimination Regulations. Where appropriate ``sex'' and 
``religion'' have been added as prohibited grounds of discrimination, 
and ``denial of employment'' as another activity within the scope of 
section 815(c)(1).
    Individual projects benefiting a particular sex, race, or ethnic 
group are not violative of section 815(c)(1) unless the granting agency 
or the recipient has engaged in a pattern of granting preferential 
treatment to one such group, and cannot justify the preference on the 
basis of a compelling governmental interest, in the case of racial or 
ethnic discrimination, or a substantial relationship to an important 
governmental function, in the case of sex discrimination.
    Section 42.203(b)(10). On August 25, 1978, the Department of 
Justice, the Equal Employment Opportunity Commission, the Department of 
Labor and the then-Civil Service Commission published the Uniform 
Employee Selection Guidelines codified at 28 CFR 50.14. Since OJARS is a 
component of the Department, these guidelines are applicable to the 
selection procedures of LEAA, NIJ, and BJS recipients. See 44 FR 11996 
(March 2, 1979) for a detailed commentary on the guidelines.
    Section 42.203(c). In the Conference Report on section 518(c) of the 
Crime Control Act (the substantially identical predecessor of section 
815(c)), the managers stated that ``In the area of employment cases 
brought under this section, it is intended by the conferees that the 
standards of title VII of the Civil Rights Act of 1964 apply.'' H. Rept. 
No. 94-1723 (94th Cong., 2d Sess.) at p. 32.
    This section makes the OJARS standards of employment discrimination 
consistent with those used by the Civil Rights Division of the 
Department of Justice. It further clarifies that the burden shifts to 
the employer to validate its selection procedures once OJARS has 
demonstrated that those procedures disproportionately exclude an 
affected class. Discriminatory purpose on the part of the employer, 
which must be shown before the burden shifts in a Fourteenth Amendment 
case such as Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976), 
need not be shown in an employment discrimination case brought under 
section 815(c)(1).
    Section 42.203(j). Section 815(b) of the JSIA reads:
    ``Notwithstanding any other provision of law, nothing contained in 
this title shall be construed to authorize the National Institute of 
Justice, the Bureau of Justice Statistics, or the Law Enforcement 
Assistance Administration (1) to require, or condition the availability 
or amount of a grant upon the adoption by an applicant or grantee under 
this title of a percentage ratio, quota system, or other program to 
achieve racial balance in any criminal justice agency; or (2) to deny or 
discontinue a grant because of the refusal of an applicant or grantee 
under this title to adopt such a ratio, system, or other program.''
    In commenting on the Crime Control Act of 1976, Senator Roman Hruska 
of Nebraska explained the difference between quotas and goals and 
timetables as follows:
    ``Section 518(b) [now 815(b)] of the act prohibits the setting of 
quotas. This provision was unchanged, and this provision will still bind 
the Administration.
    ``LEAA does have an affirmative obligation under this law to seek to 
eliminate discriminatory practices, voluntarily, if possible, prior to 
resorting to fund termination. LEAA can request that a recipient 
eliminate the effect of past discrimination by requiring the recipient 
to commit itself to goals and timetables. The formulation of goals is 
not a quota prohibited by section 518(b) of the act. A goal is a 
numerical objective fixed realistically in terms of the number of 
vacancies expected and the number of qualified applicants available. 
Factors such as a lower attrition rate than expected, bona fide fiscal 
restraints, or a lack of qualified applicants would be acceptable 
reasons for not meeting a goal that has been established and no 
sanctions would accrue under the program.'' Cong. Rec. S 17320 
(September 30, 1976, daily ed.).
    The Senate Judiciary Committee Report on the JSIA also emphasized 
that section 815(b) does not ``undercut subsection (c) in any way; 
subsection (b) has been interpreted so as not to limit LEAA's anti-
discrimination enforcement capabilities. Indeed, recent court decisions 
have made this abundantly clear. See, e.g., United States v. City of Los 
Angeles, No. 77-3460 (C.D. Cal. 2/1/79).'' S. Rept. 96-142, p. 57.
    See also the Equal Employment Opportunity Commission Affirmative 
Action Guidelines, 44 FR 4422 (January 19, 1979).
    Section 42.204. All grantees and subgrantees must make the 
assurances found in paragraph (a). Only State and local units of 
government and agencies thereof must make the assurance found in 
paragraph (c), since, as explained in the commentary on Sec. 42.201(c), 
the enforcement provisions of section

[[Page 829]]

815(c)(2) apply only to governmental recipients.
    Section 42.205(a). Where information available to the Office clearly 
and convincingly demonstrates that the complaint is frivolous or 
otherwise without merit, the complaint will not be investigated, and the 
complainant will be so advised.
    Section 42.205(b). A one-year timeliness requirement is imposed to 
ensure that OJARS will be devoting its resources to the resolution of 
active issues, and to maximize the possibility that necessary witnesses 
and evidence are still available.
    Examples of good cause which would clearly warrant an extension of 
the filing period are a statement from the complainant stating that he 
or she was unware of the discrimination until after a year had passed, 
or that he or she was not aware that a remedy was available through 
OJARS.
    Section 42.205(c)(1). Jurisdiction exists if the complaint alleges 
discrimination on a ground prohibited by section 815(c)(1), if the 
recipient was receiving funds at the time of the discrimination, and the 
respondent named in the complaint is a current recipient of LEAA, NIJ, 
or BJS assistance.
    Prior to a determination of noncompliance, OJARS will attempt to 
negotiate voluntary compliance only during the 30-day period following 
receipt of the Office's preliminary findings, and only at the request of 
the recipient, as provided in Sec. 42.205(c)(3). If a determination of 
noncompliance is made, OJARS will participate in voluntary compliance 
efforts during the 90-day period following the letter sent to the chief 
executive(s) under section 42.208.
    Sections 42.205(c) (3) and (4) and 42.206(e). OJARS will notify the 
appropriate chief executive(s) of its recommendations during the 
voluntary resolution phase of both the complaint investigation and 
compliance review process. OJARS expects that the early involvement of 
the chief executive will often expedite the resolution of issues.
    Section 42.205(c)(5). OJARS will initiate an investigation if the 
litigation discussed in this subparagraph becomes protracted or 
apparently will not resolve the matter within a reasonable time.
    Section 42.205(c)(6). In order to effectively utilize the resources 
of other agencies, and to avoid duplication of effort, OJARS may request 
another agency to act on a particular complaint. OJARS expects this 
practice to be limited, and will attempt to ensure that any cooperative 
agreement reached with another agency is consistent with the timetables 
set forth in Sec. 42.205(c).
    Section 42.206(a). OJARS recognizes the practical impossibility of 
reviewing the compliance of each of its more than 39,000 recipients. The 
regulations seek to expedite the review process by reducing its length 
and narrowing its focus. Compliance reviews may, in some instances, be 
limited to specific employment practices, or other functions of a 
recipient, that appear to have the greatest adverse impact on an 
affected class.
    Section 42.206(b). The factors listed will be considered 
cumulatively by OJARS in selecting recipients for reviews. OJARS will 
consider data from all sources, including information provided by both 
internal and external auditors.
    Section 42.208(b). Upon receipt of the publications listed, OJARS 
will review the case reports for findings that may be violations of 
section 815(c)(1). In the case of the West Publishing Company reporters, 
OJARS will consult the topic ``Civil Rights'' in the Key Number Digests 
contained in the advance sheets.
    Section 42.208(e). This subsection sets forth the minimum procedural 
safeguards that OJARS would require of an administrative hearing to 
assure the process was consistent with the Administrative Procedure Act. 
The sufficiency of other procedures that may vary in form but insure due 
process and the same opportunity for a fair hearing of both parties' 
evidence will be determined by OJARS on a case-by-case basis.
    The Office will compile a list of State agencies whose procedures 
have been found consistent with the Administrative Procedure Act, and a 
list of State agencies whose procedures have been found inconsistent. 
When a finding of an agency not on either list is received, the Office 
will attempt to reliably determine the procedures used to render the 
findings.
    Section 42.209(a). Although the signature of the appropriate chief 
executives are ultimately required on the compliance agreement, these 
regulations do not preclude them from delegating the responsibility for 
securing compliance during the 90-day period following notification, to 
State or local administrative or human rights agencies under their 
respective authority. A compliance agreement may be an agreement to 
comply over a period of time, particularly in complex cases or where 
compliance would require an extended period of time for implementation.
    Section 42.209(b). The regulations require that a copy of the 
proposed compliance agreement be sent to the complainant, if any, before 
the effective date of the agreement. Although the Act would permit a 
copy to be sent as late as the effective date, OJARS believes the 
compliance agreement would be more likely to resolve all concerns and 
discourage litigation if the complainant's views were considered before 
it took effect.
    Section 42.211(b). An example of a case where compliance would 
require an extended period of time for implementation would be a court 
order setting a goal of five years for

[[Page 830]]

an employer to raise the percentage of minorities in its workforce to 
parity with the percentage of minorities in the relevant geographical 
labor force.
    Section 42.213. The full hearing will be conducted in accordance 
with JSIA Hearing and Appeal Procedures, 28 CFR 18.1, et seq.
    Section 42.215(a). In a December 20, 1976 letter to the 
Administrator of LEAA, Congressman Peter Rodino, Chairman of the House 
Judiciary Committee, commented on the regulations proposed to implement 
the substantially identical nondiscrimination provisions of the Crime 
Control Act. He advised the Administrator that ``the committee 
intentionally omitted the word `refer' from the law to ensure that LEAA 
would always retain administrative jurisdiction over a complaint filed 
with them. It is not appropriate for LEAA to refer cases to the Civil 
Rights Division or other Federal or State agencies without monitoring 
the case for prompt resolution.''
    Section 42.215(c)(2). The exhaustion of administrative remedies at 
the end of 60 days (unless the Office has made a determination) does not 
limit OJARS' authority to investigate a complaint after the expiration 
of that period. OJARS will continue to investigate the complaint after 
the end of the 60-day period, if necessary, in accordance with the 
provisions of Sec. 42.205.



        Subpart E_Equal Employment Opportunity Program Guidelines

    Authority: Sec. 501 of the Omnibus Crime Control and Safe Streets 
Act of 1968, Pub. L. 90-351, 82 Stat. 197, as amended.

    Source: 43 FR 28802, June 30, 1978, unless otherwise noted.



Sec. 42.301  Purpose.

    The experience of the Law Enforcement Assistance Administration in 
implementing its responsibilities under the Omnibus Crime Control and 
Safe Streets Act of 1968, as amended (Pub. L. 90-351, 82 Stat. 197; Pub. 
L. 91-644, 84 Stat. 1881) has demonstrated that the full and equal 
participation of women and minority individuals in employment 
opportunities in the criminal justice system is a necessary component to 
the Safe Streets Act's program to reduce crime and delinquency in the 
United States.



Sec. 42.302  Application.

    (a) Recipient means any State or local unit of government or agency 
thereof, and any private entity, institution, or organization, to which 
Federal financial assistance is extended directly, or through such 
government or agency, but such term does not include any ultimate 
beneficiary of such assistance.
    (b) The obligation of a recipient to formulate, implement, and 
maintain an equal employment opportunity program, in accordance with 
this subpart, extends to State and local police agencies, correctional 
agencies, criminal court systems, probation and parole agencies, and 
similar agencies responsible for the reduction and control of crime and 
delinquency.
    (c) Assignments of compliance responsibility for title VI of the 
Civil Rights Act of 1964 have been made by the Department of Justice to 
the Department of Health and Human Services, covering educational 
institutions and general hospital or medical facilities. Similarly, the 
Department of Labor, in pursuance of its authority under Executive 
Orders 11246 and 11375, has assigned responsibility for monitoring equal 
employment opportunity under government contracts with medical and 
educational institutions, and non-profit organizations, to the 
Department of Health and Human Services. Accordingly, monitoring 
responsibility in compliance matters in agencies of the kind mentioned 
in this paragraph rests with the Department of Health and Human 
Services, and agencies of this kind are exempt from the provisions of 
this subpart, and are not responsible for the development of equal 
employment opportunity programs in accordance herewith.
    (d) Each recipient of LEAA assistance within the criminal justice 
system which has 50 or more employees and which has received grants or 
subgrants of $25,000 or more pursuant to and since the enactment of the 
Safe Streets Act of 1968, as amended, and which has a service population 
with a minority representation of 3 percent or more, is required to 
formulate, implement and maintain an equal employment opportunity 
program relating to employment practices affecting minority persons and 
women within 120 days after either the promulgation of these amended 
guidelines, or the initial application for assistance is approved, 
whichever is sooner. Where a recipient

[[Page 831]]

has 50 or more employees, and has received grants or subgrants of 
$25,000 or more, and has a service population with a minority 
representation of less than 3 percent, such recipient is required to 
formulate, implement, and maintain an equal employment opportunity 
program relating to employment practices affecting women. For a 
definition of ``employment practices'' within the meaning of this 
paragraph, see Sec. 42.202(c).
    (e) Minority persons shall include persons who are Black, not of 
Hispanic origin; Asian or Pacific Islanders; American Indians or Alaskan 
Native; or Hispanics. These categories are defined at 28 CFR 42.402(e).
    (f) Fiscal year means the 12 calendar months beginning October 1, 
and ending September 30, of the following calendar year. A fiscal year 
is designated by the calendar year in which it ends.

[43 FR 28802, June 30, 1978, as amended by Order No. 960-81, 46 FR 
52357, Oct. 27, 1981]



Sec. 42.303  Evaluation of employment opportunities.

    (a) A necessary prerequisite to the development and implementation 
of a satisfactory equal employment opportunity program is the 
identification and analysis of any problem areas inherent in the 
utilization or participation of minorities and women in all of the 
recipient's employment phases (e.g., recruitment, selection, and 
promotion) and the evaluation of employment opportunities for minorities 
and women.
    (b) In many cases an effective equal employment opportunity program 
may only be accomplished where the program is coordinated by the 
recipient agency with the cognizant Office of Personnel Management or 
similar agency responsible by law, in whole or in part, for the 
recruitment and selection of entrance candidates and selection of 
candidates for promotion.
    (c) In making the evaluation of employment opportunities, the 
recipient shall conduct such analysis separately for minorities and 
women. However, all racial and ethnic data collected to perform an 
evaluation pursuant to the requirements of this section should be cross 
classified by sex to ascertain the extent to which minority women or 
minority men may be underutilized. The evaluation should include but not 
necessarily be limited to, the following factors:
    (1) An analysis of present representation of women and minority 
persons in all job categories;
    (2) An analysis of all recruitment and employment selection 
procedures for the preceding fiscal year, including such things as 
position descriptions, application forms, recruitment methods and 
sources, interview procedures, test administration and test validity, 
educational prerequisites, referral procedures and final selection 
methods, to insure that equal employment opportunity is being afforded 
in all job categories;
    (3) An analysis of seniority practices and provisions, upgrading and 
promotion procedures, transfer procedures (lateral or vertical), and 
formal and informal training programs during the preceding fiscal year, 
in order to insure that equal employment opportunity is being afforded;
    (4) A reasonable assessment to determine whether minority employment 
is inhibited by external factors such as the lack of access to suitable 
housing in the geographical area served by a certain facility or the 
lack of suitable transportation (public or private) to the workplace.

[43 FR 28802, June 30, 1978, as amended by Order No. 899-80, 45 FR 
43703, June 30, 1980]



Sec. 42.304  Written equal employment opportunity program.

    Each recipient's equal employment opportunity program shall be in 
writing and shall include:
    (a) A job classification table or chart which clearly indicates for 
each job classification or assignment the number of employees within 
each respective job category classified by race, sex and national origin 
(include for example Hispanic, Asian or Pacific Islander, and American 
Indian or Alaskan Native). Also, principal duties and rates of pay 
should be clearly indicated for each job classification. Where auxiliary 
duties are assigned or more than one rate of pay applies because of 
length of time in the job or other factors, a special notation should be 
made. Where the recipient operates more than one

[[Page 832]]

shift or assigns employees within each shift to varying locations, as in 
law enforcement agencies, the number by race, sex and national origin on 
each shift and in each location should be identified. When relevant, the 
recipient should indicate the racial/ethnic mix of the geographic area 
of assignments by the inclusion of minority population and percentage 
statistics.
    (b) The number of disciplinary actions taken against employees by 
race, sex and national origin within the preceding fiscal year, the 
number and types of sanctions imposed (suspension indefinitely, 
suspension for a term, loss of pay, written reprimand, oral reprimand, 
other) against individuals by race, sex and national origin.
    (c) The number of individuals by race, sex and national origin (if 
available) applying for employment within the preceding fiscal year and 
the number by race, sex and national origin (if available) of those 
applicants who were offered employment and those who were actually 
hired. If such data is unavailable, the recipient should institute a 
system for the collection of such data.
    (d) The number of employees in each job category by race, sex and 
national origin who made application for promotion or transfer within 
the preceding fiscal year and the number in each job category by race, 
sex, and national origin who were promoted or transferred.
    (e) The number of employees by race, sex, and national origin who 
were terminated within the preceding fiscal year, identifying by race, 
sex, and national origin which were voluntary and involuntary 
terminations.
    (f) Available community and area labor characteristics within the 
relevant geographical area including total population, workforce and 
existing unemployment by race, sex and national origin. Such data may be 
obtained from the Bureau of Labor Statistics, Washington, DC, State and 
local employment services, or other reliable sources. Recipient should 
identify the sources of the data used.
    (g) A detailed narrative statement setting forth the recipient's 
existing employment policies and practices as defined in Sec. 
42.202(c). Thus, for example, where testing is used in the employment 
selection process, it is not sufficient for the recipient to simply note 
the fact. The recipient should identify the test, describe the 
procedures followed in administering and scoring the test, state what 
weight is given to test scores, how a cut-off score is established and 
whether the test has been validated to predict or measure job 
performance and, if so, a detailed description of the validation study. 
Similarly detailed responses are required with respect to other 
employment policies, procedures, and practices used by the applicant.
    (1) The statement should include the recipient's detailed analysis 
of existing employment policies, procedures, and practices as they 
relate to employment of minorities and women (see Sec. 42.303) and, 
where improvements are necessary, the statement should set forth in 
detail the specific steps the recipient will take for the achievement of 
full and equal employment opportunity. The Department of Justice 
Guidelines on Employee Selection Procedures, 28 CFR part 50, set out the 
appropriate standards for nondiscriminatory selection procedures. 
Recipients of LEAA assistance using selection procedures which are not 
in conformity with the Department of Justice guidelines shall set forth 
the specific areas of nonconformity, the reasons which may explain any 
such nonconformity, and if necessary, the steps the recipient agency 
will take to correct any existing deficiency.
    (2) The recipient should also set forth a program for recruitment of 
minority persons based on an informed judgment of what is necessary to 
attract minority applications including, but not necessarily limited to, 
dissemination of posters, use of advertising media patronized by 
minorities, minority group contacts and community relations programs. As 
appropriate, recipients may wish to refer to recruitment techniques 
suggested in revised order No. 4 of the Office of Federal Contract 
Compliance, U.S. Department of Labor, found at 41 CFR 60-2.24(e).

[[Page 833]]

    (h) Plan for dissemination of the applicant's Equal Employment 
Opportunity Program to all personnel, applicants and the general public. 
As appropriate, recipients may wish to refer to the recommendations for 
dissemination of policy suggested in revised order No. 4 of the Office 
of Federal Contract Compliance, U.S. Department of Labor, found at 41 
CFR 60-2.21.
    (i) Designation of specified personnel to implement and maintain 
adherence to the equal employment opportunity program and a description 
of their specific responsibilities suggested in revised order No. 4 of 
the Office of Federal Contract Compliance, U.S. Department of Labor, 
found at 41 CFR 60-2.22.



Sec. 42.305  Recordkeeping and certification.

    The equal employment opportunity program and all records used in its 
preparation shall be kept on file and retained by each recipient covered 
by these guidelines for subsequent audit or review by responsible 
personnel of the cognizant State planning agency or the LEAA. Prior to 
the authorization to fund new or continuing programs under the Omnibus 
Crime Control and Safe Streets Act of 1968, the recipient shall file a 
certificate with the cognizant State planning agency or with the LEAA 
Office of Civil Rights Compliance stating that the equal employment 
opportunity program is on file with the recipient. This form of the 
certification shall be as follows:

    I, ---------- (person filing the application) certify that the ----
------ (criminal justice agency) has formulated an equal employment 
program in accordance with 28 CFR 42.301, et seq., subpart E, and that 
it is on file in the Office of ---------- (name), ---------- (address), 
---------- (title), for review or audit by officials of the cognizant 
State planning agency or the Law Enforcement Assistance Administration 
as required by relevant laws and regulations.


The criminal justice agency created by the Governor to implement the 
Safe Streets Act within each State shall certify that it requires, as a 
condition of the receipt of block grant funds, that recipients from it 
have executed an Equal Employment Opportunity Program in accordance with 
this subpart, or that, in conformity with the terms and conditions of 
this regulation no equal employment opportunity programs are required to 
be filed by that jurisdiction.



Sec. 42.306  Guidelines.

    (a) Recipient agencies are expected to conduct a continuing program 
of self-evaluation to ascertain whether any of their recruitment, 
employee selection or promotional policies (or lack thereof) directly or 
indirectly have the effect of denying equal employment opportunities to 
minority individuals and women.
    (b) Equal employment program modification may be suggested by LEAA 
whenever identifiable referral or selection procedures and policies 
suggest to LEAA the appropriateness of improved selection procedures and 
policies. Accordingly, any recipient agencies falling within this 
category are encouraged to develop recruitment, hiring or promotional 
guidelines under their equal employment opportunity program which will 
correct, in a timely manner, any identifiable employment impediments 
which may have contributed to the existing disparities.



Sec. 42.307  Obligations of recipients.

    The obligation of those recipients subject to these guidelines for 
the maintenance of an equal employment opportunity program shall 
continue for the period during which the LEAA assistance is extended to 
a recipient or for the period during which a comprehensive law 
enforcement plan filed pursuant to the Safe Streets Act is in effect 
within the State, whichever is longer, unless the assurances of 
compliance, filed by a recipient in accordance with Sec. 42.204(a)(2), 
specify a different period.



Sec. 42.308  Noncompliance.

    Failure to implement and maintain an equal employment opportunity 
program as required by these guidelines shall subject recipients of LEAA 
assistance to the sanctions prescribed by the Safe Streets Act and the 
equal employment opportunity regulations of the Department of Justice. 
(See 42 U.S.C. 3757 and 28 CFR 42.207.)

[[Page 834]]



Subpart F_Coordination of Enforcement of Non-discrimination in Federally 
                            Assisted Programs

    Authority: Executive Order 12250.

    Source: Order No. 670-76, 41 FR 52669, Dec. 1, 1976, unless 
otherwise noted.



Sec. 42.401  Purpose and application.

    The purpose of this subpart is to insure that federal agencies which 
extend financial assistance properly enforce title VI of the Civil 
Rights Act of 1964 and similar provisions in federal grant statutes. 
Enforcement of the latter statutes is covered by this subpart to the 
extent that they relate to prohibiting discrimination on the ground of 
race, color or national origin in programs receiving federal financial 
assistance of the type subject to title VI. Responsibility for enforcing 
title VI rests with the federal agencies which extend financial 
assistance. In accord with the authority granted the Attorney General 
under Executive Order 12250, this subpart shall govern the respective 
obligations of federal agencies regarding enforcement of title VI. This 
subpart is to be used in conjunction with the 1965 Attorney General 
Guidelines for Enforcement of title VI, 28 CFR 50.3.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No. 
960-81, 46 FR 52357, Oct. 27, 1981]



Sec. 42.402  Definitions.

    For purpose of this subpart:
    (a) Title VI refers to title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d to 2000d-4. Where appropriate, this term also refers to the 
civil rights provisions of other federal statutes to the extent that 
they prohibit discrimination on the ground of race, color or national 
origin in programs receiving federal financial assistance of the type 
subject to title VI itself.
    (b) Agency or federal agency refers to any federal department or 
agency which extends federal financial assistance of the type subject to 
title VI.
    (c) Program refers to programs and activities receiving federal 
financial assistance of the type subject to title VI.
    (d) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice.
    (e) Where designation of persons by race, color or national origin 
is required, the following designations shall be used:
    (1) Black, not of Hispanic Origin. A person having origins in any of 
the black racial groups of Africa.
    (2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or 
South American or other Spanish Culture or origin, regardless of race.
    (3) Asian or Pacific Islander. A person having origins in any of the 
original peoples of the Far East, Southeast Asia, the Indian 
Subcontinent, or the Pacific Islands. This area includes, for example, 
China, Japan, Korea, the Philippine Islands, and Samoa.
    (4) American Indian or Alaskan Native. A person having origins in 
any of the original peoples of North America, and who maintain cultural 
identification through tribal affiliation or community recognition.
    (5) White, not of Hispanic Origin. A person having origins in any of 
the original people of Europe, North Africa, or the Middle East. 
Additional sub-categories based on national origin or primary language 
spoken may be used where appropriate, on either a national or a regional 
basis. Paragraphs (e)(1) through (e)(5) of this section, inclusive, set 
forth in this section are in conformity with the OMB Ad Hoc Committee on 
Race/Ethnic Categories' recommendations. To the extent that said 
designations are modified by the OMB Ad Hoc Committee, paragraphs (e)(1) 
through (e)(5) of this section, inclusive, set forth in this section 
shall be interpreted to conform with those modifications.
    (f) Covered employment means employment practices covered by title 
VI. Such practices are those which:
    (1) Exist in a program where a primary objective of the federal 
financial assistance is to provide employment, or
    (2) Cause discrimination on the basis of race, color or national 
origin with respect to beneficiaries or potential beneficiaries of the 
assisted program.

[[Page 835]]



Sec. 42.403  Agency regulations.

    (a) Any federal agency subject to title VI which has not issued a 
regulation implementing title VI shall do so as promptly as possible 
and, no later than the effective date of this subpart, shall submit a 
proposed regulation to the Assistant Attorney General pursuant to 
paragraph (c) of this section.
    (b) Any federal agency which becomes subject to title VI after the 
effective date of this subpart shall, within 60 days of the date it 
becomes subject to title VI, submit a proposed regulation to the 
Assistant Attorney General pursuant to paragraph (c) of this section.
    (c) Regarding issuance or amendment of its regulation implementing 
title VI, a federal agency shall take the following steps:
    (1) Before publishing a proposed regulation of amendment in the 
Federal Register, submit it to the Assistant Attorney General, Civil 
Rights Division;
    (2) After receiving the approval of the Assistant Attorney General, 
publish the proposed regulation or amendment in the Federal Register for 
comment;
    (3) After final agency approval, submit the regulation or amendment, 
through the Assistant Attorney General, to the Attorney General for 
final approval. (Executive Order 12250 delegates to the Attorney General 
the function, vested in the President by section 602 of title VI, 42 
U.S.C. 2000d-1, of approving title VI regulations and amendments to 
them.)
    (d) The title VI regulation of each federal agency shall be 
supplemented with an appendix listing the types of federal financial 
assistance, i.e., the statutes authorizing such assistance, to which the 
regulation applies. Each such appendix shall be kept up-to-date by 
amendments published, at appropriate intervals, in the Federal Register. 
In issuing or amending such an appendix, the agency need not follow the 
procedure set forth in paragraph (c) of this section.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No. 
960-81, 46 FR 52357, Oct. 27, 1981]



Sec. 42.404  Guidelines.

    (a) Federal agencies shall publish title VI guidelines for each type 
of program to which they extend financial assistance, where such 
guidelines would be appropriate to provide detailed information on the 
requirements of title VI. Such guidelines shall be published within 
three months of the effective date of this subpart or of the effective 
date of any subsequent statute authorizing federal financial assistance 
to a new type of program. The guidelines shall describe the nature of 
title VI coverage, methods of enforcement, examples of prohibited 
practices in the context of the particular type of program, required or 
suggested remedial action, and the nature of requirements relating to 
covered employment, data collection, complaints and public information.
    (b) Where a federal agency determines that title VI guidelines are 
not appropriate for any type of program to which it provides financial 
assistance, the reasons for the determination shall be stated in writing 
and made available to the public upon request.



Sec. 42.405  Public dissemination of title VI information.

    (a) Federal agencies shall make available and, where appropriate, 
distribute their title VI regulations and guidelines for use by federal 
employees, applicants for federal assistance, recipients, beneficiaries 
and other interested persons.
    (b) State agency compliance programs (see Sec. 42.410) shall be 
made available to the public.
    (c) Federal agencies shall require recipients, where feasible, to 
display prominently in reasonable numbers and places posters which state 
that the recipients operate programs subject to the nondiscrimination 
requirements of title VI, summarize those requirements, note the 
availability of title VI information from recipients and the federal 
agencies, and explain briefly the procedures for filing complaints. 
Federal agencies and recipients shall also include information on title 
VI requirements, complaint procedures and the rights of beneficiaries in 
handbooks, manuals, pamphlets and other

[[Page 836]]

material which are ordinarily distributed to the public to describe the 
federally assisted programs and the requirements for participation by 
recipients and beneficiaries. To the extent that recipients are required 
by law or regulation to publish or broadcast program information in the 
news media, federal agencies and recipients shall insure that such 
publications and broadcasts state that the program in question is an 
equal opportunity program or otherwise indicate that discrimination in 
the program is prohibited by federal law.
    (d)(1) Where a significant number or proportion of the population 
eligible to be served or likely to be directly affected by a federally 
assisted program (e.g., affected by relocation) needs service or 
information in a language other than English in order effectively to be 
informed of or to participate in the program, the recipient shall take 
reasonable steps, considering the scope of the program and the size and 
concentration of such population, to provide information in appropriate 
languages to such persons. This requirement applies with regard to 
written material of the type which is ordinarily distributed to the 
public.
    (2) Federal agencies shall also take reasonable steps to provide, in 
languages other than English, information regarding programs subject to 
title VI.



Sec. 42.406  Data and information collection.

    (a) Except as determined to be inappropriate in accordance with 
paragraph (f) of this section or Sec. 42.404(b), federal agencies, as a 
part of the guidelines required by Sec. 42.404, shall in regard to each 
assisted program provide for the collection of data and information from 
applicants for and recipients of federal assistance sufficient to permit 
effective enforcement of title VI.
    (b) Pursuant to paragraph (a) of this section, in conjunction with 
new applications for federal assistance (see 28 CFR 50.3(c) II A) and in 
any applications for approval of specific projects or significant 
changes in applications for continuation or renewal of assistance (see 
28 CFR 50.3(c) II B), and at other times as appropriate, federal 
agencies shall require applicants and recipients to provide relevant and 
current title VI information. Examples of data and information which, to 
the extent necessary and appropriate for determining compliance with 
title VI, should be required by agency guidelines are as follows:
    (1) The manner in which services are or will be provided by the 
program in question, and related data necessary for determining whether 
any persons are or will be denied such services on the basis of 
prohibited discrimination;
    (2) The population eligible to be served by race, color and national 
origin;
    (3) Data regarding covered employment, including use or planned use 
of bilingual public-contact employees serving beneficiaries of the 
program where necessary to permit effective participation by 
beneficiaries unable to speak or understand English;
    (4) The location of existing or proposed facilities connected with 
the program, and related information adequate for determining whether 
the location has or will have the effect of unnecessarily denying access 
to any persons on the basis of prohibited discrimination;
    (5) The present or proposed membership, by race, color and national 
origin, in any planning or advisory body which is an integral part of 
the program;
    (6) Where relocation is involved, the requirements and steps used or 
proposed to guard against unnecessary impact on persons on the basis of 
race, color or national origin.
    (c) Where additional data, such as demographic maps, the racial 
composition of affected neighborhoods or census data, is necessary or 
appropriate, for understanding information required in paragraph (b) of 
this section, federal agencies shall specify, in their guidelines or in 
other directives, the need to submit such data. Such additional data 
should be required, however, only to the extent that it is readily 
available or can be compiled with reasonable effort.
    (d) Pursuant to paragraphs (a) and (b) of this section, in all 
cases, federal agencies shall require:
    (1) That each applicant or recipient promptly notify the agency upon 
its request of any lawsuit filed against the

[[Page 837]]

applicant or recipient alleging discrimination on the basis of race, 
color or national origin, and that each recipient notify the agency upon 
its request of any complaints filed against the recipient alleging such 
discrimination;
    (2) A brief description of any applicant's or recipient's pending 
applications to other federal agencies for assistance, and of federal 
asssistance being provided at the time of the application or requested 
report;
    (3) A statement by any applicant describing any civil rights 
compliance reviews regarding the applicant conducted during the two-year 
period before the application, and information concerning the agency or 
organization performing the review; and periodic statements by any 
recipient regarding such reviews;
    (4) A written assurance by any applicant or recipient that it will 
compile and maintain records required, pursuant to paragraphs (a) and 
(b) of this section, by the agency's guidelines or other directives.
    (e) Federal agencies should inquire whether any agency listed by the 
applicant or recipient pursuant to paragraph (d)(2) of this section has 
found the applicant or recipient to be in noncompliance with any 
relevant civil rights requirement.
    (f) Where a federal agency determines that any of the requirements 
of this section are inapplicable or inappropriate in regard to any 
program, the basis for this conclusion shall be set forth in writing and 
made available to the public upon request.



Sec. 42.407  Procedures to determine compliance.

    (a) Agency staff determination responsibility. All federal agency 
staff determinations of title VI compliance shall be made by, or be 
subject to the review of, the agency's civil rights office. Where 
federal agency responsibility for approving applications or specific 
projects has been assigned to regional or area offices, the agency shall 
include personnel having title VI review responsibility on the staffs of 
such offices and such personnel shall perform the functions described in 
paragraphs (b) and (c) of this section.
    (b) Application review. Prior to approval of federal financial 
assistance, the federal agency shall make written determination as to 
whether the applicant is in compliance with title VI (see 28 CFR 50.3(c) 
II A). The basis for such a determination under ``the agency's own 
investigation'' provision (see 28 CFR 50.3(c) II A(2)), shall be 
submission of an assurance of compliance and a review of the data 
submitted by the applicant. Where a determination cannot be made from 
this data, the agency shall require the submission of necessary 
additional information and shall take other steps necessary for making 
the determination. Such other steps may include, for example, 
communicating with local government officials or minority group 
organizations and field reviews. Where the requested assistance is for 
construction, a pre-approval review should determine whether the 
location and design of the project will provide service on a 
nondiscriminatory basis and whether persons will be displaced or 
relocated on a nondiscriminatory basis.
    (c) Post-approval review. (1) Federal agencies shall establish and 
maintain an effective program of post-approval compliance reviews 
regarding approved new applications (see 28 CFR 50.3(c) II A), 
applications for continuation or renewal of assistance (28 CFR 50.3(c) 
II B) and all other federally assisted programs. Such reviews are to 
include periodic submission of compliance reports by recipients to the 
agencies and, where appropriate, field reviews of a representative 
number of major recipients. In carrying out this program, agency 
personnel shall follow agency manuals which establish appropriate review 
procedures and standards of evaluation. Additionally, agencies should 
consider incorporating a title VI component into general program reviews 
and audits.
    (2) The results of post-approval reviews shall be committed to 
writing and shall include specific findings of fact and recommendations. 
A determination of the compliance status of the recipient reviewed shall 
be made as promptly as possible.
    (d) Notice to assistant attorney general. Federal agencies shall 
promptly notify

[[Page 838]]

the Assistant Attorney General of instances of probable noncompliance 
determined as the result of application reviews or post-approval 
compliance reviews.



Sec. 42.408  Complaint procedures.

    (a) Federal agencies shall establish and publish in their guidelines 
procedures for the prompt processing and disposition of complaints. The 
complaint procedures shall provide for notification in writing to the 
complainant and the applicant or recipient as to the disposition of the 
complaint. Federal agencies should investigate complaints having 
apparent merit. Where such complaints are not investigated, good cause 
must exist and must be stated in the notification of disposition. In 
such cases, the agency shall ascertain the feasibility of referring the 
complaint to the primary recipient, such as a State agency, for 
investigation.
    (b) Where a federal agency lacks jurisdiction over a complaint, the 
agency shall, wherever possible, refer the complaint to another federal 
agency or advise the complainant.
    (c) Where a federal agency requires or permits recipient to process 
title VI complaints, the agency shall ascertain whether the recipients' 
procedures for processing complaints are adequate. The federal agency 
shall obtain a written report of each such complaint and investigation 
and shall retain a review responsibility over the investigation and 
disposition of each complaint.
    (d) Each federal agency shall maintain a log of title VI complaints 
filed with it, and with its recipients, identifying each complainant by 
race, color, or national origin; the recipient; the nature of the 
complaint; the dates the complaint was filed and the investigation 
completed; the disposition; the date of disposition; and other pertinent 
information. Each recipient processing title VI complaints shall be 
required to maintain a similar log. Federal agencies shall report to the 
Assistant Attorney General on January 1, 1977, and each six months 
thereafter, the receipt, nature and disposition of all such title VI 
complaints.



Sec. 42.409  Employment practices.

    Enforcement of title VI compliance with respect to covered 
employment practices shall not be superseded by state and local merit 
systems relating to the employment practices of the same recipient.



Sec. 42.410  Continuing State programs.

    Each state agency administering a continuing program which receives 
federal financial assistance shall be required to establish a title VI 
compliance program for itself and other recipients which obtain federal 
assistance through it. The federal agencies shall require that such 
state compliance programs provide for the assignment of title VI 
responsibilities to designated state personnel and comply with the 
minimum standards established in this subpart for federal agencies, 
including the maintenance of records necessary to permit federal 
officials to determine the title VI compliance of the state agencies and 
the sub-recipient.



Sec. 42.411  Methods of resolving noncompliance.

    (a) Effective enforcement of title VI requires that agencies take 
prompt action to achieve voluntary compliance in all instances in which 
noncompliance is found. Where such efforts have not been successful 
within a reasonable period of time, the agency shall initiate 
appropriate enforcement procedures as set forth in the 1965 Attorney 
General Guidelines, 28 CFR 50.3. Each agency shall establish internal 
controls to avoid unnecessary delay in resolving noncompliance, and 
shall promptly notify the Assistant Attorney General of any case in 
which negotiations have continued for more than sixty days after the 
making of the determination of probable noncompliance and shall state 
the reasons for the length of the negotiations.
    (b) Agreement on the part of a noncomplying recipient to take 
remedial steps to achieve compliance with title VI shall be set forth in 
writing by the recipient and the federal agency. The remedial plan shall 
specify the action necessary for the correction of title VI deficiencies 
and shall be available to the public.

[[Page 839]]



Sec. 42.412  Coordination.

    (a) The Attorney General's authority under Executive Order 12250 is 
hereby delegated to the Assistant Attorney General, Civil Rights 
Division.
    (b) Consistent with this subpart and the 1965 Attorney General 
Guidelines, 28 CFR 50.3, the Assistant Attorney General may issue such 
directives and take such other action as he deems necessary to insure 
that federal agencies carry out their responsibilities under title VI. 
In addition, the Assistant Attorney General will routinely provide to 
the Director of the Office of Management and Budget copies of all inter-
agency survey reports and related materials prepared by the Civil Rights 
Division that evaluate the effectiveness of an agency's title VI 
compliance efforts. Where cases or matters are referred to the Assistant 
Attorney General for investigation, litigation or other appropriate 
action, the federal agencies shall, upon request, provide appropriate 
resources to the Assistant Attorney General to assist in carrying out 
such action.

[Order No. 670-76, 41 FR 52669, Dec. 1, 1976, as amended by Order No. 
699-77, 42 FR 15315, Mar. 21, 1977; Order No. 960-81, 46 FR 52357, Oct. 
27, 1981]



Sec. 42.413  Interagency cooperation and delegations.

    (a) Where each of a substantial number of recipients is receiving 
assistance for similar or related purposes from two or more federal 
agencies, or where two or more federal agencies cooperate in 
administering assistance for a given class of recipients, the federal 
agencies shall:
    (1) Jointly coordinate compliance with title VI in the assisted 
programs, to the extent consistent with the federal statutes under which 
the assistance is provided; and
    (2) Designate one of the federal agencies as the lead agency for 
title VI compliance purposes. This shall be done by a written delegation 
agreement, a copy of which shall be provided to the Assistant Attorney 
General and shall be published in the Federal Register.
    (b) Where such designations or delegations of functions have been 
made, the agencies shall adopt adequate written procedures to assure 
that the same standards of compliance with title VI are utilized at the 
operational levels by each of the agencies. This may include 
notification to agency personnel in handbooks, or instructions on any 
forms used regarding the compliance procedures.
    (c) Any agency conducting a compliance review or investigating a 
complaint of an alleged title VI violation shall notify any other 
affected agency upon discovery of its jurisdiction and shall 
subsequently inform it of the findings made. Such reviews or 
investigations may be made on a joint basis.
    (d) Where a compliance review or complaint investigation under title 
VI reveals a possible violation of Executive Order 11246, title VII of 
the Civil Rights Act of 1964 (42 U.S.C. 2000e), or any other federal 
law, the appropriate agency shall be notified.



Sec. 42.414  Federal agency staff.

    Sufficient personnel shall be assigned by a federal agency to its 
title VI compliance program to ensure effective enforcement of title VI.



Sec. 42.415  Federal agency title VI enforcement plan.

    Each federal agency subject to title VI shall develop a written plan 
for enforcement which sets out its priorities and procedures. This plan 
shall be available to the public and shall address matters such as the 
method for selecting recipients for compliance reviews, the 
establishment of timetables and controls for such reviews, the procedure 
for handling complaints, the allocation of its staff to different 
compliance functions, the development of guidelines, the determination 
as to when guidelines are not appropriate, and the provision of civil 
rights training for its staff.



  Subpart G_Nondiscrimination Based on Handicap in Federally Assisted 
      Programs or Activities_Implementation of Section 504 of the 
                       Rehabilitation Act of 1973

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 706, 794; 
E.O. 12250.

[[Page 840]]


    Source: 45 FR 37622, June 3, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes by Order No. 2679-2003, appear 
at 68 FR 51364, 51365, 51366, Aug. 26, 2003.

                           General Provisions



Sec. 42.501  Purpose.

    The purpose of this subpart is to implement section 504 of the 
Rehabilitation Act of 1973, as amended, which prohibits discrimination 
on the basis of handicap in any program or activity receiving Federal 
financial assistance.



Sec. 42.502  Application.

    This subpart applies to each recipient of Federal financial 
assistance from the Department of Justice and to each program or 
activity receiving such assistance. The requirements of this subpart do 
not apply to the ultimate beneficiaries of Federal financial assistance 
in the program or activity receiving Federal financial assistance.



Sec. 42.503  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, solely on the 
basis of handicap, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination under any 
program or activity receiving Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient may not 
discriminate on the basis of handicap in the following ways directly or 
through contractual, licensing, or other arrangements under any program 
or activity receiving Federal financial assistance:
    (i) Deny a qualified handicapped person the opportunity accorded 
others to participate in the program or activity receiving Federal 
financial assistance;
    (ii) Deny a qualified handicapped person an equal opportunity to 
achieve the same benefits that others achieve in the program or activity 
receiving Federal financial assistance;
    (iii) Provide different or separate assistance to handicapped 
persons or classes of handicapped persons than is provided to others 
unless such action is necessary to provide qualified handicapped persons 
or classes of handicapped persons with assistance as effective as that 
provided to others;
    (iv) Deny a qualified handicapped person an equal opportunity to 
participate in the program or activity by providing services to the 
program;
    (v) Deny a qualified handicapped person an opportunity to 
participate as a member of a planning or advisory body;
    (vi) Permit the participation in the program or activity of 
agencies, organizations or persons which discriminate against the 
handicapped beneficiaries in the recipient's program;
    (vii) Intimidate or retaliate against any individual, whether 
handicapped or not, for the purpose of interfering with any right 
secured by section 504 or this subpart.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in any program or activity receiving Federal 
financial assistance on the ground that other specialized aid, benefits, 
or services for handicapped persons are available.
    (3) A recipient may not, directly or through contractual, licensing, 
or other arrangements, utilize criteria or methods of administration 
that either purposely or in effect discriminate on the basis of 
handicap, defeat or substantially impair accomplishment of the 
objectives of the recipient's program or activity with respect to 
handicapped persons, or perpetuate the discrimination of another 
recipient if both recipients are subject to common administrative 
control or are agencies of the same State.
    (4) A recipient may not, in determining the location or design of a 
facility, make selections that either purposely or in effect 
discriminate on the basis of handicap or defeat or substantially impair 
the accomplishment of the objectives of the program or activity with 
respect to handicapped persons.
    (5) A recipient is prohibited from discriminating on the basis of 
handicap in aid, benefits, or services operating without Federal 
financial assistance where such action would discriminate against the 
handicapped beneficiaries or participants in any program or activity of 
the recipient receiving Federal financial assistance.
    (6) Any entity not otherwise receiving Federal financial assistance 
but using a facility provided with the aid of

[[Page 841]]

Federal financial assistance after the effective date of this subpart is 
prohibited from discriminating on the basis of handicap.
    (c) The exclusion of nonhandicapped persons or specified classes of 
handicapped persons from aid, benefits, or services limited by Federal 
statute or executive order to handicapped persons or a different class 
of handicapped persons is not prohibited by this subpart.
    (d) Recipients shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (e) Recipients shall insure that communications with their 
applicants, employees and beneficiaries are effectively conveyed to 
those having impaired vision and hearing.
    (f) A recipient that employs fifteen or more persons shall provide 
appropriate auxiliary aids to qualified handicapped persons with 
impaired sensory, manual, or speaking skills where a refusal to make 
such provision would discriminatorily impair or exclude the 
participation of such persons in a program or activity receiving Federal 
financial assistance. Such auxiliary aids may include brailled and taped 
material, qualified interpreters, readers, and telephonic devices. 
Attendants, individually prescribed devices, readers for personal use or 
study, or other devices or services of a personal nature are not 
required under this section. Departmental officials may require 
recipients employing fewer than fifteen persons to provide auxiliary 
aids when this would not significantly impair the ability of the 
recipient to provide its benefits or services.
    (g) The enumeration of specific forms of prohibited discrimination 
in this subpart is not exhaustive but only illustrative.



Sec. 42.504  Assurances required.

    (a) Assurances. Every application for Federal financial assistance 
covered by this subpart shall contain an assurance that the program or 
activity will be conducted in compliance with the requirements of 
section 504 and this subpart. Each agency within the Department that 
provides Federal financial assistance shall specify the form of the 
foregoing assurance and shall require applicants for Department 
financial assistance to obtain like assurances from subgrantees, 
contractors and subcontractors, transferees, successors in interest, and 
others connected with the program or activity. Each Department agency 
shall specify the extent to which an applicant will be required to 
confirm that the assurances provided by secondary recipients are being 
honored. Each assurance shall include provisions giving notice that the 
United States has a right to seek judicial enforcement of section 504 
and the assurance.
    (b) Assurances from government agencies. Assurances from agencies of 
State and local governments shall extend to any other agency of the same 
governmental unit if the policies of the other agency will affect the 
program or activity for which Federal financial assistance is requested.
    (c) Assurances from institutions. The assurances required with 
respect to any institution or facility shall be applicable to the entire 
institution or facility.
    (d) Duration of obligation. Where the Federal financial assistance 
is to provide or is in the form of real or personal property, the 
assurance will obligate the recipient and any transferee for the period 
during which the property is being used for the purpose for which the 
Federal financial assistance is extended or for another purpose 
involving the provisions of similar benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.
    (e) Covenants. With respect to any transfer of real property, the 
transfer document shall contain a covenant running with the land 
assuring nondiscrimination on the condition described in paragraph (d) 
of this section. Where the property is obtained from the Federal 
Government, the covenant may also include a condition coupled with a 
right to be reserved by the Department to revert title to the property 
in the event of a breach of the covenant.

[[Page 842]]

    (f) Remedies. The failure to secure either an assurance or a 
sufficient assurance from a recipient shall not impair the right of the 
Department to enforce the requirements of section 504 and this subpart.



Sec. 42.505  Administrative requirements for recipients.

    (a) Remedial action. If the Department finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this subpart, the recipient shall take the remedial 
action the Department considers necessary to overcome the effects of the 
discrimination. This may include remedial action with respect to 
handicapped persons who are no longer participants in the recipient's 
program or activity but who were participants in the program when such 
discrimination occurred, and with respect to handicapped persons who 
would have been participants in the program had the discrimination not 
occurred.
    (b) Voluntary action. A recipient may take steps, in addition to the 
requirements of this subpart, to increase the participation of qualified 
handicapped persons in the recipient's program or activity.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this subpart, evaluate and modify its policies and 
practices that do not meet the requirements of this subpart. During this 
process the recipient shall seek the advice and assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons. During this period and thereafter the recipient 
shall take any necessary remedial steps to eliminate the effects of 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient employing fifty or more persons and receiving 
Federal financial assistance from the Department of $25,000 or more 
shall, for at least three years following completion of the evaluation 
required under paragraph (c)(1) of this section, maintain on file, make 
available for public inspection, and provide to the Department on 
request:
    (i) A list of the interested persons consulted,
    (ii) A description of areas examined and problems identified, and
    (iii) A description of modifications made and remedial steps taken.
    (d) Designation of responsible employee. A recipient employing fifty 
or more persons and receiving Federal financial assistance from the 
Department of $25,000 or more shall designate at least one person to 
coordinate compliance with this subpart.
    (e) Adoption of grievance procedures. A recipient employing fifty or 
more persons and receiving Federal financial assistance from the 
Department of $25,000 or more shall adopt grievance procedures that 
incorporate due process standards (e.g. adequate notice, fair hearing) 
and provide for the prompt and equitable resolution of complaints 
alleging any action prohibited by this subpart. Such procedures need not 
be established with respect to complaints from applicants for 
employment. An employee may file a complaint with the Department without 
having first used the recipient's grievance procedures.
    (f) Notice. (1) A recipient employing fifty or more persons and 
receiving Federal financial assistance from the Department of more than 
$25,000 shall, on a continuing basis, notify participants, 
beneficiaries, applicants, employees and unions or professional 
organizations holding collective bargaining or professional agreements 
with the recipient that it does not discriminate on the basis of 
handicap in violation of section 504 and this subpart. The notification 
shall state, where appropriate, that the recipient does not discriminate 
in its programs or activities with respect to access, treatment or 
employment. The notification shall also include identification of the 
person responsible for coordinating compliance with this subpart and 
where to file section 504 complaints with the Department and, where 
applicable, with the recipient. A recipient shall make the initial 
notification required by this paragraph within 90 days of the effective 
date of this subpart. Methods of initial and continuing notification may 
include the posting of notices, publication in newspapers and magazines, 
placement of notices in recipients' publication, and

[[Page 843]]

distribution of memoranda or other written communications.
    (2) Recruitment materials or publications containing general 
information that a recipient makes available to participants, 
beneficiaries, applicants, or employees shall include a policy statement 
of nondiscrimination on the basis of handicap.
    (g) The Department may require any recipient with fewer than fifty 
employees and receiving less than $25,000 in Federal financial 
assistance to comply with paragraphs (c)(2) and (d) through (f) of this 
section.
    (h) The obligation to comply with this subpart is not affected by 
any State or local law or requirement or limited employment 
opportunities for handicapped persons in any occupation or profession.

                               Employment



Sec. 42.510  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall on the basis 
of handicap be subjected to discrimination in employment under any 
program or activity receiving Federal financial assistance.
    (2) A recipient shall make all decisions concerning employment under 
any program or activity receiving Federal financial assistance in a 
manner which insures that discrimination on the basis of handicap does 
not occur and may not limit, segregate, or classify applicants or 
employees in any way that adversely affects their opportunities or 
status because of handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this section. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, labor unions, organizations 
providing or administering fringe benefits to employees of the 
recipient, and organizations providing training and apprenticeships, and 
with civil service agencies in State or local units of government.
    (b) Specific activities. The prohibition against discrimination in 
employment applies to the following activities:
    (1) Recruitment, advertising, and application processing;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and rehiring;
    (3) Pay and any other form of compensation and changes in 
compensation, including fringe benefits available by virtue of 
employment, whether or not administered by the recipient;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and selection for 
leaves of absence to pursue training;
    (7) Employer-sponsored activities, including those that are social 
or recreational; and
    (8) Any other term, condition, or privilege of employment.
    (c) In offering employment or promotions to handicapped individuals, 
recipients may not reduce the amount of compensation offered because of 
any disability income, pension or other benefit the applicant or 
employee receives from another source.
    (d) A recipient's obligation to comply with this section is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.



Sec. 42.511  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate, based on the 
individual assessment of the applicant or employee, that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include making facilities used by 
employees readily accessible to and usable by handicapped persons, job 
restructuring, part-time or modified work schedules, acquisition or 
modification

[[Page 844]]

of equipment or devices (e.g., telecommunication or other telephone 
devices), the provisions of readers or qualified interpreters, and other 
similar actions.
    (c) Whether an accommodation would impose an undue hardship on the 
operation of a recipient's program or activity depends upon a case-by-
case analysis weighing factors that include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.

A reasonable accommodation may require a recipient to bear more than an 
insignificant economic cost in making allowance for the handicap of a 
qualified applicant or employee and to accept minor inconvenience which 
does not bear on the ability of the handicapped individual to perform 
the essential duties of the job.



Sec. 42.512  Employment criteria.

    (a) A recipient may not use any employment test or other selection 
criterion that tends to screen out handicapped persons unless:
    (1) The test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question, and
    (2) Alternative job-related tests or criteria that tend to screen 
out fewer handicapped persons are not shown by the appropriate 
Department officials to be available.
    (b) A recipient shall administer tests using procedures (e.g., 
auxiliary aids such as readers for visually-impaired persons or 
qualified sign language interpreters for hearing-impaired persons) that 
accommodate the special problems of handicapped persons to the fullest 
extent, consistent with the objectives of the test. When a test is 
administered to an applicant or employee who has a handicap that impairs 
sensory, manual, or speaking skills, the test results must accurately 
reflect the applicant's or employee's job skills, aptitude, or whatever 
other factor the test purports to measure, rather than reflecting the 
applicant's or employee's impaired sensory, manual, or speaking skills 
(except where those skills are the factors that the test purports to 
measure).



Sec. 42.513  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination and may 
not make preemployment inquiry of an applicant as to whether the 
applicant is a handicapped person or as to the nature or severity of a 
handicap. A recipient may, however, make preemployment inquiry into an 
applicant's ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 42.505(a) of this 
subpart, when a recipient is taking voluntary action to overcome the 
effects of conditions that resulted in limited participation in its 
Federally assisted program or activity pursuant to Sec. 42.505(b) of 
this subpart, or when a recipient is taking affirmative action pursuant 
to section 503 of the Act, the recipient may invite applicants for 
employment to indicate whether and to what extent they are handicapped: 
Provided, That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary 
efforts;
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty: 
Provided, That:

[[Page 845]]

    (1) All entering employees are subjected to such an examination 
regardless of handicap, and
    (2) The results of such an examination are used only in accordance 
with the requirements of this subpart.
    (d) The applicant's medical record shall be collected and maintained 
on separate forms and kept confidential, except that the following 
persons may be informed:
    (1) Supervisors and managers regarding restrictions on the work of 
handicapped persons and necessary accommodations;
    (2) First aid and safety personnel if the condition might require 
emergency treatment; and
    (3) Government officials investigating compliance with the Act upon 
request for relevant information.

                              Accessibility



Sec. 42.520  Discrimination prohibited.

    Recipients shall insure that no qualified handicapped person is 
denied the benefits of, excluded from participation in, or otherwise 
subjected to discrimination under any program or activity receiving 
Federal financial assistance because the recipient's facilities are 
inaccessible to or unusable by handicapped persons.



Sec. 42.521  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity to which this subpart applies so that when each part is viewed 
in its entirety it is readily accessible to and usable by handicapped 
persons. This section does not require a recipient to make each of its 
existing facilities or every part of a facility accessible to and usable 
by handicapped persons.
    (b) Compliance procedures. A recipient may comply with the 
requirement of paragraph (a) of this section through acquisition or 
redesign of equipment, reassignment of services to accessible buildings, 
assignment of aids to beneficiaries, delivery of services at alternate 
accessible sites, alteration of existing facilities, or any other method 
that results in making its program or activity accessible to handicapped 
persons. A recipient is not required to make structural changes in 
existing facilities where other methods are effective in achieving 
compliance with paragraph (a) of this section. In choosing among methods 
for meeting the requirement of paragraph (a) of this section, a 
recipient shall give priority to those methods that serve handicapped 
persons in the most integrated setting appropriate.
    (c) Small providers. If a recipient with fewer than fifteen 
employees finds, after consultation with a handicapped person seeking 
its services, that there is no method of complying with Sec. 42.521(a) 
other than making a significant alteration in its existing facilities, 
the recipient may, as an alternative, refer the handicapped person to 
other available providers of those services that are accessible.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within ninety days of the effective date 
of this subpart. However, where structural changes in facilities are 
necessary, such changes shall be made as expeditiously as possible and 
shall be completed no later than three years from the effective date of 
this subpart. If structural changes to facilities are necessary, a 
recipient shall, within six months of the effective date of this 
subpart, develop a written plan setting forth the steps that will be 
taken to complete the changes together with a schedule for making the 
changes. The plan shall be developed with the assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons and shall be made available for public inspection. 
The plan shall, at a minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under Sec. 42.521(a) and, if the time period of the 
transition plan is longer than one year, identify the steps that will be 
taken during each year of the transition period; and

[[Page 846]]

    (4) Indicate the person responsible for implementation of the plan.
    (e) Notice. The recipient shall adopt and implement procedures to 
insure that interested persons, including mentally retarded persons or 
persons with impaired vision or hearing, special learning problems, or 
other disabilities, can obtain information as to the existence and 
location of services, activities, and facilities that are accessible to 
and usable by handicapped persons.

[45 FR 37622, June 3, 1980, as amended by Order No. 2679-2003, 68 FR 
51364, Aug. 26, 2003]



Sec. 42.522  New construction.

    (a) Design and construction. Each new facility constructed by, on 
behalf of, or for the use of a recipient shall be designed and 
constructed in such a manner that the facility is readily accessible to 
and usable by handicapped persons, if the construction was commenced 
after the effective date of this subpart. Any alterations to existing 
facilities shall, to the maximum extent feasible, be made in an 
accessible manner. Any alterations to existing facilities shall, to the 
maximum extent feasible, be made in an accessible manner.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of March 7, 1988, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (UFAS) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[45 FR 37622, June 3, 1980, as amended by Order 1249-88, 53 FR 3206, 
Feb. 4, 1988]

                               Procedures



Sec. 42.530  Procedures.

    (a) The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 (28 CFR 42.106-42.110) apply to this subpart except 
that the provision contained in Sec. Sec. 42.110(e) and 42.108(c)(3) 
which requires the Attorney General's approval before the imposition of 
any sanction against a recipient does not apply to programs or 
activities funded by LEAA, NIJ, BJS, OJARS and OJJDP. The applicable 
provisions contain requirements for compliance information (Sec. 
42.106), conduct of investigations (Sec. 42.107), procedure for 
effecting compliance (Sec. 42.108), hearings (Sec. 42.109), and 
decisions and notices (Sec. 42.110). (See appendix C.)
    (b) In the case of programs or activities funded by LEAA, NIJ, BJS, 
OJARS and OJJDP, the timetables and standards for investigation of 
complaints and for the conduct of compliance reviews contained in Sec. 
42.205(c)(1) through (c)(3) and Sec. 42.206 (c) and (d) are applicable 
to this subpart except that any finding of noncompliance shall be 
enforced as provided in paragraph (a) of this section. (See appendix D.)
    (c) In the case of programs or activities funded by LEAA, NIJ, BJS, 
OJARS and OJJDP, the refusal to provide requested information under 
paragraph (a) of this section and Sec. 42.106 will be enforced pursuant 
to the provisions of section 803(a) of title I of the Omnibus Crime 
Control and Safe Streets Act, as amended by the Justice System 
Improvement Act of 1979, Public Law 96-157, 93 Stat. 1167.
    (d) For acts of discrimination occurring prior to the effective date 
of this subpart, the 180-day limitation period for filing of complaints 
(Sec. 42.107 of this title) will apply from that date.
    (e) The Department will investigate complaints alleging 
discrimination in violation of section 504 occurring prior to the 
effective date of this subpart where the language of the statute or 
HEW's interagency guidelines (43 FR

[[Page 847]]

2132, January 13, 1978) implementing Executive Order 11914 (41 FR 17871, 
April 28, 1976) provided notice that the challenged policy or practice 
was unlawful.

                               Definitions



Sec. 42.540  Definitions.

    As used in this subpart the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended (29 U.S.C. 701 et seq.).
    (b) Section 504 means section 504 of the Act (29 U.S.C. 794).
    (c) Department means the Department of Justice.
    (d) LEAA means the Law Enforcement Assistance Administration; NIJ 
means the National Institute of Justice; BJS means the Bureau of Justice 
Statistics; OJARS means the Office of Justice Assistance, Research and 
Statistics; OJJDP means Office of Juvenile Justice and Delinquency 
Prevention.
    (e) Recipient means any State or unit of local goverment, any 
instrumentality of a State or unit of local government, any public or 
private agency, institution, organization, or other public or private 
entity, or any person to which Federal financial assistance is extended 
directly or through another recipient, including any successor, 
assignee, or transferree of a recipient, but excluding the ultimate 
beneficiary of the assistance.
    (f) Federal financial assistance means any grant, cooperative 
agreement, loan, contract (other than a direct Federal procurement 
contract or a contract of insurance or guaranty), subgrant, contract 
under a grant or any other arrangement by which the Department provides 
or otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government;
    (4) Any other thing of value by way of grant, loan, contract or 
cooperative agreement.
    (g) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (h) Program or activity means all of the operations of any entity 
described in paragraphs (h) (1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (h)(1), (2), or (3) of this section.
    (i) Ultimate beneficiary is one among a class of persons who are 
entitled to benefit from, or otherwise participate in, programs or 
activities receiving

[[Page 848]]

Federal financial assistance and to whom the protections of this subpart 
extend. The ultimate beneficiary class may be the general public or some 
narrower group of persons.
    (j) Benefit includes provision of services, financial aid or 
disposition (i.e., treatment, handling, decision, sentencing, 
confinement, or other prescription of conduct).
    (k) Handicapped person. (1) Handicapped person means any person who 
(i) has a physical or mental impairment which substantially limits one 
or more major life activities, (ii) has a record of such an impairment, 
or (iii) is regarded as having such an impairment. For purposes of 
employment, such term does not include any individual who is an 
alcoholic or drug abuser whose current use of alcohol or drugs prevents 
such individual from performing the duties of the job in question or 
whose employment, by reason of such current alcohol or drug abuse, would 
constitute a direct threat to property or the safety of others.
    (2) As used in this subpart the phrase:
    (i) Physical or mental impairment means:
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive, digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine;
    (B) Any mental or psychological disorder such as mental retardation, 
organic brain syndrome, emotional or mental illness, and specific 
learning disabilities.

The term physical or mental impairment includes, but is not limited to, 
such diseases and conditions as orthopedic, visual, speech, and hearing 
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple 
sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug and alcohol abuse.
    (ii) Major life activities mean functions such as caring for one's 
self, performing manual tasks walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (iv) Is regarded as having an impairment means:
    (A) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (B) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (C) Has none of the impairments defined in paragraph (k)(2)(i) of 
this section but is treated by a recipient as having such an impairment.
    (l) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question;
    (2) With respect to services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.
    (m) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (k) of this section.
    (n) Drug abuse means:
    (1) The use of any drug or substance listed by the Department of 
Justice in 21 CFR 1308.11, under authority of the Controlled Substances 
Act, 21 U.S.C. 801, as a controlled substance unavailable for 
prescription because:
    (i) The drug or substance has a high potential for abuse,
    (ii) The drug or other substance has no currently accepted medical 
use in treatment in the United States,
    (iii) There is a lack of accepted safety for use of the drug or 
other substance under medical supervision;
    (2) The misuse of any drug or substance listed by the Department of 
Justice in 21 CFR 1308.12 through 1308.15 under authority of the 
Controlled Substances Act as a controlled substance available for 
prescription.

[[Page 849]]


Examples of (1) include certain opiates and opiate derivatives (e.g., 
heroin) and hallucinogenic substances (e.g., marihuana, mescaline, 
peyote) and depressants (e.g., methaqualone). Examples of (2) include 
opium, coca leaves, methadone, amphetamines and barbiturates.
    (o) Alcohol abuse includes alcoholism but also means any misuse of 
alcohol which demonstrably interferes with a person's health, 
interpersonal relations or working.

[45 FR 37622, June 3, 1980, as amended by Order No. 2679-2003, 68 FR 
51364, Aug. 26, 2003]



 Sec. Appendix A to Subpart G of Part 42--Federal Financial Assistance 
 Administered by the Department of Justice to Which This Subpart Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if section 504 is otherwise applicable, that a program 
or activity is not covered.

    Editorial Note: For the text of appendix A to subpart G, see 
appendix A to subpart C of this part.

[Order No. 1204-87, 52 FR 24450, July 1, 1987]



           Sec. Appendix B to Subpart G of Part 42 [Reserved]



 Sec. Appendix C to Subpart G of Part 42--Department Regulations Under 
 Title VI of the Civil Rights Act of 1964 (28 CFR 42.106-42.110) Which 
                          Apply to This Subpart

    Editorial Note: For the text of appendix C, see Sec. Sec. 42.106 
through 42.110 of this part.



 Sec. Appendix D to Subpart G of Part 42--OJARS' Regulations Under the 
 Omnibus Crime Control and Safe Streets Act, as Amended, Which Apply to 
                 This Subpart (28 CFR 42.205 and 42.206)

    Editorial Note: For the text of appendix D, see Sec. Sec. 42.205 
and 42.206 of this part.



 Subpart H_Procedures for Complaints of Employment Discrimination Filed 
           Against Recipients of Federal Financial Assistance

    Authority: E.O. 12250, 45 FR 72995, 3 CFR, 1980 Comp., p. 298; E.O. 
12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 206.

    Source: Order No. 992-83, 48 FR 3577, Jan. 25, 1983, unless 
otherwise noted.



Sec. 42.601  Purpose and application.

    The purpose of this regulation is implement procedures for 
processing and resolving complaints of employment discrimination filed 
against recipients of Federal financial assistance subject to title VI 
of the Civil Rights Act of 1964, title IX of the Education Amendments of 
1972, the State and Local Fiscal Assistance Act of 1972, as amended, and 
provisions similar to title VI and title IX in Federal grant statutes. 
Enforcement of such provisions in Federal grant statutes is covered by 
this regulation to the extent they relate to prohibiting employment 
discrimination on the ground of race, color, national origin, religion 
or sex in programs receiving Federal financial assistance of the type 
subject to title VI or title IX. This regulation does not, however, 
apply to the Omnibus Crime Control and Safe Streets Act of 1968, as 
amended, the Juvenile Justice and Delinquency Prevention Act, as 
amended, the Comprehensive Employment Training Act of 1973, as amended, 
or Executive Order 11246.



Sec. 42.602  Exchange of information.

    EEOC and agencies shall share any information relating to the 
employment policies and practices of recipients of federal financial 
assistance that may assist each office in carrying out its 
responsibilities. Such information shall include, but not necessarily be 
limited to, affirmative action programs, annual employment reports, 
complaints, investigative files, conciliation or compliance agreements, 
and compliance review reports and files.



Sec. 42.603  Confidentiality.

    When an agency receives information obtained by EEOC, the agency 
shall observe the confidentiality requirements

[[Page 850]]

of sections 706(b) and 709(e) of title VII as would EEOC, except in 
cases where the agency receives the same information from a source 
independent of EEOC or has referred a joint complaint to EEOC under this 
regulation. In such cases, the agency may use independent source 
information or information obtained by EEOC under the agency's 
investigative authority in a subsequent title VI, title IX or revenue 
sharing act enforcement proceeding. Agency questions concerning 
confidentiality shall be directed to the Associate Legal Counsel for 
Legal Services, Office of Legal Counsel of EEOC.



Sec. 42.604  Standards for investigation, reviews and hearings.

    In any investigation, compliance review, hearing or other 
proceeding, agencies shall consider title VII case law and EEOC 
Guidelines, 29 CFR parts 1604 through 1607, unless inapplicable, in 
determining whether a recipient of Federal financial assistance has 
engaged in an unlawful employment practice.



Sec. 42.605  Agency processing of complaints of employment 
discrimination.

    (a) Within ten days of receipt of a complaint of employment 
discrimination, an agency shall notify the respondent that it has 
received a complaint of employment discrimination, including the date, 
place and circumstances of the alleged unlawful employment practice.
    (b) Within thirty days of receipt of a complaint of employment 
discrimination an agency shall:
    (1) Determine whether it has jurisdiction over the complaint under 
title VI, title IX, or the revenue sharing act; and
    (2) Determine whether EEOC may have jurisdiction over the complaint 
under title VII of or the Equal Pay Act.
    (c) An agency shall transfer to EEOC a complaint of employment 
discrimination over which it does not have jurisdiction but over which 
EEOC may have jurisdiction within thirty days of receipt of a complaint. 
At the same time, the agency shall notify the complainant and the 
respondent of the transfer, the reason for the transfer, the location of 
the EEOC office to which the complaint was transferred and that the date 
the agency received the complaint will be deemed the date it was 
received by EEOC.
    (d) If any agency determines that a complaint of employment 
discrimination is a joint complaint, then the agency may refer the 
complaint to EEOC. The agency need not consult with EEOC prior to such a 
referral. An agency referral of a joint complaint should occur within 
thirty days of receipt of the complaint.
    (e) An agency shall refer to EEOC all joint complaints solely 
alleging employment discrimination against an individual. If an agency 
determines that special circumstances warrant its investigation of such 
a joint complaint, then the agency shall determine whether the 
complainant has filed a similar charge of employment discrimination with 
EEOC.
    (1) If an agency determines that the complainant has filed a similar 
charge of employment discrimination with EEOC, then the agency may 
investigate the complaint if EEOC agrees to defer its investigation 
pending the agency investigation.
    (2) If an agency determines that the complainant has not filed a 
similar charge of employment discrimination with the EEOC, then the 
agency may investigate the complaint if special circumstances warrant 
such action. In such cases, EEOC shall defer its investigation of the 
referred joint complaint pending the agency investigation.
    (f) An agency shall not refer to EEOC a joint complaint alleging a 
pattern or practice of employment discrimination unless special 
circumstances warrant agency referral of the complaint to EEOC.
    (g) If a joint complaint alleges discrimination in employment and in 
other practices of a recipient, an agency should, absent special 
circumstances, handle the entire complaint under the agency's own 
investigation procedures. In such cases, the agency shall determine 
whether the complainant has filed a similar charge of employment 
discrimination with EEOC. If such a charge has been filed, the agency 
and EEOC shall coordinate their activities. Upon agency request,

[[Page 851]]

EEOC should ordinarily defer its investigation pending the agency 
investigation.
    (h) When a joint complaint is referred to EEOC for investigation, 
the agency shall advise EEOC of the relevant civil rights provision(s) 
applicable to the employment practices of the recipient, whether the 
agency wants to receive advance notice of any conciliation negotiations, 
whether the agency wants EEOC to seek information concerning the 
relationship between the alleged discrimination and the recipient's 
Federally assisted programs or activities and, where appropriate, 
whether a primary objective of the Federal financial assistance is to 
provide employment. The agency shall also notify the complainant and the 
recipient of the referral, the location of the EEOC office to which the 
complaint was referred, the identity of the civil rights provision(s) 
involved, the authority of EEOC under this regulation and that the date 
the agency received the complaint will be deemed the date it was 
received by EEOC. Specifically, the notice shall inform the recipient 
that the agency has delegated to EEOC its investigative authority under 
title VI, title IX, or the revenue sharing act, and the relevant act's 
implementing regulations. The agency, therefore, may use information 
obtained by EEOC under the agency's investigative authority in a 
subsequent title VI, title IX or revenue sharing act enforcement 
proceeding.

[Order No. 992-83, 48 FR 3577, Jan. 25, 1983, as amended at 61 FR 33658, 
June 28, 1996]



Sec. 42.606  General rules concerning EEOC action on complaints.

    (a) A complaint of employment discrimination filed with an agency, 
which is transferred or referred to EEOC under this regulation, shall be 
deemed a charge received by EEOC. For all purposes under title VII and 
the Equal Pay Act, the date such a complaint was received by an agency 
shall be deemed the date it was received by EEOC.
    (b) When EEOC investigates a joint complaint it shall, where 
appropriate, seek sufficient information to allow the referring agency 
to determine whether the alleged employment discrimination is in a 
program or activity that receives Federal financial assistance and/or 
whether the alleged employment discrimination causes discrimination with 
respect to beneficiaries or potential beneficiaries of the assisted 
program.
    (c) Upon referral of a joint complaint alleging a pattern or 
practice of employment discrimination, EEOC generally will limit its 
investigation to the allegation(s) which directly affect the 
complainant.
    (d) If EEOC, in the course of an investigation of a joint complaint, 
is unable to obtain information from a recipient through voluntary 
means, EEOC shall consult with the referring agency to determine an 
appropriate course of action.
    (e) If EEOC agrees to defer its investigation of a complaint of 
employment discrimination pending an agency investigation of the 
complaint, then EEOC shall give due weight to the agency's determination 
concerning the complaint.



Sec. 42.607  EEOC dismissals of complaints.

    If EEOC determines that the title VII allegations of a joint 
complaint should be dismissed, EEOC shall notify the complainant and the 
recipient of the reason for the dismissal and the effect the dismissal 
has on the complainant's rights under the relevant civil rights 
provision(s) of the referring agency, and issue a notice of right to sue 
under title VII. At the same time, EEOC shall transmit to the referring 
agency a copy of EEOC's file.



Sec. 42.608  Agency action on complaints dismissed by EEOC.

    Upon EEOC's transmittal of a dismissal under Sec. 42.607 of this 
regulation, the referring agency shall determine within thirty days, 
what, if any, action the agency intends to take with respect to the 
complaint and then notify the complainant and the recipient. In reaching 
that determination, the referring agency shall give due weight to EEOC's 
determination that the title VII allegations of the joint complaint 
should be dismissed. If the referring agency decides to take action with 
respect to a complaint that EEOC has dismissed for lack of reasonable 
cause

[[Page 852]]

to believe that title VII has been violated, the agency shall notify the 
Assistant Attorney General and the Chairman of the EEOC in writing of 
the action it plans to take and the basis of its decision to take such 
action.



Sec. 42.609  EEOC reasonable cause determination and conciliation efforts.

    (a) If EEOC, after investigation of a joint complaint, determines 
that reasonable cause exists to believe that title VII has been 
violated, EEOC shall advise the referring agency, the complainant and 
the recipient of that determination and attempt to resolve the complaint 
by informal methods of conference, conciliation and persuasion. If EEOC 
would like the referring agency to participate in conciliation 
negotiations, EEOC shall so notify the agency and the agency shall 
participate. EEOC shall provide advance notice of any conciliation 
negotiations to referring agencies that request such notice, whether or 
not EEOC requests their participation in the negotiations.
    (b) If EEOC's efforts to resolve the complaint by informal methods 
of conference, conciliation and persuasion fail, EEOC shall:
    (1) Issue a notice of failure of conciliation to the recipient in 
accordance with 29 CFR 1601.25;
    (2) Transmit to the referring agency a copy of EEOC's investigative 
file, including its Letter of Determination and notice of failure 
conciliation;
    (3) If the recipient is not a government, governmental entity or 
political subdivision, determine whether EEOC will bring suit under 
title VII and, in accordance with 29 CFR 1601.28, issue a notice of 
right to sue under title VII;
    (4) If the recipient is a government, governmental entity or 
political subdivision, refer the matter to the Attorney General in 
accordance with 29 CFR 1601.29. The Attorney General, or his or her 
delegate, will determine whether the Department of Justice will bring 
suit under title VII and, in accordance with 29 CFR 1601.28, issue a 
notice of right to sue under title VII.



Sec. 42.610  Agency enforcement of unresolved complaints.

    (a) Upon EEOC's transmittal of a reasonable cause determination and 
notice of failure of conciliation under Sec. 42.609(b)(2) of this 
regulation, the referring agency shall determine, within thirty days, 
whether the recipient has violated any applicable civil rights 
provision(s) which the agency has a responsibility to enforce. The 
referring agency shall give due weight to EEOC's determination that 
reasonable cause exists to believe that title VII has been violated.
    (b) If the referring agency determines that the recipient has 
violated any applicable civil rights provision(s) which the agency has a 
responsibility to enforce, the agency shall so notify the complainant 
and the recipient and determine whether further efforts to obtain 
voluntary compliance are warranted. In reaching that determination, the 
agency shall give due weight to the failure of EEOC's efforts to resolve 
the complaint by informal methods. If the referring agency determines 
that further efforts to obtain voluntary compliance are not warranted or 
if such further efforts fail, the agency shall initiate appropriate 
enforcement proceedings under its own regulations.
    (c) If the referring agency determines that the recipient has not 
violated any applicable civil rights provision(s) which the agency has a 
responsibility to enforce, the agency shall notify the complainant, the 
recipient, the Assistant Attorney General and the Chairman of the EEOC 
in writing of the basis of that determination.



Sec. 42.611  EEOC negotiated settlements and conciliation agreements.

    If the parties enter into a negotiated settlement (as described in 
29 CFR 1601.20) prior to a determination or a conciliation agreement (as 
described in 29 CFR 1601.24) after a determination, EEOC shall notify 
the referring agency that the complaint has been settled. The agency 
shall take no further action on the complaint of employment 
discrimination thereafter except that the agency may take the existence 
of the complaint into account in scheduling the recipient for a review 
under the agency's regulations.

[[Page 853]]



Sec. 42.612  Interagency consultation.

    (a) Before investigating whether the employment practices of a 
recipient of Federal financial assistance constitute a pattern or 
practice of unlawful discrimination or initiating formal administrative 
enforcement procedures on that basis, an agency shall, to the extent 
practical, consult with the Chairman of the EEOC and the Assistant 
Attorney General to assure that duplication of effort will be minimized.
    (b) Prior to the initiation of any legal action against a recipient 
of Federal financial assistance alleging unlawful employment practices, 
the Department of Justice and/or EEOC shall, to the extent practical, 
notify the appropriate agency or agencies of the proposed action and the 
substance of the allegations.



Sec. 42.613  Definitions.

    As used in this regulation, the term:
    (a) Agency means any Federal department or agency which extends 
Federal financial assistance subject to any civil rights provision(s) to 
which this regulation applies.
    (b) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice, or 
his or her delegate.
    (c) Chairman of the EEOC refers to the Chairman of the Equal 
Employment Opportunity Commission, or his or her delegate.
    (d) EEOC means the Equal Empoyment Opportunity Commission and, where 
appropriate, any of its District Offices.
    (e) Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interests in 
property,
    (3) The detail of Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.


For purposes of this regulation, the term Federal financial assistance 
also includes funds disbursed under the revenue sharing act.
    (f) Joint complaint means a complaint of employment discrimination 
covered by title VII or the Equal Pay Act and by title VI, title IX, or 
the revenue sharing act.
    (g) Recipient means any State, political subdivision of any State, 
or instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    (h) Revenue sharing act refers to the State and Local Fiscal 
Assistance Act of 1972, as amended, 31 U.S.C. 1221 et seq.
    (i) Title VI refers to title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d to 2000d-4. Where appropriate, title VI also refers to the 
civil rights provisions of other Federal statutes or regulations to the 
extent that they prohibit employment discrimination on the ground or 
race, color, religion, sex or national origin in programs receiving 
Federal financial assistance of the type subject to title VI itself.
    (j) Title VII refers to title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. 2000e, et seq.
    (k) Title IX refers to title IX of the Education Amendments of 1972, 
20 U.S.C. 1681 to 1683.



 Subpart I_Nondiscrimination on the Basis of Age in Federally Assisted 
Programs or Activities; Implementation of the Age Discrimination Act of 
                                  1975

    Authority: 42 U.S.C. 6103(a)(4); 45 CFR part 90.

    Source: Order No. 1843-94, 59 FR 6560, Feb. 11, 1994, unless 
otherwise noted.

[[Page 854]]

                           General Provisions



Sec. 42.700  Purpose.

    (a) This subpart implements the Age Discrimination Act of 1975, as 
amended (42 U.S.C. 5101-6107) (Act). Subject to certain exceptions, the 
Act prohibits discrimination on the basis of age in programs or 
activities receiving federal financial assistance.
    (b) The Secretary of Health and Human Services has issued a general 
regulation (45 CFR part 90) to guide other federal agencies regarding 
implementation of the Act. This subpart is generally based upon that 
general regulation.



Sec. 42.701  Application.

    (a) This subpart applies to each program or activity that receives 
federal financial assistance from the Department of Justice.
    (b) This subpart does not apply to employment practices, except to 
those occurring in programs or activities that receive federal financial 
assistance under the Job Training Partnership Act.



Sec. 42.702  Definitions.

    As used in this subpart, the term:
    Act means the Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101-6107.
    Action means any act, activity, policy, rule, standard, or method of 
administration; or the use of any policy, rule, standard, or method of 
administration.
    Age distinction means any action using age or an age-related term.
    Age-related term means a term that necessarily implies a particular 
age or range of ages (e.g., ``youth,'' ``juvenile,'' ``adult,'' ``older 
persons,'' but not ``student'').
    Department means the Department of Justice.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the Department provides assistance in the form of:
    (1) Funds;
    (2) Services of federal personnel; or
    (3) Real or personal property or any interest in or use of such 
property, including--
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
federal share of its fair market value is not returned to the federal 
government.
    FMCS means the Federal Mediation and Conciliation Service.
    OJP means the Office of Justice Programs. OJP coordinates the work 
of the Bureau of Justice Assistance, the National Institute of Justice, 
the Bureau of Justice Statistics, and the Office of Juvenile Justice and 
Delinquency Prevention; OJP includes the Office for Victims of Crime.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) 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;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or

[[Page 855]]

    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Recipient means any state or political subdivision, any 
instrumentality of a State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which federal financial assistance is extended, directly or 
through another recipient. ``Recipient'' includes any successor, 
assignee, or transferee, but does not include the ultimate beneficiary 
of the assistance.
    Secretary means the Secretary of Health and Human Services or his or 
her designee.
    United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Trust Territory of the Pacific Islands, the Northern Marinas, and the 
territories and possessions of the United States.

[Order No. 1843-94, 59 FR 6560, Feb. 11, 1994, as amended by Order 2679-
2003, 68 FR 51366, Aug. 26, 2003]



Sec. Sec. 42.703-42.709  [Reserved]

              Standards for Determining Age Discrimination



Sec. 42.710  General prohibition.

    (a) Subject to the exceptions discussed in Sec. Sec. 42.711-42.713, 
no person in the United States shall, on the basis of age, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in any program or activity to which this subpart applies. 
This prohibition applies to actions taken by a recipient, directly or 
through contractual or other arrangements, that have the purpose or 
effect of discriminating on the basis of age.
    (b) This prohibition encompasses treatment of elderly persons, 
children and any other age group. Unless one of the exception applies, 
the recipient may use neither a minimum age limit nor a maximum age 
limit in connection with receipt of benefits or services or other 
participation in a program or activity subject to this subpart.



Sec. 42.711  Exception; authorized by law.

    (a) This subpart does not apply to an age distinction contained in a 
portion of a federal or state statute or a local statute or ordinance 
adopted by an elected, general-purpose legislative body which portion:
    (1) Provides any benefits or assistance to persons on the basis of 
age;
    (2) Establishes criteria for participation in age-related terms; or
    (3) Describes intended beneficiaries or target groups in age-related 
terms.
    (b) The exception set forth in paragraph (a) of this section does 
not extend to regulations adopted by an administrative agency pursuant 
to a specific statutory provision or otherwise.



Sec. 42.712  Exception; normal operation or statutory objective.

    (a) A recipient may take an action that would otherwise be 
prohibited by Sec. 42.710(a), if such action reasonably takes age into 
account as a factor necessary to the normal operation of or the 
achievement of any statutory objective of the program or activity.
    (1) Normal operation refers to the operation of a program or 
activity without significant changes that would impair its ability to 
meet its objectives.
    (2) A statutory objective of a program or activity is a purpose that 
is expressly stated in a federal or state statute or a local statute or 
ordinance adopted by an elected, general-purpose body.
    (b) This exception applies when the following test is met--
    (1) Age is used as a measure or approximation of one or more other 
characteristics;
    (2) The other characteristic must be measured or approximated in 
order to continue the normal operation of the program or activity or to 
achieve any statutory objective of the program;
    (3) The other characteristic can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic is impractical to measure directly on 
an individual basis.

[[Page 856]]

    (c) The question whether an age distinction comes within this 
section depends upon the particular facts, including the nature and 
purpose of the program or activity, the basis for and the nature and 
purpose of the age distinction, and the manner in which the age 
distinction is used.



Sec. 42.713  Exception; reasonable factors other than age.

    (a) A recipient may take an action, otherwise prohibited by Sec. 
42.710(a), that affects age groups differently, if such differentiation 
is based upon reasonable factors other than age.
    (b) This exception does not apply to the use of an explicit age 
distinction, but to conduct that has the effect of differentiating among 
age groups. This exception applies when the factor (other than age) upon 
which the recipient's action is based bears a direct and substantial 
relationship to the normal operation of or achievement of a statutory 
objective of the program or activity.



Sec. 42.714  Special benefits.

    If a recipient operating a program or activity provides special 
benefits to the elderly or to children, such use of age distinctions 
shall be presumed to be necessary to the normal operation of the program 
or activity, notwithstanding the provisions of Sec. 42.712.



Sec. 42.715  Burden of proof regarding exceptions.

    The burden of proving that an age distinction or other action falls 
within the exceptions described in Sec. 42.712 and Sec. 42.713 is on 
the recipient. This allocation of the burden of proof applies in 
proceedings by the Department to enforce the Act.



Sec. Sec. 42.716-42.719  [Reserved]

                          Duties of Recipients



Sec. 42.720  General responsibility.

    Regarding any program or activity subject to this subpart, the 
recipient has primary responsibility to ensure compliance with the Act 
and this subpart. The recipient also has responsibility to maintain 
records, provide information, and to afford access to its records to the 
Department to the extent required to determine whether it is in 
compliance with the Act.



Sec. 42.721  Notice to subrecipients.

    Any recipient that receives federal financial assistance from the 
Department and extends such assistance to subrecipients shall give its 
subrecipients written notice of their obligations under this subpart.



Sec. 42.722  Recipient assessment of age distinctions.

    (a) As part of a compliance review under Sec. 42.730 or complaint 
investigation under Sec. 42.731, the Department may require a recipient 
employing the equivalent of 15 or more employees to complete a written 
self-evaluation, in a manner specified by the responsible Department 
official, of any age distinction imposed in its program or activity 
receiving federal financial assistance from the Department to assess the 
recipient's compliance with the Act.
    (b) Whenever a recipient assessment indicates a violation of the Act 
and this subpart, the recipient shall take corrective action.



Sec. 42.723  Compliance information.

    (a) Upon request by the Department, a recipient shall make available 
to the Department information necessary to determine whether the 
recipient is complying with this subpart.
    (b) Each recipient shall permit reasonable access by the Department 
to the recipient's facilities, books, records and other sources of 
information concerning the recipient's compliance with this subpart.



Sec. 42.724  Remedial and affirmative action.

    (a) If the Department finds that, in violation of this subpart, a 
recipient has discriminated on the basis of age, the recipient shall 
take remedial action that the Department considers necessary to overcome 
the effects of the discrimination.
    (b) Even in the absence of a finding of discrimination, a recipient, 
in administering a program or activity, may take steps to overcome the 
effects of conditions that resulted in limited participation on the 
basis of age.

[[Page 857]]



Sec. 42.725  Assurance of compliance.

    Each recipient of federal financial assistance from the Department 
shall sign a written assurance as specified by the Department that it 
will comply with this subpart in its federally assisted programs or 
activities.



Sec. Sec. 42.726-42.729  [Reserved]

                          Compliance Procedures



Sec. 42.730  Compliance reviews.

    The Department may conduct a pre-award or post-award compliance 
review of an applicant or a recipient to determine compliance with this 
subpart. When a compliance review indicates probably noncompliance, the 
Department shall inform the applicant or recipient and shall promptly 
begin enforcement as described in Sec. 42.733.



Sec. 42.731  Complaints.

    (a) General. This section provides for the filing, by aggrieved 
persons, of complaints alleging violation of this subpart. Although the 
complaint process is limited to aggrieved persons, any person who has 
information regarding a possible violation of this subpart may provide 
it to the Department.
    (b) Receipt of complaints. (1) Any aggrieved person, individually or 
as a member of a class, may file with the Department a written complaint 
alleging a violation of this subpart. A complaint may be filed by a 
representative of an aggrieved person. A complaint must be filed within 
180 days of the date the complaint first knew of the alleged violation. 
However, this time limit may, for good cause shown, be extended by the 
Department.
    (2) The Department shall promptly review each such complaint for 
sufficiency. A complaint will be deemed sufficient if it--
    (i) Describes an action that may constitute a violation of this 
subpart; and
    (ii) Contains information necessary for further processing (i.e., 
identifies the parties involved, states the date when the complainant 
first learned of the alleged violation, and is signed by the 
complainant).
    (3) When a complaint is deemed sufficient, the Department shall 
promptly refer it to the FMCS for mediation.
    (4) When a complaint is deemed insufficient, the Department shall 
advise the complainant of the reasons for that determination. A 
complainant shall be freely permitted to add information necessary for 
further processing.
    (c) Representation of parties. During each stage of the complaint 
process, the complainant and the recipient may be represented by an 
attorney or other representative.
    (d) Assistance from the Department. Any complainant or recipient may 
request from the Department information regarding the complaint process.
    (e) Mediation. (1) When a complaint is referred for mediation, the 
complainant and the recipient shall participate in the mediation process 
to the extent necessary either to reach an agreement or to enable the 
mediator to determine that no agreement can be reached. No determination 
that an agreement is not possible shall be made until the mediator has 
conferred at least once, jointly or separately, with each of the 
parties.
    (2) If the complainant and the recipient reach an agreement, they 
shall reduce the agreement to writing and sign it. The mediator shall 
send a copy of the agreement to the Department.
    (3) If, after 60 days after the Department's receipt of a complaint, 
no agreement is reached or if, within that 60-day period, the mediator 
determines that no agreement can be reached, the mediator shall return 
the complaint to the Department.
    (4) The mediator shall protect the confidentiality of information 
obtained during the mediation process. No mediator shall testify in any 
adjudicative proceeding, produce any document, or otherwise disclose any 
information obtained during the mediation process without prior approval 
of the Director of the FMCS.
    (f) Department investigations. The Department shall promptly 
investigate any complaint that is unresolved after mediation or is 
reopened because of violation of a mediation agreement. An investigation 
should include a review of the pertinent actions or practices of the 
recipient and the circumstances under which the alleged discrimination 
occurred. During an investigation the Department shall take appropriate

[[Page 858]]

steps to obtain informal resolution of the complaint.
    (g) Resolution of matters. (1) Where, prior to any finding by the 
Department of probable noncompliance with this subpart, discussions 
between the Department and the parties result in settlement of a 
complaint, the Department shall prepare an agreement to be signed by the 
parties and an authorized official of the Department. A settlement shall 
not affect the operation of any other enforcement efforts of the 
Department, including compliance reviews or investigation of other 
complaints involving the recipient.
    (2) If the Department determines that an investigation pursuant to 
paragraph (f) of this section indicates probable noncompliance with this 
subpart, the Department shall inform the recipient and shall promptly 
begin enforcement pursuant to Sec. 42.733.
    (3) If the Department determines that an investigation does not 
indicate probable noncompliance, the Department shall inform the 
recipient and the complainant. The Department shall also inform the 
complainant of his or her right to bring a civil action as described in 
Sec. 42.736.



Sec. 42.732  Prohibition against intimidation.

    A recipient may not intimidate or retaliate against any person who 
attempts to assert a right secured by the Act and this suppart or who 
cooperates in any mediation, investigation, hearing, or other aspect of 
the Department's compliance procedure.



Sec. 42.733  Enforcement procedures.

    (a) Voluntary compliance. When a compliance review or complaint 
investigation results in a finding of probable noncompliance with this 
subpart, the Department shall attempt to obtain voluntary compliance. An 
agreement for voluntary compliance shall describe the corrective action 
to be taken and time limits for such action and shall be signed by the 
recipient and an authorized official of the Department.
    (b) Means of enforcement--(1) General. (i) The Department may seek 
to enforce this subpart--
    (A) By administrative proceedings that may lead to termination or 
refusal of federal financial assistance to the particular program or 
activity; or
    (B) By any other means authorized by law. Such other means include 
lawsuits by the Department of enjoin violations of this subpart.
    (ii) To the extent consistent with the Act, the Department, in 
enforcing this subpart, shall follow the procedures applicable to 
enforcement of title VI of the Civil Rights Act of 1964.
    (2) Termination of federal financial assistance. With regard to 
enforcement of this subpart through the termination or refusal of 
federal financial assistance, the Department shall follow the provisions 
of its title VI regulation concerning notice (28 CFR 42.180(c)), 
hearings (28 CFR 42.109), and decisions (28 CFR 42.110). However, with 
respect to programs or activities receiving federal financial assistance 
from a component of the Department's Office of Justice Programs (OJP), 
the requirement of 28 CFR 42.110(e) that a sanction be approved by the 
Attorney General shall not apply; that function may be performed by the 
Assistant Attorney General, OJP.
    (3) Other means of enforcement. With regard to enforcement of this 
subpart through other means, the Department shall follow the procedures 
of 28 CFR 42.108(d). In addition, at least 30 days before commencing a 
lawsuit or taking other action pursuant to paragraph (b)(1)(i)(A) of 
this section, the Department shall send an appropriate report to the 
committees of the House of Representatives and the Senate having 
legislative jurisdiction over the program or activity involved.
    (c) Deferral. When a proceeding for the termination or refusal or 
federal financial assistance is initiated pursuant to paragraph 
(b)(1)(i)(A) of this section, the Department may defer granting new 
federal financial assistance to the recipient.
    (1) New federal financial assistance includes any assistance for 
which, during the deferral period, the Department requires an 
application or approval, including renewal or continuation of existing 
activities or authorization of new activities. New federal financial 
assistance does not include assistance approved prior to initiation of 
the administrative proceeding or increases in

[[Page 859]]

funding as a result of a change in the manner of computing formula 
awards.
    (2) A deferral may not begin until the recipient has received a 
notice of opportunity for a hearing. A deferral may not continue for 
more than 60 days unless a hearing has begun within that time or the 
time for beginning the hearing has been extended by mutual consent of 
the recipient and the Department. A deferral may not continue for more 
than 30 days after the close of the hearing, unless the hearing results 
in a finding against the recipient.



Sec. 42.734  Alternative funding.

    When assistance to a recipient is terminated or refused pursuant to 
Sec. 42.733(b)(1)(i)(A), the Department may disburse the withheld funds 
directly to an alternate recipient serving the same area (i.e., a public 
or nonprofit private organization or agency or state or political 
subdivision of the state). Any such alternate recipient must demonstrate 
the ability to comply with the requirements of this subpart and to 
achieve the goals of the federal statute authorizing the assistance.



Sec. 42.735  Judicial review.

    A final decision of the Department in an administrative proceeding 
pursuant to Sec. 42.733(b)(1)(i)(A) is subject to judicial review as 
provided in section 306 of the Act, 42 U.S.C. 6105.



Sec. 42.736  Private lawsuits.

    (a) Upon exhausting administrative remedies under the Act, a 
complainant may file a civil action to enjoin a violation of the Act. 
Administrative remedies are exhausted if--
    (1) 180 days have elapsed since the complainant filed the complaint 
and the Department has made no finding with regard to the complaint; or
    (2) The Department issues a finding, pursuant to Sec. 42.731(g)(3), 
in favor of the recipient.
    (b) Whenever administrative remedies are exhausted in accord with 
paragraph (a) of this section, the Department shall promptly inform the 
complainant that
    (1) The complainant may bring a civil action in a United States 
district court for the district in which the recipient is located or 
transacts business;
    (2) A complainant who prevails in such an action has the right to be 
awarded reasonable attorney's fees, if the complainant demands such an 
award in the complaint initiating the lawsuit;
    (3) Before commencing the action, the complainant must give 30 days' 
notice by registered mail to the Secretary, the Attorney General, and 
the recipient;
    (4) The notice must state the nature of the alleged violation, the 
relief requested, the court in which the action will be brought, and 
whether attorney's fees will be demanded; and
    (5) The complainant may not bring an action if the same alleged 
violation by the recipient is the subject of a pending action in any 
court of the United States.



Sec. Sec. 42.737-42.799  [Reserved]



 Sec. Appendix A to Subpart I of Part 42--Federal Financial Assistance 
 Administered by the Department of Justice to Which This Subpart Applies

    Note: Failure to list a type of federal assistance in appendix A 
shall not mean, if the Age Discrimination Act is otherwise applicable, 
that a program or activity is not covered. For the text of appendix A to 
subpart I, see appendix A to subpart C of this part.



  Sec. Appendix B to Subpart I of Part 42--Age Distinctions in Federal 
 Statutes or Regulations Affecting Financial Assistance Administered by 
                        the Department of Justice

    Section 90.31(f) of HHS' the general regulations (45 CFR part 90) 
requires each federal agency to publish an appendix to its final 
regulation containing a list of age distinctions in federal statutes and 
regulations affecting financial assistance administered by the agency. 
This appendix is the Department's list of federal statutes and 
Department regulations that contain age distinctions that:
    (1) Provide benefits or assistance to persons based upon age; or
    (2) Establish criteria for participation in age-related terms; or
    (3) Describe intended beneficiaries or target groups in age-related 
terms.
    The Department administers financial assistance under the Juvenile 
Justice and Delinquency Prevention Act of 1974, as amended (42 U.S.C. 
5601-5672). This statute reflects

[[Page 860]]

the basic distinction between criminal justice systems for adults and 
juvenile justice systems, and the entire statute is predicated upon 
making distinctions on the basis of age between juveniles and adults. 
Such age distinctions are set forth throughout this statute, including 
provisions establishing programs of financial assistance to juvenile 
justice systems and for purposes related to the prevention of juvenile 
delinquency. The Department's current regulations pertaining to formula 
grants under this statute are set forth at 28 CFR part 31 (CFDA No. 
16.540). In order to implement the statutory purposes, these regulations 
reflect the same age distinctions between juveniles and adults as are 
contained in the statute. The same statute also provides for 
discretionary special emphasis grants for which there are program 
announcements issued (CFDA No. 16.541), and this program also 
necessarily reflects the basic statutory distinction based on age.
    The Department is authorized to extend financial assistance under 
the Missing Children's Assistance Act, as amended (42 U.S.C. 5771-5777). 
This law is concerned with problems related to missing children, and, 
thus, it contains many age-related references to children, including 
references in connection with the provision of financial assistance. 
Program announcements are issued in connection with this program (CFDA 
No. 16.543).
    The Department is authorized to extend financial assistance pursuant 
to the Omnibus Crime Control and Safe Streets Act of 1968, as amended 
(42 U.S.C. 3701-3797). Among the statutory purposes of this law is the 
provision of grants addressing problems related to juvenile delinquency 
and problems related to crimes committed against elderly persons. 
Accordingly, this law also reflects the basic distinction between 
criminal justice systems for adults and juvenile justice systems. This 
law also singles out elderly persons as a special target group to 
benefit from its programs. The Department's regulations concerning block 
grants authorized under this statute are set forth at 28 CFR part 33. 
These regulations reflect the statutory authorizations for such block 
grants, which specifically authorize funds for, among other things, 
programs addressing problems related to juvenile delinquency and 
programs addressing the problem of crimes committed against elderly 
persons (CFDA No. 16.573). Similarly, the statute provides for 
discretionary grants to enhance and complement the block grants (CFDA 
No. 16.574) and has been amended to provide a focus on narcotics control 
(CFDA No. 16.580).
    The Department is authorized to extend financial assistance under 
the Victims of Crime Act of 1984, as amended (42 U.S.C. 10601-10604). 
Among other things, in order to qualify for funds under one grant 
program, a state must certify that priority will be given to eligible 
crime victim assistance programs that help victims of certain crimes, 
including child abuse. In addition, among the services to victims of 
crime for which funding is available is ``short term child care 
services'' (CFDA Nos. 16.575 and 16.576).
    The Department is authorized to make grants to Native American 
Indian tribes with funds reserved to the Office of Victims of Crime 
under the Victims of Crime act of 1984, as amended (42 U.S.C. 10601(g)). 
The primary purpose of the funding is to assist Native American Indian 
tribes with handling child abuse cases, particularly child sexual abuse 
(CFDA No. 16.583).
    The Department is authorized to extend financial assistance to state 
and local authorities for narcotics control under the Anti-Drug Abuse 
Act of 1988 (Pub. L. 100-690, 102 Stat. 4181), which extends and/or 
modifies each of the previously noted laws. The statute reflects the 
basic distinction between criminal justice systems for adults and 
juveniles (CFDA Nos. 16.579 and 16.582).

[[Page 861]]



                              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.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 863]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2009)

                      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--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)

[[Page 864]]

      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

                Title 3--The President

            Presidential Documents
         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability 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 (Parts 2100--2199)
       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 (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      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 (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)

[[Page 865]]

      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic 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)

[[Page 866]]

            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and 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 Policy and New Uses, 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)

[[Page 867]]

     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    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)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 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)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

[[Page 868]]

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts9400--9499)

                      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)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       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)

[[Page 869]]

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of 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)

[[Page 870]]

      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     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 Service, 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)

[[Page 871]]

         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                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 
                HousingCommissioner, 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)

[[Page 872]]

      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)
       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 (Parts 1200--1299)

                      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--399)
        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)

[[Page 873]]

       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)
        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)

[[Page 874]]

       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        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)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     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 Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 875]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             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)
        VI  [Reserved]
       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 (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 876]]

             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)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        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)
            Chapters 62--100 [Reserved]
            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)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 877]]

       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)
            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [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)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       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--10010)

             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)

[[Page 878]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         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 Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 879]]

        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  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        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)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        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 [Reserved]

[[Page 880]]

        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)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                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 Homeland Security (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  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   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)

[[Page 881]]

         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 883]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2009)

                                                  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              22, II
  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                               2, IX; 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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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 884]]

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                       5, LXVIII; 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
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 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 and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 885]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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
Election Assistance Commission                    11, II
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                   2, XV; 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

[[Page 886]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 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 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 Agency                    12, XII
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

[[Page 887]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  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 Accountability Office                  4, I
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          2, III; 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
  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
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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 Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII

[[Page 888]]

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
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
  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            2, XIV; 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 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
Investment Security, Office of                    31, VIII
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                                2, XXVII; 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

[[Page 889]]

  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
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
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
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 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      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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 Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
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 Intelligence, Office of Director of      32, XVII
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

[[Page 890]]

National Science Foundation                       2, XXV; 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
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
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
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
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
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
[[Page 891]]

Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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                                  2, VI; 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                     2, XII; 5, L
  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
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  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 and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, 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                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8

[[Page 892]]

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 893]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that 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
0.29c (a) revised; (c) and (d) amended.............................37903
0.29d (a) revised..................................................37903
0.29e (a)(1), (2), (3) and (5) revised; (a)(6) introductory text, 
        (i) and (7) amended........................................37903
0.29n (a) amended..................................................37903
2.23 (a) amended...................................................43308
16.76 (b)(1) revised...............................................54663
16.81 (g) redesignated as (i); new (g) and (h) added...............17809
16.101 (e) introductory text, (1), (f)(1) and (3) revised; (f)(7), 
        (8) and (9) redesignated as (f)(8), (9) and (10); new 
        (f)(7) added................................................6470
16.130 Added.......................................................41445
    (b) corrected..................................................43308
16.131 Added.......................................................41446
    (b)(3) and (4) corrected.......................................43308
25.9 (b) revised....................................................6474
    Regulation at 66 FR 6474 eff. date delayed..............12855, 22898
27.1 (b) revised...................................................37904
27.4 Heading revised; (a) amended..................................37904
28 Added; interim..................................................34365

                                  2002

28 CFR
                                                                   67 FR
                                                                    Page
Chapter I
0.103 (a)(3) revised...............................................58990
0.100--0.104 (Subpart R) Appendix amended..........................58990
2.20 Amended.......................................................70692
2.35 (d) added; interim............................................67792
2.68 (l) amended...................................................70694
2.75 (a)(1) and (2) revised........................................57945
2.80 (a) and (f) revised; (h) amended; (o) added; Appendix removed
                                                                   57946
2.82 (a) revised...................................................57946
2.86 (c) amended in part; (d) redesignated as (e); (c) 
        redesignated in part as new (d)............................57946
2.94 (a) amended...................................................57946
2.98 (a)(1) amended; (f) revised; interim...........................2569
2.99 (b) revised; (e) amended; interim..............................2569
2.101 Revised; interim..............................................2569
2.102 (f) revised; interim..........................................2570
2.103 (d) revised; (f) and (g) added; interim.......................2570
2.104 (a)(1) amended................................................2571
2.105 (c) revised; interim..........................................2571
2.106 (a) and (d) heading revised; (b) amended; (d) text 
        redesignated as (d)(1); (d)(2) added.......................57946
2.207 (a) amended..................................................57947
2.208 (f) added....................................................57947
2.219 (a)(1) through (4) amended...................................57947
16.76 (c) through (h) removed......................................70163
16.97 (j) and (k) added............................................51754
    (l) and (m) added..............................................51755
    (n) and (o) added..............................................51756
16.105 Added.......................................................51756
16.132 Added.......................................................70163

[[Page 894]]

                                  2003

28 CFR
                                                                   68 FR
                                                                    Page
Chapter I
0.1 Amended.........................................................4926
0.100 (b) amended..................................................14899
0.137 Removed.......................................................4926
0.130--0.132 (Subpart W) Redesignated as 0.135--0.137 (Subpart W-
        1)..........................................................4926
0.130--0.133 (Subpart W) Added......................................4926
0.135--0.137 (Subpart W-1) Redesignated from 0.130--132 (Subpart 
        W)..........................................................4926
0.138 Heading and (a) amended.......................................4927
0.140 Amended.......................................................4927
0.141 Amended.......................................................4927
0.142 Introductory text and (g) amended.............................4927
0.143 Amended.......................................................4927
0.144 Amended.......................................................4928
0.145 Amended.......................................................4928
0.146 Amended.......................................................4928
0.147 Amended.......................................................4928
0.148 Amended.......................................................4928
0.149 Introductory text, (a) through (c) and concluding text 
        redesignated as (a) introductory text, (1) through (3) and 
        new (b); new (a) introductory text amended..................4928
0.151 Amended.......................................................4928
0.152 Amended.......................................................4928
0.153 Amended.......................................................4928
0.154 Amended.......................................................4928
0.155 Amended.......................................................4928
2.8 (c) revised; (e) added; interim................................70711
2.9 Amended........................................................41528
2.13 (c) revised...................................................41528
2.14 (a)(1) introductory text, (ii) and (iii) revised; 
        (a)(2)(iii), (b)(4)(ii) amended............................41529
2.17 (a) revised...................................................41529
2.20 Clause amended................................................41529
2.21 (c) amended...................................................41529
2.24 Revised.......................................................41529
2.26 (a) revised; interim..........................................41699
2.27 (a) revised...................................................41530
2.28 (a) revised...................................................41529
2.29 (b) amended...................................................41530
2.33 (c) amended...................................................41530
2.34 (a), (c) and (e) amended......................................41530
2.35 (d) revised...................................................16720
2.36 Amended.......................................................41530
2.40 Revised; interim..............................................41699
2.43 (d) amended...................................................41530
2.49 (b) and (c) revised; (d) and (e) redesignated as (e) and (f); 
        new (d) added..............................................41530
2.52 (a)(1)(iii) amended...........................................41530
2.64 (b)(3), (c)(2) and (6) amended................................41530
2.65 (i) amended...................................................41530
2.70 (a) through (e) amended.......................................41530
2.72 (b) revised; (c) and (d) removed; (e) through (h) 
        redesignated as new (c) through (f)........................41530
2.73 (a) amended...................................................41530
2.76 Amended.......................................................41530
2.77 (g)(1) and (2) amended........................................41530
2.78 (e), (g)(1) and (2) amended...................................41530
2.79 Amended.......................................................41531
2.85 Revised; interim..............................................41700
2.91 (a) amended...................................................41531
2.92 (a) amended...................................................41531
2.98 (e) amended...................................................41531
2.100 (d)(2) amended...............................................41531
2.101 (a) and (b) revised...........................................3390
2.102 (d) revised..................................................41531
2.105 (b), (d) and (e) amended.....................................41531
2.106 (a) revised; (c) amended.....................................41531
2.107 (a) amended..................................................41531
2.211 (a)(1) amended; (f) revised...................................3390
2.212 (b) revised; (e) amended......................................3390
2.214 Revised.......................................................3390
2.215 (f) revised...................................................3392
2.216 (e) revised; (g) and (h) added................................3392
2.217 (a)(1) amended................................................3392
2.218 (g) revised...................................................3392
2.200--2.220 (Subpart D) Revised; interim..........................41700
5.5 (d)(10) and (11) amended; eff. 7-7-03..........................33630
5.100 (c) and (d) amended; eff. 7-7-03.............................33630
5.200 (b) amended; eff. 7-7-03.....................................33630
5.201 (a)(1) and (2) amended; eff. 7-7-03..........................33630
5.202 (b) and (e) amended; eff. 7-7-03.............................33630
5.203 (a) amended; eff. 7-7-03.....................................33630
5.204 (a) amended; eff. 7-7-03.....................................33630
5.205 (a) amended; eff. 7-7-03.....................................33630
5.206 (b) amended; eff. 7-7-03.....................................33630
5.304 (c) revised; eff. 7-7-03.....................................33630
5.306 (a) revised; (b) amended; eff. 7-7-03........................33631
5.307 Added; eff. 7-7-03...........................................33631
5.400 Heading revised; (a), (b), and (c) amended; eff. 7-7-03......33631

[[Page 895]]

5.401 Removed; eff. 7-7-03.........................................33631
5.402 Heading revised; (a) through (e) amended; eff. 7-7-03........33631
5.500 (a)(4) amended; eff. 7-7-03..................................33631
5.600 Amended; eff. 7-7-03.........................................33631
5.601 (a) and (b) amended; eff. 7-7-03.............................33631
9.1 (b)(1) amended..................................................4928
9.3 (e)(1)(iii) redesignated as (e)(1)(iv); new (e)(1)(iii) added 
                                                                    4928
9.4 (e) amended.....................................................4928
11.6 (b) amended....................................................4928
14 Appendix amended................................................62517
15 Revised.........................................................74188
16 Technical correction............................................20225
16.2 (b)(11) and (12) redesignated as (b)(12) and (13); new 
        (b)(11) added...............................................4928
16.79 Revised.......................................................4929
16.90 Revised......................................................61622
16.96 (a) introductory text, (g) introductory text and (j) 
        introductory text revised; (b)(6) and (h)(5) redesignated 
        as (b)(7) and (h)(6); new (b)(6), (g)(1), (h)(5) and 
        (k)(5) added; (k)(4) amended...............................14140
16.98 (c) revised; (d) amended; (g) and (h) removed................14140
16.106 Added; interim...............................................3393
    Regulation at 68 FR 3393 confirmed.............................19148
16 Appendix I amended...............................................4928
42.101--42.112 (Subpart C) Authority citation revised..............51363
42.102 (d) revised.................................................51363
    (f) and (g) amended............................................51364
42.103 Introductory text amended...................................51364
42.104 (b)(1) introductory text amended; (b)(4) revised............51364
42.105 (a)(1), (2) and (d) introductory text amended; (b), (c)(2) 
        and (d) heading revised....................................51364
42.106 (b) and (d) amended.........................................51364
42.109 (e) amended.................................................51364
42.110 (f) amended.................................................51364
42.501--42.540 (Subpart G) Heading revised.........................51364
42.501 Amended.....................................................51365
42.502 Amended.....................................................51365
42.503 (a), (b)(1) introductory text, (i), (ii), (iv), (vi), (2) 
        through (6), (c), (d) and (f) amended......................51365
42.504 (a) and (b) amended.........................................51365
42.505 (a), (b) and (f)(1) amended.................................51365
42.510 (a)(1), (2), (3) and (b)(7) amended.........................51365
42.511 (a), (c) introductory text and (1) amended..................51365
42.520 Undesignated center heading amended.........................51364
    Amended........................................................51365
42.521 (a) heading revised; (a) amended............................51364
    (b), (d)(1) and (3) amended....................................51365
42.530 (a), (b) and (c) amended....................................51365
42.540 (h) revised.................................................51364
    (i) amended....................................................51365
42.501--42.540 (Subpart G) Appendix A amended......................51365
42.700--42.799 (Subpart I) Heading revised.........................51366
42.701 (b) amended.................................................51366
42.702 Amended.....................................................51366
42.710 (b) amended.................................................51366
42.712 (a)(2), (b)(2) and (c) amended..............................51366
42.713 (b) amended.................................................51366
42.714 Amended.....................................................51366
42.720 Amended.....................................................51366
42.724 (b) amended.................................................51366
42.725 Amended.....................................................51366
42.733 (b)(1)(i)(A), (2) and (3) amended...........................51366

                                  2004

28 CFR
                                                                   69 FR
                                                                    Page
Chapter I
0.85 (a) amended; (d) revised......................................65543
0.155 Amended......................................................57640
2.25 Added; interim.................................................5274
2.72 (a) amended; interim...........................................5274
2.74 (c) revised...................................................68792
2.75 (d) amended; interim...........................................5274
2.89 Amended; interim...............................................5274
2.105 (c) amended; (g) added.......................................68793
16.91 (u) and (v) added............................................72114
25.2 Amended.......................................................43900
25.6 (h) revised...................................................43900
25.9 (b) revised...................................................43900
25.10 (g) added....................................................43901
31 Authority citation revised.......................................2838
31.404 Added........................................................2838
31.502 (a)(3) added.................................................2838
33 Authority citation revised.......................................2838
33.53 Added.........................................................2838
38 Added............................................................2838

[[Page 896]]

                                  2005

28 CFR
                                                                   70 FR
                                                                    Page
Chapter I
0.129 (Subpart V-2) Added..........................................76164
2.25 Revised; interim..............................................19263
16.96 (r) and (s) added............................................72204
16.133 Added.......................................................49870
28 Authority citation revised................................4767, 21957
    Technical correction...........................................10886
28.1 Revised; interim...............................................4767
28.2 Revised; interim...............................................4767
28.21--28.28 (Subpart C) Added; interim............................21957

                                  2006

28 CFR
                                                                   71 FR
                                                                    Page
Chapter I
0.1 Amended.................................................19827, 36193
0.15 (b)(1)(i), (v), (2) and (c) revised; (h) added.................6207
0.19 (a)(1) and (b) revised; (d) added..............................6207
0.122 (Subpart U-2) Added..........................................19827
0.123 (Subpart U-3) Added..........................................36193
0.29 (a) revised...................................................54413
0.29j Revised......................................................54413
0.39--0.39c (Subpart G-2) Revised..................................54414
16.74 (a) introductory text revised................................58278
16.76 (c) and (d) added...............................................17
16.91 (a)(1) amended...............................................58278
16.93 (a)(2) amended; (b) introductory text, (e) and (f) revised 
                                                                   11309
16.97 (p) and (q) added.............................................8805
32 Revised.........................................................46037

                                  2007

28 CFR
                                                                   72 FR
                                                                    Page
Chapter I
0.1 Amended........................................................10065
0.15 (h) removed...................................................41624
0.19 (d) removed...................................................41624
0.33a--0.33c (Subpart F-1) Removed.................................10065
0.55 (i) revised...................................................10065
0.61 Removed.......................................................10065
0.62 Removed.......................................................10065
0.64 Removed.......................................................10065
0.64-1 Revised.....................................................10065
0.64-2 Revised.....................................................10065
0.64-4 Revised.....................................................10066
0.64-5 Revised.....................................................10066
0.65--0.69c (Subpart L) Redesignated from 0.65--0.69c (Subpart M); 
        heading revised............................................10066
0.65--0.69c (Subpart M) Redesignated as 0.65--0.69c (Subpart L)....10066
0.70--0.71 (Subpart M) Redesignated from 0.70--0.71 (Subpart N)....10066
0.70--0.71 (Subpart N) Redesignated as 0.70--0.71 (Subpart M)......10066
0.72 (Subpart N) Added.............................................10066
0.160--0.172 (Subpart Y) Appendix amended..........................65457
0.175 (a) revised..................................................10068
2.25 Revised; interim..............................................53118
2.66 Revised.......................................................53115
2.89 Amended.......................................................53116
5.1 Revised........................................................10068
5.2 (a) and (g) through (j) amended; (d) revised...................10068
5.100 (a)(3) and (5) revised; (a)(6) removed; (a)(7) through (13) 
        redesignated as (a)(6) through (12)........................10068
5.501 Amended......................................................10068
12 Authority citation revised......................................10068
12.2 Revised.......................................................10068
12.20 Revised......................................................10068
16.74 Revised......................................................44382
16.98 (g) and (h) added............................................54825
17 Authority citation revised......................................10068
17.1 (a) amended...................................................10069
17.13 Revised......................................................10069
17.14 (b)(1) revised...............................................10069
17.15 (b) amended..................................................10069
17.18 (b), (i), (j)(2) and (3) revised.............................10069
17.42 (a) amended..................................................10069

                                  2008

28 CFR
                                                                   73 FR
                                                                    Page
Chapter I
0.11 (a) revised....................................................8815
0.29d (a) revised...................................................1494
0.45 (a), (b) and (g) amended......................................54947
0.65--0.69c (Subpart L) Nomenclature change........................54947
0.100--0.104 (Subpart R) Appendix amended..........................40464
0.114 (a)(3) amended...............................................69554
0.143 Revised.......................................................8816
0.160--0.172 (Subpart Y) Nomenclature change.......................54947

[[Page 897]]

0.160 (a) introductory text and (b) revised; (c) redesignated as 
        (d); new (c) added.........................................54947
0.175 (b) amended..................................................54947
2.68 (g) and (h) amended...........................................12637
14 Authority citation revised......................................48299
14 Appendix amended...........................48299, 70276, 70277, 70278
16.96 (t) and (u) added.............................................9948
26 Authority citation and heading revised..........................75338
26.1--26.5 (Subpart A) Designated as Subpart A; heading added......75338
26.20--26.23 (Subpart B) Added.....................................75338
27.1 Revised........................................................1495
27.4 (e)(1) revised.................................................1495
28 Authority citation revised......................................74942
28.12 Revised......................................................74942
32 Authority citation revised......................................76528
32.0 Revised.......................................................76528
32.3 Amended.......................................................76528
32.4 Revised.......................................................76531
32.5 Revised.......................................................76531
32.6 Revised.......................................................76532
32.12 Revised......................................................76532
32.13 Amended......................................................76532
32.14 Revised......................................................76534
32.15 Revised......................................................76534
32.16 Revised......................................................76535
32.22 Revised......................................................76535
32.29 Revised......................................................76535
32.32 Revised......................................................76535
32.41 Revised......................................................76535
32.42 Revised......................................................76535
32.43 Revised......................................................76535
32.45 Revised......................................................76536
32.52 Revised......................................................76536
32.54 Revised......................................................76536
32.55 Revised......................................................76536

                                  2009

   (Regulations published from January 1, 2009, through July 1, 2009)

28 CFR
                                                                   74 FR
                                                                    Page
Chapter I
0.23a Redesignated as 0.24 and transferred to new Subpart D-3......29129
0.24 (Subpart D-3) Added...........................................29129
0.24 Redesignated from 0.23a and transferred to new Subpart D-3....29129
2 Table of contents amended; interim...............................28604
2.43 Revised; interim..............................................28604
    (g)(1)(A) and (B) correctly designated as (g)(1)(i) and (ii); 
interim............................................................29940
2.65 (i) revised; interim..........................................28604
    (i) corrected; interim.........................................29940
2.74 (c) amended; interim..........................................28605
2.92 (a), (c) and (d) revised; interim.............................28605
2.95 Revised; interim..............................................28605
    (e)(1)(A) and (B) correctly designated as (e)(1)(i) and (ii); 
interim............................................................29940
2.96[e x msp]Revised; interim..........................28605
2.97 Amended; interim..............................................28605
2.98 (e) amended; interim..........................................28605
2.100 (d)(2) amended; interim......................................28605
2.105 (b), (d) and (e) revised; interim............................28605
    (d)(3) corrected; (2)(A) and (B) correctly designated as 
(2)(i) and (ii)....................................................29941
2.208 Revised; interim.............................................28606
    (d)(1)(A) and (B) correctly designated as (d)(1)(i) and (ii) 
                                                                   29941
25 Authority citation revised.......................................5776
25.51--25.57 (Subpart B) Added......................................5776


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