[Title 28 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

         
         

          Title 28

Judicial Administration


________________________

Parts 0 to 42

                         Revised as of July 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 28:
          Chapter I--Department of Justice                           3
  Finding Aids:
      Table of CFR Titles and Chapters........................    1205
      Alphabetical List of Agencies Appearing in the CFR......    1225
      List of CFR Sections Affected...........................    1235

[[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, 2017), 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 
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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.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
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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.
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CFR INDEXES AND TABULAR GUIDES

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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.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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INQUIRIES

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    The e-CFR is a regularly updated, unofficial editorial compilation 
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available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    July 1, 2017.

                                
                                      
                            

  

[[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, 2017.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of John Hyrum 
Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                    TITLE 28--JUDICIAL ADMINISTRATION




                   (This book contains 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..........................         101
2               Parole, release, supervision and 
                    recommitment of prisoners, youth 
                    offenders, and juvenile delinquents.....         104
3               Gambling devices............................         211
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..         212
5               Administration and enforcement of Foreign 
                    Agents Registration Act of 1938, as 
                    amended.................................         216
6               Traffic in contraband articles in Federal 
                    penal and correctional institutions.....         227
7               Rewards for capture of escaped Federal 
                    prisoners...............................         227
8               Forfeiture authority for certain statutes...         228
9               Regulations governing the remission or 
                    mitigation of administrative, civil, and 
                    criminal forfeitures....................         240
10              Registration of certain organizations 
                    carrying on activities within the United 
                    States..................................         252
11              Debt collection.............................         253
12              Registration of certain persons having 
                    knowledge of foreign espionage, 
                    counterespionage, or sabotage matters 
                    under the Act of August 1, 1956.........         270
13              Atomic weapons and special nuclear materials 
                    rewards regulations.....................         273
14              Administrative claims under Federal Tort 
                    Claims Act..............................         275
15              Certification and decertification in 
                    connection with certain suits based upon 
                    acts or omissions of Federal employees 
                    and other persons.......................         282
16              Production or disclosure of material or 
                    information.............................         284
17              Classified National Security Information and 
                    access to classified information........         414
18              Office of Justice Programs hearing and 
                    appeal procedures.......................         430

[[Page 4]]

19              Use of penalty mail in the location and 
                    recovery of missing children............         435
20              Criminal justice information systems........         438
21              Witness fees................................         451
22              Confidentiality of identifiable research and 
                    statistical information.................         456
23              Criminal intelligence systems operating 
                    policies................................         460
24              Implementation of the Equal Access to 
                    Justice Act in Department of Justice 
                    administrative proceedings..............         464
25              Department of Justice information systems...         469
26              Death sentences procedures..................         483
27              Whistleblower protection for Federal Bureau 
                    of Investigation employees..............         487
28              DNA identification system...................         490
29              Motor Vehicle Theft Prevention Act 
                    regulations.............................         497
30              Intergovernmental review of Department of 
                    Justice programs and activities.........         499
31              OJJDP grant programs........................         503
32              Public safety officers' death, disability, 
                    and educational assistance benefit 
                    claims..................................         522
33              Bureau of Justice Assistance grant programs.         550
34              OJJDP competition and peer review procedures         567
35              Nondiscrimination on the basis of disability 
                    in State and local government services..         572
36              Nondiscrimination on the basis of disability 
                    by public accommodations and in 
                    commercial facilities...................         740
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..............        1100
38              Partnerships with faith-based and other 
                    neighborhood organizations..............        1107
39              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Justice..............................        1112
40              Standards for inmate grievance procedures...        1135
41              Implementation of Executive Order 12250, 
                    nondiscrimination on the basis of 
                    handicap in federally assisted programs.        1140
42              Nondiscrimination; equal employment 
                    opportunity; policies and procedures....        1147


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	Office for Access to Justice

0.33  Office for Access to Justice.

       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 of Part 0--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  Immigrant and Employee Rights Section.

Appendix to Subpart J of Part 0

                       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 of Part 0

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

[[Page 7]]


Appendix to Subpart Q of Part 0--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 of Part 0--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_Office of Tribal Justice

0.134  Office of Tribal Justice.

   Subpart W	2_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  [Reserved]
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,

[[Page 8]]

          Executive Office for United States Attorneys, Executive Office 
          for United States Trustees.
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 of Part 0--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.
Office of Tribal Justice.
Office for Access to Justice.

                                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 at www.fdsys.gov.



                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 United States 
Attorneys shall consist of an appropriate number of United States 
Attorneys, designated by the Attorney General. The membership shall be 
selected to represent the various geographic areas of the Nation and 
various sized United States Attorneys' 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. The United States Attorney for 
the District of Columbia

[[Page 10]]

shall serve as an ex officio member of the Committee. The Attorney 
General may designate additional personnel from United States Attorneys' 
Offices to serve as members of the Committee.
    (b) The Committee shall make recommendations to the Attorney 
General, to the Deputy Attorney General and to the Associate Attorney 
General concerning any matters which the Committee believes to be in the 
best interests of justice, including, but not limited to, the following:
    (1) Establishing and modifying policies and procedures of the 
Department;
    (2) Improving management, particularly with respect to the 
relationships between the Department and the U.S. Attorneys;
    (3) Cooperating with State Attorneys General and other State and 
local officials for the purpose of improving the quality of justice in 
the United States;
    (4) Promoting greater consistency in the application of legal 
standards throughout the Nation and at the various levels of government; 
and
    (5) Aiding the Attorney General, the Deputy Attorney General and the 
Associate Attorney General in formulating new programs for improvement 
of the criminal justice system at all levels, including proposals 
relating to legislation and court rules.
    (c) The Attorney General will select from the Committee's membership 
a chairperson and a vice-chairperson. The Attorney General may establish 
such subcommittees as deemed necessary to carry out the Committee's 
objectives. The Committee, in consultation with the Director of the 
Executive Office for United States Attorneys, will select chairpersons 
for such subcommittees. 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; Order No. 3108-2009, 74 FR 47097, 
Sept. 15, 2009]



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

[[Page 11]]

effect until amended, modified, or revoked by the Committee.

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



Sec. 0.13  Legal proceedings.

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

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



             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

[[Page 12]]

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.
    (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 at www.fdsys.gov.



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

[[Page 13]]

investigative agencies of the Department, both within the United States 
and abroad;
    (2) Assure, to the extent appropriate, consistent operational 
guidelines for the criminal investigative agencies of the Department;
    (3) Establish procedures, structures and mechanisms for coordinating 
the collection and dissemination of intelligence relating to the 
Department's law enforcement responsibilities;
    (4) Establish procedures and policies relating to procurement for 
the criminal investigative agencies of the Department, including but not 
limited to procurement of communications and computer systems;
    (5) Determine and establish procedures for the coordination of all 
automation systems;
    (6) Determine and establish plans to ensure the effective deployment 
of criminal investigative agency task forces;
    (7) Establish procedures for coordinating the apprehension of 
fugitives;
    (8) Establish programs to coordinate training among the criminal 
investigative agencies of the Department;
    (9) Provide advice to the Attorney General and the Deputy Attorney 
General on all investigative policies, procedures and activities that 
warrant uniform treatment or coordination among the criminal 
investigative agencies of the Department;
    (10) Provide advice to the Attorney General and the Deputy Attorney 
General on the budgetary and resource requests of the criminal 
investigative agencies of the Department;
    (11) Perform such other functions as may be necessary for the 
effective policy-level coordination of criminal investigations by the 
criminal investigative agencies of the Department, particularly with 
respect to drug trafficking, fugitive apprehension, violence, and 
related areas, and for the elimination of waste and duplication in these 
functions.
    (12) Perform such special duties as may be assigned by the Attorney 
General or the Deputy Attorney General from time to time.
    (c) Cooperation. Officials of the Federal Bureau of Investigation, 
the Drug 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

[[Page 14]]

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

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



          Subpart C	1_Office of the Associate Attorney General



Sec. 0.19  Associate Attorney General.

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

[[Page 15]]

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

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



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

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



             Subpart D	1_Executive Office for U.S. Attorneys



Sec. 0.22  General functions.

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

[[Page 16]]

    (c) Manage and coordinate the discharge of Departmental 
responsibilities related to the Freedom of Information Act (5 U.S.C. 
552) and the Privacy Act (5 U.S.C. 552a), including coordination and 
implementation of policy development and compliance within executive 
agencies and Departmental units relative to the Freedom on Information 
Act and within Departmental units relative to the Privacy Act; and 
supervise the Office of Information and Privacy which will, except as 
otherwise directed by the Attorney General, act on appeals taken from 
Departmental denials of access to records under the Privacy Act and the 
Freedom of Information Act.
    (d) Advise and assist the Attorney General and the Deputy Attorney 
General regarding the selection and appointment of Federal judges.
    (e) Administer the Federal Justice Research Program.
    (f) Represent the Department on the Administrative Conference of the 
United States and, as appropriate, on regulatory reform matters.
    (g) Participate, as appropriate, in internal budget hearings of the 
Department with regard to policy implications of resource allocations 
and resource implications of major policy initiatives; and advise the 
Assistant Attorney General for Administration with regard to information 
requirements for Departmental policy formulation.
    (h) Advise appropriate Departmental officials, from time to time, on 
investigation, litigation, negotiation, penal, or correctional policies 
to insure the compatibility of those policies with overall Departmental 
goals.
    (i) Perform such other duties and functions as may be specially 
assigned by the Attorney General and the Deputy Attorney General.

In carrying out his responsibilities under this section, the Assistant 
Attorney General, Office of Legal Policy, shall have the right to call 
upon the 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;

[[Page 17]]

    (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;
    (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 No. 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.

[[Page 18]]

    (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 No. 423-69, 34 FR 20388, Dec. 31, 1969, as amended by Order No. 
445-70, 35 FR 19397, Dec. 23, 1970; Order No. 623-75, 40 FR 42746, Sept. 
16, 1975; Order No. 960-81, 46 FR 52342, Oct. 27, 1981; Order No. 1054-
84, 49 FR 10118, Mar. 19, 1984; Order No. 1260-88, 53 FR 9435, Mar. 23, 
1988]



              Subpart E	1_Office of International Programs



Sec. 0.26  Organization.

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

[[Page 19]]

    (1) Maintain continual liaison with interested components of the 
Department on international matters.
    (2) Develop and administer effective mechanisms to ensure thorough 
consideration, by interested components of the Department, of all 
proposals for international training and technical assistance by 
Department personnel.
    (d) Redelegation of authority. The Director is authorized to 
redelegate to any subordinate member of the Office of International 
Programs any of the authority, functions or duties vested in the 
Director by this subpart.

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



     Subpart E	2_Office of Legislative and Intergovernmental Affairs



Sec. 0.27  General functions.

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

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



                  Subpart E	3_Office of Public Affairs



Sec. 0.28  General functions.

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

[[Page 20]]

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.
    (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

[[Page 21]]

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]



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.

[[Page 22]]



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;
    (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.

[[Page 23]]



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;
    (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	Office for Access to Justice



Sec. 0.33  Office for Access to Justice.

    The Office for Access to Justice shall be headed by a Director 
appointed by the Attorney General. The principal responsibilities of the 
Office shall be to plan, develop, and coordinate the implementation of 
access to justice policy initiatives of high priority to the Department 
and the executive branch, including in the areas of criminal indigent 
defense and civil legal aid. In addition, the Director shall:
    (a) Promote uniformity of Department of Justice and government-wide 
policies and litigation positions relating to equal access to justice;
    (b) Examine proposed legislation, proposed rules, and other policy 
proposals to ensure that access to justice principles are properly 
considered in the development of policy; and
    (c) Perform such other duties and functions as may be authorized by 
law or directed by the Attorney General,

[[Page 24]]

Deputy Attorney General, or Associate Attorney General.

[AG Order 3691-2016, 81 FR 43066, July 1, 2016]



       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]



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

[Order No. 1012-83, 48 FR 22290, May 18, 1983, as amended by AG Order 
No. 3464-2014, 79 FR 54188, Sept. 11, 2014]



Sec. 0.36  Recommendations.

    The Pardon Attorney shall submit all recommendations in clemency 
cases through the Deputy Attorney General and the Deputy 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, as amended by AG Order 
No. 3464-2014, 79 FR 54188, Sept. 11, 2014]



         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

[[Page 25]]

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;
    (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.

[[Page 26]]



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 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)),

[[Page 27]]

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 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)

[[Page 28]]

    (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]



Sec. Appendix to Subpart H of Part 0--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

[[Page 29]]

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.
    (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 
Secs. 0.55(i) and 0.61(d), and proceedings involving judgments, fines, 
penalties, and forfeitures assigned to other divisions by Sec. 0.171), 
and to defend challenged actions of Government agencies and officers, 
not otherwise assigned, including, but not limited to, civil penalties 
and forfeitures, actions in the Court of Claims under the Renegotiation 
Act, claims against private persons or organizations for which the 
Government is, or may ultimately be, liable, except as provided in 
Sec. 0.70(c)(2), defense of actions arising under section 2410 of title 
28 of the U.S. Code whenever the United States is named as a party as 
the result of the existence of a Federal lien against property, defense 
of actions for the recovery of U.S. Government Life Insurance and 
National

[[Page 30]]

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 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

[[Page 31]]

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 at www.fdsys.gov.



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, 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.

[[Page 32]]



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 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.

[[Page 33]]

    (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 sections 3(c) and 5 of the Voting Rights Act 
of 1965, as amended (42 U.S.C. 1973a(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.
    (n) Upon request, certification under 18 U.S.C. 249, relating to 
hate crimes.

[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 at www.fdsys.gov.



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.).
    (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  Immigrant and Employee Rights Section.

    (a) The Immigrant and Employee Rights Section shall be headed by a 
Special Counsel for Immigration-Related Unfair Employment Practices 
(``Special Counsel''). The Special Counsel shall be appointed by the 
President

[[Page 34]]

for a term of four years, by and with the advice and consent of the 
Senate, pursuant to section 274B of the Immigration and Nationality Act 
(INA), 8 U.S.C. 1324b. The Immigrant and Employee Rights Section 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 the Special Counsel's responsibilities under 
section 274B of the INA, the Special Counsel is authorized to:
    (1) Investigate charges of unfair immigration-related employment 
practices filed with the Immigrant and Employee Rights Section 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, Executive Office for Immigration 
Review, U.S. Department of Justice;
    (2) Intervene in proceedings involving complaints of unfair 
immigration-related employment practices that are brought directly 
before such administrative law judges by parties other than the Special 
Counsel;
    (3) Conduct, on the Special Counsel's own initiative, investigations 
of unfair immigration-related 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 subpoenas or orders of administrative 
law judges regarding unfair immigration-related employment practices;
    (5) Initiate, conduct, and oversee activities relating to the 
dissemination of information to employers, employees, and the general 
public concerning unfair immigration-related employment practices;
    (6) Establish such regional offices as may be necessary, in 
accordance with regulations of the Attorney General;
    (7) Perform such other functions as the Assistant Attorney General, 
Civil Rights Division may direct; and
    (8) Delegate to any subordinate any of the authority, functions, or 
duties vested in the Special Counsel.

[AG Order 3791-2016, 81 FR 91789, Dec. 19, 2016]



                  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.

                               [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).

[[Page 35]]

    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 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.

[[Page 36]]

    (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.
    (v) Upon request, certification under 18 U.S.C. 249, relating to 
hate crimes, in cases involving extraterritorial crimes that also 
involve charges filed pursuant to the Military Extraterritorial 
Jurisdiction Act (18 U.S.C. 3261 et seq.), or pursuant to chapters of 
the Criminal Code prohibiting genocide (18 U.S.C. 1091), torture (18 
U.S.C. 2340A), war crimes (18 U.S.C. 2441), or recruitment or use of 
child soldiers (18 U.S.C. 2442).

[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 at www.fdsys.gov.



Sec. 0.56  Exclusive or concurrent jurisdiction.

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



Sec. 0.57  Criminal prosecutions against juveniles.

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

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

[[Page 37]]



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, Mar. 29, 1973]



Secs. 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), 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

[[Page 38]]

Director, Deputy Directors, and Associate Directors of the Office of 
International Affairs, Criminal Division.

[Order No. 2865-2007, 72 FR 10065, Mar. 7, 2007, as amended by AG Order 
3847-2017, 82 FR 10547, Feb. 14, 2017]



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 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

[[Page 39]]

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.

                           [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]

[[Page 40]]



          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 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.

[[Page 41]]

    (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:
    (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

[[Page 42]]

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 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

[[Page 43]]

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.



                  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;

[[Page 44]]

    (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 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

[[Page 45]]

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 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

[[Page 46]]

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.
    (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.

[[Page 47]]

    (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 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

[[Page 48]]

per diem rates, promulgation of policies for travel, transportation, and 
relocation expenses, and issuance of necessary regulations pertaining 
thereto.
    (b) Submission of requests to the Office of Management and Budget 
for apportionment or reapportionment of appropriations, including the 
determination, whenever required, that such apportionment or 
reapportionment indicates the necessity for the submission of a request 
for a deficiency or supplemental estimate, and to make allotments to 
organizational units of the Department of funds made available to the 
Department within the limits of such apportionments or reapportionments 
(31 U.S.C. 665).
    (c) Approving per diem allowances for travel by airplane, train or 
boat outside the continental United States in accordance with paragraph 
1-7.2 of the Federal Travel Regulations (FPMR 101-7).
    (d) Exercising the claims settlement authority under the Federal 
Claims Collection Act of 1966 (31 U.S.C. 952).
    (e) Authorizing payment of actual expense of subsistence (5 U.S.C. 
5702(c)).
    (f) Prescribing regulations providing for premium pay pursuant to 5 
U.S.C. 5541-5550a.
    (g) Settling and authorizing payment of employee claims under the 
Military and Civilian Employees' Claims Act of 1964, as amended (31 
U.S.C. 240-243).
    (h) Submitting requests to the Comptroller General for decisions (31 
U.S.C. 74, 82d) and deciding questions involving the payment of $25 or 
less (Comp. Gen. B-161457, July 14, 1976).
    (i) Making determinations with respect to employment and wages under 
section 3122 of the Federal Insurance Contributions Act (26 U.S.C. 
3122).
    (j) Excluding the Office of Justice Assistance, Research and 
Statistics, supervising and directing the Department's procurement and 
contracting functions and assuring that equal employment opportunity is 
practiced by the Department's contractors and subcontractors and in 
federally assisted programs under the Department's control.
    (k) Designating Contracts Compliance Officers pursuant to Executive 
Order 11246, as amended.
    (l) Making the certificate required with respect to the necessity 
for including illustrations in printing (44 U.S.C. 1104).
    (m) Making the certificates with respect to the necessity of long 
distance telephone calls (31 U.S.C. 680a).
    (n) Making certificates of need for space (68 Stat. 518, 519).
    (o) Exercising, except for the authority conferred in 
Secs. 0.15(b)(1), 0.19(a)(1), 0.137, and 0.138 of this part, the power 
and authority vested in the Attorney General to take final action on 
matters pertaining to the employment, separation, and general 
administration of personnel in General Schedule grade GS-1 through GS-
15, and in wage board positions; classify positions in the Department 
under the General Schedule and wage board systems regardless of grade; 
postaudit and correct any personnel action within the Department; and 
inspect at any time any personnel operations of the various 
organizational units of the Department.
    (p) Selecting and assigning employees for training by, in, or 
through non-Government facilities, paying the expenses of such training 
or reimbursing employees therefor, and preparing and submitting the 
required annual report to the Office of Personnel Management (5 U.S.C. 
4103-4118).
    (q) Exercising authority for the temporary employment of experts or 
consultants of organizations thereof, including stenographic reporting 
services (5 U.S.C. 3109(b)).
    (r) Providing assistance in furnishing information to the public 
under the Public Information Section of the Administrative Procedure Act 
(5 U.S.C. 552).
    (s) Representing the Department in its contacts on matters relating 
to administration and management with the Congressional Appropriations 
Committees, Office of Management and Budget, the General Accounting 
Office, the Office of Personnel Management, the General Services 
Administration, the Joint Committee on Printing, the Government Printing 
Office and all other Federal departments and agencies.
    (t) Taking final action, including making all required 
determinations and findings, in connection with the

[[Page 49]]

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 at www.fdsys.gov.



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 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.

[[Page 50]]

    (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 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

[[Page 51]]

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.
    (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.

[[Page 52]]

    (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 at www.fdsys.gov.



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 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 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.
    (b) 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 paragraph (a) of this section and 
by 28 CFR 0.172.

[[Page 53]]

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; AG Order No. 3330-2012, 77 FR 26183, 
May 3, 2012]



       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.



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

[[Page 54]]

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.
    (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

[[Page 55]]

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 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

[[Page 56]]

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.
    (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]

[[Page 57]]



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
    (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]

[[Page 58]]



                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]



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

[[Page 59]]

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 No. 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 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

[[Page 60]]

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 Attaches, 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: Secs. 1308.21 and 1308.22 
relating to excluded nonnarcotic substances; Secs. 1308.23 and 1308.24 
relating to exempt chemical preparations; Secs. 1308.25 and 1308.26 
relating to excluded veterinary anabolic steroid implant products; 
Secs. 1308.31 and 1308.32 relating to exempted prescription products; 
and Secs. 1308.33 and 1308.34 relating to exempt anabolic steroid 
products, except that any final order following a contested proposed 
rulemaking shall be issued by the Deputy Administrator of DEA.
    (h) Part 1309, incident to the registration of manufacturers, 
distributors, importers 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.

[[Page 61]]

    (m) Part 1314, incident to the retail sale of scheduled listed 
chemical products by regulated sellers and distributors required to 
submit reports under section 310(b)(3) of the Act (21 U.S.C. 830(b)(3)), 
except that final orders in connection with suspension or revocation of 
the regulated seller's or mail order distributor's right to sell 
scheduled listed chemical products shall be made by the Deputy 
Administrator of the Drug Enforcement Administration.
    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, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



            Subpart S_Immigration and Naturalization Service



Sec. 0.105  General functions.

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

[[Page 62]]

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 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 52348, Oct. 27, 1981; Order No. 998-
83, 48 FR 8056, Feb. 25, 1983; Order No. 1176-87, 52 FR 11044, Apr. 7, 
1987; Order No. 1237-87, 52 FR 44971, Nov. 24, 1987; Order No. 1245-87, 
52 FR 48998, Dec. 29, 1987]



Sec. 0.106  Certificates for expenses of unforeseen emergencies.

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



Sec. 0.107  Representation on committee for visit-exchange.

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



Sec. 0.108  Redelegation of authority.

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

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



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

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

[[Page 63]]



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

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



                Subpart T_United States Marshals Service



Sec. 0.111  General functions.

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

[[Page 64]]

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, 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

[[Page 65]]

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--$65 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--$65 per person per 
hour for each item served, plus travel costs and any other out-of-pocket 
expenses.
    (4) For copies at the request of any party--$.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 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

[[Page 66]]

$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 No. 3017-2008, 73 FR 69554, Nov. 19, 2008; 
78 FR 59819, Sept. 30, 2013]



            Subpart U_Executive Office for Immigration Review

    Source: Order No. 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 No. 1237-87, 52 FR 44971, Nov. 24, 1987, as amended by Order No. 
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:
    (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.

[[Page 67]]



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.
    (c) Departmental regulations set forth in part 18 of this title, 
shall apply with equal force and effect to grant programs administered 
by the Office on Violence Against Women, with references to the Office 
of Justice Programs and its components in such regulations deemed to 
refer to the Office on Violence Against Women, as appropriate.

[Order No. 2811-2006, 71 FR 19827, Apr. 18, 2006, as amended at 80 FR 
1006, Jan. 8, 2015]



           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 68]]



                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 69]]

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 70]]

    (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)(1) 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;
    (2) Seize, forfeit, and remit or mitigate the forfeiture of property 
in accordance with 21 U.S.C. 881 and applicable Department of Justice 
regulations.
    (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.

[Order No. 2650-2003, 68 FR 4926, Jan. 31, 2003, as amended at 77 FR 
51699, Aug. 27, 2012; AG Order No. 3421-2014, 79 FR 12062, Mar. 4, 2014; 
AG Order No. 3495-2015, 80 FR 9989, Feb. 25, 2015]



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

[[Page 71]]

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 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 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.
    (b) The Director of the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives is authorized to redelegate the power and authority vested in 
him by paragraph (a) of this section and by 28 CFR 0.172 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.

[Order No. 2650-2003, 68 FR 4926, Jan. 31, 2003, as amended by AG Order 
No. 3330-2012, 77 FR 26183, May 3, 2012]



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

[[Page 72]]

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 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_Office of Tribal Justice

    Source: Order No. 3229-2010, 75 FR 70123, Nov. 17, 2010, unless 
otherwise noted.



Sec. 0.134  Office of Tribal Justice.

    (a) Organization. The Office of Tribal Justice 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 
the Associate Attorney General and shall be a member of the Senior 
Executive Service.
    (b) Mission. The mission of the Office of Tribal Justice shall be to 
provide a principal point of contact within the Department of Justice to 
listen to the concerns of Indian Tribes and other parties interested in 
Indian affairs and to communicate the Department's policies to the 
Tribes and the public; to promote internal uniformity of Department of 
Justice policies and litigation positions relating to Indian country; 
and to coordinate with other Federal agencies and with State and local 
governments on their initiatives in Indian country.
    (c) Function. Subject to the general supervision and direction of 
the Deputy Attorney General and the Associate Attorney General, the 
Office of Tribal Justice shall:
    (1) Serve as the program and legal policy advisor to the Attorney 
General with respect to the treaty and trust relationship between the 
United States and Indian Tribes;
    (2) Serve as the Department's initial and ongoing point of contact, 
and as the Department's principal liaison, for Federally recognized 
Tribal governments and Tribal organizations;
    (3) Coordinate the Department's activities, policies, and positions 
relating to Indian Tribes, including the treaty and trust relationship 
between the United States and Indian Tribes;
    (4) Ensure that the Department and its components work with Indian 
Tribes on a government-to-government basis;

[[Page 73]]

    (5) Collaborate with Federal and other government agencies to 
promote consistent, informed government-wide policies, operations, and 
initiatives related to Indian Tribes;
    (6) Serve as a clearinghouse for coordination among the various 
components of the Department on Federal Indian law issues, and with 
other Federal agencies on the development of policy or Federal 
litigation positions involving Indians and Indian Tribes;
    (7) Coordinate with each component of the Department to ensure that 
each component of the Department has an accountable process to ensure 
meaningful and timely consultation with Tribal leaders in the 
development of regulatory policies and other actions that affect the 
trust responsibility of the United States to Indian Tribes, any Tribal 
treaty provision, the status of Indian Tribes as sovereign governments, 
or any other Tribal interest.
    (8) Ensure that the consultation process of each component of the 
Department is consistent with Executive Order 13175 and with the 
Department's consultation policy;
    (9) Serve, through its Director, as the official responsible for 
implementing the Department's Tribal consultation policy and for 
certifying compliance with Executive Order 13175 to the Office of 
Management and Budget; and
    (10) Perform such other duties and assignments as deemed necessary 
from time to time by the Attorney General, the Deputy Attorney General, 
or the Associate Attorney General.



   Subpart W	2_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. Further redesignated by Order No. 3229-2010, 75 FR 70123, Nov. 17, 
2010]



Sec. 0.136  [Reserved]



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

[[Page 74]]

(``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. Further redesignated by Order No. 3229-2010, 75 
FR 70123, Nov. 17, 2010]



     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 
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-

[[Page 75]]

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:
    (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,

[[Page 76]]

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 at www.fdsys.gov.



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 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

[[Page 77]]

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), 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

[[Page 78]]

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 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

[[Page 79]]

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 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]

[[Page 80]]



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 not exceed 
$10,000,000 or 15 percent of the original claim, whichever is greater;
    (2) Accept offers in compromise of claims asserted by the United 
States in all cases in which a qualified financial expert has determined 
that the offer in compromise is likely the maximum that the offeror has 
the ability to pay;
    (3) 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 $4,000,000; and
    (4) 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

[[Page 81]]

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 
paying at least the allocated amount.
    (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; AG Order No. 3532-2015, 80 FR 
30618, May 29, 2015]



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

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

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



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

    Each Assistant Attorney General is authorized, with respect to 
matters assigned to his division or office, to reject offers in 
compromise of any claims in behalf of the United States, or, in 
compromises or administrative actions to settle, against the United 
States, except in those cases which come under Sec. 0.160(d)(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; AG Order No. 3532-2015, 80 FR 30618, May 29, 2015]



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

[[Page 82]]

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 Secs. 0.160(a) and 0.164, 
the Assistant Attorney General concerned shall, when he is of the 
opinion that the claim should be closed, transmit his recommendation to 
that effect, together with a report on the matter, to the Deputy 
Attorney General or the Associate Attorney General, as appropriate, for 
review and final action. Such report shall be in such form as the Deputy 
Attorney General or the Associate Attorney General may require.

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



Sec. 0.166  Memorandum pertaining to closed claim.

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



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

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

Provided, That any such title or debt claim is within one of the 
following-described categories.
    (1) Any title claim which involves the return of assets having a 
value of $50,000 or more, or any debt claim in the amount of $50,000 or 
more.
    (2) Any title claim which will, as a practical matter, control the 
disposition of related title claims involving, with the principal claim, 
assets having a value of $50,000 or more; or any debt claim which will, 
as a practical matter,

[[Page 83]]

control the disposition of related debt claims in the aggregate amount, 
including the principal claim, of $50,000 or more.
    (3) Any title claim or debt claim presenting a novel question of law 
or a question of policy which, in the opinion of the Director, should 
receive the personal attention of the Associate Attorney General or the 
Attorney General.
    (d) Any sale or other disposition of vested property involving 
assets of $50,000 or more.

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



Sec. 0.168  Redelegation by Assistant Attorneys General.

    (a) Assistant Attorneys General are authorized, with respect to 
matters assigned to their respective divisions, to redelegate to 
subordinate division officials and United States Attorneys any of the 
authority delegated by Secs. 0.160 (a), (b), and (c), 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(d) 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 $10,000,000; 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, as amended by AG Order 
No. 3532-2015, 80 FR 30618, May 29, 2015]



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 United States Customs and Border Protection's mitigation decision 
issued pursuant to 19 U.S.C. 1618 or, if no mitigation decision has been 
issued, the gross amount of the original claim shall mean twenty percent 
of the dutiable value of the merchandise.

[Order No. 2343-2000, 65 FR 78414, Dec. 15, 2000, as amended by AG Order 
No. 3532-2015, 80 FR 30619, May 29, 2015]



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

[[Page 84]]

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,
    (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

[[Page 85]]

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) Delegation of authority. Subject to the limitations set forth in 
paragraph (b) of this section, the Director of the Bureau of Prisons, 
the Commissioner of Federal Prison Industries, the Director of the 
United States Marshals Service, the Administrator of the Drug 
Enforcement Administration, the Director of the Federal Bureau of 
Investigation, and the Director of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives shall have authority under section 2672 of 
title 28, United States Code, relating to the administrative settlement 
of Federal tort claims, to consider, ascertain, adjust, determine, 
compromise, and settle any claim involving their respective components, 
provided that any award, compromise, or settlement shall not exceed 
$50,000.
    (b) Limitations on authority. Any proposed award, compromise, or 
settlement under section 2672 of title 28, United States Code, must be 
referred to the Assistant Attorney General in charge of the Civil 
Division, or his delegee, when--
    (1) Because a significant question of law or policy is presented, or 
for any other reason, the head of the referring component is of the 
opinion that the proposed award, compromise, or settlement should 
receive the personal attention of the Assistant Attorney General or his 
delegee;
    (2) Two or more claims arise from the same subject matter and the 
total amount of any award, compromise, or settlement of all claims will 
or may exceed $50,000; or
    (3) The award, compromise, or settlement of a particular claim, as a 
practical matter, will or may control or adversely influence the 
disposition of other claims and the total settlement value of all claims 
will or may exceed $50,000.
    (c) Subject to the provisions of Sec. 0.160, the Assistant Attorney 
General in charge of the Civil Division shall have authority to 
consider, ascertain, 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.

[AG Order No. 3330-2012, 77 FR 26183, May 3, 2012]



  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. 1-15]

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

                Section 1. Scope of Delegation Authority

    (a) Delegation to Deputy Assistant Attorneys General. The Deputy 
Assistant Attorneys General are hereby delegated all the power and 
authority of the Assistant Attorney General in charge of the Civil 
Division, including with respect to the institution of suits, the 
acceptance or rejection of compromise offers, the administrative 
settlement of claims, and the closing of claims or cases, unless any 
such authority or power 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(d) and 0.164, and sections 1(e) and 
4(b) of this directive, and the authority of the Solicitor General set 
forth in 28 CFR 0.163, United States Attorneys; 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:

[[Page 86]]

    (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 $10,000,000;
    (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;
    (3) Reject any offers in compromise; and
    (4) Close any affirmative claim or case where the gross amount of 
the original claim does not exceed $10,000,000.
    (c) Subject to the limitations imposed by sections 1(e), 4(b), and 5 
of this directive, United States Attorneys, Directors, and Attorneys-in-
Charge are hereby delegated the authority to:
    (1) File suits, counterclaims, and cross-claims, or 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 $10,000,000. Such actions 
in nonmonetary cases which are other than routine will be submitted for 
the approval of the Assistant Attorney General, Civil Division; and,
    (2) Issue subpoenas, civil investigative demands, and any other 
compulsory process.
    (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.
    (1) The authority to compromise cases, settle claims 
administratively, file suits, counterclaims, and cross-claims, to close 
claims or cases, or take any other action necessary to protect the 
interests of the United States, delegated by paragraphs (a), (b), and 
(c) of this section, may not be exercised, and the matter shall be 
submitted for resolution to the Assistant Attorney General, Civil 
Division, when:
    (i) 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.
    (ii) 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.
    (iii) 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.
    (iv) The United States Attorney involved is opposed to the proposed 
action and requests that the matter be submitted to the Assistant 
Attorney General for decision.
    (v) The case is on appeal, except as determined by the Director of 
the Appellate Staff.
    (2) In fraud or False Claims Act cases and matters, for reasons 
similar to those listed in sub-section l(e)(l)(i) through l(e)(l)(iii) 
above, the Director of the Fraud Section of the Commercial Litigation 
Branch, after consultation with the United States Attorney, may 
determine that a case or matter will not be delegated to the United 
States Attorney, but personally or jointly handled, or monitored, by the 
Civil Division.

                       Section 2. Action Memoranda

    (a) Whenever, pursuant to the authority delegated by this Directive, 
an official of the Civil Division or a United States Attorney accepts a 
compromise, closes a claim or files a suit or claim, 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, upon request 
therefrom, be sent to the appropriate Branch or Office of the Civil 
Division.
    (b) The compromising of cases or closing of claims or the filing of 
suits for claims, which a United States Attorney is not authorized to 
approve, shall be referred to the appropriate Branch or Office within 
the Civil Division, for decision by the Assistant Attorney General or 
the appropriate authorized person within the Civil Division. The 
referral memorandum should contain a detailed description of the matter, 
the United States Attorney's recommendation, the agency's recommendation 
where applicable, and a full statement of the reasons therefor.

          Section 3. Return of Civil Judgment Cases to Agencies

    Claims arising out of judgments in favor of the United States which 
cannot be permanently closed as uncollectible may be returned to the 
referring Federal agency for servicing and surveillance whenever all 
conditions set forth in USAM 4-3.230 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

[[Page 87]]

handling in trial courts, subject to the limitations imposed by 
paragraph (b) 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 representatives, 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 where the gross amount of the 
original claim does not exceed $10,000,000.
    (2) Single family dwelling house foreclosures arising out of loans 
made or insured by the Department of Housing and Urban Development, the 
Department of Veterans Affairs, or the Farm Service Agency.
    (3) Suits to enjoin violations of, or 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 Surface Transportation Board to enforce 
orders of the Surface Transportation Board 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) Cases not covered. Regardless of the amount in controversy 
(unless otherwise specified), the following matters normally will not be 
delegated to United States Attorneys for handling but will be personally 
or jointly handled or monitored by the appropriate Branch or Office 
within the Civil Division:
    (1) Cases 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 case involving vessel-caused pollution in navigable waters.
    (6) Cases on appeal, except as determined by the Director of the 
Appellate Staff.
    (7) Any case involving litigation in a foreign court.
    (8) 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 Consumer Protection Branch.
    (9) Nonmonetary civil cases, including injunction suits, declaratory 
judgment actions, and applications for inspection warrants, and cases 
seeking civil penalties where the gross amount of the original claim 
exceeds $10,000,000.
    (10) Cases arising under the statutes listed in 28 CFR 0.45(j), 
except as determined by the Director of the Consumer Protection Branch.
    (11) Administrative claims arising under the Federal Tort Claims 
Act.

                 Section 5. Civil Investigative Demands

    Authority relating to Civil Investigative Demands issued under the 
False Claims Act is hereby delegated to United States Attorneys in cases 
that are delegated or assigned as monitored to their respective 
components. In accordance with guidelines provided by the Assistant 
Attorney General, each United States Attorney must provide notice and a 
report of Civil Investigative Demands issued by the United States 
Attorney. Authority relating to Civil Investigative Demands issued under 
the False Claims Act in cases that are jointly or personally handled by 
the Civil Division is hereby delegated to the Director of

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the Fraud Section of the Commercial Litigation Branch. When a case is 
jointly handled by the Civil Division and a United States Attorney's 
Office, the Director of the Fraud Section will issue a Civil 
Investigative Demand only after requesting the United States Attorney's 
recommendation.

                      Section 6. Adverse Decisions

    All final judicial decisions adverse to the Government, other than 
bankruptcy court decisions except as provided herein, 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 of such a decision, as 
well as an appeal of an adverse decision by a district court or 
bankruptcy appellate panel reviewing a bankruptcy court decision or a 
direct appeal of an adverse bankruptcy court decision to a court of 
appeals, 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 7. Definitions

    (a) For purposes of this directive, in the case of claims involving 
only civil penalties, other than claims defined in 28 CFR 0.169(b), the 
phrase ``gross amount of the original claim'' shall mean the maximum 
amount of penalties sought.
    (b) For purposes of this directive, in the case of claims asserted 
in bankruptcy proceedings, the phrase ``gross amount of the original 
claim'' shall mean 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.

                         Section 8. Supersession

    This directive supersedes Civil Division Directive No. 1-10 
regarding redelegation of the Assistant Attorney General's authority in 
Civil Division cases to Branch Directors, heads of offices, and United 
States Attorneys.

                        Section 9. Applicability

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

                 Section 10. No Private Right of Action

    This directive consists of rules of agency organization, procedure, 
and practice and does not create a private right of action for any 
private party to challenge the rules or actions taken pursuant to them.

                            Criminal Division

                             [Memo No. 375]

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

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

[[Page 89]]

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

[[Page 90]]

amounts greater than as set forth in paragraph (a) above, and up to the 
maximum limit of his authority, where the circumstances warrant such 
delegation.
    (c) All other authority delegated to me by Secs. 0.160, 0.162, 0.164 
and 0.171 of title 28 of the Code of Federal Regulations not falling 
within the limitations of paragraph (a) of this Order is hereby 
redelegated to Section Chiefs in the Criminal Division, except that--
    (1) The authority delegated to me by Secs. 0.160, 0.162, 0.164 and 
0.171 of that title relating to conducting, handling, or supervising 
civil and criminal forfeiture litigation (other than bail bond 
forfeiture), including acceptance or denial of petitions for remission 
or mitigation of forfeiture, is hereby redelegated to the Director of 
the Asset Forfeiture Office; and
    (2) When a Section Chief or the Director of the Asset Forfeiture 
Office is of the opinion that because of a question of law or policy 
presented, or for any other reason, a matter described in paragraph (c) 
should receive the 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 Secs. 0.65, 0.160, 0.162, 0.164, 
0.166, and 0.168 thereof, I hereby redelegate to the Deputy Assistant 
Attorney General, certain Section Chiefs, and to the United States 
Attorneys, the following authority to act in connection with, and to 
compromise, 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 
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

[[Page 91]]

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
    (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

[[Page 92]]

    (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 uncollectible. 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 uncollectible; 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 Secs. 0.65, 0.65(a), 0.160, 0.162, 
0.164, 0.166, 0.168 and 50.7 thereof, I hereby redelegate to the Section 
Chief of the Environmental Enforcement Section, the following authority 
to initiate and to compromise Environment and Natural Resources Division 
cases and to approve Federal Register Notices describing settlements of 
actions to enjoin discharges of pollutants into the environment.

                       Authority To Initiate Cases

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

[[Page 93]]

    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.

                           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

[[Page 94]]

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

[[Page 95]]

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.

                    [Tax Division Directive No. 139]

    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 11 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;
    (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.

[[Page 96]]

    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. 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 11 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 11 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 office's 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; 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 11 hereof, each of the Deputy Assistant Attorneys General is 
authorized to:

[[Page 97]]

    (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. In addition to the actions authorized by Section 8 
hereof, and subject to the conditions and limitations set forth in 
Section 10 hereof, a Principal Deputy Assistant Attorney General is 
authorized to:
    (A) Accept offers in compromise and settle administratively claims 
against the United States in all civil cases, regardless of amount in 
all cases in which the Joint Committee on Taxation has indicated that it 
has no adverse criticism of the proposed settlement, provided that such 
action is not opposed by the agency or agencies involved.
    (B) Consistent with, and subject to the limitations of, 28 CFR 
0.168, and in the absence of an Assistant Attorney General, redelegate 
authority under this Directive to subordinate division officials and 
United States Attorneys.
    Section 10. Subject to the conditions and limitations set forth in 
Section 11 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, provided further that this authorization extends 
only to judgments which have been formally referred to the United States 
Attorney for collection.
    Section 11. 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 2, 3, 4, 5, 6, 7, 8, 9, and 10 
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 12. 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 13. 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.

[[Page 98]]

    Section 14. This Directive supersedes Tax Division Directive No. 
135, which was effective November 21, 2007.
    Section 15. This Directive shall become effective on March 21, 2011.

                   Attorney General Order No. 1147-86

    By virtue of the authority vested in the Attorney General by 18 
U.S.C. 2254, the Attorney General hereby designates the Postal Service 
with the authority to conduct civil forfeitures under section 2254 of 
the Protection of 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, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



 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]

[[Page 99]]



Sec. 0.176  Congressional proceedings.

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

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



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

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

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



Sec. 0.177a  Antitrust civil investigative demands.

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

[[Page 100]]



Sec. 0.179a  Enforcement responsibilities.

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

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



                Subpart AA_Orders of the Attorney General

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



Sec. 0.180  Documents designated as orders.

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



Sec. 0.181  Requirements for orders.

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



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

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

[[Page 101]]

Proposed changes which are determined by the Deputy Attorney General to 
affect the overall structure of the Department's organization shall be 
forwarded by the Deputy Attorney General to the Attorney General for 
final approval prior to implementation, and shall be effectuated by 
issuance of an Attorney General's order, in accordance with subpart AA 
of this part.

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



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

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

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



                 Subpart CC_Jurisdictional Disagreements



Sec. 0.195  Procedure with respect to jurisdictional disagreements.

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

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



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

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

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



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

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

[[Page 102]]

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



Sec. 1.2  Eligibility for filing petition for pardon.

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



Sec. 1.3  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

[[Page 103]]

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:
    (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 Secs. 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

[[Page 104]]

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 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, Aug. 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, Aug. 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.

[[Page 105]]

2.42  Probation officer's reports to Commission.
2.43  Early termination.
2.44  Summons to appear or warrant for retaking of parolee.
2.45  Same; youth offenders.
2.46  Execution of warrant and service of summons.
2.47  Warrant placed as a detainer and dispositional review.
2.48  Revocation: Preliminary interview.
2.49  Place of revocation hearing.
2.50  Revocation hearing procedure.
2.51  Issuance of a subpoena for the appearance of witnesses or 
          production of documents.
2.52  Revocation decisions.
2.53  Mandatory parole.
2.54  Reviews pursuant to 18 U.S.C. 4215(c).
2.55  Disclosure of file prior to parole hearing.
2.56  Disclosure of Parole Commission 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).

[[Page 106]]


    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.
    (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]

[[Page 107]]



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 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

[[Page 108]]

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 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

[[Page 109]]

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]



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]

[[Page 110]]



Sec. 2.12  Initial hearings: Setting presumptive release dates.

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

[[Page 111]]

    (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.
    (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.

[[Page 112]]

    (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]



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) A Commissioner may designate a case as an original jurisdiction 
case if the case involves an offender:
    (1) Who committed a serious crime against the security of the 
nation;
    (2) Whose offense behavior included an unusual degree of 
sophistication or planning or was part of a large scale criminal 
conspiracy or continuing criminal enterprise;
    (3) Who 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 a victim of the crime;
    (4) Whose offense behavior caused the death of a law enforcement 
officer while the officer was in the line of duty; or
    (5) Who was sentenced to a maximum term of at least 45 years or life 
imprisonment.

[[Page 113]]

    (c)(1) Any case designated for the original jurisdiction of the 
Commission shall remain an original jurisdiction case unless designation 
is removed pursuant to this subsection.
    (2) A case found to be inappropriately designated for the 
Commission's original jurisdiction, or to no longer warrant such 
designation, may be removed from original jurisdiction under the 
procedures specified in paragraph (a) of this section following a 
regularly scheduled hearing or the reopening of the case pursuant to 
Sec. 2.28. Removal from original jurisdiction may also occur by majority 
vote of the Commission considering a petition for reconsideration 
pursuant to Sec. 2.27. Where the circumstances warrant, a case may be 
redesignated as original jurisdiction pursuant to the provisions of 
paragraphs (a) and (b) of this section.

[42 FR 39809, Aug. 5, 1977, as amended at 42 FR 44234, Sept. 2, 1977; 48 
FR 53409, Nov. 28, 1983; 61 FR 13763, Mar. 28, 1996; 61 FR 55743, Oct. 
29, 1996; 68 FR 41529, July 14, 2003; 75 FR 81459, Dec. 28, 2010]



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,

[[Page 114]]

pursuant to paragraph (b)(2) of this section.
    (c) The Commission may take into account any substantial information 
available to it in establishing the prisoner's offense severity rating, 
salient factor score, and any aggravating or mitigating circumstances, 
provided the prisoner is apprised of the information and afforded an 
opportunity to respond. If the prisoner disputes the accuracy of the 
information presented, the Commission shall resolve such dispute by the 
preponderance of the evidence standard; that is, the Commission shall 
rely upon such information only to the extent that it represents the 
explanation of the facts that best accords with reason and probability. 
If the Commission is given evidence of criminal behavior that has been 
the subject of an acquittal in a federal, state, or local court, the 
Commission may consider that evidence if:
    (1) The Commission finds that it cannot adequately determine the 
prisoner's suitability for release on parole, or to remain on parole, 
unless the evidence is taken into account;
    (2) The Commission is satisfied that the record before it is 
adequate notwithstanding the acquittal;
    (3) The prisoner has been given the opportunity to respond to the 
evidence before the Commission; and
    (4) The evidence before the Commission meets the preponderance 
standard.


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.

[[Page 115]]

    (h) If an offender was less than 18 years of age at the time of the 
current offense, such youthfulness shall, in itself, be considered as a 
mitigating factor.
    (i) For criminal behavior committed while in confinement see 
Sec. 2.36 (Rescission Guidelines).
    (j)(1) In probation revocation cases, the original federal offense 
behavior and any new criminal conduct on probation (federal or 
otherwise) is considered in assessing offense severity. The original 
federal conviction is also counted in the salient factor score as a 
prior conviction. Credit is given toward the guidelines for any time 
spent in confinement on any offense considered in assessing offense 
severity.
    (2) Exception: Where probation has been revoked on a complex 
sentence (i.e., a committed sentence of more than six months on one 
count or more of an indictment or information followed by a probation 
term on other count(s) of an indictment or information), the case shall 
be considered for guideline purposes under Sec. 2.21 as if parole rather 
than probation had been revoked.

                      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

[[Page 116]]

    Subchapter C--Official Corruption
Chapter Seven  Offenses Involving Individual Rights
    Subchapter A--Offenses Involving Civil Rights
    Subchapter B--Offenses Involving Privacy
Chapter Eight  Offenses Involving Explosives and Weapons
    Subchapter A--Explosives and Other Dangerous Articles
    Subchapter B--Firearms
Chapter Nine  Offenses Involving Illicit Drugs
    Subchapter A--Heroin and Opiate Offenses
    Subchapter B--Marihuana and Hashish Offenses
    Subchapter C--Cocaine Offenses
    Subchapter D--Other Illicit Drug Offenses
Chapter Ten  Offenses Involving National Defense
    Subchapter A--Treason and Related Offenses
    Subchapter B--Sabotage and Related Offenses
    Subchapter C--Espionage and Related Offenses
    Subchapter D--Selective Service Offenses
    Subchapter E--Other National Defense Offenses
Chapter Eleven  Offenses Involving Organized Criminal Activity, 
          Gambling, Obscenity, Sexual Exploitation of Children, 
          Prostitution, and Non-Governmental Bribery
    Subchapter A--Organized Crime Offenses
    Subchapter B--Gambling Offenses
    Subchapter C--Obscenity
    Subchapter D--Sexual Exploitation of Children
    Subchapter E--Prostitution and White Slave Traffic
    Subchapter F--Non-Governmental Bribery
    Subchapter G--Currency Offenses
Chapter Twelve  Miscellaneous Offenses
Chapter Thirteen  General Notes and Definitions
    Subchapter A--General Notes
    Subchapter B--Definitions

             Chapter One  Offenses of General Applicability

101  Conspiracy
    Grade conspiracy in the same category as the underlying offense.
102    Attempt
    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.
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    *Terms marked by an asterisk are defined in Chapter Thirteen.
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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

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

                      Subchapter D--Sexual Offenses

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

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

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                  Subchapter B--Criminal Entry Offenses

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

             Subchapter C--Robbery, Extortion, and Blackmail

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

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    (a) If very large scale (e.g., more than 100,000 sound recordings or 
more than 10,000 audio visual works), grade as Category Five;

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

            Subchapter E--Counterfeiting and Related Offenses

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

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

                    Subchapter F--Bankruptcy Offenses

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

  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]


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

                     Subchapter B--Customs Offenses

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

                   Subchapter C--Contraband Cigarettes

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

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gross value of the property, contract, obligation, interest, or payment 
intended to be awarded to the bribe-giver in return for the bribe. Grade 
the bribe-taker in the same manner.
    (b) If the above conduct involves a pattern of corruption (e.g., 
multiple instances), grade as not less than Category Four.
    (c) If the purpose of the conduct is the obstruction of justice, 
grade as if ``perjury''.
    (d) Notes:
    (1) The grading in this subchapter applies to each party to a bribe.
    (2) The extent to which the criminal conduct involves a breach of 
public trust, causing injury beyond that describable by monetary gain, 
may be considered as an aggravating factor.
622  Other Unlawful Use of Governmental Position
    Category Two.

                       Subchapter D--Voting Fraud

631  Voting Fraud
    Category Four.

           Chapter Seven  Offenses Involving Individual Rights

              Subchapter A--Offenses Involving Civil Rights

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

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    (c) Where the Commission finds that the offender had only a 
peripheral role*, grade conduct under (a) or (b) as Category Six;
    (d) If large scale (e.g., involving 50-999 grams of 100% pure 
heroin, or equivalent amount), grade as Category Six [except as noted in 
(e) below];
    (e) Where the Commission finds that the offender had only a 
peripheral role*, grade conduct under (d) as Category Five.
    (f) If medium scale (e.g., involving 5-49 grams of 100% pure heroin, 
or equivalent amount), grade as Category Five;
    (g) If small scale (e.g., involving less than 5 grams of 100% pure 
heroin, or equivalent amount), grade as Category Four;
902  Simple Possession
    Category One.

              Subchapter B--Marihuana and Hashish Offenses

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

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                                 Heroin

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

                                 Cocaine

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

            Chapter Ten  Offenses Involving National Defense

               Subchapter A--Treason and Related Offenses

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

               Subchapter B--Sabotage and Related Offenses

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

              Subchapter C--Espionage and Related Offenses

1021  Espionage
    Category Eight.

                Subchapter D--Selective Service Offenses

1031  Failure to Register, Report for Examination or Induction
    (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)

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    Grade as if `operating a gambling business'.
1113  Wire Transmission of Wagering Information (re: 18 U.S.C. 1084)
    Grade as if ``operating a gambling business''.
1114  Operating or Owning a Gambling Ship (re: 18 U.S.C. 1082)
    Category Three.
1115  Importing or Transporting Lottery Tickets; Mailing Lottery Tickets 
          or Related Matter (re: 18 U.S.C. 1301, 1302)
    (a) Grade as if ``operating a gambling business'';
    (b) Exception: If non-commercial, grade as Category One.

                         Subchapter C--Obscenity

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

              Subchapter D--Sexual Exploitation of Children

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

           Subchapter E--Prostitution and White Slave Traffic

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

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                 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 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 [3  x  (9) = 27] = Category Six, 5 
          Category Five Offenses [5  x  (9) = 45] = Category Seven, 2 
          Category Six Offenses [2  x  (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.

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    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., 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

[[Page 127]]

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.
    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)).

[[Page 128]]

    (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 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.

[[Page 129]]

    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 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

[[Page 130]]

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.
    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

[[Page 131]]

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.
    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 at www.fdsys.gov.



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 Secs. 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

[[Page 132]]

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 Secs. 2.48 through 2.51, Secs. 2.101 through 2.104, 
and Secs. 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.
    (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

[[Page 133]]

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 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

[[Page 134]]

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]



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

[[Page 135]]

concurrence of two Commissioner votes, including the vote of the 
referring Commissioner. The hearing shall be conducted in accordance 
with the procedures set forth in Secs. 2.12 and 2.13. The entry of a new 
order following such hearing shall void the previously established 
release date.

[44 FR 3406, Jan. 16, 1979, as amended at 46 FR 36138, July 14, 1981; 49 
FR 44098, Nov. 2, 1984; 61 FR 55743, Oct. 29, 1996; 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]



Sec. 2.30  False information or new criminal conduct:
Discovery after release.

    If evidence comes to the attention of the Commission after a 
prisoner's release that such prisoner has willfully provided false 
information or misrepresented information deemed significant to his 
application for parole or has engaged in any criminal conduct during the 
current sentence prior to the delivery of the parole certificate, the 
Regional Commissioner may reopen the case pursuant to the procedures of 
Sec. 2.28(f) and order the prisoner summoned or retaken for hearing 
pursuant to the procedures of Secs. 2.49 and 2.50, as applicable, to 
determine whether the order of parole should be cancelled.

[47 FR 36635, Aug. 23, 1982]



Sec. 2.31  Parole to detainers: Statement of policy.

    (a) Where a detainer is lodged against a prisoner, the Commission 
may grant parole if the prisoner in other respects meets the criteria 
set forth in Sec. 2.18. 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

[[Page 136]]

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. 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

[[Page 137]]

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.
    (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

[[Page 138]]

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.
    (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

[[Page 139]]

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]



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)(1) General conditions of release and notice by certificate of 
release. All persons on supervision must follow the conditions of 
release described in Sec. 2.204(a)(3) through (6). These conditions are 
necessary to satisfy the purposes of release conditions stated in 18 
U.S.C. 4209. Your certificate of release informs you of these conditions 
and special conditions that we have imposed for your supervision.
    (2) Refusing to sign the certificate of release. (i) If you have 
been granted a parole date and you refuse to sign the certificate of 
release (or any other document necessary to fulfill a condition of 
release), we will consider your refusal as a withdrawal of your 
application for parole as of the date of your refusal. You will not be 
released on parole and you will have to reapply for parole 
consideration.
    (ii) If you are scheduled for release to supervision through good-
time deduction and you refuse to sign the certificate of release, you 
will be released but you still must follow the conditions listed in the 
certificate.
    (b) Special conditions of release. We may impose a condition of 
release other than a condition described in Sec. 2.204(a)(3) through (6) 
if we determine that imposing the condition is reasonably related to the 
nature and circumstances of your offense or your history and 
characteristics, and at least one of the following purposes of criminal 
sentencing: The need to deter you

[[Page 140]]

from criminal conduct; protection of the public from further crimes; or 
the need to provide you with training or correctional treatment or 
medical care. In choosing a condition we will also consider whether the 
condition involves no greater deprivation of liberty than is reasonably 
necessary for the purposes of deterrence of criminal conduct, protection 
of the public from crime and offender rehabilitation. We list some 
examples of special conditions of release at Sec. 2.204(b)(2).
    (c) Participation in a drug-treatment program, If we require your 
participation in a drug-treatment program, you must submit to a drug 
test within 15 days of your release and to at least two other drug 
tests, as determined by your supervision officer. If we decide not to 
impose the special condition on drug-treatment, because available 
information indicates you are a low risk for substance abuse, this 
decision constitutes good cause for suspending the drug testing 
requirements of 18 U.S.C. 4209(a). You must pass all pre-release drug 
tests administered by the Bureau of Prisons before you are paroled. If 
you fail a drug test your parole date may be rescinded.
    (d) Changing conditions of release. After your release, we may 
change or add to the conditions of release if we decide that such action 
is consistent with the criteria described in paragraph (b) of this 
section. In making these changes we will use the procedures described in 
Sec. 2.204(c) and (d). You may appeal our action as provided in 
Secs. 2.26 and 2.220.
    (e) Application of release conditions to an absconder. If you 
abscond from supervision, you will stop the running of your sentence as 
of the date of your absconding and you will prevent the expiration of 
your sentence. You will still be bound by the conditions of release 
while you are an absconder, even after the original expiration date of 
your sentence. We may revoke your release for a violation of a release 
condition that you commit before the revised expiration date of your 
sentence (the original expiration date plus the time you were an 
absconder).
    (f) Revocation for possession of a controlled substance (18 U.S.C. 
4214(f)). If we find after a revocation hearing that you have illegally 
possessed a controlled substance, we must revoke your release. If you 
fail a drug test, we must consider whether the availability of 
appropriate substance abuse programs, or your current or past 
participation in such programs, justifies an exception from the 
requirement of mandatory revocation. We will not revoke your release on 
the basis of a single, unconfirmed positive drug test if you challenge 
the test result and there is no other violation found by us to support 
revocation.
    (g) Supervision officer guidance. See Sec. 2.204(g).
    (h) Definitions. See Sec. 2.204(h).

[79 FR 51257, Aug. 28, 2014]



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]

[[Page 141]]



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 conducted in accordance with the 
procedures prescribed in 18 U.S.C. 4214(a)(2), that such supervision 
should not be terminated because there is a likelihood that the parolee 
will engage in conduct violating any criminal law. 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 (c) of 
this section under Sec. 2.26 or Sec. 2.27 as applicable.
    (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 (g), 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.

[75 FR 9519, Mar. 3, 2010]



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

[[Page 142]]

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 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

[[Page 143]]

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 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

[[Page 144]]

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 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.

[[Page 145]]

    (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 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

[[Page 146]]

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.
    (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

[[Page 147]]

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 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

[[Page 148]]

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.
    (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.

[[Page 149]]

    (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 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

[[Page 150]]

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 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.

[[Page 151]]

    (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 
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.

[[Page 152]]

    (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 case. A report from the 
Bureau of Prisons based upon successful completion of a residential 
substance abuse program of at least 500 hours will be given prompt 
review by the Commission for a possible advancement under this section.
    (c) Upon a finding of superior program achievement, a previously set 
presumptive date may be advanced. The normal maximum advancement 
permissible for superior program achievement during the prisoner's 
entire term shall be as set forth in the following schedule. It is the 
intent of the Commission that this maximum be exceeded only in the most 
clearly exceptional cases.
    (d) Partial advancements may be given (for example, a case with 
superior program achievement during only part of the term or a case with 
both superior program achievement and minor disciplinary infraction(s)). 
Advancements may be given at different times; however, the limits set 
forth in the following schedule shall apply to the total combined 
advancement.
    (e) Schedule of Permissible Reductions for Superior Program 
Achievement.

------------------------------------------------------------------------
     Total months required by original
             presumptive date                   Permissible reduction
------------------------------------------------------------------------
14 months or less.........................  Not applicable.
15 to 22 months...........................  Up to 1 month.
23 to 30 months...........................  Up to 2 months.
31 to 36 months...........................  Up to 3 months.
37 to 42 months...........................  Up to 4 months.
43 to 48 months...........................  Up to 5 months.
49 to 54 months...........................  Up to 6 months.
55 to 60 months...........................  Up to 7 months.
61 to 66 months...........................  Up to 8 months.
67 to 72 months...........................  Up to 9 months.
73 to 78 months...........................  Up to 10 months.
79 to 84 months...........................  Up to 11 months.
85 to 90 months...........................  Up to 12 months.
91 plus months............................  Up to 13 months. \1\
------------------------------------------------------------------------
\1\ Plus up to 1 additional month for each 6 months or fraction thereof,
  by which the original date exceeds 96 months.

    (f) For cases originally continued to expiration, the statutory good 
time date (calculated under 18 U.S.C. 4161) will be used for computing 
the maximum reduction permissible and as the base from which the 
reduction is to be subtracted for prisoners serving sentences of less 
than five years. For prisoners serving sentences of five or more, the 
two-thirds date (calculated pursuant to 18 U.S.C. 4206(d)) will be used 
for

[[Page 153]]

these purposes. If the prisoner's presumptive release date has been 
further reduced by extra good time (18 U.S.C. 4162) and such reduction 
equals or exceeds the reduction applicable for superior program 
achievement, the Commission will not give an additional reduction for 
superior program achievement.

[44 FR 55004, Sept. 24, 1979; 44 FR 59527, Oct. 16, 1979, as amended at 
49 FR 26580, June 28, 1984; 61 FR 4351, Feb. 6, 1996]



Sec. 2.61  Qualifications of representatives.

    (a) A prisoner or parolee may select any person to appear as his or 
her representative in any proceeding, and any representative will be 
deemed qualified unless specifically disqualified under paragraph (b) or 
(c) of this section. However, an examiner or examiner panel may bar an 
otherwise qualified representative from participating in a particular 
hearing, provided good cause for such action is found and stated in the 
record (e.g., willfully disruptive conduct during the hearing by 
repeated interruption or use of abusive language). In certain 
situations, good cause may be found in advance of the hearing (e.g., 
that the proposed representative is a prisoner in disciplinary 
segregation whose presence at the hearing would pose a risk to security, 
or has a personal interest in the case which appears to conflict with 
that of the parole applicant).
    (b) The Commission may disqualify any representative from appearing 
before it for up to a five-year period if, following a hearing, the 
Commission finds that the representative has engaged in any conduct 
which demonstrates a clear lack of personal integrity or fitness to 
practice before the Commission (including, but not limited to, 
deliberate or repetitive provision of false information to the 
Commission, or solicitation of clients on the strength of purported 
personal influence with U.S. Parole Commissioners or staff).
    (c)(1) In addition to the prohibitions contained in 18 U.S.C. 207, 
no former employee of any Federal criminal justice agency (in either the 
Executive or Judicial Branch of the Government) with the exception of 
the Federal Defender Service, shall be qualified to act as a 
representative for hire in any case before the Commission for one year 
following termination of Federal employment. However, such persons may 
be employed by, or perform consulting services for, a private firm or 
other organization providing representation before the agency, to the 
extent that such employment or service does not include the performance 
of any representational act before the Commission.
    (2) No prisoner or parolee may serve as a representative before the 
Commission, at the hire of individual clients, in any case.

[48 FR 14377, Apr. 4, 1983, as amended at 48 FR 44528, Sept. 29, 1983]



Sec. 2.62  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

[[Page 154]]

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.

    (a) 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.
    (b)(1) In the event of a tie vote of the Commission's membership on 
a matter, the matter that is the subject of the vote is not adopted by 
the Commission.
    (2) If the matter that is the subject of the tie vote is the 
disposition of an offender's case, then the result of the tie vote is 
the offender's status quo ante, i.e., no action is taken that is more 
favorable or more adverse regarding the offender. If in an earlier 
decision the Commission has given an offender a presumptive release date 
or a date for a 15-year reconsideration hearing, then the result of the 
tie vote is no change in the presumptive date or the date of the 15-year 
reconsideration hearing. If an offender is facing possible parole 
rescission or revocation, the result of the tie vote is the offender's 
retention of the parole effective date or the offender's return to 
supervision. Exception: If there is a tie vote in making one of the 
findings required by Sec. 2.53 in a mandatory parole determination, the 
result of the tie vote is that the prisoner must be granted mandatory 
parole.
    (3) The Commission may re-vote on a case disposition to resolve a 
tie vote or other impasse in satisfying a voting requirement of these 
rules.

[61 FR 55743, Oct. 29, 1996. Redesignated at 63 FR 39176, July 21, 1998, 
as amended at 75 FR 81459, Dec. 28, 2010]



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 adequacy of the program plan 
shall be decided by the Regional Commissioner and the Regional Director 
of the Bureau of Prisons. The Regional Commissioner shall render the 
final decision on approving or disapproving each program plan on behalf 
of the Commission. Once the program plan has been approved, subsequent 
approvals are not necessary, unless significant modifications are made 
by institutional staff.
    (c) Parole hearings and progress reports. (1) Initial hearings shall 
be conducted in accordance with Secs. 2.12 and 2.13. The examiner panel 
will discuss with the prisoner and a staff member who is knowledgeable 
about the case the program plan and the importance of good conduct and 
program participation is setting the release date.
    (2) An interim hearing must be scheduled for an inmate every nine 
months if the inmate is serving a sentence of

[[Page 155]]

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 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

[[Page 156]]

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) 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.

[[Page 157]]

    (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.
    (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

[[Page 158]]

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 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; 75 FR 9519, Mar. 3, 2010]



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

[[Page 159]]

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.
    (d) Special procedures for swift and short-term sanctions for 
administrative violations of supervision. (1) An alleged violator may, 
at the time of the probable cause hearing or preliminary interview, 
waive the right to a revocation hearing and apply in writing for an 
immediate prison sanction of no more than 8 months. Notwithstanding the 
reparole guidelines at Sec. 2.21, the Commission will consider such a 
sanction if--
    (i) The releasee has not already postponed the initial probable 
cause hearing/preliminary interview by more than 30 days;
    (ii) The charges alleged by the Commission do not include a 
violation of the law;
    (iii) The releasee has accepted responsibility for the violations;
    (iv) The releasee has agreed to modify the non-compliant behavior to 
successfully complete any remaining period of supervision; and
    (v) The releasee has not already been sanctioned pursuant to this 
paragraph (d)(1).
    (2) A sanction imposed pursuant to paragraph (d)(1) of this section 
may include any other action authorized by Sec. 2.52, Sec. 2.105, or 
Sec. 2.218.
    (3) Any case not approved by the Commission for a revocation 
sanction pursuant to paragraph (d)(1) of this section shall receive the 
normal revocation hearing procedures including the application of the 
guidelines at Sec. 2.21.

    Note to paragraph (d). For purpose of paragraph (d)(1) of this 
section only, the Commission will consider the sanctioning of the 
following crimes as administrative violations if they have been charged 
only as misdemeanors:
    1. Public Intoxication
    2. Possession of an Open Container of Alcohol
    3. Urinating in Public
    4. Traffic Violations
    5. Disorderly Conduct/Breach of Peace
    6. Driving without a License or with a revoked/suspended license
    7. Providing False Information to a Police Officer
    8. Loitering
    9. Failure to Pay court ordered support (i.e. child support/alimony)
    10. Solicitation/Prostitution
    11. Resisting Arrest
    12. Reckless Driving
    13. Gambling
    14. Failure to Obey a Police Officer
    15. Leaving the Scene of an Accident (only if no injury occurred)-
    16. Hitchhiking
    17. Vending without a License
    18. Possession of Drug Paraphernalia (indicating purpose of personal 
use only)
    19. Possession of a Controlled Substance (for personal use only)

[72 FR 53115, Sept. 18, 2007, as amended at 80 FR 52984, Sept. 2, 2015]



            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

[[Page 160]]

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 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

[[Page 161]]

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 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

[[Page 162]]

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.
    (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

[[Page 163]]

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 
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, Sept. 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

[[Page 164]]

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]



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

[[Page 165]]

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 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

[[Page 166]]

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 
Commissioners votes shall be required if the decision differs from the 
decision recommended by the examiner panel by more than six months. All 
other decisions, including decisions on revocation and reparole made 
pursuant to Sec. 2.105(c), and decisions terminating a parolee early 
from supervision, 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; 75 FR 9519, Mar. 3, 2010; 81 FR 13975, Mar. 
16, 2016]



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 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

[[Page 167]]

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 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 :

[[Page 168]]

    (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 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

[[Page 169]]

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 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.

[[Page 170]]



                         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) 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

[[Page 171]]

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 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

[[Page 172]]

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.
    (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

[[Page 173]]

a finding in paragraph (n)(3) of this section; or
    (C) Clearly exceptional program achievement.
    (o) (1) A prisoner who is eligible under the criteria of paragraph 
(o)(2) may receive a parole determination using the 1987 guidelines of 
the former District of Columbia Board of Parole (hereinafter ``the 1987 
Board guidelines'').
    (2) A prisoner must satisfy the following criteria to obtain a 
determination using the 1987 Board guidelines:
    (i) The prisoner committed the offense of conviction after March 3, 
1985 and before August 5, 1998;
    (ii) The prisoner is not incarcerated as a parole violator;
    (iii) The prisoner received his initial hearing after August 4, 
1998; and
    (iv) The prisoner does not have a parole effective date, or a 
presumptive parole date before January 1, 2010.
    (3) For a prisoner eligible for application of the 1987 Board 
guidelines, a hearing examiner shall first review the case on the 
record. If the hearing examiner recommends that the prisoner receive a 
parole effective date and the Commission concurs in the recommendation, 
the case shall not be scheduled for a hearing. If the hearing examiner 
does not recommend a parole effective date, a hearing shall be conducted 
on an appropriate hearing docket.
    (4) At the hearing, the hearing examiner shall evaluate the 
prisoner's case using the 1987 Board guidelines, as if the prisoner were 
receiving an initial hearing. If appropriate, the hearing examiner shall 
evaluate the case using the 1987 Board guidelines for rehearings, 
revising the initial point score based on the prisoner's prison conduct 
record and program performance. The Commission shall use the former 
Board's policy guidelines in making its determinations under this 
paragraph, according to the policy guideline in effect at the time of 
the prisoner's offense.
    (5) If the Commission denies parole after the hearing, and the 
prisoner received a presumptive parole date under the parole 
determination that preceded the hearing under this paragraph, the 
prisoner shall not forfeit the presumptive parole date unless the 
presumptive date is rescinded for institutional misconduct, new criminal 
conduct, or for new adverse information.
    (6) Decisions resulting from hearings under this paragraph may not 
be appealed to the Commission.
    (p)(1) A prisoner who is eligible under the criteria of paragraph 
(p)(2) of this section may receive a parole determination using the 
parole guidelines in the 1972 regulations of the former District of 
Columbia Board of Parole (9 DCMR section 105.1) (hereinafter ``the 1972 
Board guidelines'').
    (2) A prisoner must satisfy the following criteria to obtain a 
determination using the 1972 Board guidelines:
    (i) The prisoner committed the offense of conviction on or before 
March 3, 1985;
    (ii) The prisoner is not incarcerated as a parole violator; and
    (iii) The prisoner has not been granted a parole effective date.
    (3) The granting of a parole is neither a constitutional or 
statutory requirement, and release to parole supervision by Commission 
action is not mandatory.
    (4) Factors considered: Among others, the U.S. Parole Commission 
takes into account some of the following factors in making its 
determination as to parole:
    (i) The offense, noting the nature of the violation, mitigating or 
aggravating circumstances and the activities and adjustment of the 
offender following arrest if on bond or in the community under any pre-
sentence type arrangement.
    (ii) Prior history of criminality, noting the nature and pattern of 
any prior offenses as they may relate to the current circumstances.
    (iii) Personal and social history of the offender, including such 
factors as his family situation, educational development, socialization, 
marital history, employment history, use of leisure time and prior 
military experience, if any.
    (iv) Physical and emotional health and/or problems which may have 
played a role in the individual's socialization process, and efforts 
made to overcome any such problems.

[[Page 174]]

    (v) Institutional experience, including information as to the 
offender's overall general adjustment, his ability to handle 
interpersonal relationships, his behavior responses, his planning for 
himself, setting meaningful goals in areas of academic schooling, 
vocational education or training, involvements in self-improvement 
activity and therapy and his utilization of available resources to 
overcome recognized problems. Achievements in accomplishing goals and 
efforts put forth in any involvements in established programs to 
overcome problems are carefully evaluated.
    (vi) Community resources available to assist the offender with 
regard to his needs and problems, which will supplement treatment and 
training programs begun in the institution, and be available to assist 
the offender to further serve in his efforts to reintegrate himself back 
into the community and within his family unit as a productive useful 
individual.
    (5) A prisoner who committed the offense of conviction on or before 
March 3, 1985 who is not incarcerated as a parole violator and is 
serving a maximum sentence of five years or more who was denied parole 
at their original hearing ordinarily will receive a rehearing one year 
after a hearing conducted by the U.S. Parole Commission. In all cases of 
rehearings, the U.S. Parole Commission may establish a rehearing date at 
any time it feels such would be proper, regardless of the length of 
sentence involved. No hearing may be set for more than five years from 
the date of the previous hearing.
    (6) If a prisoner has been previously granted a presumptive parole 
date under the Commission's guidelines in paragraphs (b) through (m) of 
this section, the presumptive date will not be rescinded unless the 
Commission would rescind the date for one of the accepted bases for such 
action, i.e., new criminal conduct, new institutional misconduct, or new 
adverse information.
    (7) Prisoners who have previously been considered for parole under 
the 1987 guidelines of the former DC Board of Parole will continue to 
receive consideration under those guidelines.
    (8) Decisions resulting from hearings under this section may not be 
appealed to the U.S. Parole Commission.

[65 FR 70665, Nov. 27, 2000, as amended at 67 FR 67946, Sept. 13, 2002; 
74 FR 34690, July 17, 2009; 74 FR 58543, Nov. 13, 2009; 80 FR 63116, 
Oct. 19, 2015]



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

[[Page 175]]

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.
    (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)(1) General conditions of release and notice by certificate of 
release. All persons on supervision must follow the conditions of 
release described in Sec. 2.204(a)(3) through (6). Your certificate of 
release informs you of these conditions and other special conditions 
that we have imposed for your supervision.

[[Page 176]]

    (2) Refusing to sign the certificate of release. (i) If you have 
been granted a parole date and you refuse to sign the certificate of 
release (or any other document necessary to fulfill a condition of 
release), we will consider your refusal as a withdrawal of your 
application for parole as of the date of your refusal. You will not be 
released on parole and you will have to reapply for parole 
consideration.
    (ii) If you are scheduled for release to supervision through good-
time deduction and you refuse to sign the certificate of release, you 
will be released but you still must follow the conditions listed in the 
certificate.
    (b) Special conditions of release. We may impose a condition of 
release other than a condition described in Sec. 2.204(a)(3) through (6) 
if we determine that imposing the condition is reasonably related to the 
nature and circumstances of your offense or your history and 
characteristics, and at least one of the following purposes of criminal 
sentencing: The need to deter you from criminal conduct; protection of 
the public from further crimes; or the need to provide you with training 
or correctional treatment or medical care. In choosing a condition we 
will also consider whether the condition involves no greater deprivation 
of liberty than is reasonably necessary for the purposes of deterrence 
of criminal conduct, protection of the public from crime and offender 
rehabilitation. We list some examples of special conditions of release 
at Sec. 2.204(b)(2).
    (c) Changing conditions of release. We may at any time change or add 
to the conditions of release if we decide that such action is consistent 
with the criteria described in paragraph (b) of this section. In making 
these changes we will use the procedures described in Sec. 2.204(c) and 
(d). You may not appeal the decision.
    (d) Application of release conditions to an absconder. If you 
abscond from supervision, you will stop the running of your sentence as 
of the date of your absconding and you will prevent the expiration of 
your sentence. You will still be bound by the conditions of release 
while you are an absconder, even after the original expiration date of 
your sentence. We may revoke your release for a violation of a release 
condition that you commit before the revised expiration date of your 
sentence (the original expiration date plus the time you were an 
absconder).
    (e) Supervision officer guidance. See Sec. 2.204(g).
    (f) Definitions. See Sec. 2.204(h).

[79 FR 51258, Aug. 28, 2014]



Sec. 2.86  Release on parole; rescission for misconduct.

    (a) When a parole effective date has been set, actual release on 
parole on 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]

[[Page 177]]



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 
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

[[Page 178]]

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; 75 FR 9519, Mar. 3, 2010]



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.



Sec. 2.94  Supervision reports to Commission.

    A supervision report shall be submitted by the responsible 
supervision officer to the Commission for each parolee after the 
completion of 24 months of continuous 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.

[81 FR 13976, Mar. 16, 2016]



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.

[[Page 179]]

    (c) Five years after releasing a prisoner on supervision, the 
Commission shall terminate supervision over the parolee unless the 
Commission determines, after a hearing conducted in accordance with the 
procedures prescribed in 18 U.S.C. 4214(a)(2), that such supervision 
should not be terminated because there is a likelihood that the parolee 
will engage in conduct violating any criminal law. 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 (e). 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 (e), 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.

[75 FR 9520, Mar. 3, 2010]



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.

[75 FR 9520, Mar. 3, 2010]



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; 
75 FR 9520, Mar. 3, 2010]



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

[[Page 180]]

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;
    (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]

    Editorial Note: At 75 FR 9520, Mar. 3, 2010, Sec. 2.98(e) was 
amended by removing ``DC Code 24-406(a)'' and adding in its place ``DC 
Code 24-406(c).''; however, the amendment could not be incorporated 
because ``DC Code 24-406(a)'' does not exist in that paragraph.



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).

[[Page 181]]

    (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 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

[[Page 182]]

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]

    Editorial Note: At 75 FR 9520, Mar. 3, 2010, Sec. 2.100(d)(2) was 
amended by removing ``DC Code 24-406(a)'' and adding in its place ``DC 
Code 24-406(c).''; however, the amendment could not be incorporated 
because ``DC Code 24-406(a)'' does not exist in that paragraph.



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 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

[[Page 183]]

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 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

[[Page 184]]

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).
    (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

[[Page 185]]

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 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

[[Page 186]]

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 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

[[Page 187]]

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, family support and stability, employment record, 
participation in applicable treatment programs, 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 (e) 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 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; 75 FR 9520, Mar. 3, 2010]



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

[[Page 188]]

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 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

[[Page 189]]

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.
    (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

[[Page 190]]

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 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

[[Page 191]]

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. All persons on supervision must follow the conditions of 
release described in paragraphs (a)(3) through (6) of this section. 
These conditions are necessary to satisfy the purposes of release 
conditions stated in 18 U.S.C. 3583(d) and 3553(a)(2)(B) through (D). 
Your certificate of release informs you of these conditions and other 
special conditions that we have imposed for your supervision.
    (2) Refusing to sign the certificate of release does not excuse 
compliance. If you refuse to sign the certificate of release, you must 
still follow the conditions listed in the certificate.
    (3) Report your arrival. After you are released from custody, you 
must go directly to the district named in the certificate. You must 
appear in person at the supervision office and report your home address 
to the supervision officer. If you cannot appear in person at that 
office within 72 hours of your release because of an emergency, you must 
report to the nearest CSOSA or U.S. probation office and obey the 
instructions given by the duty officer. If you were initially released 
to the custody of another authority, you must follow the procedures 
described in this paragraph after you are released from the custody of 
the other authority.
    (4) Provide information to and cooperate with the supervision 
officer--(i) Written reports. Between the first and third day of each 
month, you must make a written report to the supervision officer on a 
form provided to you. You must also report to the supervision officer as 
that officer directs. You must answer the supervision officer completely 
and truthfully when the officer asks you for information.
    (ii) Promptly inform the supervision officer of an arrest or 
questioning, or a change in your job or address. Within two days of your 
arrest or questioning by a law-enforcement officer, you must inform your 
supervision officer of the contact with the law-enforcement officer. You 
must also inform your supervision officer of a change in your employment 
or address within two days of the change.
    (iii) Allow visits of the supervision officer. You must allow the 
supervision officer to visit your home and workplace.
    (iv) Allow seizure of prohibited items. You must allow the 
supervision officer to seize any item that the officer reasonably 
believes is an item you are prohibited from possessing (for example, an 
illegal drug or a weapon), and that is in plain view in your possession, 
including in your home, workplace or vehicle.
    (v) Take drug or alcohol tests. You must take a drug or alcohol test 
whenever your supervision officer orders you to take the test.
    (5) Prohibited conduct--(i) Do not violate any law. You must not 
violate any law and must not associate with any person who is violating 
any law.
    (ii) Do not possess a firearm or dangerous weapon. You must not 
possess a firearm or other dangerous weapon or ammunition.
    (iii) Do not illegally possess or use a controlled substance or 
drink alcohol to excess. You must not illegally possess or use a 
controlled substance and you must not drink alcoholic beverages to 
excess. You must stay away from a place where a controlled substance is 
illegally sold, used or given away.

[[Page 192]]

    (iv) Do not leave the district of supervision without permission. 
You must not leave the district of supervision without the written 
permission of your supervision officer.
    (v) Do not associate with a person with a criminal record. You must 
not associate with a person who has a criminal record without the 
permission of your supervision officer.
    (vi) Do not act as an informant. You must not agree to act as an 
informant for any law-enforcement officer without the prior approval of 
the Commission.
    (6) Additional conditions--(i) Work. You must make a good faith 
effort to work regularly, unless excused by your supervision officer. 
You must support your children and any legal dependent. You must 
participate in an employment-readiness program if your supervision 
officer directs you to do so.
    (ii) Pay court-ordered obligations. You must make a good faith 
effort to pay any fine, restitution order, court costs or assessment or 
court-ordered child support or alimony payment. You must provide 
financial information relevant to the payment of such a financial 
obligation when your supervision officer asks for such information. You 
must cooperate with your supervision officer in setting up an 
installment plan to pay the obligation.
    (iii) Participate in a program for preventing domestic violence. If 
the term of supervision results from your conviction for a domestic 
violence crime, and such conviction is your first conviction for such a 
crime, you must attend, as directed by your supervision officer, an 
approved offender-rehabilitation program for the prevention of domestic 
violence if such a program is readily available within 50 miles of your 
home.
    (iv) Register if you are covered by a special offender registration 
law. You must comply with any applicable special offender registration 
law, for example, a law that requires you to register as a sex-offender 
or a gun-offender.
    (v) Provide a DNA sample. You must provide a DNA sample, as directed 
by your supervision officer, if collection of such sample is authorized 
by the DNA Analysis Backlog Elimination Act of 2000.
    (vi) Comply with a graduated sanction. If you are supervised by 
CSOSA, you must comply with the sanction(s) imposed by the supervision 
officer and as established by an approved schedule of graduated 
sanctions. We may decide to begin revocation proceedings for you even if 
the supervision officer has earlier imposed a graduated sanction for 
your alleged violation of a release condition.
    (vii) Inform another person of your criminal record or personal 
history as directed by the supervision officer. You must inform a person 
of your criminal record or personal history if your supervision officer 
determines that your relationship or contact with this person may pose a 
risk of harm to this person. The supervision officer may direct you to 
give this notice and then confirm with the person that you obeyed the 
officer's direction. The supervision officer may also give the notice 
directly to the person.
    (b)(1) Special conditions of release. We may impose a condition of 
release other than a condition described in paragraphs (a)(3) through 
(6) of this section if we determine that imposing the condition is 
reasonably related to the nature and circumstances of your offense or 
your history and characteristics, and at least one of the following 
purposes of criminal sentencing: The need to deter you from criminal 
conduct; protection of the public from further crimes; or the need to 
provide you with training or correctional treatment or medical care. In 
choosing a condition we will also consider whether the condition 
involves no greater deprivation of liberty than is reasonably necessary 
for the purposes of deterrence of criminal conduct, protection of the 
public from crime and offender rehabilitation.
    (2) Examples. The following are examples of special conditions that 
we may impose--
    (i) That you reside in and/or participate in a program of a 
community corrections center for all or part of the period of 
supervision;
    (ii) That you participate in a drug- or alcohol-treatment program, 
and not use alcohol and other intoxicants at any time;

[[Page 193]]

    (iii) That you remain at home during hours you are not working or 
going to school, and have your compliance with this condition checked by 
telephone or an electronic signaling device; and
    (iv) That you permit a supervision officer to conduct a search of 
your person, or of any building, vehicle or other area under your 
control, at such time as that supervision officer decides, and to seize 
any prohibited items the officer, or a person assisting the officer, may 
find.
    (3) Participation in a drug-treatment program. If we require your 
participation in a drug-treatment program, you must submit to a drug 
test within 15 days of your release and to at least two other drug 
tests, as determined by your supervision officer. If we decide not to 
impose the special condition on drug-treatment, because available 
information indicates you are a low risk for substance abuse, this 
decision constitutes good cause for suspending the drug testing 
requirements of 18 U.S.C. 3583(d).
    (c)(1) Changing conditions of release. After your release, we may 
change or add to the conditions of release if we decide that such action 
is consistent with the criteria described in paragraph (b)(1) of this 
section.
    (2) Objecting to the proposed change. (i) We will notify you of the 
proposed change, the reason for the proposed change and give you 10 days 
from your receipt of the notice to comment on the proposed change. You 
can waive the 10-day comment period and agree to the proposed change. 
You are not entitled to the notice and 10-day comment period if:
    (A) You ask for the change;
    (B) We make the change as part of a revocation hearing or an 
expedited revocation decision; or
    (C) We find that the change must be made immediately to prevent harm 
to you or another person.
    (ii) We will make a decision on the proposed change within 21 days 
(excluding holidays) after the 10-day comment period ends, and notify 
you in writing of the decision. You may appeal our action as provided in 
Secs. 2.26 and 2.220.
    (d) Imposing special conditions for a sex offender. (1) If your 
criminal record includes a conviction for a sex offense, we may impose a 
special condition that you undergo an evaluation for sex offender 
treatment, and participate in a sex offender treatment program as 
directed by your supervision officer. We will impose the sex offender 
evaluation and treatment conditions using the procedures described in 
paragraph (c) of this section.
    (2)(i) If your criminal record does not include a conviction for a 
sex offense, we may decide that the nature and circumstances of your 
offense or your history and characteristics show that you should be 
evaluated for sex offender treatment. In this case, we may impose a 
special condition requiring an evaluation for sex offender treatment 
using the procedures described in paragraph (c) of this section.
    (ii) At the conclusion of the evaluation, if sex offender treatment 
appears warranted and you object to such treatment, we will conduct a 
hearing to consider whether you should be required to participate in sex 
offender treatment. You will be given notice of the date and time of the 
hearing and the subject of the hearing, disclosure of the information 
supporting the proposed action, the opportunity to testify concerning 
the proposed action and to present evidence and the testimony of 
witnesses, the opportunity to be represented by retained or appointed 
counsel and written findings regarding the decision. You will have the 
opportunity to confront and cross-examine persons who have given 
information that is relied on for the proposed action, if you ask that 
these witnesses appear at the hearing, unless we find good cause for 
excusing the appearance of the witness.
    (iii) A hearing is not required if we impose the sex offender 
treatment condition at your request, as part of a revocation hearing or 
an expedited revocation decision, or if a hearing on the need for sex 
offender treatment (including a revocation hearing) was conducted within 
24 months of the request for the special condition.
    (iv) In most cases we expect that a hearing conducted under this 
paragraph will be held in person with you, especially if you are 
supervised in the

[[Page 194]]

District of Columbia. But we may conduct the hearing by videoconference.
    (3) Whether your criminal record includes a conviction for a sex 
offense or not, if we propose to impose other restrictions on your 
activities, we will use either the notice and comment procedures of 
paragraph (c) of this section or the hearing procedures of this 
paragraph, depending on a case-by-case evaluation of the your interest 
and the public interest.
    (e) Application of release conditions to an absconder. If you 
abscond from supervision, you will stop the running of your supervised 
release term as of the date of your absconding and you will prevent the 
expiration of your supervised release term. But you will still be bound 
by the conditions of release while you are an absconder, even after the 
original expiration date of your supervised release term. We may revoke 
the term of supervised release for a violation of a release condition 
that you commit before the revised expiration date of the supervised 
release term (the original expiration date plus the time you were an 
absconder).
    (f) Revocation for certain violations of release conditions. If we 
find after a revocation hearing that you have possessed a controlled 
substance, refused to comply with drug testing, possessed a firearm or 
tested positive for illegal controlled substances more than three times 
in one year, we must revoke your supervised release and impose a prison 
term as provided at Sec. 2.218. When considering mandatory revocation 
for repeatedly failing a drug test, we must consider whether the 
availability of appropriate substance abuse programs, or your current or 
past participation in such programs, justifies an exception from the 
requirement of mandatory revocation.
    (g) Supervision officer guidance. We expect you to understand the 
conditions of release according to the plain meaning of the conditions. 
You should ask for guidance from your supervision officer if there are 
conditions you do not understand and before you take actions that may 
risk violation of your release conditions. The supervision officer may 
instruct you to refrain from particular conduct, or to take specific 
actions or to correct an existing violation of a release condition. If 
the supervision officer directs you to report on your compliance with an 
officer's instruction and you fail to do so, we may consider that your 
failure is itself a release violation.
    (h) Definitions. As used for any person under our jurisdiction, the 
term--
    (1) Supervision officer means a community supervision officer of the 
District of Columbia Court Services and Offender Supervision Agency or a 
United States probation officer;
    (2) 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 Superior Court of the 
District of Columbia;
    (3) Approved offender-rehabilitation program means a program that 
has been approved by CSOSA (or the United States Probation Office) in 
consultation with a State Coalition Against Domestic Violence or other 
appropriate experts;
    (4) Releasee means a person who has been released to parole 
supervision, released to supervision through good-time deduction or 
released to supervised release;
    (5) Certificate of release means the certificate of supervised 
release delivered to the releasee under Sec. 2.203;
    (6) Firearm has the meaning given by 18 U.S.C. 921;
    (7) Sex offense means any ``registration offense'' as that term is 
defined at D.C. Code 22-4001(8) and any ``sex offense'' as that term is 
defined at 42 U.S.C. 16911(5); and
    (8) Conviction, used with respect to a sex offense, includes an 
adjudication of delinquency for a juvenile, but only if the offender was 
14 years of age or older at the time of the sex offense and the offense 
adjudicated was comparable to or more severe than aggravated sexual 
abuse (as described in 18 U.S.C. 2241), or was an attempt or conspiracy 
to commit such an offense.

[79 FR 51258, Aug. 28, 2014]



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

[[Page 195]]

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 such transfer is not 
contrary to instructions from the Commission.



Sec. 2.207  Supervision reports to Commission.

    A supervision report shall be submitted by the responsible 
supervision officer to the Commission for each releasee after the 
completion of 24 months of continuous 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 the supervised release, as the Commission may direct. All 
reports shall be submitted according to the format established by the 
Commission.

[81 FR 13976, Mar. 16, 2016]



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 
offender's conviction and issue a certificate setting aside the 
conviction instead of a certificate of discharge. The Commission may 
issue a set-aside certificate nunc pro tunc for a youth offender 
previously under supervised release on the sentence and who was not 
considered for early termination from supervision, using the criteria 
stated at Sec. 2.106(f)(3). If the youth offender was sentenced only to 
a term of incarceration without any supervision to follow release, the 
Commission may issue a set-aside certificate

[[Page 196]]

after the expiration of the sentence. In such cases, the Commission 
shall determine whether to grant the set-aside certificate after 
considering factors such as the offender's crime, criminal history, 
social and employment history, record of institutional conduct, efforts 
at rehabilitation, and any other relevant and available information.
    (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 (d). 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 (d), 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.

[75 FR 9521, Mar. 3, 2010, as amended at 75 FR 51179, Aug. 19, 2010]



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 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.

[[Page 197]]



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 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.

[[Page 198]]



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 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 Secs. 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

[[Page 199]]

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 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

[[Page 200]]

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 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:

[[Page 201]]

    (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 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.

[[Page 202]]

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 
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

[[Page 203]]

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.
    (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

[[Page 204]]

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 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.

[[Page 205]]

    (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     3 years...............  2 years.
                                       over $200.
    22-401 [22-501].................  Assault: with intent to     3 years (10 years if    2 years.
                                       kill/rob/poison, to         SOR).
                                       commit sex abuse (1st or
                                       2nd degree) or child sex
                                       abuse.
    22-401, 4502 [22-501, 3202].....  Assault: with intent to     5 years (10 years if    5 years.
                                       kill 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     3 years...............  2 years.
                                       commit 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, 3202]  Assault; aggravated while   5 years...............  5 years.
                                       armed *.
    22-404.01(b) [22-504.1].........  Assault: aggravated.......  3 years...............  2 years.
    22-404.01(c) [22-504.1].........  Assault: attempted          3 years...............  2 years.
                                       aggravated.
    22-405(a) [22-505]..............  Assault: on a police        3 years...............  2 years.
                                       officer.
    22-405(b) [22-505]..............  Assault: on a police        3 years...............  2 years.
                                       officer while armed.
    22-406 [22-506].................  Mayhem/malicious            3 years...............  2 years.
                                       disfigurement.
    22-406, 4502 [22-506, 3202].....  Mayhem/malicious            5 years...............  5 years.
                                       disfigurement armed *.
    22-501 [22-601].................  Bigamy....................  3 years...............  2 years.
    22-601 [22-3427]................  Breaking and entering       3 years...............  1 year.
                                       machines.
    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         3 years...............  1 year.
                                       statute for offense
                                       circumstances).
    22-902(b)(3) [22-752]...........  Counterfeiting (see         3 years...............  2 years.
                                       statute for offense
                                       circumstances).
    22-1101(a), (c)(1) [22-901].....  Cruelty to children 1st     3 years...............  2 years.
                                       degree.
    22-1101(b), (c)(2) [22-901].....  Cruelty to children 2nd     3 years...............  2 years.
                                       degree.
    22-1322(d) [22-1122]............  Inciting riot (with         3 years...............  2 years
                                       injury).

[[Page 206]]

 
    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:          3 years...............  2 years.
                                       Athletics.
    22-1803 [22-103]................  Attempted crime of          3 years...............  2 years.
                                       violence.
    22-1804 [22-104]................  Second conviction
                                      One prior conviction......
                                      If the underlying offense   5 years...............  5 years.
                                       is punishable by life
                                       imprisonment.
                                      If the underlying offense   5 years...............  3 years.
                                       is punishable by 16\2/3\
                                       years or more.
                                      If the underlying offense   3 years...............  2 years.
                                       is 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   5 years...............  5 years.
                                       is punishable by life
                                       imprisonment.
                                      If the underlying offense   5 years...............  3 years.
                                       is punishable by 8\1/3\
                                       years or more.
                                      If the underlying offense   3 years...............  2 years.
                                       is 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   3 years...............  2 years.
                                       is punishable by 10 years
                                       or more.
                                      If the underlying offense   3 years...............  1 year.
                                       is punishable by more
                                       than 2 years but less
                                       than 10 years.
    22-1807 [22-107]................  Offenses not covered by     3 years...............  2 years.
                                       D.C. 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     5 years...............  5 years.
     2404, 3202].                      armed *.
    22-2102, 2104 [22-2402, 2404]...  Murder 1st degree:          5 years...............  5 years.
                                       obstruction 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     5 years...............  5 years.
     2404, 3202].                      armed *.
    22-2105 [22-2405]...............  Manslaughter..............  5 years...............  3 years.
    22-2105, 4502 [22-2405, 3202]...  Manslaughter: armed *.....  5 years...............  5 years.
    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    3 years...............  2 years.
                                       crime 2nd+ offense.
    22-2601(b)......................  Escape....................  3 years...............  2 years.
    22-2603.........................  Introducing contraband      3 years...............  2 years.
                                       into prison.

[[Page 207]]

 
    22-2704.........................  Child prostitution:         3 years (10 years if    2 years.
                                       abducting or harboring.     SOR).
    22-2705 to 2712.................  Prostitution: arranging     3 years (10 years if    2 years.
                                       and 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    5 years...............  5 years.
                                       armed *.
    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       3 years (10 years if    2 years.
                                       degree.                     SOR).
    22-3016 [22-4116]...............  Sex abuse patient 2nd       3 years (10 years if    2 years.
                                       degree.                     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    3 years (life if SOR).  1 year.
                                       is punishable by more
                                       than 2 years but less
                                       than 10 years.
    22-3020 [22-4120]...............  Sex abuse 1st degree/child  5 years (life if SOR).  5 years.
                                       sex abuse 1st degree,
                                       with aggravating
                                       circumstances.
    22-3020 [22-4120]...............  Sex abuse: other offenses
                                       with aggravating
                                       circumstances.
                                      If the underlying offense   5 years (10 years if    5 years.
                                       is punishable by life       SOR).
                                       imprisonment.

[[Page 208]]

 
                                      If the underlying offense   5 years (10 years if    3 years.
                                       is punishable by 16\2/3\    SOR).
                                       years or more.
                                      If the underlying offense   3 years (10 years if    2 years.
                                       is punishable by 3\1/3\     SOR).
                                       years or more but less
                                       than 16\2/3\ years.
                                      If underlying offense is    3 years (10 years if    1 year.
                                       punishable by less than     SOR).
                                       3\1/3\ years.
    22-3102, 3103 [22-2012, 2013....  Sex performance with        3 years (10 years if    2 years.
                                       minors.                     SOR).
    22-3153.........................  Terrorism--Act of Murder    5 years...............  5 years.
                                       1st 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      5 years...............  3 years.
                                       kill.
                                      Mayhem/malicious            3 years...............  2 years.
                                       disfigurement.
                                      Arson.....................  3 years...............  2 years.
                                      Malicious destruction of    3 years...............  2 years.
                                       property.
                                      Attempt/conspiracy to       5 years...............  3 years.
                                       commit first degree
                                       murder, murder of law
                                       enforcement officer,
                                       second degree murder,
                                       manslaughter, kidnapping.
                                      Attempt/conspiracy to       3 years...............  2 years.
                                       commit assault with
                                       intent to kill.
                                      Attempt/conspiracy to       3 years...............  2 years.
                                       commit 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       5 years...............  3 years.
                                       possess 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,    5 years...............  5 years.
                                       use 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    3 years...............  2 years.
     3822].                            more.
    22-3221(b), 3222(b) [22-3821,     Fraud 2nd degree $250 or    3 years...............  1 year.
     3822].                            more.
    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        3 years...............  2 years.
     3825.2, 3825.4].                  degree.
    22-3225.03, 3225.04(b) [22-       Fraud: insurance 2nd        3 years...............  2 years.
     3825.3, 3825.4].                  degree.
    22-3231(d) [22-3831]............  Stolen Property:            3 years...............  2 years.
                                       trafficking 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        2 years...............
                                       record, 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 *.

[[Page 209]]

 
    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             3 years...............  1 year.
                                       (malicious).
    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   5 years...............  5 years.
                                       is punishable by life
                                       imprisonment.
                                      If the underlying offense   5 years...............  3 years.
                                       is punishable by 16\2/3\
                                       years or more.
                                      If the underlying offense   3 years...............  2 years.
                                       is punishable by 3\1/3\
                                       years or more but less
                                       than 16\2/3\ years.
                                      If the underlying offense   3 years...............  1 year.
                                       is punishable by less
                                       than 3\1/3\ years.
    22-3602 [22-3902]...............  Citizen patrol victim of
                                       various violent offenses.
                                      If the underlying offense   5 years...............  5 years.
                                       is punishable by life
                                       imprisonment.
                                      If the underlying offense   5 years...............  3 years.
                                       is punishable by 16\2/3\
                                       years or more.
                                      If the underlying offense   3 years...............  2 years.
                                       is punishable by 3\1/3\
                                       years or more but less
                                       than 16\2/3\ years.
                                      If the underlying offense   3 years...............  1 year.
                                       is 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  5 years...............  5 years.
                                       or 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            3 years...............  2 years.
                                       possession by 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:          3 years...............  2 years.
                                       possession of 2nd+
                                       offense.
    22-4515a [22-3215a].............  Molotov cocktails--1st or   3 years...............  2 years.
                                       2nd 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      3 years...............  2 years.
                                       release.
Title 48
    48-904.01(a)-(b) [33-541].......  Drugs: distribute or
                                       possess with intent to
                                       distribute
                                      If schedule I or II         5 years...............  3 years.
                                       narcotics 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.

[[Page 210]]

 
                                      If schedule IV drugs......  3 years...............  1 year.
    48-904.01, 22-4502 [33-541, 22-   Drugs: distribute or        5 years...............  5 years.
     3202].                            possess 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    5 years...............  3 years.
                                       for manufacture or
                                       distribution.
    48-904.06 [33-546]..............  Drugs: distribution to
                                       minors
                                      If a schedule I or II       5 years...............  3 years.
                                       narcotic 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         5 years...............  3 years.
                                       narcotics 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
        Note: This section does not   If schedule I or II         5 years...............  3 years.
         apply if the offender was     narcotics or abusive
         sentenced under 48-904.06.    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.
    48-904.09 [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 attempt   object of the attempt
                                                                   or conspiracy.          or 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          3 years...............  2 years.
                                       (vehicular).
    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

[[Page 211]]

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).
    (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) As a supervised releasee you may appeal a decision to: Change or 
add a special condition of supervised release, revoke supervised 
release, or impose a term of imprisonment or a new term of supervised 
release after revocation. You may not appeal one of the general 
conditions of release.
    (b) If we add a special condition to take effect immediately upon 
your supervised release, you may appeal the imposition of the special 
condition no later than 30 days after the date you begin your supervised 
release. If we change or add the special condition sometime after you 
begin your supervised release, you may appeal within 30 days of the 
notice of action changing or adding the condition. You must follow the 
appealed condition until we change the condition in response to your 
appeal.
    (c) You cannot appeal if we made the decision as part of an 
expedited revocation, or if you asked us to change or add a special 
condition of release.
    (d) You must follow the procedures of Sec. 2.26 in preparing your 
appeal. We will follow the same rule in voting on and deciding your 
appeal.

[79 FR 51260, Aug. 28, 2014]



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.

[[Page 212]]


    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]



    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''

[[Page 213]]

    (1) Employer means the labor organization, or person engaged in an 
industry or activity affecting commerce, or group or association of 
employers dealing with any labor organization, which an applicant under 
Sec. 4.2 desires to serve in a capacity for which he is ineligible under 
section 504(a) of the ``Labor Act''.
    (2) All other terms used in this part shall have the same meaning as 
identical or comparable terms when those terms are used in the ``Labor 
Act''.
    (g) For proceedings under the ``Pension Act''
    (1) Employer means the employee benefit plan with which an applicant 
under Sec. 4.2 desires to serve in a capacity for which he is ineligible 
under section 411(a) of the ``Pension Act'' (29 U.S.C. section 1111).
    (2) All other terms used in this part shall have the same meaning as 
identical or comparable terms when those terms are used in the ``Pension 
Act''.



Sec. 4.2  Who may apply for Certificate of Exemption.

    Any person who has been convicted of any of the crimes enumerated in 
section 504(a) of the ``Labor Act'' whose service, present or 
prospective, as described in that section is or would be prohibited by 
that section because of such a conviction or a prison term resulting 
therefrom; or any person who has been convicted of any of the crimes 
enumerated in section 411(a) of the ``Pension Act'' (29 U.S.C. section 
1111) whose service, present or prospective, as described in that 
section is or would be prohibited by that section because of such a 
conviction or a prison term resulting therefrom, may apply to the 
Commission for a Certificate of Exemption from such a prohibition under 
the applicable Act.



Sec. 4.3  Contents of application.

    A person applying for a Certificate of Exemption shall file with the 
Office of General Counsel, U.S. Parole Commission, 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286, a signed application under 
oath, in seven copies, which shall set forth clearly and completely the 
following information:
    (a) The name and address of the applicant and any other names used 
by the applicant and dates of such use.
    (b) A statement of all convictions and imprisonments which prohibit 
the applicant's service under the provisions of the applicable Act.
    (c) Whether any citizenship rights were revoked as a result of 
conviction or imprisonment and if so the name of the court and date of 
judgment thereof and the extent to which such rights have been restored.
    (d) The name and location of the employer and a description of the 
office or 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

[[Page 214]]

representing any employer with respect to employee organizing, concerted 
activities, or collective bargaining activities.
    (4) Present employment, including office or offices held, with a 
description of the duties thereof.
    (5) History of employment, including military service, in 
chronological order.
    (6) Licenses held, at the present time or at any time in the past 
five years, to possess or carry firearms.
    (7) Veterans' Administration claim number and regional office 
handling claim, if any.
    (8) A listing (not including traffic offenses for which a fine of 
not more than $25 was imposed or collateral of not more than $25 was 
forfeited) by date and place of all arrests, convictions for felonies, 
misdemeanors, or offenses and all imprisonment or jail terms resulting 
therefrom, together with a statement of the circumstances of each 
violation which led to arrest or conviction.
    (9) Whether applicant was ever on probation or parole, and if so the 
names of the courts by which convicted and the dates of conviction.
    (10) Names and locations of all employee benefit plans, labor 
organizations or employer groups with which the applicant has ever been 
associated or employed, and all employers or employee benefit plans 
which he has advised or represented concerning employee organizing, 
concerted activities, or collective bargaining activities, together with 
a description of the duties performed in each such employment or 
association.
    (11) A statement of applicant's net worth, including all assets held 
by him or in the names of others for him, the amount of each liability 
owed by him or by him together with any other person and the amount and 
source of all income during the immediately preceding five calendar 
years plus income to date of application.
    (12) Any other information which the applicant feels will assist the 
Commission in making its determination.
    (b) The Commission may require of the applicant such additional 
information as it deems appropriate for the proper consideration and 
disposition of his application.



Sec. 4.5  Character endorsements.

    Each application filed with the Commission must be accompanied by 
letters or other forms of statement (in three copies) from six persons 
addressed to the Chairman, U.S. Parole Commission, attesting to the 
character and reputation of the applicant. The statement as to character 
shall indicate the length of time the writer has 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

[[Page 215]]

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 
Commission in Washington, DC, or elsewhere as the Commission may direct. 
The hearing shall be held before the Commission, before one or more 
Commissioners, or before one or more administrative law judges appointed 
as provided by section 11 of the Administrative Procedure Act (5 U.S.C. 
3105) as the Commission by order shall determine. Hearings shall be 
conducted in accordance with sections 7 and 8 of the Administrative 
Procedure Act (5 U.S.C. 556, 557).



Sec. 4.9  Representation.

    The applicant may be represented before the Commission by any person 
who is a member in good standing of the bar of the Supreme Court of the 
United States or of the highest court of any State or territory of the 
United States, or the District of Columbia, and who is not under any 
order of any court suspending, enjoining, restraining, or disbarring him 
from, or otherwise restricting him in, the practice of law. Whenever a 
person acting in a representative capacity appears in person 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.

[[Page 216]]



Sec. 4.12  Evidence which may be excluded.

    The Commission or officer presiding at the hearing may exclude 
irrelevant, untimely, immaterial, or unduly repetitious evidence.



Sec. 4.13  Record for decision. Receipt of documents comprising
record; timing and extension.

    (a) The application and all supporting documents, the transcript of 
the testimony and oral argument at the hearing, together with any 
exhibits received and other documents filed pursuant to these procedures 
and/or the Administrative Procedures Act shall be made parts of the 
record for decision.
    (b) At the conclusion of the hearing the presiding officer shall 
specify the time for submission of proposed findings of fact and 
conclusions of law (unless waived by the parties); transcript of the 
hearing, and supplemental exhibits, if any. He shall set a tentative 
date for the recommended decision based upon the timing of these 
preliminary steps. Extensions of time may be requested by any party, in 
writing, from the Parole Commission. Failure of any party to comply with 
the time frame as established or extended will be deemed to be a waiver 
on his part of his right to submit the document in question. The 
adjudication will proceed and the absence of said document and reasons 
therefor will be noted in the record.



Sec. 4.14  Administrative law judge's recommended decision; exceptions 
thereto; oral argument before Commission.

    Whenever the hearing is conducted by an administrative law judge, at 
the conclusion of the hearing he shall submit a recommended decision to 
the Commission, which shall include a statement of findings and 
conclusions, as well as the reasons therefor. The applicant, the 
Secretary and others to whom notice has been sent pursuant to Sec. 4.7 
may file with the Commission, within 10 days after having been furnished 
a copy of the recommended decision, exceptions thereto and reasons in 
support thereof. The Commission may order the taking of additional 
evidence and may request the applicant and others to appear before it. 
The Commission may invite oral argument before it on such questions as 
it desires.



Sec. 4.15  Certificate of Exemption.

    The applicant, the Secretary and others to whom notice has been sent 
pursuant to Sec. 4.7 shall be served a copy of the Commission's decision 
and order with respect to each application. Whenever the Commission 
decision is that 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.

[[Page 217]]

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 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

[[Page 218]]

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 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

[[Page 219]]

documents may be made in person or by mail, and they shall be deemed to 
be filed upon their receipt by the Registration Unit.

[Order No. 376-67, 32 FR 6362, Apr. 22, 1967, as amended by Order No. 
523-73, 38 FR 18235, July 9, 1973; Order No. 1757-93, 58 FR 37419, July 
12, 1993]



Sec. 5.4  Computation of time.

    Sundays and holidays shall be counted in computing any period of 
time prescribed in the Act or in the rules and regulations in this part.



Sec. 5.5  Registration fees.

    (a) A registrant shall pay a registration fee with each initial 
registration statement filed under Sec. 5.200 and each supplemental 
registration statement under Sec. 5.203 at the time such registration 
statement is filed. The registration fee may be paid by cash or by check 
or money order made payable to ``FARA Registration Unit''. The 
Registration Unit, in its discretion, may require that the fee be paid 
by a certified or cashier's check or by a United States Postal money 
order.
    (b) Payment of fees shall accompany any order for copies or request 
for information, and all applicable fees shall be collected before 
copies or information will be made available. Payment may be made by 
cash or by check or money order made payable to ``FARA Registration 
Unit''. The Registration Unit, in its discretion, may require that the 
fee be paid by a certified or cashier's check or by a United States 
Postal money order.
    (c) Registration fees shall be waived in whole or in part, as 
appropriate, in the case of any individual person required to register 
under the Act who has demonstrated to the satisfaction of the 
Registration Unit that he or she is financially unable to pay the fees 
in their entirety. An individual seeking to avail himself or herself of 
this provision shall file with the registration statement a declaration 
made in compliance with section 1746 of title 28, United States Code, 
setting forth the information required by Form 4, Federal Rules of 
Appellate Procedure (28 U.S.C. appendix).
    (d) The fees shall be as follows:
    (1) For initial registration statements (including an exhibit A for 
one foreign principal) under Sec. 5.200: $305.00;
    (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.

[[Page 220]]

    (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 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

[[Page 221]]

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, 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

[[Page 222]]

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 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

[[Page 223]]

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 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

[[Page 224]]

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 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

[[Page 225]]

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 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.

[[Page 226]]

    (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 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

[[Page 227]]

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]



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.

[[Page 228]]



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_FORFEITURE AUTHORITY FOR CERTAIN STATUTES--Table of Contents



              Subpart A_Seizure and Forfeiture of Property

Sec.
8.1  Scope of regulations.
8.2  Definitions.
8.3  Seizing property subject to forfeiture.
8.4  Inventory.
8.5  Custody.
8.6  Appraisal.
8.7  Release before claim.
8.8  Commencing the administrative forfeiture proceeding.
8.9  Notice of administrative forfeiture.
8.10  Claims.
8.11  Interplay of administrative and criminal judicial forfeiture 
          proceedings.
8.12  Declaration of administrative forfeiture.
8.13  Return of property pursuant to 18 U.S.C. 983(a)(3)(B).
8.14  Disposition of property before forfeiture.
8.15  Requests for hardship release of seized property.
8.16  Attorney fees and costs.

 Subpart B_Expedited Forfeiture Proceedings for Property Seizures Based 
 on Violations Involving the Possession of Personal Use Quantities of a 
                          Controlled Substance

8.17  Purpose and scope.
8.18  Definitions.
8.19  Petition for expedited release in an administrative forfeiture 
          proceeding.
8.20  Ruling on petition for expedited release in an administrative 
          forfeiture.
8.21  Posting of substitute monetary amount in an administrative 
          forfeiture.
8.22  Special notice provision.

                  Subpart C_Other Applicable Provisions

8.23  Redelegation of authority.

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1324(b); 18 U.S.C. 981, 983, 
3051; 19 U.S.C. 1606, 1607, 1608, 1610, 1612(b), 1613, 1618; 21 U.S.C. 
822, 871, 872, 880, 881, 883, 958, 965; 28 U.S.C. 509, 510; Pub. L. 100-
690, sec. 6079, 102 Stat. 4181.

    Source: 77 FR 56101, Sept. 12, 2012, unless otherwise noted.



              Subpart A_Seizure and Forfeiture of Property



Sec. 8.1  Scope of regulations.

    (a) This part applies to all forfeitures administered by the 
Department of

[[Page 229]]

Justice with the exception of seizures and forfeitures under the 
statutes listed in 18 U.S.C. 983(i)(2). The authority of seizing 
agencies to conduct administrative forfeitures derives from the 
procedural provisions of the Customs laws (19 U.S.C. 1602-1618) where 
those provisions are incorporated by reference in the substantive 
forfeiture statutes enforced by the agencies.
    (b) The regulations in this part will apply to all forfeiture 
actions commenced on or after October 12, 2012.



Sec. 8.2  Definitions.

    As used in this part, the following terms shall have the meanings 
specified:
    Administrative forfeiture means the process by which property may be 
forfeited by a seizing agency rather than through a judicial proceeding. 
Administrative forfeiture has the same meaning as nonjudicial 
forfeiture, as that term is used in 18 U.S.C. 983.
    Appraised value means the estimated market value of property at the 
time and place of seizure if such or similar property were freely 
offered for sale by a willing seller to a willing buyer.
    Appropriate official means, in the case of the Drug Enforcement 
Administration (DEA), the Forfeiture Counsel, DEA. In the case of the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), it means the 
Associate Chief Counsel, Office of Chief Counsel, ATF. In the case of 
the Federal Bureau of Investigation (FBI), it means the Unit Chief, 
Legal Forfeiture Unit, Office of the General Counsel, FBI, except as 
used in Secs. 8.9(a)(2), 8.9(b)(2), 8.10, and 8.15, where the term 
appropriate official means the office or official identified in the 
published notice or personal written notice in accordance with Sec. 8.9.
    Civil forfeiture proceeding means a civil judicial forfeiture action 
as that term is used in 18 U.S.C. 983.
    Contraband means--
    (1) Any controlled substance, hazardous raw material, equipment or 
container, plants, or other property subject to summary forfeiture 
pursuant to sections 511(f) or (g) of the Controlled Substances Act (21 
U.S.C. 881(f) or (g)); or
    (2) Any controlled substance imported into the United States, or 
exported out of the United States, in violation of law.
    Domestic value means the same as the term appraised value as defined 
in this section.
    Expense means all costs incurred to detain, inventory, safeguard, 
maintain, advertise, sell, or dispose of property seized, detained, or 
forfeited pursuant to any law.
    File or filed has the following meanings:
    (1) A claim or any other document submitted in an administrative 
forfeiture proceeding is not deemed filed until actually received by the 
appropriate official identified in the personal written notice and the 
published notice specified in Sec. 8.9. It is not considered filed if it 
is received by any other office or official, such as a court, U.S. 
Attorney, seizing agent, local ATF or DEA office, or FBI Headquarters. 
In addition, a claim in an administrative forfeiture proceeding is not 
considered filed if received only by an electronic or facsimile 
transmission.
    (2) For purposes of computing the start of the 90-day period set 
forth in 18 U.S.C. 983(a)(3), an administrative forfeiture claim is 
filed on the date when the claim is received by the designated 
appropriate official, even if the claim is received from an incarcerated 
pro se prisoner.
    Interested party means any person who reasonably appears to have an 
interest in the property based on the facts known to the seizing agency 
before a declaration of forfeiture is entered.
    Mail includes regular or certified U.S. mail and mail and package 
transportation and delivery services provided by other private or 
commercial interstate carriers.
    Nonjudicial forfeiture has the same meaning as administrative 
forfeiture as defined in this section.
    Person means an individual, partnership, corporation, joint business 
enterprise, estate, or other legal entity capable of owning property.
    Property subject to administrative forfeiture means any personal 
property of the kinds described in 19 U.S.C. 1607(a).
    Property subject to forfeiture refers to all property that federal 
law authorizes to be forfeited to the United States of

[[Page 230]]

America in any administrative forfeiture proceeding, in any civil 
judicial forfeiture proceeding, or in any criminal forfeiture 
proceeding.
    Seizing agency refers to ATF, DEA, or FBI.



Sec. 8.3  Seizing property subject to forfeiture.

    (a) Authority of seizing agents. All special agents of any seizing 
agency may seize assets under any federal statute over which the agency 
has investigative or forfeiture jurisdiction.
    (b) Turnover of assets seized by state and local agencies. (1) 
Property that is seized by a state or local law enforcement agency and 
transferred to a seizing agency for administrative or civil forfeiture 
may be adopted for administrative forfeiture without the issuance of any 
federal seizure warrant or other federal judicial process.
    (2) Where a state or local law enforcement agency maintains custody 
of property pursuant to process issued by a state or local judicial 
authority, and notifies a seizing agency of the impending release of 
such property, the seizing agency may seek and obtain a federal seizure 
warrant in anticipation of a state or local judicial authority releasing 
the asset from state process for purposes of federal seizure, and may 
execute such seizure warrant when the state or local law enforcement 
agency releases the property as allowed or directed by its judicial 
authority.



Sec. 8.4  Inventory.

    The seizing agent shall prepare an inventory of any seized property.



Sec. 8.5  Custody.

    (a) All property seized for forfeiture by ATF, DEA, or FBI shall be 
delivered to the custody of the U.S. Marshals Service (USMS), or a 
custodian approved by the USMS, as soon as practicable after seizure, 
unless it is retained as evidence by the seizing agency.
    (b) Seized U.S. currency (and, to the extent practicable, seized 
foreign currency and negotiable instruments) must be deposited promptly 
in the Seized Asset Deposit Fund pending forfeiture. Provisional 
exceptions to this requirement may be granted as follows:
    (1) If the seized currency has a value less than $5,000 and a 
supervisory official within a U.S. Attorney's Office determines in 
writing that the currency is reasonably likely to serve a significant, 
independent, tangible evidentiary purpose, or that retention is 
necessary while the potential evidentiary significance of the currency 
is being determined by scientific testing or otherwise; or
    (2) If the seized currency has a value greater than $5,000 and the 
Chief of the Asset Forfeiture and Money Laundering Section (AFMLS), 
Criminal Division, determines in writing that the currency is reasonably 
likely to serve a significant, independent, tangible evidentiary 
purpose, or that retention is necessary while the potential evidentiary 
significance of the currency is being determined by scientific testing 
or otherwise.
    (c) Seized currency has a significant independent, tangible 
evidentiary purpose as those terms are used in Sec. 8.5(b)(1) and (b)(2) 
if, for example, it bears fingerprint evidence, is packaged in an 
incriminating fashion, or contains a traceable amount of narcotic 
residue or some other substance of evidentiary significance. If only a 
portion of the seized currency has evidentiary value, only that portion 
should be retained; the balance should be deposited.



Sec. 8.6  Appraisal.

    The seizing agency or its designee shall determine the domestic 
value of seized property as soon as practicable following seizure.



Sec. 8.7  Release before claim.

    (a) After seizure for forfeiture and prior to the filing of any 
claim, ATF's Chief, Asset Forfeiture and Seized Property Branch, or 
designee, the appropriate DEA Special Agent in Charge, or designee, or 
the appropriate FBI Special Agent in Charge, or designee, whichever is 
applicable, is authorized to release property seized for forfeiture, 
provided:
    (1) The property is not contraband, evidence of a violation of law, 
or any property, the possession of which by the claimant, petitioner, or 
the person from whom it was seized is prohibited by state or federal 
law, and does not

[[Page 231]]

have a design or other characteristic that particularly suits it for use 
in illegal activities; and
    (2) The official designated in paragraph (a) of this section 
determines within 10 days of seizure that there is an innocent party 
with the right to immediate possession of the property or that the 
release would be in the best interest of justice or the Government.
    (b) Further, at any time after seizure and before any claim is 
referred, such seized property may be released if the appropriate 
official of the seizing agency determines that there is an innocent 
party with the right to immediate possession of the property or that the 
release would be in the best interest of justice or the Government.



Sec. 8.8  Commencing the administrative forfeiture proceeding.

    An administrative forfeiture proceeding begins when notice is first 
published in accordance with Sec. 8.9(a), or the first personal written 
notice is sent in accordance with Sec. 8.9(b), whichever occurs first.



Sec. 8.9  Notice of administrative forfeiture.

    (a) Notice by publication. (1) After seizing property subject to 
administrative forfeiture, the appropriate official of the seizing 
agency shall select from the following options a means of publication 
reasonably calculated to notify potential claimants of the seizure and 
intent to forfeit and sell or otherwise dispose of the property:
    (i) Publication once each week for at least three successive weeks 
in a newspaper generally circulated in the judicial district where the 
property was seized; or
    (ii) Posting a notice on an official internet government forfeiture 
site for at least 30 consecutive days.
    (2) The published notice shall:
    (i) Describe the seized property;
    (ii) State the date, statutory basis, and place of seizure;
    (iii) State the deadline for filing a claim when personal written 
notice has not been received, at least 30 days after the date of final 
publication of the notice of seizure; and
    (iv) State the identity of the appropriate official of the seizing 
agency and address where the claim must be filed.
    (b) Personal written notice. (1) Manner of providing notice. After 
seizing property subject to administrative forfeiture, the seizing 
agency, in addition to publishing notice, shall send personal written 
notice of the seizure to each interested party in a manner reasonably 
calculated to reach such parties.
    (2) Content of personal written notice. The personal written notice 
sent by the seizing agency shall:
    (i) State the date when the personal written notice is sent;
    (ii) State the deadline for filing a claim, at least 35 days after 
the personal written notice is sent;
    (iii) State the date, statutory basis, and place of seizure;
    (iv) State the identity of the appropriate official of the seizing 
agency and the address where the claim must be filed; and
    (v) Describe the seized property.
    (c) Timing of notice. (1) Date of personal notice. Personal written 
notice is sent on the date when the seizing agency causes it to be 
placed in the mail, delivered to a commercial carrier, or otherwise sent 
by means reasonably calculated to reach the interested party. The 
personal written notice required by Sec. 8.9(b) shall be sent as soon as 
practicable, and in no case more than 60 days after the date of seizure 
(or 90 days after the date of seizure by a state or local law 
enforcement agency if the property was turned over to a federal law 
enforcement agency for the purpose of forfeiture under federal law).
    (2) Civil judicial forfeiture. If, before the time period for 
sending notice expires, the Government files a civil judicial forfeiture 
action against the seized property and provides notice of such action as 
required by law, personal notice of administrative forfeiture is not 
required under paragraph (c)(1) of this section.
    (3) Criminal indictment. If, before the time period for sending 
notice under paragraph (c)(1) of this section expires, no civil judicial 
forfeiture action is

[[Page 232]]

filed, but a criminal indictment or information is obtained containing 
an allegation that the property is subject to forfeiture, the seizing 
agency shall either:
    (i) Send timely personal written notice and continue the 
administrative forfeiture proceeding; or
    (ii) After consulting with the U.S. Attorney, terminate the 
administrative forfeiture proceeding and notify the custodian to return 
the property to the person having the right to immediate possession 
unless the U.S. Attorney takes the steps necessary to maintain custody 
of the property as provided in the applicable criminal forfeiture 
statute.
    (4) Subsequent federal seizure. If property is seized by a state or 
local law enforcement agency, but personal written notice is not sent to 
the person from whom the property is seized within the time period for 
providing notice under paragraph (c)(1) of this section, then any 
administrative forfeiture proceeding against the property may commence 
if:
    (i) The property is subsequently seized or restrained by the seizing 
agency pursuant to a federal seizure warrant or restraining order and 
the seizing agency sends notice as soon as practicable, and in no case 
more than 60 days after the date of the federal seizure; or
    (ii) The owner of the property consents to forfeiture of the 
property.
    (5) Tolling. (i) In states or localities where orders are obtained 
from a state court authorizing the turnover of seized assets to a 
federal seizing agency, the period from the date an application or 
motion is presented to the state court for the turnover order through 
the date when such order is issued by the court shall not be included in 
the time period for providing notice under paragraph (c)(1) of this 
section.
    (ii) If property is detained at an international border or port of 
entry for the purpose of examination, testing, inspection, obtaining 
documentation, or other investigation relating to the importation of the 
property into, or the exportation of the property from, the United 
States, such period of detention shall not be included in the period 
described in paragraph (c)(1) of this section. In such cases, the 60-day 
period shall begin to run when the period of detention ends, if a 
seizing agency seizes the property for the purpose of forfeiture to the 
United States.
    (6) Identity of interested party. If a seizing agency determines the 
identity or interest of an interested party after the seizure or 
adoption of the property, but before entering a declaration of 
forfeiture, the agency shall send written notice to such interested 
party under paragraph (c)(1) of this section not later than 60 days 
after determining the identity of the interested party or the interested 
party's interest.
    (7) Extending deadline for notice. The appropriate official of the 
seizing agency may extend the period for sending personal written notice 
under the regulations in this part in a particular case for a period not 
to exceed 30 days (which period may not be further extended except by a 
court pursuant to 18 U.S.C. 983(a)(1)(C) and (D)), if the appropriate 
official determines, and states in writing, that there is reason to 
believe that notice may have an adverse result, including: Endangering 
the life or physical safety of an individual; flight from prosecution; 
destruction of or tampering with evidence; intimidation of potential 
witnesses; or otherwise seriously jeopardizing an investigation or 
unduly delaying a trial.
    (8) Certification. The appropriate official of the seizing agency 
shall provide the written certification required under 18 U.S.C. 
983(a)(1)(C) when the Government requests it and the conditions 
described in section 983(a)(1)(D) are present.



Sec. 8.10  Claims.

    (a) Filing. In order to contest the forfeiture of seized property in 
federal court, any person asserting an interest in seized property 
subject to an administrative forfeiture proceeding under the regulations 
in this part must file a claim with the appropriate official, after the 
commencement of the administrative forfeiture proceeding as defined in 
Sec. 8.8, and not later than the deadline set forth in a personal notice

[[Page 233]]

letter sent pursuant to Sec. 8.9(b). If personal written notice is sent 
but not received, then the intended recipient must file a claim with the 
appropriate official not later than 30 days after the date of the final 
publication of the notice of seizure.
    (b) Contents of claim. A claim shall:
    (1) Identify the specific property being claimed;
    (2) Identify the claimant and state the claimant's interest in the 
property; and
    (3) Be made under oath by the claimant, not counsel for the 
claimant, and recite that it is made under penalty of perjury, 
consistent with the requirements of 28 U.S.C. 1746. An acknowledgment, 
attestation, or certification by a notary public alone is insufficient.
    (c) Availability of claim forms. The claim need not be made in any 
particular form. However, each seizing agency conducting forfeitures 
under the regulations in this part must make claim forms generally 
available on request. Such forms shall be written in easily 
understandable language. A request for a claim form does not extend the 
deadline for filing a claim. Any person may obtain a claim form by 
requesting one in writing from the appropriate official.
    (d) Cost bond not required. Any person may file a claim under 
Sec. 8.10(a) without posting bond, except in forfeitures under statutes 
listed in 18 U.S.C. 983(i).
    (e) Referral of claim. Upon receipt of a claim that meets the 
requirements of Secs. 8.10(a) and (b), the seizing agency shall return 
the property or shall suspend the administrative forfeiture proceeding 
and promptly transmit the claim, together with a description of the 
property and a complete statement of the facts and circumstances 
surrounding the seizure, to the appropriate U.S. Attorney for 
commencement of judicial forfeiture proceedings. Upon making the 
determination that the seized property will be released, the agency 
shall promptly notify the person with a right to immediate possession of 
the property, informing that person to contact the property custodian 
within a specified period for release of the property, and further 
informing that person that failure to contact the property custodian 
within the specified period for release of the property will result in 
abandonment of the property pursuant to applicable regulations. The 
seizing agency shall notify the property custodian of the identity of 
the person to whom the property should be released. The property 
custodian shall have the right to require presentation of proper 
identification or to take other steps to verify the identity of the 
person who seeks the release of property, or both.
    (f) Premature filing. If a claim is filed with the appropriate 
official after the seizure of property, but before the commencement of 
the administrative forfeiture proceeding as defined in Sec. 8.8, the 
claim shall be deemed filed on the 30th day after the commencement of 
the administrative forfeiture proceeding. If such claim meets the 
requirements of Sec. 8.10(b), the seizing agency shall suspend the 
administrative forfeiture proceedings and promptly transmit the claim, 
together with a description of the property and a complete statement of 
the facts and circumstances surrounding the seizure to the appropriate 
U.S. Attorney for commencement of judicial forfeiture proceedings.
    (g) Defective claims. If the seizing agency determines that an 
otherwise timely claim does not meet the requirements of Sec. 8.10(b), 
the seizing agency may notify the claimant of this determination and 
allow the claimant a reasonable time to cure the defect(s) in the claim. 
If, within the time allowed by the seizing agency, the requirements of 
Sec. 8.10(b) are not met, the claim shall be void and the forfeiture 
proceedings shall proceed as if no claim had been submitted. If the 
claimant timely cures the deficiency, then the claim shall be deemed 
filed on the date when the appropriate official receives the cured 
claim.



Sec. 8.11  Interplay of administrative and criminal judicial 
forfeiture proceedings.

    An administrative forfeiture proceeding pending against seized or 
restrained property does not bar the Government from alleging that the 
same property is forfeitable in a criminal case. Notwithstanding the 
fact that an

[[Page 234]]

allegation of forfeiture has been included in a criminal indictment or 
information, the property may be administratively forfeited in a 
parallel proceeding.



Sec. 8.12  Declaration of administrative forfeiture.

    If the seizing agency commences a timely proceeding against property 
subject to administrative forfeiture, and no valid and timely claim is 
filed, the appropriate official of the seizing agency shall declare the 
property forfeited. The declaration of forfeiture shall have the same 
force and effect as a final decree and order of forfeiture in a federal 
judicial forfeiture proceeding.



Sec. 8.13  Return of property pursuant to 18 U.S.C. 983(a)(3)(B).

    (a) If, under 18 U.S.C. 983(a)(3), the United States is required to 
return seized property, the U.S. Attorney in charge of the matter shall 
immediately notify the appropriate seizing agency that the 90-day 
deadline was not met. Under this subsection, the United States is not 
required to return property for which it has an independent basis for 
continued custody, including but not limited to contraband or evidence 
of a violation of law.
    (b) Upon becoming aware that the seized property must be released, 
the agency shall promptly notify the person with a right to immediate 
possession of the property, informing that person to contact the 
property custodian within a specified period for release of the 
property, and further informing that person that failure to contact the 
property custodian within the specified period for release of the 
property may result in initiation of abandonment proceedings against the 
property pursuant to 41 CFR part 128-48. The seizing agency shall notify 
the property custodian of the identity of the person to whom the 
property should be released.
    (c) The property custodian shall have the right to require 
presentation of proper identification and to verify the identity of the 
person who seeks the release of property.



Sec. 8.14  Disposition of property before forfeiture.

    (a) Whenever it appears to the seizing agency that any seized 
property is liable to perish or to waste, or to be greatly reduced in 
value during its detention for forfeiture, or that the expense of 
keeping the property is or will be disproportionate to its value, the 
appropriate official of the seizing agency may order destruction, sale, 
or other disposition of such property prior to forfeiture. In addition, 
the owner may obtain release of the property by posting a substitute 
monetary amount with the seizing agency to be held subject to forfeiture 
proceedings in place of the seized property to be released. Upon 
approval by the appropriate official of the seizing agency, the property 
will be released to the owner after the payment of an amount equal to 
the Government appraised value of the property if the property is not 
evidence of a violation of law, is not contraband, and has no design or 
other characteristics that particularly suit it for use in illegal 
activities. This payment must be in the form of a money order, an 
official bank check, or a cashier's check made payable to the United 
States Marshals Service. A bond in the form of a cashier's check or 
official bank check will be considered as paid once the check has been 
accepted for payment by the financial institution that issued the check. 
If a substitute amount is posted and the property is administratively 
forfeited, the seizing agency will forfeit the substitute amount in lieu 
of the property. The pre-forfeiture destruction, sale, or other 
disposition of seized property pursuant to this section shall not 
extinguish any person's rights to the value of the property under 
applicable law. The authority vested in the appropriate official under 
this subsection may not be delegated.
    (b) The seizing agency shall commence forfeiture proceedings, 
regardless of the disposition of the property under Sec. 8.14(a). A 
person with an interest in the property that was destroyed or otherwise 
disposed of under Sec. 8.14(a) may file a claim to contest the 
forfeiture of the property or a petition for

[[Page 235]]

remission or mitigation of the forfeiture. No government agent or 
employee shall be liable for the destruction or other disposition of 
property made pursuant to Sec. 8.14(a). The destruction or other 
disposition of the property pursuant to this section does not impair in 
rem jurisdiction.



Sec. 8.15  Requests for hardship release of seized property.

    (a) Under certain circumstances a claimant may be entitled to 
immediate release of seized property on the basis of hardship.
    (b) Any person filing a request for hardship release must also file 
a claim to the seized property pursuant to Sec. 8.10 and as defined in 
18 U.S.C. 983(a).
    (c) The timely filing of a valid claim pursuant to Sec. 8.10 does 
not entitle claimant to possession of the seized property, but a 
claimant may request immediate release of the property while the 
forfeiture is pending, based on hardship.
    (d) A claimant seeking hardship release of property under 18 U.S.C. 
983(f) and the regulations in this part must file a written request with 
the appropriate official. The request must establish that:
    (1) The claimant has a possessory interest in the property;
    (2) The claimant has sufficient ties to the community to provide 
assurance that the property will be available at the time of trial;
    (3) The continued possession by the Government pending the final 
disposition of forfeiture proceedings will cause substantial hardship to 
the claimant, such as preventing the functioning of a business, 
preventing an individual from working, or leaving an individual 
homeless;
    (4) The claimant's likely hardship from the continued possession by 
the Government of the seized property outweighs the risk that the 
property will be destroyed, damaged, lost, concealed, or transferred if 
it is returned to the claimant during the pendency of the proceeding; 
and
    (5) The seized property is not:
    (i) Contraband;
    (ii) Any property, the possession of which by the claimant, 
petitioner, or the person from whom it was seized is prohibited by state 
or federal law;
    (iii) Currency, or other monetary instrument, or electronic funds 
unless such currency or other monetary instrument or electronic funds 
constitutes the assets of a legitimate business that has been seized;
    (iv) Intended to be used as evidence of a violation of law;
    (v) By reason of design or other characteristic, particularly suited 
for use in illegal activities; or
    (vi) Likely to be used to commit additional criminal acts if 
returned to the claimant.
    (e) A hardship release request pursuant to this section shall be 
deemed to have been made on the date when it is received by the 
appropriate official as defined in Sec. 8.2(c) or the date the claim was 
deemed filed under Sec. 8.10(f). If the request is ruled on and denied 
by the appropriate official or the property has not been released within 
the 15-day time period, the claimant may file a petition in federal 
district court pursuant to 18 U.S.C. 983(f)(3). If a petition is filed 
in federal district court, the claimant must send a copy of the petition 
to the agency to which the hardship petition was originally submitted 
and to the U.S. Attorney in the judicial district in which the judicial 
petition was filed.
    (f) If a civil forfeiture complaint is filed on the property and the 
claimant files a claim with the court pursuant to 18 U.S.C. 983(a)(4)(A) 
and Rule G(5) of the Supplemental Rules for Certain Admiralty and 
Maritime Claims, a hardship petition may be submitted to the individual 
identified in the public or personal notice of the civil judicial 
forfeiture action.



Sec. 8.16  Attorney fees and costs.

    The United States is not liable for attorney fees or costs in any 
administrative forfeiture proceeding, including such proceedings in 
which a claim is filed, even if the matter is referred to the U.S. 
Attorney, and the U.S. Attorney declines to commence judicial forfeiture 
proceedings.

[[Page 236]]



 Subpart B_Expedited Forfeiture Proceedings for Property Seizures Based 
 on Violations Involving the Possession of Personal Use Quantities of a 
                          Controlled Substance



Sec. 8.17  Purpose and scope.

    (a) The following definitions, regulations, and criteria in this 
subpart are designed to establish and implement procedures required by 
section 6079 of the Anti-Drug Abuse Act of 1988, Public Law 100-690, 102 
Stat. 4181. They are intended to supplement existing law and procedures 
relative to the forfeiture of property under the identified statutory 
authority. These regulations do not affect the existing legal and 
equitable rights and remedies of those with an interest in property 
seized for forfeiture, nor do these provisions relieve interested 
parties from their existing obligations and responsibilities in pursuing 
their interests through such courses of action. These regulations are 
intended to reflect the intent of Congress to minimize the adverse 
impact on those entitled to legal or equitable relief occasioned by the 
prolonged detention of property subject to forfeiture due to violations 
of law involving personal use quantities of controlled substances. The 
definition of personal use quantities of a controlled substance as 
contained herein is intended to distinguish between those small 
quantities that are generally considered to be possessed for personal 
consumption and not for further distribution, and those larger 
quantities generally considered to be intended for further distribution.
    (b) In this regard, for violations involving the possession of 
personal use quantities of a controlled substance, section 6079(b)(2) 
requires either that administrative forfeiture be completed within 21 
days of the seizure of the property, or alternatively, that procedures 
be established that provide a means by which an individual entitled to 
relief may initiate an expedited administrative review of the legal and 
factual basis of the seizure for forfeiture. Should an individual 
request relief pursuant to these regulations and be entitled to the 
return of the seized property, such property shall be returned 
immediately following that determination, and in no event later than 20 
days after the filing of a petition for expedited release by an owner, 
and the administrative forfeiture process shall cease. Should the 
individual not be entitled to the return of the seized property, 
however, the administrative forfeiture of that property shall proceed. 
The owner may, in any event, obtain release of property pending the 
administrative forfeiture by submitting to the agency making the 
determination property sufficient to preserve the Government's vested 
interest for purposes of the administrative forfeiture.



Sec. 8.18  Definitions.

    As used in this subpart, the following terms shall have the meanings 
specified: Commercial fishing industry vessel means a vessel that:
    (1) Commercially engages in the catching, taking, or harvesting of 
fish or an activity that can reasonably be expected to result in the 
catching, taking, or harvesting of fish;
    (2) Commercially prepares fish or fish products other than by 
gutting, decapitating, gilling, skinning, shucking, icing, freezing, or 
brine chilling; or
    (3) Commercially supplies, stores, refrigerates, or transports fish, 
fish products, or materials directly related to fishing or the 
preparation of fish to or from a fishing, fish processing, or fish 
tender vessel or fish processing facility.
    Controlled substance has the meaning given in 21 U.S.C. 802(6).
    Normal and customary manner means that inquiry suggested by 
particular facts and circumstances that would customarily be undertaken 
by a reasonably prudent individual in a like or similar situation. 
Actual knowledge of such facts and circumstances is unnecessary, and 
implied, imputed, or constructive knowledge is sufficient. An 
established norm, standard, or custom is persuasive but not conclusive 
or controlling in determining whether an owner acted in a normal and 
customary manner to ascertain how property would be used by another 
legally in possession of the property. The failure to act in a normal 
and customary

[[Page 237]]

manner as defined herein will result in the denial of a petition for 
expedited release of the property and is intended to have the desirable 
effect of inducing owners of the property to exercise greater care in 
transferring possession of their property.
    Owner means one having a legal and possessory interest in the 
property seized for forfeiture. Even though one may hold primary and 
direct title to the property seized, such person may not have sufficient 
actual beneficial interest in the property to support a petition as 
owner if the facts indicate that another person had dominion and control 
over the property.
    Personal use quantities means those amounts of controlled substances 
in possession in circumstances where there is no other evidence of an 
intent to distribute, or to facilitate the manufacturing, compounding, 
processing, delivering, importing, or exporting of any controlled 
substance.
    (1) Evidence that possession of quantities of a controlled substance 
is for other than personal use may include, for example:
    (i) Evidence, such as drug scales, drug distribution paraphernalia, 
drug records, drug packaging material, method of drug packaging, drug 
``cutting'' agents and other equipment, that indicates an intent to 
process, package or distribute a controlled substance;
    (ii) Information from reliable sources indicating possession of a 
controlled substance with intent to distribute;
    (iii) The arrest or conviction record of the person or persons in 
actual or constructive possession of the controlled substance for 
offenses under federal, state or local law that indicates an intent to 
distribute a controlled substance;
    (iv) Circumstances or reliable information indicating that the 
controlled substance is related to large amounts of cash or any amount 
of prerecorded government funds;
    (v) Circumstances or reliable information indicating that the 
controlled substance is a sample intended for distribution in 
anticipation of a transaction involving large quantities, or is part of 
a larger delivery;
    (vi) Statements by the possessor, or otherwise attributable to the 
possessor, including statements of conspirators, that indicate 
possession with intent to distribute; or
    (vii) The fact that the controlled substance was recovered from 
sweepings.
    (2) Possession of a controlled substance shall be presumed to be for 
personal use when there are no indicia of illicit drug trafficking or 
distribution--such as, but not limited to, the factors listed above--and 
the amounts do not exceed the following quantities:
    (i) One gram of a mixture or substance containing a detectable 
amount of heroin;
    (ii) One gram of a mixture or substance containing a detectable 
amount of--
    (A) Coca leaves, except coca leaves and extracts of coca leaves from 
which cocaine, ecgonine, and derivations of ecgonine or their salts have 
been removed;
    (B) Cocaine, its salts, optical and geometric isomers, and salts of 
isomers;
    (C) Ecgonine, its derivatives, their salts, isomers, and salts of 
isomers; or
    (D) Any compound, mixture, or preparation that contains any quantity 
of any of the substances referred to in paragraphs (2)(ii)(A) through 
(2)(ii)(C) of this definition;
    (iii) 1/10th gram of a mixture or substance described in paragraph 
(e)(2)(ii) of this section which contains cocaine base;
    (iv) 1/10th gram of a mixture or substance containing a detectable 
amount of phencyclidine (PCP);
    (v) 500 micrograms of lysergic acid diethylamide (LSD);
    (vi) One ounce of a mixture or substance containing a detectable 
amount of marihuana;
    (vii) One gram of methamphetamine, its salts, isomers, and salts of 
its isomers, or one gram of a mixture or substance containing a 
detectable amount of methamphetamine, its salts, isomers, or salts of 
its isomers.
    (3) The possession of a narcotic, a depressant, a stimulant, a 
hallucinogen, or a cannabis-controlled substance will be considered in 
excess of personal use quantities if the dosage unit amount possessed 
provides the same or greater equivalent efficacy as the quantities

[[Page 238]]

described in paragraph (e)(2) of this section.
    Property means property subject to forfeiture under 21 U.S.C. 881(a) 
(4), (6), and (7); 19 U.S.C. 1595a; and 49 U.S.C. 80303.
    Seizing agency means the federal agency that has seized the property 
or adopted the seizure of another agency and has the responsibility for 
administratively forfeiting the property;
    Statutory rights or defenses to the forfeiture means all legal and 
equitable rights and remedies available to a claimant of property seized 
for forfeiture.



Sec. 8.19  Petition for expedited release in an administrative
forfeiture proceeding.

    (a) Where property is seized for administrative forfeiture involving 
controlled substances in personal use quantities the owner may petition 
the seizing agency for expedited release of the property.
    (b) Where property described in Sec. 8.19(a) is a commercial fishing 
industry vessel proceeding to or from a fishing area or intermediate 
port of call or actually engaged in fishing operations, which would be 
subject to seizure for administrative forfeiture for a violation of law 
involving controlled substances in personal use quantities, a summons to 
appear shall be issued in lieu of a physical seizure. The vessel shall 
report to the port designated in the summons. The seizing agency shall 
be authorized to effect administrative forfeiture as if the vessel had 
been physically seized. Upon answering the summons to appear on or prior 
to the last reporting date specified in the summons, the owner of the 
vessel may file a petition for expedited release pursuant to 
Sec. 8.19(a), and the provisions of Sec. 8.19(a) and other provisions in 
this section pertaining to a petition for expedited release shall apply 
as if the vessel had been physically seized.
    (c) The owner filing the petition for expedited release shall 
establish the following:
    (1) The owner has a valid, good faith interest in the seized 
property as owner or otherwise;
    (2) The owner reasonably attempted to ascertain the use of the 
property in a normal and customary manner; and
    (3) The owner did not know of or consent to the illegal use of the 
property, or in the event that the owner knew or should have known of 
the illegal use, the owner did what reasonably could be expected to 
prevent the violation.
    (d) In addition to those factors listed in Sec. 8.19(c), if an owner 
can demonstrate that the owner has other statutory rights or defenses 
that would cause the owner to prevail on the issue of forfeiture, such 
factors shall also be considered in ruling on the petition for expedited 
release.
    (e) A petition for expedited release must be received by the 
appropriate seizing agency within 20 days from the date of the first 
publication of the notice of seizure in order to be considered by the 
seizing agency. The petition must be executed and sworn to by the owner 
and both the envelope and the request must be clearly marked ``PETITION 
FOR EXPEDITED RELEASE.'' Such petition shall be filed with the 
appropriate office or official identified in the personal written notice 
and the publication notice.
    (f) The petition shall include the following:
    (1) A complete description of the property, including identification 
numbers, if any, and the date and place of seizure;
    (2) The petitioner's interest in the property, which shall be 
supported by title documentation, bills of sale, contracts, mortgages, 
or other satisfactory documentary evidence; and
    (3) A statement of the facts and circumstances, to be established by 
satisfactory proof, relied upon by the petitioner to justify expedited 
release of the seized property.



Sec. 8.20  Ruling on petition for expedited release in an 
administrative forfeiture proceeding.

    (a) If a final administrative determination of the case, without 
regard to the provisions of this section, is made within 21 days of the 
seizure, the seizing agency need take no further action under this 
section on a petition for expedited release received pursuant to 
Sec. 8.19(a).

[[Page 239]]

    (b) If no such final administrative determination is made within 21 
days of the seizure, the following procedure shall apply. The seizing 
agency shall, within 20 days after the receipt of the petition for 
expedited release, determine whether the petition filed by the owner has 
established the factors listed in Sec. 8.19(c) and:
    (1) If the seizing agency determines that those factors have been 
established, it shall terminate the administrative proceedings and 
return the property to the owner (or in the case of a commercial fishing 
industry vessel for which a summons has been issued shall dismiss the 
summons), except where it is evidence of a violation of law; or
    (2) If the seizing agency determines that those factors have not 
been established, the agency shall proceed with the administrative 
forfeiture.



Sec. 8.21  Posting of substitute monetary amount in an administrative
forfeiture proceeding.

    (a) Where property is seized for administrative forfeiture involving 
controlled substances in personal use quantities, the owner may obtain 
release of the property by posting a substitute monetary amount with the 
seizing agency to be held subject to forfeiture proceedings in place of 
the seized property to be released. The property will be released to the 
owner upon the payment of an amount equal to the government appraised 
value of the property if the property is not evidence of a violation of 
law and has no design or other characteristics that particularly suit it 
for use in illegal activities. This payment must be in the form of a 
traveler's check, a money order, a cashier's check, or an irrevocable 
letter of credit made payable to the seizing agency. A bond in the form 
of a cashier's check will be considered as paid once the check has been 
accepted for payment by the financial institution which issued the 
check.
    (b) If a substitute amount is posted and the property is 
administratively forfeited, the seizing agency will forfeit the 
substitute amount in lieu of the property.



Sec. 8.22  Special notice provision.

    At the time of seizure of property defined in Sec. 8.18 for 
violations involving the possession of personal use quantities of a 
controlled substance, the seizing agency must provide written notice to 
the possessor of the property specifying the procedures for the filing 
of a petition for expedited release and for the posting of a substitute 
monetary bond as set forth in section 6079 of the Anti-Drug Abuse Act of 
1988 and implementing regulations.



                  Subpart C_Other Applicable Provisions



Sec. 8.23  Redelegation of authority.

    (a) Redelegation of authority permitted. (1) The powers and 
responsibilities delegated to the DEA Forfeiture Counsel by the 
regulations in this part may be redelegated to attorneys working under 
the direct supervision of the DEA Forfeiture Counsel.
    (2) The powers and responsibilities delegated to the FBI Unit Chief, 
Legal Forfeiture Unit, by the regulations in this part may be 
redelegated to the attorneys working under the direct supervision of the 
FBI Unit Chief, Legal Forfeiture Unit.
    (3) The powers and responsibilities delegated to the Associate Chief 
Counsel, Office of Chief Counsel, ATF may be redelegated to the 
attorneys working under the direct supervision of the Associate Chief 
Counsel, Office of Chief Counsel, ATF.
    (b) Redelegation of authority not permitted. (1) The powers and 
responsibilities delegated to the DEA Forfeiture Counsel, the FBI Unit 
Chief, Legal Forfeiture Unit, and the ATF Associate Chief Counsel, 
Office of Chief Counsel to make decisions regarding the disposition of 
property before forfeiture pursuant to Sec. 8.14 may not be redelegated.
    (2) The powers and responsibilities delegated to the DEA Forfeiture 
Counsel, the FBI Unit Chief, Legal Forfeiture Unit, and the ATF 
Associate Chief Counsel, Office of Chief Counsel to make decisions 
regarding the delay of notice of forfeiture pursuant to Secs. 8.9(c)(7) 
and (8) and 18 U.S.C.

[[Page 240]]

983(a)(1)(B) and (C) may not be redelegated.



PART 9_REGULATIONS GOVERNING THE REMISSION OR MITIGATION OF 
ADMINISTRATIVE, CIVIL, AND CRIMINAL FORFEITURES--Table of Contents



Sec.
9.1  Purpose, authority, 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  Remission procedures for victims.
9.9  Miscellaneous provisions.

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1324(b); 18 U.S.C. 981, 983, 
3051; 19 U.S.C. 1606, 1607, 1608, 1610, 1612(b), 1613, 1618; 21 U.S.C. 
822, 871, 872, 880, 881, 883, 958, 965; 28 U.S.C. 509, 510; Pub. L. 100-
690, sec. 6079.

    Source: 77 FR 56108, Sept. 12, 2012, unless otherwise noted.



Sec. 9.1  Purpose, authority, 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 Department of Justice's Criminal Division. The purpose of this 
part is to provide a basis for 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 
(FBI), 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 
(DEA), authority to grant remission and mitigation is delegated to the 
Forfeiture Counsel, Office of Chief Counsel; and within the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives (ATF), authority to grant 
remission and mitigation is delegated to the Associate Chief Counsel, 
Office of Chief Counsel.
    (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.
    (3) The powers and responsibilities delegated by this part may be 
redelegated to attorneys or managers working under the supervision of 
the designated officials.
    (c) Scope. 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.
    (d) The time periods and internal requirements established in this 
part are designed to guide the orderly administration of the remission 
and mitigation process and are not intended to create rights or 
entitlements in favor of individuals seeking remission or mitigation. 
This part applies to all forfeiture actions commenced on or after 
October 12, 2012.



Sec. 9.2  Definitions.

    As used in this part:
    Administrative forfeiture means the process by which property may be 
forfeited by a seizing agency rather than through judicial proceedings. 
Administrative forfeiture has the same meaning as nonjudicial 
forfeiture, as that term is used in 18 U.S.C. 983.
    Appraised value means the estimated market value of property at the 
time and place of seizure if such or similar

[[Page 241]]

property were freely offered for sale between a willing seller and a 
willing buyer.
    Assets Forfeiture Fund means the Department of Justice Assets 
Forfeiture Fund or Department of the Treasury Forfeiture Fund, depending 
upon the identity of the seizing agency.
    Attorney General means the Attorney General of the United States or 
his or her designee.
    Beneficial owner means a person with actual use of, as well as an 
interest in, the property subject to forfeiture.
    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.
    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.
    Judgment creditor means one who has obtained a judgment against the 
debtor but has not yet received full satisfaction of the judgment.
    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.
    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).
    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 attorney 
fees, accelerated or enhanced interest charges, amounts set by contract 
as damages, unearned extended warranty fees, insurance, service contract 
charges incurred after the date of seizure, allowances for dealer's 
reserve, or any other similar charges.
    Nonjudicial forfeiture has the same meaning as administrative 
forfeiture as defined in this section.
    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 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.
    Person means an individual, partnership, corporation, joint business 
enterprise, estate, or other legal entity capable of owning property.
    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.
    Petitioner means the person applying for remission, mitigation, or 
restoration of the proceeds of sale, or for the appraised value of 
forfeited property, under this part. A petitioner may be an owner as 
defined in this section, a lienholder as defined in this section, or a 
victim as defined in this section, subject to the limitations of 
Sec. 9.8.
    Property means real or personal property of any kind capable of 
being owned or possessed.
    Record means two or more 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

[[Page 242]]

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.
    Related crime as used in this section 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.
    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.
    Ruling official means any official to whom decision-making authority 
has been delegated pursuant to Sec. 9.1(b).
    Seizing agency means the federal agency that seized the property or 
adopted the seizure of another agency for federal forfeiture.
    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 from the actual victim, unless 
that person has acquired an actual ownership interest in the forfeited 
property; provided however, that if a victim has received compensation 
from insurance or any other source with respect to a pecuniary loss, 
remission may be granted to the third party who provided the 
compensation, up to the amount of the victim's pecuniary loss as defined 
in Sec. 9.8(c).
    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 30 days of the date they receive the notice in order 
to facilitate processing. Petitions shall be considered any time after 
notice until the property has been forfeited, except in cases involving 
petitions to restore the proceeds from the sale of forfeited property. A 
notice of seizure shall include the title of the seizing agency, the 
ruling official, the mailing and street address of the official to whom 
petitions should be sent, and an asset identifier number.
    (b) Persons who may file. (1) A petition for remission or mitigation 
must be filed by a petitioner as defined in Sec. 9.2 or as prescribed in 
Sec. 9.9(g) and (h). A person or person on their behalf may not file a 
petition if, after notice or knowledge of the fact that a warrant or 
process has been issued for his apprehension, in order to avoid criminal 
prosecution, the person:
    (i) Purposely leaves the jurisdiction of the United States;
    (ii) Declines to enter or reenter the United States to submit to its 
jurisdiction; or
    (iii) Otherwise evades the jurisdiction of the court in which a 
criminal matter is pending against the person.
    (2) Paragraph (b)(1) of this section applies to a petition filed by 
a corporation if any majority shareholder, or individual filing the 
claim on behalf of the corporation:
    (i) Purposely leaves the jurisdiction of the United States;
    (ii) Declines to enter or reenter the United States to submit to its 
jurisdiction; or
    (iii) Otherwise evades the jurisdiction of the court in which a 
criminal matter is pending against the person.
    (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;

[[Page 243]]

    (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. Such documentation includes evidence establishing the source 
of funds for seized currency or the source of funds used to purchase the 
seized asset.
    (2) Any factual recitation or documentation of any type in a 
petition must be supported by a declaration under penalty of perjury 
that meets the requirements of 28 U.S.C. 1746.
    (d) Releases. In addition to the contents of the petition for 
remission or mitigation set forth in paragraph (c) of this section, upon 
request of the agency, 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 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).
    (2) If the notice of seizure does not provide an official address, 
the petition shall be addressed to the appropriate federal agency as 
follows:
    (i)(A) DEA: All submissions must be filed with the Forfeiture 
Counsel, Asset Forfeiture Section, Office of Chief Counsel, Drug 
Enforcement Administration, HQS Forfeiture Response, P.O. Box 1475, 
Quantico, Virginia 22134-1475.
    (B) Correspondence via private delivery must be filed with The 
Forfeiture Counsel, Asset Forfeiture Section (CCF), Office of Chief 
Counsel, Drug Enforcement Administration, 8701 Morrissette Drive, 
Springfield, Virginia 22152.
    (C) Submission by facsimile or other electronic means will not be 
accepted.
    (ii)(A) FBI: All submissions must be filed with the FBI Special 
Agent in Charge at the Field Office that seized the property.
    (B) Submission by facsimile or other electronic means will not be 
accepted.
    (iii)(A) ATF: All submissions must be filed with the Office of Chief 
Counsel, Attention: Forfeiture Counsel, 99 New York Avenue NE., 
Washington, DC 20226.
    (B) Submission by facsimile or other electronic means will not be 
accepted.
    (f) Agency investigation. Upon receipt of a petition, the seizing 
agency shall investigate the merits of the petition and may 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, if any, 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 (USMS) or other property custodian. The written decision shall 
include the terms and conditions, if any, upon which the remission or 
mitigation is granted and the procedures the petitioner must follow to 
obtain release of the property or the monetary interest therein.
    (i) Petitions denied. If the ruling official denies a petition, a 
copy of the decision shall be mailed to the petitioner or, if 
represented by an attorney, to the petitioner's attorney of record. A 
copy of the decision shall also be sent to the USMS 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.

[[Page 244]]

    (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 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 lienholder 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 90 days of the date the property is 
sold or otherwise disposed of.



Sec. 9.4  Petitions in judicial forfeiture cases.

    (a) Notice of seizure. The notice of seizure and intent to forfeit 
the property shall advise any persons who may have a present ownership 
interest in the property to submit their petitions for remission or 
mitigation within 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 or as prescribed in 
Sec. 9.9(g) and (h).
    (c) Contents of petition. (1) All petitions must include the 
following information in clear and concise terms:
    (i) The name, address, and social security or other taxpayer 
identification number of the person claiming an interest in the seized 
property who is seeking remission or mitigation;
    (ii) The name of the seizing agency, the asset identifier number, 
and the date and place of seizure;
    (iii) The district court docket number;
    (iv) A complete description of the property, including the address 
or legal description of real property, and make, model, and serial 
numbers of personal property, if any; and
    (v) A description of the petitioner's interest in the property as 
owner, lienholder, or otherwise, supported by original or certified 
bills of sale, contracts, mortgages, deeds, or other documentary 
evidence.
    (2) Any factual recitation or documentation of any type in a 
petition must be supported by a declaration under penalty of perjury 
that meets the requirements of 28 U.S.C. 1746.
    (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

[[Page 245]]

in Sec. 9.9(g); and shall be submitted to the U.S. Attorney for the 
district in which the judicial forfeiture proceedings are brought.
    (f) Agency investigation and recommendation; U.S. Attorney's 
recommendation. Upon receipt of a petition, the U.S. 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 U.S. 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 U.S. 
Attorney shall forward to the Chief, Asset Forfeiture and Money 
Laundering Section, the petition, the seizing agency's report and 
recommendation, and the U.S. 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 for remission if such 
remission was previously denied by the agency pursuant to Sec. 9.3.
    (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, the district 
court has 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) and shall mail or transmit electronically a copy of the 
decision to the appropriate U.S. Attorney, the USMS or other property 
custodian, and the 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 U.S. Attorney as to such terms and conditions. The U.S. Attorney 
shall confer with the seizing agency regarding the release and shall 
coordinate disposition of the property with that office and the USMS or 
other property custodian.
    (j) Petitions denied. If the Chief denies a petition, a copy of that 
decision shall be mailed to the petitioner (or, if represented by an 
attorney, to the petitioner's attorney of record) and mailed or 
transmitted electronically to the appropriate U.S. Attorney, the USMS or 
other property custodian, and to the 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 10 days from the receipt of the notice of denial of the 
petition by the petitioner;
    (ii) A copy of the request is also received by the appropriate U.S. 
Attorney within 10 days of the receipt of the denial by the petitioner; 
and
    (iii) 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 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 request for 
reconsideration is not received within the prescribed period, the

[[Page 246]]

USMS or other property custodian may dispose of the property.
    (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 90 days of the date the property was 
sold or otherwise disposed of.



Sec. 9.5  Criteria governing administrative and judicial remission
and mitigation.

    (a) Remission. (1) The ruling official shall not grant remission of 
a forfeiture unless the petitioner establishes that 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 is an 
innocent owner within the meaning of 18 U.S.C. 983(d)(2)(A) or 
983(d)(3)(A).
    (2) For purposes of paragraph (a)(1) of this section, the knowledge 
and responsibilities of a petitioner's representative, agent, or 
employee 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 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 official 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

[[Page 247]]

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 20 days of the receipt of the decision, the 
property shall be sold, and the monetary amount imposed and other costs 
chargeable as a condition to mitigation shall be subtracted from the 
proceeds of the sale before transmitting the remainder to the 
petitioner.



Sec. 9.6  Special rules for specific petitioners.

    (a) General creditors. A general creditor may not be granted 
remission or mitigation of forfeiture unless he or she otherwise 
qualifies as petitioner under this part.
    (b) Rival claimants. If the beneficial owner of the forfeited 
property and the owner of a security interest in the same property each 
file 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, 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 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 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 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.

[[Page 248]]



Sec. 9.7  Terms and conditions of remission and mitigation.

    (a) Owners. (1) An owner's interest in property that has been 
forfeited is represented by the property itself or by a monetary 
interest equivalent to that interest at the time of seizure. Whether the 
property or a monetary equivalent will be remitted to an owner shall be 
determined at the discretion of the ruling official.
    (2) If a civil judicial forfeiture action against the property is 
pending, release of the property must await an appropriate court order.
    (3) Where the Government sells or disposes of the property prior to 
the grant of the remission, the owner shall receive the proceeds of that 
sale, less any costs incurred by the Government in the sale. The ruling 
official, at his or her discretion, may waive the deduction of costs and 
expenses incident to the forfeiture.
    (4) Where the owner does not comply with the conditions imposed upon 
release of the property by the ruling official, the property shall be 
sold. Following the sale, the proceeds shall be used to pay all costs of 
the forfeiture and disposition of the property, in addition to any 
monetary conditions imposed. The remaining balance shall be paid to the 
owner.
    (b) Lienholders. (1) When the forfeited property is to be retained 
for official use or transferred to a state or local law enforcement 
agency or foreign government pursuant to law, and remission or 
mitigation has been granted to a lienholder, the recipient of the 
property shall assure that:
    (i) In the case of remission, the lien is satisfied as determined 
through the petition process; or
    (ii) In the case of mitigation, an amount equal to the net equity, 
less any monetary conditions imposed, is paid to the lienholder prior to 
the release of the property to the recipient agency or 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 USMS or other property custodian who shall thereafter release the 
property to the lienholder; or
    (ii) Sale of property and payment to lienholder. Subject to 
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 20 days of the receipt of notification, the ruling 
official shall direct the USMS 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

[[Page 249]]

the net equity, less any monetary conditions, shall be paid to the 
lienholder.



Sec. 9.8  Remission procedures for victims.

    This section applies 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). This section applies only with respect to 
property forfeited pursuant to statutes that explicitly authorize 
restoration or remission of forfeited property to victims. A victim 
requesting remission under this section may concurrently request 
remission as an owner, pursuant to the regulations set forth in 
Secs. 9.3, 9.4, and 9.7. The claims of victims granted remission as both 
an owner and victim shall, like claims of other owners, have priority 
over the claims of any non-owner victims whose claims are recognized 
under this section.
    (a) Remission procedure for victims. (1) Where to file. Persons 
seeking remission as victims shall file petitions for remission with the 
appropriate deciding official as described in Secs. 9.3(e) 
(administrative forfeiture) or 9.4(e) (judicial forfeiture).
    (2) Time of decision. The deciding official or his designee as 
described in Sec. 9.1(b) may consider petitions filed by persons 
claiming eligibility for remission as victims at any time prior to the 
disposal of the forfeited property in accordance with law.
    (3) Request for reconsideration. Persons denied remission under this 
section may request reconsideration of the denial, in accordance with 
Secs. 9.3(j) (administrative forfeiture) or 9.4(k) (judicial 
forfeiture).
    (b) Qualification to file. A victim, as defined in Sec. 9.2, may be 
granted remission, if in addition to complying with the other applicable 
provisions of Sec. 9.8, the victim satisfactorily demonstrates that:
    (1) A pecuniary loss of a specific amount has been directly caused 
by the criminal offense, or related offense, that was the underlying 
basis for the forfeiture, and that the loss is supported by documentary 
evidence including invoices and receipts;
    (2) The pecuniary loss is the direct result of the illegal acts and 
is not the result of otherwise lawful acts that were committed in the 
course of a criminal offense;
    (3) The victim did not knowingly contribute to, participate in, 
benefit from, or act in a willfully blind manner towards the commission 
of the offense, or related offense, that was the underlying basis of the 
forfeiture;
    (4) The victim has not in fact been compensated for the wrongful 
loss of the property by the perpetrator or others; and
    (5) The victim does not have recourse reasonably available to other 
assets from which to obtain compensation for the wrongful loss of the 
property.
    (c) 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 
forgone or for collateral expenses incurred to recover lost property or 
to seek other recompense.
    (d) 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.
    (e) 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.
    (f) Pro rata basis. In granting remission to multiple victims 
pursuant to this section, the ruling official should generally grant 
remission on a pro rata

[[Page 250]]

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 the following factors, among others, 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 prosecution 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.
    (g) 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.
    (h) 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.
    (i) Amount of remission. Consistent with the Assets Forfeiture Fund 
statute (28 U.S.C. 524(c)), the amount of remission shall not exceed the 
victim's share of the net proceeds of the forfeitures associated with 
the activity that caused the victim's loss. The calculation of net 
proceeds includes, but is not limited to, the deduction of allowable 
government expenses and valid third-party claims.



Sec. 9.9  Miscellaneous provisions.

    (a) Priority of payment. Except where otherwise provided in this 
part, costs incurred by the USMS and other agencies participating in the 
forfeiture that were incident to the forfeiture, sale, or other 
disposition of the property shall be deducted from the amount available 
for remission or mitigation. Such costs include, but are not limited to, 
court costs, storage costs, brokerage and other sales-related costs, the 
amount of any liens and associated costs paid by the Government on the 
property, costs incurred in paying the ordinary and necessary expenses 
of a business seized for forfeiture, awards for information as 
authorized by statute, expenses of trustees or other assistants pursuant 
to paragraph (c) of this section, investigative or prosecutive costs 
specially incurred incident to the particular forfeiture, and costs 
incurred incident to the processing of the petition(s) for remission or 
mitigation. The remaining balance shall be available for remission or 
mitigation. The ruling official shall direct the distribution of the 
remaining balance in the following order of 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:

[[Page 251]]

    (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 Secs. 9.3 through 9.5. The decision to make 
such transfer shall be made in writing by the ruling official.
    (e) Financial institution regulatory agencies. A ruling official may 
direct the transfer of property under 18 U.S.C. 981(e) to certain 
federal financial institution regulatory agencies or an entity acting on 
their behalf, upon receipt of a written request, in lieu of ruling on a 
petition for remission or mitigation.
    (f) Transfers to foreign governments. A ruling official may decline 
to grant remission to any petitioner other than an owner or lienholder 
so that forfeited assets may be transferred to a foreign government 
pursuant to 18 U.S.C. 981(i)(1), 19 U.S.C. 1616a(c)(2), or 21 U.S.C. 
881(e)(1)(E).
    (g) Filing by attorneys. (1) A petition for remission or mitigation 
may be filed by a petitioner or by his or her attorney or legal 
guardian. If an attorney files on behalf of the petitioner, the petition 
must include a signed and sworn statement by the client-petitioner 
stating that:
    (i) The attorney has the authority to represent the petitioner in 
this proceeding;
    (ii) The petitioner has fully reviewed the petition; and
    (iii) The petition is truthful and accurate in every respect.
    (2) Verbal notification of representation is not acceptable. 
Responses and notification of rulings shall not be sent to an attorney 
claiming to represent a petitioner unless a written notice of 
representation is filed. No extensions of time shall be granted due to 
delays in submission of the notice of representation.
    (h) Consolidated petitions. At the discretion of the ruling official 
in individual cases, a petition may be filed by one petitioner on behalf 
of other petitioners, provided the petitions are based on similar 
underlying facts, and the petitioner who files the petition has written 
authority to do so on behalf of the other petitioners. This authority 
must be either expressed in documents giving the petitioner the 
authority to file petitions for remission, or reasonably implied from 
documents giving the petitioner express authority to file claims or 
lawsuits related to the course of conduct in question on behalf of these 
petitioners. An insurer or an administrator of an employee benefit plan, 
for example, which itself has standing to file a petition as a 
``victim'' within the meaning of Sec. 9.2, 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, 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

[[Page 252]]

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 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

[[Page 253]]

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.

                  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  Private counsel debt collection 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_Collection of Debts by Administrative and Tax Refund Offset

11.10  Scope.
11.11  Definitions.
11.12  Centralized offset.
11.13  Non-centralized offset.

Subpart D--Administrative Wage Garnishment

11.21  Administrative wage garnishment.

    Authority: 5 U.S.C. 301, 5514; 28 U.S.C. 509, 510; 31 U.S.C. 3711, 
3716, 3718, 3720A, 3720D.

    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

[[Page 254]]

develop and administer the Department of Justice 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 Administration 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.

[Order No. 1201-87, 52 FR 24449, July 1, 1987, as amended by AG Order 
3689-2016, 81 FR 43943, July 6, 2016]



Sec. 11.2  Private counsel debt collection 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 program. U.S. Attorneys in 
the districts chosen for the 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 Representative (COR) on 
the contracts with private debt collection lawyers in their respective 
districts. The CORs 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.

[Order No. 1201-87, 52 FR 24449, July 1, 1987, as amended by AG Order 
3689-2016, 81 FR 43943, July 6, 2016]



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 41 
U.S.C. 3307. Best efforts shall be made to encourage extensive 
participation by law firms owned and controlled by socially and 
economically disadvantaged individuals and law firms that are qualified 
HUBZone small business concerns in the competition for award of these 
contracts in the program districts. Such efforts shall include, at 
minimum, publication of the requirement for these services in FedBizOpps 
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 
program districts. These special recruitment efforts will not authorize 
or permit preferential consideration to any bidders in selection for 
award of these contracts. The Department's Office of Small and 
Disadvantaged Business Utilization shall also make its resources 
available to assist in encouraging broad participation in this 
competition.

[Order No. 1201-87, 52 FR 24449, July 1, 1987, as amended by AG Order 
3689-2016, 81 FR 43944, July 6, 2016]



               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. 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 contained within the Federal Claims Collection 
Standards (FCCS), 31 CFR part 901.
    (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

[[Page 255]]

    (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. 1 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 the case where collection of a debt is explicitly provided 
for or prohibited by another statute. The provisions of Sec. 11.8 of 
this subpart do not apply to salary offset to recover travel advances 
under 5 U.S.C. 5705 or employee training expenses under 5 U.S.C. 4108.
    (4) Nothing in this subpart precludes the compromise, suspension, or 
termination of collection actions where appropriate under the FCCS.
    (5) This subpart does not govern debt collection procedures 
implemented by other agencies.

[Order No. 1625-92, 57 FR 44107, Sept. 24, 1992, as amended by Order No. 
3089-2009, 74 FR 35117, July 20, 2009; AG Order 3689-2016, 81 FR 43944, 
July 6, 2016]



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 31 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.

[Order No. 1625-92, 57 FR 44107, Sept. 24, 1992, as amended by Order No. 
3089-2009, 74 FR 35117, July 20, 2009]



Sec. 11.6  Definitions.

    Except where the context clearly indicates otherwise or where the 
term is otherwise defined elsewhere in this subpart, the following 
definitions shall apply to this subpart.
    (a) Agency means:
    (1) An executive agency as defined by 5 U.S.C. 105;
    (2) A military department as defined by 5 U.S.C. 102;
    (3) The United States Postal Service and the Postal Rate Commission;
    (4) An agency of the judicial branch, including a court as defined 
by 28 U.S.C. 610, the District Court for the Northern Mariana Islands, 
and the Judicial Panel on Multidistrict Litigation;
    (5) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (6) Other entities that are establishments of the federal 
government.
    (b) Bureau means the Bureau of Prisons, the Drug Enforcement 
Administration, the Federal Bureau of Investigation (FBI), the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives (ATF), Federal Prison 
Industries, 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 Departmental order.
    (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.

[[Page 256]]

    (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 by 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 Secretary of the Treasury and the Attorney 
General at 31 CFR parts 900-904.
    (k) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed 
and for rendering a decision on the basis of such hearing. A hearing 
official may not be under the supervision or control of the Attorney 
General when the Department is the creditor agency but may be an 
administrative law judge.
    (l) Notice of Intent to Offset or Notice of Intent means a written 
notice from a creditor agency to an employee, organization, or entity 
stating that the debtor is indebted to the creditor agency and apprising 
the debtor of certain procedural rights.
    (m) Notice of Salary Offset means a written notice from the paying 
agency to an employee after a certification has been issued by a 
creditor agency, informing the employee that salary offset will begin at 
the next officially established pay interval.
    (n) Organization means the bureaus individually and the offices, 
boards, and divisions collectively.
    (o) Organization head means any Director, Administrator, or 
Commissioner of the respective Department bureaus, the Director of the 
United States Trustee System, the Director of the Executive Office for 
United States Attorneys, and the Assistant Attorney General for 
Administration, who shall serve as the organization head for the 
offices, boards, and divisions.
    (p) Paying agency means the agency of the federal government that 
employs the individual who owes a debt to an agency of the federal 
government. In some cases, the Department may be both the creditor 
agency and the paying agency.
    (q)(1) Payroll office means the payroll office in the paying agency 
that is primarily responsible for the payroll records and the 
coordination of pay matters with the appropriate personnel office with 
respect to an employee.
    (2) Applicable payroll office means the Federal Bureau of 
Investigation voucher and Payroll Section with respect to FBI employees 
and the Justice Employee Data Service for all other employees of the 
Department.
    (r) Salary offset coordination officer means an official designated 
by an organization head who is responsible for

[[Page 257]]

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; Order No. 3089-2009, 74 FR 35117, 
July 20, 2009]



Sec. 11.7  Salary adjustments.

    The following debts shall not be subject to the salary offset 
procedures of Sec. 11.8:
    (a) Any 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, if the amount to be recovered 
was accumulated over 4 pay periods or less;
    (b) A routine intra-agency adjustment of pay that is made to correct 
an overpayment of pay attributable to clerical or administrative errors 
or delays in processing pay documents, if the overpayment occurred 
within the 4 pay periods preceding the adjustment and, at the time of 
such adjustment, or as soon thereafter as practical, the individual is 
provided written notice of the nature and the amount of the adjustment 
and point of contact for contesting such adjustment; or
    (c) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.

[Order No. 3089-2009, 74 FR 35117, July 20, 2009]



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. The 
Notice of Intent shall state:
    (1) That the organization head has reviewed the records relating to 
the claim and has determined that a debt is owed, including the amount 
of the debt and the facts giving rise to the debt;
    (2) The organization head's intention to collect the debt by means 
of deduction from the employee's current disposable pay account until 
the debt and all accumulated interest is paid in full;
    (3) A repayment schedule that includes the amount, frequency, 
proposed beginning date, and duration of the intended deductions;
    (4) The opportunity for the employee to propose an alternative 
written schedule for the voluntary repayment of the debt, in lieu of 
offset, on terms acceptable to the Department. The employee shall 
include a justification in the request for the alternative schedule. The 
schedule shall be agreed to and signed by both the employee and the 
organization head;
    (5) An explanation of the Department's policy concerning interest, 
penalties, and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with the Federal 
Claims Collection Standards;
    (6) The employee's right to inspect and copy all records of the 
Department pertaining to the debt claimed or to receive copies of such 
records if the debtor is unable personally to inspect the records, due 
to geographical or other constraints;
    (7) The name, address, and telephone number of an officer or 
employee of the Department to whom requests for access to Department 
records relating to the debt must be sent;
    (8) The employee's right to a hearing conducted by an impartial 
hearing official (an administrative law judge or other hearing official 
not under the supervision or control of the Attorney General) with 
respect to the existence and amount of the debt claimed or the repayment 
schedule (i.e., the percentage of disposable pay to be deducted each pay 
period), so long as a petition is filed by the employee as prescribed in 
paragraph (c)(1) of this section.
    (9) The name, address, and telephone number of the officer or 
employee of the Department to whom a proposal for voluntary repayment 
must be sent; and the name, address, and telephone number of an officer 
or employee of the Department who may be contacted concerning procedures 
for requesting a hearing;
    (10) The method and deadline for requesting a hearing;

[[Page 258]]

    (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 officer 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 
officer shall arrange to send copies of such records to the employee.
    (c) Opportunity for a hearing where the Department is the creditor 
agency--(1) Request for a hearing. (i) An employee who requests a 
hearing on the existence or amount of the debt held by the Department or 
on the offset schedule proposed by the Department must send such request 
to the office designated in the Notice of Intent. The request or 
petition for a hearing must be received by the designated office on or 
before the 15th calendar day following receipt by the employer of the 
notice.
    (ii) The employee must specify whether an oral hearing is requested. 
If an oral hearing is desired, the request should explain why the matter 
cannot be resolved by review of the documentary evidence alone. The 
request must be signed by the employee and must fully identify and 
explain with reasonable specificity all the facts, evidence, and 
witnesses, if any, that the employee believes support his or her 
position.
    (2) Failure to timely submit. If the employee files a request or 
petition for hearing after the expiration of the 15-calendar-day period 
provided for in paragraph (c)(1) of this section, the organization head 
may accept the request if the employee can show that the delay was the 
result of circumstances beyond his or her control or that he or she 
failed to receive actual notice of the filing deadline.

[[Page 259]]

    (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 by the hearing 
officer. 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 officer 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 hearing officer, unless the hearing was delayed at 
the request of the employee, in which case the 60-day decision period 
shall be extended by the number of days by which the hearing was 
postponed. Decisions not timely rendered shall result in the waiver of 
penalty and interest costs. The decision of the hearing official shall 
be final.
    (6) Content of decision. The written decision shall include:
    (i) A summary of the facts concerning the origin, nature, and amount 
of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (7) Failure to appear. If, in the absence of good cause shown (e.g., 
illness), the employee or the representative of the Department fails to 
appear, the hearing official shall proceed with the hearing as 
scheduled, and make his or her determination based upon the oral 
testimony presented and the documentation submitted by both parties. At 
the request of both parties, the hearing official may schedule a new 
hearing date. Both parties shall be given reasonable notice of the time 
and place of this new hearing.
    (d) Certification where the Department is the creditor agency. (1) 
The salary offset coordination officer shall provide a certification to 
the appropriate payroll office in all cases where:
    (i) The hearing official determines that a debt exists; or
    (ii) The employee admits the existence and amount of the debt by 
failing to request a hearing.
    (2) The certification must be in writing and must state:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;

[[Page 260]]

    (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.
    (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

[[Page 261]]

    (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.
    (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;

[[Page 262]]

    (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 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 31 CFR 901.9.
    (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

[[Page 263]]

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.

[Order No. 1625-92, 57 FR 44107, Sept. 24, 1992, as amended by Order No. 
3089-2009, 74 FR 35117, July 20, 2009]



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.

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_Collection of Debts by Administrative and Tax Refund Offset

    Source: Order No. 1792-93, 58 FR 51223, Oct. 1, 1993, unless 
otherwise noted.



Sec. 11.10  Scope.

    (a) The provisions of 31 U.S.C. 3716 allow the head of an agency to 
collect a debt through administrative offset. The provisions of 31 
U.S.C. 3716 and 3720A authorize the Secretary of the Treasury, acting 
through the Bureau of the Fiscal Service (BFS) and other Federal 
disbursing officials, to offset

[[Page 264]]

certain payments to collect delinquent debts owed to the United States. 
This subpart authorizes the collection of debts owed to the United 
States by persons, organizations, and other entities by offsetting 
Federal and certain state payments due to the debtor. It allows for 
collection of debts that are past due and legally enforceable through 
offset, regardless of whether the debts have been reduced to judgment.
    (b) Nothing in this subpart precludes the Department from pursuing 
other debt collection procedures to collect a debt that has been 
submitted to the Department of the Treasury under this subpart. The 
Department may use such debt collection procedures separately or in 
conjunction with the offset procedures of this subpart.

[AG Order 3689-2016, 81 FR 43944, July 6, 2016]



Sec. 11.11  Definitions.

    (a) Debt. Debt means any amount of funds or property that an 
appropriate official of the Federal Government or a court of competent 
jurisdiction determines is owed to the United States, including any 
amounts owed to the United States for the benefit of a third party, by a 
person, organization, or entity other than another Federal agency. For 
purposes of this section, the term debt does not include debts arising 
under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.), the 
tariff laws of the United States, or the Social Security Act (42 U.S.C. 
301 et seq.), except that ``delinquent amounts'' as defined in sections 
204(f) and 1631(b)(4) of such Act (42 U.S.C. 404(f) and 1383(b)(4)(A), 
respectively) are included in the term debt, as are ``administrative 
offset[s]'' collectible pursuant to 31 U.S.C. 3716(c). Debts that have 
been referred to the Department of Justice by other agencies for 
collection are included in this definition.
    (b) Past due. A past due debt means a debt that has not been paid or 
otherwise resolved by the date specified in the initial demand for 
payment, or in an applicable agreement or other instrument (including a 
post-delinquency repayment agreement), unless other payment arrangements 
satisfactory to the Department have been made. Judgment debts remain 
past due until paid in full.
    (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.
    (e) Legally enforceable. Legally enforceable means that there has 
been a final agency or court determination that the debt, in the amount 
stated, is due, and there are no legal bars to collection by offset.

[Order No. 1792-93, 58 FR 51223, Oct. 1, 1993, as amended by AG Order 
3689-2016, 81 FR 43944, July 6, 2016]



Sec. 11.12  Centralized offset.

    (a) The Department must refer any legally enforceable debt more than 
120 days past-due to BFS for administrative offset under 31 U.S.C. 
3716(c)(6). The Department must refer any past-due, legally enforceable 
debt to BFS for tax refund offset purposes pursuant to 31 U.S.C. 
3720A(a) at least once a year. Before referring debts for offset, the 
Department must certify to BFS compliance with the provisions of 31 
U.S.C. 3716(a) and 3720A(b). There is no time limit on when a debt can 
be collected by offset.
    (b) The Department will provide the debtor with written notice of 
its intent to offset before initiating the offset. Notice will be mailed 
to the debtor at the current address of the debtor, as determined from 
information obtained from the IRS pursuant to 26 U.S.C. 6103(m)(2), (4), 
(5) or from information regarding the debt maintained by the Department 
of Justice. The notice sent to the debtor will state the amount of the 
debt and inform the debtor that:
    (1) The debt is past due;
    (2) The Department intends to refer the debt to BFS for offset 
purposes;
    (3) Before the debt is referred to BFS for offset purposes, the 
debtor has 60 days from the date of notice to present evidence that all 
or part of the debt is

[[Page 265]]

not past due, that the amount is not the amount currently owed, that the 
outstanding debt has been satisfied, or, if the debt is a judgment debt, 
that the debt has been satisfied, or that collection action on the debt 
has been stayed.
    (c) If the debtor neither pays the amount due nor presents evidence 
that the amount is not past due or is satisfied or that collection 
action is stayed, the Department will refer the debt to BFS for offset 
purposes.
    (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 60 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 BFS any disputed portion of the 
debt shall be made by the Assistant Attorney General for Administration 
or 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 BFS of any change in the amount 
due promptly after receipt of payments or notice of other reductions.
    (f) If more than one debt is owed, payments eligible for offset will 
be applied in the order in which the debts became past due.

[Order No. 1792-93, 58 FR 51223, Oct. 1, 1993, as amended by AG Order 
3689-2016, 81 FR 43944, July 6, 2016]



Sec. 11.13  Non-centralized offset.

    (a) When offset under Sec. 11.12 of this part is not available or 
appropriate, the Department may collect past-due, legally enforceable 
debts through non-centralized administrative offset. See 31 CFR 
901.3(c). In these cases, the Department may offset a payment internally 
or make an offset request directly to a Federal payment agency.
    (b) At least 30 days before offsetting a payment internally or 
requesting a Federal payment agency to offset a payment, the Department 
will send notice to the debtor in accordance with the requirements of 31 
U.S.C. 3716(a). When referring a debt for offset under this paragraph 
(b), the Department will certify, in writing, that the debt is valid, 
delinquent, legally enforceable, and that there are no legal bars to 
collection by offset. In addition, the Department will certify its 
compliance

[[Page 266]]

with these regulations concerning administrative offset. See 31 CFR 
901.3(c)(2)(ii).

[AG Order 3689-2016, 81 FR 43944, July 6, 2016]



                Subpart D_Administrative Wage Garnishment

    Source: AG Order 3689-2016, 81 FR 43944, July 6, 2016, unless 
otherwise noted.



Sec. 11.21  Administrative wage garnishment.

    (a) Purpose. In accordance with the Department of the Treasury 
government-wide regulation at 31 CFR 285.11, this section provides 
procedures for the Department of Justice (Department) to collect money 
from a debtor's disposable pay by means of administrative wage 
garnishment to satisfy delinquent nontax debt owed to the United States 
through operation of Department programs.
    (b) Scope. (1) This section shall apply notwithstanding any 
provision of State law.
    (2) Nothing in this section precludes the compromise of a debt or 
the suspension or termination of collection action in accordance with 
applicable law. See, for example, the Federal Claims Collection 
Standards (FCCS), 31 CFR parts 900-904.
    (3) The receipt of payments pursuant to this section does not 
preclude the Department from pursuing other debt collection remedies, 
including the offset of Federal payments to satisfy delinquent nontax 
debt owed to the United States. The Department may pursue such debt 
collection remedies separately or in conjunction with administrative 
wage garnishment.
    (4) This section does not apply to the collection of delinquent 
nontax debt owed to the United States from the wages of Federal 
employees from their Federal employment. Federal pay is subject to the 
Federal salary offset procedures set forth in 5 U.S.C. 5514 and other 
applicable laws.
    (5) Nothing in this section requires the Department to duplicate 
notices or administrative proceedings required by contract or other laws 
or regulations.
    (c) Definitions. As used in this section the following definitions 
shall apply:
    Agency means the Department of Justice.
    Business day means Monday through Friday. For purposes of 
computation, the last day of the period will be included unless it is a 
Federal legal holiday.
    Day means calendar day. For purposes of computation, the last day of 
the period will be included unless it is a Saturday, a Sunday, or a 
Federal legal holiday.
    Debt or claim means any amount of money, funds or property that an 
appropriate official of the Federal Government determines is owed to the 
United States by an individual, including debt administered by a third 
party as an agent for the Federal Government.
    Debtor means an individual who owes a delinquent nontax debt to the 
United States.
    Delinquent nontax debt means any nontax debt that has not been paid 
by the date specified in the agency's initial written demand for 
payment, or applicable agreement, unless other satisfactory payment 
arrangements have been made. For purposes of this section, the terms 
``debt'' and ``claim'' are synonymous and refer to delinquent nontax 
debt.
    Disposable pay means that part of the debtor's compensation 
(including, but not limited to, salary, bonuses, commissions, and 
vacation pay) from an employer remaining after the deduction of health 
insurance premiums and any amounts required by law to be withheld. For 
purposes of this section, ``amounts required by law to be withheld'' 
include amounts for deductions such as Social Security taxes and 
withholding taxes, but do not include any amount withheld pursuant to a 
court order.
    Employer means a person or entity that employs the services of 
others and that pays their wages or salaries. The term employer 
includes, but is not limited to, State and local Governments, but does 
not include an agency of the Federal Government.
    Evidence of service means information retained by the agency 
indicating the nature of the document to which it pertains, the date of 
mailing of the document, and to whom the document is

[[Page 267]]

being sent. Evidence of service may be retained electronically so long 
as the manner of retention is sufficient for evidentiary purposes.
    Garnishment means the process of withholding amounts from an 
employee's disposable pay and the paying of those amounts to a creditor 
in satisfaction of a withholding order.
    Withholding order means any order for withholding or garnishment of 
pay issued by the agency, or judicial or administrative body. For 
purposes of this section, the terms ``wage garnishment order'' and 
``garnishment order'' have the same meaning as ``withholding order.''
    (d) General rule. Whenever the agency determines that a delinquent 
debt is owed by an individual, the agency may initiate proceedings 
administratively to garnish the wages of the delinquent debtor.
    (e) Notice requirements. (1) At least 30 days before initiating 
garnishment proceedings, the agency shall mail, by first class mail, to 
the debtor's last known address, a written notice informing the debtor 
of:
    (i) The nature and amount of the debt;
    (ii) The intention of the agency to initiate proceedings to collect 
the debt through deductions from pay until the debt and all accumulated 
interest, penalties, and administrative costs are paid in full; and
    (iii) An explanation of the debtor's rights, including those set 
forth in paragraph (e)(2) of this section, and the time frame within 
which the debtor may exercise those rights.
    (2) The debtor shall be afforded the opportunity:
    (i) To inspect and copy agency records related to the debt;
    (ii) To enter into a written repayment agreement with the agency 
under terms agreeable to the agency; and
    (iii) For a hearing in accordance with paragraph (f) of this section 
concerning the existence or the amount of the debt or the terms of the 
proposed repayment schedule under the garnishment order. However, the 
debtor is not entitled to a hearing concerning the terms of the proposed 
repayment schedule if these terms have been established by written 
agreement under paragraph (e)(2)(ii) of this section.
    (3) The agency will retain evidence of service indicating the date 
of mailing of the notice.
    (f) Hearing--(1) Request for hearing. If the debtor submits a 
written request for a hearing concerning the existence or amount of the 
debt or the terms of the repayment schedule (for those repayment 
schedules not established by written agreement under paragraph 
(e)(2)(ii) of this section), the agency shall provide a hearing, which 
at the agency's option may be oral or written.
    (2) Type of hearing or review. (i) For purposes of this section, 
whenever the agency is required to afford a debtor a hearing, the agency 
shall provide the debtor with a reasonable opportunity for an oral 
hearing when the agency determines that the issues in dispute cannot be 
resolved by review of the documentary evidence, as, for example, when 
the validity of the claim turns on the issue of credibility or veracity.
    (ii) If the agency determines that an oral hearing is appropriate, 
the time and location of the hearing shall be established by the agency. 
An oral hearing may, at the debtor's option, be conducted either in 
person or by telephone conference. All travel expenses incurred by the 
debtor in connection with an in-person hearing will be borne by the 
debtor. All telephonic charges incurred during the hearing will be the 
responsibility of the agency.
    (iii) In those cases where an oral hearing is not provided under 
this section, the agency shall nevertheless accord the debtor a ``paper 
hearing,'' that is, the agency will decide the issues in dispute based 
upon a review of the written record. The agency will establish a 
reasonable deadline for the submission of evidence.
    (3) Effect of agency receipt of hearing request within 15 business 
days of notice. Subject to paragraph (f)(12) of this section, if the 
debtor's written request is received by the agency on or before the 15th 
business day following the mailing of the notice described in paragraph 
(e)(1) of this section, the agency shall not issue a withholding order 
under paragraph (g) of this section until the agency provides the debtor 
the requested hearing and renders a decision

[[Page 268]]

in accordance with paragraphs (f)(9) and (10) of this section.
    (4) Effect of agency receipt of hearing request after 15 business 
days of notice. If the debtor's written request is received by the 
agency after the 15th business day following the mailing of the notice 
described in paragraph (e)(1) of this section, the agency shall provide 
a hearing to the debtor. However, the agency will not delay issuance of 
a withholding order unless the agency determines that the delay in 
filing the request was caused by factors over which the debtor had no 
control, or the agency receives information that the agency believes 
justifies a delay or cancellation of the withholding order.
    (5) Hearing official. A hearing official may be any qualified 
individual, as determined by the head of the agency, including an 
administrative law judge.
    (6) Procedure. After the debtor requests a hearing, the hearing 
official shall notify the debtor of:
    (i) The date and time of a telephonic hearing;
    (ii) The date, time, and location of an in-person oral hearing; or
    (iii) The deadline for the submission of evidence for a written 
hearing.
    (7) Burden of proof. (i) The agency will have the initial burden of 
proving, by a preponderance of the evidence, the existence or amount of 
the debt.
    (ii) If the agency satisfies its initial burden, and the debtor 
disputes the existence or amount of the debt, the debtor must prove, by 
a preponderance of the evidence, that no debt exists or that the amount 
of the debt is incorrect. In addition, the debtor may present evidence 
that the terms of the repayment schedule are unlawful or would cause a 
financial hardship to the debtor, or that collection of the debt may not 
be pursued due to operation of law.
    (8) Record. The hearing official must maintain a summary record of 
any hearing provided under this section. A hearing is not required to be 
a formal evidentiary-type hearing. However, witnesses who testify in in-
person or telephonic hearings will do so under oath or affirmation.
    (9) Date of decision. The hearing official shall issue a written 
opinion stating the decision as soon as practicable, but not later than 
60 days after the date on which the request for such hearing was 
received by the agency. If an agency is unable to provide the debtor 
with a hearing and render a decision within 60 days after the receipt of 
the request for such hearing:
    (i) The agency may not issue a withholding order until the hearing 
is held and a decision rendered; or
    (ii) If the agency had previously issued a withholding order to the 
debtor's employer, the agency must suspend the withholding order 
beginning on the 61st day after the receipt of the hearing request and 
continuing until a hearing is held and a decision is rendered.
    (10) Content of decision. The written decision shall include:
    (i) A summary of the facts presented;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (11) Final agency action. The hearing official's decision will be 
final agency action for purposes of judicial review under the 
Administrative Procedure Act (5 U.S.C. 701 et seq.).
    (12) Failure to appear. In the absence of good cause shown, a debtor 
who fails to appear at a hearing scheduled pursuant to paragraph (f)(3) 
of this section will be deemed as not having timely filed a request for 
a hearing.
    (g) Wage garnishment order. (1) Unless the agency receives 
information that the agency believes justifies a delay or cancellation 
of the withholding order, the agency will send, by first class mail, a 
withholding order to the debtor's employer:
    (i) Within 30 days after the debtor fails to make a timely request 
for a hearing (i.e., within 15 business days after the mailing of the 
notice described in paragraph (e)(1) of this section), or,
    (ii) If the debtor makes a timely request for a hearing, within 30 
days after a final decision is made by the agency to proceed with 
garnishment, or
    (iii) As soon as reasonably possible thereafter.
    (2) The withholding order sent to the employer under paragraph 
(g)(1) of this section shall be in a form prescribed by

[[Page 269]]

the Secretary of the Treasury. The withholding order shall contain the 
signature of, or the image of the signature of, the head of the agency 
or that person's delegatee. The order shall contain only the information 
necessary for the employer to comply with the withholding order. Such 
information includes the debtor's name, address, and Social Security 
Number, as well as instructions for withholding and information as to 
where payments should be sent.
    (3) The agency will retain evidence of service indicating the date 
of mailing of the order.
    (h) Certification by employer. Along with the withholding order, the 
agency shall send to the employer a certification in a form prescribed 
by the Secretary of the Treasury. The employer shall complete and return 
the certification to the agency within the time frame prescribed in the 
instructions to the form. The certification will address matters such as 
information about the debtor's employment status and disposable pay 
available for withholding.
    (i) Amounts withheld. (1) After receipt of the garnishment order 
issued under this section, the employer shall deduct from all disposable 
pay paid to the applicable debtor during each pay period the amount of 
garnishment described in paragraph (i)(2) of this section.
    (2)(i) Subject to the provisions of paragraphs (i)(3) and (4) of 
this section, the amount of garnishment shall be the lesser of:
    (A) The amount indicated on the garnishment order up to 15% of the 
debtor's disposable pay; or
    (B) The amount set forth in 15 U.S.C. 1673(a)(2) (Restriction on 
Garnishment). That amount is the amount by which a debtor's disposable 
pay exceeds an amount equivalent to thirty times the Federal minimum 
wage. See 29 CFR 870.10.
    (3) When a debtor's pay is subject to withholding orders with 
priority the following shall apply:
    (i) Unless otherwise provided by Federal law, withholding orders 
issued under this section shall be paid in the amounts set forth under 
paragraph (i)(2) of this section and shall have priority over 
withholding orders that are served later in time. Notwithstanding the 
foregoing, withholding orders for family support shall have priority 
over withholding orders issued under this section.
    (ii) If amounts are being withheld from a debtor's pay pursuant to a 
withholding order served on an employer before a withholding order 
issued pursuant to this section, or if a withholding order for family 
support is served on an employer at any time, the amounts withheld 
pursuant to the withholding order issued under this section shall be the 
lesser of:
    (A) The amount calculated under paragraph (i)(2) of this section, or
    (B) An amount equal to 25% of the debtor's disposable pay less the 
amount(s) withheld under the withholding order(s) with priority.
    (iii) If a debtor owes more than one debt to the agency, the agency 
may issue multiple withholding orders if the total amount garnished from 
the debtor's pay for such orders does not exceed the amount set forth in 
paragraph (i)(2) of this section.
    (4) An amount greater than that set forth in paragraphs (i)(2) and 
(3) of this section may be withheld upon the written consent of the 
debtor.
    (5) The employer shall promptly pay to the agency all amounts 
withheld under the withholding order issued pursuant to this section.
    (6) An employer shall not be required to vary its normal pay and 
disbursement cycles in order to comply with the withholding order.
    (7) Any assignment or allotment by an employee of the employee's 
earnings shall be void to the extent it interferes with or prohibits 
execution of the withholding order issued under this section, except for 
any assignment or allotment made pursuant to a family support judgment 
or order.
    (8) The employer shall withhold the appropriate amount from the 
debtor's wages for each pay period until the employer receives 
notification from the agency to discontinue wage withholding. The 
garnishment order shall indicate a reasonable period of time within 
which the employer is required to commence wage withholding.
    (j) Exclusions from garnishment. The agency may not garnish the 
wages of a

[[Page 270]]

debtor who it knows has been involuntarily separated from employment 
until the debtor has been reemployed continuously for at least 12 
months. To qualify for this exclusion, upon the request of the agency, 
the debtor must inform the agency of the circumstances surrounding an 
involuntary separation from employment.
    (k) Financial hardship. (1) A debtor whose wages are subject to a 
wage withholding order under this section, may, at any time, request a 
review by the agency of the amount garnished, based on materially 
changed circumstances such as disability, divorce, or catastrophic 
illness that result in financial hardship.
    (2) A debtor requesting a review under paragraph (k)(1) of this 
section shall submit the basis for claiming that the current amount of 
garnishment results in a financial hardship to the debtor, along with 
supporting documentation. The agency shall consider any information 
submitted in accordance with procedures and standards established by the 
agency.
    (3) If the agency finds financial hardship, it shall downwardly 
adjust, by an amount and for a period of time agreeable to the agency, 
the amount garnished to reflect the debtor's financial condition. The 
agency will notify the employer of any adjustments to the amounts to be 
withheld.
    (l) Ending garnishment. (1) Once the agency has fully recovered the 
amounts owed by the debtor, including interest, penalties, and 
administrative costs consistent with the FCCS, the agency shall send the 
debtor's employer notification to discontinue wage withholding.
    (2) At least annually, an agency shall review its debtors' accounts 
to ensure that accounts that have been paid in full are no longer 
subject to garnishment.
    (m) Actions prohibited by the employer. An employer may not 
discharge, refuse to employ, or take disciplinary action against the 
debtor due to the issuance of a withholding order under this section.
    (n) Refunds. (1) If a hearing official, at a hearing held pursuant 
to paragraph (f)(2) of this section, determines that a debt is not 
legally due and owing to the United States, the agency shall promptly 
refund any amount collected by means of administrative wage garnishment.
    (2) Unless required by Federal law or contract, refunds under this 
section shall not bear interest.
    (o) Right of action. The agency may sue any employer for any amount 
that the employer fails to withhold from wages owed and payable to an 
employee in accordance with paragraphs (g) and (i) of this section. 
However, a suit may not be filed before the termination of the 
collection action involving a particular debtor, unless earlier filing 
is necessary to avoid expiration of any applicable statute of 
limitations period. For purposes of this section, ``termination of the 
collection action'' occurs when the agency has terminated collection 
action in accordance with the FCCS or other applicable standards. In any 
event, termination of the collection action will be deemed to have 
occurred if the agency has not received any payments to satisfy the debt 
from the particular debtor whose wages were subject to garnishment, in 
whole or in part, for a period of 1 year.



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.

[[Page 271]]


    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]



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

[[Page 272]]

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 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.

[[Page 273]]

    (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.

    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

[[Page 274]]

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-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

[[Page 275]]

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]



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.

[[Page 276]]

    (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 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

[[Page 277]]

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 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.

[[Page 278]]

    (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 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;

[[Page 279]]

    (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 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.

[[Page 280]]

    (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, 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

[[Page 281]]

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 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

[[Page 282]]

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.



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

[[Page 283]]

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 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

[[Page 284]]

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  Proactive disclosure of Department records.
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  Confidential commercial information.
16.8  Administrative appeals.
16.9  Preservation of records.
16.10  Fees.
16.11  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.

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

   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.

[[Page 285]]

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) Systems--
          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, 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.

[[Page 286]]

16.133  Exemption of Department of Justice Regional Data Exchange System 
          (RDEX), DOJ-012.
16.134  Exemption of Debt Collection Enforcement System, Justice/DOJ-
          016.
16.135  Exemptions of Executive Office for Organized Crime Drug 
          Enforcement Task Forces Systems.
16.136  Exemptions of the Department of Justice, Giglio Information 
          System, Justice/DOJ-017.

       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, 553; 28 U.S.C. 509, 510, 534; 31 
U.S.C. 3717.



  Subpart A_Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

    Source: AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, 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. The rules in this subpart 
should be read in conjunction with the text of the FOIA and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget (``OMB Guidelines''). Additionally, the 
Department's ``FOIA Reference Guide'' and its attachments contain 
information about the specific procedures particular to the Department 
with respect to making FOIA requests and descriptions of the types of 
records maintained by different Department components. This resource is 
available at http://www.justice.gov/oip/04_3.html. Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed under subpart D of part 16 as well as under 
this subpart.
    (b) As referenced in this subpart, component means each separate 
bureau, office, division, commission, service, center, or administration 
that is designated by the Department as a primary organizational entity.
    (c) The Department has a decentralized system for processing 
requests, with each component handling requests for its records.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 727, Jan. 4, 2017]



Sec. 16.2  Proactive disclosure of Department records.

    Records that are required by the FOIA to be made available for 
public inspection in an electronic format may be accessed through the 
Department's Web site at http://justice.gov/oip/04_2.html. Each 
component is responsible for determining which of its records are 
required to be made publicly available, as well as identifying 
additional records of interest to the public that are appropriate for 
public disclosure, and for posting and indexing such records. Each 
component shall ensure that its Web site of posted records and indices 
is reviewed and updated on an ongoing basis. Each component has a FOIA 
Public Liaison who can assist individuals in locating records particular 
to a component. A list of the Department's FOIA Public Liaisons is 
available at http://www.justice.gov/oip/foiacontact/index-list.html.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 727, Jan. 4, 2017]

[[Page 287]]



Sec. 16.3  Requirements for making requests.

    (a) General information. (1) The Department has a decentralized 
system for responding to FOIA requests, with each component designating 
a FOIA office to process records from that component. All components 
have the capability to receive requests electronically either through 
email or a web portal. To make a request for records of the Department, 
a requester should write directly to the FOIA office of the component 
that maintains the records being sought. A request will receive the 
quickest possible response if it is addressed to the FOIA office of the 
component that maintains the records sought. The Department's FOIA 
Reference Guide, which may be accessed as described in Sec. 16.1(a), 
contains descriptions of the functions of each component and provides 
other information that is helpful in determining where to make a 
request. Each component's FOIA office and any additional requirements 
for submitting a request to a given component are listed in Appendix I 
to this part. Part 0 of this chapter also summarizes the functions of 
each component. These references can all be used by requesters to 
determine where to send their requests within the Department.
    (2) A requester may also send requests to the FOIA/PA Mail Referral 
Unit, Justice Management Division, Department of Justice, 950 
Pennsylvania Avenue NW., Washington, DC 20530-0001, or via email to 
[email protected], or via fax to (202) 616-6695. The Mail 
Referral Unit will forward the request to the component(s) that it 
determines to be most likely to maintain the records that are sought.
    (3) A requester who is making a request for records about himself or 
herself must comply with the verification of identity provision set 
forth in subpart D of this part.
    (4) Where a request for records pertains to a third party, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or by 
submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, each component can require a requester to supply additional 
information if necessary in order to verify that a particular individual 
has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable Department personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist a 
component in identifying the requested records, such as the date, title 
or name, author, recipient, subject matter of the record, case number, 
file designation, or reference number. Requesters should refer to 
Appendix I to this part for additional, component-specific requirements. 
In general, requesters should include as much detail as possible about 
the specific records or the types of records that they are seeking. 
Before submitting their requests, requesters may contact the component's 
FOIA contact or FOIA Public Liaison to discuss the records they are 
seeking and to receive assistance in describing the records. If after 
receiving a request a component determines that it does not reasonably 
describe the records sought, the component shall inform the requester 
what additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the component's designated 
FOIA contact, its FOIA Public Liaison, or a representative of the Office 
of Information Policy (``OIP''), each of whom is available to assist the 
requester in reasonably describing the records sought. If a request does 
not reasonably describe the records sought, the agency's response to the 
request may be delayed.



Sec. 16.4  Responsibility for responding to requests.

    (a) In general. Except in the instances described in paragraphs (c) 
and (d) of this section, the component that first receives a request for 
a record and

[[Page 288]]

maintains 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 that it begins its search. If any other date is used, the 
component shall inform the requester of that date. A record that is 
excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), 
is not considered responsive to a request.
    (b) Authority to grant or deny requests. The head of a component, or 
designee, is authorized to grant or to deny any requests for records 
that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA 
office determines that a request was misdirected within the Department, 
the receiving component's FOIA office shall route the request to the 
FOIA office of the proper component(s).
    (d) Consultation, referral, and coordination. When reviewing records 
located by a component in response to a request, the component 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. As to any such record, the component shall 
proceed in one of the following ways:
    (1) Consultation. When records originated with the component 
processing the request, but contain within them information of interest 
to another component, agency, or other Federal Government office, the 
component processing the request should typically consult with that 
other component or agency prior to making a release determination.
    (2) Referral. (i) When the component processing the request believes 
that a different component, agency, or other Federal Government office 
is best able to determine whether to disclose the record, the component 
typically should refer the responsibility for responding to the request 
regarding that record, as long as the referral is to a component or 
agency that is subject to the FOIA. Ordinarily, the component or agency 
that originated the record will be presumed to be best able to make the 
disclosure determination. However, if the component processing the 
request and the originating component or agency jointly agree that the 
former is in the best position to respond regarding the record, then the 
record may be handled as a consultation.
    (ii) Whenever a component refers any part of the responsibility for 
responding to a request to another component or agency, it shall 
document the referral, maintain a copy of the record that it refers, and 
notify the requester of the referral and inform the requester of the 
name(s) of the component or agency to which the record was referred, 
including that component's or agency's FOIA contact information,
    (3) Coordination. The standard referral procedure is not appropriate 
where disclosure of the identity of the component or agency to which the 
referral would be made could harm an interest protected by an applicable 
exemption, such as the exemptions that protect personal privacy or 
national security interests. For example, if a non-law enforcement 
component responding to a request for records on a living third party 
locates within its files records originating with a law enforcement 
agency, and if the existence of that law enforcement interest in the 
third party was not publicly known, then to disclose that law 
enforcement interest could cause an unwarranted invasion of the personal 
privacy of the third party. Similarly, if a component locates within its 
files material originating with an Intelligence Community agency, and 
the involvement of that agency in the matter is classified and not 
publicly acknowledged, then to disclose or give attribution to the 
involvement of that Intelligence Community agency could cause national 
security harms. In such instances, in order to avoid harm to an interest 
protected by an applicable exemption, the component that received the 
request should coordinate with the originating component or agency to 
seek its views on the disclosability of the record. The release 
determination for the record that is the subject of the coordination 
should then be conveyed to the requester by the component that 
originally received the request.

[[Page 289]]

    (e) Classified information. On receipt of any request involving 
classified information, the component shall determine whether the 
information is currently and properly classified and take appropriate 
action to ensure compliance with part 17 of this title. Whenever a 
request involves a record containing information that has been 
classified or may be appropriate for classification by another component 
or agency under any applicable 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, or that 
should consider the information for classification. Whenever a 
component's record contains information that has been derivatively 
classified (for example, when it contains information classified by 
another component or agency), the component shall refer the 
responsibility for responding to that portion of the request to the 
component or agency that classified the underlying information.
    (f) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Department will be handled 
according to the date that the FOIA request initially was received by 
the first component or agency.
    (g) Agreements regarding consultations and referrals. Components may 
establish agreements with other components or agencies to eliminate the 
need for consultations or referrals with respect to particular types of 
records.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 727, Jan. 4, 2017]



Sec. 16.5  Timing of responses to requests.

    (a) In general. Components ordinarily will respond to requests 
according to their order of receipt. Appendix I to this part contains 
the list of the Department components that are designated to accept 
requests. In instances involving misdirected requests that are re-routed 
pursuant to Sec. 16.4(c), the response time will commence on the date 
that the request is received by the proper component's office that is 
designated to receive requests, but in any event not later than 10 
working days after the request is first received by any component's 
office that is designated by these regulations to receive requests.
    (b) Multitrack processing. All components must designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. A 
component may also designate additional processing tracks that 
distinguish between simple and more complex requests based on the 
estimated amount of work or time needed to process the request. Among 
the factors a component may consider are the number of pages involved in 
processing the request and the need for consultations or referrals. 
Components shall advise requesters of the track into which their request 
falls and, when appropriate, shall offer the requesters an opportunity 
to narrow their request so that it can be placed in a different 
processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the component extends the time limit on that 
basis, the component shall, before expiration of the 20-day period to 
respond, notify the requester in writing of the unusual circumstances 
involved and of the date by which processing of the request can be 
expected to be completed. Where the extension exceeds 10 working days, 
the component shall, as described by the FOIA, provide the requester 
with an opportunity to modify the request or arrange an alternative time 
period for processing. The component shall make available its designated 
FOIA contact and its FOIA Public Liaison for this purpose. The component 
must also alert requesters to the availability of the Office of 
Government Information Services to provide dispute resolution services.
    (d) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, components may aggregate requests in cases 
where it reasonably appears that multiple requests, submitted either by 
a requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve

[[Page 290]]

unusual circumstances. Components shall not aggregate multiple requests 
that involve unrelated matters.
    (e) Expedited processing. (1) Requests and appeals shall be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing 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 who is 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 exist possible questions about the government's integrity that 
affect public confidence.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (e)(1)(i), (ii), and (iii) of this section 
must be submitted to the component that maintains the records requested. 
When making a request for expedited processing of an administrative 
appeal, the request should be submitted to OIP. Requests for expedited 
processing that are based on paragraph (e)(1)(iv) of this section must 
be submitted to the Director of Public Affairs at the Office of Public 
Affairs, Department of Justice, 950 Pennsylvania Avenue NW., Washington, 
DC 20530-0001. A component that receives a misdirected request for 
expedited processing under the standard set forth in paragraph 
(e)(1)(iv) of this section shall forward it immediately to the Office of 
Public Affairs for its determination. The time period for making the 
determination on the request for expedited processing under paragraph 
(e)(1)(iv) of this section shall commence on the date that the Office of 
Public Affairs receives the request, provided that it is routed within 
10 working days.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency to 
inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, a component may waive 
the formal certification requirement.
    (4) A component shall notify the requester within 10 calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request shall be given priority, placed in the 
processing track for expedited requests, 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.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 727, Jan. 4, 2017]



Sec. 16.6  Responses to requests.

    (a) In general. Components should, to the extent practicable, 
communicate with requesters having access to the Internet using 
electronic means, such as email or web portal.
    (b) Acknowledgments of requests. A component shall acknowledge the 
request and assign it an individualized tracking number if it will take 
longer than 10 working days to process. Components shall include in the 
acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their requests.
    (c) Grants of requests. Once a component makes a determination to 
grant a request in full or in part, it shall notify the requester in 
writing. The component also shall inform the requester of

[[Page 291]]

any fees charged under Sec. 16.10 and shall disclose the requested 
records to the requester promptly upon payment of any applicable fees. 
The component must inform the requester of the availability of the FOIA 
Public Liaison to offer assistance.
    (d) 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, include decisions that: the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject to 
the FOIA; the requested record does not exist, cannot be located, or has 
been destroyed; or the requested record is not readily reproducible in 
the form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (e) Content of denial. The denial shall be signed by the head of the 
component, or designee, and shall include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the component in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are 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. 16.8(a), 
and a description of the requirements set forth therein.
    (5) A statement notifying the requester of the assistance available 
from the component's FOIA Public Liaison and the dispute resolution 
services offered by the Office of Government Information Services.
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
shall be marked to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted shall also be indicated on the record, if 
technically feasible.
    (g) Use of record exclusions. (1) In the event that a component 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component must 
confer with OIP to obtain approval to apply the exclusion.
    (2) Any component invoking an exclusion shall maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 727, Jan. 4, 2017]



Sec. 16.7  Confidential commercial information.

    (a) Definitions. (1) Confidential commercial 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, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides information, either directly or 
indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of submission or 
within a reasonable time thereafter, any portion of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations shall expire 10 years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) A component shall 
promptly provide written notice to a submitter of confidential 
commercial information

[[Page 292]]

whenever records containing such information are requested under the 
FOIA if, after reviewing the request, the responsive records, and any 
appeal by the requester, the component determines that it may be 
required to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The component has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from disclosure 
under that exemption or any other applicable exemption.
    (2) The notice shall either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, notice may be made by posting or publishing the 
notice in a place or manner reasonably likely to accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) The component determines that the information is exempt under 
the FOIA;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall give the submitter written notice of any final 
decision to disclose the information and must provide that notice within 
a reasonable number of days prior to a specified disclosure date.
    (e) Opportunity to object to disclosure. (1) A component shall 
specify a reasonable time period within which the submitter must respond 
to the notice referenced above. If a submitter has any objections to 
disclosure, it should provide the component a detailed written statement 
that specifies all grounds for withholding the particular information 
under any exemption of the FOIA. In order to rely on Exemption 4 as 
basis for nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is privileged or confidential.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received by the component 
after the date of any disclosure decision shall not be considered by the 
component. Any information provided by a submitter under this subpart 
may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. A component shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether to 
disclose the requested information.
    (g) Notice of intent to disclose. Whenever a component decides to 
disclose information over the objection of a submitter, the component 
shall provide the submitter written notice, which shall include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial information, 
the component shall promptly notify the submitter.
    (i) Requester notification. The component shall notify a requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.

[[Page 293]]



Sec. 16.8  Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to OIP. The contact information for OIP is 
contained in the FOIA Reference Guide, which is available at http://
www.justice.gov/oip/04_3.html. Appeals can be submitted through the web 
portal accessible on OIP's Web site. Examples of adverse determinations 
are provided in Sec. 16.6(d). The requester must make the appeal in 
writing and to be considered timely it must be postmarked, or in the 
case of electronic submissions, transmitted, within 90 calendar days 
after the date of the response. The appeal should clearly identify the 
component's determination that is being appealed and the assigned 
request number. To facilitate handling, the requester should mark both 
the appeal letter and envelope, or subject line of the electronic 
transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Director of OIP or designee 
will act on behalf of the Attorney General on all appeals under this 
section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, OIP 
shall take appropriate action to ensure compliance with part 17 of this 
title.
    (c) Decisions on appeals. A decision on an appeal must be made in 
writing. A decision that upholds a component's determination will 
contain a statement that identifies the reasons for the affirmance, 
including any FOIA exemptions applied. The decision will provide the 
requester with notification of the statutory right to file a lawsuit and 
will inform the requester of the mediation services offered by the 
Office of Government Information Services of the National Archives and 
Records Administration as a non-exclusive alternative to litigation. If 
a component's decision is remanded or modified on appeal, the requester 
will be notified of that determination in writing. The component will 
thereafter further process the request in accordance with that appeal 
determination and respond directly to the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If a component agrees to participate 
in the mediation services provided by the Office of Government 
Information Services, it will actively engage as a partner to the 
process in an attempt to resolve the dispute.
    (e) When appeal is required. Before seeking review by a court of a 
component's adverse determination, a requester generally must first 
submit a timely administrative appeal.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 728, Jan. 4, 2017]



Sec. 16.9  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 
pursuant to title 44 of the United States Code or the General Records 
Schedule 14 of the National Archives and Records Administration. Records 
shall not be disposed of or destroyed while they are the subject of a 
pending request, appeal, or lawsuit under the FOIA.



Sec. 16.10  Fees.

    (a) In general. Components shall charge for processing requests 
under the FOIA in accordance with the provisions of this section and 
with the OMB Guidelines. In order to resolve any fee issues that arise 
under this section, a component may contact a requester for additional 
information. Components shall ensure that searches, review, and 
duplication are conducted in the most efficient and the least expensive 
manner. A component ordinarily will collect all applicable fees before 
sending copies of 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 is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests

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through litigation. A component's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information.
    (2) Direct costs are those expenses that an agency incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility.
    (3) Duplication is reproducing 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, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with the requester's role at the 
educational institution. Components may seek assurance from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
    Example 1. A request from a professor of geology at a university for 
records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of geology seeking drug 
information from the Food and Drug Administration in furtherance of a 
murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional stationery.
    Example 3. A student who makes a request in furtherance of the 
student's coursework or other school-sponsored activities and provides a 
copy of a course syllabus or other reasonable documentation to indicate 
the research purpose for the request, would qualify as part of this fee 
category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as 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. A requester in this category 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are sought to 
further scientific research and are not for a commercial use.
    (6) Representative of the news media is any person or entity that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. 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 that broadcast ``news'' to the 
public at large and publishers of periodicals that disseminate ``news'' 
and make their products available through a variety of means to the 
general public, including news organizations that disseminate solely on 
the Internet. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity shall be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, components 
shall also consider a requester's past publication record in making this 
determination.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review

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time also includes time spent both obtaining and considering any formal 
objection to disclosure made by a confidential commercial information 
submitter under Sec. 16.7, but it does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging 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. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, components should not add any additional costs to 
charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. Search fees shall be charged for 
all other requesters, subject to the restrictions of paragraph (d) of 
this section. Components may properly charge for time spent searching 
even if they do not locate any responsive records or if they determine 
that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require new 
programming, the fees shall be as follows: professional--$10.00; and 
clerical/administrative--$4.75.
    (iii) Requesters shall be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters shall be notified of 
the costs associated with creating such a program and must agree to pay 
the associated costs before the costs may be incurred.
    (iv) For requests that require the retrieval of records stored by an 
agency at a Federal records center operated by the National Archives and 
Records Administration (NARA), additional costs shall be charged in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.
    (2) Duplication. Duplication fees shall be charged to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. A component shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily reproducible 
by the component in the form or format requested. Where photocopies are 
supplied, the component shall provide one copy per request at a cost of 
five cents per page. For copies of records produced on tapes, disks, or 
other media, components shall charge the direct costs of producing the 
copy, including operator time. Where paper documents must be scanned in 
order to comply with a requester's preference to receive the records in 
an electronic format, the requester shall pay the direct costs 
associated with scanning those materials. For other forms of 
duplication, components shall charge the direct costs.
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record, i.e., the review conducted by a 
component to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with a component's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
fees. Review fees shall be charged at the same rates as those charged 
for a search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) No search fees will be 
charged for requests by educational institutions (unless the records are 
sought for a commercial use), noncommercial scientific institutions, or 
representatives of the news media.
    (2) If a component fails to comply with the FOIA's time limits in 
which to respond to a request, it may not

[[Page 296]]

charge search fees, or, in the instances of requests from requesters 
described in paragraph (d)(1) of this section, may not charge 
duplication fees, except as described in paragraphs (d)(2)(i) through 
(iii) of this section.
    (i) If a component has determined that unusual circumstances as 
defined by the FOIA apply and the agency provided timely written notice 
to the requester in accordance with the FOIA, a failure to comply with 
the time limit shall be excused for an additional 10 days.
    (ii) If a component has determined that unusual circumstances as 
defined by the FOIA apply, and more than 5,000 pages are necessary to 
respond to the request, the component may charge search fees, or, in the 
case of requesters described in paragraph (d)(1) of this section, may 
charge duplication fees if the following steps are taken. The component 
must have provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the component must have 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the requester 
could effectively limit the scope of the request in accordance with 5 
U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component 
may charge all applicable fees incurred in the processing of the 
request.
    (iii) If a court has determined that exceptional circumstances exist 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, 
components shall provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under paragraph (c) of this section is $25.00 or less for any request, 
no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When a 
component determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the component shall 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review or duplication, 
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 accordingly. If the 
requester is a noncommercial use requester, the notice shall specify 
that the requester is entitled to the statutory entitlements of 100 
pages of duplication at no charge and, if the requester is charged 
search fees, two hours of search time at no charge, and shall advise the 
requester whether those entitlements have been provided.
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. Components are not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the component estimates that the total 
fee will exceed that amount, the component shall toll the processing of 
the request when it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The component shall inquire whether the requester wishes to revise the 
amount of fees the requester is

[[Page 297]]

willing to pay or modify the request. Once the requester responds, the 
time to respond will resume from where it was at the date of the 
notification.
    (4) Components shall make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if a component chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same document, 
or sending records by means other than first class mail.
    (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 shall be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the component. Components shall 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.
    (h) Aggregating requests. When a component reasonably believes that 
a requester or a group of requesters acting in concert is attempting to 
divide a single 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. For 
requests separated by a longer period, components will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters shall not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) or (i)(3) of this section, a component shall not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When a component determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. A component may 
elect to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with 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 calendar days of 
the billing date, a component may require that the requester pay the 
full amount due, plus any applicable interest on that prior request, and 
the component may require that the requester 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 or any 
pending appeal. Where a component has a reasonable basis to believe that 
a requester has misrepresented the requester's identity in order to 
avoid paying outstanding fees, it may require that the requester provide 
proof of identity.
    (4) In cases in which a component requires advance payment, the 
request shall not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the component's fee determination, the request will be closed.
    (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. In instances where records responsive to a request are 
subject to a statutorily-based fee schedule program, the component shall 
inform the requester of the contact information for that program.

[[Page 298]]

    (k) Requirements for waiver or reduction of fees. (1) Requesters may 
seek a waiver of fees by submitting a written application demonstrating 
how disclosure of the requested information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in the commercial interest of the requester.
    (2) A component must furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. In 
deciding whether this standard is satisfied the component must consider 
the factors described in paragraphs (k)(2)(i) through (iii) of this 
section:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure of 
information that already is in the public domain, in either the same or 
a substantially identical form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (B) 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 as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. Components will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, components will consider the following criteria:
    (A) Components must identify whether the requester has any 
commercial interest that would be furthered by the requested disclosure. 
A commercial interest includes any commercial, trade, or profit 
interest. Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the component 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. Components ordinarily will presume that when a 
news media requester has satisfied the requirements of paragraphs 
(k)(2)(i) and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (3) 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.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the component and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester shall be required to pay any costs incurred up

[[Page 299]]

to the date the fee waiver request was received.

[AG Order No. 3517-2015, 80 FR 18106, Apr. 3, 2015, as amended by AG 
Order 3803-2016, 82 FR 728, Jan. 4, 2017]



Sec. 16.11  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 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 Secs. 16.24 and 16.25 of this 
part.
    (b) Whenever a demand is made upon an employee or former employee as 
described in paragraph (a) of this section, the employee shall 
immediately notify the U.S. Attorney for the district where the issuing 
authority is located. The responsible United States Attorney shall 
follow procedures set forth in Sec. 16.24 of this part.
    (c) If oral testimony is sought by a demand in any case or matter in 
which the United States is not a party, an affidavit, or, if that is not 
feasible, a statement by the party seeking the testimony or by his 
attorney, setting forth a summary of the testimony sought and its 
relevance to the proceeding, must be furnished to the responsible U.S. 
Attorney. Any authorization for testimony by a present or former 
employee of the Department shall be limited to the scope of the demand 
as summarized in such statement.

[[Page 300]]

    (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 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

[[Page 301]]

material from Department files without further authorization from 
Department officials whenever possible: Provided, That, when information 
is collected, assembled, or prepared in connection with litigation or an 
investigation supervised by a division of the Department or by the 
EOUST, the Assistant Attorney General in charge of such a division or 
the Director of the EOUST may require that the originating component 
obtain the division's or the EOUST's approval before authorizing a 
responsible official to disclose such information. Prior to authorizing 
such testimony or production, however, the responsible official shall, 
through negotiation and, if necessary, appropriate motions, seek to 
limit the demand to information, the disclosure of which would not be 
inconsistent with the considerations specified in Sec. 16.26 of this 
part.
    (d)(1) In a case in which the United States is not a party, if the 
responsible U.S. attorney and the originating component disagree with 
respect to the appropriateness of demanded testimony or of a particular 
disclosure, or if they agree that such testimony or such a disclosure 
should not be made, they shall determine if the demand involves 
information that was collected, assembled, or prepared in connection 
with litigation or an investigation supervised by a division of this 
Department or the EOUST. If so, the U.S. attorney shall notify the 
Director of the EOUST or the Assistant Attorney General in charge of the 
division responsible for such litigation or investigation, who may:
    (i) Authorize personally or through a Deputy Assistant Attorney 
General, the demanded testimony or other disclosure of the information 
if such testimony or other disclosure, in the Assistant or Deputy 
Assistant Attorney General's judgment or in the judgment of the Director 
of the EOUST, is consistent with the factors specified in Sec. 16.26(a) 
of this part, and none of the factors specified in Sec. 16.26(b) of this 
part exists with respect to the demanded disclosure;
    (ii) Authorize, personally or by a designee, the responsible 
official, through negotiations and, if necessary, appropriate motions, 
to seek to limit the demand to matters, the disclosure of which, through 
testimony or documents, considerations specified in Sec. 16.26 of this 
part, and otherwise to take all appropriate steps to limit the scope or 
obtain the withdrawal of a demand; or
    (iii) If, after all appropriate steps have been taken to limit the 
scope or obtain the withdrawal of a demand, the Director of the EOUST or 
the Assistant or Deputy Assistant Attorney General does not authorize 
the demanded testimony or other disclosure, refer the matter, personally 
or through a Deputy Assistant Attorney General, for final resolution to 
the Deputy or Associate Attorney General, as indicated in Sec. 16.25 of 
this part.
    (2) If the demand for testimony or other disclosure in such a case 
does not involve information that was collected, assembled, or prepared 
in connection with litigation or an investigation supervised by a 
division of this Department, the originating component shall decide 
whether disclosure is appropriate, except that, when especially 
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

[[Page 302]]

unable to resolve a disagreement concerning disclosure, the Assistant 
Attorneys General in charge of the two divisions in disagreement, or the 
Director of the EOUST and the appropriate Assistant Attorney General, 
may refer the matter to the Deputy or Associate Attorney General, as 
indicated in Sec. 16.25(b) of this part.
    (f) In any case or matter in which the responsible official and the 
originating component agree that it would not be appropriate to 
authorize testimony or otherwise to disclose the information demanded, 
even if a court were so to require, no Department attorney responding to 
the demand should make any representation that implies that the 
Department would, in fact, comply with the demand if directed to do so 
by a court. After taking all appropriate steps in such cases to limit 
the scope or obtain the withdrawal of a demand, the responsible official 
shall refer the matter to the Deputy or Associate Attorney General, as 
indicated in Sec. 16.25 of this part.
    (g) In any case or matter in which the Attorney General is 
personally involved in the claim of privilege, the responsible official 
may consult with the Attorney General and proceed in accord with the 
Attorney General's instructions without subsequent review by the Deputy 
or Associate Attorney General.



Sec. 16.25  Final action by the Deputy or Associate Attorney General.

    (a) Unless otherwise indicated, all matters to be referred under 
Sec. 16.24 by an Assistant Attorney General, the Director of the EOUST, 
or such person's designees to the Deputy or Associate Attorney General 
shall be referred (1) to the Deputy Attorney General, if the matter is 
referred personally by or through the designee of an Assistant Attorney 
General who is within the general supervision of the Deputy Attorney 
General, or (2) to the Associate Attorney General, in all other cases.
    (b) All other matters to be referred under Sec. 16.24 to the Deputy 
or Associate Attorney General shall be referred (1) to the Deputy 
Attorney General, if the originating component is within the supervision 
of the Deputy Attorney General or is an independent agency that, for 
administrative purposes, is within the Department of Justice, or (2) to 
the Associate Attorney General, if the originating component is within 
the supervision of the Associate Attorney General.
    (c) Upon referral, the Deputy or Associate Attorney General shall 
make the final decision and give notice thereof to the responsible 
official and such other persons as circumstances may warrant.



Sec. 16.26  Considerations in determining whether production or disclosure should be made pursuant to a demand.

    (a) In deciding whether to make disclosures pursuant to a demand, 
Department officials and attorneys should consider:
    (1) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose, and
    (2) Whether disclosure is appropriate under the relevant substantive 
law concerning privilege.
    (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)

[[Page 303]]

through (b)(6) of this section, the Deputy or Associate Attorney General 
will authorize disclosure unless, in that person's judgment, after 
considering paragraph (a) of this section, disclosure is unwarranted. 
The Deputy or Associate Attorney General will not approve disclosure if 
the circumstances specified in paragraphs (b)(1) through (b)(3) of this 
section exist. The Deputy or Associate Attorney General will not approve 
disclosure if any of the conditions in paragraphs (b)(4) through (b)(6) 
of this section exist, unless the Deputy or Associate Attorney General 
determines that the administration of justice requires disclosure. In 
this regard, if disclosure is necessary to pursue a civil or criminal 
prosecution or affirmative relief, such as an injunction, consideration 
shall be given to:
    (1) The seriousness of the violation or crime involved,
    (2) The past history or criminal record of the violator or accused,
    (3) The importance of the relief sought,
    (4) The importance of the legal issues presented,
    (5) Other matters brought to the attention of the Deputy or 
Associate Attorney General.
    (d) Assistant Attorneys General, U.S. Attorneys, the Director of the 
EOUST, U.S. Trustees, and their designees, are authorized to issue 
instructions to attorneys and to adopt supervisory practices, consistent 
with this subpart, in order to help foster consistent application of the 
foregoing standards and the requirements of this subpart.



Sec. 16.27  Procedure in the event a department decision concerning
a demand is not made prior to the time a response to the demand
is required.

    If response to a demand is required before the instructions from the 
appropriate Department official are received, the responsible official 
or other Department attorney designated for the purpose shall appear and 
furnish the court or other authority with a copy of the regulations 
contained in this subpart and inform the court or other authority that 
the demand has been or is being, as the case may be, referred for the 
prompt consideration of the appropriate Department official and shall 
respectfully request the court or authority to stay the demand pending 
receipt of the requested instructions.



Sec. 16.28  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 16.27 of 
this chapter pending receipt of instructions, or if the court or other 
authority rules that the demand must be complied with irrespective of 
instructions rendered in accordance with Secs. 16.24 and 16.25 of this 
part not to produce the material or disclose the information sought, the 
employee or former employee upon whom the demand has been made shall, if 
so directed by the responsible Department official, respectfully decline 
to comply with the demand. See United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951).



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]

[[Page 304]]



   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 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

[[Page 305]]

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.



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

[[Page 306]]

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 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.

[[Page 307]]

    (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
    (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

[[Page 308]]

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 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.

[[Page 309]]

    (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 
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

[[Page 310]]

    (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.
    (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]

[[Page 311]]



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 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,

[[Page 312]]

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]



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

[[Page 313]]

existence of the investigation and would therefore be able to avoid 
detection, apprehension, or legal obligations of duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.

[Order No. 31-85, 51 FR 751, Jan. 8, 1986]



Sec. 16.71  Exemption of the Office of the Deputy Attorney General
System--limited access.

    (a) The following systems of records and exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):
    (1) Presidential Appointee Candidate Records System (JUSTICE/DAG-
006).
    (2) Presidential Appointee Records System (JUSTICE/DAG-007).
    (3) Special Candidates for Presidential Appointments Records System 
(JUSTICE/DAG-008).
    (4) Miscellaneous Attorney Personnel Records System (JUSTICE/DAG-
011).


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for a Presidential appointee or Department 
attorney position. Access could reveal the identity of the source of the 
information and constitute a breach of the promise of confidentiality on 
the part of the Department of Justice. Such breaches ultimately would 
restrict the free flow of information vital to a determination of a 
candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
in advance 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 General Files System of the Office of the Deputy Attorney 
General (JUSTICE/DAG-013) is exempt from 5 U.S.C. 552a(c)(3) and (4); 
(d); (e)(1), (2), (3) and (5); and (g).
    (d) 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

[[Page 314]]

compromise ongoing investigations, reveal confidential informants and/or 
sensitive investigative techniques used in particular investigations, or 
constitute unwarranted invasions of the personal privacy of third 
parties who are involved in a certain investigation. In addition, 
release of records from the General Files System may reveal information 
that is properly classified pursuant to Executive Order 12356, and 
thereby cause damage to the national security. Amendment of the records 
in either of these systems would interfere with ongoing law enforcement 
proceedings and impose an impossible administrative burden by requiring 
law enforcement investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede any investigative process, whether civil or criminal, if it 
were necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and may therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) 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, as amended by Order No. 
006-2013, 78 FR 69754, Nov. 21, 2013]



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.

[[Page 315]]

In addition, release of these records may reveal information that is 
properly classified pursuant to Executive Order 12356, and thereby cause 
damage to the national security. Amendment of the records in this system 
would interfere with ongoing law enforcement proceedings and impose an 
impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (4) From subsections (e)(1) and (e)(5) because in the course of law 
enforcement investigations information may occasionally be obtained or 
introduced the accuracy of which is unclear or which is not strictly 
relevant or necessary to a specific investigation. In the interests of 
effective law enforcement, it is appropriate to retain all information 
that may aid in establishing patterns of criminal activity. Moreover, it 
would impede any investigative process, whether civil or criminal, if it 
were necessary to assure the relevance, accuracy, timeliness and 
completeness of all information obtained.
    (5) From subsection (e)(2) because in a law enforcement 
investigation the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be informed of the existence of the investigation 
and may therefore be able to avoid detection, apprehension, or legal 
obligations or duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (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

[[Page 316]]

access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (5) From subsection (g) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (c) The following system of records is exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):
    (1) U.S. Judges Records System (JUSTICE/OLP-002).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (d) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contracted who, 
without an assurance of anonymity, refuse to provide information 
concerning a candidate for a judgeship. Access could reveal the identity 
of the source of the information and constitute a breach of the promised 
confidentiality on the part of the Department. Such breaches ultimately 
would restrict the free flow of information vital to the determination 
of a candidate's qualifications and suitability.
    (2) From subsection (e)(1) because in the collection of information 
for investigative and evaluative purposes, it is impossible to determine 
advance what exact information may be of assistance in determining the 
qualifications and suitability of a candidate. Information which may 
seem irrelevant, when combined with other seemingly irrelevant 
information, can on occasion provide a composite picture of a candidate 
which assists in determining whether that 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

[[Page 317]]

existence of the investigation and would therefore be able to avoid 
detection, apprehension, or legal obligations and duties.
    (6) From subsection (e)(3) because to comply with the requirements 
of this subsection during the course of an investigation could impede 
the information gathering process, thus hampering the investigation.
    (7) From subsections (e)(4) (G) and (H) because this system is 
exempt from the access provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (8) From subsection (g) because this system is exempt from the 
access and amendment provisions of subsection (d) pursuant to 
subsections (j) and (k) of the Privacy Act.
    (g) The following system of records is exempt from 5 U.S.C. 552a 
(c)(3) and (4); (d); (e)(1), (2) and (3), (e)(4)(G) and (H), (e)(5); and 
(g):
    (1) Declassification Review System (JUSTICE/OLP-004).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552(j)(2), (k)(1), 
(k)(2), and (k)(5).
    (h) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because making available to a record 
subject the accounting of disclosures from records concerning him/her 
would reveal investigative interest on the part of the Department of 
Justice as well as the recipient agency. This would permit record 
subjects to impede the investigation e.g., destroy evidence, intimidate 
potential witnesses, or flee 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

[[Page 318]]

(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:
    (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

[[Page 319]]

interfere with or adversely affect the law enforcement process, and/or 
where it may be appropriate to permit individuals to contest the 
accuracy of the information collected, e.g., public source materials, 
the applicable exemption may be waived, either partially or totally, by 
the Office of the Inspector General (OIG).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIG, but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the investigation, release could result in the 
destruction of documentary evidence, improper influencing of witnesses, 
endangerment of the physical safety of confidential sources, witnesses, 
and law enforcement personnel, the fabrication of testimony, flight of 
the subject from the area, and other activities that could impede or 
compromise the investigation. In addition, accounting for each 
disclosure could result in the release of properly classified 
information which would compromise the national defense or disrupt 
foreign policy.
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsections (j) and (k) 
of the Privacy Act.
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation, of the existence of that 
investigation; of the nature and scope of the information and evidence 
obtained as to his activities; of the identity of confidential sources, 
witnesses, and law enforcement personnel, and of information that may 
enable the subject to avoid detection or apprehension. These factors 
would present a serious impediment to effective law enforcement where 
they prevent the successful completion of the investigation, endanger 
the physical safety of confidential sources, witnesses, and law 
enforcement personnel, and/or lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, granting access to such information could disclose 
security-sensitive or confidential business information or information 
that would constitute an unwarranted invasion of the personal privacy of 
third parties. Finally, access to the records could result in the 
release of properly classified information which would compromise the 
national defense or disrupt foreign policy. Amendment of the records 
would interfere with ongoing investigations and law enforcement 
activities and impose an impossible administrative burden by requiring 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with 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

[[Page 320]]

be supplied to an investigator which relates to matters incidental to 
the primary purpose of the investigation but which may relate also to 
matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated.
    (5) From subsection (e)(2) because, in some instances, the 
application of this provision would present a serious impediment to law 
enforcement for the following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts, violations of rules of conduct, or 
any other misconduct must be obtained from other sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful litigation.
    (6) From subsection (e)(3) because the application of this provision 
would provide the subject of an investigation with substantial 
information which could impede or compromise the investigation. 
Providing such notice to a subject of an investigation could interfere 
with an undercover investigation by revealing its existence, and could 
endanger the physical safety of confidential sources, witnesses, and 
investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In the 
collection of information for law enforcement purposes, it is impossible 
to determine in advance what information is accurate, relevant, timely, 
and complete. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
an investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, and 
thereby impede effective law enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2) and (k)(1) and (k)(2) of the Privacy Act.
    (c) The following system of records is exempted from 5 U.S.C. 
552a(d).
    (1) Office of the Inspector General, Freedom of Information/Privacy 
Acts (FOI/PA) Records (JUSTICE/OIG-003).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(1), 
and (k)(2). To the extent that information in a record pertaining to an 
individual does not relate to official Federal investigations and law 
enforcement matters, the exemption does not apply. In addition, 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

[[Page 321]]

sources, witnesses, and law enforcement personnel, and/or lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony. In addition, granting access to such 
information could disclose security-sensitive or confidential business 
information or information that would constitute an unwarranted invasion 
of the personal privacy of third parties. Finally, access to the records 
could result in the release of properly classified information which 
would compromise the national defense or disrupt foreign policy. 
Amendment of the records would interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated.
    (2) [Reserved]

[Order No. 63-92, 57 FR 8263, Mar. 9, 1992, as amended by Order No. 64-
92, 57 FR 8263, Mar. 9, 1992]



Sec. 16.76  Exemption of Justice Management Division.

    (a) The following system of records is exempt from 5 U.S.C. 552a(d):
    (1) Controlled Substances Act Nonpublic Records (JUSTICE/JMD-002).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (b) Exemption from subsection (d) is justified for the following 
reasons:
    (1) 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.

[[Page 322]]

    (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 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,

[[Page 323]]

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 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.

[[Page 324]]

    (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]



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

[[Page 325]]

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 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,

[[Page 326]]

apprehension or legal obligations and duties.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life and physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these systems of 
records are exempt from individual access pursuant to subsections (j) 
and (k) of the Privacy Act of 1974.
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the United States 
Attorneys' ability to issue subpoenas and could reveal investigative 
techniques and procedures.
    (10) From subsection (f) because these systems of records have been 
exempted from the access provisions of subsection (d).
    (11) From subsection (g) because these systems of records are 
compiled for law enforcement purposes and have been exempted from the 
access provisions of subsections (d) and (f).
    (c) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2) and (3), (e)(4) (G) and (H), (e) (5) and 
(8), (f), and (g):
    (1) Freedom of Information Act/Privacy Act Files (JUSTICE/USA-008)


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1) and (k)(2).
    (d) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting would permit the subject of a criminal investigation and/or 
civil case or matter under investigation, in litigation, or under 
regulatory or administrative review or action to obtain valuable 
information concerning the nature of that investigation, case or matter, 
and present a serious impediment to law enforcement or civil legal 
activities.
    (2) From subsection (c)(4) because an exemption is being claimed for 
subsection (d) of the Act (Access to 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

[[Page 327]]

provide valuable leads for other agencies and future cases that may be 
brought within the U.S. Attorneys' offices.
    (5) From subsection (e)(2) because to collect information to the 
greatest extent possible from the subject individual of a criminal 
investigation or prosecution would present a serious impediment to law 
enforcement in that the subject of the investigation would be placed on 
notice of the existence of the investigation and would therefore be able 
to avoid detection, apprehension, or legal obligations and duties.
    (6) From subsection (e)(3) because to provide individuals supplying 
information with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential investigation, reveal 
the identity of confidential sources of information, and endanger the 
life and physical safety of confidential informants.
    (7) From subsections (e)(4) (G) and (H) because this system of 
records is exempt from the individual access provisions of subsection 
(d) and the rules provisions of subsection (f).
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would inhibit the 
ability of trained investigator and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the U.S. Attorneys' ability 
to issue subpoenas and could reveal investigative techniques and 
procedures.
    (10) From subsection (f) because this system has been exempted from 
the individual access provisions of subsection (d).
    (11) From subsection (g) because the records in this system are 
generally compiled for law enforcement purposes and are exempt from the 
access provisions of subsections (d) and (f), rendering subsection (g) 
inapplicable.
    (e) The following systems of records are exempt from 5 U.S.C. 
552a(d)(1) and (e)(1):
    (1) Assistant U.S. Attorneys Applicant Records System (JUSTICE/USA-
016).
    (2) Appointed Assistant U.S. Attorneys Personnel System (JUSTICE/
USA-017).


These exemptions apply only to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (f) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (d)(1) because many persons are contacted who, 
without an assurance of anonymity, refuse 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)-(h) [Reserved]
    (i) Consistent with the legislative purpose of the Privacy Act of 
1974, the Executive Office for United States Attorneys will grant access 
to nonexempt

[[Page 328]]

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; Order No. 008-2015, 80 FR 34051, June 15, 2015]



Sec. 16.82  Exemption of the National Drug Intelligence Center Data
Base--limited access.

    (a) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4); (d); 
(e) (1), (2), and (3); (e)(4)(I); (e) (5) and (8); and (g) of 5 U.S.C. 
552a. In addition, the following system of records is exempted pursuant 
to the provisions of 5 U.S.C. 552a (k)(1) and (k)(2) from subsections 
(c)(3), (d), and (e)(1) and (e)(4)(I) of 5 U.S.C. 552a:
    (1) National Drug Intelligence Center Data Base (JUSTICE/NDIC-001).
    (2) [Reserved]
    (b) These exemptions apply only to the extent that information in 
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), 
(k)(1), and (k)(2). Where compliance would not appear to interfere with 
or adversely affect the law enforcement process, and/or where it may be 
appropriate to permit individuals to contest the accuracy of the 
information collected, e.g., public source materials, the applicable 
exemption may be waived, either partially or totally, by the National 
Drug Intelligence Center (NDIC). Exemptions from the particular 
subsections are justified for the following reasons:
    (1) From subsection (c)(3) for the same reasons that the system is 
exempted from the provisions of subsection (d).
    (2) From subsection (c)(4) because this system is exempt from the 
access provisions of subsection (d) pursuant to subsection (j)(2) of the 
Privacy Act.
    (3) From subsection (d) because disclosure to the subject could 
alert the subject of an investigation pertaining 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

[[Page 329]]

other agencies charged with the enforcement of laws and regulations 
regarding drug trafficking and charged with the acquisition of 
intelligence related to international aspects of drug trafficking. This 
consideration applies equally to information acquired from, or collated 
or analyzed for, both law enforcement agencies and agencies of the U.S. 
foreign intelligence community.
    (5) From subsection (e)(2) because application of this provision 
could present a serious impediment to law enforcement in that it would 
put the subject of an investigation, study or analysis on notice of the 
fact of such investigation, study, or analysis, thereby permitting the 
subject to engage in conduct intended to frustrate the activity; 
because, in some circumstances, the subject of an investigation may not 
be required to provide to investigators certain information; and because 
thorough analysis and investigation may require seeking information from 
a number of different sources.
    (6) From subsection (e)(3) (to the extent applicable) because the 
requirement that individuals supplying information be provided a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation and reveal the identity of confidential 
informants and endanger their lives and safety.
    (7) From subsection (e)(4)(I), to the extent that this subsection is 
interpreted to require more detail regarding the record sources in this 
system than have been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is necessary 
to protect the confidentiality of the sources of criminal and other law 
enforcement information and to protect the privacy and physical safety 
of witnesses and informants. Furthermore, greater specificity concerning 
the sources of properly classified records could compromise national 
defense or foreign policy.
    (8) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for law enforcement purposes does not permit 
advance determination whether such information is accurate or relevant, 
nor can such information be limited to that which is complete or 
apparently timely. Information of this type often requires further 
analysis and investigation to develop into a comprehensive whole that 
which is otherwise incomplete or even fragmentary. Moreover, its 
accuracy is continually subject to analysis and review, and, upon 
careful examination, seemingly irrelevant or untimely information may 
acquire added significance as additional information brings new details 
to light. The restrictions imposed by subsection (e)(5) would restrict 
the ability of trained investigators and intelligence analysts to 
exercise their judgment in collating and 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

[[Page 330]]

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 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).

[[Page 331]]

    (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.
    (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]

[[Page 332]]



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 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.

[[Page 333]]

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 
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.

[[Page 334]]

    (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 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

[[Page 335]]

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 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).''

[[Page 336]]

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 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,

[[Page 337]]

or would provide information that could enable the subject to avoid 
detection or apprehension. These factors would present a serious 
impediment to effective law enforcement because they could prevent the 
successful completion of the investigation, endanger the physical safety 
of witnesses or informants, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony.
    (4). (e)(1). The notices of these systems of records published in 
the Federal Register set forth the basic statutory or related authority 
for maintenance of this system. However, in the course of criminal or 
other law enforcement investigations, cases, and matters, the Criminal 
Division or its components will occasionally obtain information 
concerning actual or potential violations of law that are not strictly 
within its statutory or other authority or may compile information in 
the course of an investigation which may not be relevant to a specific 
prosecution. In the interests of effective law enforcement, it is 
necessary to retain such information in these systems of records since 
it can aid in establishing patterns of criminal activity and can provide 
valuable leads for federal and other law enforcement agencies.
    (5). (e)(2). In a criminal investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6). (e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (7). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsections (f) and (d).
    (8). (e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (9). (e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would restrict 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede 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

[[Page 338]]

to the successful conduct and/or completion of an investigation or 
prosecution pending or future. In addition, mere notice of the fact of 
an investigation could inform the subject or others that their 
activities are under or may become the subject of an investigation and 
could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony.
    Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules require pursuant to subsection (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (13). In addition, exemption is claimed for these systems of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in these systems are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.
    (c) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j) (2) from subsection (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e) (4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a:

Criminal Division Witness Security File System of Records(JUSTICE/CRM-
002).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (d) The system of records listed under paragraph (c) of this section 
is exempted, for the reasons set forth, from the following provisions of 
5 U.S.C. 552a:
    (1). (c)(3) The release of the disclosure accounting for disclosures 
made pursuant to subsection (b) of the Act, including those permitted 
under the routine uses published for these systems of records, would 
permit the subject of an investigation of an actual or potential 
criminal violation, which may include those protected under the Witness 
Security Program, to determine whether he is the subject of a criminal 
investigation, to obtain valuable information concerning the nature of 
that investigation and the information obtained, or the identity of 
witnesses and informants and the nature of their reports, and would 
therefore present a serious impediment to law enforcement. In addition, 
disclosure of the accounting would amount to notice to the individual of 
the existence of a record; such notice requirement under subsection 
(f)(1) is specifically exempted for these systems of records. Moreover, 
disclosure of the disclosure accounting to an individual protected under 
the Witness Security Program could jeopardize the effectiveness and 
security of the Program by revealing the methods and techniques utilized 
in relocating witnesses and could therefore jeopardize the ability to 
obtain, and to protect the confidentiality of, information compiled for 
purposes of a criminal investigation.
    (2). (c)(4) Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d) Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal violation, which may include those protected under the Witness 
Security Program, of the existence of that investigation, of the nature 
and scope of the information and evidence obtained as to his activities, 
of the identity of witnesses and informants, or would provide 
information that could enable the subject to avoid detection or 
apprehension. These factors would present a serious impediment to 
effective law enforcement because they could prevent the successful 
completion of the investigation, endanger the physical safety of 
witnesses or informants, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony. 
In addition, access to the

[[Page 339]]

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 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

[[Page 340]]

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. 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:

[[Page 341]]

    (1). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable to the 
extent that this system of records is exempted from subsection (d).
    (2). (d). The records contained in this system of records generally 
consist of information filed with the court in response to the request 
and made available to the requestor. To the extent that these records 
have been so filed, no exemption is sought from the provisions of this 
subsection. Occasionally, the records contain pertinent logs of 
intercepted communications and other investigative reports not filed 
with the court. These records must be exempted because access to such 
records could inform the subject of an investigation of an actual or 
potential criminal violation of the existence of that investigation and 
of the nature of the information and evidence obtained by the 
government. This would present a serious impediment to effective law 
enforcement because it could prevent the successful completion of the 
investigation, endanger the physical safety of witnesses or informants, 
and lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (3). Exemption is claimed from subsections (e)(4) (G), (H) and (I) 
for the reasons stated in subsections (b)(7) and (b)(8) of this section.
    (4). (f). The records contained in this system of records generally 
consist of information filed with the court and made available to the 
requestor. To the extent that these records have been so filed, no 
exemption is sought from the provisions of this subsection. 
Occasionally, the records contain pertinent logs of intercepted 
communications and other investigative reports not filed with the court. 
These records must be exempted from a requirement of notification as to 
their existence because such notice to an individual would be 
detrimental to the successful conduct and/or completion of a criminal 
investigation or prosecution pending or future. In addition, mere notice 
of the existence of such logs or investigative reports could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsection (f) (2) 
through (5) are inapplicable to the extent that this system of records 
is exempted for subsection (d).
    (6). (g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent 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

[[Page 342]]

informants, and would therefore present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would amount to 
notice to the individual of the existence of a record; such notice 
requirement under subsection (f)(1) is specifically exempted for this 
system of records.
    (2)(c)(4) Since an exemption is being claimed for subsection (d) of 
the act (access to records), this section is inapplicable to the extent 
that these systems of records are exempted from subsection (d).
    (3)(d) Access to the records contained in these systems would inform 
the subject of an investigation of an actual or potential criminal 
violation of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his activities, of 
the identity of witnesses and informants, or would provide information 
that could enable the subject to avoid detection or apprehension. These 
factors would present a serious impediment to effective law enforcement 
because they could prevent the successful completion of the 
investigation, endanger the physical safety of witnesses or informants, 
and lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony.
    (4) Exemption is claimed from subsections (e) (1), (2), and (3), 
(e)(4) (G), (H), and (I), (e)(5) and (e)(8) for the reasons stated in 
subsections (b)(4), (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), and (b)(10) 
of this section.
    (5)(f) Procedures for notice to an individual pursuant to subsection 
(f)(1) as to the existence of records pertaining to him dealing with an 
actual or potential criminal investigation or prosecution must be 
exempted because such notice to an individual would be detrimental to 
the successful conduct and/or completion of an investigation or 
prosecution pending or future. In addition, mere notice of the fact of 
an investigation could inform the subject or others that their 
activities are under or may become the subject of an investigation and 
could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony. Since an exemption is being claimed for subsection (d) of the 
act (access to records), the rules required pursuant to subsection (f) 
(2) through (5) are inapplicable to these systems of records.
    (6)(g) Since an exemption is being claimed for subsections (d) 
(access to records) and (f) (Agency rules), this section is inapplicable 
and is exempted for the reasons set forth for those subsections.
    (k) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (1), (2) and (3), (e)(4) (G), (H) and (I), (e) (5) and (8), (f) and 
(g) of 5 U.S.C. 552a; in addition, the following systems of records are 
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(1) from 
subsections (c) (3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) of 5 
U.S.C. 552a:

Organized Crime and Racketeering Section, Criminal Division, General 
Index File and Associated Records System of Records (JUSTICE/CRM-012).


These exemptions apply to the extent that information in this system is 
subject to exemption pursuant to 5 U.S.C. 552a(j)(2) and (k)(1).
    (l) The system of records listed under paragraph (m) \1\ of this 
section is exempted, for the reasons set forth, from the following 
provisions of 5 U.S.C. 552a:
---------------------------------------------------------------------------

    \1\ Paragraph (m) was redesignated as paragraph (k) at 44 FR 54046, 
Sept. 18, 1979.
---------------------------------------------------------------------------

    (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

[[Page 343]]

effective law enforcement, it is necessary to retain such information in 
this system of records since it can aid in establishing patterns of 
criminal activity and can provide valuable leads for federal and other 
law enforcement agencies.
    (3). Exemption is claimed from subsections (e) (2) and (3), (e)(4) 
(G), (H) and (I), (e) (5) and (8), (f) and (g) for the reasons stated in 
subsections (b)(5), (b)(6), (b)(7), (b)(8), (b)(9), (b)(10), (b)(11) and 
(b)(12) of this section.
    (4). In addition, exemption is claimed for this system of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
Subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f) to the 
extent that the records contained in this system are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

    (m) The following system of records is exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c) (3) and (4), (d), 
(e) (2) and (3), (e) (4) (G), (H) and (I), (e) (8), (f) and (g) of 5 
U.S.C. 552a:

Requests to the Attorney General For Approval of Applications to Federal 
Judges For Electronic Interceptions System of Records (JUSTICE/CRM-019).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (n) The system of records listed in paragraph (m) of this section is 
exempted for the reasons set forth, from the following provisions of 5 
U.S.C. 552a:
    (1). (c)(3). The release of the disclosure accounting for 
disclosures made pursuant to subsection (b) of the Act, including those 
permitted under the routine uses published for these systems of records, 
would permit the subject of an electronic interception to obtain 
valuable information concerning the interception, including information 
as to whether he is the subject of a criminal investigation, by means 
other than those provided for by statute. Such information could 
interfere with the successful conduct and/or completion of a criminal 
investigation, and would therefore present a serious impediment to law 
enforcement. In addition, disclosure of the accounting would amount to 
notice to the individual of the existence of a record; such notice 
requirement under subsection (f)(1) is specifically exempted for these 
systems of records.
    (2). (c)(4). Since an exemption is being claimed for subsection (d) 
of the Act (Access to Records) this section is inapplicable.
    (3). (d). Access to the records contained in these systems would 
inform the subject of an electronic interception of the existence of 
such surveillance including information as to whether he is the subject 
of a criminal investigation by means other than those provided for by 
statute. This could interfere with the successful conduct and/or 
completion of a criminal investigation and therefore present a serious 
impediment to law enforcement.
    (4). (e)(2). In the context of an electronic interception, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and this would therefore destroy the efficacy of the 
interception.
    (5). (e)(3). The requirement that individuals supplying information 
be provided with a form stating the requirements of subsection (e)(3) 
would constitute a serious impediment to law enforcement in that it 
could compromise the existence of a confidential electronic interception 
or reveal the identity of witnesses or confidential informants.
    (6). (e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable.
    (7). Exemption is claimed from subsections (e)(4)(I) and (e)(8) for 
the reasons stated in subsections (b)(8) and (b)(10) of this section.
    (8). (f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an electronic

[[Page 344]]

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).
    (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.

[[Page 345]]

    (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), (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

[[Page 346]]

such information since it can aid in establishing patterns of criminal 
activity and can provide valuable leads for Federal and other law 
enforcement agencies.
    (5)(e)(2). To collect information to the greatest extent practicable 
from the subject individual of a criminal investigation or prosecution 
would present a serious impediment to law enforcement. The nature of 
criminal and other investigative activities is such that vital 
information about an individual can only be obtained from other persons 
who are familiar with such individual and his/her activities. In such 
investigations it is not feasible to rely upon information furnished by 
the individual concerning his own activities.
    (6) (e)(3). To provide individuals supplying information with a form 
stating the requirements of subsection (e)(3) would constitute a serious 
impediment to law enforcement in that it could compromise the existence 
of a confidential investigation or reveal the identity of witnesses or 
confidential informants.
    (7)(e)(4) (G) and (H). These subsections are inapplicable to the 
extent that this system is exempt from the access provisions of 
subsection (d) and the rules provisions of subsection (f).
    (8)(e)(4)(I). The categories of sources of the records in this 
system have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary to 
protect the confidentiality of the sources of criminal and other law 
enforcement information. Such exemption is further necessary to protect 
the privacy and physical safety of witnesses and informants.
    (9) (e)(5). In the collection of information for criminal law 
enforcement purposes it is impossible to determine in advance what 
information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can often only be determined 
in a court of law. The restrictions of subsection (e)(5) would inhibit 
the ability of trained investigators, intelligence analysts, and 
government attorneys in exercising their judgment in reporting on 
information and investigations and impede the development of criminal or 
other intelligence necessary for effective law enforcement.
    (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

[[Page 347]]

or informants; by leading to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony; or by 
otherwise preventing the successful completion of an investigation.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
659-76, 41 FR 32423, Aug. 3, 1976; Order No. 11-78, 43 FR 38386, Aug. 
28, 1978; Order No. 30-79, 44 FR 54046, Sept. 18, 1979; Order No. 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; 
Order No. 003-2009, 74 FR 42776, Aug. 25, 2009; Order No. 006-2013, 78 
FR 69754, Nov. 21, 2013]



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 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

[[Page 348]]

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.
    (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.

[[Page 349]]

    (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 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

[[Page 350]]

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.
    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:

[[Page 351]]

    (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 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

[[Page 352]]

(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.
    (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

[[Page 353]]

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, 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

[[Page 354]]

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 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

[[Page 355]]

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 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.

[[Page 356]]

    (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.
    (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

[[Page 357]]

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 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

[[Page 358]]

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).
    (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

[[Page 359]]

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 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

[[Page 360]]

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 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

[[Page 361]]

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 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)

[[Page 362]]

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.
    (v) 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), (4)(G), 
(H), and (I), (5), and (8); (f); and (g) of the Privacy Act:
    (1) FBI Data Warehouse System, (JUSTICE/FBI-022).
    (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) and 
(k). Where compliance with an exempted provision could not appear to 
interfere with or adversely affect interests of the United States or 
other system stakeholders, the Department of Justice (DOJ) in its sole 
discretion may waive an exemption in whole or in part; exercise of this 
discretionary waiver prerogative in a particular matter shall not create 
any entitlement to or expectation of waiver in that matter or any other 
matter. As a condition of discretionary waiver, the DOJ in its sole 
discretion may impose any restrictions deemed advisable by the DOJ 
(including, but not limited to, restrictions on the location, manner, or 
scope of notice, access, or amendment).
    (w) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3), the requirement that an accounting be 
made available to the named subject of a record, 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 law enforcement 
or national security investigative interest in the individual by the FBI 
or agencies that are recipients of the disclosures. Revealing this 
information could compromise ongoing, authorized law enforcement and 
intelligence efforts, particularly efforts to identify and defuse any 
potential acts of terrorism or other potential violations of criminal 
law. Revealing this information could also permit the record subject to 
obtain valuable insight concerning the information obtained during any 
investigation and to take measures to circumvent the investigation.
    (2) From subsection (c)(4) notification requirements because this 
system is exempt from the access and amendment provisions of subsection 
(d) as

[[Page 363]]

well as the accounting of disclosures provision of subsection (c)(3).
    (3) From subsections (d)(1), (2), (3), and (4) and (e)(4)(G) and (H) 
because these provisions concern individual access to and amendment of 
law enforcement, intelligence and counterintelligence, and 
counterterrorism records, and compliance could alert the subject of an 
authorized law enforcement or intelligence activity about that 
particular activity and the investigative interest of the FBI or other 
law enforcement or intelligence agencies. Providing access could 
compromise sensitive information classified to protect national 
security; disclose information that would constitute an unwarranted 
invasion of another's personal privacy; reveal a sensitive investigative 
or intelligence technique; could provide information that would allow a 
subject to avoid detection or apprehension; or constitute a potential 
danger to the health or safety of law enforcement personnel, 
confidential sources, and witnesses. The FBI takes seriously its 
obligation to maintain accurate records despite its assertion of this 
exemption, and to the extent it, in its sole discretion, agrees to 
permit amendment or correction of FBI records, it will share that 
information in appropriate cases with subjects of the information.
    (4) From subsection (e)(1) because it is not always possible to know 
in advance what information is relevant and necessary for law 
enforcement and intelligence purposes. The relevance and utility of 
certain information that may have a nexus to terrorism or other crimes 
may not always be evident until and unless it is vetted and matched with 
other sources of information that are necessarily and lawfully 
maintained by the FBI.
    (5) From subsections (e)(2) and (3) because application of these 
provisions could present a serious impediment to efforts to solve crimes 
and improve national security. Application of these provisions would put 
the subject of an investigation on notice of that fact and allow the 
subject an opportunity to engage in conduct intended to impede that 
activity or avoid apprehension.
    (6) 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 has been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is necessary 
to protect the sources of law enforcement and intelligence information 
and to protect the privacy and safety of witnesses and informants and 
others who provide information to the FBI. Further, greater specificity 
of properly classified records could compromise national security.
    (7) From subsection (e)(5) because in the collection of information 
for authorized law enforcement and intelligence purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely and complete. With time, seemingly irrelevant or 
untimely information may acquire new significance when new details are 
brought to light. Additionally, the information may aid in establishing 
patterns of activity and providing criminal or intelligence leads. It 
could impede investigative progress if it were necessary to assure 
relevance, accuracy, timeliness and completeness of all information 
obtained during the scope of an investigation. Further, some of the 
records in this system come from other agencies and it would be 
administratively impossible for the FBI to vouch for the compliance of 
these agencies with this provision.
    (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, who might be otherwise unaware, to 
the fact of those investigations.
    (9) From subsections (f) and (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 at www.fdsys.gov.

[[Page 364]]



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 Commissary Accounts Record System (JUSTICE/BOP-006).
    (5) Inmate Physical and Mental Health Record System (JUSTICE/BOP-
007).
    (6) Inmate Safety and Accident Compensation Record System (JUSTICE/
BOP-008).
    (7) Federal Tort Claims Act Record System (JUSTICE/BOP-009).
    (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).

[[Page 365]]

    (2) From subsection (c)(4) to the extent that exemption from 
subsection (d) will make notification of corrections or notations of 
disputes inapplicable.
    (3) From the access provisions of subsection (d) to the extent that 
exemption from this subsection may appear to be necessary to prevent 
access by record subjects to information that may jeopardize the 
legitimate correctional interests of safety, security, and good order of 
Bureau of Prisons facilities; to protect the privacy of third parties; 
and to protect access to relevant information received from third 
parties, such as other Federal State, local and foreign law enforcement 
agencies, Federal and State probation and judicial offices, the 
disclosure of which may permit a record subject to evade apprehension, 
prosecution, etc.; 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

[[Page 366]]

this subsection is essential to prevent access of information by record 
subjects that may invade third party privacy; frustrate the 
investigative process; jeopardize the legitimate correctional interests 
of safety, security, and good order to prison facilities; or otherwise 
compromise, impede, or interfere with BOP or other law enforcement 
agency activities.
    (4) From the amendment provisions from subsection (d) because 
amendment of the records may interfere with law enforcement operations 
and would impose an impossible administrative burden by requiring that, 
in addition to efforts to ensure accuracy so as to withstand possible 
judicial scrutiny, it would require that law enforcement information be 
continuously reexamined, even where the information may have been 
collected from the record subject. 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

[[Page 367]]

particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
could alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of the 
investigation and the fact that they are subjects of the investigation, 
and reveal investigative interest by not only the OIA but also by the 
recipient agency. Since release of such information to the subjects of 
an investigation would provide them with significant information 
concerning the nature of the investigation, release could result in 
activities that would impede or compromise law enforcement such as: the 
destruction of documentary evidence; improper influencing of witnesses; 
endangerment of the physical safety of confidential sources, witnesses, 
and law enforcement personnel; fabrication 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

[[Page 368]]

provision would present a serious impediment to law enforcement for the 
following reasons:
    (i) The subject of an investigation would be placed on notice as to 
the existence of an investigation and would therefore be able to avoid 
detection or apprehension, to improperly influence witnesses, to destroy 
evidence, or to fabricate testimony.
    (ii) In certain circumstances the subject of an investigation cannot 
be required to provide information to investigators, and information 
relating to a subject's illegal acts, violations of rules of conduct, or 
any other misconduct must be obtained from other sources.
    (iii) In any investigation it is necessary to obtain evidence from a 
variety of sources other than the subject of the investigation in order 
to verify the evidence necessary for successful litigation.
    (6) From subsection (e)(3) because the application of this provision 
would provide the subject of an investigation with substantial 
information which could impede or compromise the investigation. 
Providing such notice to a subject of an investigation could interfere 
with an undercover investigation by revealing its existence, and could 
endanger the physical safety of confidential sources, witnesses, and 
investigators by revealing their identities.
    (7) From subsection (e)(5) because the application of this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In the 
collection of information for law enforcement purposes, it is impossible 
to determine in advance what information is accurate, relevant, timely, 
and complete. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
an investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete 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 exempt pursuant to 5 U.S.C. 
552a(j) and (k) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), 
(4)(G), (H), and (I), (5), (8); (f); and (g): 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)(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:

[[Page 369]]

    (1) From subsection (c)(3), the requirement that an accounting be 
made available to the named subject of a record, 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 the subject individual would specifically reveal any 
investigative interest in the individual. Revealing this information may 
thus compromise ongoing law enforcement efforts, as well as efforts to 
identify and defuse any potential acts of terrorism. Revealing this 
information may also permit the subject individual 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) notification requirements 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, 
compliance with which could jeopardize the legitimate correctional 
interests of safety, security, and good order of prison facilities; 
alert the subject of a suspicious activity report of the fact and nature 
of the report and any underlying investigation and/or the investigative 
interest of the BOP and other law enforcement agencies; interfere with 
the overall law enforcement process by leading to the destruction of 
evidence, improper influencing of witnesses, 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 or safety of law enforcement 
personnel, confidential informants, and witnesses. Although the BOP has 
rules in place emphasizing that records should be kept up to date, the 
requirement for amendment of these records would interfere with ongoing 
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 the proper 
safekeeping, care, and custody of incarcerated persons, and for the 
proper security and safety of federal prisons and the public. In 
addition, to the extent that the BOP may collect information that may 
also 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 such 
relevant responsibilities.
    (5) From subsections (e)(2) because the nature of criminal 
investigative and correctional 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 and 
activities, 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 subsections (e)(3) because in view of BOP's operational 
responsibilities, the application of this provision would provide the 
subject of an investigation or correctional matter with significant 
information which may in fact impede the information gathering process 
or compromise ongoing criminal investigations or correctional management 
decisions.
    (7) From subsections (e)(4)(G) and (H) because this system is exempt 
from the access provisions of subsection (d).
    (8) From subsection (e)(4)(I) because publishing further details 
regarding categories of sources of records in the system may compromise 
ongoing investigations, reveal investigatory techniques and descriptions 
of confidential informants, or constitute a potential danger to the 
health or safety of law enforcement personnel.

[[Page 370]]

    (9) From subsection (e)(5) because in the collection and maintenance 
of information for law enforcement purposes, it is difficult 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 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 courts and other state and local criminal justice 
agencies, it is administratively impossible for them and the BOP 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.
    (10) From subsection (e)(8), because to require individual notice of 
disclosure of information due to a compulsory legal process would pose 
an impossible administrative burden on BOP and may alert subjects of 
investigations, who might otherwise be unaware, to the fact of those 
investigations.
    (11) From subsection (f) to the extent that this system is exempt 
from the provisions of subsection (d).
    (12) From subsection (g) to the extent that this system is exempted 
from other provisions of the Act.
    (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

[[Page 371]]

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 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

[[Page 372]]

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 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 at www.fdsys.gov.



Sec. 16.98  Exemption of the Drug Enforcement Administration (DEA)
Systems--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 (6) 
of this section 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), (3), (5), and (8); and (g) of 5 U.S.C. 552a. In addition, 
systems of records identified in paragraphs (c)(1) through (5) of this 
section 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) Planning and Inspection Division Records (Justice/DEA-010).
    (4) Operation Files (Justice/DEA-011).
    (5) Security Files (Justice/DEA-013).
    (6) System to Retrieve Information from Drug Evidence (STRIDE/
Ballistics) (Justice/DEA-014).
    (d) Exemptions apply to the following systems of records only to the 
extent that information in the systems is subject to exemption pursuant 
to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2): Air Intelligence Program 
(Justice/DEA-001); 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 
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

[[Page 373]]

from the particular subsections is justified for the following reasons:
    (1) From subsection (c)(3) because release of disclosure accounting 
would provide to the subjects of an investigation significant 
information concerning the nature of the investigation and thus would 
present the same impediments to law enforcement as those enumerated in 
paragraph (d)(3) regarding exemption from subsection (d).
    (2) From subsection (c)(4) to the extent that it is not applicable 
because an exemption is being claimed from subsection (d).
    (3) From the access provisions of subsection (d) because access to 
records in this system of records would present a serious impediment to 
law enforcement. Specifically, it could inform the record subject of an 
actual or potential criminal, civil, or regulatory investigation of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to his activities; of the identity 
of confidential sources, witnesses, and law enforcement personnel; and 
of information that may enable the subject to avoid detection or 
apprehension. Similarly, it may alert collateral suspects yet 
unprosecuted in closed cases. It could prevent the successful completion 
of the investigation; endanger the life, health, or physical safety of 
confidential sources, witnesses, and law enforcement personnel, and/or 
lead to the improper influencing of witnesses, the destruction of 
evidence, or the fabrication of testimony; or it may simply reveal a 
sensitive investigative technique. In addition, granting access to such 
information could result in the disclosure of confidential/security-
sensitive or other information that would constitute an unwarranted 
invasion of the personal privacy of third parties. Finally, access to 
the records could result in the release of properly classified 
information which would compromise the national defense or disrupt 
foreign policy. From the amendment provisions of subsection (d) because 
amendment of the records would interfere with ongoing investigations and 
law enforcement activities and impose an impossible administrative 
burden by requiring investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) because the application of this provision 
could impair investigations and interfere with the law enforcement 
responsibilities of the DEA for the following reasons:
    (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

[[Page 374]]

a serious impediment to law enforcement in that they could compromise 
the existence of an actual or potential confidential investigation and/
or permit the record subject to speculate on the identity of a potential 
confidential source, and endanger the life, health or physical safety or 
either actual or potential confidential informants and witnesses, and of 
investigators/law enforcement personnel. In addition, the notification 
requirement of subsection (e)(3) could impede collection of that 
information from the record subject, making it necessary to collect the 
information solely from third party sources and thereby inhibiting law 
enforcement efforts.
    (7) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions imposed by subsection (e)(5) would 
restrict the ability of trained investigators and intelligence analysts 
to exercise their judgment in reporting on investigations and impede the 
development of criminal intelligence necessary for effective law 
enforcement.
    (8) From subsection (e)(8) because the application of this provision 
could prematurely reveal an ongoing criminal investigation to the 
subject of the investigation, and could reveal investigative techniques, 
procedures, or evidence.
    (9) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d) pursuant to 
subsections (j)(2), (k)(1) and (k)(2) of the Privacy Act.
    (e) The following systems of records are exempt from 5 U.S.C. 552a 
(d)(1) and (e)(1):
    (1) Grants of Confidentiality Files (GCF) (Justice/DEA-017), and
    (2) DEA Applicant Investigations (Justice/DEA-018).
    (f) These exemptions apply only to the extent that information in 
these systems is subject to exception pursuant to 5 U.S.C. 552a(k)(5). 
Exemptions from the particular subsections are justified for the 
following reasons:
    (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

[[Page 375]]

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 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

[[Page 376]]

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 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.
    (i) 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), (4)(G), 
(H), (I), (5), and (8); (f); (g); and (h): Investigative Reporting and 
Filing System (IRFS) (JUSTICE/DEA-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), (k)(1), or (k)(2). Where compliance 
would not appear to interfere with or adversely affect the law 
enforcement or counterterrorism purposes of this system, or the overall 
law enforcement process, the applicable exemption may be waived by the 
DEA in its sole discretion.
    (j) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to provide a record subject with 
an accounting of disclosure of records in this system could impede or 
compromise an ongoing investigation, interfere with a law enforcement 
activity, lead to the disclosure of properly classified information 
which could compromise the national defense or disrupt foreign policy, 
invade the privacy of a person who provides information in connection 
with a particular investigation, or result in danger to an individual's 
safety, including the safety of a law enforcement officer.
    (2) From subsection (c)(4) because this subsection is inapplicable 
to the extent that an exemption is being claimed for subsections (d)(1), 
(2), (3), and (4).
    (3) From subsection (d)(1) because disclosure of records in the 
system 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 confidential 
witnesses and informants, or of the investigative interest of the DEA; 
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

[[Page 377]]

also result in the release of information properly classified pursuant 
to Executive order, 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; would impose an impossible 
administrative burden by requiring investigations, analyses, and reports 
to be continuously reinvestigated and revised; and may impact 
information properly classified pursuant to Executive order.
    (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, an agency may occasionally obtain information, 
including information properly classified pursuant to Executive order, 
that concerns 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 investigation and 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 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) because the requirement that individuals 
supplying information be provided 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 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 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, and from subsection (e)(4)(I) to preclude 
any claims that the Department must provide more detail regarding the 
record sources for this system than the Department publishes in the 
system of records notice for this system. Exemption from providing any 
additional details about sources is necessary to preserve the security 
of sensitive law enforcement and intelligence information and to protect 
the privacy and safety of witnesses and informants and others who 
provide information to the DEA; and further, greater specificity of 
properly classified records could compromise national security.
    (10) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for criminal law enforcement purposes from 
various agencies does not 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

[[Page 378]]

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.
    (11) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
criminal law enforcement by revealing investigative techniques, 
procedures, evidence, or interest, and by interfering with the ability 
to issue warrants or subpoenas; could give persons sufficient warning to 
evade investigative efforts; and would pose an impossible administrative 
burden on the maintenance of these records and the conduct of the 
underlying investigations.
    (12) From subsections (f) and (g) because these subsections are 
inapplicable to the extent that the system is exempt from other specific 
subsections of the Privacy Act.
    (13) From subsection (h) when application of this provision could 
impede or compromise an ongoing criminal investigation, interfere with a 
law enforcement activity, reveal an investigatory technique or 
confidential source, invade the privacy of a person who provides 
information for an investigation, or endanger law enforcement personnel.

[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; CPCLO Order No. 002-2013, 78 FR 
14672, Mar. 7, 2013]



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).

[[Page 379]]

    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure pursuant to the routine uses published for 
these subsystems would permit the subject of a criminal or civil 
investigation to obtain valuable information concerning the nature of 
that investigation and present a serious impediment to law enforcement.
    (2) From subsection (c)(4) since an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (3) From subsection (d) because access to the records contained in 
these subsystems would inform the subject of a criminal or civil 
investigation of the existence of that investigation, provide the 
subject of the investigation with information that might enable him to 
avoid detection or apprehension, and present a serious impediment to law 
enforcement.
    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction. In 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal or civil 
investigation, the requirement that information be collected to the 
greatest extent possible from the subject individual would present a 
serious impediment to law enforcement in that the subject of the 
investigation would be placed on notice of the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation, reveal the identity of confidential sources of 
information and endanger the life or physical safety of confidential 
informants.
    (7) From subsections (e)(4) (G) and (H) because these subsystems of 
records are exempt from individual access pursuant to subsection (j) of 
the Privacy Act of 1974.
    (8) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (9) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the Immigration and 
Naturalization Service's ability to issue administrative subpoenas and 
could reveal investigative techniques and procedures.
    (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).

[[Page 380]]

    (d) Exemptions for the particular subsections are justified for the 
following reasons.
    (1) From subsection (d) because exemption is claimed only for those 
testing and examination materials used to determine an individual's 
qualifications for retention and promotion in the Immigration and 
Naturalization Service. This is necessary to protect the integrity of 
testing materials and to insure fair and uniform examinations.
    (2) From subsection (f) because the subsystem of records has been 
exempted from the access provisions of subsection (d).
    (e) The Orphan Petitioner Index and Files (Justice/INS-007) system 
of records is exempt from 5 U.S.C. 552a(d). This exemption applies only 
to the extent that information in this system is subject to exemption 
pursuant to 5 U.S.C. 552a(k)(1).
    (f) Exemption from paragraph (d) of this section is claimed solely 
because of the possibility of receipt of classified information during 
the course of INS investigation of prospective adoptive parents.

Although it would be rare, prospective adoptive parents may originally 
be from foreign countries (for example) and information received on them 
from their native countries may require classification under Executive 
Order 12356 which safeguards national security information. If such 
information is relevant to the INS determination with respect to 
adoption, the information would be kept in the file and would be 
classified accordingly. Therefore, access could not be granted to the 
record subject under the Privacy Act without violating E.O. 12356.
    (g) The Office of Internal Audit Investigations Index and Records 
(Justice/INS-002) system of records is exempt under the provisions of 5 
U.S.C. 552a(j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), 
(3), (5) and (8); and (g), but only to the extent that this system 
contains records within the scope of subsection (j)(2), and to the 
extent that records in the system are subject to exemption therefrom. In 
addition, this system of records is also exempt under the provisions of 
5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only 
to the extent that this system contains records within the scope of 
subsection (k)(2), and to the extent that records in the system are 
subject to exemption therefrom.
    (h) The following justification apply to the exemptions from 
particular subsections:
    (1) From subsection (c)(3) because the release of the disclosure 
accounting for disclosure could permit the subject of an actual or 
potential criminal or civil investigation to obtain valuable information 
concerning the existence and nature of the investigation, the fact that 
individuals are subjects of the investigation, and present a serious 
impediment to law enforcement.
    (2) From subsection (c)(4) to the extent that the exemption from 
subsection (d) is applicable. Subsection (c)(4) will not be applicable 
to the extent that records in the system are properly withholdable under 
subsection (d).
    (3) From the access and amendment provisions of subsection (d) 
because access to the records contained in this system of records could 
inform the subject of a criminal or civil investigation of the existence 
of that investigation; of the nature and scope of the information and 
evidence obtained as to their activities; of the identity of 
confidential sources, witnesses and law enforcement personnel; and of 
information that may enable the subject to avoid 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.

[[Page 381]]

    (4) From subsection (e)(1) because in the course of criminal or 
civil investigations, the Immigration and Naturalization Service often 
obtains information concerning the violation of laws other than those 
relating to violations over which INS has investigative jurisdiction, in 
the interests of effective law enforcement, it is necessary that INS 
retain this information since it can aid in establishing patterns of 
criminal activity and provide valuable leads for those law enforcement 
agencies that are charged with enforcing other segments of the criminal 
law.
    (5) From subsection (e)(2) because in a criminal investigation, the 
requirement that information be collected to the greatest extent 
possible from the subject individual would present a serious impediment 
to law enforcement in that the subject of the investigation would be 
placed on notice of the existence of the investigation and would 
therefore be able to avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment of criminal 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identify of confidential sources 
of information and endanger the life or physical safety of confidential 
informants.
    (7) From subsection (e)(5) because in the collection of information 
for criminal law enforcement purposes it is impossible to determine in 
advance what information is accurate, relevant, timely, and complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further investigation brings new details 
to light and the accuracy of such information can only be determined in 
a court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of criminal intelligence necessary for effective law enforcement.
    (8) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
criminal law enforcement as this could interfere with the Immigration 
and Naturalization Service's ability to issue administrative subpoenas 
and could reveal investigative techniques and procedures.
    (9) From subsection (g) for those portions of this system of records 
that were compiled for criminal law enforcement purposes and which are 
subject to exemption from the access provisions of subsections (d) 
pursuant to subsection (j)(2).
    (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

[[Page 382]]

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.
    (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 stated in paragraph (h)(3) of this section.

[[Page 383]]

    (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).

[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

[[Page 384]]

investigation will be important or crucial to the apprehension of 
Federal fugitives. In the interest of effective law enforcement, it is 
appropriate in a thorough investigation to retain seemingly irrelevant, 
untimely, or inaccurate information which, with the passage of time, 
would aid in establishing patterns of activity and provide investigative 
leads toward fugitive apprehension and assist in law enforcement 
activities of other agencies.
    (5) From subsection (e)(2) because the requirement that information 
be collected to the greatest extent practical from the subject 
individual would present a serious impediment to law enforcement because 
the subject of the investigation or prosecution would be placed on 
notice as to the existence of the warrant and would therefore be able to 
avoid detection or apprehension.
    (6) From subsection (e)(3) because the requirement that individuals 
supplying information be provided with a form stating the requirements 
of subsection (e)(3) would constitute a serious impediment to law 
enforcement in that it could compromise the existence of a confidential 
investigation or reveal identity of confidential informants.
    (7) From subsections (e)(4) (G) and (H) since an exemption is being 
claimed for subsections (f) and (d) of the Act, these subsections are 
inapplicable.
    (8) From subsection (e)(8) because the individual notice requirement 
of this subsection would present a serious impediment to law enforcement 
in that it would give persons sufficient warning to avoid warrants, 
subpoena, etc.
    (9) From subsection (f) because procedures for notice to an 
individual pursuant to subsection (f)(1) as to existence of records 
pertaining to him dealing with warrants must be exempted because such 
notice to individuals would 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

[[Page 385]]

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 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:

[[Page 386]]

    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit a person to determine whether he or she has been 
identified as a specific threat to USMS protectees and to determine the 
need for countermeasures to USMS protective activities and thereby 
present a serious impediment to law enforcement.
    (2) From subsection (c)(4) because it is inapplicable since an 
exemption is being claimed for subsection (d).
    (3) From subsection (d) because to permit access to records would 
inform a person of the nature and scope of information obtained as to 
his or her threat-related activities and of the identity of confidential 
sources, and afford the person sufficient information to develop 
countermeasures to thwart protective arrangements and endanger lives of 
USMS protectees, informants, etc. To permit amendment of the records 
would interfere with ongoing criminal law enforcement and impose an 
impossible administrative burden requiring criminal investigations to be 
continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because the collection of 
investigatory information used to assess the existence, extent and 
likelihood of a threat situation necessarily includes material from 
which it is impossible to identify and segregate information which may 
not be important to the conduct of a thorough assessment. It is often 
impossible to determine in advance if all information collected is 
accurate, 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).

[[Page 387]]

    (l) Because this system contains Department of Justice civil and 
criminal law enforcement, investigatory records, exemptions from the 
particular subsections are justified for the following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit the subject of an investigation to obtain 
valuable information concerning the existence and nature of the 
investigation and present a serious impediment to law enforcement.
    (2) From subsection (c)(4) because that portion of this system which 
consists of investigatory records compiled for law enforcement purposes 
is being exempted from the provisions of subsection (d), rendering this 
provision not applicable.
    (3) From subsection (d) because to permit access to investigatory 
records would reveal the identity of confidential sources and impede 
ongoing investigative or law enforcement activities by the premature 
disclosure of information related to those efforts. To permit amendment 
of the records would interfere with ongoing criminal law enforcement and 
impose an impossible administrative burden by requiring criminal 
investigations to be continuously reinvestigated.
    (4) From subsections (e) (1) and (5) because it is often impossible 
to determine in advance if investigatory records contained in this 
system are accurate, relevant, timely and complete but, in the interests 
of effective law enforcement, it is necessary to retain this information 
to aid in establishing patterns of activity and provide leads in 
criminal investigations.
    (5) From subsection (e)(2) because to collect information from the 
subject individual would serve notice that he or she is the subject of 
criminal investigative or law enforcement activity and thereby present a 
serious impediment to law enforcement.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection would enable the subject individual to identify 
confidential sources, reveal the existence of an investigation, and 
compromise law enforcement efforts.
    (7) From subsections (e)(4) (G) and (H) because they are 
inapplicable since an exemption is being claimed for subsections (d) and 
(f) for investigatory records contained in this system.
    (8) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to evade law enforcement efforts.
    (9) From subsection (f) because investigatory records contained in 
this system are exempt from the provisions of subsection (d).
    (10) From subsection (g) because it is inapplicable since an 
exemption is being claimed for subsections (d) and (f).
    (m) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (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

[[Page 388]]

claim adjudication necessitates collecting information from all 
individuals having knowledge of the criminal or civil case or matter. To 
collect information primarily from the subject individual would present 
a serious impediment to law enforcement or civil legal activities.
    (5) From subsection (e)(3) because to inform the individuals as 
required by this subsection would permit the subject of a criminal or 
civil matter under investigation or administrative review to compromise 
that investigation or administrative review and thereby impede law 
enforcement efforts or civil legal activities.
    (6) From subsections (e)(4) (G) and (H) because these provisions are 
inapplicable since this system is exempt from subsections (d) and (f) of 
the Act.
    (7) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to compromise a criminal or civil 
investigation or administrative review and thereby impede law 
enforcement of civil legal activities.
    (8) From subsection (f) because this system of records is exempt 
from the provisions of subsection (d).
    (9) From subsection (g) because it is inapplicable since an 
exemption is claimed for subsections (d) and (f).
    (o) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), (5) and (g):
    (1) U.S. Marshals Service Prisoner Transportation System (JUSTICE/
USM-003).

    These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (p) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) where the release of the disclosure 
accounting for disclosures made pursuant to subsection (b) of the Act 
would reveal a source who furnished information to the Government in 
confidence.
    (2) From subsection (c)(4) to the extent that the system is exempt 
from subsection (d).
    (3) From subsection (d) because access to records would reveal the 
names and other information pertaining to prisoners, including sensitive 
security information such as the identities and locations of 
confidential sources, e.g., informants and protected witnesses; and 
disclose access codes, data entry codes and message routing symbols used 
in law enforcement communications systems to schedule and effect 
prisoner movements. Thus, such a compromise of law enforcement 
communications systems would subject law enforcement personnel and other 
prisoners to harassment and possible danger, and present a serious 
threat to law enforcement activities. To permit 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),

[[Page 389]]

(d), (e)(1), (2), (3), (e)(5) and (e)(8) and (g):
    (1) U.S. Marshals Service Prisoner Processing and Population 
Management System (JUSTICE/USM-005).


These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
    (r) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because to release the disclosure 
accounting would permit the subject of a criminal proceeding to 
determine the extent or nature of law enforcement authorities' knowledge 
regarding his/her alleged misconduct or criminal activities. The 
disclosure of such information could alert the subject to devise ways in 
which to conceal his/her activities and/or prevent law enforcement from 
learning additional information about his/her activities, or otherwise 
inhibit law enforcement efforts. In addition, where the individual is 
the subject of an ongoing or potential inquiry/investigation, such 
release could reveal the nature thereof prematurely, and may also enable 
the subject to determine the identity of witnesses and informants. Such 
disclosure could compromise the ongoing or potential inquiry/
investigation, endanger the lives of witnesses and informants, or 
otherwise impede or thwart law enforcement efforts.
    (2) From subsection (c)(4) to the extent that the system is exempt 
from subsection (d).
    (3) From subsection (d) because to permit unlimited access would 
permit the subject of a criminal proceeding to determine the extent or 
nature of law enforcement authorities' knowledge regarding his/her 
alleged misconduct or criminal activities. The disclosure of such 
information could alert the subject to devise ways in which to conceal 
his/her activities and/or prevent law enforcement from learning 
additional information about his/her activities, or otherwise inhibit 
law enforcement efforts. Disclosure would also allow the subject to 
obtain sensitive information concerning the existence and nature of 
security measures and jeopardize the safe and secure transfer of the 
prisoner, the safety and security of other prisoners, informants and 
witnesses, law enforcement personnel, and the public. In addition, 
disclosure may enable the subject to learn prematurely of an ongoing or 
potential inquiry/investigation, and may also permit him/her to 
determine the identities of confidential sources, informants, or 
protected witnesses. Such disclosure could compromise the ongoing or 
potential inquiry/investigation, endanger the lives 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

[[Page 390]]

patterns of criminal activity or behavior, and/or prove essential to the 
safe and secure detention (and movement) of prisoners. Further, the 
provisions of (e)(1) and (e)(5) would restrict the ability of the USMS 
in exercising its judgment in reporting information during 
investigations or during the development of appropriate security 
measures, and thus present a serious impediment to law enforcement 
efforts.
    (5) From subsection (e)(2) because the requirement to collect 
information from the subject individual would impede the information 
collection responsibilities of the USMS which is often dependent upon 
sources other than the subject individual for verification of 
information pertaining to security risks posed by the individual 
prisoner, to alleged misconduct or criminal activity of the prisoner, or 
to any matter affecting the safekeeping and disposition of the 
individual prisoner.
    (6) From subsection (e)(3) because to inform individuals as required 
by this subsection could impede the information gathering process, 
reveal the existence of an ongoing or potential inquiry/investigation or 
security procedure, and compromise law enforcement efforts.
    (7) From subsection (e)(8) because to serve notice would give 
persons sufficient warning to compromise an ongoing or potential 
inquiry/investigation and thereby evade and impede law enforcement and 
security efforts.
    (8) From subsection (g) to the extent that the system is exempt from 
subsection (d).
    (s) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), (3), (e) (5) and (e) (8) and (g):

            Joint Automated Booking Stations, Justice/USM-014

    (t) These exemptions apply only to the extent that information in 
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2). 
Where compliance would not interfere with or adversely affect the law 
enforcement process, the USMS may waive the exemptions, either partially 
or totally. Exemption from the particular subsections are justified for 
the following reasons:
    (1) From subsections (c)(3) and (d) to the extent that access to 
records in this system of records may impede or interfere with law 
enforcement efforts, result in the disclosure of information that would 
constitute and unwarranted invasion of the personal privacy of 
collateral record subjects or other third parties, and/or jeopardize the 
health and/or safety of third parties.
    (2) Where access to certain records may be appropriate, exemption 
from 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

[[Page 391]]

gathering process or otherwise interfere with or compromise law 
enforcement efforts, e.g., the subject may deliberately withhold 
information, or give erroneous information.
    (6) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance and the accuracy of such information can only 
be determined in a court of law. The restrictions imposed by subsection 
(e)(5) would restrict the ability to collect information for law 
enforcement purposes and may prevent the eventual development of the 
necessary criminal intelligence or otherwise impede effective law 
enforcement.
    (7) From subsection (e)(8) to the extent that such notice may 
impede, interfere with, or otherwise compromise law enforcement and 
security efforts.
    (8) From subsection (g) to the extent that this system is exempt 
from the access and amendment provisions of subsection (d).
    (u) Consistent with the legislative purpose of the Privacy Act of 
1974, the United States Marshals Service will grant access to nonexempt 
material in records which are maintained by the Service. Disclosure will 
be governed by the Department's Privacy Regulations, but will be limited 
to the extent that the identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
criminal, civil or regulatory violation will not be alerted to the 
investigation; the physical safety of witnesses, informants and law 
enforcement personnel will not be endangered; the privacy of third 
parties will not be violated; and that the disclosure would not 
otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.

[Order No. 645-76, 41 FR 12640, Mar. 26, 1976, as amended by Order No. 
8-83, 48 FR 19024, Apr. 27, 1983; Order No. 10-86, 51 FR 20275, June 4, 
1986; Order No. 11-86, 51 FR 20277, June 4, 1986; Order No. 61-92, 57 FR 
3284, Jan. 29, 1992; Order No. 66-92, 57 FR 20654, May 14, 1992; Order 
No. 105-95, 60 FR 30467, June 9, 1995; 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.

[[Page 392]]

    (2)(c)(4). Since an exemption is being claimed for subsection (d) of 
the Act (Access to Records) this subsection is inapplicable to the 
extent that these systems of records are exempted from subsection (d).
    (3)(d). Access to the records contained in these systems would 
inform the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation of the existence of that 
investigation, or the nature and scope of the information and evidence 
obtained as to his activities, of the identity of witnesses and 
informants, or would provide information that could enable the subject 
to avoid detection or apprehension. These factors would present a 
serious impediment to effective law enforcement because they could 
prevent the successful completion of the investigation, endanger the 
physical safety of witnesses or informants, and lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    (4)(e)(1). The notices of these systems of records published in the 
Federal Register set forth the basic statutory or related authority for 
maintenance of this system. However, in the course of criminal or other 
law enforcement investigations, cases, and matters, the Immigration and 
Naturalization Service or the Drug Enforcement Administration will 
occasionally obtain information concerning actual or potential 
violations of law that are not strictly within its statutory or other 
authority or may compile information in the course of an investigation 
which may not be relevant to a specific prosecution. In the interests of 
effective law enforcement, it is necessary to retain such information in 
these systems of records since it can aid in establishing patterns of 
criminal activity and can provide valuable leads for federal and other 
law enforcement agencies.
    (5)(e)(2). In a criminal investigation or prosecution, the 
requirement that information be collected to the greatest extent 
practicable from the subject individual would present a serious 
impediment to law enforcement because the subject of the investigation 
or prosecution would be placed on notice as to the existence of the 
investigation and would therefore be able to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony.
    (6)(e)(3). The requirement that individuals supplying information be 
provided with a form stating the requirements of subsection (e)(3) would 
constitute a serious impediment to law enforcement in that it could 
compromise the existence of a confidential investigation or reveal the 
identity of witnesses or confidential informants.
    (7)(e)(4) (G) and (H). Since an exemption is being claimed for 
subsections (f) (Agency Rules) and (d) (Access to Records) of the Act 
these subsections are inapplicable to the extent that these systems of 
records are exempted from subsections (f) and (d).
    (8)(e)(4)(I). The categories of sources of the records in these 
systems have been published in the Federal Register in broad generic 
terms in the belief that this is all that subsection (e)(4)(I) of the 
Act requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in these systems, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (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

[[Page 393]]

present a serious impediment to law enforcement as this could interfere 
with the ability to issue warrants or subpoenas and could reveal 
investigative techniques, procedures, or evidence.
    (11)(f). Procedures for notice to an individual pursuant to 
subsection (f)(1) as to the existence of records pertaining to him 
dealing with an actual or potential criminal, civil, or regulatory 
investigation or prosecution must be exempted because such notice to an 
individual would be detrimental to the successful conduct and/or 
completion of an investigation or prosecution pending or future. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation and could enable the subjects to avoid 
detection or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony.


Since an exemption is being claimed for subsection (d) of the Act 
(Access to Records) the rules required pursuant to subsections (f) (2) 
through (5) are inapplicable to these systems of records to the extent 
that these systems of records are exempted from subsection (d).
    (12)(g). Since an exemption is being claimed for subsections (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (13)(h). Since an exemption is being claimed for subsection (d) 
(Access to Records) and (f) (Agency Rules) this section is inapplicable, 
and is exempted for the reasons set forth for those subsections, to the 
extent that these systems of records are exempted from subsections (d) 
and (f).
    (14) In addition, exemption is claimed for these systems of records 
from compliance with the following provisions of the Privacy Act of 1974 
(5 U.S.C. 552a) pursuant to the provisions of 5 U.S.C. 552a(k)(1): 
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) to 
the extent that the records contained in these systems are specifically 
authorized to be kept secret in the interests of national defense and 
foreign policy.

[Order No. 742-77, 42 FR 40907, Aug. 12, 1977]



Sec. 16.103  Exemption of the INTERPOL-United States National Central
Bureau (INTERPOL-USNCB) System.

    (a) The following system of records is exempt from 5 U.S.C. 552a(c) 
(3) and (4), (d), (e) (1), (2), and (3), (e)(4) (G) and (H), (e)(5) and 
(8), (f) and (g):
    (1) The INTERPOL-United States National Central Bureau (INTERPOL-
USNCB) (Department of Justice) INTERPOL-USNCB Records System (JUSTICE/
INTERPOL-001).


This exemption applies only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a (j)(2), (k)(2), 
and (k)(5).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because the release of accounting 
disclosures would place the subject of an investigation on notice that 
he is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement.
    (2) From subsections (c)(4), (d), (e)(4) (G), and (H), (f) and (g) 
because these provisions concern individual access to records and such 
access might compromise ongoing investigations reveal investigatory 
techniques and confidential informants, and invade the privacy of 
private citizens who provide information in connection with a particular 
investigation.
    (3) From subsection (e)(1) because information received in the 
course of an international criminal investigation may involve a 
violation of state or local law, and it is beneficial to maintain this 
information to provide investigative leads to state and local law 
enforcement agencies.
    (4) From subsection (e)(2) because collecting information from the 
subject of criminal investigations would thwart the investigation by 
placing the subject on notice.
    (5) From subsection (e)(3) because supplying an individual with a 
statement of the intended use of the requested information could 
compromise

[[Page 394]]

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 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:

[[Page 395]]

    (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.
    (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.

[[Page 396]]

    (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 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

[[Page 397]]

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 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.

[[Page 398]]

    (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 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:

[[Page 399]]

    (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.
    (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

[[Page 400]]

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 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

[[Page 401]]

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, 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

[[Page 402]]

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. 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.

[[Page 403]]

    (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]



Sec. 16.134  Exemption of Debt Collection Enforcement System,
Justice/DOJ-016.

    (a) The following system of records is exempt pursuant to 5 U.S.C. 
552a(j)(2) from subsections (c)(3) and (4); (d)(1), (2), (3), and (4); 
(e)(1), (2), (3), (4)(G), (H) and (I), (5) and (8); (f) and (g) of the 
Privacy Act. In addition, the system is exempt pursuant to 5 U.S.C. 
552a(k)(2) from subsections (c)(3); (d)(1), (2), (3), and (4); (e)(1); 
(4)(G), (H), and (I); and (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) or (k)(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 DOJ in its sole discretion.
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3), the requirement that an accounting be 
made available to the named subject of a record, because certain records 
in this system are 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) notification requirements because certain 
records in this system are exempt from the access and amendment 
provisions of subsection (d) as well as the access to accounting of 
disclosures provision of subsection (c)(3).
    (3) From subsections (d)(1), (2), (3), and (4) 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 debt collection investigations or other law 
enforcement proceedings and impose an impossible administrative burden 
by requiring investigations to be continuously reinvestigated.
    (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.
    (5) From subsection (e)(2) to avoid impeding law enforcement efforts 
associated with debt collection by putting the subject of an 
investigation on notice of that fact, thereby permitting the subject to 
engage in conduct intended to frustrate or impede that investigation.
    (6) From subsection (e)(3) to avoid impeding law enforcement efforts 
in conjunction with debt collection by putting the subject of an 
investigation on notice of that fact, thereby permitting the subject to 
engage in conduct intended to frustrate or impede that investigation.
    (7) From subsection (e)(4)(G), (H) and (I) because portions of this 
system are exempt from the access provisions of subsection (d) pursuant 
to subsections (j) and (k) of the Privacy Act.
    (8) 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 system.
    (9) 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 DOJ and may alert the subjects 
of law enforcement investigations, who might be otherwise unaware, to 
the fact of those investigations.
    (10) From subsections (f) and (g) to the extent that the system is 
exempt from other specific subsections of the Privacy Act.

[Order No. 009-2012, 77 FR 23117, Apr. 18, 2012]

[[Page 404]]



Sec. 16.135  Exemptions of Executive Office for Organized Crime
Drug Enforcement Task Forces Systems.

    (a) The following systems of records are exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), 
(H), and (I), (5), and (8); (f); and (g):
    (1) The Organized Crime Drug Enforcement Task Forces Management 
Information System (OCDETF MIS) (JUSTICE/OCDETF-001); and
    (2) The Organized Crime Drug Enforcement Task Force Fusion Center 
and International Organized Crime Intelligence and Operations Center 
System (JUSTICE/OCDETF-002).
    (b) These exemptions apply only to the extent that information is 
subject to exemption under 5 U.S.C. 552a(j) and/or (k).
    (c) 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 these systems 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 Forces, the Organized Crime Drug Enforcement 
Task Force Fusion Center, the International Organized Crime Intelligence 
and Operations Center, or the recipient agency, and could permit that 
individual to take measures to avoid detection or apprehension, to learn 
of 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.
    (2) From subsection (c)(4) because this subsection is inapplicable 
to the extent that an exemption is being claimed for subsections (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 violation of the existence of that investigation, 
of the nature and scope of the information and evidence obtained as to 
his or her activities, of the identity of confidential witnesses and 
informants, of the investigative interest of the Organized Crime Drug 
Enforcement Task Forces, the Organized Crime Drug Enforcement Task Force 
Fusion Center, the International Organized Crime Intelligence and 
Operations Center, and other intelligence or law enforcement agencies 
(including those responsible for civil proceedings related to laws 
against drug trafficking or related financial crimes or international 
organized crime); could lead to the destruction of evidence, improper 
influencing of witnesses, fabrication of testimony, and/or flight of the 
subject; could reveal the details of a sensitive investigative or 
intelligence technique, or the identity of a confidential source; or 
could 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.
    (4) From subsection (d)(2) because amendment of the records thought 
to be inaccurate, irrelevant, incomplete, or untimely would also 
interfere with ongoing investigations, criminal or civil law enforcement 
proceedings, and other law enforcement activities; would impose an 
impossible administrative burden by requiring investigations, analyses, 
and reports to be continuously reinvestigated and revised; and may 
impact information properly classified pursuant to Executive Order.
    (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) and for the reasons stated in Sec. 16.135(c)(3) and 
(c)(4).
    (6) From subsection (e)(1) because, in the course of their 
acquisition, collation, and analysis of information under the statutory 
authority granted, the

[[Page 405]]

Organized Crime Drug Enforcement Task Forces, the Organized Crime Drug 
Enforcement Task Force Fusion Center, and the International Organized 
Crime Intelligence and Operations Center will occasionally obtain 
information, including information properly classified pursuant to 
Executive Order, that concerns actual or potential violations of law 
that are not strictly within their statutory or other authority or may 
compile and maintain information which may not be relevant to a specific 
investigation or prosecution. This is because it is impossible to 
determine in advance what information collected during an investigation 
or in support of these mission activities will be important or crucial 
to an investigation. In the interests of effective law enforcement, it 
is necessary to retain such information in these systems of records 
because it can aid in establishing patterns of criminal activity of a 
suspect 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, or 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) 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 or 
intelligence gathering. Disclosure to an individual of investigative 
interest would put the subject on notice of that fact and allow the 
subject an opportunity to engage in conduct intended to impede that 
activity or avoid apprehension. Disclosure to other individuals would 
likewise put them on notice of what might still be a sensitive law 
enforcement interest and could result in the further intentional or 
accidental disclosure to the subject or other inappropriate recipients, 
convey information that might constitute unwarranted invasions of the 
personal privacy of other persons, unnecessarily burden law enforcement 
personnel in information-collection activities, and chill the 
willingness of witnesses to cooperate.
    (9) From subsections (e)(4)(G) and (H) because this system is exempt 
from the access and amendment provisions of subsection (d).
    (10) From subsection (e)(4)(I) to the extent that this subsection 
could be interpreted to require more detail regarding system record 
sources than has been published in the Federal Register. Should this 
subsection be so interpreted, exemption from this provision is necessary 
to protect the sources of law enforcement and intelligence information 
and to protect the privacy and safety of witnesses and informants and 
other information sources. Further, greater specificity could compromise 
other sensitive law enforcement information, techniques, and processes.
    (11) From subsection (e)(5) because the acquisition, collation, and 
analysis of information for law enforcement purposes from various 
agencies does not 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

[[Page 406]]

impede the development of criminal or other intelligence necessary for 
effective law enforcement.
    (12) From subsection (e)(8) because the individual notice 
requirements could present a serious impediment to law enforcement by 
revealing investigative techniques, procedures, evidence, or interest, 
and by interfering with the ability to issue warrants or subpoenas; 
could give persons sufficient warning to evade investigative efforts; 
and would pose an unacceptable administrative burden on the maintenance 
of these records and the conduct of the underlying investigations.
    (13) From subsections (f) and (g) because these subsections are 
inapplicable to the extent that the system is exempt from other specific 
subsections of the Privacy Act.

[Order No. 006-2013, 78 FR 69754, Nov. 21, 2013; 78 FR 77586, Dec. 24, 
2013]



Sec. 16.136  Exemption of the Department of Justice, Giglio 
Information System, Justice/DOJ-017.

    (a) The Department of Justice, Giglio Information Files (JUSTICE/
DOJ-017) system of records is exempted from subsections (c)(3) and (4); 
(d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H), and (I), (5), 
and (8); (f); and (g) of the Privacy Act. 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).
    (b) Exemptions from the particular subsections are justified for the 
following reasons:
    (1) From subsection (c)(3) because this subsection is inapplicable 
to the extent that an exemption is being claimed for subsection (d).
    (2) From subsection (c)(4) because this subsection is inapplicable 
to the extent that an exemption is being claimed for subsection (d).
    (3) From subsection (d) because access to the records contained in 
this system may interfere with or impede an ongoing investigation as it 
may be related to allegations against an agent or witness who is 
currently being investigated. Further, other records that are derivative 
of the subject's employing agency files may be accessed through the 
employing agency's files.
    (4) From subsection (e)(1) because it may not be possible to 
determine in advance if potential impeachment records collected and 
maintained in order to sufficiently meet the Department's Giglio 
requirements and obligations are all relevant and necessary. In order to 
ensure that the Department's prosecutors and investigative agencies 
receive sufficient information to meet their obligations under Giglio, 
it is appropriate to maintain potential impeachment information in 
accordance with Department policy as such records could later be 
relevant and necessary in a different case in which the same witness or 
affiant subsequently testifies.
    (5) From subsection (e)(2) because collecting information directly 
from the subject individual could serve notice that the individual is 
the subject of investigation and because of 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 subsection (e)(3) because federal law enforcement officers 
receive notice from their supervisors and prosecuting attorneys that 
impeachment information may be used at trial. Law enforcement officers 
are also given notice by the Giglio decision itself.
    (7) From subsections (e)(4)(G), (H), and (I) because this system of 
records is exempt from the access and amendment provisions of subsection 
(d).
    (8) From subsection (e)(5) because it may not be possible to 
determine in advance if all potential impeachment records collected and 
maintained in order to sufficiently meet the Department's Giglio 
requirements and obligations are all accurate, relevant, timely, and 
complete at the time of collection. Although the Department has policies 
in place to verify the records, the records may be originated from 
another agency, third party, or open source media and it may be 
impossible to ensure the accuracy, relevance, timeliness, and 
completeness of potential impeachment information maintained prior to 
and during the process of being verified.

[[Page 407]]

    (9) From subsection (e)(8) because the nature of the Giglio 
discovery process renders notice of compliance with the compulsory 
discovery process impractical.
    (10) From subsections (f) and (g) because these subsections are 
inapplicable to the extent that the system is exempt from other specific 
subsections of the Privacy Act.

[Order No. 008-2015, 80 FR 34051, June 15, 2015]



       Subpart F_Public Observation of Parole Commission Meetings

    Source: 42 FR 14713, Mar. 16, 1977, unless otherwise noted.



Sec. 16.200  Definitions.

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

[[Page 408]]

this section shall be withdrawn and scheduled instead for consideration 
at a Commission meeting.
    (c) The provisions of Sec. 16.206(a) of these rules shall apply in 
the case of any Commission determination made pursuant to this section.



Sec. 16.202  Open meetings.

    (a) Every portion of every meeting of the Commission shall be open 
to public observation unless closed to the public pursuant to the 
provisions of Sec. 16.203 (Formal Procedure) or Sec. 16.205 (Informal 
Procedure).
    (b) The attendance of any member of the public is conditioned upon 
the orderly demeanor of such person during the conduct of Commission 
business. The public shall be permitted to observe and to take notes, 
but unless prior permission is granted by the Commission, shall not be 
permitted to record or photograph by means of any mechanical or 
electronic device any portion of meetings which are open to the public.
    (c) The Commission shall be responsible for arranging a suitable 
site for each open Commission meeting so that ample seating, visibility, 
and acoustics are provided to the public and ample security measures are 
employed for the protection of Commissioners and Staff. The Commission 
shall be responsible for recording or developing the minutes of 
Commission meetings.
    (d) Public notice of open meetings shall be given as prescribed in 
Sec. 16.204(a), and a record of votes kept pursuant to Sec. 16.206(a).



Sec. 16.203  Closed meetings--Formal procedure.

    (a) The Commission, by majority vote, may close to public 
observation any meeting or portion thereof, and withhold from the public 
announcement concerning such meeting any information, if public 
observation or the furnishing of such information is likely to:
    (1) Disclose matters:
    (i) Specifically authorized under criteria established by an 
executive order to be kept secret in the interests of national defense 
or foreign policy and
    (ii) In fact properly classified pursuant to such executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission or any agency of the Government of the United States;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552, or the Federal Rules of Criminal 
Procedure): Provided, That such statute or rule (i) requires that the 
matters be withheld in such a manner as to leave no discretion on the 
issue, or (ii) establishes particular criteria for withholding or refers 
to particular types of matters to be withheld, including exempted 
material under the Privacy Act of 1974 or the Commission's Alternate 
Means of Access under the Privacy Act of 1974, as set forth at 28 CFR 
16.85;
    (4) Disclose a trade secret or commercial or financial information 
obtained from any person, corporation, business, labor or pension 
organization, which is privileged or obtained upon a promise of 
confidentiality, including information concerning the financial 
condition or funding of labor or pension organizations, or the financial 
condition of any individual, in conjunction with applications for 
exemption under 29 U.S.C. 504 and 1111, and information concerning 
income, assets and liabilities of inmates, and persons on supervision;
    (5) Involve accusing any person of a crime or formally censuring any 
person;
    (6) Disclose information of a personal nature, where disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose an investigatory record compiled for law enforcement 
purposes, or information derived from such a record, which describes the 
criminal history or associations of any person under the Commission's 
jurisdiction or which describes the involvement of any person in the 
commission of a crime, 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

[[Page 409]]

record compiled by a criminal law enforcement authority in the course of 
a criminal investigation, or an agency conducting a lawful national 
security intelligence investigation, confidential information furnished 
only by the confidential source;
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information, the premature disclosure of which would be 
likely to significantly frustrate implementation of proposed Commission 
action except where
    (i) The Commission has already publicly disclosed the content or 
nature of its proposed action or
    (ii) The Commission is required by law to make such disclosure on 
its own initiative prior to taking final Commission action on such 
proposal;
    (9) Specifically concern the Commission's issuance of subpoena or 
participation in a civil action or proceeding; or
    (10) Specifically concern the initiation, conduct, or disposition of 
a particular case of formal adjudication pursuant to the procedures in 5 
U.S.C. 554, or of any case involving a determination on the record after 
opportunity for a hearing. Included under the above terms are:
    (i) Record review hearings following opportunity for an in-person 
hearing pursuant to the procedures of 28 CFR 4.1 through 4.17 and 28 CFR 
4a.1 through 4a.17 \1\ (governing applications for certificates of 
exemption under the Labor-Management Reporting and Disclosure Act of 
1959 and the Employee Retirement Income Security Act of 1974), and
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    \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

[[Page 410]]

to close a meeting under this section, the Commission shall make 
available to the public a written record reflecting the vote of each 
Commissioner on the question, including a full written explanation of 
its action in closing the meeting, portion(s) thereof, or series of 
meetings, together with a list of all persons expected to attend the 
meeting(s) or portion(s) thereof and their affiliation, subject to the 
provisions of paragraph (c) of this section.
    (4) For every meeting or series of meetings closed pursuant to this 
section, the General Counsel of the Parole Commission shall publicly 
certify that, in Counsel's opinion, the meeting may be closed to the 
public and shall state each relevant exemptive provision.



Sec. 16.204  Public notice.

    (a) Requirements. Every open meeting and meeting closed pursuant to 
Sec. 16.203 shall be preceded by a public announcement posted before the 
main entrance to the Chairman's Office at the Commission's headquarters, 
5550 Friendship Boulevard, Chevy Chase, Maryland 20815-7286, and, in the 
case of a meeting held elsewhere, in a prominent place at the location 
in which the meeting will be held. Such announcement shall be 
transmitted to the Federal Register for publication and, in addition, 
may be issued through the Department of Justice, Office of Public 
Affairs, as a press release, or by such other means as the Commission 
shall deem reasonable and appropriate. The announcement shall furnish:
    (1) A brief description of the subject matter to be discussed;
    (2) The date, place, and approximate time of the meeting;
    (3) Whether the meeting will be open or closed to public 
observation; and
    (4) The name and telephone number of the official designated to 
respond to requests for information concerning the meeting. See 
Sec. 16.205(d) for the notice requirement applicable to meetings closed 
pursuant to that section.
    (b) Time of notice. The announcement required by this section shall 
be released to the public at least one week prior to the meeting 
announced therein except where a majority of the members of the 
Commission determines by a recorded vote that Commission business 
requires earlier consideration. In the event of such a determination, 
the announcement shall be made at the earliest practicable time.
    (c) Amendments to notice. The time or place of a meeting may be 
changed following the announcement only if the Commission publicly 
announces such change at the earliest practicable time. The subject 
matter of a meeting, or determination of the Commission to open or close 
a meeting, or portion of a meeting, to the public may be changed 
following the announcement only if:
    (1) A majority of the entire membership of the Commission determines 
by a recorded vote that Commission business so requires and that no 
earlier announcement of the change was possible, and
    (2) The Commission publicly announces such change and the vote of 
each member upon such change at the earliest practicable time: Provided, 
That individual items which have been announced for Commission 
consideration at a closed meeting may be deleted without notice.

[42 FR 14713, Mar. 16, 1977, as amended by Order No. 960-81, 46 FR 
52357, Oct. 27, 1981]



Sec. 16.205  Closed meetings--Informal procedures.

    (a) Finding. Based upon a review of the meetings of the U.S. Parole 
Commission since the effective date of the Parole Commission and 
Reorganization Act (May 14, 1976), the regulations issued pursuant 
thereto (28 CFR part 2) the experience of the U.S. Board of Parole, and 
the regulations pertaining to the Commission's authority under 29 U.S.C. 
504 and 29 U.S.C. 1111 (28 CFR parts 4 and 4a), the Commission finds 
that the majority of its meetings may properly be closed to the public 
pursuant to 5 U.S.C. 552 (d)(4) and (c)(10). The 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

[[Page 411]]

each business meeting of the Commission (held at least quarterly) (28 
CFR 2.27).

The National Appeals Board normally decides cases by sequential vote on 
a daily basis, but may meet from time to time for joint deliberations. 
In the period from October, 1975 through September, 1976, the National 
Appeals Board made 2,072 Appellate decisions.

Finally, over the last two years the Commission determined eleven cases 
under the Labor and Pension Acts, which are proceedings pursuant to 5 
U.S.C. 554. The only meetings of the Commission not of an adjudicative 
nature involving the most sensitive inquiry into the personal background 
and behavior of the individual concerned, or involving sensitive 
financial information concerning the parties before the Commission, are 
the normal business meetings of the Commission, which are held at least 
quarterly.
    (b) Meetings to which applicable. The following types of meetings 
may be closed in the event that a majority of the Commissioners present 
at the meeting, and authorized to act on behalf of the Commission, votes 
by recorded vote at the beginning of each meeting or portion thereof, to 
close the meeting or portions thereof:
    (1) Original jurisdiction initial and appellate case deliberations 
conducted pursuant to 28 CFR 2.17 and 2.27;
    (2) National Appeals Board deliberations pursuant to 28 CFR 2.26;
    (3) Meetings of the Commission to conduct a hearing on the record 
regarding applications for certificates of exemption pursuant to the 
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 504, 
and the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1111 
(28 CFR 4.1-17 and 29 CFR 4a.1-17). \1\
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    \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

[[Page 412]]

forth the time and place of the meeting, and the persons present.
    (d) Nothing herein shall affect any other provision in Commission 
procedures or regulations requiring the preparation and maintenance of a 
record of all official actions of the Commission.



Sec. 16.207  Public access to nonexempt transcripts and minutes of 
closed Commission meetings--Documents used at meetings--Record
retention.

    (a) Public access to records. Within a reasonable time after any 
closed meeting, the Commission shall make available to the public, in 
the Commission's Public Reading Room located at 5550 Friendship 
Boulevard, Chevy Chase, Maryland 20815-7286, the transcript, electronic 
recording, or minutes of the discussion of any item on the agenda, or of 
any item of the testimony of any witness received at such meeting, 
maintained hereunder, except for such item or items of such discussion 
or testimony which contain information exempt under any provision of the 
Government in the Sunshine Act (Pub. L. 94-409), or of any amendment 
thereto. Copies of nonexempt transcripts, or minutes, or a transcription 
of such recording disclosing the identity of each speaker, shall be 
furnished to any person at the actual cost of duplication or 
transcription.
    (b) Access to documents identified or discussed in any Commission 
meeting, open or closed, shall be governed by Department of Justice 
regulations at this part 16, subparts C and D. The Commission reserves 
the right to invoke statutory exemptions to disclosure of such documents 
under 5 U.S.C. 552 and 552a, and applicable regulations. The exemptions 
provided in 5 U.S.C. 552b(c) shall apply to any request made pursuant to 
5 U.S.C. 552 or 552a to copy and inspect any transcripts, recordings or 
minutes prepared or maintained pursuant hereto.
    (c) Retention of records. The Commission shall maintain a complete 
verbatim copy of the transcript, or a complete copy of the minutes, or a 
complete electronic recording of each meeting, or portion of a meeting, 
closed to the public, for a period of at least two years after such 
meeting, or until one year after the conclusion of any Commission 
proceeding with respect to which the meeting or portion thereof was 
held, whichever occurs later.

[42 FR 14713, Mar. 16, 1977, as amended by Order No. 960-81, 46 FR 
52357, Oct. 27, 1981]



Sec. 16.208  Annual report.

    The Commission shall report annually to Congress regarding its 
compliance with Sunshine Act requirements, including a tabulation of the 
total number of meetings open to the public, the total number of 
meetings closed to the public, the reasons for closing such meetings, 
and a description of any litigation brought against the Commission under 
this section, including any costs assessed against the Commission in 
such litigation and whether or not paid.



   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

[[Page 413]]

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.



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

    Please consult Attachment B of the Department of Justice FOIA 
Reference Guide for the contact information and a detailed description 
of the types of records maintained by each Department component. The 
FOIA Reference Guide is available at http://www.justice.gov/oip/
04_3.html or upon request to the Office of Information Policy.
    The FOIA offices of Department components and any component-specific 
requirements for making a FOIA request are listed below. The 
Certification of Identity form, available at http://www.justice.gov/oip/
forms/cert_ind.pdf, may be used by individuals who are making requests 
for records pertaining to themselves. For each of the six components 
marked with an asterisk, FOIA and Privacy Act (PA) access requests must 
be sent to OIP, which handles initial requests for those six components.

Antitrust Division, FOIA/PA Unit
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Disclosure 
Division
Civil Division, FOIA/PA Officer
    Requests for records from case files must include a case caption or 
name, civil court case number, and judicial district.
Civil Rights Division, FOIA/PA Branch
Community Relations Service, FOIA/PA Coordinator
Criminal Division, FOIA/PA Unit
Drug Enforcement Administration, Freedom of Information Operations Unit, 
FOI/Records Management Section
Environment and Natural Resources Division, FOIA Coordinator, Law and 
Policy Section
    Requests for records from case files must include a case caption or 
name, civil or criminal court case number, and judicial district.
Executive Office for Immigration Review, Office of the General Counsel
    When seeking access to records concerning a named alien individual, 
requesters must include an alien registration number (``A'' number). If 
the ``A'' number is not known or the case occurred before 1988, the date 
of an Order to Show Cause, country of origin, and location of the 
immigration hearing must be provided.
Executive Office for United States Attorneys, FOIA/Privacy Unit
Executive Office for Organized Crime Drug Enforcement Task Forces
    Requests for records from case files must include the judicial 
district in which the investigation/prosecution or other litigation 
occurred.
Executive Office for United States Trustees, FOIA/PA Counsel, Office of 
the General Counsel
    Requests for records from bankruptcy case files must include a case 
caption or name, case number, and judicial district.
Federal Bureau of Investigation, Record/Information Dissemination 
Section, Records Management Division
Federal Bureau of Prisons, FOIA/PA Section
Foreign Claims Settlement Commission
INTERPOL-U.S. National Central Bureau, FOIA/PA Specialist, Office of 
General Counsel

[[Page 414]]

Justice Management Division, FOIA Contact
National Security Division, FOIA Initiatives Coordinator
Office of the Associate Attorney General*
Office of the Attorney General*
Office of Community Oriented Policing Services, FOIA Officer, Legal 
Division
Office of the Deputy Attorney General*
Office of Information Policy
Office of the Inspector General, Office of the General Counsel
Office of Justice Programs, Office of the General Counsel
Office of Legal Counsel
Office of Legal Policy*
Office of Legislative Affairs*
Office of the Pardon Attorney, FOIA Officer
Office of Professional Responsibility, Special Counsel for Freedom of 
Information and Privacy Acts
Office of Public Affairs*
Office of the Solicitor General
    Requests for records from case files must include a case name, 
docket number, or citation to case.
Office on Violence Against Women
Professional Responsibility Advisory Office, Information Management 
Specialist
Tax Division, Division Counsel for FOIA and PA Matters
    Requests for records from case files must include a case caption or 
name, civil or criminal court case number, and judicial district.
United States Marshals Service, Office of the General Counsel
    Requests for records concerning seized property must specify the 
judicial district of the seizure, civil court case number, asset 
identification number, and an accurate description of the property.
United States Parole Commission, FOIA/PA Specialist

[AG Order No. 3517-2015, 80 FR 18113, Apr. 3, 2015]



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

[[Page 415]]

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 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 Secs. 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 Secs. 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

[[Page 416]]

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;
    (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

[[Page 417]]

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;
    (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;

[[Page 418]]

    (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 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

[[Page 419]]

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 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,

[[Page 420]]

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 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

[[Page 421]]

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, 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

[[Page 422]]

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.



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

[[Page 423]]

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.
    (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

[[Page 424]]

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 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,

[[Page 425]]

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 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

[[Page 426]]

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 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

[[Page 427]]

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
    (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.

[[Page 428]]

    (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 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.

[[Page 429]]

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 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

[[Page 430]]

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 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;

[[Page 431]]

section 1407(F) of the Victims of Crime Act; the nondiscrimination 
provision of section 809 of the Crime Control Act, or the cross-
referenced provisions of the Emergency Federal Law Enforcement 
Assistance Program. The method of notifying recipients of their non-
compliance with section 809 (the nondiscrimination provison of the Crime 
Control Act and 28 CFR 42.208.
    (b) These procedures do not apply to hearings requested under the 
Public Safety Officers' Benefits Act, 42 U.S.C. 3796, et seq. The 
hearing and appeal procedures available to claimants denied benefits 
under that Act are set forth in the appendix to 28 CFR part 32.
    (c) These procedures do not apply to subgrant applicants or to 
recipients or third party beneficiaries of block or formula grants 
awarded to a State.
    (d) These procedures do not apply to categorical grant applicants.
    (e) These procedures do not apply to private sector/prison industry 
enhancement certification applicants; Regional Information Sharing 
Systems grant applicants; surplus Federal property certification 
applicants; or the State reimbursement program for Incarcerated Mariel-
Cubans.



Sec. 18.3  Definitions.

    (a) Block or formula grant applicant or recipient means an applicant 
for a grant awarded under the provisions of part D of the Crime Control 
Act; part B, subpart I of the Juvenile Justice Act; and sections 1403 
and 1404 of the Victims of Crime Act.
    (b) Categorical grant recipient means a public or private agency 
which has received a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (c) Categorical grant applicant means a public or private agency 
which has applied for a research, statistics, discretionary, technical 
assistance, special emphasis, training, concentration of Federal effort 
or other direct Federal assistance award of grant funds.
    (d) Grant includes cooperative agreements and means a direct award 
of financial assistance from OJP, BJA, NIJ, OJJDP, BJS or OVC.
    (e) Crime Control Act means the Omnibus Crime Control and Safe 
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended.
    (f) Juvenile Justice Act means the Juvenile Justice and Delinquency 
Prevention Act of 1974, 42 U.S.C. 5601, et seq., as amended.
    (g) Responsible agency means the organizational unit whose action is 
being appealed. This will be OJP, NIJ, BJS, OJJDP, BJA or OVC as 
appropriate. In hearings requested under the nondiscrimination 
provisions of the Crime Control Act, the responsible agency is OJP. In 
hearings requested to contest block or formula grant denials or 
terminations or categorical grant terminations, the responsible agency 
is the organizational unit that took the action at issue: OJP, BJA, 
OJJDP, NIJ, BJS or OVC.
    (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

[[Page 432]]

grantee is likely to prevail on the merits of the issue at a full 
hearing requested under 28 CFR 42.215. The grantee shall have the burden 
of persuading the hearing officer that the grantee is likely to prevail 
on the merits.
    (d) The hearing officer may permit the parties to argue the issue by 
briefs, oral argument, or the presentation of testimony and exhibits. 
The hearing officer shall accept as evidence documents and other 
exhibits which can reasonably be authenticated and subjected to cross-
examination at a full hearing.
    (e) The hearing officer shall make the final decision on the issue 
within 15 days after the conclusion of the preliminary hearing.



Sec. 18.5  Hearings.

    (a) Whenever the responsible agency official finds that there has 
been a substantial failure to comply with:
    (1) The provisions of the Crime Control Act, the Juvenile Justice 
Act, or the Victims of Crime Act;
    (2) Regulations promulgated by the responsible agency pursuant to 
appropriate statutory authority; or
    (3) A plan or application submitted in accordance with the 
provisions of the Crime Control Act; the Juvenile Justice Act, the 
Victims of Crime Act, or the provisions of any other applicable Federal 
act, regulation or guideline;

the responsible agency shall notify the grantee or applicant State that 
all or part of its grant or subgrant will be terminated or suspended 
until the responsible agency is satisfied that there is no longer such 
failure.
    (b) The notice shall contain:
    (1) A statement of facts sufficient to inform the party of the 
reasons for the agency's proposed action;
    (2) A statement of the nature of the action proposed to be taken; 
and
    (3) A reference of the available appeal rights.
    (c) If a block or formula grant applicant or recipient or a 
categorical grant recipient wishes to appeal any action covered by 
Sec. 18.5(a) it may request a review of the issues in controversy within 
30 days after notice of termination, noncompliance or denial by writing 
to:

Office of General Counsel, office of Justice Programs, U.S. Department 
of Justice, 633 Indiana Avenue NW., Room 1268, Washington, DC 20531.

    (d) The request for a review shall contain:
    (1) A factual statement sufficient to inform the responsible agency 
of the nature of the issues involved;
    (2) A recital of the relief requested; and
    (3) A request for an oral hearing, or in the alternative, an 
opportunity to submit only written information or argument to a hearing 
officer.
    (e) If the responsible agency official determines that basis for the 
appeal in Sec. 18.5(c) would not, if substantiated, establish a basis 
for grant award or continuation, the official may take final agency 
action on the appeal.
    (f) The responsible agency or its representative may attempt to 
informally resolve a controversy arising under 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

[[Page 433]]

noncompliance. Only a grantee determined to be in noncompliance may 
request a compliance hearing.



Sec. 18.6  Conduct of hearings.

    (a) A hearing officer appointed by the responsible agency official 
shall preside over the hearing. The hearing officer may be an 
administrative law judge, or an employee of the Department of Justice 
who was not involved in the administration, investigation or prosecution 
of the matter at issue. In hearings held under the nondiscrimination 
provisions of the Crime Control Act, the Juvenile Justice Act or the 
Victims of Crime Act, the hearing officer shall be an administrative law 
judge.
    (b) If the hearing officer appointed is unacceptable to the 
appellant, it shall promptly inform the responsible agency official of 
the reasons for its position. The responsible agency official may select 
another hearing officer, or affirm the initial selection. In either 
case, the official shall inform the appellant of the reasons for the 
decision.
    (c) The hearing officer shall have the following powers and duties:
    (1) The power to hold hearings and regulate the course of the 
hearings and the conduct of the parties and their counsel;
    (2) The power to sign and issue subpoenas and other orders requiring 
access to records;
    (3) The power to administer oaths and affirmations;
    (4) The power to examine witnesses;
    (5) The power to rule on offers of proof and to receive evidence;
    (6) The power to take depositions or to cause depositions to be 
taken;
    (7) The power to hold conferences under Sec. 18.6(d) for the 
settlement or simplification of the issues or for any other proper 
purpose;
    (8) The power to consider and rule upon procedural requests and 
other motions, including motions for default;
    (9) The duty to conduct fair and impartial hearings;
    (10) The duty to maintain order;
    (11) The duty to avoid unnecessary delay; and
    (12) All powers and duties reasonably necessary to perform the 
functions enumerated in subsections (1)-(11).
    (d) The hearing officer may call upon the parties to consider:
    (1) Simplification or clarification of the issues;
    (2) Stipulations, admissions, agreements on documents, or other 
understandings which will expedite conduct of the hearing;
    (3) Limitation of the number of witnesses and of cumulative 
evidence;
    (4) Settlement of all or part of the issues in dispute;
    (5) Such other matters as may aid in the disposition of the case.
    (e) All hearings under this part shall be public unless otherwise 
ordered by the responsible agency official.
    (f) The hearing shall be conducted in conformity with sections 5-8 
of the Administrative Procedure Act, 5 U.S.C. 554-557.
    (g) The responsible agency shall have the burden of going forward 
with the 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.

[[Page 434]]



Sec. 18.7  Discovery.

    (a)(1) At any time after the initiation of the proceeding, the 
hearing officer may order, by subpoena if necessary, the taking of a 
deposition and the production of relevant documents by the deponent. 
Such order may be entered upon a showing that the deposition is 
necessary for discovery purposes, and that such discovery could not be 
accomplished by voluntary methods. Such an order may also be entered in 
extraordinary circumstances to preserve relevant evidence upon a showing 
that there is substantial reason to believe that such evidence could not 
be presented through a witness at the hearing. The decisive factors for 
a determination under this subsection, however, shall be fairness to all 
parties and the requirements of due process. Depositions may be taken 
orally or upon written questions before any person who has the power to 
administer oaths.
    (2) Each deponent shall be duly sworn, and any adverse party shall 
have the right to cross-examine. Objections to questions or documents 
shall be in short form, stating the grounds upon which objections are 
made. The questions propounded and the answers thereto, together with 
all objections made (but not including argument or debate), shall be 
reduced to writing and certified by the officer before whom the 
deposition was taken. Thereafter, the officer shall forward the 
deposition and one (1) copy thereof to the party at whose instance the 
deposition was taken and shall forward one (1) copy to the 
representative of the other party.
    (3) A deposition may be admitted into evidence as against any party 
who was present or represented at the taking of the deposition, or who 
had due notice thereof, if the hearing officer finds that there are 
sufficient reasons for admission and that the admission of the evidence 
would be fair to all parties and comport with the requirements of due 
process.
    (b)(1) At any time after the initiation of the appeal, any party may 
serve upon any other party written interrogatories to be answered by the 
party served, or by an authorized representative of the party if the 
party served is a corporate or governmental entity. The party served 
shall furnish all information which is available to it.
    (2) Each interrogatory shall be answered separately and fully in 
writing under oath by the party addressed or by an authorized 
representative. The time and manner of returning the interrogatory shall 
be prescribed by the hearing officer.



Sec. 18.8  Recommended decision.

    Within a reasonable time after the close of the record of the 
hearings conducted under Sec. 18.6, the hearing officer shall submit 
findings of fact, conclusions of law, and a recommended order to the 
responsible agency official, in writing. The hearing officer shall 
promptly make copies of these documents available to the parties.



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.

[[Page 435]]

    (b) If the responsible agency official finds that the appellant has:
    (1) Presented evidence or argument which is sufficiently significant 
to require the conduct of further proceedings; or
    (2) Shown some defect in the conduct of the initial hearing 
sufficient to cause substantial unfairness or an erroneous finding in 
that hearing, the responsible agency official may require that another 
oral hearing be held on one or more of the issues in controversy, or 
permit the dissatisfied party to present further evidence or argument in 
writing.
    (c) Any rehearing ordered by the responsible agency official shall 
be conducted pursuant to Secs. 18.5-18.8.



PART 19_USE OF PENALTY MAIL IN THE LOCATION AND RECOVERY OF MISSING
CHILDREN--Table of Contents



Sec.
19.1  Purpose.
19.2  Contact person for Missing Children Penalty Mail Program.
19.3  Policy.
19.4  Cost and percentage estimates.
19.5  Report to the Office of Juvenile Justice and Delinquency 
          Prevention.
19.6  Responsibility of DOJ organizational units for program 
          implementation and implementation procedures.

    Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301.

    Source: Order No. 1239-87, 52 FR 45174, Nov. 25, 1987, unless 
otherwise noted.



Sec. 19.1  Purpose.

    This regulation, providing for a Missing Children Penalty Mail 
Program in the Department of Justice (DOJ), is intended to comply with 
the regulation requirement set forth in section 1(a) of Public Law 99-
87, which adds a new section 3220 to title 39, U.S. Code. The regulation 
also implements the Office of Juvenile Justice and Delinquency 
Prevention (OJJDP) guideline (50 FR 46622) promulgated under the 
authority of 39 U.S.C. 3220(a)(1), and is intended to assist in the 
location and recovery of missing children through the use of DOJ penalty 
mail.



Sec. 19.2  Contact person for Missing Children Penalty Mail Program.

    The DOJ contact person for the Missing Children Penalty Mail Program 
is: Patricia Schellman, General Services Staff, Justice Management 
Division, U.S. Department of Justice, 10th and Constitution Ave., NW., 
Washington, DC 20530, telephone number (202) 633-2353.



Sec. 19.3  Policy.

    (a) The Department of Justice will supplement and expand the 
national effort to assist in the location and recovery of missing 
children by maximizing the economical use of missing children 
photographs and biographical information in domestic penalty mail 
directed to members of the public.
    (b) Because the use of inserts printed with missing children 
photographs and biographical information has been determined to be the 
most cost effective method for general application of the program, DOJ's 
first priority will be to insert, manually and via automated inserting 
equipment, photographs and biographical data related to missing children 
in a variety of types of penalty mail envelopes. These include:
    (1) Standard letter-size envelopes (4\1/2\"  x  9\1/2\");
    (2) Document-size envelopes (9\1/2\"  x  12", 9\1/2\  x  11\1/2\", 
10"  x  13"); and
    (3) Other envelopes (misc. size).
    (c)(1) Maximum consideration will be given to the use of missing 
children materials with high volume printing plant or distribution plan 
mail that will be sent to the public or to Federal, State or local 
government agencies. Every effort will be made to use the most cost 
effective and efficient methods of obtaining, distributing, and 
disseminating missing children information.
    (2) In instances when the printing of photograph(s) and biographical 
information directly on self-mailers and other publications 
(newsletters, bulletins, etc.) and/or on penalty mail envelopes proves 
to be practical and cost effective, this method may also be used. 
Photographs and biographical information related to missing children may 
be printed on the three types of penalty mail envelopes listed above.

[[Page 436]]

    (d) Missing children information shall not be placed on the 
``Penalty Indicia'', ``OCR Read Area'', ``Bar Code Read Area'', and 
``Return Address'' areas of standard letter-size envelopes per appendix 
A of the OJJDP guideline as published in the November 8, 1985, Federal 
Register (50 FR 46625).
    (e) The National Center for Missing and Exploited Children (National 
Center) will be the sole source from which DOJ will acquire the camera-
ready and other photographic and biographical materials to be 
disseminated for use by DOJ organizational units. When printing missing 
children information, DOJ will select subjects in accordance with the 
schedule published by the National Center.
    (f) DOJ will remove all printed penalty mail envelopes and other 
materials from circulation or other use (i.e.: Use or destroy) within a 
three month period from the date the National Center receives 
information or notice that a child whose photograph and biographical 
information have been made available to DOJ has been recovered or that 
the parent(s) or guardian's permission to use the child's photograph and 
biographical information has been withdrawn. The National Center will be 
responsible for immediately notifying the DOJ contact person, in 
writing, of the need to withdraw penalty mail envelopes and other 
materials related to a particular child from circulation. Photographs 
which were reasonably current as of the time of the child's 
disappearance shall be the only acceptable form of visual media or 
pictorial likeness used on or in DOJ penalty mail.
    (g) DOJ will give priority to penalty mail that:
    (1) Is addressed to members of the public and will be received in 
the United States, its territories and possessions; and
    (2) Is widely disseminated and read by DOJ employees such as inter- 
and intra-agency publications and other media.
    (h) All DOJ employee suggestions, ideas or recommendations for 
innovative, cost-effective techniques for implementation of the Missing 
Children Penalty Mail Program should be forwarded to the DOJ contact 
person. DOJ Mail Managers shall hold biannual meetings to discuss the 
status of implementation of the current plan, and to consider 
recommendations to improve future plan implementation.
    (i) This shall be the sole DOJ regulation implementing this program.



Sec. 19.4  Cost and percentage estimates.

    It is estimated that this program will cost DOJ $78,000 during the 
initial year. This figure is based on estimates of printing, inserting, 
and administrative costs. It is DOJ's objective that 50 percent of DOJ 
penalty mail contain missing children photographs and biographical 
information by the end of the first year of the program.



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.

[[Page 437]]



Sec. 19.6  Responsibility of DOJ organizational units for program
implementation and implementation procedures.

    (a) The General Services Staff, Justice Management Division (JMD), 
will be the liaison between the National Center and the principal 
organizational units of the Department. The General Services Staff, JMD 
shall be responsible for:
    (1) Developing and disseminating Departmentwide guidelines and 
monitoring the implementation of the Missing Children Penalty Mail 
Program.
    (2) Ordering camera-ready copies and other photographic and 
biographical material from the National Center, using the format 
established by the Center, and distributing the material within the 
Department of Justice.
    (3) Immediately notifying DOJ components, in writing, of the need to 
use or withdraw from circulation, within 90 days, penalty mail 
envelopes, inserts and other material related to a recovered child or 
child whose parent(s) or guardian has withdrawn consent to use the 
photograph and biographical information. See 28 CFR 0.1, Organizational 
Structure of the Department of Justice, for a listing of DOJ principal 
organizational units designated as components.
    (4) Collecting, analyzing and consolidating cost, mail volume data 
and other program related information and reporting to OJJDP, by June 
30, 1987, on DOJ's experience in implementing the program.
    (5) Conducting biannual meetings with selected components contacts 
to discuss current plans and solicit suggestions and/or recommendations 
for innovative and cost effective techniques to enhance the success of 
the program.
    (6) Providing guidance and assistance to components in internal 
program development and implementation.
    (7) Maintaining a list of DOJ personnel assigned to serve as Missing 
Children Program Coordinators for the components.
    (b) Bureau Mail Managers and components Executive/Administrative 
Officers shall be responsible for:
    (1) Establishing and implementing internal procedures and guidelines 
for the dissemination and use of missing children photographs and 
biographical information on or in domestic penalty mail. For example, 
the Bureau Mail Manager will provide guidance to Bureau offices on the 
types of missing children information which are available for use on or 
in penalty mail and establish procedures for obtaining and using the 
information, as appropriate.
    (2) Identifying and reviewing publications and other Bureau media 
for suitable use in disseminating missing children photographs and 
information and obtaining approval for its use from the originating 
office.
    (3) Ensuring that all printed penalty mail envelopes, inserts, and 
other penalty mail material containing photographs and biographical 
information on a missing child are used or removed from circulation or 
other use within 90 days from the date of DOJ notification 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.

[[Page 438]]

    (3) Maintaining and disseminating supplies of inserts, envelopes, 
and camera-ready copy (for publications) to personnel who prepare 
domestic penalty mail for dispatch through the U.S. Postal Service.
    (4) Notifying employees within their organizational unit to use or 
remove from circulation all printed penalty mail envelopes, inserts, and 
other material containing a photograph and biographical information on a 
missing child within 90 days from the date of DOJ notification by the 
National Center to withdraw material for that child.
    (5) Serving as the central point of contact within their 
organizations for all matters relating to the Missing Children Penalty 
Mail Program.
    (6) Collecting and reporting essential management information 
relating to the implemention of this program within their organizational 
unit and reporting this information to the appropriate Bureau Mail 
Manager or component Executive/Administrative Officer.
    (d) Missing children pictures and biographical information shall not 
be:
    (1) Printed on penalty mail envelopes, inserts, or other materials 
which are ordered and/or stocked in quantities which represent more than 
a 90 day supply.
    (2) Printed on blank pages or covers of publications that may be 
included in the Superintendent of Documents' Sales Program or are to be 
distributed to depository Libraries.
    (3) Inserted in any envelope and/or publication the contents of 
which may be construed to be inappropriate for association with the 
Missing Children Penalty Mail Program.
    (e) Each component shall provide the General Services Staff, Justice 
Management Division, with the name(s), telephone number(s) and mailing 
address(es) of each designated Missing Children Program Coordinator 
within 30 days of the effective date of this regulation.
    (f) Each component shall submit a quarterly report to the General 
Services Staff, Justice Management Division, within 5 days after the 
close of each Fiscal Year quarter providing the specific information 
identified in Sec. 19.5 concerning implementation and participation in 
the program.



PART 20_CRIMINAL JUSTICE INFORMATION SYSTEMS--Table of Contents



                      Subpart A_General Provisions

Sec.
20.1  Purpose.
20.2  Authority.
20.3  Definitions.

  Subpart B_State and Local Criminal History Record Information Systems

20.20  Applicability.
20.21  Preparation and submission of a Criminal History Record 
          Information Plan.
20.22  Certification of compliance.
20.23  Documentation: Approval by OJARS.
20.24  State laws on privacy and security.
20.25  Penalties.

   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. 101-515, as amended by 
Pub. L. 104-99, set out in the notes to 28 U.S.C. 534.

    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.

[[Page 439]]



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 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

[[Page 440]]

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.
    (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.

[[Page 441]]



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.
    (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

[[Page 442]]

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 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

[[Page 443]]

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.
    (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

[[Page 444]]

entitled to review without undue burden to either the criminal justice 
agency or the individual, any criminal history record information 
maintained about the individual and obtain a copy thereof when necessary 
for the purpose of challenge or correction;
    (2) Administrative review and necessary correction of any claim by 
the individual to whom the information relates that the information is 
inaccurate or incomplete is provided;
    (3) The State shall establish and implement procedures for 
administrative appeal where a criminal justice agency refuses to correct 
challenged information to the satisfaction of the individual to whom the 
information relates;
    (4) Upon request, an individual whose record has been corrected 
shall be given the names of all non-criminal justice agencies to whom 
the data has been given;
    (5) The correcting agency shall notify all criminal justice 
recipients of corrected information; and
    (6) The individual's right to access and review of criminal history 
record information shall not extend to data contained in intelligence, 
investigatory, or other related files and shall not be construed to 
include any other information than that defined by Sec. 20.3(b).

[41 FR 11715, Mar. 19, 1976, as amended at 42 FR 61595, Dec. 6, 1977]



Sec. 20.22  Certification of compliance.

    (a) Each State to which these regulations are applicable shall with 
the submission of its plan provide a certification that to the maximum 
extent feasible action has been taken to comply with the procedures set 
forth in the plan. Maximum extent feasible, in this subsection, means 
actions which can be taken to comply with the procedures 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:

[[Page 445]]

    (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. For civil 
penalties assessed after August 1, 2016, whose associated violations 
occurred after November 2, 2015, see the civil penalty amount as 
provided in 28 CFR 85.5. In addition, 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; AG Order 3690-2016, 81 FR 42499, June 30, 2016]



   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.
    (e) The FBI may routinely establish and collect fees for noncriminal 
justice fingerprint-based and other identification services as 
authorized by Federal law. These fees apply to Federal, State

[[Page 446]]

and any other authorized entities requesting fingerprint identification 
records and name checks for noncriminal justice purposes.
    (1) The Director of the FBI shall review the amount of the fee 
periodically, but not less than every four years, to determine the 
current cost of processing fingerprint identification records and name 
checks for noncriminal justice purposes.
    (2) Fee amounts and any revisions thereto shall be determined by 
current costs, using a method of analysis consistent with widely 
accepted accounting principles and practices, and calculated in 
accordance with the provisions of 31 U.S.C. 9701 and other Federal law 
as applicable.
    (3) Fee amounts and any revisions thereto shall be published as a 
notice in the Federal Register.
    (f) The FBI will collect a fee for providing noncriminal name-based 
background checks of the FBI Central Records System through the National 
Name Check Program pursuant to the authority in Pub. L. 101-515 and in 
accordance with paragraphs (e)(1), (2) and (3) of this section.

[41 FR 11715, Mar. 19, 1976, as amended at 75 FR 18755, Apr. 13, 2010; 
75 FR 24798, May 6, 2010]



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);
    (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

[[Page 447]]

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 Secs. 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.



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.

[[Page 448]]



    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 Secs. 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 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

[[Page 449]]

responsible for preparing the plan. This specific determination should 
be made by the Governor. The State has 90 days from the publication of 
these revised regulations to submit the portion of the plan covering 
Secs. 20.21(b) and 20.21(f).
    Sec. 20.21(a)(1). Section 524(b) of the Act requires that LEAA 
insure criminal history information be current and that, to the maximum 
extent feasible, it contain disposition as well as current data.
    It is, however, economically and administratively impractical to 
maintain complete criminal histories at the local level. Arrangements 
for local police departments to keep track of dispositions by agencies 
outside of the local jurisdictions generally do not exist. It would, 
moreover, be bad public policy to encourage such arrangements since it 
would result in an expensive duplication of files.
    The alternatives to locally kept criminal histories are records 
maintained by a central State repository. A central State repository is 
a State agency having the function pursuant to a statute or executive 
order of maintaining comprehensive statewide criminal history record 
information files. Ultimately, through automatic data processing the 
State level will have the capability to handle all requests for in-State 
criminal history information.
    Section 20.20(a)(1) is written with a centralized State criminal 
history repository in mind. The first sentence of the subsection states 
that complete records should be retained at a central State repository. 
The word ``should'' is permissive; it suggests but does not mandate a 
central State repository.
    The regulations do require that States establish procedures for 
State and local criminal justice agencies to query central State 
repositories wherever they exist. Such procedures are intended to insure 
that the most current criminal justice information is used.
    As a minimum, criminal justice agencies subject to these regulations 
must make inquiries of central State repositories whenever the 
repository is capable of meeting the user's request within a reasonable 
time. Presently, comprehensive records of an individual's transactions 
within a State are maintained in manual files at the State level, if at 
all. It is probably unrealistic to expect manual systems to be able 
immediately to meet many rapid-access needs of police and prosecutors. 
On the other hand, queries of the State central repository for most 
noncriminal justice purposes probably can and should be made prior to 
dissemination of criminal history record information.
    Sec. 20.21(b). The limitations on dissemination in this subsection 
are essential to fulfill the mandate of section 524(b) of the Act which 
requires the Administration to assure that the ``privacy of all 
information is adequately provided for and that information shall only 
be used for law enforcement and criminal justice and other lawful 
purposes.'' The categories for dissemination established in this section 
reflect suggestions by hearing witnesses and respondents submitting 
written commentary.
    The regulations distinguish between conviction and nonconviction 
information insofar as dissemination is concerned. Conviction 
information is currently made available without limitation in many 
jurisdictions. Under these regulations, conviction data and pending 
charges could continue to be disseminated routinely. No statute, 
ordinance, executive order, or court rule is necessary in order to 
authorize dissemination of conviction data. However, nothing in the 
regulations shall be construed to negate a State law limiting such 
dissemination.
    After December 31, 1977, dissemination of nonconviction data would 
be allowed, if authorized by a statute, ordinance, executive order, or 
court rule, decision, or order. The December 31, 1977, deadline allows 
the States time to review and determine the kinds of dissemination for 
non-criminal justice purposes to be authorized. When a State enacts 
comprehensive legislation in this area, such legislation will govern 
dissemination by local jurisdictions within the State. It is possible 
for a public record law which has been construed by the State to 
authorize access to the public of all State records, including criminal 
history record information, to be considered as statutory authority 
under this subsection. Federal legislation and executive orders can also 
authorize dissemination and would be relevant authority.
    For example, Civil Service 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

[[Page 450]]

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.
    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

[[Page 451]]

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, 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.

[[Page 452]]


    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 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

[[Page 453]]

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 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);

[[Page 454]]

    (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.
    (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

[[Page 455]]

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 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

[[Page 456]]

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 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.

[[Page 457]]

    (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 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

[[Page 458]]

under which information identifiable to a private person will be 
collected.
    (b) The Privacy Certificate shall briefly describe the project and 
shall contain assurance by the applicant that:
    (1) Data identifiable to a private person will not be used or 
revealed, except as authorized under Secs. 22.21, 22.22.
    (2) Access to data will be limited to those employees having a need 
therefore and that such persons shall be advised of and agree in writing 
to comply with these regulations.
    (3) All subcontracts which require access to identifiable data will 
contain conditions meeting the requirements of Sec. 22.24.
    (4) To the extent required by Sec. 22.27 any private persons from 
whom identifiable data are collected or obtained, either orally or by 
means of written questionnaire, shall be advised that the data will only 
be used or revealed for research or statistical purposes and that 
compliance with requests for information is not mandatory. Where the 
notification requirement is to be waived, pursuant to Sec. 22.27(c), a 
justification must be included in the Privacy Certificate.
    (5) Adequate precautions will be taken to insure administrative and 
physical security of identifiable data.
    (6) A log will be maintained indicating that identifiable data have 
been transmitted to persons other than BJA, OJJDP, BJS, NIJ, or OJP or 
grantee/contractor staff or subcontractors, that such data have been 
returned, or that alternative arrangements have been agreed upon for 
future maintenance of such data.
    (7) Project plans will be designed to preserve anonymity of private 
persons to whom information relates, including, where appropriate, name-
stripping, coding of data, or other similar procedures.
    (8) Project findings and reports prepared for dissemination will not 
contain information which can reasonably be expected to be identifiable 
to a private person except as authorized under Sec. 22.22.
    (c) The applicant shall attach to the Privacy Certification a 
description of physical and/or administrative procedures to be followed 
to insure the security of the data to meet the requirements of 
Sec. 22.25.

[41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986]



Sec. 22.24  Information transfer agreement.

    Prior to the transfer of any identifiable information to persons 
other than BJA, OJJDP, BJS, NIJ, or OJP or project staff, an agreement 
shall be entered into which shall provide, as a minimum, that the 
recipient of data agrees that:
    (a) Information identifiable to a private person will be used only 
for research and statistical purposes.
    (b) Information identifiable to a private person will not be 
revealed to any person for any purpose except where the information has 
already been included in research findings (and/or data bases) and is 
revealed on a need-to-know basis for research or statistical purposes, 
provided that such transfer is approved by the person providing 
information under the agreement, or authorized under Sec. 22.24(e).
    (c) Knowingly and willfully using or disseminating information 
contrary to the provisions of the agreement shall 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

[[Page 459]]

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 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;

[[Page 460]]

    (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. For civil penalties assessed after August 1, 2016, whose 
associated violations occurred after November 2, 2015, see the civil 
penalty amount as provided in 28 CFR 85.5.

[Order No. 2249-99, 64 FR 47102, Aug. 30, 1999, as amended by AG Order 
3690-2016, 81 FR 42499, June 30, 2016]



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 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;

[[Page 461]]

    (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.
    (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.

[[Page 462]]

    (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 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,

[[Page 463]]

2701-2709 and 3121-3125, or any applicable State statute related to 
wiretapping and surveillance.
    (l) A project shall make assurances that there will be no harassment 
or interference with any lawful political activities as part of the 
intelligence operation.
    (m) A project shall adopt sanctions for unauthorized access, 
utilization, or disclosure of information contained in the system.
    (n) A participating agency of an interjurisdictional intelligence 
system must maintain in its agency files information which documents 
each submission to the system and supports compliance with project entry 
criteria. Participating agency files supporting system submissions must 
be made available for reasonable audit and inspection by project 
representatives. Project representatives will conduct participating 
agency inspection and audit in such a manner so as to protect the 
confidentiality and sensitivity of participating agency intelligence 
records.
    (o) The Attorney General or designee may waive, in whole or in part, 
the applicability of a particular requirement or requirements contained 
in this part with respect to a criminal intelligence system, or for a 
class of submitters or users of such system, upon a clear and convincing 
showing that such waiver would enhance the collection, maintenance or 
dissemination of information in the criminal intelligence system, while 
ensuring that such system would not be utilized in violation of the 
privacy and constitutional rights of individuals or any applicable state 
or federal law.



Sec. 23.30  Funding guidelines.

    The following funding guidelines shall apply to all Crime Control 
Act funded discretionary assistance awards and Bureau of Justice 
Assistance (BJA) formula grant program subgrants, a purpose of which is 
to support the operation of an intelligence system. Intelligence systems 
shall only be funded where a grantee/subgrantee agrees to adhere to the 
principles set forth above and the project meets the following criteria:
    (a) The proposed collection and exchange of criminal intelligence 
information has been coordinated with and will support ongoing or 
proposed investigatory or prosecutorial activities relating to specific 
areas of criminal activity.
    (b) The areas of criminal activity for which intelligence 
information is to be utilized represent a significant and recognized 
threat to the population and:
    (1) Are either undertaken for the purpose of seeking illegal power 
or profits or pose a threat to the life and property of citizens; and
    (2) Involve a significant degree of permanent criminal organization; 
or
    (3) Are not limited to one jurisdiction.
    (c) The head of a government agency or an individual with general 
policy making authority who has been expressly delegated such control 
and supervision by the head of the agency will retain control and 
supervision of information collection and dissemination for the criminal 
intelligence system. This official shall certify in writing that he or 
she takes full responsibility and will be accountable for the 
information maintained by and disseminated from the system and that the 
operation of the system will be in compliance with the principles set 
forth in Sec. 23.20.
    (d)(1) Where the system is an interjurisdictional criminal 
intelligence system, the governmental agency which exercises control and 
supervision 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.

[[Page 464]]

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.



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.

[[Page 465]]

    (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 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

[[Page 466]]

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.



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

[[Page 467]]

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 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.

[[Page 468]]

    (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 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.

[[Page 469]]



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, Firearms and Explosives.
    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.
    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.

[[Page 470]]

    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 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.

[[Page 471]]

    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; Order No. 3477-2014, 79 FR 69051, 
Nov. 20, 2014]



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 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.

[[Page 472]]



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:
    (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

[[Page 473]]

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 ``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 purposes of:

[[Page 474]]

    (1) Providing information to Federal, state, tribal, 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;
    (2) Responding to an inquiry from the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives 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); or,
    (3) Disposing of firearms in the possession of a Federal, state, 
tribal, or local criminal justice agency.

[Order No. 2186-98, 63 FR 58307, Oct. 30, 1998, as amended by Order No. 
2727-2004, 69 FR 43900, July 23, 2004; Order No. 3477-2014, 79 FR 69051, 
Nov. 20, 2014]



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 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

[[Page 475]]

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 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

[[Page 476]]

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 denied transaction records obtained or created in the 
course of the operation of the system will be retained in the Audit Log 
for 10 years, after which time they will be transferred to an 
appropriate FBI-maintained electronic database.
    (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 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

[[Page 477]]

    (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; Order No. 3477-2014, 79 FR 69051, Nov. 20, 2014]



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.
    (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

[[Page 478]]

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).
    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.

[[Page 479]]

    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. 
30102(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;

[74 FR 5776, Jan. 30, 2009, as amended at 77 FR 18916, Mar. 29, 2012]



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;
    (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

[[Page 480]]

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 registered 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 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.

[[Page 481]]

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.

[74 FR 5776, Jan. 30, 2009, as amended at 77 FR 18916, Mar. 29, 2012]



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:
    (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;

[[Page 482]]

    (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 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

[[Page 483]]

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;
    (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

[[Page 484]]

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 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

[[Page 485]]

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: 78 FR 58183, Sept. 23, 2013, 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 the Attorney General 
certifies that a State has established such a mechanism, sections 2262, 
2263, 2264, and 2266 of chapter 154 of title 28 apply in relation to 
Federal habeas corpus review of State capital cases in which counsel was 
appointed pursuant to that mechanism. These sections will also apply in 
Federal habeas corpus review of capital cases from a State with a 
mechanism certified by the Attorney General in which petitioner validly 
waived counsel, petitioner retained counsel, or petitioner was found not 
to be indigent, as provided in section 2261(b) of title 28. 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--
    Appointment means provision of counsel in a manner that is 
reasonably timely in light of the time limitations for seeking State and 
Federal postconviction review and the time required for developing and 
presenting claims in the postconviction proceedings.
    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 of the State.
    Indigent prisoners means persons whose net financial resources and 
income are insufficient to obtain qualified counsel.
    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.

    The Attorney General will certify that a State meets the 
requirements for certification under 28 U.S.C. 2261 and 2265 if the 
Attorney General determines that the State has established a mechanism 
for the appointment of counsel for indigent prisoners under sentence of 
death in State postconviction proceedings that satisfies the following 
standards:
    (a) 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 requested 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

[[Page 486]]

    (3) Denying the appointment of counsel, upon a finding that the 
prisoner is not indigent.
    (b) The mechanism must provide for appointment of competent counsel 
as defined in State standards of competency for such appointments.
    (1) A State's standards of competency are presumptively adequate if 
they meet or exceed either of the following criteria:
    (i) Appointment of counsel who have been admitted to the bar for at 
least five years and have at least three years of postconviction 
litigation experience. But a court, for good cause, may appoint other 
counsel whose background, knowledge, or experience would otherwise 
enable them to properly represent the petitioner, with due consideration 
of the seriousness of the penalty and the unique and complex nature of 
the litigation; or
    (ii) Appointment of counsel meeting qualification standards 
established in conformity with 42 U.S.C. 14163(e)(1) and (2)(A), if the 
requirements of 42 U.S.C. 14163(e)(2)(B), (D), and (E) are also 
satisfied.
    (2) Competency standards not satisfying the benchmark criteria in 
paragraph (b)(1) of this section will be deemed adequate only if they 
otherwise reasonably assure a level of proficiency appropriate for State 
postconviction litigation in capital cases.
    (c) The mechanism must provide for compensation of appointed 
counsel.
    (1) A State's provision for compensation is presumptively adequate 
if the authorized compensation is comparable to or exceeds--
    (i) The compensation of counsel appointed pursuant to 18 U.S.C. 3599 
in Federal habeas corpus proceedings reviewing capital cases from the 
State;
    (ii) The compensation of retained counsel in State postconviction 
proceedings in capital cases who meet State standards of competency 
sufficient under paragraph (b);
    (iii) The compensation of appointed counsel in State appellate or 
trial proceedings in capital cases; or
    (iv) The compensation of attorneys representing the State in State 
postconviction proceedings in capital cases, subject to adjustment for 
private counsel to take account of overhead costs not otherwise payable 
as reasonable litigation expenses.
    (2) Provisions for compensation not satisfying the benchmark 
criteria in paragraph (c)(1) of this section will be deemed adequate 
only if the State mechanism is otherwise reasonably designed to ensure 
the availability for appointment of counsel who meet State standards of 
competency sufficient under paragraph (b) of this section.
    (d) The mechanism must provide for payment of reasonable litigation 
expenses of appointed counsel. Such expenses may include, but are not 
limited to, payment for investigators, mitigation specialists, mental 
health and forensic science experts, and support personnel. Provision 
for reasonable litigation expenses may incorporate presumptive limits on 
payment only if means are authorized for payment of necessary expenses 
above such limits.



Sec. 26.23  Certification process.

    (a) An appropriate State official may request in writing that the 
Attorney General determine whether the State meets the requirements for 
certification under Sec. 26.22 of this subpart.
    (b) Upon receipt of a State's request for certification, the 
Attorney General will make the request publicly available on the 
Internet (including any supporting materials included in the request) 
and publish a notice in the Federal Register--
    (1) Indicating that the State has requested certification;
    (2) Identifying the Internet address at which the public may view 
the State's request for certification; and
    (3) Soliciting public comment on the request.
    (c) The State's request will be reviewed by the Attorney General. 
The review will include consideration of timely public comments received 
in response to the Federal Register notice under paragraph (b) of this 
section, or any subsequent notice the Attorney General may publish 
providing a further opportunity for comment. 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.

[[Page 487]]

    (d) A certification by the Attorney General reflects the Attorney 
General's determination that the State capital counsel mechanism 
reviewed under paragraph (c) of this section satisfies chapter 154's 
requirements. A State may request a new certification by the Attorney 
General to ensure the continued applicability of chapter 154 to cases in 
which State postconviction proceedings occur after a change or alleged 
change in the State's certified capital counsel mechanism. Changes in a 
State's capital counsel mechanism do not affect the applicability of 
chapter 154 in any case in which a mechanism certified by the Attorney 
General existed throughout State postconviction proceedings in the case.
    (e) A certification remains effective for a period of five years 
after the completion of the certification process by the Attorney 
General and any related judicial review. If a State requests re-
certification at or before the end of that five-year period, the 
certification remains effective for an additional period extending until 
the completion of the re-certification process by the Attorney General 
and any related judicial review.



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.



             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

[[Page 488]]

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.
    (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.

[[Page 489]]

    (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 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

[[Page 490]]

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; 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.

[[Page 491]]

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.
    (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

[[Page 492]]

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;
    (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--

[[Page 493]]

    (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 No. 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 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

[[Page 494]]

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 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

[[Page 495]]

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) 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

[[Page 496]]

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 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

[[Page 497]]

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
    (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

[[Page 498]]

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 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

[[Page 499]]

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 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?

[[Page 500]]

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 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:

[[Page 501]]

    (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 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.

[[Page 502]]


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.
    (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

[[Page 503]]

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.



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.

[[Page 504]]

        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 5611(b); 42 U.S.C. 5631-5633.

    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 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

[[Page 505]]

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 
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.

[[Page 506]]



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 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

[[Page 507]]

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 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

[[Page 508]]

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, 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

[[Page 509]]

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 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

[[Page 510]]

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 detention 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 detention 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 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

[[Page 511]]

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 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.

[[Page 512]]

    (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 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

[[Page 513]]

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 detention beyond the 
twenty-four hour period described in paragraph (f)(4)(i) of this section 
when the facility is located where conditions of distance to be traveled 
or the lack of highway, road, or other ground transportation do not 
allow for court appearances within twenty-four hours, so that a brief 
(not to exceed an additional forty-eight hours) delay is excusable; or 
the facility is located where conditions of safety exist (such as 
severely adverse, life-threatening weather conditions that do not allow 
for reasonably safe travel), in which case the time for an appearance 
may be delayed until twenty-four hours after the time that such 
conditions allow for reasonably safe travel. States may use these 
additional statutory allowances only where the precedent requirements 
set forth in paragraphs (f)(4) (i) through (v) of this section have been 
complied with. This may necessitate statutory or judicial (court rule or 
opinion) relief within the State from the twenty-four hour initial court 
appearance standard required by paragraph (f)(4)(i) of this section.
    (5) Reporting requirement. The State shall report annually to the 
Administrator of OJJDP on the results of monitoring for the core 
requirements in the JJDPA at 42 U.S.C. 5633(a) (11), (12), and (13). The 
reporting period should provide 12 months of data for each federal 
fiscal year, for 85% of facilities within the State that are required to 
report compliance data, and States must extrapolate and report, in a 
statistically valid manner, data for the remaining 15% of facilities. 
The report shall be submitted to the Administrator of OJJDP by February 
28 of each year, except that the Administrator may grant an extension of 
the reporting deadline to March 31st, for good cause, upon request by a 
State.
    (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

[[Page 514]]

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 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 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 
detention and confinement of both juveniles and adults;
    (E) The total number of State approved juvenile detention centers 
located within the same building or on the same grounds as an adult jail 
or lockup, including a list of such facilities;
    (F) The total number of juveniles detained in State approved 
collocated facilities that were not separated from the management, 
security or direct care staff of the adult jail or lockup;
    (G) The total number of juvenile detention centers located within 
the same building or on the same grounds as an adult jail or lockup that 
have not been approved by the State, including a list of such 
facilities; and
    (H) The total number of juveniles detained in collocated facilities 
not approved by the State that were not sight and sound separated from 
adult criminal offenders.
    (iv) To demonstrate the extent of compliance with section 223(a)(14) 
of the JJDP Act, the report must include, at a minimum, the following 
information for the current reporting period:
    (A) Dates covered by the current reporting period;
    (B) The total number of adult jails in the State AND the number 
inspected on-site;
    (C) The total number of adult lockups in the State AND the number 
inspected on-site;
    (D) The total number of adult jails holding juveniles during the 
past twelve months;

[[Page 515]]

    (E) The total number of adult lockups holding juveniles during the 
past twelve months;
    (F) The total number of accused juvenile criminal-type offenders 
detained 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 
detained 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 
detained 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 detained 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)(11), (12), and (13) of the Act are met.
    (i) In determining the compliance standards to be applied to States' 
FY 2016 compliance monitoring data, the Administrator shall collect all 
of the data from each of the States' CY 2013 compliance reports, remove 
one negative outlier in each data collection period for DSO, separation, 
and jail removal, and apply a standard deviation factor of two to 
establish the compliance standards to be applied, which shall be posted 
on OJJDP's Web site no later than March 3, 2017.
    (ii) In determining the compliance standards to be applied to 
States' FY 2017 compliance monitoring data, the Administrator shall 
collect all of the data from each of the States' CY 2013 and FY 2016 
compliance reports (removing, when appropriate or applicable, one 
negative outlier in each data collection period for DSO, separation, and 
jail removal) and apply a standard deviation factor of not less than one 
to establish the compliance standards to be applied, which shall be 
posted on OJJDP's Web site by August 31, 2017.
    (iii) In determining the compliance standards to be applied to 
States' FY 2018 and subsequent years' compliance monitoring data, the 
Administrator shall take the average of the States' compliance 
monitoring data from not less than two years prior to the compliance 
reporting period with respect to which the compliance determination will 
be made (removing, when applicable, one negative outlier in each data 
collection period for DSO, separation, and jail removal) and apply a 
standard deviation of not less than one to establish the compliance 
standards to be applied, except that the Administrator may make 
adjustments to the methodology described in this paragraph as he deems 
necessary and shall post the

[[Page 516]]

compliance standards on OJJDP's Web site by August 31st of each year.
    (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.
    (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.''

[[Page 517]]

    (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.
    (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

[[Page 518]]

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; 82 
FR 4792, Jan. 17, 2017; 82 FR 29734, June 30, 2017]



Sec. 31.304  Definitions.

    (a) Private agency. A private non-profit agency, organization or 
institution is:
    (1) Any corporation, foundation, trust, association, cooperative, or 
accredited institution of higher education not under public supervision 
or control; and
    (2) Any other agency, organization or institution which operates 
primarily for scientific, education, service, charitable, or similar 
public purposes, but which is not under public supervision or control, 
and no part of the net earnings of which inures or may lawfully inure to 
the benefit of any private shareholder or individual, and which has been 
held by IRS to be tax-exempt under the provisions of section 501(c)(3) 
of the 1954 Internal Revenue Code.
    (b) Secure. As used to define a detention or correctional facility 
this term includes residential facilities which include construction 
features designed to physically restrict the movements and activities of 
persons in custody such as locked rooms and buildings, fences, or other 
physical structures. It does not include facilities where physical 
restriction of movement or activity is provided solely through facility 
staff.
    (c) Facility. A place, an institution, a building or part thereof, 
set of buildings or an area whether or not enclosing a building or set 
of buildings which is used for the lawful custody and treatment of 
juveniles and may be owned and/or operated by public and private 
agencies.
    (d) Juvenile who is accused of having committed an offense. A 
juvenile with respect to whom a petition has been filed In the juvenile 
court or other action has occurred alleging that such juvenile is a 
juvenile offender, i.e., a criminal-type offender or a status offender, 
and no final adjudication has been made by the juvenile court.
    (e) Juvenile who has been adjudicated as having committed an 
offense. A juvenile with respect to whom the juvenile court has 
determined that such juvenile is a juvenile offender, i.e., a criminal-
type offender or a status offender.
    (f) Juvenile offender. An individual subject to the exercise of 
juvenile court jurisdiction for purposes of adjudication and treatment 
based on age and offense limitations by defined as State law, i.e., a 
criminal-type offender or a status offender.
    (g) Criminal-type offender. A juvenile offender who has been charged 
with or adjudicated for conduct which would, under the law of the 
jurisdiction in

[[Page 519]]

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.
    (q) Detain or confine means to hold, keep, or restrain a person such 
that he is not free to leave, or such that a reasonable person would 
believe that he is not free to leave, except that a juvenile held by law 
enforcement solely for the purpose of returning him to his parent or 
guardian or pending his transfer to the custody of a child welfare or 
social service agency is not detained or confined within the meaning of 
this definition.

[60 FR 28440, May 31, 1995, as amended at 82 FR 4793, Jan. 17, 2017]

                    General Conditions and Assurances



Sec. 31.400  Compliance with statute.

    The applicant State must assure and certify that the State and its 
subgrantees and contractors will comply with applicable provisions of 
the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 
as amended, and with the provisions of the Juvenile Justice and 
Delinquency Prevention Act of 1974, Pub. L. 93-415, as amended, and the 
provisions of the current edition of OJP Financial and Administrative 
Guide for Grants, M7100.1.



Sec. 31.401  Compliance with other Federal laws, orders, circulars.

    The applicant State must further assure and certify that the State 
and its subgrantees and contractors will adhere to other applicable 
Federal laws, orders and OMB circulars. These general Federal laws and 
regulations are described in greater detail in the Financial and 
Administrative Guide for Grants, M7100.1, and the Formula Grant 
Application Kit.



Sec. 31.402  Application on file.

    Any Federal funds awarded pursuant to an application must be 
distributed and expended pursuant to and in accordance with the programs 
contained in the applicant State's current approved application. Any 
departures therefrom, other than to the extent

[[Page 520]]

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;
    (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

[[Page 521]]

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 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

[[Page 522]]

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.

                     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.

[[Page 523]]

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
    (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

[[Page 524]]

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.
    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

[[Page 525]]

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.
    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

[[Page 526]]

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. 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.

[[Page 527]]

    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--
    (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

[[Page 528]]

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;
    (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

[[Page 529]]

    (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 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.

[[Page 530]]

    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 Safety Officers' Benefits program.
    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

[[Page 531]]

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 someone with whom an individual entered into marriage 
lawfully under the law of the jurisdiction in which it was entered into 
and from whom the individual is not divorced, and includes a spouse 
living apart from the individual, other than pursuant to divorce, except 
that, notwithstanding any other provision of law, to determine whether 
an individual is a spouse of a public safety officer within the meaning 
of this definition when more than one individual is purported to be such 
a spouse, the PSOB Program will apply the law of the jurisdiction that 
it determines has the most significant interest in the marital status of 
the public safety officer:
    (1) On the date of the officer's death, with respect to a claim 
under subpart B of this part or by virtue of such death; or
    (2) As of the injury date, with respect to a claim not under subpart 
B of this part or by virtue 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 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--

[[Page 532]]

    (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 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; 
78 FR 29234, May 20, 2013; 79 FR 35492, June 23, 2014]



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

[[Page 533]]

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 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--

[[Page 534]]

    (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
    (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

[[Page 535]]

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 
collectible 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;
    (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.

[[Page 536]]

    (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.



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

[[Page 537]]

    (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 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

[[Page 538]]

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
    (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

[[Page 539]]

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 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

[[Page 540]]

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 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

[[Page 541]]

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 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

[[Page 542]]

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 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:

[[Page 543]]

    (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.
    (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.

[[Page 544]]

    (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 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

[[Page 545]]

    (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.
    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.

[[Page 546]]

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).



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

[[Page 547]]

    (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 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

[[Page 548]]

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.

[73 FR 76535, Dec. 17, 2008, as amended at 78 FR 29234, May 20, 2013]



Sec. 32.44  Hearing Officer determination.

    (a) Upon his determining a claim, the Hearing Officer shall file a 
notice of the same simultaneously with the Director (for his review 
under subpart F of this part in the event of approval) and the PSOB 
Office, 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.

[71 FR 46037, Aug. 10, 2006, as amended at 78 FR 29234, May 20, 2013]



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, 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

[[Page 549]]

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 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

[[Page 550]]

    (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.

    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

[[Page 551]]

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.
    (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.

[[Page 552]]



Sec. 33.21  Match.

    (a) Funds may be used to pay up to 50 percent of the cost of a 
program or project. Section 403(b)(1) of the Act. The remaining non-
Federal share shall be in cash. Section 403(b)(2) of the Act. Match will 
be provided on a project by project basis. However, states may request 
the Bureau to approve exceptions such as match on a program by program 
basis, state-wide basis, unit-of-government basis, or a combination of 
the above. States must include any requests for approval of other than 
project-by-project match in their applications to the Bureau.
    (b) Funds subgranted to an Indian tribe which performs law 
enforcement functions (as determined by the Secretary of the Interior) 
shall be used to pay 100 percent of the cost of a program or project. 
Section 403(b)(1) of the Act.



Sec. 33.22  Title to personal property.

    Section 808 of the Justice Assistance Act provides that 
notwithstanding any other provision of law, title to all expendable and 
nonexpendable personal property purchased with funds made available 
under this title, including property with funds made available under 
this title as in effect before the effective date of the Justice 
Assistance Act of 1984, shall vest in the criminal justice agency or 
nonprofit organization that purchased the property if it certifies to 
the State Office that it will use the property for criminal justice 
purposes. If such certification is not made, title to the property shall 
vest in the State Office, which shall seek to have the property used for 
criminal justice purposes elsewhere in the state prior to using it or 
disposing of it in any other manner. If a State Office does not exist, 
certification will be made directly to the Bureau of Justice Assistance.



Sec. 33.23  Limitations on fund use.

    In order to insure the most efficient and effective use of grant 
funds, the Justice Assistance Act places restrictions on the award of 
block monies for routine equipment, personnel costs, construction, 
supplanting of state and local funds, and land acquisition.
    (a) Equipment and hardware. The purchase or acquisition of equipment 
or hardware with grant funds is prohibited unless the purchase or 
acquisition is an incidental and necessary part of a program. Section 
406(c)(1) of the Act.
    (b) General salaries and personnel costs. Payment of personnel costs 
with grant funds is prohibited unless the costs are an incidental and 
necessary part of a program. Section 406(c)(1) of the Act. Programs 
which have as their primary purpose the payment of usual salaries paid 
to employees generally, or to specific classes of employees within a 
jurisdiction, are prohibited. Notwithstanding the above, grant funds may 
be used to compensate personnel for time engaged in conducting or 
undergoing training programs or the compensation of personnel engaged in 
research, development demonstration, or short-term programs. Section 
406(c)(2) of the Act.
    (c) Construction. Construction projects are prohibited. Section 
406(c)(3) of the Act.
    (d) Land acquisition. Acquisition of land with grant funds is 
prohibited. Section 406(c)(3) of the Act.
    (e) Ineffective programs. The use of grant funds is prohibited for 
programs or projects which, based upon evaluations by the National 
Institute of Justice, Bureau of Justice Assistance, Bureau of Justice 
Statistics, state or local agencies, and other public or private 
organizations, have been demonstrated to offer a low probability of 
improving the functioning of the criminal justice system. The Bureau of 
Justice Assistance will formally identify ineffective programs by notice 
in the Federal Register after opportunity for public comment. Section 
406(c)(4) of the Act.
    (f) Administrative costs. The use of grant funds to pay for costs 
incurred in applying for or administering the block grant is prohibited. 
Block grant funds 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.

[[Page 553]]

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 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;

[[Page 554]]

    (8) Providing programs which identify and meet the needs of drug-
dependent offenders;
    (9) Providing programs which alleviate prison and jail overcrowding 
and programs which identify existing state and Federal buildings 
suitable for prison use;
    (10) Providing, management, and technical assistance to criminal 
justice personnel and determining appropriate prosecutorial and judicial 
personnel needs;
    (11) Providing prison industry projects designed to place inmates in 
a realistic working and training environment in which they will be 
enabled to acquire marketable skills and to make financial payments for 
restitution to their victims, for support of their own families, and for 
support of themselves in the institution;
    (12) Providing for operational information systems and workload 
management systems which improve the effectiveness of criminal justice 
agencies;
    (13) Not more than 10 percent of the state's block grant funds for 
providing programs of the same types as described in section 501(a)(4) 
of the Act which:
    (i) The Bureau establishes under section 503(a) of the Act as 
discretionary programs for financial assistance; or
    (ii) Are innovative and have been deemed by the Bureau as likely to 
prove successful;
    (14) Implementing programs which address critical problems of crime, 
such as drug trafficking, which have been certified by the Director of 
the Bureau of Justice Assistance as having proved successful, after a 
process of consultation coordinated by the Assistant Attorney General of 
the Office of Justice Programs with the Director of the National 
Institute of Justice, Director of the Bureau of Justice Statistics, and 
Administrator of the Office of Juvenile Justice and Delinquency 
Prevention;
    (15) Providing programs which address the problem of serious 
offenses committed by juveniles;
    (16) Addressing the problem of crime committed against the elderly;
    (17) Providing training, technical assistance, and programs to 
assist state and local law enforcement authorities in rural areas in 
combating crime, with particular emphasis on violent crime, juvenile 
delinquency, and crime prevention; and
    (18) Improving the operational effectiveness of law enforcement by 
integrating and maximizing the effectiveness of police field operations 
and the use of crime analysis techniques.
    (b) Programs. The Bureau of Justice Assistance has certified that 
specific programs meet these purposes, conform with the program 
criteria, and are eligible for block grant support. (See Sec. 33.32 of 
the regulations, Certified Programs). These programs are described in 
Program Briefs that are available from the Bureau of Justice Assistance. 
The list of certified programs will be expanded in the future based on 
the statutory criteria to permit a more complete coverage of each of the 
purposes. This certification will be done in consultation with state and 
local governments and published in the Federal Register. States and 
localities may use block funds to implement one or more of these 
certified programs, if they agree to comply with the critical elements 
set forth in Sec. 33.32 of these regulations, and to provide data on the 
performance indicators listed. States and localities selecting these 
programs may identify the certified program in their application by name 
only, without further description. Programs other than those certified 
by the Bureau of Justice Assistance may be proposed by the state and/or 
units of local government and approved for funding by the Bureau. To 
obtain approval to fund a proposed program, the applicant must provide 
in its application a description of the program and evidence that it 
meets the statutory program criteria. The application requirements for 
program approval are contained in Subpart E--Application Requirements.



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

[[Page 555]]

Statistics, and the Office of Juvenile Justice and Delinquency 
Prevention, certifies that the following programs have been proven 
successful:
    (1)(i) Purpose: Providing community and neighborhood programs that 
enable citizens and police to undertake initiatives to prevent and 
control neighborhood crime.
    (ii) Certified program: Community crime prevention. This program 
aims to prevent crime and reduce the fear of crime through organized 
collective citizen action. Community crime prevention programs may be 
initiated by either law enforcement agencies or existing community 
groups, but each must have the active support and involvement of the 
other. Local programs must be designed to meet the needs and problems of 
specific neighborhoods or communities and particular population groups, 
including the elderly. They must make extensive use of volunteers. The 
specific services or activities to be implemented depend on the local 
situation and crime problem, but usually have, as a core element, 
neighborhood (block) watch with additional activities optional. Programs 
to provide training, technical assistance and other support services are 
also eligible for funding. Program objectives and elements are described 
in greater detail in the Program Brief on Community Crime Prevention.
    (A) Critical elements:
    (1) Pre-program planning to determine needs and problems of 
community.
    (2) Targeting of activities and services to meet local situation.
    (3) Maximum use of volunteers.
    (4) Cooperation of community organizations and law enforcement.
    (B) Optional activities: Projects must implement one or more of the 
following:
    (1) Neighborhood Watch
    (2) Operation ID
    (3) Security Surveys
    (4) Citizen Patrols
    (5) Escort or Special Services for the Elderly
    (6) Block Homes or Safe-Houses
    (7) Neighborhood Clean-Ups in High Crime Areas
    (8) Public Education
    (9) Training
    (10) Technical Assistance
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Types of services provided.
    (3) Units of service delivered (e.g., number of block watches 
organized).
    (4) Number of volunteers participating.
    (2)(i) Purpose: Disrupting illicit commerce in stolen goods and 
property.
    (ii) Certified program: Property Crime (STING) Program. This program 
targets the apprehension and prosecution of burglars/thieves as well as 
those individuals who provide the outlets for receipt of stolen goods 
and property. The majority of the model programs have established 
storefronts in which law enforcement officers pose as fences who buy 
stolen goods. In areas where there is a high concentration of organized 
crime, programs have employed techniques to infiltrate organizations in 
order to obtain evidence for prosecution of serious crime. Program 
objectives and elements are described in greater detail in the Program 
Brief on Property Crime (STING) Program.
    (A) Critical elements:
    (1) Program planning, which consists of:
    (i) Analysis of the stolen property redistribution system in the 
jurisdiction.
    (ii) Selection of the target criminal population and/or property at 
which the program will be directed.
    (iii) Establishment of policies and procedures governing roles of 
participants, and program implementation.
    (2) Establishment of records maintenance and management system; 
security management procedures; and stolen property/contraband/evidence 
management.
    (3) Implementation of operations, including undercover activities 
and ongoing intelligence gathering and analysis.
    (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.

[[Page 556]]

    (4) Dollar value of property returned to victims.
    (5) Number of fencing operations disrupted.
    (3)(i) Purpose: Combating arson.
    (ii) Certified program: Arson Prevention and Control Program. This 
program employs the task force concept as a strategy to prevent and 
control the malicious or fraudulent burning of property. It attempts to 
reduce the incidence of arson and increase arrest, prosecution and 
conviction rates. The program focuses on arson that is economically 
motivated. Program objectives and elements are described in greater 
detail in the Program Brief on Arson Prevention and Control.
    (A) Critical elements:
    (1) Program planning to establish:
    (i) An understanding to the area's specific arson problems.
    (ii) A selection of program priorities, strategies, and the 
targeting of the criminal population.
    (iii) An outline of policies and procedures for program participants 
and program implementation.
    (iv) Written agreements indicating participation in the program, 
acceptance of established criteria and procedures, and commitment of 
resources.
    (2) Establishment of a system for collecting and analyzing data to 
target and identify arson patterns, methods and areas of vulnerability.
    (3) Establishment of investigative and prosecutorial elements 
directed at the crime of arson.
    (4) Involvement of community groups and private industry in support 
of the program.
    (B) Performance indicators:
    (1) Number of staff assigned to the project.
    (2) Number of confirmed arson incidents reported during reporting 
period.
    (3) Number of confirmed arson incidents reported during equivalent 
pre-reporting period.
    (4) Number of incidents resulting in a prosecution during program 
period.
    (5) Number of incidents resulting in a prosecution during equivalent 
pre-reporting period.
    (6) Number of prosecutions resulting in conviction.
    (7) Amount of property damage/loss caused by incendiary/suspicious 
fires during program period.
    (8) Amount of property damage/loss by incendiary/suspicious fires 
during equivalent pre-reporting period.
    (4)(i) Purpose: Effectively investigating and bringing to trial 
white-collar crime, organized crime, public corruption crime, and fraud 
against the Government. (No specific program has been certified by the 
Bureau. Applicants may propose programs for approval in accordance with 
the provisions of Sec. 33.41.)
    (5)(i) Purpose: Identifying criminal cases involving persons 
(including juvenile offenders) with a history of serious criminal 
conduct in order to expedite the processing of such cases and to improve 
court system management and sentencing practices and procedures in such 
cases.
    (ii) Certificate program: Career Criminal Prosecution Program. This 
program targets the identification and prosecution of violent and repeat 
offenders. Model efforts include a full time prosecutorial unit devoted 
to increasing the rate of prosecution of such offenders, special 
screening criteria, and policies that initiate or enhance vertical 
prosecution. Program objectives and elements are described in greater 
detail in the Program Brief on Career Criminal Prosecution.
    (A) Critical elements:
    (1) Screening and prosecution criteria to identify cases involving 
violent offenses and repeat offenders.
    (2) A separate, full-time prosecutorial unit for violent and repeat 
offenders to enable vertical prosecution of assigned cases.
    (3) Reduction of caseload to enable thorough case preparation/
presentation.
    (4) A policy requiring limited or no plea negotiations.
    (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.

[[Page 557]]

    (3) Number of cases prosecuted.
    (4) Number of and percentage of cases resulting in conviction.
    (5) Number and percentage of individuals incarcerated.
    (iii) Certified program: Court Delay Reduction Program. This program 
expedites the processing of felony cases in trial courts. It emphasizes 
reduction of backlogs while maintaining equitable treatment and due 
process. Model programs result in reduction of case processing time, 
minimization of court appearances for victims and witnesses, and 
improvement of the public's perception of the quality of the criminal 
justice system. This program is available for both metropolitan trial 
courts and state-level court systems. Program objectives and elements 
are described in greater detail in the Program Brief on Court Delay 
Reduction.
    (A) Critical elements: Both the metropolitan and the state level 
programs are divided into two phases, planning and implementation.
    (1) Planning (Phase I):
    (i) Formation of delay reduction advisory committee.
    (ii) Data collection, analysis, and problem identification.
    (iii) Adoption of case processing goals for criminal cases.
    (iv) Development of action plan(s).
    (2) Implementation (Phase II):
    (i) Education of trial judges and others on objectives, standards 
and procedures.
    (ii) Systematic monitoring of all criminal cases filed in 
participating courts.
    (iii) System for regular acquisition and assessment of data from 
each trial court (state level only).
    (iv) Modification of rules and procedures at all levels of program 
participation when program results indicate need for changes.
    (B) Performance indicators. (1) Time standard established for 
processing of criminal cases under the project (days from arrest to 
trial).
    (2) Percentage of criminal cases prior to project that met standard.
    (3) Percentage of criminal cases disposed of during the project 
reporting period that met time disposition standard.
    (4) Reduction in the average number of continuances from the 
equivalent pre-project period.
    (6)(i) Purpose: Developing and implementing programs which provide 
assistance to jurors and witnesses, and assistance (other than 
compensation) to victims of crimes.
    (ii) Certified program: victim assistance. This program provides 
services and assistance to victims in order to speed their recovery from 
the financial loss, physical suffering and emotional trauma of 
victimization, and to assure proper and sensitive treatment of innocent 
victims in the criminal justice process. Victim assistance programs 
usually encompass a wide range of support services. The specific 
services to be provided, and the specific target group should reflect 
local needs and priorities. Program objectives and elements are 
described in greater detail in the Program Brief on Victim Assistance.
    (A) Critical elements:
    (1) Analysis of the community's victim/witness needs and problems.
    (2) Targeting of existing and planned activities and services to 
respond to this community situation.
    (3) Formulation of agreements for cooperation between criminal 
justice system agencies and public and private victim/witness service 
providers.
    (B) Optional activities: Projects must implement a minimum of three 
(3) or more of the following:
    (1) 24 hour crisis intervention and support or emergency services.
    (2) Counseling.
    (3) Assistance with compensation claims, creditors, community 
referrals, and restitution.
    (4) Police, prosecutor or court-related services.
    (5) Safety (including shelter), supportive counseling, social 
services support and criminal justice advocacy.
    (6) Training and education for individuals having direct contact 
with the 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).

[[Page 558]]

    (4) Number of criminal justice personnel and others trained.
    (7)(i) Purpose: Providing alternatives to pretrial detention, jail, 
and prison for persons who pose no danger to the community.
    (ii) Certified program: Jail overcrowding/alternatives to pretrial 
detention. This program aims to control jail population through improved 
intake screening which assures that persons who should be in jail are 
detained, and that alternatives are available for those requiring less 
than maximum supervision. Particular care must be taken that persons 
charged with violent crimes be detained and that the impact on victims 
and witnesses be a factor in screening decisions. The program calls for 
the development of a jail population management plan as part of a 
planning phase, followed by implementation of specific activities and 
services. Among the activities and services that may be funded are 
central intake and screening, pretrial services, diversion to 
detoxification centers, citation release, community corrections, 
sentencing alternatives, and jail management information systems. 
Program objectives and elements are described in greater detail in the 
Program Brief on Jail Overcrowding/Alternatives to Pretrial Detention.
    (A) Critical elements:
    (1) Implementation of program by state.
    (2) Formation of broad-based jail policy committee.
    (3) Program planning that includes data collection, analysis, 
problem identification, and development of jail population management 
plan, including the removal of juveniles from adult jails and lockups.
    (4) Implementation of plan.
    (B) Optional activities: Based on their plans, projects must 
implement one or more of the following activities or components:
    (1) Central intake and classification.
    (2) Comprehensive pre-trial services.
    (3) Diversion of public inebriates to detoxification centers.
    (4) Diversion of juveniles to secure and non-secure alternatives.
    (5) Citation release.
    (6) Community correction centers.
    (7) Sentencing alternatives (including restitution and work 
release).
    (8) Jail management information system.
    (C) Performance indicators:
    (1) Number of staff assigned to project.
    (2) Pretrial jail population.
    (3) Types of services and alternatives implemented.
    (4) Numbers of arrestees served/diverted by type of alternative.
    (5) Convicted clients completing alternative punishment 
successfully.
    (6) Re-arrest rate of released defendants.
    (7) Estimated jail days saved.
    (8)(i) Purpose: Providing programs which identify and meet the needs 
of drug-dependent offenders.
    (ii) Certified program: Treatment Alternatives to Street Crime 
Program (TASC). This program intervenes in the criminal justice process 
by early identification of substance-abusing offenders, referral to 
community treatment resources, and monitoring of treatment. Model 
programs provide the following services: screening arrestees, providing 
diagnostic/referral services for treatment, and monitoring progress of 
clients. Persons charged with or convicted of violent crimes including 
murder, rape, arson, armed robbery, sexual assault, burglary, child 
molestation, and manslaughter are excluded. Program objectives and 
elements are described in greater detail in the Program Brief on 
Treatment Alternatives to Street Crime.
    (A) Critical elements:
    (1) Broad-based support by criminal justice agencies.
    (2) Establishment of TASC advisory board.
    (3) Establishment of administrative management unit with full-time 
director.
    (4) Development of specific program eligibility criteria.
    (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

[[Page 559]]

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 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,

[[Page 560]]

after a process of consultation coordinated by the Assistant Attorney 
General, Office of Justice Programs, with the Director of the National 
Institute of Justice, Director of the Bureau of Justice Statistics, and 
Administrator of the Office of Juvenile Justice and Delinquency 
Prevention, as having proved successful.
    (15)(i) Purpose: Providing programs which address the problem of 
serious offenses committed by juveniles.
    (ii) Certified program: Restitution by juvenile offenders: This 
program promotes the use of restitution by juvenile offenders to make 
juveniles accountable to the victim and the community and to increase 
community confidence in the juvenile justice system. Juvenile 
restitution has been an effective alternative to incarceration in 
jurisdictions that have used it, reducing recidivism and providing 
benefits to victims. Assistance in the design and development of 
Juvenile Restitution Programs funded under this Program is available 
through the Restitution Education, Training and Technical Assistance 
(RESTTA) Program funded by the Office of Juvenile Justice and 
Delinquency Prevention. Program objectives and elements are described in 
greater detail in the Program Brief on Restitution by Juvenile 
Offenders.
    (A) Critical elements:
    (1) Legal authority to order restitution as a disposition for 
delinquent offenses.
    (2) Commitment of the court and juvenile justice personnel.
    (3) Pre-program planning to establish written policies and 
procedures, including:
    (i) The stage of the system at which restitution will be initiated;
    (ii) Specification of the target population; and
    (iii) Establishment of procedures for determining the appropriate 
restitution to be rendered by the juvenile offender, enforcing 
restitution orders.
    (4) Program management and administration should describe:
    (i) Agency roles and responsibilities; and
    (ii) Case management and tracking system for performance indicators.
    (5) Community involvement in the program.
    (B) Performance indicators:
    (1) Personnel:
    (i) Number employed full and part-time in restitution; and
    (ii) Average restitution caseload per restitution/probation officer.
    (2) Program participation:
    (i) Number of juveniles by offense type;
    (ii) Type and amount of restitution ordered; and
    (iii) Number of victims (by type and amount of loss/injury) 
receiving restitution.
    (3) Number/percent juveniles successfully completing their 
restitution orders.
    (4) Total amount of restitution collected/completed.
    (5) Number obtaining restitution-related employment/job services.
    (6) Operational costs per case.
    (7) Number of participants rearrested during the program.
    (8) Number of participants incarcerated as a result of a rearrest or 
program failure.
    (9) Number retaining restitution-related employment following 
completion.
    (10) Victim satisfaction with the program.
    (16) Purpose: Addressing the problem of crime committed against the 
elderly. (No specific program has been certified by the Bureau. 
Applicants may propose programs for approval in accordance with the 
provisions of Sec. 33.41. Many of the programs identified under other 
purposes indirectly address the problem of crime against the elderly. 
Victim assistance programs and community crime prevention programs in 
particular often provide services that meet the special needs of the 
elderly.)
    (17) Purpose: Provide training, technical assistance, and programs 
to assist state and local law enforcement authorities in rural areas in 
combating 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.)

[[Page 561]]

    (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 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,

[[Page 562]]

but is not necessarily limited to, the results of any evaluations of 
previous tests or demonstrations of the program concept.
    (3) Applicants may also request approval to expend up to 10 per 
centum of their funds for programs which the Director of the Bureau of 
Justice Assistance has established as priorities for discretionary 
grants under section 503 of the Act, or which are innovative programs 
that are deemed by the Director as likely to prove successful. For a 
program the same as a discretionary program, the applicant may identify 
it by name only and provide the information required under 
Sec. 33.41(b)(1) of the regulations. For an innovative program, the 
applicant must describe the program (including its critical elements and 
performance indicators) and provide evidence that it is likely to prove 
successful.
    (c) Confidential information. Applications which request funds for 
the STING Program should not state the location of the project. The 
application should only include the program designation, the funds 
involved, and the number of projects. The state agency or unit of local 
government implementing the project will be made known to the Bureau of 
Justice Assistance upon request or upon completion of the project.
    (d) Audit requirement. Applications from the state must include the 
date of the State Office's last audit and the anticipated date of the 
next audit.
    (e) Civil rights contact. Applications from the state must include 
the name of a civil rights contact person who has lead responsibility in 
insuring that all applicable civil rights requirements are met and who 
shall act as liaison in civil rights matters with the Office of Civil 
Rights Compliance of the Office of Justice Programs.
    (f) Application assurances. Applications must include the following 
assurances:
    (1) An assurance that, following the first fiscal year covered by an 
application and each fiscal year thereafter, the applicant will submit 
to the Bureau of Justice Assistance, where the applicant is a state or 
jurisdiction in a non-participating state, a performance report 
concerning the activities carried out, and an assessment of their 
impact; section 405(1) of the Act.
    (2) A certification that Federal funds made available under this 
title will not be used to supplant state or local funds, but will be 
used to increase the amounts of such funds that would, in the absence of 
Federal funds, be made available for criminal justice activities; 
section 405(2) of the Act.
    (3) An assurance that funds accounting, auditing, monitoring, and 
such evaluation procedures as may be necessary to keep such records as 
the Bureau of Justice Assistance shall prescribe will be provided to 
assure fiscal control, proper management, and efficient disbursement of 
funds received under this title; section 405(3) of the Act.
    (4) An assurance that the applicant shall maintain such data and 
information and submit such reports, in such form, at such times, and 
containing such information as the Bureau of Justice Assistance may 
require; section 405(4) of the Act.
    (5) A certification that the programs meet all the requirements, 
that all the information contained in the application is correct, that 
there has been appropriate coordination with affected agencies, and that 
the applicant will comply with all provisions of the Justice Assistance 
Act 1984 and all other applicable Federal laws; section 405(5) of the 
Act.
    (6) If the applicant is a state, an assurance that not more than 10 
percent of the aggregate amount of funds received by a State under this 
part for a fiscal year will be distributed for programs and projects 
designated as intended to achieve the purpose specified in section 
403(a)(13) of the Act; section 405(6) of the Act.
    (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.

[[Page 563]]

    (8) An assurance that the state application and any amendment to 
such application, has been submitted for review to the state legislature 
or its designated body (for purpose of this requirement, an application 
or amendment shall be deemed to be reviewed if the state legislature or 
its designated body does not review it within 60 days from the time it 
was submitted to it); section 405(8) of the Act.
    (9) An assurance that the state application and any amendment 
thereto was made public before submission to the Bureau and, to the 
extent provided under state law or established procedure, an opportunity 
to comment thereon was provided to citizens and to neighborhood and 
community groups; section 405(9) of the Act.
    (10) An assurance that the applicant will comply, and all its 
subgrantees and contractors will comply, with the non-discrimination 
requirements of the Justice Assistance Act; title VI of the Civil Rights 
Act of 1964; section 504 of the Rehabilitation Act of 1973, as amended; 
title IX of the Education Amendments of 1972; the Age Discrimination Act 
of 1975; and the Department of Justice Non-Discrimination regulations 28 
CFR part 42, subparts C, D, E, and G;
    (11) An assurance that in the event a Federal or state court or 
Federal or state administrative agency makes a finding of discrimination 
after a due process hearing on the grounds of race, color, religion, 
national orgin or sex against a recipient of funds, the recipient will 
forward a copy of the finding to the Office of Civil Rights Compliance 
(OCRC) of the Office of Justice Programs;
    (12) An assurance that the applicant will require that every 
recipient required to formulate an Equal Employment Opportunity Program 
(EEOP) in accordance with 28 CFR 42.301 et. seq., submit a certification 
to the state that it has a current EEOP on file which meets the 
requirements herein;
    (13) An assurance that the applicant will provide an EEOP, if 
required to maintain one, where the application is for $500,000 or more 
and provide the EEOP of any subgrantee of $500,000 or more;
    (14) An assurance that the applicant will comply with the provisions 
of the Office of Justice Programs ``Financial and Administrative Guide 
for Grants,'' M 7100.1;
    (15) An assurance that the applicant will comply with the provisions 
of 28 CFR applicable to grants and cooperative agreements including part 
18, Administrative Review Procedure; part 20, Criminal Justice 
Information Systems; part 22, Confidentiality of Identifiable Research 
and Statistical Information; part 23, Criminal Intelligence Systems 
Operating Policies; part 30, Intergovernmental Review of Department of 
Justice Programs and Activities; part 42; Non-discrimination Equal 
Employment Opportunity Policies and Procedures; part 61, Procedures for 
Implementing the National Environmental Policy Act; and part 63, 
Floodplain Management and Wetland Protection Procedures.
    (g) Non-participating State. If a state notifies the Bureau of 
Justice Assistance of its intent not to apply for block grant funds or 
fails to submit an application by the submission date, the Bureau will 
announce the availability of the block grant funds to local units of 
government in the non-participating state and will invite them to submit 
applications directly to the Bureau. A unit of local government 
receiving a block grant award directly from the Bureau assumes 
responsibility for all activities which would normally be the 
responsibility of the State Office.

                         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.

[[Page 564]]



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 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

[[Page 565]]

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.



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,

[[Page 566]]

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 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.

[[Page 567]]



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.
    (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

[[Page 568]]

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 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

[[Page 569]]

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 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.

[[Page 570]]



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 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

[[Page 571]]

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''.



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]

[[Page 572]]



PART 35_NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE 
AND LOCAL GOVERNMENT SERVICES--Table of Contents



                            Subpart A_General

Sec.
35.101  Purpose and broad coverage.
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  Definition of ``disability.''
35.109-35.129  [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  Service animals.
35.137  Mobility devices.
35.138  Ticketing.
35.139  Direct threat.

                          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  Jails, detention and correctional facilities, and community 
          correctional facilities.
35.153-35.159  [Reserved]

                        Subpart E_Communications

35.160  General.
35.161  Telecommunications.
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  Investigations and compliance reviews.
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--Guidance to Revisions to ADA Regulation on 
          Nondiscrimination on the Basis of Disability in State and 
          Local Government Services
Appendix B to Part 35--Guidance on ADA Regulation on Nondiscrimination 
          on the Basis of Disability in State and Local Government 
          Services Originally Published July 26, 1991
Appendix C to Part 35--Guidance to Revisions to ADA Title II and Title 
          III Regulations Revising the Meaning and Interpretation of the 
          Definition of ``Disability'' and Other Provisions in Order To 
          Incorporate the Requirements of the ADA Amendments Act

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, 
and 12205a.

    Source: Order No. 1512-91, 56 FR 35716, July 26, 1991, unless 
otherwise noted.



                            Subpart A_General



Sec. 35.101  Purpose and broad coverage.

    (a) Purpose. The purpose of this part is to implement subtitle A of 
title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12131-12134), as amended by the ADA Amendments Act of 2008 (ADA 
Amendments Act) (Pub. L. 110-325, 122 Stat. 3553 (2008)), which 
prohibits discrimination on the basis of disability by public entities.
    (b) Broad coverage. The primary purpose of the ADA Amendments Act is 
to make it easier for people with disabilities to obtain protection 
under the ADA. Consistent with the ADA Amendments Act's purpose of 
reinstating a broad scope of protection under the ADA, the definition of 
``disability'' in this part shall be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of the 
ADA. The primary object of attention in cases brought under the ADA 
should be whether entities covered under the ADA have complied with 
their obligations and whether discrimination has occurred, not whether

[[Page 573]]

the individual meets the definition of ``disability.'' The question of 
whether an individual meets the definition of ``disability'' under this 
part should not demand extensive analysis.

[AG Order 3702-2016, 81 FR 53223, Aug. 11, 2016]



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--
    1991 Standards means the requirements set forth in the ADA Standards 
for Accessible Design, originally published on July 26, 1991, and 
republished as Appendix D to 28 CFR part 36.
    2004 ADAAG means the requirements set forth in appendices B and D to 
36 CFR part 1191 (2009).
    2010 Standards means the 2010 ADA Standards for Accessible Design, 
which consist of the 2004 ADAAG and the requirements contained in 
Sec. 35.151.
    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 on-
site or through video remote interpreting (VRI) services; notetakers; 
real-time computer-aided transcription services; written materials; 
exchange of written notes; telephone handset amplifiers; assistive 
listening devices; assistive listening systems; telephones compatible 
with hearing aids; closed caption decoders; open and closed captioning, 
including real-time captioning; voice, text, and video-based 
telecommunications products and systems, including text telephones 
(TTYs), videophones, and captioned telephones, or equally effective 
telecommunications devices; videotext displays; accessible electronic 
and information technology; or other effective methods of making aurally 
delivered information available to individuals who are deaf or hard of 
hearing;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (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.

[[Page 574]]

    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.
    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 as provided in Sec. 35.139.
    Disability. The definition of disability can be found at 
Sec. 35.108.
    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).
    Existing facility means a facility in existence on any given date, 
without regard to whether the facility may also be considered newly 
constructed or altered under this part.
    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.
    Housing at a place of education means housing operated by or on 
behalf of an elementary, secondary, undergraduate, or postgraduate 
school, or other place of education, including dormitories, suites, 
apartments, or other places of residence.
    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.
    Other power-driven mobility device means any mobility device powered 
by batteries, fuel, or other engines--whether or not designed primarily 
for use by individuals with mobility disabilities--that is used by 
individuals with mobility disabilities for the purpose of locomotion, 
including golf cars, electronic personal assistance mobility devices 
(EPAMDs), such as the Segway PT, or any mobility device 
designed to operate in areas without defined pedestrian routes, but that 
is not a wheelchair within the meaning of this section. This definition 
does not apply to Federal wilderness areas; wheelchairs in such areas 
are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).
    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, via a video remote 
interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.

[[Page 575]]

    Qualified reader means a person who is able to read effectively, 
accurately, and impartially using any necessary specialized vocabulary.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
    Service animal means any dog that is individually trained to do work 
or perform tasks for the benefit of an individual with a disability, 
including a physical, sensory, psychiatric, intellectual, or other 
mental disability. Other species of animals, whether wild or domestic, 
trained or untrained, are not service animals for the purposes of this 
definition. The work or tasks performed by a service animal must be 
directly related to the individual's disability. Examples of work or 
tasks include, but are not limited to, assisting individuals who are 
blind or have low vision with navigation and other tasks, alerting 
individuals who are deaf or hard of hearing to the presence of people or 
sounds, providing non-violent protection or rescue work, pulling a 
wheelchair, assisting an individual during a seizure, alerting 
individuals to the presence of allergens, retrieving items such as 
medicine or the telephone, providing physical support and assistance 
with balance and stability to individuals with mobility disabilities, 
and helping persons with psychiatric and neurological disabilities by 
preventing or interrupting impulsive or destructive behaviors. The crime 
deterrent effects of an animal's presence and the provision of emotional 
support, well-being, comfort, or companionship do not constitute work or 
tasks for the purposes of this definition.
    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.
    Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video connection 
that delivers high-quality video images as provided in Sec. 35.160(d).
    Wheelchair means a manually-operated or power-driven device designed 
primarily for use by an individual with a mobility disability for the 
main purpose of indoor or of both indoor and outdoor locomotion. This 
definition does not apply to Federal wilderness areas; wheelchairs in 
such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 
12207(c)(2).

[Order No. 1512-91, 56 FR 35716, July 26, 1991, as amended by AG Order 
No. 3180-2010, 75 FR 56177, Sept. 15, 2010; 76 FR 13285, Mar. 11, 2011; 
AG Order 3702-2016, 81 FR 53223, Aug. 11, 2016]



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]

[[Page 576]]



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. 35.108  Definition of ``disability.''

    (a)(1) Disability means, with respect to an individual:
    (i) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
paragraph (f) of this section.
    (2) Rules of construction. (i) The definition of ``disability'' 
shall be construed broadly in favor of expansive coverage, to the 
maximum extent permitted by the terms of the ADA.
    (ii) An individual may establish coverage under any one or more of 
the three prongs of the definition of ``disability'' in paragraph (a)(1) 
of this section, the ``actual disability'' prong in paragraph (a)(1)(i) 
of this section, the ``record of'' prong in paragraph (a)(1)(ii) of this 
section, or the ``regarded as'' prong in paragraph (a)(1)(iii) of this 
section.
    (iii) Where an individual is not challenging a public entity's 
failure to provide reasonable modifications under Sec. 35.130(b)(7), it 
is generally unnecessary to proceed under the ``actual disability'' or 
``record of'' prongs, which require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. In these cases, the evaluation of coverage can be made 
solely under the ``regarded as'' prong of the definition of 
``disability,'' which does not require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. An individual may choose, however, to proceed under the 
``actual disability'' or ``record of'' prong regardless of whether the 
individual is challenging a public entity's failure to provide 
reasonable modifications.
    (b)(1) Physical or mental impairment means:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more body systems, such as: 
neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive, 
genitourinary, immune, circulatory, hemic, lymphatic, skin, and 
endocrine; or
    (ii) Any mental or psychological disorder such as intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disability.
    (2) Physical or mental impairment includes, but is not limited to, 
contagious and noncontagious diseases and conditions such as the 
following: orthopedic, visual, speech, and hearing impairments, and 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, intellectual disability, emotional 
illness, dyslexia and other specific learning

[[Page 577]]

disabilities, Attention Deficit Hyperactivity Disorder, Human 
Immunodeficiency Virus infection (whether symptomatic or asymptomatic), 
tuberculosis, drug addiction, and alcoholism.
    (3) Physical or mental impairment does not include homosexuality or 
bisexuality.
    (c)(1) Major life activities include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, writing, communicating, interacting with others, and working; 
and
    (ii) The operation of a major bodily function, such as the functions 
of the immune system, special sense organs and skin, normal cell growth, 
and digestive, genitourinary, bowel, bladder, neurological, brain, 
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive systems. The operation of a major 
bodily function includes the operation of an individual organ within a 
body system.
    (2) Rules of construction. (i) In determining whether an impairment 
substantially limits a major life activity, the term major shall not be 
interpreted strictly to create a demanding standard.
    (ii) Whether an activity is a major life activity is not determined 
by reference to whether it is of central importance to daily life.
    (d) Substantially limits--(1) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) The primary object of attention in cases brought under title II 
of the ADA should be whether public entities have complied with their 
obligations and whether discrimination has occurred, not the extent to 
which an individual's impairment substantially limits a major life 
activity. Accordingly, the threshold issue of whether an impairment 
substantially limits a major life activity should not demand extensive 
analysis.
    (iii) An impairment that substantially limits one major life 
activity does not need to limit other major life activities in order to 
be considered a substantially limiting impairment.
    (iv) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (v) An impairment is a disability within the meaning of this part if 
it substantially limits the ability of an individual to perform a major 
life activity as compared to most people in the general population. An 
impairment does not need to prevent, or significantly or severely 
restrict, the individual from performing a major life activity in order 
to be considered substantially limiting. Nonetheless, not every 
impairment will constitute a disability within the meaning of this 
section.
    (vi) The determination of whether an impairment substantially limits 
a major life activity requires an individualized assessment. However, in 
making this assessment, the term ``substantially limits'' shall be 
interpreted and applied to require a degree of functional limitation 
that is lower than the standard for substantially limits applied prior 
to the ADA Amendments Act.
    (vii) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph (d)(1) is 
intended, however, to prohibit or limit the presentation of scientific, 
medical, or statistical evidence in making such a comparison where 
appropriate.
    (viii) The determination of whether an impairment substantially 
limits a major life activity shall be made without regard to the 
ameliorative effects of mitigating measures. However, the

[[Page 578]]

ameliorative effects of ordinary eyeglasses or contact lenses shall be 
considered in determining whether an impairment substantially limits a 
major life activity. Ordinary eyeglasses or contact lenses are lenses 
that are intended to fully correct visual acuity or to eliminate 
refractive error.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (f)(2) of this section does not apply to 
the ``actual disability'' or ``record of'' prongs of the definition of 
``disability.'' The effects of an impairment lasting or expected to last 
less than six months can be substantially limiting within the meaning of 
this section for establishing an actual disability or a record of a 
disability.
    (2) Predictable assessments. (i) The principles set forth in the 
rules of construction in this section are intended to provide for more 
generous coverage and application of the ADA's prohibition on 
discrimination through a framework that is predictable, consistent, and 
workable for all individuals and entities with rights and 
responsibilities under the ADA.
    (ii) Applying these principles, the individualized assessment of 
some types of impairments will, in virtually all cases, result in a 
determination of coverage under paragraph (a)(1)(i) of this section (the 
``actual disability'' prong) or paragraph (a)(1)(ii) of this section 
(the ``record of'' prong). Given their inherent nature, these types of 
impairments will, as a factual matter, virtually always be found to 
impose a substantial limitation on a major life activity. Therefore, 
with respect to these types of impairments, the necessary individualized 
assessment should be particularly simple and straightforward.
    (iii) For example, applying these principles it should easily be 
concluded that the types of impairments set forth in paragraphs 
(d)(2)(iii)(A) through (K) of this section will, at a minimum, 
substantially limit the major life activities indicated. The types of 
impairments described in this paragraph may substantially limit 
additional major life activities (including major bodily functions) not 
explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
    (A) Deafness substantially limits hearing;
    (B) Blindness substantially limits seeing;
    (C) Intellectual disability substantially limits brain function;
    (D) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (E) Autism substantially limits brain function;
    (F) Cancer substantially limits normal cell growth;
    (G) Cerebral palsy substantially limits brain function;
    (H) Diabetes substantially limits endocrine function;
    (I) Epilepsy, muscular dystrophy, and multiple sclerosis each 
substantially limits neurological function;
    (J) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (K) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia each substantially limits brain function.
    (3) Condition, manner, or duration. (i) At all times taking into 
account the principles set forth in the rules of construction, in 
determining whether an individual is substantially limited in a major 
life activity, it may be useful in appropriate cases to consider, as 
compared to most people in the general population, the conditions under 
which the individual performs the major life activity; the manner in 
which the individual performs the major life activity; or the duration 
of time it takes the individual to perform the major life activity, or 
for which the individual can perform the major life activity.
    (ii) Consideration of facts such as condition, manner, or duration 
may include, among other things, consideration of the difficulty, effort 
or time required to perform a major life activity; pain experienced when 
performing a major life activity; the length of time a major life 
activity can be performed; or the way an impairment affects the 
operation of a major bodily function. In addition, the non-ameliorative 
effects of mitigating measures,

[[Page 579]]

such as negative side effects of medication or burdens associated with 
following a particular treatment regimen, may be considered when 
determining whether an individual's impairment substantially limits a 
major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' or ``record of'' prongs of the definition of 
``disability,'' the focus is on how a major life activity is 
substantially limited, and not on what outcomes an individual can 
achieve. For example, someone with a learning disability may achieve a 
high level of academic success, but may nevertheless be substantially 
limited in one or more major life activities, including, but not limited 
to, reading, writing, speaking, or learning because of the additional 
time or effort he or she must spend to read, write, speak, or learn 
compared to most people in the general population.
    (iv) Given the rules of construction set forth in this section, it 
may often be unnecessary to conduct an analysis involving most or all of 
the facts related to condition, manner, or duration. This is 
particularly true with respect to impairments such as those described in 
paragraph (d)(2)(iii) of this section, which by their inherent nature 
should be easily found to impose a substantial limitation on a major 
life activity, and for which the individualized assessment should be 
particularly simple and straightforward.
    (4) Mitigating measures include, but are not limited to:
    (i) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable modifications or auxiliary aids or services as 
defined in this regulation;
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (e) Has a record of such an impairment. (1) An individual has a 
record of such an impairment if the individual has a history of, or has 
been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by the ADA and should 
not demand extensive analysis. An individual will be considered to fall 
within this prong of the definition of ``disability'' if the individual 
has a history of an impairment that substantially limited one or more 
major life activities when compared to most people in the general 
population, or was misclassified as having had such an impairment. In 
determining whether an impairment substantially limited a major life 
activity, the principles articulated in paragraph (d)(1) of this section 
apply.
    (3) Reasonable modification. An individual with a record of a 
substantially limiting impairment may be entitled to a reasonable 
modification if needed and related to the past disability.
    (f) Is regarded as having such an impairment. The following 
principles apply under the ``regarded'' as prong of the definition of 
``disability'' (paragraph (a)(1)(iii) of this section):
    (1) Except as set forth in paragraph (f)(2) of this section, an 
individual is ``regarded as having such an impairment'' if the 
individual is subjected to a prohibited action because of an actual or 
perceived physical or mental impairment, whether or not that impairment 
substantially limits, or is perceived to substantially limit, a major 
life activity, even if the public entity asserts, or may or does 
ultimately establish, a defense to the action prohibited by the ADA.
    (2) An individual is not ``regarded as having such an impairment'' 
if the public entity demonstrates that the impairment is, objectively, 
both ``transitory'' and ``minor.'' A public entity may not defeat 
``regarded as'' coverage of an individual simply by demonstrating that 
it subjectively believed

[[Page 580]]

the impairment was transitory and minor; rather, the public entity must 
demonstrate that the impairment is (in the case of an actual impairment) 
or would be (in the case of a perceived impairment), objectively, both 
``transitory'' and ``minor.'' For purposes of this section, 
``transitory'' is defined as lasting or expected to last six months or 
less.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under title II of the ADA only when an individual proves 
that a public entity discriminated on the basis of disability within the 
meaning of title II of the ADA, 42 U.S.C. 12131-12134.
    (g) Exclusions. The term ``disability'' does not include--
    (1) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or
    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.

[AG Order 3702-2016, 81 FR 53223, Aug. 11, 2016]



Secs. 35.109-35.129  [Reserved]



                     Subpart B_General Requirements



Sec. 35.130  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the benefits 
of the services, programs, or activities of a public entity, or be 
subjected to discrimination by any public entity.
    (b)(1) A public entity, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aids, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aids, benefits, 
or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program;
    (vi) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vii) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity enjoyed 
by others receiving the aid, benefit, or service.
    (2) A public entity may not deny a qualified individual with a 
disability the opportunity to participate in services, programs, or 
activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) A public entity may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the public entity's 
program with respect to individuals with disabilities; or
    (iii) That perpetuate the discrimination of another public entity if 
both public entities are subject to common

[[Page 581]]

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)(i) 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.
    (ii) A public entity is not required to provide a reasonable 
modification to an individual who meets the definition of ``disability'' 
solely under the ``regarded as'' prong of the definition of 
``disability'' at Sec. 35.108(a)(1)(iii).
    (8) A public entity shall not impose or apply eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered.
    (c) Nothing in this part prohibits a public entity from providing 
benefits, services, or advantages to individuals with disabilities, or 
to a particular class of individuals with disabilities beyond those 
required by this part.
    (d) A public entity shall administer services, programs, and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    (e)(1) Nothing in this part shall be construed to require an 
individual with a disability to accept an accommodation, aid, service, 
opportunity, or benefit provided under the ADA or this part which such 
individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.
    (f) A public entity may not place a surcharge on a particular 
individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    (g) A public entity shall not exclude or otherwise deny equal 
services, programs, or activities to an individual or entity because of 
the known disability of an individual with whom the individual or entity 
is known to have a relationship or association.
    (h) A public entity may impose legitimate safety requirements 
necessary for the safe operation of its services, programs, or 
activities. However, the public entity must ensure that its safety 
requirements are based on actual risks, not on mere speculation, 
stereotypes, or generalizations about individuals with disabilities.
    (i) Nothing in this part shall provide the basis for a claim that an 
individual without a disability was subject to discrimination because of 
a lack of disability, including a claim that an individual with a 
disability was granted a

[[Page 582]]

reasonable modification that was denied to an individual without a 
disability.

[Order No. 1512-91, 56 FR 35716, July 26, 1991, as amended by AG Order 
No. 3180-2010, 75 FR 56178, Sept. 15, 2010; AG Order 3702-2016, 81 FR 
53225, Aug. 11, 2016]



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.
    (c) If the 2010 Standards reduce the technical requirements or the 
number of required accessible elements below the number required by the 
1991 Standards, the technical requirements or the number of accessible 
elements in a facility subject to this part may be reduced in accordance 
with the requirements of the 2010 Standards.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993; AG Order No. 3180-2010, 75 FR 56178, Sept. 15, 
2010]



Sec. 35.134  Retaliation or coercion.

    (a) No private or public entity shall discriminate against any 
individual because that individual has opposed any act or practice made 
unlawful by this part, or because that individual made a charge, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under the Act or this part.
    (b) No private or public entity shall coerce, intimidate, threaten, 
or interfere with any individual in the exercise or enjoyment of, or on 
account of his or her having exercised or enjoyed, or on account of his 
or her having aided or encouraged any other individual in the exercise 
or enjoyment of, any right granted or protected by the Act or this part.



Sec. 35.135  Personal devices and services.

    This part does not require a public entity to provide to individuals 
with disabilities personal devices, such as wheelchairs; individually 
prescribed devices, such as prescription eyeglasses or hearing aids; 
readers for personal use or study; or services of a personal nature 
including assistance in eating, toileting, or dressing.

[[Page 583]]



Sec. 35.136  Service animals.

    (a) General. Generally, a public entity shall modify its policies, 
practices, or procedures to permit the use of a service animal by an 
individual with a disability.
    (b) Exceptions. A public entity may ask an individual with a 
disability to remove a service animal from the premises if--
    (1) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (2) The animal is not housebroken.
    (c) If an animal is properly excluded. If a public entity properly 
excludes a service animal under Sec. 35.136(b), it shall give the 
individual with a disability the opportunity to participate in the 
service, program, or activity without having the service animal on the 
premises.
    (d) Animal under handler's control. A service animal shall be under 
the control of its handler. A service animal shall have a harness, 
leash, or other tether, unless either the handler is unable because of a 
disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case the 
service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (e) Care or supervision. A public entity is not responsible for the 
care or supervision of a service animal.
    (f) Inquiries. A public entity shall not ask about the nature or 
extent of a person's disability, but may make two inquiries to determine 
whether an animal qualifies as a service animal. A public entity may ask 
if the animal is required because of a disability and what work or task 
the animal has been trained to perform. A public entity shall not 
require documentation, such as proof that the animal has been certified, 
trained, or licensed as a service animal. Generally, a public entity may 
not make these inquiries about a service animal when it is readily 
apparent that an animal is trained to do work or perform tasks for an 
individual with a disability (e.g., the dog is observed guiding an 
individual who is blind or has low vision, pulling a person's 
wheelchair, or providing assistance with stability or balance to an 
individual with an observable mobility disability).
    (g) Access to areas of a public entity. Individuals with 
disabilities shall be permitted to be accompanied by their service 
animals in all areas of a public entity's facilities where members of 
the public, participants in services, programs or activities, or 
invitees, as relevant, are allowed to go.
    (h) Surcharges. A public entity shall not ask or require an 
individual with a disability to pay a surcharge, even if people 
accompanied by pets are required to pay fees, or to comply with other 
requirements generally not applicable to people without pets. If a 
public entity normally charges individuals for the damage they cause, an 
individual with a disability may be charged for damage caused by his or 
her service animal.
    (i) Miniature horses. (1) Reasonable modifications. A public entity 
shall make reasonable modifications in policies, practices, or 
procedures to permit the use of a miniature horse by an individual with 
a disability if the miniature horse has been individually trained to do 
work or perform tasks for the benefit of the individual with a 
disability.
    (2) Assessment factors. In determining whether reasonable 
modifications in policies, practices, or procedures can be made to allow 
a miniature horse into a specific facility, a public entity shall 
consider--
    (i) The type, size, and weight of the miniature horse and whether 
the facility can accommodate these features;
    (ii) Whether the handler has sufficient control of the miniature 
horse;
    (iii) Whether the miniature horse is housebroken; and
    (iv) Whether the miniature horse's presence in a specific facility 
compromises legitimate safety requirements that are necessary for safe 
operation.
    (3) Other requirements. Paragraphs 35.136(c) through (h) of this 
section, which apply to service animals, shall also apply to miniature 
horses.

[AG Order No. 3180-2010, 75 FR 56178, Sept. 15, 2010; 76 FR 13285, Mar. 
11, 2011]

[[Page 584]]



Sec. 35.137  Mobility devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A public 
entity shall permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities, in any areas open to pedestrian 
use.
    (b)(1) Use of other power-driven mobility devices. A public entity 
shall make reasonable modifications in its policies, practices, or 
procedures to permit the use of other power-driven mobility devices by 
individuals with mobility disabilities, unless the public entity can 
demonstrate that the class of other power-driven mobility devices cannot 
be operated in accordance with legitimate safety requirements that the 
public entity has adopted pursuant to Sec. 35.130(h).
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a public 
entity shall consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its service, program, or activity is conducted indoors, its 
square footage, the density and placement of stationary devices, and the 
availability of storage for the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws and regulations.
    (c)(1) Inquiry about disability. A public entity shall not ask an 
individual using a wheelchair or other power-driven mobility device 
questions about the nature and extent of the individual's disability.
    (2) Inquiry into use of other power-driven mobility device. A public 
entity may ask a person using an other power-driven mobility device to 
provide a credible assurance that the mobility device is required 
because of the person's disability. A public entity that permits the use 
of an other power-driven mobility device by an individual with a 
mobility disability shall accept the presentation of a valid, State-
issued, disability parking placard or card, or other State-issued proof 
of disability as a credible assurance that the use of the other power-
driven mobility device is for the individual's mobility disability. In 
lieu of a valid, State-issued disability parking placard or card, or 
State-issued proof of disability, a public entity shall accept as a 
credible assurance a verbal representation, not contradicted by 
observable fact, that the other power-driven mobility device is being 
used for a mobility disability. A ``valid'' disability placard or card 
is one that is presented by the individual to whom it was issued and is 
otherwise in compliance with the State of issuance's requirements for 
disability placards or cards.

[AG Order No. 3180-2010, 75 FR 56178, Sept. 15, 2010]



Sec. 35.138  Ticketing.

    (a)(1) For the purposes of this section, ``accessible seating'' is 
defined as wheelchair spaces and companion seats that comply with 
sections 221 and 802 of the 2010 Standards along with any other seats 
required to be offered for sale to the individual with a disability 
pursuant to paragraph (d) of this section.
    (2) Ticket sales. A public entity that sells tickets for a single 
event or series of events shall modify its policies, practices, or 
procedures to ensure that individuals with disabilities have an equal 
opportunity to purchase tickets for accessible seating--
    (i) During the same hours;
    (ii) During the same stages of ticket sales, including, but not 
limited to, pre-sales, promotions, lotteries, wait-lists, and general 
sales;

[[Page 585]]

    (iii) Through the same methods of distribution;
    (iv) In the same types and numbers of ticketing sales outlets, 
including telephone service, in-person ticket sales at the facility, or 
third-party ticketing services, as other patrons; and
    (v) Under the same terms and conditions as other tickets sold for 
the same event or series of events.
    (b) Identification of available accessible seating. A public entity 
that sells or distributes tickets for a single event or series of events 
shall, upon inquiry--
    (1) Inform individuals with disabilities, their companions, and 
third parties purchasing tickets for accessible seating on behalf of 
individuals with disabilities of the locations of all unsold or 
otherwise available accessible seating for any ticketed event or events 
at the facility;
    (2) Identify and describe the features of available accessible 
seating in enough detail to reasonably permit an individual with a 
disability to assess independently whether a given accessible seating 
location meets his or her accessibility needs; and
    (3) Provide materials, such as seating maps, plans, brochures, 
pricing charts, or other information, that identify accessible seating 
and information relevant thereto with the same text or visual 
representations as other seats, if such materials are provided to the 
general public.
    (c) Ticket prices. The price of tickets for accessible seating for a 
single event or series of events shall not be set higher than the price 
for other tickets in the same seating section for the same event or 
series of events. Tickets for accessible seating must be made available 
at all price levels for every event or series of events. If tickets for 
accessible seating at a particular price level are not available because 
of inaccessible features, then the percentage of tickets for accessible 
seating that should have been available at that price level (determined 
by the ratio of the total number of tickets at that price level to the 
total number of tickets in the assembly area) shall be offered for 
purchase, at that price level, in a nearby or similar accessible 
location.
    (d) Purchasing multiple tickets. (1) General. For each ticket for a 
wheelchair space purchased by an individual with a disability or a 
third-party purchasing such a ticket at his or her request, a public 
entity shall make available for purchase three additional tickets for 
seats in the same row that are contiguous with the wheelchair space, 
provided that at the time of purchase there are three such seats 
available. A public entity is not required to provide more than three 
contiguous seats for each wheelchair space. Such seats may include 
wheelchair spaces.
    (2) Insufficient additional contiguous seats available. If patrons 
are allowed to purchase at least four tickets, and there are fewer than 
three such additional contiguous seat tickets available for purchase, a 
public entity shall offer the next highest number of such seat tickets 
available for purchase and shall make up the difference by offering 
tickets for sale for seats that are as close as possible to the 
accessible seats.
    (3) Sales limited to less than four tickets. If a public entity 
limits sales of tickets to fewer than four seats per patron, then the 
public entity is only obligated to offer as many seats to patrons with 
disabilities, including the ticket for the wheelchair space, as it would 
offer to patrons without disabilities.
    (4) Maximum number of tickets patrons may purchase exceeds four. If 
patrons are allowed to purchase more than four tickets, a public entity 
shall allow patrons with disabilities to purchase up to the same number 
of tickets, including the ticket for the wheelchair space.
    (5) Group sales. If a group includes one or more individuals who 
need to use accessible seating because of a mobility disability or 
because their disability requires the use of the accessible features 
that are provided in accessible seating, the group shall be placed in a 
seating area with accessible seating so that, if possible, the group can 
sit together. If it is necessary to divide the group, it should be 
divided so that the individuals in the group who use wheelchairs are not 
isolated from their group.
    (e) Hold-and-release of tickets for accessible seating. (1) Tickets 
for accessible

[[Page 586]]

seating may be released for sale in certain limited circumstances. A 
public entity may release unsold tickets for accessible seating for sale 
to individuals without disabilities for their own use for a single event 
or series of events only under the following circumstances--
    (i) When all non-accessible tickets (excluding luxury boxes, club 
boxes, or suites) have been sold;
    (ii) When all non-accessible tickets in a designated seating area 
have been sold and the tickets for accessible seating are being released 
in the same designated area; or
    (iii) When all non-accessible tickets in a designated price category 
have been sold and the tickets for accessible seating are being released 
within the same designated price category.
    (2) No requirement to release accessible tickets. Nothing in this 
paragraph requires a facility to release tickets for accessible seating 
to individuals without disabilities for their own use.
    (3) Release of series-of-events tickets on a series-of-events basis. 
(i) Series-of-events tickets sell-out when no ownership rights are 
attached. When series-of-events tickets are sold out and a public entity 
releases and sells accessible seating to individuals without 
disabilities for a series of events, the public entity shall establish a 
process that prevents the automatic reassignment of the accessible 
seating to such ticket holders for future seasons, future years, or 
future series so that individuals with disabilities who require the 
features of accessible seating and who become newly eligible to purchase 
tickets when these series-of-events tickets are available for purchase 
have an opportunity to do so.
    (ii) Series-of-events tickets when ownership rights are attached. 
When series-of-events tickets with an ownership right in accessible 
seating areas are forfeited or otherwise returned to a public entity, 
the public entity shall make reasonable modifications in its policies, 
practices, or procedures to afford individuals with mobility 
disabilities or individuals with disabilities that require the features 
of accessible seating an opportunity to purchase such tickets in 
accessible seating areas.
    (f) Ticket transfer. Individuals with disabilities who hold tickets 
for accessible seating shall be permitted to transfer tickets to third 
parties under the same terms and conditions and to the same extent as 
other spectators holding the same type of tickets, whether they are for 
a single event or series of events.
    (g) Secondary ticket market. (1) A public entity shall modify its 
policies, practices, or procedures to ensure that an individual with a 
disability may use a ticket acquired in the secondary ticket market 
under the same terms and conditions as other individuals who hold a 
ticket acquired in the secondary ticket market for the same event or 
series of events.
    (2) If an individual with a disability acquires a ticket or series 
of tickets to an inaccessible seat through the secondary market, a 
public entity shall make reasonable modifications to its policies, 
practices, or procedures to allow the individual to exchange his ticket 
for one to an accessible seat in a comparable location if accessible 
seating is vacant at the time the individual presents the ticket to the 
public entity.
    (h) Prevention of fraud in purchase of tickets for accessible 
seating. A public entity may not require proof of disability, including, 
for example, a doctor's note, before selling tickets for accessible 
seating.
    (1) Single-event tickets. For the sale of single-event tickets, it 
is permissible to inquire whether the individual purchasing the tickets 
for accessible seating has a mobility disability or a disability that 
requires the use of the accessible features that are provided in 
accessible seating, or is purchasing the tickets for an individual who 
has a mobility disability or a disability that requires the use of the 
accessible features that are provided in the accessible seating.
    (2) Series-of-events tickets. For series-of-events tickets, it is 
permissible to ask the individual purchasing the tickets for accessible 
seating to attest in writing that the accessible seating is for a person 
who has a mobility disability or a disability that requires the use of 
the accessible features that are provided in the accessible seating.

[[Page 587]]

    (3) Investigation of fraud. A public entity may investigate the 
potential misuse of accessible seating where there is good cause to 
believe that such seating has been purchased fraudulently.

[AG Order No. 3180-2010, 75 FR 56179, Sept. 15, 2010]



Sec. 35.139  Direct threat.

    (a) This part does not require a public entity to permit an 
individual to participate in or benefit from the services, programs, or 
activities of that public entity when that individual poses a direct 
threat to the health or safety of others.
    (b) In determining whether an individual poses a direct threat to 
the health or safety of others, a public entity 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 or the 
provision of auxiliary aids or services will mitigate the risk.

[AG Order No. 3180-2010, 75 FR 56180, Sept. 15, 2010]



                          Subpart C_Employment



Sec. 35.140  Employment discrimination prohibited.

    (a) No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
service, program, or activity conducted by a public entity.
    (b)(1) For purposes of this part, the requirements of title I of the 
Act, as established by the regulations of the Equal Employment 
Opportunity Commission in 29 CFR part 1630, apply to employment in any 
service, program, or activity conducted by a public entity if that 
public entity is also subject to the jurisdiction of title I.
    (2) For the purposes of this part, the requirements of section 504 
of the Rehabilitation Act of 1973, as established by the regulations of 
the Department of Justice in 28 CFR part 41, as those requirements 
pertain to employment, apply to employment in any service, program, or 
activity conducted by a public entity if that public entity is not also 
subject to the jurisdiction of title I.



Secs. 35.141-35.148  [Reserved]



                     Subpart D_Program Accessibility



Sec. 35.149  Discrimination prohibited.

    Except as otherwise provided in Sec. 35.150, no qualified individual 
with a disability shall, because a public entity's facilities are 
inaccessible to or unusable by individuals with disabilities, be 
excluded from participation in, or be denied the benefits of the 
services, programs, or activities of a public entity, or be subjected to 
discrimination by any public entity.



Sec. 35.150  Existing facilities.

    (a) General. A public entity shall operate each service, program, or 
activity so that the service, program, or activity, when viewed in its 
entirety, is 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

[[Page 588]]

resources available for use in the funding and operation of the service, 
program, or activity, and must be accompanied by a written statement of 
the reasons for reaching that conclusion. If an action would result in 
such an alteration or such burdens, a public entity shall take any other 
action that would not result in such an alteration or such burdens but 
would nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the public entity.
    (b) Methods--(1) General. A public entity may comply with the 
requirements of this section through such means as redesign or 
acquisition 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)(i) Safe harbor. Elements that have not been altered in existing 
facilities on or after March 15, 2012 and that comply with the 
corresponding technical and scoping specifications for those elements in 
either the 1991 Standards or in the Uniform Federal Accessibility 
Standards (UFAS), Appendix A to 41 CFR part 101-19.6 (July 1, 2002 ed.), 
49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in 
order to comply with the requirements set forth in the 2010 Standards.
    (ii) The safe harbor provided in Sec. 35.150(b)(2)(i) does not apply 
to those elements in existing facilities that are subject to 
supplemental requirements (i.e., elements for which there are neither 
technical nor scoping specifications in the 1991 Standards). Elements in 
the 2010 Standards not eligible for the element-by-element safe harbor 
are identified as follows--
    (A) Residential facilities dwelling units, sections 233 and 809.
    (B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.
    (C) Recreational boating facilities, sections 235 and 1003; 
206.2.10.
    (D) Exercise machines and equipment, sections 236 and 1004; 
206.2.13.
    (E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.
    (F) Golf facilities, sections 238 and 1006; 206.2.15.
    (G) Miniature golf facilities, sections 239 and 1007; 206.2.16.
    (H) Play areas, sections 240 and 1008; 206.2.17.
    (I) Saunas and steam rooms, sections 241 and 612.
    (J) Swimming pools, wading pools, and spas, sections 242 and 1009.
    (K) Shooting facilities with firing positions, sections 243 and 
1010.
    (L) Miscellaneous. (1) Team or player seating, section 221.2.1.4.
    (2) Accessible route to bowling lanes, section 206.2.11.
    (3) Accessible route in court sports facilities, section 206.2.12.
    (3) 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.

[[Page 589]]

    (4) Swimming pools, wading pools, and spas. The requirements set 
forth in sections 242 and 1009 of the 2010 Standards shall not apply 
until January 31, 2013, if a public entity chooses to make structural 
changes to existing swimming pools, wading pools, or spas built before 
March 15, 2012, for the sole purpose of complying with the program 
accessibility requirements set forth in this section.
    (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 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; AG Order No. 3180-2010, 75 FR 56180, Sept. 15, 
2010; AG Order 3332-2012, 77 FR 30179, May 21, 2012]



Sec. 35.151  New construction and alterations.

    (a) Design and construction. (1) 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.
    (2) Exception for structural impracticability. (i) Full compliance 
with the requirements of this section is not required where a public 
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.
    (ii) 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.
    (iii) 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

[[Page 590]]

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.
    (b) Alterations. (1) 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.
    (2) The path of travel requirements of Sec. 35.151(b)(4) shall apply 
only to alterations undertaken solely for purposes other than to meet 
the program accessibility requirements of Sec. 35.150.
    (3)(i) Alterations to historic properties shall comply, to the 
maximum extent feasible, with the provisions applicable to historic 
properties in the design standards specified in Sec. 35.151(c).
    (ii) 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.
    (4) Path of travel. 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.
    (i) 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 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 entity using the facility 
are carried out.
    (A) Mechanical rooms, boiler rooms, supply storage rooms, employee 
lounges or locker rooms, janitorial closets, entrances, and corridors 
are not areas containing a primary function. Restrooms are not areas 
containing a primary function unless the provision of restrooms is a 
primary purpose of the area, e.g., in highway rest stops.
    (B) 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.
    (ii) 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.
    (A) 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.
    (B) For the purposes of this section, the term ``path of travel'' 
also includes the restrooms, telephones, and drinking fountains serving 
the altered area.
    (C) Safe harbor. If a public entity has constructed or altered 
required elements of a path of travel in accordance with the 
specifications in either the 1991 Standards or the Uniform Federal 
Accessibility Standards before March 15, 2012, the public entity is not 
required to retrofit such elements to reflect incremental changes in the 
2010 Standards solely because of an alteration to a primary function 
area served by that path of travel.
    (iii) Disproportionality. (A) 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.
    (B) Costs that may be counted as expenditures required to provide an 
accessible path of travel may include:

[[Page 591]]

    (1) 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;
    (2) Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
    (3) Costs associated with providing accessible telephones, such as 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a text telephone (TTY); and
    (4) Costs associated with relocating an inaccessible drinking 
fountain.
    (iv) Duty to provide accessible features in the event of 
disproportionality. (A) 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.
    (B) In choosing which accessible elements to provide, priority 
should be given to those elements that will provide the greatest access, 
in the following order--
    (1) An accessible entrance;
    (2) An accessible route to the altered area;
    (3) At least one accessible restroom for each sex or a single unisex 
restroom;
    (4) Accessible telephones;
    (5) Accessible drinking fountains; and
    (6) When possible, additional accessible elements such as parking, 
storage, and alarms.
    (v) Series of smaller alterations. (A) 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.
    (B)(1) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alterations to the primary function areas 
on that path of travel during the preceding three year period shall be 
considered in determining whether the cost of making that path of travel 
accessible is disproportionate.
    (2) Only alterations undertaken on or after March 15, 2011 shall be 
considered in determining if the cost of providing an accessible path of 
travel is disproportionate to the overall cost of the alterations.
    (c) Accessibility standards and compliance date. (1) If physical 
construction or alterations commence after July 26, 1992, but prior to 
September 15, 2010, then new construction and alterations subject to 
this section must comply with either UFAS or the 1991 Standards except 
that the elevator exemption contained at section 4.1.3(5) and section 
4.1.6(1)(k) of the 1991 Standards 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.
    (2) If physical construction or alterations commence on or after 
September 15, 2010 and before March 15, 2012, then new construction and 
alterations subject to this section may comply with one of the 
following: The 2010 Standards, UFAS, or the 1991 Standards except that 
the elevator exemption contained at section 4.1.3(5) and section 
4.1.6(1)(k) of the 1991 Standards 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.
    (3) If physical construction or alterations commence on or after 
March 15, 2012, then new construction and alterations subject to this 
section shall comply with the 2010 Standards.
    (4) For the purposes of this section, ceremonial groundbreaking or 
razing of structures prior to site preparation do not commence physical 
construction or alterations.
    (5) Noncomplying new construction and alterations. (i) Newly 
constructed or altered facilities or elements covered by

[[Page 592]]

Sec. Sec. 35.151(a) or (b) that were constructed or altered before March 
15, 2012, and that do not comply with the 1991 Standards or with UFAS 
shall before March 15, 2012, be made accessible in accordance with 
either the 1991 Standards, UFAS, or the 2010 Standards.
    (ii) Newly constructed or altered facilities or elements covered by 
Secs. 35.151(a) or (b) that were constructed or altered before March 15, 
2012 and that do not comply with the 1991 Standards or with UFAS shall, 
on or after March 15, 2012, be made accessible in accordance with the 
2010 Standards.

                       Appendix to Sec. 35.151(c)
------------------------------------------------------------------------
 Compliance dates for new construction and
                alterations                     Applicable standards
------------------------------------------------------------------------
Before September 15, 2010.................  1991 Standards or UFAS.
On or after September 15, 2010 and before   1991 Standards, UFAS, or
 March 15, 2012.                             2010 Standards.
On or after March 15, 2012................  2010 Standards.
------------------------------------------------------------------------

    (d) Scope of coverage. The 1991 Standards and the 2010 Standards 
apply to fixed or built-in elements of buildings, structures, site 
improvements, and pedestrian routes or vehicular ways located on a site. 
Unless specifically stated otherwise, the advisory notes, appendix 
notes, and figures contained in the 1991 Standards and the 2010 
Standards explain or illustrate the requirements of the rule; they do 
not establish enforceable requirements.
    (e) Social service center establishments. Group homes, halfway 
houses, shelters, or similar social service center establishments that 
provide either temporary sleeping accommodations or residential dwelling 
units that are subject to this section shall comply with the provisions 
of the 2010 Standards applicable to residential facilities, including, 
but not limited to, the provisions in sections 233 and 809.
    (1) In sleeping rooms with more than 25 beds covered by this 
section, a minimum of 5% of the beds shall have clear floor space 
complying with section 806.2.3 of the 2010 Standards.
    (2) Facilities with more than 50 beds covered by this section that 
provide common use bathing facilities shall provide at least one roll-in 
shower with a seat that complies with the relevant provisions of section 
608 of the 2010 Standards. Transfer-type showers are not permitted in 
lieu of a roll-in shower with a seat, and the exceptions in sections 
608.3 and 608.4 for residential dwelling units are not permitted. When 
separate shower facilities are provided for men and for women, at least 
one roll-in shower shall be provided for each group.
    (f) Housing at a place of education. Housing at a place of education 
that is subject to this section shall comply with the provisions of the 
2010 Standards applicable to transient lodging, including, but not 
limited to, the requirements for transient lodging guest rooms in 
sections 224 and 806 subject to the following exceptions. For the 
purposes of the application of this section, the term ``sleeping room'' 
is intended to be used interchangeably with the term ``guest room'' as 
it is used in the transient lodging standards.
    (1) Kitchens within housing units containing accessible sleeping 
rooms with mobility features (including suites and clustered sleeping 
rooms) or on floors containing accessible sleeping rooms with mobility 
features shall provide turning spaces that comply with section 809.2.2 
of the 2010 Standards and kitchen work surfaces that comply with section 
804.3 of the 2010 Standards.
    (2) Multi-bedroom housing units containing accessible sleeping rooms 
with mobility features shall have an accessible route throughout the 
unit in accordance with section 809.2 of the 2010 Standards.
    (3) Apartments or townhouse facilities that are provided by or on 
behalf of a place of education, which are leased on a year-round basis 
exclusively to graduate students or faculty, and do not contain any 
public use or common use areas available for educational programming, 
are not subject to the transient lodging standards and shall comply with 
the requirements for residential facilities in sections 233 and 809 of 
the 2010 Standards.
    (g) Assembly areas. Assembly areas subject to this section shall 
comply with the provisions of the 2010 Standards applicable to assembly 
areas, including, but not limited to, sections 221 and 802. In addition, 
assembly areas shall ensure that--

[[Page 593]]

    (1) In stadiums, arenas, and grandstands, wheelchair spaces and 
companion seats are dispersed to all levels that include seating served 
by an accessible route;
    (2) Assembly areas that are required to horizontally disperse 
wheelchair spaces and companion seats by section 221.2.3.1 of the 2010 
Standards and have seating encircling, in whole or in part, a field of 
play or performance area shall disperse wheelchair spaces and companion 
seats around that field of play or performance area;
    (3) Wheelchair spaces and companion seats are not located on (or 
obstructed by) temporary platforms or other movable structures, except 
that when an entire seating section is placed on temporary platforms or 
other movable structures in an area where fixed seating is not provided, 
in order to increase seating for an event, wheelchair spaces and 
companion seats may be placed in that section. When wheelchair spaces 
and companion seats are not required to accommodate persons eligible for 
those spaces and seats, individual, removable seats may be placed in 
those spaces and seats;
    (4) Stadium-style movie theaters shall locate wheelchair spaces and 
companion seats on a riser or cross-aisle in the stadium section that 
satisfies at least one of the following criteria--
    (i) It is located within the rear 60% of the seats provided in an 
auditorium; or
    (ii) It is located within the area of an auditorium in which the 
vertical viewing angles (as measured to the top of the screen) are from 
the 40th to the 100th percentile of vertical viewing angles for all 
seats as ranked from the seats in the first row (1st percentile) to 
seats in the back row (100th percentile).
    (h) Medical care facilities. Medical care facilities that are 
subject to this section shall comply with the provisions of the 2010 
Standards applicable to medical care facilities, including, but not 
limited to, sections 223 and 805. In addition, medical care facilities 
that do not specialize in the treatment of conditions that affect 
mobility shall disperse the accessible patient bedrooms required by 
section 223.2.1 of the 2010 Standards in a manner that is proportionate 
by type of medical specialty.
    (i) 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.
    (j) Facilities with residential dwelling units for sale to 
individual owners. (1) Residential dwelling units designed and 
constructed or altered by public entities that will be offered for sale 
to individuals shall comply with the requirements for residential 
facilities in the 2010 Standards, including sections 233 and 809.
    (2) The requirements of paragraph (1) also apply to housing programs 
that are operated by public entities where design and construction of 
particular residential dwelling units take place only after a specific 
buyer has been identified. In such programs, the covered entity must 
provide the units that comply with the requirements for accessible 
features to those pre-identified buyers with disabilities who have 
requested such a unit.
    (k) Detention and correctional facilities. (1) New construction of 
jails, prisons, and other detention and correctional facilities shall 
comply with the 2010 Standards except that public entities shall provide 
accessible mobility features complying with section 807.2 of the 2010 
Standards for a minimum of 3%, but no fewer than one, of the total 
number of cells in a facility. Cells with mobility features shall be 
provided in each classification level.
    (2) Alterations to detention and correctional facilities. 
Alterations to jails, prisons, and other detention and correctional 
facilities shall comply with the 2010 Standards except that public 
entities shall provide accessible mobility features complying with 
section 807.2 of the 2010 Standards for a minimum of 3%, but no fewer 
than one, of the total number of cells being altered until at least 3%, 
but no fewer than one, of the total number of cells in a facility shall 
provide mobility features

[[Page 594]]

complying with section 807.2. Altered cells with mobility features shall 
be provided in each classification level. However, when alterations are 
made to specific cells, detention and correctional facility operators 
may satisfy their obligation to provide the required number of cells 
with mobility features by providing the required mobility features in 
substitute cells (cells other than those where alterations are 
originally planned), provided that each substitute cell--
    (i) Is located within the same prison site;
    (ii) Is integrated with other cells to the maximum extent feasible;
    (iii) Has, at a minimum, equal physical access as the altered cells 
to areas used by inmates or detainees for visitation, dining, 
recreation, educational programs, medical services, work programs, 
religious services, and participation in other programs that the 
facility offers to inmates or detainees; and
    (iv) If it is technically infeasible to locate a substitute cell 
within the same prison site, a substitute cell must be provided at 
another prison site within the corrections system.
    (3) With respect to medical and long-term care facilities in jails, 
prisons, and other detention and correctional facilities, public 
entities shall apply the 2010 Standards technical and scoping 
requirements for those facilities irrespective of whether those 
facilities are licensed.

[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 
17521, Apr. 5, 1993; AG Order No. 3180-2010, 75 FR 56180, Sept. 15, 
2010; 76 FR 13285, Mar. 11, 2011]



Sec. 35.152  Jails, detention and correctional facilities,
and community correctional facilities.

    (a) General. This section applies to public entities that are 
responsible for the operation or management of adult and juvenile 
justice jails, detention and correctional facilities, and community 
correctional facilities, either directly or through contractual, 
licensing, or other arrangements with public or private entities, in 
whole or in part, including private correctional facilities.
    (b) Discrimination prohibited. (1) Public entities shall ensure that 
qualified inmates or detainees with disabilities shall not, because a 
facility is 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.
    (2) Public entities shall ensure that inmates or detainees with 
disabilities are housed in the most integrated setting appropriate to 
the needs of the individuals. Unless it is appropriate to make an 
exception, a public entity--
    (i) Shall not place inmates or detainees with disabilities in 
inappropriate security classifications because no accessible cells or 
beds are available;
    (ii) Shall not place inmates or detainees with disabilities in 
designated medical areas unless they are actually receiving medical care 
or treatment;
    (iii) Shall not place inmates or detainees with disabilities in 
facilities that do not offer the same programs as the facilities where 
they would otherwise be housed; and
    (iv) Shall not deprive inmates or detainees with disabilities of 
visitation with family members by placing them in distant facilities 
where they would not otherwise be housed.
    (3) Public entities shall implement reasonable policies, including 
physical modifications to additional cells in accordance with the 2010 
Standards, so as to ensure that each inmate with a disability is housed 
in a cell with the accessible elements necessary to afford the inmate 
access to safe, appropriate housing.

[AG Order No. 3180-2010, 75 FR 56183, Sept. 15, 2010]



Secs. 35.152-35.159  [Reserved]



                        Subpart E_Communications



Sec. 35.160  General.

    (a)(1) A public entity shall take appropriate steps to ensure that 
communications with applicants, participants, members of the public, and 
companions with disabilities are as effective as communications with 
others.
    (2) For purposes of this section, ``companion'' means a family 
member,

[[Page 595]]

friend, or associate of an individual seeking access to a service, 
program, or activity of a public entity, who, along with such 
individual, is an appropriate person with whom the public entity should 
communicate.
    (b)(1) A public entity shall furnish appropriate auxiliary aids and 
services where necessary to afford individuals with disabilities, 
including applicants, participants, companions, and members of the 
public, an equal opportunity to participate in, and enjoy the benefits 
of, a service, program, or activity of a public entity.
    (2) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and complexity 
of the communication involved; and the context in which the 
communication is taking place. In determining what types of auxiliary 
aids and services are necessary, a public entity shall give primary 
consideration to the requests of individuals with disabilities. In order 
to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.
    (c)(1) A public entity shall not require an individual with a 
disability to bring another individual to interpret for him or her.
    (2) A public entity shall not rely on an adult accompanying an 
individual with a disability to interpret or facilitate communication 
except--
    (i) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (ii) Where the individual with a disability specifically requests 
that the accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (3) A public entity shall not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public where 
there is no interpreter available.
    (d) Video remote interpreting (VRI) services. A public entity that 
chooses to provide qualified interpreters via VRI services shall ensure 
that it provides--
    (1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;
    (2) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of his or her 
body position;
    (3) A clear, audible transmission of voices; and
    (4) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.

[Order No. 1512-91, 56 FR 35716, July 26, 1991, as amended by AG Order 
No. 3180-2010, 75 FR 56183, Sept. 15, 2010]



Sec. 35.161  Telecommunications.

    (a) Where a public entity communicates by telephone with applicants 
and beneficiaries, text telephones (TTYs) or equally effective 
telecommunications systems shall be used to communicate with individuals 
who are deaf or hard of hearing or have speech impairments.
    (b) When a public entity uses an automated-attendant system, 
including, but not limited to, voicemail and messaging, or an 
interactive voice response system, for receiving and directing incoming 
telephone calls, that system must provide effective real-time 
communication with individuals using auxiliary aids and services, 
including TTYs and all forms of FCC-approved telecommunications relay 
systems, including Internet-based relay systems.
    (c) A public entity shall respond to telephone calls from a 
telecommunications relay service established under title IV of the ADA 
in the same manner that it responds to other telephone calls.

[AG Order No. 3180-2010, 75 FR 56184, Sept. 15, 2010]

[[Page 596]]



Sec. 35.162  Telephone emergency services.

    Telephone emergency services, including 911 services, shall provide 
direct access to individuals who use TDD's and computer modems.



Sec. 35.163  Information and signage.

    (a) A public entity shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (b) A public entity shall provide signage at all inaccessible 
entrances to each of its facilities, directing users to an accessible 
entrance or to a location at which they can obtain information about 
accessible facilities. The international symbol for accessibility shall 
be used at each accessible entrance of a facility.



Sec. 35.164  Duties.

    This subpart does not require a public entity to take any action 
that it can demonstrate would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens. In those circumstances where personnel of the 
public entity believe that the proposed action would fundamentally alter 
the service, program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with this subpart would result in such alteration or burdens. 
The decision that compliance would result in such alteration or burdens 
must be made by the head of the public entity or his or her designee 
after considering all resources available for use in the funding and 
operation of the service, program, or activity and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action required to comply with this subpart would result in such an 
alteration or such burdens, a public entity shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that, to the maximum extent possible, individuals 
with disabilities receive the benefits or services provided by the 
public entity.



Secs. 35.165-35.169  [Reserved]



                     Subpart F_Compliance Procedures



Sec. 35.170  Complaints.

    (a) Who may file. An individual who believes that he or she or a 
specific class of individuals has been subjected to discrimination on 
the basis of disability by a public entity may, by himself or herself or 
by an authorized representative, file a complaint under this part.
    (b) Time for filing. A complaint must be filed not later than 180 
days from the date of the alleged discrimination, unless the time for 
filing is extended by the designated agency for good cause shown. A 
complaint is deemed to be filed under this section on the date 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 to the appropriate 
designated agency, the agency that has section 504 jurisdiction, or the 
Department of Justice, and so notify the complainant.

[[Page 597]]

    (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 may exercise jurisdiction pursuant to 
Sec. 35.190(e) or 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.

[Order No. 1512-91, 56 FR 35716, July 26, 1991, as amended by AG Order 
No. 3180-2010, 75 FR 56184, Sept. 15, 2010]



Sec. 35.172  Investigations and compliance reviews.

    (a) The designated agency shall investigate complaints for which it 
is responsible under Sec. 35.171.
    (b) The designated agency may conduct compliance reviews of public 
entities in order to ascertain whether there has been a failure to 
comply with the nondiscrimination requirements of this part.
    (c) Where appropriate, the designated agency shall attempt informal 
resolution of any matter being investigated under this section, and, if 
resolution is not achieved and a violation is found, issue to the public 
entity and the complainant, if any, 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 (including 
compensatory damages where appropriate); and
    (3) Notice of the rights and procedures available under paragraph 
(d) of this section and Secs. 35.173 and 35.174.
    (d) At any time, the complainant may file a private suit pursuant to 
section 203 of the Act, 42 U.S.C. 12133, whether or not the designated 
agency finds a violation.

[AG Order No. 3180-2010, 75 FR 56184, Sept. 15, 2010]



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--

[[Page 598]]

    (1) Be in writing and signed by the parties;
    (2) Address each cited violation;
    (3) Specify the corrective or remedial action to be taken, within a 
stated period of time, to come into compliance;
    (4) Provide assurance that discrimination will not recur; and
    (5) Provide for enforcement by the Attorney General.



Sec. 35.174  Referral.

    If the public entity declines to enter into voluntary compliance 
negotiations or if negotiations are unsuccessful, the designated agency 
shall refer the matter to the Attorney General with a recommendation for 
appropriate action.



Sec. 35.175  Attorney's fees.

    In any action or administrative proceeding commenced pursuant to the 
Act or this part, the court or agency, in its discretion, may allow the 
prevailing party, other than the United States, a reasonable attorney's 
fee, including litigation expenses, and costs, and the United States 
shall be liable for the foregoing the same as a private individual.



Sec. 35.176  Alternative means of dispute resolution.

    Where appropriate and to the extent authorized by law, the use of 
alternative means of dispute resolution, including settlement 
negotiations, conciliation, facilitation, mediation, factfinding, 
minitrials, and arbitration, is encouraged to resolve disputes arising 
under the Act and this part.



Sec. 35.177  Effect of unavailability of technical assistance.

    A public entity shall not be excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance, including any failure in the development or dissemination of 
any technical assistance manual authorized by the Act.



Sec. 35.178  State immunity.

    A State shall not be immune under the eleventh amendment to the 
Constitution of the United States from an action in Federal or State 
court of competent jurisdiction for a violation of this Act. In any 
action against a State for a violation of the requirements of this Act, 
remedies (including remedies both at law and in equity) are available 
for such a violation to the same extent as such remedies are available 
for such a violation in an action against any public or private entity 
other than a State.



Secs. 35.179-35.189  [Reserved]



                      Subpart G_Designated Agencies



Sec. 35.190  Designated agencies.

    (a) The Assistant Attorney General shall coordinate the compliance 
activities of Federal agencies with respect to State and local 
government components, and shall provide policy guidance and 
interpretations to designated agencies to ensure the consistent and 
effective implementation of the requirements of this part.
    (b) The Federal agencies listed in paragraph (b) (1) through (8) of 
this section shall have responsibility for the implementation of subpart 
F of this part for components of State and local governments that 
exercise responsibilities, regulate, or administer services, programs, 
or activities in the following functional areas.
    (1) Department of Agriculture: All programs, services, and 
regulatory activities relating to farming and the raising of livestock, 
including extension services.
    (2) Department of Education: All programs, services, and regulatory 
activities relating to the operation of elementary and secondary 
education systems and institutions, institutions of 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.

[[Page 599]]

    (4) Department of Housing and Urban Development: All programs, 
services, and regulatory activities relating to state and local public 
housing, and housing assistance and referral.
    (5) Department of Interior: All programs, services, and regulatory 
activities relating to lands and natural resources, including parks and 
recreation, water and waste management, environmental protection, 
energy, historic and cultural preservation, and museums.
    (6) Department of Justice: All programs, services, and regulatory 
activities relating to law enforcement, public safety, and the 
administration of justice, including courts and correctional 
institutions; commerce and industry, including general economic 
development, banking and finance, consumer protection, insurance, and 
small business; planning, development, and regulation (unless assigned 
to other designated agencies); state and local government support 
services (e.g., audit, personnel, comptroller, administrative services); 
all other government functions not assigned to other designated 
agencies.
    (7) Department of Labor: All programs, services, and regulatory 
activities relating to labor and the work force.
    (8) Department of Transportation: All programs, services, and 
regulatory activities relating to transportation, including highways, 
public transportation, traffic management (non-law enforcement), 
automobile licensing and inspection, and driver licensing.
    (c) Responsibility for the implementation of subpart F of this part 
for components of State or local governments that exercise 
responsibilities, regulate, or administer services, programs, or 
activities relating to functions not assigned to specific designated 
agencies by paragraph (b) of this section may be assigned to other 
specific agencies by the Department of Justice.
    (d) If two or more agencies have apparent responsibility over a 
complaint, the Assistant Attorney General shall determine which one of 
the agencies shall be the designated agency for purposes of that 
complaint.
    (e) When the Department receives a complaint directed to the 
Attorney General alleging a violation of this part that may fall within 
the jurisdiction of a designated agency or another Federal agency that 
may have jurisdiction under section 504, the Department may exercise its 
discretion to retain the complaint for investigation under this part.

[Order No. 1512-91, 56 FR 35716, July 26, 1991, as amended by AG Order 
No. 3180-2010, 75 FR 56184, Sept. 15, 2010]



Secs. 35.191-35.999  [Reserved]



 Sec. Appendix A to Part 35--Guidance to Revisions to ADA Regulation on 
    Nondiscrimination on the Basis of Disability in State and Local 
                           Government Services

    Note: This Appendix contains guidance providing a section-by-section 
analysis of the revisions to 28 CFR part 35 published on September 15, 
2010.

       Section-By-Section Analysis and Response to Public Comments

    This section provides a detailed description of the Department's 
changes to the title II regulation, the reasoning behind those changes, 
and responses to public comments received on these topics. The Section-
by-Section Analysis follows the order of the title II regulation itself, 
except that, if the Department has not changed a regulatory section, the 
unchanged section has not been mentioned.

                           Subpart A--General

                       Section 35.104 Definitions.

                  ``1991 Standards'' and ``2004 ADAAG''

    The Department has included in the final rule new definitions of 
both the ``1991 Standards'' and the ``2004 ADAAG.'' The term ``1991 
Standards'' refers to the ADA Standards for Accessible Design, 
originally published on July 26, 1991, and republished as Appendix D to 
part 36. The term ``2004 ADAAG'' refers to ADA Chapter 1, ADA Chapter 2, 
and Chapters 3 through 10 of the Americans with Disabilities Act and 
Architectural Barriers Act Accessibility Guidelines, which were issued 
by the Access Board on July 23, 2004, 36 CFR 1191, app. B and D (2009), 
and which the Department has adopted in this final rule. These terms are 
included in the definitions section for ease of reference.

                           ``2010 Standards''

    The Department has added to the final rule a definition of the term 
``2010 Standards.'' The term ``2010 Standards'' refers to the 2010 ADA 
Standards for Accessible Design, which

[[Page 600]]

consist of the 2004 ADAAG and the requirements contained in Sec. 35.151.

                     ``Auxiliary Aids and Services''

    In the NPRM, the Department proposed revisions to the definition of 
auxiliary aids and services under Sec. 35.104 to include several 
additional types of auxiliary aids that have become more readily 
available since the promulgation of the 1991 title II regulation, and in 
recognition of new technology and devices available in some places that 
may provide effective communication in some situations.
    The NPRM proposed adding an explicit reference to written notes in 
the definition of ``auxiliary aids.'' Although this policy was already 
enunciated in the Department's 1993 Title II Technical Assistance Manual 
at II-7.1000, the Department proposed inclusion in the regulation itself 
because some Title II entities do not understand that exchange of 
written notes using paper and pencil is an available option in some 
circumstances. See Department of Justice, The Americans with 
Disabilities Act, Title II Technical Assistance Manual Covering State 
and Local Government Programs and Services (1993), available at http://
www.ada.gov/taman2.html. Comments from several disability advocacy 
organizations and individuals discouraged the Department from including 
the exchange of written notes in the list of available auxiliary aids in 
Sec. 35.104. Advocates and persons with disabilities requested explicit 
limits on the use of written notes as a form of auxiliary aid because, 
they argue, most exchanges are not simple and are not communicated 
effectively using handwritten notes. One major advocacy organization, 
for example, noted that the speed at which individuals communicate 
orally or use sign language averages about 200 words per minute or more 
while exchange of notes often leads to truncated or incomplete 
communication. For persons whose primary language is American Sign 
Language (ASL), some commenters pointed out, using written English in 
exchange of notes often is ineffective because ASL syntax and vocabulary 
is dissimilar from English. By contrast, some commenters from 
professional medical associations sought more specific guidance on when 
notes are allowed, especially in the context of medical offices and 
health care situations.
    Exchange of notes likely will be effective in situations that do not 
involve substantial conversation, for example, blood work for routine 
lab tests or regular allergy shots. Video Interpreting Services 
(hereinafter referred to as ``video remote interpreting services'' or 
VRI) or an interpreter should be used when the matter involves greater 
complexity, such as in situations requiring communication of medical 
history or diagnoses, in conversations about medical procedures and 
treatment decisions, or when giving instructions for care at home or 
elsewhere. In the Section-By-Section Analysis of Sec. 35.160 
(Communications) below, the Department discusses in greater detail the 
kinds of situations in which interpreters or captioning would be 
necessary. Additional guidance on this issue can be found in a number of 
agreements entered into with health-care providers and hospitals that 
are available on the Department's Web site at http://www.ada.gov.
    In the NPRM, in paragraph (1) of the definition in Sec. 35.104, the 
Department proposed replacing the term ``telecommunications devices for 
deaf persons (TDD)'' with the term ``text telephones (TTYs).'' TTY has 
become the commonly accepted term and is consistent with the terminology 
used by the Access Board in the 2004 ADAAG. Commenters representing 
advocates and persons with disabilities expressed approval of the 
substitution of TTY for TDD in the proposed regulation.
    Commenters also expressed the view that the Department should expand 
paragraph (1) of the definition of auxiliary aids to include ``TTY's and 
other voice, text, and video-based telecommunications products and 
systems such as videophones and captioned telephones.'' The Department 
has considered these comments and has revised the definition of 
``auxiliary aids'' to include references to voice, text, and video-based 
telecommunications products and systems, as well as accessible 
electronic and information technology.
    In the NPRM, the Department also proposed including a reference in 
paragraph (1) to a new technology, Video Interpreting Services (VIS). 
The reference remains in the final rule. VIS is discussed in the 
Section-By-Section Analysis below in reference to Sec. 35.160 
(Communications), but is referred to as VRI in both the final rule and 
Appendix A to more accurately reflect the terminology used in other 
regulations and among users of the technology.
    In the NPRM, the Department noted that technological advances in the 
18 years since the ADA's enactment had increased the range of auxiliary 
aids and services for those who are blind or have low vision. As a 
result the Department proposed additional examples to paragraph (2) of 
the definition, including Brailled materials and displays, screen reader 
software, optical readers, secondary auditory programs (SAP), and 
accessible electronic and information technology. Some commenters asked 
for more detailed requirements for auxiliary aids for persons with 
vision disabilities. The Department has decided it will not make 
additional changes to that provision at this time.
    Several comments suggested expanding the auxiliary aids provision 
for persons who are both deaf and blind, and in particular, to include 
in the list of auxiliary aids a new category, ``support service 
providers (SSP),''

[[Page 601]]

which was described in comments as a navigator and communication 
facilitator. The Department believes that services provided by 
communication facilitators are already encompassed in the requirement to 
provide qualified interpreters. Moreover, the Department is concerned 
that as described by the commenters, the category of support service 
providers would include some services that would be considered personal 
services and that do not qualify as auxiliary aids. Accordingly, the 
Department declines to add this new category to the list at this time.
    Some commenters representing advocacy organizations and individuals 
asked the Department to explicitly require title II entities to make any 
or all of the devices or technology available in all situations upon the 
request of the person with a disability. The Department recognizes that 
such devices or technology may provide effective communication and in 
some circumstances may be effective for some persons, but the Department 
does not intend to require that every entity covered by title II provide 
every device or all new technology at all times as long as the 
communication that is provided is as effective as communication with 
others. The Department recognized in the preamble to the 1991 title II 
regulation that the list of auxiliary aids was ``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.'' 28 CFR part 35, app. A at 560 (2009). The 
Department continues to endorse that view; thus, the inclusion of a list 
of examples of possible auxiliary aids in the definition of ``auxiliary 
aids'' should not be read as a mandate for a title II entity to offer 
every possible auxiliary aid listed in the definition in every 
situation.

                            ``Direct Threat''

    In Appendix A of the Department's 1991 title II regulation, the 
Department included a detailed discussion of ``direct threat'' that, 
among other things, explained that ``the principles established in 
Sec. 36.208 of the Department's [title III] regulation'' were 
``applicable'' as well to title II, insofar as ``questions of safety are 
involved.'' 28 CFR part 35, app. A at 565 (2009). In the final rule, the 
Department has included an explicit definition of ``direct threat'' that 
is parallel to the definition in the title III rule and placed it in the 
definitions section at Sec. 35.104.

                          ``Existing Facility''

    The 1991 title II regulation provided definitions for ``new 
construction'' at Sec. 35.151(a) and ``alterations'' at Sec. 35.151(b). 
In contrast, the term ``existing facility'' was not explicitly defined, 
although it is used in the statute and regulations for title II. See 42 
U.S.C. 12134(b); 28 CFR 35.150. It has been the Department's view that 
newly constructed or altered facilities are also existing facilities 
with continuing program access obligations, and that view is made 
explicit in this rule.
    The classification of facilities under the ADA is neither static nor 
mutually exclusive. Newly constructed or altered facilities are also 
existing facilities. A newly constructed facility remains subject to the 
accessibility standards in effect at the time of design and 
construction, with respect to those elements for which, at that time, 
there were applicable ADA Standards. And at some point, the facility may 
undergo alterations, which are subject to the alterations requirements 
in effect at the time. See Sec. 35.151(b)-(c). The fact that the 
facility is also an existing facility does not relieve the public entity 
of its obligations under the new construction and alterations 
requirements in this part.
    For example, a facility constructed or altered after the effective 
date of the original title II regulations but prior to the effective 
date of the revised title II regulation and Standards, must have been 
built or altered in compliance with the Standards (or UFAS) in effect at 
that time, in order to be in compliance with the ADA. In addition, a 
``newly constructed'' facility or ``altered'' facility is also an 
``existing facility'' for purposes of application of the title II 
program accessibility requirements. Once the 2010 Standards take effect, 
they will become the new reference point for determining the program 
accessibility obligations of all existing facilities. This is because 
the ADA contemplates that as our knowledge and understanding of 
accessibility advances and evolves, this knowledge will be incorporated 
into and result in increased accessibility in the built environment. 
Under title II, this goal is accomplished through the statute's program 
access framework. While newly constructed or altered facilities must 
meet the accessibility standards in effect at the time, the fact that 
these facilities are also existing facilities ensures that the 
determination of whether a program is accessible is not frozen at the 
time of construction or alteration. Program access may require 
consideration of potential barriers to access that were not recognized 
as such at the time of construction or alteration, including, but not 
limited to, the elements that are first covered in the 2010 Standards, 
as that term is defined in Sec. 35.104. Adoption of the 2010 Standards 
establishes a new reference point for title II entities that choose to 
make structural changes to existing facilities to meet their program 
access requirements.
    The NPRM included the following proposed definition of ``existing 
facility.'' ``A facility that has been constructed and remains in 
existence on any given date.'' 73 FR 34466, 34504 (June 17, 2008). The 
Department received a

[[Page 602]]

number of comments on this issue. The commenters urged the Department to 
clarify that all buildings remain subject to the standards in effect at 
the time of their construction, that is, that a facility designed and 
constructed for first occupancy between January 26, 1992, and the 
effective date of the final rule is still considered ``new 
construction'' and that alterations occurring between January 26, 1992, 
and the effective date of the final rule are still considered 
``alterations.''
    The final rule includes clarifying language to ensure that the 
Department's interpretation is accurately reflected. As established by 
this rule, existing facility means a facility in existence on any given 
date, without regard to whether the facility may also be considered 
newly constructed or altered under this part. Thus, this definition 
reflects the Department's interpretation that public entities have 
program access requirements that are independent of, but may coexist 
with, requirements imposed by new construction or alteration 
requirements in those same facilities.

                   ``Housing at a Place of Education''

    The Department has added a new definition to Sec. 35.104, ``housing 
at a place of education,'' to clarify the types of educational housing 
programs that are covered by this title. This section defines ``housing 
at a place of education'' as ``housing operated by or on behalf of an 
elementary, secondary, undergraduate, or postgraduate school, or other 
place of education, including dormitories, suites, apartments, or other 
places of residence.'' This definition does not apply to social service 
programs that combine residential housing with social services, such as 
a residential job training program.

        ``Other Power-Driven Mobility Device'' and ``Wheelchair''

    Because relatively few individuals with disabilities were using 
nontraditional mobility devices in 1991, there was no pressing need for 
the 1991 title II regulation to define the terms ``wheelchair'' or 
``other power-driven mobility device,'' to expound on what would 
constitute a reasonable modification in policies, practices, or 
procedures under Sec. 35.130(b)(7), or to set forth within that section 
specific requirements for the accommodation of mobility devices. Since 
the issuance of the 1991 title II regulation, however, the choices of 
mobility devices available to individuals with disabilities have 
increased dramatically. The Department has received complaints about and 
has become aware of situations where individuals with mobility 
disabilities have utilized devices that are not designed primarily for 
use by an individual with a mobility disability, including the Segway 
 Personal Transporter (Segway  PT), golf cars, 
all-terrain vehicles (ATVs), and other locomotion devices.
    The Department also has received questions from public entities and 
individuals with mobility disabilities concerning which mobility devices 
must be accommodated and under what circumstances. Indeed, there has 
been litigation concerning the legal obligations of covered entities to 
accommodate individuals with mobility disabilities who wish to use an 
electronic personal assistance mobility device (EPAMD), such as the 
Segway  PT, as a mobility device. The Department has 
participated in such litigation as amicus curiae. See Ault v. Walt 
Disney World Co., No. 6:07-cv-1785-Orl-31KRS, 2009 WL 3242028 (M.D. Fla. 
Oct. 6, 2009). Much of the litigation has involved shopping malls where 
businesses have refused to allow persons with disabilities to use 
EPAMDs. See, e.g., McElroy v. Simon Property Group, No. 08-404 RDR, 2008 
WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining mall from prohibiting the 
use of a Segway  PT as a mobility device where an individual 
agrees to all of a mall's policies for use of the device, except 
indemnification); Shasta Clark, Local Man Fighting Mall Over Right to 
Use Segway, WATE 6 News, July 26, 2005, available at http://
www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 2010).
    In response to questions and complaints from individuals with 
disabilities and covered entities concerning which mobility devices must 
be accommodated and under what circumstances, the Department began 
developing a framework to address the use of unique mobility devices, 
concerns about their safety, and the parameters for the circumstances 
under which these devices must be accommodated. As a result, the 
Department's NPRM proposed two new approaches to mobility devices. 
First, the Department proposed a two-tiered mobility device definition 
that defined the term ``wheelchair'' separately from ``other power-
driven mobility device.'' Second, the Department proposed requirements 
to allow the use of devices in each definitional category. In 
Sec. 35.137(a), the NPRM proposed that wheelchairs and manually-powered 
mobility aids used by individuals with mobility disabilities shall be 
permitted in any areas open to pedestrian use. Section 35.137(b) of the 
NPRM provided that a public entity ``shall make reasonable modifications 
in its policies, practices, and procedures to permit the use of other 
power-driven mobility devices by individuals with disabilities, unless 
the public entity can demonstrate that the use of the device is not 
reasonable or that its use will result in a fundamental alteration of 
the public entity's service, program, or activity.'' 73 FR 34466, 34504 
(June 17, 2008).
    The Department sought public comment with regard to whether these 
steps would, in fact, achieve clarity on these issues. Toward

[[Page 603]]

this end, the Department's NPRM asked several questions relating to the 
definitions of ``wheelchair,'' ``other power-driven mobility device,'' 
and ``manually-powered mobility aids''; the best way to categorize 
different classes of mobility devices; the types of devices that should 
be included in each category; and the circumstances under which certain 
mobility devices must be accommodated or may be excluded pursuant to the 
policy adopted by the public entity.
    Because the questions in the NPRM that concerned mobility devices 
and their accommodation were interrelated, many of the commenters' 
responses did not identify the specific question to which they were 
responding. Instead, the commenters grouped the questions together and 
provided comments accordingly. Most commenters spoke to the issues 
addressed in the Department's questions in broad terms and general 
concepts. As a result, the responses to the questions posed are 
discussed below in broadly grouped issue categories rather than on a 
question-by-question basis.
    Two-tiered definitional approach. Commenters supported the 
Department's proposal to use a two-tiered definition of mobility device. 
Commenters nearly universally said that wheelchairs always should be 
accommodated and that they should never be subject to an assessment with 
regard to their admission to a particular public facility. In contrast, 
the vast majority of commenters indicated they were in favor of allowing 
public entities to conduct an assessment as to whether, and under which 
circumstances, other power-driven mobility devices would be allowed on-
site.
    Many commenters indicated their support for the two-tiered approach 
in responding to questions concerning the definition of ``wheelchair'' 
and ``other-powered mobility device.'' Nearly every disability advocacy 
group said that the Department's two-tiered approach strikes the proper 
balance between ensuring access for individuals with disabilities and 
addressing fundamental alteration and safety concerns held by public 
entities; however, a minority of disability advocacy groups wanted other 
power-driven mobility devices to be included in the definition of 
``wheelchair.'' Most advocacy, nonprofit, and individual commenters 
supported the concept of a separate definition for ``other power-driven 
mobility device'' because it maintains existing legal protections for 
wheelchairs while recognizing that some devices that are not designed 
primarily for individuals with mobility disabilities have beneficial 
uses for individuals with mobility disabilities. They also favored this 
concept because it recognizes technological developments and that the 
innovative uses of varying devices may provide increased access to 
individuals with mobility disabilities.
    Many environmental, transit system, and government commenters 
indicated they opposed in its entirety the concept of ``other power-
driven mobility devices'' as a separate category. They believe that the 
creation of a second category of mobility devices will mean that other 
power-driven mobility devices, specifically ATVs and off-highway 
vehicles, must be allowed to go anywhere on national park lands, trails, 
recreational areas, etc.; will conflict with other Federal land 
management laws and regulations; will harm the environment and natural 
and cultural resources; will pose safety risks to users of these 
devices, as well as to pedestrians not expecting to encounter motorized 
devices in these settings; will interfere with the recreational 
enjoyment of these areas; and will require too much administrative work 
to regulate which devices are allowed and under which circumstances. 
These commenters all advocated a single category of mobility devices 
that excludes all fuel-powered devices.
    Whether or not they were opposed to the two-tier approach in its 
entirety, virtually every environmental commenter and most government 
commenters associated with providing public transportation services or 
protecting land, natural resources, fish and game, etc., said that the 
definition of ``other power-driven mobility device'' is too broad. They 
suggested that they might be able to support the dual category approach 
if the definition of ``other power-driven mobility device'' were 
narrowed. They expressed general and program-specific concerns about 
permitting the use of other power-driven mobility devices. They noted 
the same concerns as those who opposed the two-tiered concept--that 
these devices create a host of environmental, safety, cost, 
administrative and conflict of law issues. Virtually all of these 
commenters indicated that their support for the dual approach and the 
concept of other power-driven mobility devices is, in large measure, due 
to the other power-driven mobility device assessment factors in 
Sec. 35.137(c) of the NPRM.
    By maintaining the two-tiered approach to mobility devices and 
defining ``wheelchair'' separately from ``other power-driven mobility 
device,'' the Department is able to preserve the protection users of 
traditional wheelchairs and other manually powered mobility aids have 
had since the ADA was enacted, while also recognizing that human 
ingenuity, personal choice, and new technologies have led to the use of 
devices that may be more beneficial for individuals with certain 
mobility disabilities.
    Moreover, the Department believes the two-tiered approach gives 
public entities guidance to follow in assessing whether reasonable 
modifications can be made to permit the use of other power-driven 
mobility devices on-site and to aid in the development

[[Page 604]]

of policies describing the circumstances under which persons with 
disabilities may use such devices. The two-tiered approach neither 
mandates that all other power-driven mobility devices be accommodated in 
every circumstance, nor excludes these devices. This approach, in 
conjunction with the factor assessment provisions in Sec. 35.137(b)(2), 
will serve as a mechanism by which public entities can evaluate their 
ability to accommodate other power-driven mobility devices. As will be 
discussed in more detail below, the assessment factors in 
Sec. 35.137(b)(2) are designed to provide guidance to public entities 
regarding whether it is appropriate to bar the use of a specific ``other 
power-driven mobility device in a specific facility. In making such a 
determination, a public entity must consider the device's type, size, 
weight, dimensions, and speed; the facility's volume of pedestrian 
traffic; the facility's design and operational characteristics; whether 
the device conflicts with legitimate safety requirements; and whether 
the device poses a substantial risk of serious harm to the immediate 
environment or natural or cultural resources, or conflicts with Federal 
land management laws or regulations. In addition, if under 
Sec. 35.130(b)(7), the public entity claims that it cannot make 
reasonable modifications to its policies, practices, or procedures to 
permit the use of other power-driven mobility devices by individuals 
with disabilities, the burden of proof to demonstrate that such devices 
cannot be operated in accordance with legitimate safety requirements 
rests upon the public entity.
    Categorization of wheelchair versus other power-driven mobility 
devices. Implicit in the creation of the two-tiered mobility device 
concept is the question of how to categorize which devices are 
wheelchairs and which are other power-driven mobility devices. Finding 
weight and size to be too restrictive, the vast majority of advocacy, 
nonprofit, and individual commenters opposed using the Department of 
Transportation's definition of ``common wheelchair'' to designate the 
mobility device's appropriate category. Commenters who generally 
supported using weight and size as the method of categorization did so 
because of their concerns about potentially detrimental impacts on the 
environment and cultural and natural resources; on the enjoyment of the 
facility by other recreational users, as well as their safety; on the 
administrative components of government agencies required to assess 
which devices are appropriate on narrow, steeply sloped, or foot-and-
hoof only trails; and about the impracticality of accommodating such 
devices in public transportation settings.
    Many environmental, transit system, and government commenters also 
favored using the device's intended-use to categorize which devices 
constitute wheelchairs and which are other power-driven mobility 
devices. Furthermore, the intended-use determinant received a fair 
amount of support from advocacy, nonprofit, and individual commenters, 
either because they sought to preserve the broad accommodation of 
wheelchairs or because they sympathized with concerns about individuals 
without mobility disabilities fraudulently bringing other power-driven 
mobility devices into public facilities.
    Commenters seeking to have the Segway PT included in the 
definition of ``wheelchair'' objected to classifying mobility devices on 
the basis of their intended use because they felt that such a 
classification would be unfair and prejudicial to Segway PT 
users and would stifle personal choice, creativity, and innovation. 
Other advocacy and nonprofit commenters objected to employing an 
intended-use approach because of concerns that the focus would shift to 
an assessment of the device, rather than the needs or benefits to the 
individual with the mobility disability. They were of the view that the 
mobility-device classification should be based on its function--whether 
it is used for a mobility disability. A few commenters raised the 
concern that an intended-use approach might embolden public entities to 
assess whether an individual with a mobility disability really needs to 
use the other power-driven mobility device at issue or to question why a 
wheelchair would not provide sufficient mobility. Those citing 
objections to the intended use determinant indicated it would be more 
appropriate to make the categorization determination based on whether 
the device is being used for a mobility disability in the context of the 
impact of its use in a specific environment. Some of these commenters 
preferred this approach because it would allow the Segway PT 
to be included in the definition of ``wheelchair.''
    Many environmental and government commenters were inclined to 
categorize mobility devices by the way in which they are powered, such 
as battery-powered engines versus fuel or combustion engines. One 
commenter suggested using exhaust level as the determinant. Although 
there were only a few commenters who would make the determination based 
on indoor or outdoor use, there was nearly universal support for banning 
the indoor use of devices that are powered by fuel or combustion 
engines.
    A few commenters thought it would be appropriate to categorize the 
devices based on their maximum speed. Others objected to this approach, 
stating that circumstances should dictate the appropriate speed at which 
mobility devices should be operated--for example, a faster speed may be 
safer when crossing streets than it would be for sidewalk use--and 
merely because a device can go a certain speed does not mean it will be 
operated at that speed.

[[Page 605]]

    The Department has decided to maintain the device's intended use as 
the appropriate determinant for which devices are categorized as 
``wheelchairs.'' However, because wheelchairs may be intended for use by 
individuals who have temporary conditions affecting mobility, the 
Department has decided that it is more appropriate to use the phrase 
``primarily designed'' rather than ``solely designed'' in making such 
categorizations. The Department will not foreclose any future 
technological developments by identifying or banning specific devices or 
setting restrictions on size, weight, or dimensions. Moreover, devices 
designed primarily for use by individuals with mobility disabilities 
often are considered to be medical devices and are generally eligible 
for insurance reimbursement on this basis. Finally, devices designed 
primarily for use by individuals with mobility disabilities are less 
subject to fraud concerns because they were not designed to have a 
recreational component. Consequently, rarely, if ever, is any inquiry or 
assessment as to their appropriateness for use in a public entity 
necessary.
    Definition of ``wheelchair.'' In seeking public feedback on the 
NPRM's definition of ``wheelchair,'' the Department explained its 
concern that the definition of ``wheelchair'' in section 508(c)(2) of 
the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 372, 42 
U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-325 section 
6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains to Federal 
wilderness areas, is not specific enough to provide clear guidance in 
the array of settings covered by title II and that the stringent size 
and weight requirements for the Department of Transportation's 
definition of ``common wheelchair'' are not a good fit in the context of 
most public entities. The Department noted in the NPRM that it sought a 
definition of ``wheelchair'' that would include manually-operated and 
power-driven wheelchairs and mobility scooters (i.e., those that 
typically are single-user, have three to four wheels, and are 
appropriate for both indoor and outdoor pedestrian areas), as well as a 
variety of types of wheelchairs and mobility scooters with 
individualized or unique features or models with different numbers of 
wheels. The NPRM defined a wheelchair as ``a device designed solely for 
use by an individual with a mobility impairment for the primary purpose 
of locomotion in typical indoor and outdoor pedestrian areas. A 
wheelchair may be manually-operated or power-driven.'' 73 FR 34466, 
34479 (June 17, 2008). Although the NPRM's definition of ``wheelchair'' 
excluded mobility devices that are not designed solely for use by 
individuals with mobility disabilities, the Department, noting that the 
use of the Segway PT by individuals with mobility 
disabilities is on the upswing, inquired as to whether this device 
should be included in the definition of ``wheelchair.''
    Many environment and Federal government employee commenters objected 
to the Department's proposed definition of ``wheelchair'' because it 
differed from the definition of ``wheelchair'' found in section 
508(c)(2) of the ADA--a definition used in the statute only in 
connection with a provision relating to the use of a wheelchair in a 
designated wilderness area. See 42 U.S.C. 12207(c)(1). Other government 
commenters associated with environmental issues wanted the phrase 
``outdoor pedestrian use'' eliminated from the definition of 
``wheelchair.'' Some transit system commenters wanted size, weight, and 
dimensions to be part of the definition because of concerns about costs 
associated with having to accommodate devices that exceed the dimensions 
of the ``common wheelchair'' upon which the 2004 ADAAG was based.
    Many advocacy, nonprofit, and individual commenters indicated that 
as long as the Department intends the scope of the term ``mobility 
impairments'' to include other disabilities that cause mobility 
impairments (e.g., respiratory, circulatory, stamina, etc.), they were 
in support of the language. Several commenters indicated a preference 
for the definition of ``wheelchair'' in section 508(c)(2) of the ADA. 
One commenter indicated a preference for the term ``assistive device,'' 
as it is defined in the Rehabilitation Act of 1973, over the term 
``wheelchair.'' A few commenters indicated that strollers should be 
added to the preamble's list of examples of wheelchairs because parents 
of children with disabilities frequently use strollers as mobility 
devices until their children get older.
    In the final rule, the Department has rearranged some wording and 
has made some changes in the terminology used in the definition of 
``wheelchair,'' but essentially has retained the definition, and 
therefore the rationale, that was set forth in the NPRM. Again, the text 
of the ADA makes the definition of ``wheelchair'' contained in section 
508(c)(2) applicable only to the specific context of uses in designated 
wilderness areas, and therefore does not compel the use of that 
definition for any other purpose. Moreover, the Department maintains 
that limiting the definition to devices suitable for use in an ``indoor 
pedestrian area'' as provided for in section 508(c)(2) of the ADA, would 
ignore the technological advances in wheelchair design that have 
occurred since the ADA went into effect and that the inclusion of the 
phrase ``indoor pedestrian area'' in the definition of ``wheelchair'' 
would set back progress made by individuals with mobility disabilities 
who, for many years now, have been using devices designed for locomotion

[[Page 606]]

in indoor and outdoor settings. The Department has concluded that same 
rationale applies to placing limits on the size, weight, and dimensions 
of wheelchairs.
    With regard to the term ``mobility impairments,'' the Department 
intended a broad reading so that a wide range of disabilities, including 
circulatory and respiratory disabilities, that make walking difficult or 
impossible, would be included. In response to comments on this issue, 
the Department has revisited the issue and has concluded that the most 
apt term to achieve this intent is ``mobility disability.''
    In addition, the Department has decided that it is more appropriate 
to use the phrase ``primarily'' designed for use by individuals with 
disabilities in the final rule, rather than ``solely'' designed for use 
by individuals with disabilities--the phrase proposed in the NPRM. The 
Department believes that this phrase more accurately covers the range of 
devices the Department intends to fall within the definition of 
``wheelchair.''
    After receiving comments that the word ``typical'' is vague and the 
phrase ``pedestrian areas'' is confusing to apply, particularly in the 
context of similar, but not identical, terms used in the proposed 
Standards, the Department decided to delete the term ``typical indoor 
and outdoor pedestrian areas'' from the final rule. Instead, the final 
rule references ``indoor or of both indoor and outdoor locomotion,'' to 
make clear that the devices that fall within the definition of 
``wheelchair'' are those that are used for locomotion on indoor and 
outdoor pedestrian paths or routes and not those that are intended 
exclusively for traversing undefined, unprepared, or unimproved paths or 
routes. Thus, the final rule defines the term ``wheelchair'' to mean ``a 
manually-operated or power-driven device designed primarily for use by 
an individual with a mobility disability for the main purpose of indoor 
or of both indoor and outdoor locomotion.''
    Whether the definition of ``wheelchair'' includes the 
Segway PT. As discussed above, because individuals with 
mobility disabilities are using the Segway PT as a mobility 
device, the Department asked whether it should be included in the 
definition of ``wheelchair.'' The basic Segway PT model is a 
two-wheeled, gyroscopically-stabilized, battery-powered personal 
transportation device. The user stands on a platform suspended three 
inches off the ground by wheels on each side, grasps a T-shaped handle, 
and steers the device similarly to a bicycle. Most Segway 
PTs can travel up to 12\1/2\ miles per hour, compared to the average 
pedestrian walking speed of three to four miles per hour and the 
approximate maximum speed for power-operated wheelchairs of six miles 
per hour. In a study of trail and other non-motorized transportation 
users including EPAMDs, the Federal Highway Administration (FHWA) found 
that the eye height of individuals using EPAMDs ranged from 
approximately 69 to 80 inches. See Federal Highway Administration, 
Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 
14, 2004), available at http://www.tfhrc.gov/safety/pubs/04103 (last 
visited June 24, 2010). Thus, the Segway PT can operate at 
much greater speeds than wheelchairs, and the average user stands much 
taller than most wheelchair users.
    The Segway PT has been the subject of debate among 
users, pedestrians, disability advocates, State and local governments, 
businesses, and bicyclists. The fact that the Segway PT is 
not designed primarily for use by individuals with disabilities, nor 
used primarily by persons with disabilities, complicates the question of 
to what extent individuals with disabilities should be allowed to 
operate them in areas and facilities where other power-driven mobility 
devices are not allowed. Those who question the use of the 
Segway PT in pedestrian areas argue that the speed, size, 
and operating features of the devices make them too dangerous to operate 
alongside pedestrians and wheelchair users.
    Comments regarding whether to include the Segway PT in 
the definition of ``wheelchair'' were, by far, the most numerous 
received in the category of comments regarding wheelchairs and other 
power-driven mobility devices. Significant numbers of veterans with 
disabilities, individuals with multiple sclerosis, and those advocating 
on their behalf made concise statements of general support for the 
inclusion of the Segway PT in the definition of 
``wheelchair.'' Two veterans offered extensive comments on the topic, 
along with a few advocacy and nonprofit groups and individuals with 
disabilities for whom sitting is uncomfortable or impossible.
    While there may be legitimate safety issues for EPAMD users and 
bystanders in some circumstances, EPAMDs and other non-traditional 
mobility devices can deliver real benefits to individuals with 
disabilities. Among the reasons given by commenters to include the 
Segway PT in the definition of ``wheelchair'' were that the 
Segway PT is well-suited for individuals with particular 
conditions that affect mobility including multiple sclerosis, 
Parkinson's disease, chronic obstructive pulmonary disease, amputations, 
spinal cord injuries, and other neurological disabilities, as well as 
functional limitations, such as gait limitation, inability to sit or 
discomfort in sitting, and diminished stamina issues. Such individuals 
often find that EPAMDs are more comfortable and easier to use than more 
traditional mobility devices and assist with balance, circulation, and 
digestion in ways that wheelchairs do not. See Rachel Metz, Disabled 
Embrace Segway, New York Times, Oct. 14, 2004. Commenters specifically 
cited pressure

[[Page 607]]

relief, reduced spasticity, increased stamina, and improved respiratory, 
neurologic, and muscular health as secondary medical benefits from being 
able to stand.
    Other arguments for including the Segway PT in the 
definition of ``wheelchair'' were based on commenters' views that the 
Segway PT offers benefits not provided by wheelchairs and 
mobility scooters, including its intuitive response to body movement, 
ability to operate with less coordination and dexterity than is required 
for many wheelchairs and mobility scooters, and smaller footprint and 
turning radius as compared to most wheelchairs and mobility scooters. 
Several commenters mentioned improved visibility, either due to the 
Segway PT's raised platform or simply by virtue of being in 
a standing position. And finally, some commenters advocated for the 
inclusion of the Segway PT simply based on civil rights 
arguments and the empowerment and self-esteem obtained from having the 
power to select the mobility device of choice.
    Many commenters, regardless of their position on whether to include 
the Segway PT in the definition of ``wheelchair,'' noted 
that the Segway PT's safety record is as good as, if not 
better, than the record for wheelchairs and mobility scooters.
    Most environmental, transit system, and government commenters were 
opposed to including the Segway PT in the definition of 
``wheelchair'' but were supportive of its inclusion as an ``other power-
driven mobility device.'' Their concerns about including the 
Segway PT in the definition of ``wheelchair'' had to do with 
the safety of the operators of these devices (e.g., height clearances on 
trains and sloping trails in parks) and of pedestrians, particularly in 
confined and crowded facilities or in settings where motorized devices 
might be unexpected; the potential harm to the environment; the 
additional administrative, insurance, liability, and defensive 
litigation costs; potentially detrimental impacts on the environment and 
cultural and natural resources; and the impracticality of accommodating 
such devices in public transportation settings.
    Other environmental, transit system, and government commenters would 
have banned all fuel-powered devices as mobility devices. In addition, 
these commenters would have classified non-motorized devices as 
``wheelchairs'' and would have categorized motorized devices, such as 
the Segway PT, battery-operated wheelchairs, and mobility 
scooters as ``other power-driven mobility devices.'' In support of this 
position, some of these commenters argued that because their equipment 
and facilities have been designed to comply with the dimensions of the 
``common wheelchair'' upon which the ADAAG is based, any device that is 
larger than the prototype wheelchair would be misplaced in the 
definition of ``wheelchair.''
    Still others in this group of commenters wished for only a single 
category of mobility devices and would have included wheelchairs, 
mobility scooters, and the Segway PT as ``mobility devices'' 
and excluded fuel-powered devices from that definition.
    Many disability advocacy and nonprofit commenters did not support 
the inclusion of the Segway PT in the definition of 
``wheelchair.'' Paramount to these commenters was the maintenance of 
existing protections for wheelchair users. Because there was unanimous 
agreement that wheelchair use rarely, if ever, may be restricted, these 
commenters strongly favored categorizing wheelchairs separately from the 
Segway PT and other power-driven mobility devices and 
applying the intended-use determinant to assign the devices to either 
category. They indicated that while they support the greatest degree of 
access in public entities for all persons with disabilities who require 
the use of mobility devices, they recognize that under certain 
circumstances, allowing the use of other power-driven mobility devices 
would result in a fundamental alteration of programs, services, or 
activities, or run counter to legitimate safety requirements necessary 
for the safe operation of a public entity. While these groups supported 
categorizing the Segway PT as an ``other power-driven 
mobility device,'' they universally noted that in their view, because 
the Segway PT does not present environmental concerns and is 
as safe to use as, if not safer than, a wheelchair, it should be 
accommodated in most circumstances.
    The Department has considered all the comments and has concluded 
that it should not include the Segway PT in the definition 
of ``wheelchair.'' The final rule provides that the test for 
categorizing a device as a wheelchair or an other power-driven mobility 
device is whether the device is designed primarily for use by 
individuals with mobility disabilities. Mobility scooters are included 
in the definition of ``wheelchair'' because they are designed primarily 
for users with mobility disabilities. However, because the current 
generation of EPAMDs, including the Segway PT, was designed 
for recreational users and not primarily for use by individuals with 
mobility disabilities, the Department has decided to continue its 
approach of excluding EPAMDs from the definition of ``wheelchair'' and 
including them in the definition of ``other power-driven mobility 
device.'' Although EPAMDs, such as the Segway PT, are not 
included in the definition of a ``wheelchair,'' public entities must 
assess whether they can make reasonable modifications to permit 
individuals with mobility disabilities to use such devices on their 
premises. The Department recognizes that the Segway PT 
provides many benefits to those who use them as mobility devices, 
including a measure of privacy with regard

[[Page 608]]

to the nature of one's particular disability, and believes that in the 
vast majority of circumstances, the application of the factors described 
in Sec. 35.137 for providing access to other-powered mobility devices 
will result in the admission of the Segway PT.
    Treatment of ``manually-powered mobility aids.'' The Department's 
NPRM did not define the term ``manually-powered mobility aids.'' 
Instead, the NPRM included a non-exhaustive list of examples in 
Sec. 35.137(a). The NPRM queried whether the Department should maintain 
this approach to manually-powered mobility aids or whether it should 
adopt a more formal definition.
    Only a few commenters addressed ``manually-powered mobility aids.'' 
Virtually all commenters were in favor of maintaining a non-exhaustive 
list of examples of ``manually-powered mobility aids'' rather than 
adopting a definition of the term. Of those who commented, a few sought 
clarification of the term ``manually-powered.'' One commenter suggested 
that the term be changed to ``human-powered.'' Other commenters 
requested that the Department include ordinary strollers in the non-
exhaustive list of ``manually-powered mobility aids.'' Since strollers 
are not devices designed primarily for individuals with mobility 
disabilities, the Department does not consider them to be manually-
powered mobility aids; however, strollers used in the context of 
transporting individuals with disabilities are subject to the same 
assessment required by the ADA's title II reasonable modification 
standards at Sec. 35.130(b)(7). The Department believes that because the 
existing approach is clear and understood easily by the public, no 
formal definition of the term ``manually-powered mobility aids'' is 
required.
    Definition of ``other power-driven mobility device.'' The 
Department's NPRM defined the term ``other power-driven mobility 
device'' in Sec. 35.104 as ``any of a large range of devices powered by 
batteries, fuel, or other engines--whether or not designed solely for 
use by individuals with mobility impairments--that are used by 
individuals with mobility impairments for the purpose of locomotion, 
including golf cars, bicycles, electronic personal assistance mobility 
devices (EPAMDs), or any mobility aid designed to operate in areas 
without defined pedestrian routes.'' 73 FR 34466, 34504 (June 17, 2008).
    Nearly all environmental, transit systems, and government commenters 
who supported the two-tiered concept of mobility devices said that the 
Department's definition of ``other power-driven mobility device'' is 
overbroad because it includes fuel-powered devices. These commenters 
sought a ban on fuel-powered devices in their entirety because they 
believe they are inherently dangerous and pose environmental and safety 
concerns. They also argued that permitting the use of many of the 
contemplated other power-driven mobility devices, fuel-powered ones 
especially, would fundamentally alter the programs, services, or 
activities of public entities.
    Advocacy, nonprofit, and several individual commenters supported the 
definition of ``other power-driven mobility device'' because it allows 
new technologies to be added in the future, maintains the existing legal 
protections for wheelchairs, and recognizes that some devices, 
particularly the Segway PT, which are not designed primarily 
for individuals with mobility disabilities, have beneficial uses for 
individuals with mobility disabilities. Despite support for the 
definition of ``other power-driven mobility device,'' however, most 
advocacy and nonprofit commenters expressed at least some hesitation 
about the inclusion of fuel-powered mobility devices in the definition. 
While virtually all of these commenters noted that a blanket exclusion 
of any device that falls under the definition of ``other power-driven 
mobility device'' would violate basic civil rights concepts, they also 
specifically stated that certain devices, particularly, off-highway 
vehicles, cannot be permitted in certain circumstances. They also made a 
distinction between the Segway PT and other power-driven 
mobility devices, noting that the Segway PT should be 
accommodated in most circumstances because it satisfies the safety and 
environmental elements of the policy analysis. These commenters 
indicated that they agree that other power-driven mobility devices must 
be assessed, particularly as to their environmental impact, before they 
are accommodated.
    Although many commenters had reservations about the inclusion of 
fuel-powered devices in the definition of other power-driven mobility 
devices, the Department does not want the definition to be so narrow 
that it would foreclose the inclusion of new technological developments 
(whether powered by fuel or by some other means). It is for this reason 
that the Department has maintained the phrase ``any mobility device 
designed to operate in areas without defined pedestrian routes'' in the 
final rule's definition of other power-driven mobility devices. The 
Department believes that the limitations provided by ``fundamental 
alteration'' and the ability to impose legitimate safety requirements 
will likely prevent the use of fuel and combustion engine-driven devices 
indoors, as well as in outdoor areas with heavy pedestrian traffic. The 
Department notes, however, that in the future, technological 
developments may result in the production of safe fuel-powered mobility 
devices that do not pose environmental and safety concerns. The final 
rule allows consideration to be given as to whether the use of a fuel-
powered device would create a substantial risk of serious harm to the 
environment or natural or cultural resources, and to whether the use of

[[Page 609]]

such a device conflicts with Federal land management laws or 
regulations; this aspect of the final rule will further limit the 
inclusion of fuel-powered devices where they are not appropriate. 
Consequently, the Department has maintained fuel-powered devices in the 
definition of ``other power-driven mobility device.'' The Department has 
also added language to the definition of ``other power-driven mobility 
device'' to reiterate that the definition does not apply to Federal 
wilderness areas, which are not covered by title II of the ADA; the use 
of wheelchairs in such areas is governed by section 508(c)(2) of the 
ADA, 42 U.S.C. 12207(c)(2).

                        ``Qualified Interpreter''

    In the NPRM, the Department proposed adding language to the 
definition of ``qualified interpreter'' to clarify that the term 
includes, but is not limited to, sign language interpreters, oral 
interpreters, and cued-speech interpreters. As the Department explained, 
not all interpreters are qualified for all situations. For example, a 
qualified interpreter who uses American Sign Language (ASL) is not 
necessarily qualified to interpret orally. In addition, someone with 
only a rudimentary familiarity with sign language or finger spelling is 
not qualified, nor is someone who is fluent in sign language but unable 
to translate spoken communication into ASL or to translate signed 
communication into spoken words.
    As further explained, different situations will require different 
types of interpreters. For example, an oral interpreter who has special 
skill and training to mouth a speaker's words silently for individuals 
who are deaf or hard of hearing may be necessary for an individual who 
was raised orally and taught to read lips or was diagnosed with hearing 
loss later in life and does not know sign language. An individual who is 
deaf or hard of hearing may need an oral interpreter if the speaker's 
voice is unclear, if there is a quick-paced exchange of communication 
(e.g., in a meeting), or when the speaker does not directly face the 
individual who is deaf or hard of hearing. A cued-speech interpreter 
functions in the same manner as an oral interpreter except that he or 
she also uses a hand code or cue to represent each speech sound.
    The Department received many comments regarding the proposed 
modifications to the definition of ``interpreter.'' Many commenters 
requested that the Department include within the definition a 
requirement that interpreters be certified, particularly if they reside 
in a State that licenses or certifies interpreters. Other commenters 
opposed a certification requirement as unduly limiting, noting that an 
interpreter may well be qualified even if that same interpreter is not 
certified. These commenters noted the absence of nationwide standards or 
universally accepted criteria for certification.
    On review of this issue, the Department has decided against imposing 
a certification requirement under the ADA. It is sufficient under the 
ADA that the interpreter be qualified. However, as the Department stated 
in the original preamble, this rule does not invalidate or limit State 
or local laws that impose standards for interpreters that are equal to 
or more stringent than those imposed by this definition. See 28 CFR part 
35, app. A at 566 (2009). For instance, the definition would not 
supersede any requirement of State law for use of a certified 
interpreter in court proceedings.
    With respect to the proposed additions to the rule, most commenters 
supported the expansion of the list of qualified interpreters, and some 
advocated for the inclusion of other types of interpreters on the list 
as well, such as deaf-blind interpreters, certified deaf interpreters, 
and speech-to-speech interpreters. As these commenters explained, deaf-
blind interpreters are interpreters who have specialized skills and 
training to interpret for individuals who are deaf and blind; certified 
deaf interpreters are deaf or hard of hearing interpreters who work with 
hearing sign language interpreters to meet the specific communication 
needs of deaf individuals; and speech-to-speech interpreters have 
special skill and training to interpret for individuals who have speech 
disabilities.
    The list of interpreters in the definition of qualified interpreter 
is illustrative, and the Department does not believe it necessary or 
appropriate to attempt to provide an exhaustive list of qualified 
interpreters. Accordingly, the Department has decided not to expand the 
proposed list. However, if a deaf and blind individual needs interpreter 
services, an interpreter who is qualified to handle the needs of that 
individual may be required. The guiding criterion is that the public 
entity must provide appropriate auxiliary aids and services to ensure 
effective communication with the individual. Commenters also suggested 
various definitions for the term ``cued-speech interpreters,'' and 
different descriptions of the tasks they performed. After reviewing the 
various comments, the Department has determined that it is more accurate 
and appropriate to refer to such individuals as ``cued-language 
transliterators.'' Likewise, the Department has changed the term ``oral 
interpreters'' to ``oral transliterators.'' These two changes have been 
made to distinguish between sign language interpreters, who translate 
one language into another language (e.g., ASL to English and English to 
ASL), from transliterators who interpret within the same language 
between deaf and hearing individuals. A cued-language transliterator is

[[Page 610]]

an interpreter who has special skill and training in the use of the Cued 
Speech system of handshapes and placements, along with non-manual 
information, such as facial expression and body language, to show 
auditory information visually, including speech and environmental 
sounds. An oral transliterator is an interpreter who has special skill 
and training to mouth a speaker's words silently for individuals who are 
deaf or hard of hearing. While the Department included definitions for 
``cued-speech interpreter'' and ``oral interpreter'' in the regulatory 
text proposed in the NPRM, the Department has decided that it is 
unnecessary to include such definitions in the text of the final rule.
    Many commenters questioned the proposed deletion of the requirement 
that a qualified interpreter be able to interpret both receptively and 
expressively, noting the importance of both these skills. Commenters 
stated that this phrase was carefully crafted in the original regulation 
to make certain that interpreters both (1) are capable of understanding 
what a person with a disability is saying and (2) have the skills needed 
to convey information back to that individual. These are two very 
different skill sets and both are equally important to achieve effective 
communication. For example, in a medical setting, a sign language 
interpreter must have the necessary skills to understand the grammar and 
syntax used by an ASL user (receptive skills) and the ability to 
interpret complicated medical information--presented by medical staff in 
English--back to that individual in ASL (expressive skills). The 
Department agrees and has put the phrase ``both receptively and 
expressively'' back in the definition.
    Several advocacy groups suggested that the Department make clear in 
the definition of qualified interpreter that the interpreter may appear 
either on-site or remotely using a video remote interpreting (VRI) 
service. Given that the Department has included in this rule both a 
definition of VRI services and standards that such services must 
satisfy, such an addition to the definition of qualified interpreter is 
appropriate.
    After consideration of all relevant information submitted during the 
public comment period, the Department has modified the definition from 
that initially proposed in the NPRM. The final definition now states 
that ``[q]ualified interpreter means an interpreter who, via a video 
remote interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.''

                          ``Qualified Reader''

    The 1991 title II regulation identifies a qualified reader as an 
auxiliary aid, but did not define the term. See 28 CFR 35.104(2). Based 
upon the Department's investigation of complaints alleging that some 
entities have provided ineffective readers, the Department proposed in 
the NPRM to define ``qualified reader'' similarly to ``qualified 
interpreter'' to ensure that entities select qualified individuals to 
read an examination or other written information in an effective, 
accurate, and impartial manner. This proposal was suggested in order to 
make clear to public entities that a failure to provide a qualified 
reader to a person with a disability may constitute a violation of the 
requirement to provide appropriate auxiliary aids and services.
    The Department received comments supporting inclusion in the 
regulation of a definition of a ``qualified reader.'' Some commenters 
suggested the Department add to the definition a requirement prohibiting 
the use of a reader whose accent, diction, or pronunciation makes full 
comprehension of material being read difficult. Another commenter 
requested that the Department include a requirement that the reader 
``will follow the directions of the person for whom he or she is 
reading.'' Commenters also requested that the Department define 
``accurately'' and ``effectively'' as used in this definition.
    While the Department believes that its proposed regulatory 
definition adequately addresses these concerns, the Department 
emphasizes that a reader, in order to be ``qualified,'' must be skilled 
in reading the language and subject matter and must be able to be easily 
understood by the individual with the disability. For example, if a 
reader is reading aloud the questions for a college microbiology 
examination, that reader, in order to be qualified, must know the proper 
pronunciation of scientific terminology used in the text, and must be 
sufficiently articulate to be easily understood by the individual with a 
disability for whom he or she is reading. In addition, the terms 
``effectively'' and ``accurately'' have been successfully used and 
understood in the Department's existing definition of ``qualified 
interpreter'' since 1991 without specific regulatory definitions. 
Instead, the Department has relied upon the common use and understanding 
of those terms from standard English dictionaries. Thus, the definition 
of ``qualified reader'' has not been changed from that contained in the 
NPRM. The final rule defines ``qualified reader'' to mean ``a person who 
is able to read effectively, accurately, and impartially using any 
necessary specialized vocabulary.''

[[Page 611]]

                           ``Service Animal''

    Although there is no specific language in the 1991 title II 
regulation concerning service animals, title II entities have the same 
legal obligations as title III entities to make reasonable modifications 
in policies, practices, or procedures to allow service animals when 
necessary in order to avoid discrimination on the basis of disability, 
unless the entity can demonstrate that making the modifications would 
fundamentally alter the nature of the service, program, or activity. See 
28 CFR 35.130(b)(7). The 1991 title III regulation, 28 CFR 36.104, 
defines a ``service animal'' as ``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.'' Section 
36.302(c)(1) of the 1991 title III regulation requires that 
``[g]enerally, a public accommodation shall modify policies, practices, 
or procedures to permit the use of a service animal by an individual 
with a disability.'' Section 36.302(c)(2) of the 1991 title III 
regulation states that ``a public accommodation [is not required] to 
supervise or care for a service animal.''
    The Department has issued guidance and provided technical assistance 
and publications concerning service animals since the 1991 regulations 
became effective. In the NPRM, the Department proposed to modify the 
definition of service animal, added the definition to title II, and 
asked for public input on several issues related to the service animal 
provisions of the title II regulation: whether the Department should 
clarify the phrase ``providing minimal protection'' in the definition or 
remove it; whether there are any circumstances where a service animal 
``providing minimal protection'' would be appropriate or expected; 
whether certain species should be eliminated from the definition of 
``service animal,'' and, if so, which types of animals should be 
excluded; whether ``common domestic animal'' should be part of the 
definition; and whether a size or weight limitation should be imposed 
for common domestic animals even if the animal satisfies the ``common 
domestic animal'' part of the NPRM definition.
    The Department received extensive comments on these issues, as well 
as requests to clarify the obligations of State and local government 
entities to accommodate individuals with disabilities who use service 
animals, and has modified the final rule in response. In the interests 
of avoiding unnecessary repetition, the Department has elected to 
discuss the issues raised in the NPRM questions about service animals 
and the corresponding public comments in the following discussion of the 
definition of ``service animal.''
    The Department's final rule defines ``service animal'' as ``any dog 
that is individually trained to do work or perform tasks for the benefit 
of an individual with a disability, including a physical, sensory, 
psychiatric, intellectual, or other mental disability. Other species of 
animals, whether wild or domestic, trained or untrained, are not service 
animals for the purposes of this definition. The work or tasks performed 
by a service animal must be directly related to the individual's 
disability. Examples of work or tasks include, but are not limited to, 
assisting individuals who are blind or have low vision with navigation 
and other tasks, alerting individuals who are deaf or hard of hearing to 
the presence of people or sounds, providing non-violent protection or 
rescue work, pulling a wheelchair, assisting an individual during a 
seizure, alerting individuals to the presence of allergens, retrieving 
items such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship do 
not constitute work or tasks for the purposes of this definition.''
    This definition has been designed to clarify a key provision of the 
ADA. Many covered entities indicated that they are confused regarding 
their obligations under the ADA with regard to individuals with 
disabilities who use service animals. Individuals with disabilities who 
use trained guide or service dogs are concerned that if untrained or 
unusual animals are termed ``service animals,'' their own right to use 
guide or service dogs may become unnecessarily restricted or questioned. 
Some individuals who are not individuals with disabilities have claimed, 
whether fraudulently or sincerely (albeit mistakenly), that their 
animals are service animals covered by the ADA, in order to gain access 
to courthouses, city or county administrative offices, and other title 
II facilities. The increasing use of wild, exotic, or unusual species, 
many of which are untrained, as service animals has also added to the 
confusion.
    Finally, individuals with disabilities who have the legal right 
under the Fair Housing Act (FHAct) to use certain animals in their homes 
as a reasonable accommodation to their disabilities have assumed that 
their animals also qualify under the ADA. This is not necessarily the 
case, as discussed below.
    The Department recognizes the diverse needs and preferences of 
individuals with disabilities protected under the ADA, and does

[[Page 612]]

not wish to unnecessarily impede individual choice. Service animals play 
an integral role in the lives of many individuals with disabilities and, 
with the clarification provided by the final rule, individuals with 
disabilities will continue to be able to use their service animals as 
they go about their daily activities and civic interactions. The 
clarification will also help to ensure that the fraudulent or mistaken 
use of other animals not qualified as service animals under the ADA will 
be deterred. A more detailed analysis of the elements of the definition 
and the comments responsive to the service animal provisions of the NPRM 
follows.
    Providing minimal protection. As previously noted, the 1991 title II 
regulation does not contain specific language concerning service 
animals. The 1991 title III regulation included language stating that 
``minimal protection'' was a task that could be performed by an 
individually trained service animal for the benefit of an individual 
with a disability. In the Department's ``ADA Business Brief on Service 
Animals'' (2002), the Department interpreted the ``minimal protection'' 
language within the context of a seizure (i.e., alerting and protecting 
a person who is having a seizure). The Department received many comments 
in response to the question of whether the ``minimal protection'' 
language should be clarified. Many commenters urged the removal of the 
``minimal protection'' language from the service animal definition for 
two reasons: (1) The phrase can be interpreted to allow any dog that is 
trained to be aggressive to qualify as a service animal simply by 
pairing the animal with a person with a disability; and (2) the phrase 
can be interpreted to allow any untrained pet dog to qualify as a 
service animal, since many consider the mere presence of a dog to be a 
crime deterrent, and thus sufficient to meet the minimal protection 
standard. These commenters argued, and the Department agrees, that these 
interpretations were not contemplated under the original title III 
regulation, and, for the purposes of the final title II regulations, the 
meaning of ``minimal protection'' must be made clear.
    While many commenters stated that they believe that the ``minimal 
protection'' language should be eliminated, other commenters recommended 
that the language be clarified, but retained. Commenters favoring 
clarification of the term suggested that the Department explicitly 
exclude the function of attack or exclude those animals that are trained 
solely to be aggressive or protective. Other commenters identified non-
violent behavioral tasks that could be construed as minimally 
protective, such as interrupting self-mutilation, providing safety 
checks and room searches, reminding the individual to take medications, 
and protecting the individual from injury resulting from seizures or 
unconsciousness.
    Several commenters noted that the existing direct threat defense, 
which allows the exclusion of a service animal if the animal exhibits 
unwarranted or unprovoked violent behavior or poses a direct threat, 
prevents the use of ``attack dogs'' as service animals. One commenter 
noted that the use of a service animal trained to provide ``minimal 
protection'' may impede access to care in an emergency, for example, 
where the first responder, usually a title II entity, is unable or 
reluctant to approach a person with a disability because the 
individual's service animal is in a protective posture suggestive of 
aggression.
    Many organizations and individuals stated that in the general dog 
training community, ``protection'' is code for attack or aggression 
training and should be removed from the definition. Commenters stated 
that there appears to be a broadly held misconception that aggression-
trained animals are appropriate service animals for persons with post 
traumatic stress disorder (PTSD). While many individuals with PTSD may 
benefit by using a service animal, the work or tasks performed 
appropriately by such an animal would not involve unprovoked aggression 
but could include actively cuing the individual by nudging or pawing the 
individual to alert to the onset of an episode and removing the 
individual from the anxiety-provoking environment.
    The Department recognizes that despite its best efforts to provide 
clarification, the ``minimal protection'' language appears to have been 
misinterpreted. While the Department maintains that protection from 
danger is one of the key functions that service animals perform for the 
benefit of persons with disabilities, the Department recognizes that an 
animal individually trained to provide aggressive protection, such as an 
attack dog, is not appropriately considered a service animal. Therefore, 
the Department has decided to modify the ``minimal protection'' language 
to read ``non-violent protection,'' thereby excluding so-called ``attack 
dogs'' or dogs with traditional ``protection training'' as service 
animals. The Department believes that this modification to the service 
animal definition will eliminate confusion, without restricting 
unnecessarily the type of work or tasks that service animals may 
perform. The Department's modification also clarifies that the crime-
deterrent effect of a dog's presence, by itself, does not qualify as 
work or tasks for purposes of the service animal definition.
    Alerting to intruders. The phrase ``alerting to intruders'' is 
related to the issues of minimal protection and the work or tasks an 
animal may perform to meet the definition of a service animal. In the 
original 1991 regulatory text, this phrase was intended to identify 
service animals that alert individuals

[[Page 613]]

who are deaf or hard of hearing to the presence of others. This language 
has been misinterpreted by some to apply to dogs that are trained 
specifically to provide aggressive protection, resulting in the 
assertion that such training qualifies a dog as a service animal under 
the ADA. The Department reiterates that title II entities are not 
required to admit any animal whose use poses a direct threat under 
Sec. 35.139. In addition, the Department has decided to remove the word 
``intruders'' from the service animal definition and replace it with the 
phrase ``the presence of people or sounds.'' The Department believes 
this clarifies that so-called ``attack training'' or other aggressive 
response types of training that cause a dog to provide an aggressive 
response do not qualify a dog as a service animal under the ADA.
    Conversely, if an individual uses a breed of dog that is perceived 
to be aggressive because of breed reputation, stereotype, or the history 
or experience the observer may have with other dogs, but the dog is 
under the control of the individual with a disability and does not 
exhibit aggressive behavior, the title II entity cannot exclude the 
individual or the animal from a State or local government program, 
service, or facility. The animal can only be removed if it engages in 
the behaviors mentioned in Sec. 35.136(b) (as revised in the final rule) 
or if the presence of the animal constitutes a fundamental alteration to 
the nature of the service, program, or activity of the title II entity.
    Doing ``work'' or ``performing tasks.'' The NPRM proposed that the 
Department maintain the requirement, first articulated in the 1991 title 
III regulation, that in order to qualify as a service animal, the animal 
must ``perform tasks'' or ``do work'' for the individual with a 
disability. The phrases ``perform tasks'' and ``do work'' describe what 
an animal must do for the benefit of an individual with a disability in 
order to qualify as a service animal.
    The Department received a number of comments in response to the NPRM 
proposal urging the removal of the term ``do work'' from the definition 
of a service animal. These commenters argued that the Department should 
emphasize the performance of tasks instead. The Department disagrees. 
Although the common definition of work includes the performance of 
tasks, the definition of work is somewhat broader, encompassing 
activities that do not appear to involve physical action.
    One service dog user stated that in some cases, ``critical forms of 
assistance can't be construed as physical tasks,'' noting that the 
manifestations of ``brain-based disabilities,'' such as psychiatric 
disorders and autism, are as varied as their physical counterparts. The 
Department agrees with this statement but cautions that unless the 
animal is individually trained to do something that qualifies as work or 
a task, the animal is a pet or support animal and does not qualify for 
coverage as a service animal. A pet or support animal may be able to 
discern that the individual is in distress, but it is what the animal is 
trained to do in response to this awareness that distinguishes a service 
animal from an observant pet or support animal.
    The NPRM contained an example of ``doing work'' that stated ``a 
psychiatric service dog can help some individuals with dissociative 
identity disorder to remain grounded in time or place.'' 73 FR 34466, 
34504 (June 17, 2008). Several commenters objected to the use of this 
example, arguing that grounding was not a ``task'' and therefore, the 
example inherently contradicted the basic premise that a service animal 
must perform a task in order to mitigate a disability. Other commenters 
stated that ``grounding'' should not be included as an example of 
``work'' because it could lead to some individuals claiming that they 
should be able to use emotional support animals in public because the 
dog makes them feel calm or safe. By contrast, one commenter with 
experience in training service animals explained that grounding is a 
trained task based upon very specific behavioral indicators that can be 
observed and measured. These tasks are based upon input from mental 
health practitioners, dog trainers, and individuals with a history of 
working with psychiatric service dogs.
    It is the Department's view that an animal that is trained to 
``ground'' a person with a psychiatric disorder does work or performs a 
task that would qualify it as a service animal as compared to an 
untrained emotional support animal whose presence affects a person's 
disability. It is the fact that the animal is trained to respond to the 
individual's needs that distinguishes an animal as a service animal. The 
process must have two steps: Recognition and response. For example, if a 
service animal senses that a person is about to have a psychiatric 
episode and it is trained to respond for example, by nudging, barking, 
or removing the individual to a safe location until the episode 
subsides, then the animal has indeed performed a task or done work on 
behalf of the individual with the disability, as opposed to merely 
sensing an event.
    One commenter suggested defining the term ``task,'' presumably to 
improve the understanding of the types of services performed by an 
animal that would be sufficient to qualify the animal for coverage. The 
Department believes that the common definition of the word ``task'' is 
sufficiently clear and that it is not necessary to add to the 
definitions section. However, the Department has added examples of other 
kinds of work or tasks to help illustrate and provide

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clarity to the definition. After careful evaluation of this issue, the 
Department has concluded that the phrases ``do work'' and ``perform 
tasks'' have been effective during the past two decades to illustrate 
the varied services provided by service animals for the benefit of 
individuals with all types of disabilities. Thus, the Department 
declines to depart from its longstanding approach at this time.
    Species limitations. When the Department originally issued its title 
III regulation in the early 1990s, the Department did not define the 
parameters of acceptable animal species. At that time, few anticipated 
the variety of animals that would be promoted as service animals in the 
years to come, which ranged from pigs and miniature horses to snakes, 
iguanas, and parrots. The Department has followed this particular issue 
closely, keeping current with the many unusual species of animals 
represented to be service animals. Thus, the Department has decided to 
refine further this aspect of the service animal definition in the final 
rule.
    The Department received many comments from individuals and 
organizations recommending species limitations. Several of these 
commenters asserted that limiting the number of allowable species would 
help stop erosion of the public's trust, which has resulted in reduced 
access for many individuals with disabilities who use trained service 
animals that adhere to high behavioral standards. Several commenters 
suggested that other species would be acceptable if those animals could 
meet nationally recognized behavioral standards for trained service 
dogs. Other commenters asserted that certain species of animals (e.g., 
reptiles) cannot be trained to do work or perform tasks, so these 
animals would not be covered.
    In the NPRM, the Department used the term ``common domestic animal'' 
in the service animal definition and excluded reptiles, rabbits, farm 
animals (including horses, miniature horses, ponies, pigs, and goats), 
ferrets, amphibians, and rodents from the service animal definition. 73 
FR 34466, 34478 (June 17, 2008). However, the term ``common domestic 
animal'' is difficult to define with precision due to the increase in 
the number of domesticated species. Also, several State and local laws 
define a ``domestic'' animal as an animal that is not wild. The 
Department agrees with commenters' views that limiting the number and 
types of species recognized as service animals will provide greater 
predictability for State and local government entities as well as added 
assurance of access for individuals with disabilities who use dogs as 
service animals. As a consequence, the Department has decided to limit 
this rule's coverage of service animals to dogs, which are the most 
common service animals used by individuals with disabilities.
    Wild animals, monkeys, and other nonhuman primates. Numerous 
business entities endorsed a narrow definition of acceptable service 
animal species, and asserted that there are certain animals (e.g., 
reptiles) that cannot be trained to do work or perform tasks. Other 
commenters suggested that the Department should identify excluded 
animals, such as birds and llamas, in the final rule. Although one 
commenter noted that wild animals bred in captivity should be permitted 
to be service animals, the Department has decided to make clear that all 
wild animals, whether born or bred in captivity or in the wild, are 
eliminated from coverage as service animals. The Department believes 
that this approach reduces risks to health or safety attendant with wild 
animals. Some animals, such as certain nonhuman primates including 
certain monkeys, pose a direct threat; their behavior can be 
unpredictably aggressive and violent without notice or provocation. The 
American Veterinary Medical Association (AVMA) issued a position 
statement advising against the use of monkeys as service animals, 
stating that ``[t]he AVMA does not support the use of nonhuman primates 
as assistance animals because of animal welfare concerns, and the 
potential for serious injury and zoonotic [animal to human disease 
transmission] risks.'' AVMA Position Statement, Nonhuman Primates as 
Assistance Animals, (2005) available at http://www.avma.org/issues/
policy/nonhuman_primates.asp (last visited June 24, 2010).
    An organization that trains capuchin monkeys to provide in-home 
services to individuals with paraplegia and quadriplegia was in 
substantial agreement with the AVMA's views but requested a limited 
recognition in the service animal definition for the capuchin monkeys it 
trains to provide assistance for persons with disabilities. The 
organization commented that its trained capuchin monkeys undergo 
scrupulous veterinary examinations to ensure that the animals pose no 
health risks, and are used by individuals with disabilities exclusively 
in their homes. The organization acknowledged that the capuchin monkeys 
it trains are not necessarily suitable for use in State or local 
government facilities. The organization noted that several State and 
local government entities have local zoning, licensing, health, and 
safety laws that prohibit nonhuman primates, and that these prohibitions 
would prevent individuals with disabilities from using these animals 
even in their homes.
    The organization argued that including capuchin monkeys under the 
service animal umbrella would make it easier for individuals with 
disabilities to obtain reasonable modifications of State and local 
licensing, health, and safety laws that would permit the use of these 
monkeys. The organization argued that this limited modification to the

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service animal definition was warranted in view of the services these 
monkeys perform, which enable many individuals with paraplegia and 
quadriplegia to live and function with increased independence.
    The Department has carefully considered the potential risks 
associated with the use of nonhuman primates as service animals in State 
and local government facilities, as well as the information provided to 
the Department about the significant benefits that trained capuchin 
monkeys provide to certain individuals with disabilities in residential 
settings. The Department has determined, however, that nonhuman 
primates, including capuchin monkeys, will not be recognized as service 
animals for purposes of this rule because of their potential for disease 
transmission and unpredictable aggressive behavior. The Department 
believes that these characteristics make nonhuman primates unsuitable 
for use as service animals in the context of the wide variety of public 
settings subject to this rule. As the organization advocating the 
inclusion of capuchin monkeys acknowledges, capuchin monkeys are not 
suitable for use in public facilities.
    The Department emphasizes that it has decided only that capuchin 
monkeys will not be included in the definition of service animals for 
purposes of its regulation implementing the ADA. This decision does not 
have any effect on the extent to which public entities are required to 
allow the use of such monkeys under other Federal statutes. For example, 
under the FHAct, an individual with a disability may have the right to 
have an animal other than a dog in his or her home if the animal 
qualifies as a ``reasonable accommodation'' that is necessary to afford 
the individual equal opportunity to use and enjoy a dwelling, assuming 
that the use of the animal does not pose a direct threat. In some cases, 
the right of an individual to have an animal under the FHAct may 
conflict with State or local laws that prohibit all individuals, with or 
without disabilities, from owning a particular species. However, in this 
circumstance, an individual who wishes to request a reasonable 
modification of the State or local law must do so under the FHAct, not 
the ADA.
    Having considered all of the comments about which species should 
qualify as service animals under the ADA, the Department has determined 
the most reasonable approach is to limit acceptable species to dogs.
    Size or weight limitations. The vast majority of commenters did not 
support a size or weight limitation. Commenters were typically opposed 
to a size or weight limit because many tasks performed by service 
animals require large, strong dogs. For instance, service animals may 
perform tasks such as providing balance and support or pulling a 
wheelchair. Small animals may not be suitable for large adults. The 
weight of the service animal user is often correlated with the size and 
weight of the service animal. Others were concerned that adding a size 
and weight limit would further complicate the difficult process of 
finding an appropriate service animal. One commenter noted that there is 
no need for a limit because ``if, as a practical matter, the size or 
weight of an individual's service animal creates a direct threat or 
fundamental alteration to a particular public entity or accommodation, 
there are provisions that allow for the animal's exclusion or removal.'' 
Some common concerns among commenters in support of a size and weight 
limit were that a larger animal may be less able to fit in various areas 
with its handler, such as toilet rooms and public seating areas, and 
that larger animals are more difficult to control.
    Balancing concerns expressed in favor of and against size and weight 
limitations, the Department has determined that such limitations would 
not be appropriate. Many individuals of larger stature require larger 
dogs. The Department believes it would be inappropriate to deprive these 
individuals of the option of using a service dog of the size required to 
provide the physical support and stability these individuals may need to 
function independently. Since large dogs have always served as service 
animals, continuing their use should not constitute fundamental 
alterations or impose undue burdens on title II entities.
    Breed limitations. A few commenters suggested that certain breeds of 
dogs should not be allowed to be used as service animals. Some suggested 
that the Department should defer to local laws restricting the breeds of 
dogs that individuals who reside in a community may own. Other 
commenters opposed breed restrictions, stating that the breed of a dog 
does not determine its propensity for aggression and that aggressive and 
non-aggressive dogs exist in all breeds.
    The Department does not believe that it is either appropriate or 
consistent with the ADA to defer to local laws that prohibit certain 
breeds of dogs based on local concerns that these breeds may have a 
history of unprovoked aggression or attacks. Such deference would have 
the effect of limiting the rights of persons with disabilities under the 
ADA who use certain service animals based on where they live rather than 
on whether the use of a particular animal poses a direct threat to the 
health and safety of others. Breed restrictions differ significantly 
from jurisdiction to jurisdiction. Some jurisdictions have no breed 
restrictions. Others have restrictions that, while well-meaning, have 
the unintended effect of screening out the very breeds of dogs that have 
successfully served as service animals for decades without a history of 
the type of unprovoked aggression or attacks that would pose a direct

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threat, e.g., German Shepherds. Other jurisdictions prohibit animals 
over a certain weight, thereby restricting breeds without invoking an 
express breed ban. In addition, deference to breed restrictions 
contained in local laws would have the unacceptable consequence of 
restricting travel by an individual with a disability who uses a breed 
that is acceptable and poses no safety hazards in the individual's home 
jurisdiction but is nonetheless banned by other jurisdictions. State and 
local government entities have the ability to determine, on a case-by-
case basis, whether a particular service animal can be excluded based on 
that particular animal's actual behavior or history--not based on fears 
or generalizations about how an animal or breed might behave. This 
ability to exclude an animal whose behavior or history evidences a 
direct threat is sufficient to protect health and safety.
    Recognition of psychiatric service animals but not ``emotional 
support animals.'' The definition of ``service animal'' in the NPRM 
stated the Department's longstanding position that emotional support 
animals are not included in the definition of ``service animal.'' The 
proposed text in Sec. 35.104 provided that ``[a]nimals whose sole 
function is to provide emotional support, comfort, therapy, 
companionship, therapeutic benefits or to promote emotional well-being 
are not service animals.'' 73 FR 34466, 34504 (June 17, 2008).
    Many advocacy organizations expressed concern and disagreed with the 
exclusion of comfort and emotional support animals. Others have been 
more specific, stating that individuals with disabilities may need their 
emotional support animals in order to have equal access. Some commenters 
noted that individuals with disabilities use animals that have not been 
trained to perform tasks directly related to their disability. These 
animals do not qualify as service animals under the ADA. These are 
emotional support or comfort animals.
    Commenters asserted that excluding categories such as ``comfort'' 
and ``emotional support'' animals recognized by laws such as the FHAct 
or the Air Carrier Access Act (ACAA) is confusing and burdensome. Other 
commenters noted that emotional support and comfort animals perform an 
important function, asserting that animal companionship helps 
individuals who experience depression resulting from multiple sclerosis.
    Some commenters explained the benefits emotional support animals 
provide, including emotional support, comfort, therapy, companionship, 
therapeutic benefits, and the promotion of emotional well-being. They 
contended that without the presence of an emotional support animal in 
their lives they would be disadvantaged and unable to participate in 
society. These commenters were concerned that excluding this category of 
animals will lead to discrimination against, and the excessive 
questioning of, individuals with non-visible or non-apparent 
disabilities. Other commenters expressing opposition to the exclusion of 
individually trained ``comfort'' or ``emotional support'' animals 
asserted that the ability to soothe or de-escalate and control emotion 
is ``work'' that benefits the individual with the disability.
    Many commenters requested that the Department carve out an exception 
that permits current or former members of the military to use emotional 
support animals. They asserted that a significant number of service 
members returning from active combat duty have adjustment difficulties 
due to combat, sexual assault, or other traumatic experiences while on 
active duty. Commenters noted that some current or former members of the 
military service have been prescribed animals for conditions such as 
PTSD. One commenter stated that service women who were sexually 
assaulted while in the military use emotional support animals to help 
them feel safe enough to step outside their homes. The Department 
recognizes that many current and former members of the military have 
disabilities as a result of service-related injuries that may require 
emotional support and that such individuals can benefit from the use of 
an emotional support animal and could use such animal in their home 
under the FHAct. However, having carefully weighed the issues, the 
Department believes that its final rule appropriately addresses the 
balance of issues and concerns of both the individual with a disability 
and the public entity. The Department also notes that nothing in this 
part prohibits a public entity from allowing current or former military 
members or anyone else with disabilities to utilize emotional support 
animals if it wants to do so.
    Commenters asserted the view that if an animal's ``mere presence'' 
legitimately provides such benefits to an individual with a disability 
and if those benefits are necessary to provide equal opportunity given 
the facts of the particular disability, then such an animal should 
qualify as a ``service animal.'' Commenters noted that the focus should 
be on the nature of a person's disability, the difficulties the 
disability may impose and whether the requested accommodation would 
legitimately address those difficulties, not on evaluating the animal 
involved. The Department understands this approach has benefitted many 
individuals under the FHAct and analogous State law provisions, where 
the presence of animals poses fewer health and safety issues, and where 
emotional support animals provide assistance that is unique to 
residential settings. The Department believes, however, that the 
presence of such animals is not required in the context of title II 
entities such as courthouses, State and local government administrative 
buildings, and similar title II facilities.

[[Page 617]]

    Under the Department's previous regulatory framework, some 
individuals and entities assumed that the requirement that service 
animals must be individually trained to do work or perform tasks 
excluded all individuals with mental disabilities from having service 
animals. Others assumed that any person with a psychiatric condition 
whose pet provided comfort to them was covered by the 1991 title II 
regulation. The Department reiterates that psychiatric service animals 
that are trained to do work or perform a task for individuals whose 
disability is covered by the ADA are protected by the Department's 
present regulatory approach. Psychiatric service animals can be trained 
to perform a variety of tasks that assist individuals with disabilities 
to detect the onset of psychiatric episodes and ameliorate their 
effects. Tasks performed by psychiatric service animals may include 
reminding individuals to take medicine, providing safety checks or room 
searches for individuals with PTSD, interrupting self-mutilation, and 
removing disoriented individuals from dangerous situations.
    The difference between an emotional support animal and a psychiatric 
service animal is the work or tasks that the animal performs. 
Traditionally, service dogs worked as guides for individuals who were 
blind or had low vision. Since the original regulation was promulgated, 
service animals have been trained to assist individuals with many 
different types of disabilities.
    In the final rule, the Department has retained its position on the 
exclusion of emotional support animals from the definition of ``service 
animal.'' The definition states that ``[t]he provision of emotional 
support, well-being, comfort, or companionship, * * * do[es] not 
constitute work or tasks for the purposes of this definition.'' The 
Department notes, however, that the exclusion of emotional support 
animals from coverage in the final rule does not mean that individuals 
with psychiatric or mental disabilities cannot use service animals that 
meet the regulatory definition. The final rule defines service animal as 
follows: ``[s]ervice animal means any dog that is individually trained 
to do work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, or 
other mental disability.'' This language simply clarifies the 
Department's longstanding position.
    The Department's position is based on the fact that the title II and 
title III regulations govern a wider range of public settings than the 
housing and transportation settings for which the Department of Housing 
and Urban Development (HUD) and DOT regulations allow emotional support 
animals or comfort animals. The Department recognizes that there are 
situations not governed by the title II and title III regulations, 
particularly in the context of residential settings and transportation, 
where there may be a legal obligation to permit the use of animals that 
do not qualify as service animals under the ADA, but whose presence 
nonetheless provides necessary emotional support to persons with 
disabilities. Accordingly, other Federal agency regulations, case law, 
and possibly State or local laws governing those situations may provide 
appropriately for increased access for animals other than service 
animals as defined under the ADA. Public officials, housing providers, 
and others who make decisions relating to animals in residential and 
transportation settings should consult the Federal, State, and local 
laws that apply in those areas (e.g., the FHAct regulations of HUD and 
the ACAA) and not rely on the ADA as a basis for reducing those 
obligations.
    Retain term ``service animal.'' Some commenters asserted that the 
term ``assistance animal'' is a term of art and should replace the term 
``service animal.'' However, the majority of commenters preferred the 
term ``service animal'' because it is more specific. The Department has 
decided to retain the term ``service animal'' in the final rule. While 
some agencies, like HUD, use the term ``assistance animal,'' ``assistive 
animal,'' or ``support animal,'' these terms are used to denote a 
broader category of animals than is covered by the ADA. The Department 
has decided that changing the term used in the final rule would create 
confusion, particularly in view of the broader parameters for coverage 
under the FHAct, cf., preamble to HUD's Final Rule for Pet Ownership for 
the Elderly and Persons with Disabilities, 73 FR 63834-38 (Oct. 27, 
2008); HUD Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy Requirements 
of Subsidized Multifamily Housing Programs (June 2007), available at 
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last 
visited June 24, 2010). Moreover, as discussed above, the Department's 
definition of ``service animal'' in the title II final rule does not 
affect the rights of individuals with disabilities who use assistance 
animals in their homes under the FHAct or who use ``emotional support 
animals'' that are covered under the ACAA and its implementing 
regulations. See 14 CFR 382.7 et seq.; see also Department of 
Transportation, Guidance Concerning Service Animals in Air 
Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing 
accommodation of service animals and emotional support animals on 
aircraft).

              ``Video Remote Interpreting'' (VRI) Services

    In the NPRM, the Department proposed adding Video Interpreting 
Services (VIS) to the list of auxiliary aids available to provide 
effective communication described in Sec. 35.104. In the preamble to the 
NPRM, VIS was defined as ``a technology composed of a video

[[Page 618]]

phone, video monitors, cameras, a high-speed Internet connection, and an 
interpreter. The video phone provides video transmission to a video 
monitor that permits the individual who is deaf or hard of hearing to 
view and sign to a video interpreter (i.e., a live interpreter in 
another location), who can see and sign to the individual through a 
camera located on or near the monitor, while others can communicate by 
speaking. The video monitor can display a split screen of two live 
images, with the interpreter in one image and the individual who is deaf 
or hard of hearing in the other image.'' 73 FR 34446, 34479 (June 17, 
2008). Comments from advocacy organizations and individuals unanimously 
requested that the Department use the term ``video remote interpreting 
(VRI),'' instead of VIS, for consistency with Federal Communications 
Commission (FCC) regulations. See FCC Public Notice, DA-0502417 (Sept. 
7, 2005), and with common usage by consumers. The Department has made 
that change throughout the regulation to avoid confusion and to make the 
regulation more consistent with existing regulations.
    Many commenters also requested that the Department distinguish 
between VRI and ``video relay service (VRS).'' Both VRI and VRS use a 
remote interpreter who is able to see and communicate with a deaf person 
and a hearing person, and all three individuals may be connected by a 
video link. VRI is a fee-based interpreting service conveyed via 
videoconferencing where at least one person, typically the interpreter, 
is at a separate location. VRI can be provided as an on-demand service 
or by appointment. VRI normally involves a contract in advance for the 
interpreter who is usually paid by the covered entity.
    VRS is a telephone service that enables persons with disabilities to 
use the telephone to communicate using video connections and is a more 
advanced form of relay service than the traditional voice to text 
telephones (TTY) relay systems that were recognized in the 1991 title II 
regulation. More specifically, VRS is a video relay service using 
interpreters connected to callers by video hook-up and is designed to 
provide telephone services to persons who are deaf and use American Sign 
Language that are functionally equivalent to those provided to users who 
are hearing. VRS is funded through the Interstate Telecommunications 
Relay Services Fund and overseen by the FCC. See 47 CFR 64.601(a)(26). 
There are no fees for callers to use the VRS interpreters and the video 
connection, although there may be relatively inexpensive initial costs 
to the title II entities to purchase the videophone or camera for on-
line video connection, or other equipment to connect to the VRS service. 
The FCC has made clear that VRS functions as a telephone service and is 
not intended to be used for interpreting services where both parties are 
in the same room; the latter is reserved for VRI. The Department agrees 
that VRS cannot be used as a substitute for in-person interpreters or 
for VRI in situations that would not, absent one party's disability, 
entail use of the telephone.
    Many commenters strongly recommended limiting the use of VRI to 
circumstances where it will provide effective communication. Commenters 
from advocacy groups and persons with disabilities expressed concern 
that VRI may not always be appropriate to provide effective 
communication, especially in hospitals and emergency rooms. Examples 
were provided of patients who are unable to see the video monitor 
because they are semi-conscious or unable to focus on the video screen; 
other examples were given of cases where the video monitor is out of the 
sightline of the patient or the image is out of focus; still other 
examples were given of patients who could not see the image because the 
signal was interrupted, causing unnatural pauses in the communication, 
or the image was grainy or otherwise unclear. Many commenters requested 
more explicit guidelines on the use of VRI, and some recommended 
requirements for equipment maintenance, high-speed, wide-bandwidth video 
links using dedicated lines or wireless systems, and training of staff 
using VRI, especially in hospital and health care situations. Several 
major organizations requested a requirement to include the interpreter's 
face, head, arms, hands, and eyes in all transmissions. Finally, one 
State agency asked for additional guidance, outreach, and mandated 
advertising about the availability of VRI in title II situations so that 
local government entities would budget for and facilitate the use of VRI 
in libraries, schools, and other places.
    After consideration of the comments and the Department's own 
research and experience, the Department has determined that VRI can be 
an effective method of providing interpreting services in certain 
circumstances, but not in others. For example, VRI should be effective 
in many situations involving routine medical care, as well as in the 
emergency room where urgent care is important, but no in-person 
interpreter is available; however, VRI may not be effective in 
situations involving surgery or other medical procedures where the 
patient is limited in his or her ability to see the video screen. 
Similarly, VRI may not be effective in situations where there are 
multiple people in a room and the information exchanged is highly 
complex and fast-paced. The Department recognizes that in these and 
other situations, such as where communication is needed for persons who 
are deaf-blind, it may be necessary to summon an in-person interpreter 
to assist certain individuals. To ensure that VRI is effective in 
situations where

[[Page 619]]

it is appropriate, the Department has established performance standards 
in Sec. 35.160(d).

                     Subpart B--General Requirements

                       Section 35.130(h)  Safety.

    Section 36.301(b) of the 1991 title III regulation provides that 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.'' 28 CFR 36.301(b). 
Although the 1991 title II regulation did not include similar language, 
the Department's 1993 ADA Title II Technical Assistance Manual at II-
3.5200 makes clear the Department's view that public entities also have 
the right to impose legitimate safety requirements necessary for the 
safe operation of services, programs, or activities. To ensure 
consistency between the title II and title III regulations, the 
Department has added a new Sec. 35.130(h) in the final rule 
incorporating this longstanding position relating to imposition of 
legitimate safety requirements.

           Section 35.133  Maintenance of accessible features.

    Section 35.133 in the 1991 title II regulation provides that a 
public entity must maintain in operable working condition those features 
of facilities and equipment that are required to be readily accessible 
to and usable by qualified individuals with disabilities. See 28 CFR 
35.133(a). In the NPRM, the Department clarified the application of this 
provision and proposed one change to the section to address the discrete 
situation in which the scoping requirements provided in the 2010 
Standards reduce the number of required elements below the requirements 
of the 1991 Standards. In that discrete event, a public entity may 
reduce such accessible features in accordance with the requirements in 
the 2010 Standards.
    The Department received only four comments on this proposed 
amendment. None of the commenters opposed the change. In the final rule, 
the Department has revised the section to make it clear that if the 2010 
Standards reduce either the technical requirements or the number of 
required accessible elements below that required by the 1991 Standards, 
then the public entity may reduce the technical requirements or the 
number of accessible elements in a covered facility in accordance with 
the requirements of the 2010 Standards.
    One commenter urged the Department to amend Sec. 35.133(b) to expand 
the language of the section to restocking of shelves as a permissible 
activity for isolated or temporary interruptions in service or access. 
It is the Department's position that a temporary interruption that 
blocks an accessible route, such as restocking of shelves, is already 
permitted by Sec. 35.133(b), which clarifies that ``isolated or 
temporary interruptions in service or access due to maintenance or 
repairs'' are permitted. Therefore, the Department will not make any 
additional changes in the final rule to the language of Sec. 35.133(b) 
other than those discussed in the preceding paragraph.

                    Section 35.136  Service animals.

    The 1991 title II regulation states that ``[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.'' 28 CFR 130(b)(7). Unlike the title III 
regulation, the 1991 title II regulation did not contain a specific 
provision addressing service animals.
    In the NPRM, the Department stated the intention of providing the 
broadest feasible access to individuals with disabilities and their 
service animals, unless a public entity can demonstrate that making the 
modifications to policies excluding animals would fundamentally alter 
the nature of the public entity's service, program, or activity. The 
Department proposed creating a new Sec. 35.136 addressing service 
animals that was intended to retain the scope of the 1991 title III 
regulation at Sec. 36.302(c), while clarifying the Department's 
longstanding policies and interpretations, as outlined in published 
technical assistance, Commonly Asked Questions About Service Animals in 
Places of Business (1996), available at http://www.ada.gov/qasrvc.ftm 
and ADA Guide for Small Businesses (1999), available at http://
www.ada.gov/smbustxt.htm, and to add that a public entity may exclude a 
service animal in certain circumstances where the service animal fails 
to meet certain behavioral standards. The Department received extensive 
comments in response to proposed Sec. 35.136 from individuals, 
disability advocacy groups, organizations involved in training service 
animals, and public entities. Those comments and the Department's 
response are discussed below.
    Exclusion of service animals. In the NPRM, the Department proposed 
incorporating the title III regulatory language of Sec. 36.302(c) into 
new Sec. 35.136(a), which states that ``[g]enerally, a public entity 
shall modify its policies, practices, or procedures to permit the use of 
a service animal by an individual with a disability, unless the public 
entity can demonstrate that the use of a service animal would 
fundamentally alter the public entity's service, program, or activity.'' 
The final rule retains this language with some modifications.
    In addition, in the NPRM, the Department proposed clarifying those 
circumstances

[[Page 620]]

where otherwise eligible service animals may be excluded by public 
entities from their programs or facilities. The Department proposed in 
Sec. 35.136(b)(1) of the NPRM that a public entity may ask an individual 
with a disability to remove a service animal from a title II service, 
program, or activity if: ``[t]he animal is out of control and the 
animal's handler does not take effective action to control it.'' 73 FR 
34466, 34504 (June 17, 2008).
    The Department has long held that a service animal must be under the 
control of the handler at all times. Commenters overwhelmingly were in 
favor of this language, but noted that there are occasions when service 
animals are provoked to disruptive or aggressive behavior by agitators 
or troublemakers, as in the case of a blind individual whose service dog 
is taunted or pinched. While all service animals are trained to ignore 
and overcome these types of incidents, misbehavior in response to 
provocation is not always unreasonable. In circumstances where a service 
animal misbehaves or responds reasonably to a provocation or injury, the 
public entity must give the handler a reasonable opportunity to gain 
control of the animal. Further, if the individual with a disability 
asserts that the animal was provoked or injured, or if the public entity 
otherwise has reason to suspect that provocation or injury has occurred, 
the public entity should seek to determine the facts and, if provocation 
or injury occurred, the public entity should take effective steps to 
prevent further provocation or injury, which may include asking the 
provocateur to leave the public entity. This language is unchanged in 
the final rule.
    The NPRM also proposed language at Sec. 35.136(b)(2) to permit a 
public entity to exclude a service animal if the animal is not 
housebroken (i.e., trained so that, absent illness or accident, the 
animal controls its waste elimination) or the animal's presence or 
behavior fundamentally alters the nature of the service the public 
entity provides (e.g., repeated barking during a live performance). 
Several commenters were supportive of this NPRM language, but cautioned 
against overreaction by the public entity in these instances. One 
commenter noted that animals get sick, too, and that accidents 
occasionally happen. In these circumstances, simple clean up typically 
addresses the incident. Commenters noted that the public entity must be 
careful when it excludes a service animal on the basis of ``fundamental 
alteration,'' asserting for example that a public entity should not 
exclude a service animal for barking in an environment where other types 
of noise, such as loud cheering or a child crying, is tolerated. The 
Department maintains that the appropriateness of an exclusion can be 
assessed by reviewing how a public entity addresses comparable 
situations that do not involve a service animal. The Department has 
retained in Sec. 35.136(b) of the final rule the exception requiring 
animals to be housebroken. The Department has not retained the specific 
NPRM language stating that animals can be excluded if their presence or 
behavior fundamentally alters the nature of the service provided by the 
public entity, because the Department believes that this exception is 
covered by the general reasonable modification requirement contained in 
Sec. 35.130(b)(7).
    The NPRM also proposed at Sec. 35.136(b)(3) that a service animal 
can be excluded where ``[t]he animal poses a direct threat to the health 
or safety of others that cannot be eliminated by reasonable 
modifications.'' 73 FR 34466, 34504 (June 17, 2008). Commenters were 
universally supportive of this provision as it makes express the 
discretion of a public entity to exclude a service animal that poses a 
direct threat. Several commenters cautioned against the overuse of this 
provision and suggested that the Department provide an example of the 
rule's application. The Department has decided not to include regulatory 
language specifically stating that a service animal can be excluded if 
it poses a direct threat. The Department believes that the addition of 
new Sec. 35.139, which incorporates the language of the title III 
provisions at Sec. 36.302 relating to the general defense of direct 
threat, is sufficient to establish the availability of this defense to 
public entities.
    Access to a public entity following the proper exclusion of a 
service animal. The NPRM proposed that in the event a public entity 
properly excludes a service animal, the public entity must give the 
individual with a disability the opportunity to access the programs, 
services, and facilities of the public entity without the service 
animal. Most commenters welcomed this provision as a common sense 
approach. These commenters noted that they do not wish to preclude 
individuals with disabilities from the full and equal enjoyment of the 
State or local government's programs, services, or facilities, simply 
because of an isolated problem with a service animal. The Department has 
elected to retain this provision in Sec. 35.136(a).
    Other requirements. The NPRM also proposed that the regulation 
include the following requirements: that the work or tasks performed by 
the service animal must be directly related to the handler's disability; 
that a service animal must be individually trained to do work or perform 
a task, be housebroken, and be under the control of the handler; and 
that a service animal must have a harness, leash, or other tether. Most 
commenters addressed at least one of these issues in their responses. 
Most agreed that these provisions are important to clarify further the 
1991 service animal regulation. The Department has moved the requirement 
that

[[Page 621]]

the work or tasks performed by the service animal must be related 
directly to the individual's disability to the definition of `service 
animal' in Sec. 35.104. In addition, the Department has modified the 
proposed language in Sec. 35.136(d) relating to the handler's control of 
the animal with a harness, leash, or other tether to state that ``[a] 
service animal shall have a harness, leash, or other tether, unless 
either the handler is unable because of a disability to use a harness, 
leash, or other tether, or the use of a harness, leash, or other tether 
would interfere with the service animal's safe, effective performance of 
work or tasks, in which case the service animal must be otherwise under 
the handler's control (e.g., voice control, signals, or other effective 
means).'' The Department has retained the requirement that the service 
animal must be individually trained (see Appendix A discussion of 
Sec. 35.104, definition of ``service animal''), as well as the 
requirement that the service animal be housebroken.
    Responsibility for supervision and care of a service animal. The 
NPRM proposed language at Sec. 35.136(e) stating that ``[a] public 
entity is not responsible for caring for or supervising a service 
animal.'' 73 FR 34466, 34504 (June 17, 2008). Most commenters did not 
address this particular provision. The Department recognizes that there 
are occasions when a person with a disability is confined to bed in a 
hospital for a period of time. In such an instance, the individual may 
not be able to walk or feed the service animal. In such cases, if the 
individual has a family member, friend, or other person willing to take 
on these responsibilities in the place of the individual with 
disabilities, the individual's obligation to be responsible for the care 
and supervision of the service animal would be satisfied. The language 
of this section is retained, with minor modifications, in Sec. 35.136(e) 
of the final rule.
    Inquiries about service animals. The NPRM proposed language at 
Sec. 35.136(f) setting forth parameters about how a public entity may 
determine whether an animal qualifies as a service animal. The proposed 
section stated that a public entity may ask if the animal is required 
because of a disability and what task or work the animal has been 
trained to do but may not require proof of service animal certification 
or licensing. Such inquiries are limited to eliciting the information 
necessary to make a decision without requiring disclosure of 
confidential disability-related information that a State or local 
government entity does not need. This language is consistent with the 
policy guidance outlined in two Department publications, Commonly Asked 
Questions about Service Animals in Places of Business (1996), available 
at http://www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses, 
(1999), available at http://www.ada.gov/smbustxt.htm.
    Although some commenters contended that the NPRM service animal 
provisions leave unaddressed the issue of how a public entity can 
distinguish between a psychiatric service animal, which is covered under 
the final rule, and a comfort animal, which is not, other commenters 
noted that the Department's published guidance has helped public 
entities to distinguish between service animals and pets on the basis of 
an individual's response to these questions. Accordingly, the Department 
has retained the NPRM language incorporating its guidance concerning the 
permissible questions into the final rule.
    Some commenters suggested that a title II entity be allowed to 
require current documentation, no more than one year old, on letterhead 
from a mental health professional stating the following: (1) That the 
individual seeking to use the animal has a mental health-related 
disability; (2) that having the animal accompany the individual is 
necessary to the individual's mental health or treatment or to assist 
the person otherwise; and (3) that the person providing the assessment 
of the individual is a licensed mental health professional and the 
individual seeking to use the animal is under that individual's 
professional care. These commenters asserted that this will prevent 
abuse and ensure that individuals with legitimate needs for psychiatric 
service animals may use them. The Department believes that this proposal 
would treat persons with psychiatric, intellectual, and other mental 
disabilities less favorably than persons with physical or sensory 
disabilities. The proposal would also require persons with disabilities 
to obtain medical documentation and carry it with them any time they 
seek to engage in ordinary activities of daily life in their 
communities--something individuals without disabilities have not been 
required to do. Accordingly, the Department has concluded that a 
documentation requirement of this kind would be unnecessary, burdensome, 
and contrary to the spirit, intent, and mandates of the ADA.
    Areas of a public entity open to the public, participants in 
services, programs, or activities, or invitees. The NPRM proposed at 
Sec. 35.136(g) that an individual with a disability who uses a service 
animal has the same right of access to areas of a title II entity as 
members of the public, participants in services, programs, or 
activities, or invitees. Commenters indicated that allowing individuals 
with disabilities to go with their service animals into the same areas 
as members of the public, participants in programs, services, or 
activities, or invitees is accepted practice by most State and local 
government entities. The Department has included a slightly modified 
version of this provision in Sec. 35.136(g) of the final rule.

[[Page 622]]

    The Department notes that under the final rule, a healthcare 
facility must also permit a person with a disability to be accompanied 
by a service animal in all areas of the facility in which that person 
would otherwise be allowed. There are some exceptions, however. The 
Department follows the guidance of the Centers for Disease Control and 
Prevention (CDC) on the use of service animals in a hospital setting. 
Zoonotic diseases can be transmitted to humans through bites, scratches, 
direct contact, arthropod vectors, or aerosols.
    Consistent with CDC guidance, it is generally appropriate to exclude 
a service animal from limited-access areas that employ general 
infection-control measures, such as operating rooms and burn units. See 
Centers for Disease Control and Prevention, Guidelines for Environmental 
Infection Control in Health-Care Facilities: Recommendations of CDC and 
the Healthcare Infection Control Practices Advisory Committee (June 
2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/
eic_in_HCF_03.pdf (last visited June 24, 2010). A service animal may 
accompany its handler to such areas as admissions and discharge offices, 
the emergency room, inpatient and outpatient rooms, examining and 
diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria 
and vending areas, the pharmacy, restrooms, and all other areas of the 
facility where healthcare personnel, patients, and visitors are 
permitted without added precaution.
    Prohibition against surcharges for use of a service animal. In the 
NPRM, the Department proposed to incorporate the previously mentioned 
policy guidance, which prohibits the assessment of a surcharge for the 
use of a service animal, into proposed Sec. 35.136(h). Several 
commenters agreed that this provision makes clear the obligation of a 
public entity to admit an individual with a service animal without 
surcharges, and that any additional costs imposed should be factored 
into the overall cost of administering a program, service, or activity, 
and passed on as a charge to all participants, rather than an 
individualized surcharge to the service animal user. Commenters also 
noted that service animal users cannot be required to comply with other 
requirements that are not generally applicable to other persons. If a 
public entity normally charges individuals for the damage they cause, an 
individual with a disability may be charged for damage caused by his or 
her service animal. The Department has retained this language, with 
minor modifications, in the final rule at Sec. 35.136(h).
    Training requirement. Certain commenters recommended the adoption of 
formal training requirements for service animals. The Department has 
rejected this approach and will not impose any type of formal training 
requirements or certification process, but will continue to require that 
service animals be individually trained to do work or perform tasks for 
the benefit of an individual with a disability. While some groups have 
urged the Department to modify this position, the Department has 
determined that such a modification would not serve the full array of 
individuals with disabilities who use service animals, since individuals 
with disabilities may be capable of training, and some have trained, 
their service animal to perform tasks or do work to accommodate their 
disability. A training and certification requirement would increase the 
expense of acquiring a service animal and might limit access to service 
animals for individuals with limited financial resources.
    Some commenters proposed specific behavior or training standards for 
service animals, arguing that without such standards, the public has no 
way to differentiate between untrained pets and service animals. Many of 
the suggested behavior or training standards were lengthy and detailed. 
The Department believes that this rule addresses service animal behavior 
sufficiently by including provisions that address the obligations of the 
service animal user and the circumstances under which a service animal 
may be excluded, such as the requirements that an animal be housebroken 
and under the control of its handler.
    Miniature horses. The Department has been persuaded by commenters 
and the available research to include a provision that would require 
public entities to make reasonable modifications to policies, practices, 
or procedures to permit the use of a miniature horse by a person with a 
disability if the miniature horse has been individually trained to do 
work or perform tasks for the benefit of the individual with a 
disability. The traditional service animal is a dog, which has a long 
history of guiding individuals who are blind or have low vision, and 
over time dogs have been trained to perform an even wider variety of 
services for individuals with all types of disabilities. However, an 
organization that developed a program to train miniature horses, modeled 
on the program used for guide dogs, began training miniature horses in 
1991.
    Although commenters generally supported the species limitations 
proposed in the NPRM, some were opposed to the exclusion of miniature 
horses from the definition of a service animal. These commenters noted 
that these animals have been providing assistance to persons with 
disabilities for many years. Miniature horses were suggested by some 
commenters as viable alternatives to dogs for individuals with 
allergies, or for those whose religious beliefs preclude the use of 
dogs. Another consideration mentioned in favor of the use of miniature 
horses is the longer life span and strength of miniature horses in 
comparison to dogs. Specifically, miniature horses can provide service

[[Page 623]]

for more than 25 years while dogs can provide service for approximately 
7 years, and, because of their strength, miniature horses can provide 
services that dogs cannot provide. Accordingly, use of miniature horses 
reduces the cost involved to retire, replace, and train replacement 
service animals.
    The miniature horse is not one specific breed, but may be one of 
several breeds, with distinct characteristics that produce animals 
suited to service animal work. The animals generally range in height 
from 24 inches to 34 inches measured to the withers, or shoulders, and 
generally weigh between 70 and 100 pounds. These characteristics are 
similar to those of large breed dogs such as Labrador Retrievers, Great 
Danes, and Mastiffs. Similar to dogs, miniature horses can be trained 
through behavioral reinforcement to be ``housebroken.'' Most miniature 
service horse handlers and organizations recommend that when the animals 
are not doing work or performing tasks, the miniature horses should be 
kept outside in a designated area, instead of indoors in a house.
    According to information provided by an organization that trains 
service horses, these miniature horses are trained to provide a wide 
array of services to their handlers, primarily guiding individuals who 
are blind or have low vision, pulling wheelchairs, providing stability 
and balance for individuals with disabilities that impair the ability to 
walk, and supplying leverage that enables a person with a mobility 
disability to get up after a fall. According to the commenter, miniature 
horses are particularly effective for large stature individuals. The 
animals can be trained to stand (and in some cases, lie down) at the 
handler's feet in venues where space is at a premium, such as assembly 
areas or inside some vehicles that provide public transportation. Some 
individuals with disabilities have traveled by train and have flown 
commercially with their miniature horses.
    The miniature horse is not included in the definition of service 
animal, which is limited to dogs. However, the Department has added a 
specific provision at Sec. 35.136(i) of the final rule covering 
miniature horses. Under this provision, a public entity must make 
reasonable modifications in policies, practices, or procedures to permit 
the use of a miniature horse by an individual with a disability if the 
miniature horse has been individually trained to do work or perform 
tasks for the benefit of the individual with a disability. The public 
entity may take into account a series of assessment factors in 
determining whether to allow a miniature horse into a specific facility. 
These include the type, size, and weight of the miniature horse; whether 
the handler has sufficient control of the miniature horse; whether the 
miniature horse is housebroken; and whether the miniature horse's 
presence in a specific facility compromises legitimate safety 
requirements that are necessary for safe operation. In addition, 
paragraphs (c)-(h) of this section, which are applicable to dogs, also 
apply to miniature horses.
    Ponies and full-size horses are not covered by Sec. 35.136(i). Also, 
because miniature horses can vary in size and can be larger and less 
flexible than dogs, covered entities may exclude this type of service 
animal if the presence of the miniature horse, because of its larger 
size and lower level of flexibility, results in a fundamental alteration 
to the nature of the programs activities, or services provided.

                    Section 35.137  Mobility devices.

    Section 35.137 of the NPRM clarified the scope and circumstances 
under which covered entities are legally obligated to accommodate 
various ``mobility devices.'' Section 35.137 set forth specific 
requirements for the accommodation of ``mobility devices,'' including 
wheelchairs, manually-powered mobility aids, and other power-driven 
mobility devices.
    In both the NPRM and the final rule, Sec. 35.137(a) states the 
general rule that in any areas open to pedestrians, public entities 
shall permit individuals with mobility disabilities to use wheelchairs 
and manually-powered mobility aids, including walkers, crutches, canes, 
braces, or similar devices. Because mobility scooters satisfy the 
definition of ``wheelchair'' (i.e., ``manually-operated or power-driven 
device designed primarily for use by an individual with a mobility 
disability for the main purpose of indoor, or of both indoor and outdoor 
locomotion''), the reference to them in Sec. 35.137(a) of the final rule 
has been omitted to avoid redundancy.
    Some commenters expressed concern that permitting the use of other 
power-driven mobility devices by individuals with mobility disabilities 
would make such devices akin to wheelchairs and would require them to 
make physical changes to their facilities to accommodate their use. This 
concern is misplaced. If a facility complies with the applicable design 
requirements in the 1991 Standards or the 2010 Standards, the public 
entity will not be required to exceed those standards to accommodate the 
use of wheelchairs or other power-driven mobility devices that exceed 
those requirements.
    Legal standard for other power-driven mobility devices. The NPRM 
version of Sec. 35.137(b) provided that ``[a] public entity shall make 
reasonable modifications in its policies, practices, and procedures to 
permit the use of other power-driven mobility devices by individuals 
with disabilities, unless the public entity can demonstrate that the use 
of the device is not reasonable or that its use will result in a 
fundamental alteration in the

[[Page 624]]

public entity's service, program, or activity.'' 73 FR 34466, 34505 
(June 17, 2008). In other words, public entities are by default required 
to permit the use of other power-driven mobility devices; the burden is 
on them to prove the existence of a valid exception.
    Most commenters supported the notion of assessing whether the use of 
a particular device is reasonable in the context of a particular venue. 
Commenters, however, disagreed about the meaning of the word 
``reasonable'' as it is used in Sec. 35.137(b) of the NPRM. Advocacy and 
nonprofit groups almost universally objected to the use of a general 
reasonableness standard with regard to the assessment of whether a 
particular device should be allowed at a particular venue. They argued 
that the assessment should be based on whether reasonable modifications 
could be made to allow a particular device at a particular venue, and 
that the only factors that should be part of the calculus that results 
in the exclusion of a particular device are undue burden, direct threat, 
and fundamental alteration.
    A few commenters opposed the proposed provision requiring public 
entities to assess whether reasonable modifications can be made to allow 
other power-driven mobility devices, preferring instead that the 
Department issue guidance materials so that public entities would not 
have to incur the cost of such analyses. Another commenter noted a ``fox 
guarding the hen house''-type of concern with regard to public entities 
developing and enforcing their own modification policy.
    In response to comments received, the Department has revised 
Sec. 35.137(b) to provide greater clarity regarding the development of 
legitimate safety requirements regarding other power-driven mobility 
devices and has added a new Sec. 35.130(h) (Safety) to the title II 
regulation which specifically permits public entities to impose 
legitimate safety requirements necessary for the safe operation of their 
services, programs, and activities. (See discussion below.) The 
Department has not retained the proposed NPRM language stating that an 
other power-driven mobility device can be excluded if a public entity 
can demonstrate that its use is unreasonable or will result in a 
fundamental alteration of the entity's service, program, or activity, 
because the Department believes that this exception is covered by the 
general reasonable modification requirement contained in 
Sec. 35.130(b)(7).
    Assessment factors. Section 35.137(c) of the NPRM required public 
entities to ``establish policies to permit the use of other power-driven 
mobility devices'' and articulated four factors upon which public 
entities must base decisions as to whether a modification is reasonable 
to allow the use of a class of other power-driven mobility devices by 
individuals with disabilities in specific venues (e.g., parks, 
courthouses, office buildings, etc.). 73 FR 34466, 34504 (June 17, 
2008).
    The Department has relocated and modified the NPRM text that 
appeared in Sec. 35.137(c) to new paragraph Sec. 35.137(b)(2) to clarify 
what factors the public entity shall use in determining whether a 
particular other power-driven mobility device can be allowed in a 
specific facility as a reasonable modification. Section 35.137(b)(2) now 
states that ``[i]n determining whether a particular other power-driven 
mobility device can be allowed in a specific facility as a reasonable 
modification under (b)(1), a public entity shall consider'' certain 
enumerated factors. The assessment factors are designed to assist public 
entities in determining whether allowing the use of a particular other 
power-driven mobility device in a specific facility is reasonable. Thus, 
the focus of the analysis must be on the appropriateness of the use of 
the device at a specific facility, rather than whether it is necessary 
for an individual to use a particular device.
    The NPRM proposed the following specific assessment factors: (1) The 
dimensions, weight, and operating speed of the mobility device in 
relation to a wheelchair; (2) the potential risk of harm to others by 
the operation of the mobility device; (3) the risk of harm to the 
environment or natural or cultural resources or conflict with Federal 
land management laws and regulations; and (4) the ability of the public 
entity to stow the mobility device when not in use, if requested by the 
user.
    Factor 1 was designed to help public entities assess whether a 
particular device was appropriate, given its particular physical 
features, for a particular location. Virtually all commenters said the 
physical features of the device affected their view of whether a 
particular device was appropriate for a particular location. For 
example, while many commenters supported the use of another power-driven 
mobility device if the device were a Segway PT, because of 
environmental and health concerns they did not offer the same level of 
support if the device were an off-highway vehicle, all-terrain vehicle 
(ATV), golf car, or other device with a fuel-powered or combustion 
engine. Most commenters noted that indicators such as speed, weight, and 
dimension really were an assessment of the appropriateness of a 
particular device in specific venues and suggested that factor 1 say 
this more specifically.
    The term ``in relation to a wheelchair'' in the NPRM's factor 1 
apparently created some concern that the same legal standards that apply 
to wheelchairs would be applied to other power-driven mobility devices. 
The Department has omitted the term ``in relation to a wheelchair'' from 
Sec. 35.137(b)(2)(i) to

[[Page 625]]

clarify that if a facility that is in compliance with the applicable 
provisions of the 1991 Standards or the 2010 Standards grants permission 
for an other power-driven mobility device to go on-site, it is not 
required to exceed those standards to accommodate the use of other 
power-driven mobility devices.
    In response to requests that NPRM factor 1 state more specifically 
that it requires an assessment of an other power-driven mobility 
device's appropriateness under particular circumstances or in particular 
venues, the Department has added several factors and more specific 
language. In addition, although the NPRM made reference to the operation 
of other power-driven mobility devices in ``specific venues,'' the 
Department's intent is captured more clearly by referencing ``specific 
facility'' in paragraph (b)(2). The Department also notes that while 
speed is included in factor 1, public entities should not rely solely on 
a device's top speed when assessing whether the device can be 
accommodated; instead, public entities should also consider the minimum 
speeds at which a device can be operated and whether the development of 
speed limit policies can be established to address concerns regarding 
the speed of the device. Finally, since the ability of the public entity 
to stow the mobility device when not in use is an aspect of its design 
and operational characteristics, the text proposed as factor 4 in the 
NPRM has been incorporated in paragraph (b)(2)(iii).
    The NPRM's version of factor 2 provided that the ``risk of potential 
harm to others by the operation of the mobility device'' is one of the 
determinants in the assessment of whether other power-driven mobility 
devices should be excluded from a site. The Department intended this 
requirement to be consistent with the Department's longstanding 
interpretation, expressed in Sec. II-3.5200 (Safety) of the 1993 Title 
II Technical Assistance Manual, which provides that public entities may 
``impose legitimate safety requirements that are necessary for safe 
operation.'' (This language parallels the provision in the title III 
regulation at Sec. 36.301(b).) However, several commenters indicated 
that they read this language, particularly the phrase ``risk of 
potential harm,'' to mean that the Department had adopted a concept of 
risk analysis different from that which is in the existing standards. 
The Department did not intend to create a new standard and has changed 
the language in paragraphs (b)(1) and (b)(2) to clarify the applicable 
standards, thereby avoiding the introduction of new assessments of risk 
beyond those necessary for the safe operation of the public entity. In 
addition, the Department has added a new section, 35.130(h), which 
incorporates the existing safety standard into the title II regulation.
    While all applicable affirmative defenses are available to public 
entities in the establishment and execution of their policies regarding 
other power-driven mobility devices, the Department did not explicitly 
incorporate the direct threat defense into the assessment factors 
because Sec. 35.130(h) provides public entities the appropriate 
framework with which to assess whether legitimate safety requirements 
that may preclude the use of certain other power-driven mobility devices 
are necessary for the safe operation of the public entities. In order to 
be legitimate, the safety requirement must be based on actual risks and 
not mere speculation regarding the device or how it will be operated. Of 
course, public entities may enforce legitimate safety rules established 
by the public entity for the operation of other power-driven mobility 
devices (e.g., reasonable speed restrictions). Finally, NPRM factor 3 
concerning environmental resources and conflicts of law has been 
relocated to Sec. 35.137(b)(2)(v).
    As a result of these comments and requests, NPRM factors 1, 2, 3, 
and 4 have been revised and renumbered within paragraph (b)(2) in the 
final rule.
    Several commenters requested that the Department provide guidance 
materials or more explicit concepts of which considerations might be 
appropriate for inclusion in a policy that allows the use of other 
power-driven mobility devices. A public entity that has determined that 
reasonable modifications can be made in its policies, practices, or 
procedures to allow the use of other power-driven mobility devices 
should develop a policy that clearly states the circumstances under 
which the use of other power-driven mobility devices by individuals with 
a mobility disability will be permitted. It also should include clear, 
concise statements of specific rules governing the operation of such 
devices. Finally, the public entity should endeavor to provide 
individuals with disabilities who use other power-driven mobility 
devices with advanced notice of its policy regarding the use of such 
devices and what rules apply to the operation of these devices.
    For example, the U.S. General Services Administration (GSA) has 
developed a policy allowing the use of the Segway PT and 
other EPAMDs in all Federal buildings under GSA's jurisdiction. See 
General Services Administration, Interim Segway Personal 
Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/
graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited June 24, 
2010). The GSA policy defines the policy's scope of coverage by setting 
out what devices are and are not covered by the policy. The policy also 
sets out requirements for safe operation, such as a speed limit, 
prohibits the use of EPAMDs on escalators, and provides guidance 
regarding security screening of these devices and their operators.

[[Page 626]]

    A public entity that determines that it can make reasonable 
modifications to permit the use of an other power-driven mobility device 
by an individual with a mobility disability might include in its policy 
the procedure by which claims that the other power-driven mobility 
device is being used for a mobility disability will be assessed for 
legitimacy (i.e., a credible assurance that the device is being used for 
a mobility disability, including a verbal representation by the person 
with a disability that is not contradicted by observable fact, or the 
presentation of a disability parking space placard or card, or State-
issued proof of disability); the type or classes of other power-driven 
mobility devices are permitted to be used by individuals with mobility 
disabilities; the size, weight, and dimensions of the other power-driven 
mobility devices that are permitted to be used by individuals with 
mobility disabilities; the speed limit for the other power-driven 
mobility devices that are permitted to be used by individuals with 
mobility disabilities; the places, times, or circumstances under which 
the use of the other power-driven mobility device is or will be 
restricted or prohibited; safety, pedestrian, and other rules concerning 
the use of the other power-driven mobility device; whether, and under 
which circumstances, storage for the other power-driven mobility device 
will be made available; and how and where individuals with a mobility 
disability can obtain a copy of the other power-driven mobility device 
policy.
    Public entities also might consider grouping other power-driven 
mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered 
vehicles, and other devices). For example, an amusement park may 
determine that it is reasonable to allow individuals with disabilities 
to use EPAMDs in a variety of outdoor programs and activities, but that 
it would not be reasonable to allow the use of golf cars as mobility 
devices in similar circumstances. At the same time, the entity may 
address its concerns about factors such as space limitations by 
disallowing use of EPAMDs by members of the general public who do not 
have mobility disabilities.
    The Department anticipates that, in many circumstances, public 
entities will be able to develop policies that will allow the use of 
other power-driven mobility devices by individuals with mobility 
disabilities. Consider the following example:
    A county courthouse has developed a policy whereby EPAMDs may be 
operated in the pedestrian areas of the courthouse if the operator of 
the device agrees not to operate the device faster than pedestrians are 
walking; to yield to pedestrians; to provide a rack or stand so that the 
device can stand upright; and to use the device only in courtrooms that 
are large enough to accommodate such devices. If the individual is 
selected for jury duty in one of the smaller courtrooms, the county's 
policy indicates that if it is not possible for the individual with the 
disability to park the device and walk into the courtroom, the location 
of the trial will be moved to a larger courtroom.
    Inquiry into the use of other power-driven mobility device. The NPRM 
version of Sec. 35.137(d) provided that ``[a] public entity may ask a 
person using a power-driven mobility device if the mobility device is 
needed due to the person's disability. A public entity shall not ask a 
person using a mobility device questions about the nature and extent of 
the person's disability.'' 73 FR 34466, 34504 (June 17, 2008).
    Many environmental, transit system, and government commenters 
expressed concern about people feigning mobility disabilities to be able 
to use other power-driven mobility devices in public entities in which 
their use is otherwise restricted. These commenters felt that a mere 
inquiry into whether the device is being used for a mobility disability 
was an insufficient mechanism by which to detect fraud by other power-
driven mobility device users who do not have mobility disabilities. 
These commenters believed they should be given more latitude to make 
inquiries of other power-driven mobility device users claiming a 
mobility disability than they would be given for wheelchair users. They 
sought the ability to establish a policy or method by which public 
entities may assess the legitimacy of the mobility disability. They 
suggested some form of certification, sticker, or other designation. One 
commenter suggested a requirement that a sticker bearing the 
international symbol for accessibility be placed on the device or that 
some other identification be required to signal that the use of the 
device is for a mobility disability. Other suggestions included 
displaying a disability parking placard on the device or issuing EPAMDs, 
like the Segway PT, a permit that would be similar to 
permits associated with parking spaces reserved for those with 
disabilities.
    Advocacy, nonprofit, and several individual commenters balked at the 
notion of allowing any inquiry beyond whether the device is necessary 
for a mobility disability and encouraged the Department to retain the 
NPRM's language on this topic. Other commenters, however, were 
empathetic with commenters who had concerns about fraud. At least one 
Segway PT advocate suggested it would be permissible to seek 
documentation of the mobility disability in the form of a simple sign or 
permit.
    The Department has sought to find common ground by balancing the 
needs of public entities and individuals with mobility disabilities 
wishing to use other power-driven mobility devices with the Department's 
longstanding, well-established policy of not allowing public entities or 
establishments to

[[Page 627]]

require proof of a mobility disability. There is no question that public 
entities have a legitimate interest in ferreting out fraudulent 
representations of mobility disabilities, especially given the 
recreational use of other power-driven mobility devices and the 
potential safety concerns created by having too many such devices in a 
specific facility at one time. However, the privacy of individuals with 
mobility disabilities and respect for those individuals, is also vitally 
important.
    Neither Sec. 35.137(d) of the NPRM nor Sec. 35.137(c) of the final 
rule permits inquiries into the nature of a person's mobility 
disability. However, the Department does not believe it is unreasonable 
or overly intrusive for an individual with a mobility disability seeking 
to use an other power-driven mobility device to provide a credible 
assurance to verify that the use of the other power-driven mobility 
device is for a mobility disability. The Department sought to minimize 
the amount of discretion and subjectivity exercised by public entities 
in assessing whether an individual has a mobility disability and to 
allow public entities to verify the existence of a mobility disability. 
The solution was derived from comments made by several individuals who 
said they have been admitted with their Segway PTs into 
public entities and public accommodations that ordinarily do not allow 
these devices on-site when they have presented or displayed State-issued 
disability parking placards. In the examples provided by commenters, the 
parking placards were accepted as verification that the 
Segway PTs were being used as mobility devices.
    Because many individuals with mobility disabilities avail themselves 
of State programs that issue disability parking placards or cards and 
because these programs have penalties for fraudulent representations of 
identity and disability, utilizing the parking placard system as a means 
to establish the existence of a mobility disability strikes a balance 
between the need for privacy of the individual and fraud protection for 
the public entity. Consequently, the Department has decided to include 
regulatory text in Sec. 35.137(c)(2) of the final rule that requires 
public entities to accept the presentation of a valid, State-issued 
disability parking placard or card, or State-issued proof of disability, 
as verification that an individual uses the other power-driven mobility 
device for his or her mobility disability. A ``valid'' disability 
placard or card is one that is presented by the individual to whom it 
was issued and is otherwise in compliance with the State of issuance's 
requirements for disability placards or cards. Public entities are 
required to accept a valid, State-issued disability parking placard or 
card, or State-issued proof of disability as a credible assurance, but 
they cannot demand or require the presentation of a valid disability 
placard or card, or State-issued proof of disability, as a prerequisite 
for use of an other power-driven mobility device, because not all 
persons with mobility disabilities have such means of proof. If an 
individual with a mobility disability does not have such a placard or 
card, or State-issued proof of disability, he or she may present other 
information that would serve as a credible assurance of the existence of 
a mobility disability.
    In lieu of a valid, State-issued disability parking placard or card, 
or State-issued proof of disability, a verbal representation, not 
contradicted by observable fact, shall be accepted as a credible 
assurance that the other power-driven mobility device is being used 
because of a mobility disability. This does not mean, however, that a 
mobility disability must be observable as a condition for allowing the 
use of an other power-driven mobility device by an individual with a 
mobility disability, but rather that if an individual represents that a 
device is being used for a mobility disability and that individual is 
observed thereafter engaging in a physical activity that is contrary to 
the nature of the represented disability, the assurance given is no 
longer credible and the individual may be prevented from using the 
device.
    Possession of a valid, State-issued disability parking placard or 
card or a verbal assurance does not trump a public entity's valid 
restrictions on the use of other power-driven mobility devices. 
Accordingly, a credible assurance that the other power-driven mobility 
device is being used because of a mobility disability is not a guarantee 
of entry to a public entity because, notwithstanding such credible 
assurance, use of the device in a particular venue may be at odds with 
the legal standard in Sec. 35.137(b)(1) or with one or more of the 
Sec. 35.137(b)(2) factors. Only after an individual with a disability 
has satisfied all of the public entity's policies regarding the use of 
other power-driven mobility devices does a credible assurance become a 
factor in allowing the use of the device. For example, if an individual 
seeking to use an other power-driven mobility device fails to satisfy 
any of the public entity's stated policies regarding the use of other 
power-driven mobility devices, the fact that the individual legitimately 
possesses and presents a valid, State-issued disability parking placard 
or card, or State-issued proof of disability, does not trump the policy 
and require the public entity to allow the use of the device. In fact, 
in some instances, the presentation of a legitimately held placard or 
card, or State-issued proof of disability, will have no relevance or 
bearing at all on whether the other power-driven mobility device may be 
used, because the public entity's policy does not permit the device in 
question on-site under any circumstances (e.g., because its use would 
create a substantial risk

[[Page 628]]

of serious harm to the immediate environment or natural or cultural 
resources). Thus, an individual with a mobility disability who presents 
a valid disability placard or card, or State-issued proof of disability, 
will not be able to use an ATV as an other power-driven mobility device 
in a State park if the State park has adopted a policy banning their use 
for any or all of the above-mentioned reasons. However, if a public 
entity permits the use of a particular other power-driven mobility 
device, it cannot refuse to admit an individual with a disability who 
uses that device if the individual has provided a credible assurance 
that the use of the device is for a mobility disability.

                        Section 35.138  Ticketing

    The 1991 title II regulation did not contain specific regulatory 
language on ticketing. The ticketing policies and practices of public 
entities, however, are subject to title II's nondiscrimination 
provisions. Through the investigation of complaints, enforcement 
actions, and public comments related to ticketing, the Department became 
aware that some venue operators, ticket sellers, and distributors were 
violating title II's nondiscrimination mandate by not providing 
individuals with disabilities the same opportunities to purchase tickets 
for accessible seating as they provided to spectators purchasing 
conventional seats. In the NPRM, the Department proposed Sec. 35.138 to 
provide explicit direction and guidance on discriminatory practices for 
entities involved in the sale or distribution of tickets.
    The Department received comments from advocacy groups, assembly area 
trade associations, public entities, and individuals. Many commenters 
supported the addition of regulatory language pertaining to ticketing 
and urged the Department to retain it in the final rule. Several 
commenters, however, questioned why there were inconsistencies between 
the title II and title III provisions and suggested that the same 
language be used for both titles. The Department has decided to retain 
ticketing regulatory language and to ensure consistency between the 
ticketing provisions in title II and title III.
    Because many in the ticketing industry view season tickets and other 
multi-event packages differently from individual tickets, the Department 
bifurcated some season ticket provisions from those concerning single-
event tickets in the NPRM. This structure, however, resulted in some 
provisions being repeated for both types of tickets but not for others 
even though they were intended to apply to both types of tickets. The 
result was that it was not entirely clear that some of the provisions 
that were not repeated also were intended to apply to season tickets. 
The Department is addressing the issues raised by these commenters using 
a different approach. For the purposes of this section, a single event 
refers to an individual performance for which tickets may be purchased. 
In contrast, a series of events includes, but is not limited to, 
subscription events, event packages, season tickets, or any other 
tickets that may be purchased for multiple events of the same type over 
the course of a specified period of time whose ownership right reverts 
to the public entity at the end of each season or time period. Series-
of-events tickets that give their holders an enhanced ability to 
purchase such tickets from the public entity in seasons or periods of 
time that follow, such as a right of first refusal or higher ranking on 
waiting lists for more desirable seats, are subject to the provisions in 
this section. In addition, the final rule merges together some NPRM 
paragraphs that dealt with related topics and has reordered and renamed 
some of the paragraphs that were in the NPRM.
    Ticket sales. In the NPRM, the Department proposed, in 
Sec. 35.138(a), a general rule that a public entity shall modify its 
policies, practices, or procedures to ensure that individuals with 
disabilities can purchase tickets for accessible seating for an event or 
series of events in the same way as others (i.e., during the same hours 
and through the same distribution methods as other seating is sold). 73 
FR 34466, 34504 (June 17, 2008). ``Accessible seating'' is defined in 
Sec. 35.138(a)(1) of the final rule to mean ``wheelchair spaces and 
companion seats that comply with sections 221 and 802 of the 2010 
Standards along with any other seats required to be offered for sale to 
the individual with a disability pursuant to paragraph (d) of this 
section.'' The defined term does not include designated aisle seats. A 
``wheelchair space'' refers to a space for a single wheelchair and its 
occupant.
    The NPRM proposed requiring that accessible seats be sold through 
the ``same methods of distribution'' as non-accessible seats. Comments 
from venue managers and others in the business community, in general, 
noted that multiple parties are involved in ticketing, and because 
accessible seats may not be allotted to all parties involved at each 
stage, such parties should be protected from liability. For example, one 
commenter noted that a third-party ticket vendor, like Ticketmaster, can 
only sell the tickets it receives from its client. Because 
Sec. 35.138(a)(2)(iii) of the final rule requires venue operators to 
make available accessible seating through the same methods of 
distribution they use for their regular tickets, venue operators that 
provide tickets to third-party ticket vendors are required to provide 
accessible seating to the third-party ticket vendor. This provision will 
enhance third-party ticket vendors' ability to acquire and sell 
accessible seating for sale in the future. The Department notes that 
once third-

[[Page 629]]

party ticket vendors acquire accessible tickets, they are obligated to 
sell them in accordance with these rules.
    The Department also has received frequent complaints that 
individuals with disabilities have not been able to purchase accessible 
seating over the Internet, and instead have had to engage in a laborious 
process of calling a customer service line, or sending an e-mail to a 
customer service representative and waiting for a response. Not only is 
such a process burdensome, but it puts individuals with disabilities at 
a disadvantage in purchasing tickets for events that are popular and may 
sell out in minutes. Because Sec. 35.138(e) of the final rule authorizes 
venues to release accessible seating in case of a sell-out, individuals 
with disabilities effectively could be cut off from buying tickets 
unless they also have the ability to purchase tickets in real time over 
the Internet. The Department's new regulatory language is designed to 
address this problem.
    Several commenters representing assembly areas raised concerns about 
offering accessible seating for sale over the Internet. They contended 
that this approach would increase the incidence of fraud since anyone 
easily could purchase accessible seating over the Internet. They also 
asserted that it would be difficult technologically to provide 
accessible seating for sale in real time over the Internet, or that to 
do so would require simplifying the rules concerning the purchase of 
multiple additional accompanying seats. Moreover, these commenters 
argued that requiring an individual purchasing accessible seating to 
speak with a customer service representative would allow the venue to 
meet the patron's needs most appropriately and ensure that wheelchair 
spaces are reserved for individuals with disabilities who require 
wheelchair spaces. Finally, these commenters argued that individuals who 
can transfer effectively and conveniently from a wheelchair to a seat 
with a movable armrest seat could instead purchase designated aisle 
seats.
    The Department considered these concerns carefully and has decided 
to continue with the general approach proposed in the NPRM. Although 
fraud is an important concern, the Department believes that it is best 
combated by other means that would not have the effect of limiting the 
ability of individuals with disabilities to purchase tickets, 
particularly since restricting the purchase of accessible seating over 
the Internet will, of itself, not curb fraud. In addition, the 
Department has identified permissible means for covered entities to 
reduce the incidence of fraudulent accessible seating ticket purchases 
in Sec. 35.138(h) of the final rule.
    Several commenters questioned whether ticket websites themselves 
must be accessible to individuals who are blind or have low vision, and 
if so, what that requires. The Department has consistently interpreted 
the ADA to cover websites that are operated by public entities and 
stated that such sites must provide their services in an accessible 
manner or provide an accessible alternative to the website that is 
available 24 hours a day, seven days a week. The final rule, therefore, 
does not impose any new obligation in this area. The accessibility of 
websites is discussed in more detail in the section of Appendix A 
entitled ``Other Issues.''
    In Sec. 35.138(b) of the NPRM, the Department also proposed 
requiring public entities to make accessible seating available during 
all stages of tickets sales including, but not limited to, presales, 
promotions, lotteries, waitlists, and general sales. For example, if 
tickets will be presold for an event that is open only to members of a 
fan club, or to holders of a particular credit card, then tickets for 
accessible seating must be made available for purchase through those 
means. This requirement does not mean that any individual with a 
disability would be able to purchase those seats. Rather, it means that 
an individual with a disability who meets the requirement for such a 
sale (e.g., who is a member of the fan club or holds that credit card) 
will be able to participate in the special promotion and purchase 
accessible seating. The Department has maintained the substantive 
provisions of the NPRM's Sec. 35.138(a) and (b) but has combined them in 
a single paragraph at Sec. 35.138(a)(2) of the final rule so that all of 
the provisions having to do with the manner in which tickets are sold 
are located in a single paragraph.
    Identification of available accessible seating. In the NPRM, the 
Department proposed Sec. 35.138(c), which, as modified and renumbered as 
paragraph (b)(3) in the final rule, requires a facility to identify 
available accessible seating through seating maps, brochures, or other 
methods if that information is made available about other seats sold to 
the general public. This rule requires public entities to provide 
information about accessible seating to the same degree of specificity 
that it provides information about general seating. For example, if a 
seating map displays color-coded blocks pegged to prices for general 
seating, then accessible seating must be similarly color-coded. 
Likewise, if covered entities provide detailed maps that show exact 
seating and pricing for general seating, they must provide the same for 
accessible seating.
    The NPRM did not specify a requirement to identify prices for 
accessible seating. The final rule requires that if such information is 
provided for general seating, it must be provided for accessible seating 
as well.
    In the NPRM, the Department proposed in Sec. 35.138(d) that a public 
entity, upon being asked, must inform persons with disabilities and 
their companions of the locations of all unsold or otherwise available 
seating. This

[[Page 630]]

provision is intended to prevent the practice of ``steering'' 
individuals with disabilities to certain accessible seating so that the 
facility can maximize potential ticket sales by releasing unsold 
accessible seating, especially in preferred or desirable locations, for 
sale to the general public. The Department received no significant 
comment on this proposal. The Department has retained this provision in 
the final rule but has added it, with minor modifications, to 
Sec. 35.138(b) as paragraph (1).
    Ticket prices. In the NPRM, the Department proposed Sec. 35.138(e) 
requiring that ticket prices for accessible seating be set no higher 
than the prices for other seats in that seating section for that event. 
The NPRM's provision also required that accessible seating be made 
available at every price range, and if an existing facility has barriers 
to accessible seating within a particular price range, a proportionate 
amount of seating (determined by the ratio of the total number of seats 
at that price level to the total number of seats in the assembly area) 
must be offered in an accessible location at that same price. Under this 
rule, for example, if a public entity has a 20,000-seat facility built 
in 1980 with inaccessible seating in the $20-price category, which is on 
the upper deck, and it chooses not to put accessible seating in that 
section, then it must place a proportionate number of seats in an 
accessible location for $20. If the upper deck has 2,000 seats, then the 
facility must place 10 percent of its accessible seating in an 
accessible location for $20 provided that it is part of a seating 
section where ticket prices are equal to or more than $20--a facility 
may not place the $20-accessible seating in a $10-seating section. The 
Department received no significant comment on this rule, and it has been 
retained, as amended, in the final rule in Sec. 35.138(c).
    Purchase of multiple tickets. In the NPRM, the Department proposed 
Sec. 35.138(i) to address one of the most common ticketing complaints 
raised with the Department: That individuals with disabilities are not 
able to purchase more than two tickets. The Department proposed this 
provision to facilitate the ability of individuals with disabilities to 
attend events with friends, companions, or associates who may or may not 
have a disability by enabling individuals with disabilities to purchase 
the maximum number of tickets allowed per transaction to other 
spectators; by requiring venues to place accompanying individuals in 
general seating as close as possible to accessible seating (in the event 
that a group must be divided because of the large size of the group); 
and by allowing an individual with a disability to purchase up to three 
additional contiguous seats per wheelchair space if they are available 
at the time of sale. Section 35.138(i)(2) of the NPRM required that a 
group containing one or more wheelchair users must be placed together, 
if possible, and that in the event that the group could not be placed 
together, the individuals with disabilities may not be isolated from the 
rest of the group.
    The Department asked in the NPRM whether this rule was sufficient to 
effectuate the integration of individuals with disabilities. Many 
advocates and individuals praised it as a welcome and much-needed 
change, stating that the trade-off of being able to sit with their 
family or friends was worth reducing the number of seats available for 
individuals with disabilities. Some commenters went one step further and 
suggested that the number of additional accompanying seats should not be 
restricted to three.
    Although most of the substance of the proposed provision on the 
purchase of multiple tickets has been maintained in the final rule, it 
has been renumbered as Sec. 35.138(d), reorganized, and supplemented. To 
preserve the availability of accessible seating for other individuals 
with disabilities, the Department has not expanded the rule beyond three 
additional contiguous seats. Section 35.138(d)(1) of the final rule 
requires public entities to make available for purchase three additional 
tickets for seats in the same row that are contiguous with the 
wheelchair space provided that at the time of the purchase there are 
three such seats available. The requirement that the additional seats be 
``contiguous with the wheelchair space'' does not mean that each of the 
additional seats must be in actual contact or have a border in common 
with the wheelchair space; however, at least one of the additional seats 
should be immediately adjacent to the wheelchair space. The Department 
recognizes that it will often be necessary to use vacant wheelchair 
spaces to provide for contiguous seating.
    The Department has added paragraphs (d)(2) and (d)(3) to clarify 
that in situations where there are insufficient unsold seats to provide 
three additional contiguous seats per wheelchair space or a ticket 
office restricts sales of tickets to a particular event to less than 
four tickets per customer, the obligation to make available three 
additional contiguous seats per wheelchair space would be affected. For 
example, if at the time of purchase, there are only two additional 
contiguous seats available for purchase because the third has been sold 
already, then the ticket purchaser would be entitled to two such seats. 
In this situation, the public entity would be required to make up the 
difference by offering one additional ticket for sale that is as close 
as possible to the accessible seats. Likewise, if ticket purchases for 
an event are limited to two per customer, a person who uses a wheelchair 
who seeks to purchase tickets would be entitled to purchase only one 
additional contiguous seat for the event.
    The Department also has added paragraph (d)(4) to clarify that the 
requirement for

[[Page 631]]

three additional contiguous seats is not intended to serve as a cap if 
the maximum number of tickets that may be purchased by members of the 
general public exceeds the four tickets an individual with a disability 
ordinarily would be allowed to purchase (i.e., a wheelchair space and 
three additional contiguous seats). If the maximum number of tickets 
that may be purchased by members of the general public exceeds four, an 
individual with a disability is to be allowed to purchase the maximum 
number of tickets; however, additional tickets purchased by an 
individual with a disability beyond the wheelchair space and the three 
additional contiguous seats provided in Sec. 35.138(d)(1) do not have to 
be contiguous with the wheelchair space.
    The NPRM proposed at Sec. 35.138(i)(2) that for group sales, if a 
group includes one or more individuals who use a wheelchair, then the 
group shall be placed in a seating area with accessible seating so that, 
if possible, the group can sit together. If it is necessary to divide 
the group, it should be divided so that the individuals in the group who 
use wheelchairs are not isolated from the rest of the members of their 
group. The final rule retains the NPRM language in paragraph (d)(5).
    Hold-and-release of unsold accessible seating. The Department 
recognizes that not all accessible seating will be sold in all assembly 
areas for every event to individuals with disabilities who need such 
seating and that public entities may have opportunities to sell such 
seating to the general public. The Department proposed in the NPRM a 
provision aimed at striking a balance between affording individuals with 
disabilities adequate time to purchase accessible seating and the 
entity's desire to maximize ticket sales. In the NPRM, the Department 
proposed Sec. 35.138(f), which allowed for the release of accessible 
seating under the following circumstances: (i) When all seating in the 
facility has been sold, excluding luxury boxes, club boxes, or suites; 
(ii) when all seating in a designated area has been sold and the 
accessible seating being released is in the same area; or (iii) when all 
seating in a designated price range has been sold and the accessible 
seating being released is within the same price range.
    The Department's NPRM asked ``whether additional regulatory guidance 
is required or appropriate in terms of a more detailed or set schedule 
for the release of tickets in conjunction with the three approaches 
described above. For example, does the proposed regulation address the 
variable needs of assembly areas covered by the ADA? Is additional 
regulatory guidance required to eliminate discriminatory policies, 
practices and procedures related to the sale, hold, and release of 
accessible seating? What considerations should appropriately inform the 
determination of when unsold accessible seating can be released to the 
general public?'' 73 FR 34466, 34484 (June 17, 2008).
    The Department received comments both supporting and opposing the 
inclusion of a hold-and-release provision. One side proposed loosening 
the restrictions on the release of unsold accessible seating. One 
commenter from a trade association suggested that tickets should be 
released regardless of whether there is a sell-out, and that these 
tickets should be released according to a set schedule. Conversely, 
numerous individuals, advocacy groups, and at least one public entity 
urged the Department to tighten the conditions under which unsold 
tickets for accessible seating may be released. These commenters 
suggested that venues should not be permitted to release tickets during 
the first two weeks of sale, or alternatively, that they should not be 
permitted to be released earlier than 48 hours before a sold-out event. 
Many of these commenters criticized the release of accessible seating 
under the second and third prongs of Sec. 35.138(f) in the NPRM (when 
there is a sell-out in general seating in a designated seating area or 
in a price range), arguing that it would create situations where general 
seating would be available for purchase while accessible seating would 
not be.
    Numerous commenters--both from the industry and from advocacy 
groups--asked for clarification of the term ``sell-out.'' Business 
groups commented that industry practice is to declare a sell-out when 
there are only ``scattered singles'' available--isolated seats that 
cannot be purchased as a set of adjacent pairs. Many of those same 
commenters also requested that ``sell-out'' be qualified with the phrase 
``of all seating available for sale'' since it is industry practice to 
hold back from release tickets to be used for groups connected with that 
event (e.g., the promoter, home team, or sports league). They argued 
that those tickets are not available for sale and any return of these 
tickets to the general inventory happens close to the event date. Noting 
the practice of holding back tickets, one advocacy group suggested that 
covered entities be required to hold back accessible seating in 
proportion to the number of tickets that are held back for later 
release.
    The Department has concluded that it would be inappropriate to 
interfere with industry practice by defining what constitutes a ``sell-
out'' and that a public entity should continue to use its own approach 
to defining a ``sell-out.'' If, however, a public entity declares a 
sell-out by reference to those seats that are available for sale, but it 
holds back tickets that it reasonably anticipates will be released 
later, it must hold back a proportional percentage of accessible seating 
to be released as well.

[[Page 632]]

    Adopting any of the alternatives proposed in the comments summarized 
above would have upset the balance between protecting the rights of 
individuals with disabilities and meeting venues' concerns about lost 
revenue from unsold accessible seating. As a result, the Department has 
retained Sec. 35.138(f) (renumbered as Sec. 35.138(e)) in the final 
rule.
    The Department has, however, modified the regulation text to specify 
that accessible seating may be released only when ``all non-accessible 
tickets in a designated seating area have been sold and the tickets for 
accessible seating are being released in the same designated area.'' As 
stated in the NPRM, the Department intended for this provision to allow, 
for example, the release of accessible seating at the orchestra level 
when all other seating at the orchestra level is sold. The Department 
has added this language to the final rule at Sec. 35.138(e)(1)(ii) to 
clarify that venues cannot designate or redesignate seating areas for 
the purpose of maximizing the release of unsold accessible seating. So, 
for example, a venue may not determine on an ad hoc basis that a group 
of seats at the orchestra level is a designated seating area in order to 
release unsold accessible seating in that area.
    The Department also has maintained the hold-and-release provisions 
that appeared in the NPRM but has added a provision to address the 
release of accessible seating for series-of-events tickets on a series-
of-events basis. Many commenters asked the Department whether unsold 
accessible seating may be converted to general seating and released to 
the general public on a season-ticket basis or longer when tickets 
typically are sold as a season-ticket package or other long-term basis. 
Several disability rights organizations and individual commenters argued 
that such a practice should not be permitted, and, if it were, that 
conditions should be imposed to ensure that individuals with 
disabilities have future access to those seats.
    The Department interprets the fundamental principle of the ADA as a 
requirement to give individuals with disabilities equal, not better, 
access to those opportunities available to the general public. Thus, for 
example, a public entity that sells out its facility on a season-ticket 
only basis is not required to leave unsold its accessible seating if no 
persons with disabilities purchase those season-ticket seats. Of course, 
public entities may choose to go beyond what is required by reserving 
accessible seating for individuals with disabilities (or releasing such 
seats for sale to the general public) on an individual-game basis.
    If a covered entity chooses to release unsold accessible seating for 
sale on a season-ticket or other long-term basis, it must meet at least 
two conditions. Under Sec. 35.138(g) of the final rule, public entities 
must leave flexibility for game-day change-outs to accommodate ticket 
transfers on the secondary market. And public entities must modify their 
ticketing policies so that, in future years, individuals with 
disabilities will have the ability to purchase accessible seating on the 
same basis as other patrons (e.g., as season tickets). Put differently, 
releasing accessible seating to the general public on a season-ticket or 
other long-term basis cannot result in that seating being lost to 
individuals with disabilities in perpetuity. If, in future years, season 
tickets become available and persons with disabilities have reached the 
top of the waiting list or have met any other eligibility criteria for 
season-ticket purchases, public entities must ensure that accessible 
seating will be made available to the eligible individuals. In order to 
accomplish this, the Department has added Sec. 35.138(e)(3)(i) to 
require public entities that release accessible season tickets to 
individuals who do not have disabilities that require the features of 
accessible seating to establish a process to prevent the automatic 
reassignment of such ticket holders to accessible seating. For example, 
a public entity could have in place a system whereby accessible seating 
that was released because it was not purchased by individuals with 
disabilities is not in the pool of tickets available for purchase for 
the following season unless and until the conditions for ticket release 
have been satisfied in the following season. Alternatively, a public 
entity might release tickets for accessible seating only when a 
purchaser who does not need its features agrees that he or she has no 
guarantee of or right to the same seats in the following season, or that 
if season tickets are guaranteed for the following season, the purchaser 
agrees that the offer to purchase tickets is limited to non-accessible 
seats having to the extent practicable, comparable price, view, and 
amenities to the accessible seats such individuals held in the prior 
year. The Department is aware that this rule may require some 
administrative changes but believes that this process will not create 
undue financial and administrative burdens. The Department believes that 
this approach is balanced and beneficial. It will allow public entities 
to sell all of their seats and will leave open the possibility, in 
future seasons or series of events, that persons who need accessible 
seating may have access to it.
    The Department also has added Sec. 35.138(e)(3)(ii) to address how 
season tickets or series-of-events tickets that have attached ownership 
rights should be handled if the ownership right returns to the public 
entity (e.g., when holders forfeit their ownership right by failing to 
purchase season tickets or sell their ownership right back to a public 
entity). If the ownership right is for

[[Page 633]]

accessible seating, the public entity is required to adopt a process 
that allows an eligible individual with a disability who requires the 
features of such seating to purchase the rights and tickets for such 
seating.
    Nothing in the regulatory text prevents a public entity from 
establishing a process whereby such ticket holders agree to be 
voluntarily reassigned from accessible seating to another seating area 
so that individuals with mobility disabilities or disabilities that 
require the features of accessible seating and who become newly eligible 
to purchase season tickets have an opportunity to do so. For example, a 
public entity might seek volunteers to relocate to another location that 
is at least as good in terms of its location, price, and amenities, or a 
public entity might use a seat with forfeited ownership rights as an 
inducement to get a ticket holder to give up accessible seating he or 
she does not need.
    Ticket transfer. The Department received many comments asking 
whether accessible seating has the same transfer rights as general 
seats. The proposed regulation at Sec. 35.138(e) required that 
individuals with disabilities must be allowed to purchase season tickets 
for accessible seating on the same terms and conditions as individuals 
purchasing season tickets for general seating, including the right--if 
it exists for other ticket-holders--to transfer individual tickets to 
friends or associates. Some commenters pointed out that the NPRM 
proposed explicitly allowing individuals with disabilities holding 
season tickets to transfer tickets but did not address the transfer of 
tickets purchased for individual events. Several commenters representing 
assembly areas argued that persons with disabilities holding tickets for 
an individual event should not be allowed to sell or transfer them to 
third parties because such ticket transfers would increase the risk of 
fraud or would make unclear the obligation of the entity to accommodate 
secondary ticket transfers. They argued that individuals holding 
accessible seating should either be required to transfer their tickets 
to another individual with a disability or return them to the facility 
for a refund.
    Although the Department is sympathetic to concerns about 
administrative burden, curtailing transfer rights for accessible seating 
when other ticket holders are permitted to transfer tickets would be 
inconsistent with the ADA's guiding principle that individuals with 
disabilities must have rights equal to others. Thus, the Department has 
added language in the final rule in Sec. 35.138(f) that requires that 
individuals with disabilities holding accessible seating for any event 
have the same transfer rights accorded other ticket holders for that 
event. Section 35.138(f) also preserves the rights of individuals with 
disabilities who hold tickets to accessible seats for a series of events 
to transfer individual tickets to others, regardless of whether the 
transferee needs accessible seating. This approach recognizes the common 
practice of individuals splitting season tickets or other multi-event 
ticket packages with friends, colleagues, or other spectators to make 
the purchase of season tickets affordable; individuals with disabilities 
should not be placed in the burdensome position of having to find 
another individual with a disability with whom to share the package.
    This provision, however, does not require public entities to seat an 
individual who holds a ticket to an accessible seat in such seating if 
the individual does not need the accessible features of the seat. A 
public entity may reserve the right to switch these individuals to 
different seats if they are available, but a public entity is not 
required to remove a person without a disability who is using accessible 
seating from that seating, even if a person who uses a wheelchair shows 
up with a ticket from the secondary market for a non-accessible seat and 
wants accessible seating.
    Secondary ticket market. Section 35.138(g) is a new provision in the 
final rule that requires a public entity to modify its policies, 
practices, or procedures to ensure that an individual with a disability, 
who acquires a ticket in the secondary ticket market, may use that 
ticket under the same terms and conditions as other ticket holders who 
acquire a ticket in the secondary market for an event or series of 
events. This principle was discussed in the NPRM in connection with 
Sec. 35.138(e), pertaining to season-ticket sales. There, the Department 
asked for public comment regarding a public entity's proposed obligation 
to accommodate the transfer of accessible seating tickets on the 
secondary ticket market to those who do not need accessible seating and 
vice versa.
    The secondary ticket market, for the purposes of this rule, broadly 
means any transfer of tickets after the public entity's initial sale of 
tickets to individuals or entities. It thus encompasses a wide variety 
of transactions, from ticket transfers between friends to transfers 
using commercial exchange systems. Many commenters noted that the 
distinction between the primary and secondary ticket market has become 
blurred as a result of agreements between teams, leagues, and secondary 
market sellers. These commenters noted that the secondary market may 
operate independently of the public entity, and parts of the secondary 
market, such as ticket transfers between friends, undoubtedly are 
outside the direct jurisdiction of the public entity.
    To the extent that venues seat persons who have purchased tickets on 
the secondary market, they must similarly seat persons with disabilities 
who have purchased tickets on the secondary market. In addition, some

[[Page 634]]

public entities may acquire ADA obligations directly by formally 
entering the secondary ticket market.
    The Department's enforcement experience with assembly areas also has 
revealed that venues regularly provide for and make last-minute seat 
transfers. As long as there are vacant wheelchair spaces, requiring 
venues to provide wheelchair spaces for patrons who acquired 
inaccessible seats and need wheelchair spaces is an example of a 
reasonable modification of a policy under title II of the ADA. 
Similarly, a person who has a ticket for a wheelchair space but who does 
not require its accessible features could be offered non-accessible 
seating if such seating is available.
    The Department's longstanding position that title II of the ADA 
requires venues to make reasonable modifications in their policies to 
allow individuals with disabilities who acquired non-accessible tickets 
on the secondary ticket market to be seated in accessible seating, where 
such seating is vacant, is supported by the only Federal court to 
address this issue. See Independent Living Resources v. Oregon Arena 
Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998). The Department has 
incorporated this position into the final rule at Sec. 35.138(g)(2).
    The NPRM contained two questions aimed at gauging concern with the 
Department's consideration of secondary ticket market sales. The first 
question asked whether a secondary purchaser who does not have a 
disability and who buys an accessible seat should be required to move if 
the space is needed for someone with a disability.
    Many disability rights advocates answered that the individual should 
move provided that there is a seat of comparable or better quality 
available for him and his companion. Some venues, however, expressed 
concerns about this provision, and asked how they are to identify who 
should be moved and what obligations apply if there are no seats 
available that are equivalent or better in quality.
    The Department's second question asked whether there are particular 
concerns about the obligation to provide accessible seating, including a 
wheelchair space, to an individual with a disability who purchases an 
inaccessible seat through the secondary market.
    Industry commenters contended that this requirement would create a 
``logistical nightmare,'' with venues scrambling to reseat patrons in 
the short time between the opening of the venues' doors and the 
commencement of the event. Furthermore, they argued that they might not 
be able to reseat all individuals and that even if they were able to do 
so, patrons might be moved to inferior seats (whether in accessible or 
non-accessible seating). These commenters also were concerned that they 
would be sued by patrons moved under such circumstances.
    These commenters seem to have misconstrued the rule. Covered 
entities are not required to seat every person who acquires a ticket for 
inaccessible seating but needs accessible seating, and are not required 
to move any individual who acquires a ticket for accessible seating but 
does not need it. Covered entities that allow patrons to buy and sell 
tickets on the secondary market must make reasonable modifications to 
their policies to allow persons with disabilities to participate in 
secondary ticket transfers. The Department believes that there is no 
one-size-fits-all rule that will suit all assembly areas. In those 
circumstances where a venue has accessible seating vacant at the time an 
individual with a disability who needs accessible seating presents his 
ticket for inaccessible seating at the box office, the venue must allow 
the individual to exchange his ticket for an accessible seat in a 
comparable location if such an accessible seat is vacant. Where, 
however, a venue has sold all of its accessible seating, the venue has 
no obligation to provide accessible seating to the person with a 
disability who purchased an inaccessible seat on the secondary market. 
Venues may encourage individuals with disabilities who hold tickets for 
inaccessible seating to contact the box office before the event to 
notify them of their need for accessible seating, even though they may 
not require ticketholders to provide such notice.
    The Department notes that public entities are permitted, though not 
required, to adopt policies regarding moving patrons who do not need the 
features of an accessible seat. If a public entity chooses to do so, it 
might mitigate administrative concerns by marking tickets for accessible 
seating as such, and printing on the ticket that individuals who 
purchase such seats but who do not need accessible seating are subject 
to being moved to other seats in the facility if the accessible seating 
is required for an individual with a disability. Such a venue might also 
develop and publish a ticketing policy to provide transparency to the 
general public and to put holders of tickets for accessible seating who 
do not require it on notice that they may be moved.
    Prevention of fraud in purchase of accessible seating. Assembly area 
managers and advocacy groups have informed the Department that the 
fraudulent purchase of accessible seating is a pressing concern. Curbing 
fraud is a goal that public entities and individuals with disabilities 
share. Steps taken to prevent fraud, however, must be balanced carefully 
against the privacy rights of individuals with disabilities. Such 
measures also must not impose burdensome requirements upon, nor restrict 
the rights of, individuals with disabilities.
    In the NPRM, the Department struck a balance between these competing 
concerns by proposing Sec. 35.138(h), which prohibited

[[Page 635]]

public entities from asking for proof of disability before the purchase 
of accessible seating but provided guidance in two paragraphs on 
appropriate measures for curbing fraud. Paragraph (1) proposed allowing 
a public entity to ask individuals purchasing single-event tickets for 
accessible seating whether they are wheelchair users. Paragraph (2) 
proposed allowing a public entity to require the individuals purchasing 
accessible seating for season tickets or other multi-event ticket 
packages to attest in writing that the accessible seating is for a 
wheelchair user. Additionally, the NPRM proposed to permit venues, when 
they have good cause to believe that an individual has fraudulently 
purchased accessible seating, to investigate that individual.
    Several commenters objected to this rule on the ground that it would 
require a wheelchair user to be the purchaser of tickets. The Department 
has reworded this paragraph to reflect that the individual with a 
disability does not have to be the ticket purchaser. The final rule 
allows third parties to purchase accessible tickets at the request of an 
individual with a disability.
    Commenters also argued that other individuals with disabilities who 
do not use wheelchairs should be permitted to purchase accessible 
seating. Some individuals with disabilities who do not use wheelchairs 
urged the Department to change the rule, asserting that they, too, need 
accessible seating. The Department agrees that such seating, although 
designed for use by a wheelchair user, may be used by non-wheelchair 
users, if those persons are persons with a disability who need to use 
accessible seating because of a mobility disability or because their 
disability requires the use of the features that accessible seating 
provides (e.g., individuals who cannot bend their legs because of 
braces, or individuals who, because of their disability, cannot sit in a 
straight-back chair).
    Some commenters raised concerns that allowing venues to ask 
questions to determine whether individuals purchasing accessible seating 
are doing so legitimately would burden individuals with disabilities in 
the purchase of accessible seating. The Department has retained the 
substance of this provision in Sec. 35.138(h) of the final rule, but 
emphasizes that such questions should be asked at the initial time of 
purchase. For example, if the method of purchase is via the Internet, 
then the question(s) should be answered by clicking a yes or no box 
during the transaction. The public entity may warn purchasers that 
accessible seating is for individuals with disabilities and that 
individuals purchasing such tickets fraudulently are subject to 
relocation.
    One commenter argued that face-to-face contact between the venue and 
the ticket holder should be required in order to prevent fraud and 
suggested that individuals who purchase accessible seating should be 
required to pick up their tickets at the box office and then enter the 
venue immediately. The Department has declined to adopt that suggestion. 
It would be discriminatory to require individuals with disabilities to 
pick up tickets at the box office when other spectators are not required 
to do so. If the assembly area wishes to make face-to-face contact with 
accessible seating ticket holders to curb fraud, it may do so through 
its ushers and other customer service personnel located within the 
seating area.
    Some commenters asked whether it is permissible for assembly areas 
to have voluntary clubs where individuals with disabilities self-
identify to the public entity in order to become a member of a club that 
entitles them to purchase accessible seating reserved for club members 
or otherwise receive priority in purchasing accessible seating. The 
Department agrees that such clubs are permissible, provided that a 
reasonable amount of accessible seating remains available at all prices 
and dispersed at all locations for individuals with disabilities who are 
non-members.

                       Sec. 35.139  Direct threat

    In Appendix A of the Department's 1991 title II regulation, the 
Department included a detailed discussion of ``direct threat'' that, 
among other things, explained that ``the principles established in 
Sec. 36.208 of the Department's [title III] regulation'' were 
``applicable'' as well to title II, insofar as ``questions of safety are 
involved.'' 28 CFR part 35, app. A at 565 (2009). In the final rule, the 
Department has included specific requirements related to ``direct 
threat'' that parallel those in the title III rule. These requirements 
are found in new Sec. 35.139.

                    Subpart D--Program Accessibility

                    Section 35.150(b)(2)  Safe harbor

    The ``program accessibility'' requirement in regulations 
implementing title II of the Americans with Disabilities Act requires 
that each service, program, or activity, when viewed in its entirety, be 
readily accessible to and usable by individuals with disabilities. 28 
CFR 35.150(a). Because title II evaluates a public entity's programs, 
services, and activities in their entirety, public entities have 
flexibility in addressing accessibility issues. Program access does not 
necessarily require a public entity to make each of its existing 
facilities accessible to and usable by individuals with disabilities, 
and public entities are not required to make structural changes to 
existing facilities where other methods are effective in achieving 
program

[[Page 636]]

access. See id. \3\ Public entities do, however, have program access 
considerations that are independent of, but may coexist with, 
requirements imposed by new construction or alteration requirements in 
those same facilities.
---------------------------------------------------------------------------

    \3\ The term ``existing facility'' is defined in Sec. 35.104 as 
amended by this rule.
---------------------------------------------------------------------------

    Where a public entity opts to alter existing facilities to comply 
with its program access requirements, the entity must meet the 
accessibility requirements for alterations set out in Sec. 35.151. Under 
the final rule, these alterations will be subject to the 2010 Standards. 
The 2010 Standards introduce technical and scoping specifications for 
many elements not covered by the 1991 Standards. In existing facilities, 
these supplemental requirements need to be taken into account by a 
public entity in ensuring program access. Also included in the 2010 
Standards are revised technical and scoping requirements for a number of 
elements that were addressed in the 1991 Standards. These revised 
requirements reflect incremental changes that were added either because 
of additional study by the Access Board or in order to harmonize 
requirements with the model codes.
    Although the program accessibility standard offers public entities a 
level of discretion in determining how to achieve program access, in the 
NPRM, the Department proposed an addition to Sec. 35.150 at 
Sec. 35.150(b)(2), denominated ``Safe Harbor,'' to clarify that ``[i]f a 
public entity has constructed or altered elements * * * in accordance 
with the specifications in either the 1991 Standards or the Uniform 
Federal Accessibility Standard, such public entity is not, solely 
because of the Department's adoption of the [2010] Standards, required 
to retrofit such elements to reflect incremental changes in the proposed 
standards.'' 73 FR 34466, 34505 (June 17, 2008). In these circumstances, 
the public entity would be entitled to a safe harbor for the already 
compliant elements until those elements are altered. The safe harbor 
does not negate a public entity's new construction or alteration 
obligations. A public entity must comply with the new construction or 
alteration requirements in effect at the time of the construction or 
alteration. With respect to existing facilities designed and constructed 
after January 26, 1992, but before the public entities are required to 
comply with the 2010 Standards, the rule is that any elements in these 
facilities that were not constructed in conformance with UFAS or the 
1991 Standards are in violation of the ADA and must be brought into 
compliance. If elements in existing facilities were altered after 
January 26, 1992, and those alterations were not made in conformance 
with the alteration requirements in effect at the time, then those 
alteration violations must be corrected. Section 35.150(b)(2) of the 
final rule specifies that until the compliance date for the Standards 
(18 months from the date of publication of the rule), facilities or 
elements covered by Sec. 35.151(a) or (b) that are noncompliant with 
either the 1991 Standards or UFAS shall be made accessible in accordance 
with the 1991 Standards, UFAS, or the 2010 Standards. Once the 
compliance date is reached, such noncompliant facilities or elements 
must be made accessible in accordance with the 2010 Standards.
    The Department received many comments on the safe harbor during the 
60-day public comment period. Advocacy groups were opposed to the safe 
harbor for compliant elements in existing facilities. These commenters 
objected to the Department's characterization of revisions between the 
1991 and 2010 Standards as incremental changes and assert that these 
revisions represent important advances in accessibility for individuals 
with disabilities. Commenters saw no basis for ``grandfathering'' 
outdated accessibility standards given the flexibility inherent in the 
program access standard. Others noted that title II's ``undue financial 
and administrative burdens'' and ``fundamental alteration'' defenses 
eliminate any need for further exemptions from compliance. Some 
commenters suggested that entities' past efforts to comply with the 
program access standard of 28 CFR 35.150(a) might appropriately be a 
factor in determining what is required in the future.
    Many public entities welcomed the Department's proposed safe harbor. 
These commenters contend that the safe harbor allows public entities 
needed time to evaluate program access in light of the 2010 Standards, 
and incorporate structural changes in a careful and thoughtful way 
toward increasing accessibility entity-wide. Many felt that it would be 
an ineffective use of public funds to update buildings to retrofit 
elements that had already been constructed or modified to Department-
issued and sanctioned specifications. One entity pointed to the 
``possibly budget-breaking'' nature of forcing compliance with 
incremental changes.
    The Department has reviewed and considered all information received 
during the 60-day public comment period. Upon review, the Department has 
decided to retain the title II safe harbor with minor revisions. The 
Department believes that the safe harbor provides an important measure 
of clarity and certainty for public entities as to the effect of the 
final rule with respect to existing facilities. Additionally, by 
providing a safe harbor for elements already in compliance with the 
technical and scoping specifications in the 1991 Standards or UFAS, 
funding that would otherwise be spent on incremental changes and 
repeated retrofitting is freed up to be used toward increased entity-
wide program access. Public entities may thereby

[[Page 637]]

make more efficient use of the resources available to them to ensure 
equal access to their services, programs, or activities for all 
individuals with disabilities.
    The safe harbor adopted with this final rule is a narrow one, as the 
Department recognizes that this approach may delay, in some cases, the 
increased accessibility that the revised requirements would provide, and 
that for some individuals with disabilities the impact may be 
significant. This safe harbor operates only with respect to elements 
that are in compliance with the scoping and technical specifications in 
either the 1991 Standards or UFAS; it does not apply to supplemental 
requirements, those elements for which scoping and technical 
specifications are first provided in the 2010 Standards.

                           Existing Facilities

    Existing play areas. The 1991 Standards do not include specific 
requirements for the design and construction of play areas. To meet 
program accessibility requirements where structural changes are 
necessary, public entities have been required to apply the general new 
construction and alteration standards to the greatest extent possible, 
including with respect to accessible parking, routes to the playground, 
playground equipment, and playground amenities (e.g., picnic tables and 
restrooms). The Access Board published final guidelines for play areas 
in October 2000. The guidelines extended beyond general playground 
access to establish specific scoping and technical requirements for 
ground-level and elevated play components, accessible routes connecting 
the components, accessible ground surfaces, and maintenance of those 
surfaces. These guidelines filled a void left by the 1991 Standards. 
They have been referenced in Federal playground construction and safety 
guidelines and have been used voluntarily when many play areas across 
the country have been altered or constructed.
    In adopting the 2004 ADAAG (which includes the 2000 play area 
guidelines), the Department acknowledges both the importance of 
integrated, full access to play areas for children and parents with 
disabilities, as well as the need to avoid placing an untenable fiscal 
burden on public entities. In the NPRM, the Department stated it was 
proposing two specific provisions to reduce the impact on existing 
facilities that undertake structural modifications pursuant to the 
program accessibility requirement. First, the Department proposed in 
Sec. 35.150(b)(4) that existing play areas that are not being altered 
would be permitted to meet a reduced scoping requirement with respect to 
their elevated play components. Elevated play components, which are 
found on most playgrounds, are the individual components that are linked 
together to form large-scale composite playground equipment (e.g., the 
monkey bars attached to the suspension bridge attached to the tube 
slide, etc.) The 2010 Standards provide that a play area that includes 
both ground level and elevated play components must ensure that a 
specified number of the ground-level play components and at least 50 
percent of the elevated play components are accessible.
    In the NPRM, the Department asked for specific public comment with 
regard to whether existing play areas should be permitted to substitute 
additional ground-level play components for the elevated play components 
they would otherwise have been required to make accessible. The 
Department also queried if there were other requirements applicable to 
play areas in the 2004 ADAAG for which the Department should consider 
exemptions or reduced scoping. Many commenters opposed permitting 
existing play areas to make such substitutions. Several commenters 
stated that the Access Board already completed significant negotiation 
and cost balancing in its rulemaking, so no additional exemptions should 
be added in either meeting program access requirements or in 
alterations. Others noted that elevated components are generally viewed 
as the more challenging and exciting by children, so making more ground 
than elevated play components accessible would result in discrimination 
against children with disabilities in general and older children with 
disabilities in particular. They argued that the ground components would 
be seen as equipment for younger children and children with 
disabilities, while elevated components would serve only older children 
without disabilities. In addition, commenters advised that including 
additional ground-level play components would require more accessible 
route and use zone surfacing, which would result in a higher cost burden 
than making elevated components accessible.
    The Department also asked for public comment on whether it would be 
appropriate for the Access Board to consider issuing guidelines for 
alterations to play and recreational facilities that would permit 
reduced scoping of accessible components or substitution of ground-level 
play components in lieu of elevated play components. Most commenters 
opposed any additional reductions in scoping and substitutions. These 
commenters uniformly stated that the Access Board completed sufficient 
negotiation during its rulemaking on its play area guidelines published 
in 2000 and that those guidelines consequently should stand as is. One 
commenter advocated reduced scoping and substitution of ground play 
components during alterations only for those play areas built prior to 
the finalization of the guidelines.
    The Department has considered the comments it has received and has 
determined that it is not necessary to provide a specific

[[Page 638]]

exemption to the scoping for components for existing play areas or to 
recommend reduced scoping or additional exemptions for alteration, and 
has deleted the reduced scoping proposed in NPRM Sec. 35.150(b)(4)(i) 
from the final rule. The Department believes that it is preferable for 
public entities to try to achieve compliance with the design standards 
established in the 2010 Standards. If this is not possible to achieve in 
an existing setting, the requirements for program accessibility provide 
enough flexibility to permit the covered entity to pursue alternative 
approaches to provide accessibility.
    Second, in Sec. 35.150(b)(5)(i) of the NPRM, the Department proposed 
language stating that existing play areas that are less than 1,000 
square feet in size and are not otherwise being altered, need not comply 
with the scoping and technical requirements for play areas in section 
240 of the 2004 ADAAG. The Department stated it selected this size based 
on the provision in section 1008.2.4.1 of the 2004 ADAAG, Exception 1, 
which permits play areas less than 1,000 square feet in size to provide 
accessible routes with a reduced clear width (44 inches instead of 60 
inches). In its 2000 regulatory assessment for the play area guidelines, 
the Access Board assumed that such ``small'' play areas represented only 
about 20 percent of the play areas located in public schools, and none 
of the play areas located in city and State parks (which the Board 
assumed were typically larger than 1,000 square feet).
    In the NPRM, the Department asked if existing play areas less than 
1,000 square feet should be exempt from the requirements applicable to 
play areas. The vast majority of commenters objected to such an 
exemption. One commenter stated that many localities that have parks 
this size are already making them accessible; many cited concerns that 
this would leave all or most public playgrounds in small towns 
inaccessible; and two commenters stated that, since many of New York 
City's parks are smaller than 1,000 square feet, only scattered larger 
parks in the various boroughs would be obliged to become accessible. 
Residents with disabilities would then have to travel substantial 
distances outside their own neighborhoods to find accessible 
playgrounds. Some commenters responded that this exemption should not 
apply in instances where the play area is the only one in the program, 
while others said that if a play area is exempt for reasons of size, but 
is the only one in the area, then it should have at least an accessible 
route and 50 percent of its ground-level play components accessible. One 
commenter supported the exemption as presented in the question.
    The Department is persuaded by these comments that it is 
inappropriate to exempt public play areas that are less than 1,000 
square feet in size. The Department believes that the factors used to 
determine program accessibility, including the limits established by the 
undue financial and administrative burdens defense, provide sufficient 
flexibility to public entities in determining how to make their existing 
play areas accessible. In those cases where a title II entity believes 
that present economic concerns make it an undue financial and 
administrative burden to immediately make its existing playgrounds 
accessible in order to comply with program accessibility requirements, 
then it may be reasonable for the entity to develop a multi-year plan to 
bring its facilities into compliance.
    In addition to requesting public comment about the specific sections 
in the NPRM, the Department also asked for public comment about the 
appropriateness of a general safe harbor for existing play areas and a 
safe harbor for public entities that have complied with State or local 
standards specific to play areas. In the almost 200 comments received on 
title II play areas, the vast majority of commenters strongly opposed 
all safe harbors, exemptions, and reductions in scoping. By contrast, 
one commenter advocated a safe harbor from compliance with the 2004 
ADAAG play area requirements along with reduced scoping and exemptions 
for both program accessibility and alterations; a second commenter 
advocated only the general safe harbor from compliance with the 
supplemental requirements.
    In response to the question of whether the Department should exempt 
public entities from specific compliance with the supplemental 
requirements for play areas, commenters stated that since no specific 
standards previously existed, play areas are more than a decade behind 
in providing full access for individuals with disabilities. When 
accessible play areas were created, public entities, acting in good 
faith, built them according to the 2004 ADAAG requirements; many 
equipment manufacturers also developed equipment to meet those 
guidelines. If existing playgrounds were exempted from compliance with 
the supplemental guidelines, commenters said, those entities would be 
held to a lesser standard and left with confusion, a sense of wasted 
resources, and federally condoned discrimination and segregation. 
Commenters also cited Federal agency settlement agreements on play areas 
that required compliance with the guidelines. Finally, several 
commenters observed that the provision of a safe harbor in this instance 
was invalid for two reasons: (1) The rationale for other safe harbors--
that entities took action to comply with the 1991 Standards and should 
not be further required to comply with new standards--does not exist; 
and (2) concerns about financial and administrative burdens are 
adequately addressed by program access requirements.

[[Page 639]]

    The question of whether accessibility of play areas should continue 
to be assessed on the basis of case-by-case evaluations elicited 
conflicting responses. One commenter asserted that there is no evidence 
that the case-by-case approach is not working and so it should continue 
until found to be inconsistent with the ADA's goals. Another commenter 
argued that case-by-case evaluations result in unpredictable outcomes 
which result in costly and long court actions. A third commenter, 
advocating against case-by-case evaluations, requested instead increased 
direction and scoping to define what constitutes an accessible play area 
program.
    The Department has considered all of the comments it received in 
response to its questions and has concluded that there is insufficient 
basis to establish a safe harbor from compliance with the supplemental 
guidelines. Thus, the Department has eliminated the proposed exemption 
contained in Sec. 35.150(b)(5)(i) of the NPRM for existing play areas 
that are less than 1,000 square feet. The Department believes that the 
factors used to determine program accessibility, including the limits 
established by the undue financial and administrative burdens defense, 
provide sufficient flexibility to public entities in determining how to 
make their existing play areas accessible.
    In the NPRM, the Department also asked whether there are State and 
local standards addressing play and recreation area accessibility and, 
to the extent that there are such standards, whether facilities 
currently governed by, and in compliance with, such State and local 
standards or codes should be subject to a safe harbor from compliance 
with applicable requirements in the 2004 ADAAG. The Department also 
asked whether it would be appropriate for the Access Board to consider 
the implementation of guidelines that would permit such a safe harbor 
with respect to play and recreation areas undertaking alterations. In 
response, commenters stated that few State or local governments have 
standards that address issues of accessibility in play areas, and one 
commenter organization said that it was unaware of any State or local 
standards written specifically for accessible play areas. One commenter 
observed from experience that most State and local governments were 
waiting for the Access Board guidelines to become enforceable standards 
as they had no standards themselves to follow. Another commenter offered 
that public entities across the United States already include in their 
playground construction bid specifications language that requires 
compliance with the Access Board's guidelines. A number of commenters 
advocated for the Access Board's guidelines to become comprehensive 
Federal standards that would complement any abbreviated State and local 
standards. One commenter, however, supported a safe harbor for play 
areas undergoing alterations if the areas currently comply with State or 
local standards.
    The Department is persuaded by these comments that there is 
insufficient basis to establish a safe harbor for program access or 
alterations for play areas built in compliance with State or local laws.
    In the NPRM, the Department asked whether ``a reasonable number, but 
at least one'' is a workable standard to determine the appropriate 
number of existing play areas that a public entity must make accessible. 
Many commenters objected to this standard, expressing concern that the 
phrase ``at least one'' would be interpreted as a maximum rather than a 
minimum requirement. Such commenters feared that this language would 
allow local governments to claim compliance by making just one public 
park accessible, regardless of the locality's size, budget, or other 
factors, and would support segregation, forcing children with 
disabilities to leave their neighborhoods to enjoy an accessible play 
area. While some commenters criticized what they viewed as a new 
analysis of program accessibility, others asserted that the requirements 
of program accessibility should be changed to address issues related to 
play areas that are not the main program in a facility but are essential 
components of a larger program (e.g., drop-in child care for a 
courthouse).
    The Department believes that those commenters who opposed the 
Department's ``reasonable number, but at least one'' standard for 
program accessibility misunderstood the Department's proposal. The 
Department did not intend any change in its longstanding interpretation 
of the program accessibility requirement. Program accessibility requires 
that each service, program, or activity be operated ``so that the 
service, program, or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities,'' 28 CFR 
35.150(a), subject to the undue financial and administrative burdens and 
fundamental alterations defenses provided in 28 CFR 35.150. In 
determining how many facilities of a multi-site program must be made 
accessible in order to make the overall program accessible, the standard 
has always been an assessment of what is reasonable under the 
circumstances to make the program readily accessible to and usable by 
individuals with disabilities, taking into account such factors as the 
size of the public entity, the particular program features offered at 
each site, the geographical distance between sites, the travel times to 
the sites, the number of sites, and availability of public 
transportation to the sites. In choosing among available methods for 
meeting this requirement, public entities are required to give priority 
``to those methods that offer services, programs, and activities * * * 
in the most integrated setting appropriate.'' 28 CFR 35.150(b)(1). As a

[[Page 640]]

result, in cases where the sites are widely dispersed with difficult 
travel access and where the program features offered vary widely between 
sites, program accessibility will require a larger number of facilities 
to be accessible in order to ensure program accessibility than where 
multiple sites are located in a concentrated area with easy travel 
access and uniformity in program offerings.
    Commenters responded positively to the Department's question in the 
NPRM whether the final rule should provide a list of factors that a 
public entity should use to determine how many of its existing play 
areas should be made accessible. Commenters also asserted strongly that 
the number of existing parks in the locality should not be the main 
factor. In addition to the Department's initial list--including number 
of play areas in an area, travel times or geographic distances between 
play areas, and the size of the public entity--commenters recommended 
such factors as availability of accessible pedestrian routes to the 
playgrounds, ready availability of accessible transportation, comparable 
amenities and services in and surrounding the play areas, size of the 
playgrounds, and sufficient variety in accessible play components within 
the playgrounds. The Department agrees that these factors should be 
considered, where appropriate, in any determination of whether program 
accessibility has been achieved. However, the Department has decided 
that it need not address these factors in the final rule itself because 
the range of factors that might need to be considered would vary 
depending upon the circumstances of particular public entities. The 
Department does not believe any list would be sufficiently comprehensive 
to cover every situation.
    The Department also requested public comment about whether there was 
a ``tipping point'' at which the costs of compliance with the new 
requirements for existing play areas would be so burdensome that the 
entity would simply shut down the playground. Commenters generally 
questioned the feasibility of determining a ``tipping point.'' No 
commenters offered a recommended ``tipping point.'' Moreover, most 
commenters stated that a ``tipping point'' is not a valid consideration 
for various reasons, including that ``tipping points'' will vary based 
upon each entity's budget and other mandates, and costs that are too 
high will be addressed by the limitations of the undue financial and 
administrative burdens defense in the program accessibility requirement 
and that a ``tipping point'' must be weighed against quality of life 
issues, which are difficult to quantify. The Department has decided that 
comments did not establish any clear ``tipping point'' and therefore 
provides no regulatory requirement in this area.
    Swimming pools. The 1991 Standards do not contain specific scoping 
or technical requirements for swimming pools. As a result, under the 
1991 title II regulation, title II entities that operate programs or 
activities that include swimming pools have not been required to provide 
an accessible route into those pools via a ramp or pool lift, although 
they are required to provide an accessible route to such pools. In 
addition, these entities continue to be subject to the general title II 
obligation to make their programs usable and accessible to persons with 
disabilities.
    The 2004 ADAAG includes specific technical and scoping requirements 
for new and altered swimming pools at sections 242 and 1009. In the 
NPRM, the Department sought to address the impact of these requirements 
on existing swimming pools. Section 242.2 of the 2004 ADAAG states that 
swimming pools must provide two accessible means of entry, except that 
swimming pools with less than 300 linear feet of swimming pool wall are 
only required to provide one accessible means of entry, provided that 
the accessible means of entry is either a swimming pool lift complying 
with section 1009.2 or a sloped entry complying with section 1009.3.
    In the NPRM, the Department proposed, in Sec. 35.150(b)(4)(ii), that 
for measures taken to comply with title II's program accessibility 
requirements, existing swimming pools with at least 300 linear feet of 
swimming pool wall would be required to provide only one accessible 
means of access that complied with section 1009.2 or section 1009.3 of 
the 2004 ADAAG.
    The Department specifically sought comment from public entities and 
individuals with disabilities on the question whether the Department 
should ``allow existing public entities to provide only one accessible 
means of access to swimming pools more than 300 linear feet long?'' The 
Department received significant public comment on this proposal.
    Most commenters opposed any reduction in the scoping required in the 
2004 ADAAG, citing the fact that swimming is a common therapeutic form 
of exercise for many individuals with disabilities. Many commenters also 
stated that the cost of a swimming pool lift, approximately $5,000, or 
other nonstructural options for pool access such as transfer steps, 
transfer walls, and transfer platforms, would not be an undue financial 
and administrative burden for most title II entities. Other commenters 
pointed out that the undue financial and administrative burdens defense 
already provided public entities with a means to reduce their scoping 
requirements. A few commenters cited safety concerns resulting from 
having just one accessible means of access, and stated that because 
pools typically have one ladder for every 75 linear feet of pool wall, 
they should

[[Page 641]]

have more than one accessible means of access. One commenter stated that 
construction costs for a public pool are approximately $4,000-4,500 per 
linear foot, making the cost of a pool with 300 linear feet of swimming 
pool wall approximately $1.2 million, compared to $5,000 for a pool 
lift. Some commenters did not oppose the one accessible means of access 
for larger pools so long as a lift was used. A few commenters approved 
of the one accessible means of access for larger pools. The Department 
also considered the American National Standard for Public Swimming 
Pools, ANSI/NSPI-1 2003, section 23 of which states that all pools 
should have at least two means of egress.
    In the NPRM, the Department also proposed at Sec. 35.150(b)(5)(ii) 
that existing swimming pools with less than 300 linear feet of swimming 
pool wall be exempted from having to comply with the provisions of 
section 242.2. The Department's NPRM requested public comment about the 
potential effect of this approach, asking whether existing swimming 
pools with less than 300 linear feet of pool wall should be exempt from 
the requirements applicable to swimming pools.
    Most commenters were opposed to this proposal. A number of 
commenters stated, based on the Access Board estimates that 90 percent 
of public high school pools, 40 percent of public park and community 
center pools, and 30 percent of public college and university pools have 
less than 300 linear feet of pool wall, that a large number of public 
swimming pools would fall under this exemption. Other commenters pointed 
to the existing undue financial and administrative burdens defenses as 
providing public entities with sufficient protection from excessive 
compliance costs. Few commenters supported this exemption.
    The Department also considered the fact that many existing swimming 
pools owned or operated by public entities are recipients of Federal 
financial assistance and therefore, are also subject to the program 
accessibility requirements of section 504 of the Rehabilitation Act.
    The Department has carefully considered all the information 
available to it including the comments submitted on these two proposed 
exemptions for swimming pools owned or operated by title II entities. 
The Department acknowledges that swimming provides important 
therapeutic, exercise, and social benefits for many individuals with 
disabilities and is persuaded that exemption of many publicly owned or 
operated pools from the 2010 Standards is neither appropriate nor 
necessary. The Department agrees with the commenters that title II 
already contains sufficient limitations on public entities' obligations 
to make their programs accessible. In particular, the Department agrees 
that those public entities that can demonstrate that making particular 
existing swimming pools accessible in accordance with the 2010 Standards 
would be an undue financial and administrative burden are sufficiently 
protected from excessive compliance costs. Thus, the Department has 
eliminated proposed Secs. 35.150(b)(4)(ii) and (b)(5)(ii) from the final 
rule.
    In addition, although the NPRM contained no specific proposed 
regulatory language on this issue, the NPRM sought comment on what would 
be a workable standard for determining the appropriate number of 
existing swimming pools that a public entity must make accessible for 
its program to be accessible. The Department asked whether a 
``reasonable number, but at least one'' would be a workable standard 
and, if not, whether there was a more appropriate specific standard. The 
Department also asked if, in the alternative, the Department should 
provide ``a list of factors that a public entity could use to determine 
how many of its existing swimming pools to make accessible, e.g., number 
of swimming pools, travel times or geographic distances between swimming 
pools, and the size of the public entity?''
    A number of commenters expressed concern over the ``reasonable 
number, but at least one'' standard and contended that, in reality, 
public entities would never provide more than one accessible existing 
pool, thus segregating individuals with disabilities. Other commenters 
felt that the existing program accessibility standard was sufficient. 
Still others suggested that one in every three existing pools should be 
made accessible. One commenter suggested that all public pools should be 
accessible. Some commenters proposed a list of factors to determine how 
many existing pools should be accessible. Those factors include the 
total number of pools, the location, size, and type of pools provided, 
transportation availability, and lessons and activities available. A 
number of commenters suggested that the standard should be based on 
geographic areas, since pools serve specific neighborhoods. One 
commenter argued that each pool should be examined individually to 
determine what can be done to improve its accessibility.
    The Department did not include any language in the final rule that 
specifies the ``reasonable number, but at least one'' standard for 
program access. However, the Department believes that its proposal was 
misunderstood by many commenters. Each service, program, or activity 
conducted by a public entity, when viewed in its entirety, must still be 
readily accessible to and usable by individuals with disabilities unless 
doing so would result in a fundamental alteration in the nature of the 
program or activity or in undue financial and administrative burdens. 
Determining which pool(s) to make accessible and whether more than one 
accessible pool is necessary to provide program access

[[Page 642]]

requires analysis of a number of factors, including, but not limited to, 
the size of the public entity, geographical distance between pool sites, 
whether more than one community is served by particular pools, travel 
times to the pools, the total number of pools, the availability of 
lessons and other programs and amenities at each pool, and the 
availability of public transportation to the pools. In many instances, 
making one existing swimming pool accessible will not be sufficient to 
ensure program accessibility. There may, however, be some circumstances 
where a small public entity can demonstrate that modifying one pool is 
sufficient to provide access to the public entity's program of providing 
public swimming pools. In all cases, a public entity must still 
demonstrate that its programs, including the program of providing public 
swimming pools, when viewed in their entirety, are accessible.
    Wading pools. The 1991 Standards do not address wading pools. 
Section 242.3 of the 2004 ADAAG requires newly constructed or altered 
wading pools to provide at least one sloped means of entry to the 
deepest part of the pool. The Department was concerned about the 
potential impact of this new requirement on existing wading pools. 
Therefore, in the NPRM, the Department sought comments on whether 
existing wading pools that are not being altered should be exempt from 
this requirement, asking, ``[w]hat site constraints exist in existing 
facilities that could make it difficult or infeasible to install a 
sloped entry in an existing wading pool? Should existing wading pools 
that are not being altered be exempt from the requirement to provide a 
sloped entry?'' 73 FR 34466, 34487-88 (June 17, 2008). Most commenters 
agreed that existing wading pools that are not being altered should be 
exempt from this requirement. Almost all commenters felt that during 
alterations a sloped entry should be provided unless it was technically 
infeasible to do so. Several commenters felt that the required clear 
deck space surrounding a pool provided sufficient space for a sloped 
entry during alterations.
    The Department also solicited comments on the possibility of 
exempting existing wading pools from the obligation to provide program 
accessibility. Most commenters argued that installing a sloped entry in 
an existing wading pool is not very feasible. Because covered entities 
are not required to undertake modifications that would be technically 
infeasible, the Department believes that the rule as drafted provides 
sufficient protection from unwarranted expense to the operators of small 
existing wading pools. Other existing wading pools, particularly those 
larger pools associated with facilities such as aquatic centers or water 
parks, must be assessed on a case-by-case basis. Therefore, the 
Department has not included such an exemption for wading pools in its 
final rule.
    Saunas and steam rooms. The 1991 Standards do not address saunas and 
steam rooms. Section 35.150(b)(5)(iii) of the NPRM exempted existing 
saunas and steam rooms that seat only two individuals and were not being 
altered from section 241 of the 2004 ADAAG, which requires an accessible 
turning space. Two commenters objected to this exemption as unnecessary, 
and argued that the cost of accessible saunas is not high and public 
entities still have an undue financial and administrative burdens 
defense.
    The Department considered these comments and has decided to 
eliminate the exemption for existing saunas and steam rooms that seat 
only two people. Such an exemption is unnecessary because covered 
entities will not be subject to program accessibility requirements to 
make existing saunas and steam rooms accessible if doing so constitutes 
an undue financial and administrative burden. The Department believes it 
is likely that because of their pre-fabricated forms, which include 
built-in seats, it would be either technically infeasible or an undue 
financial and administrative burden to modify such saunas and steams 
rooms. Consequently, a separate exemption for saunas and steam rooms 
would have been superfluous. Finally, employing the program 
accessibility standard for small saunas and steam rooms is consistent 
with the Department's decisions regarding the proposed exemptions for 
play areas and swimming pools.
    Several commenters also argued in favor of a specific exemption for 
existing spas. The Department notes that the technical infeasibility and 
program accessibility defenses are applicable equally to existing spas 
and declines to adopt such an exemption.
    Other recreational facilities. In the NPRM, the Department asked 
about a number of issues relating to recreation facilities such as team 
or player seating areas, areas of sport activity, exercise machines, 
boating facilities, fishing piers and platforms, and miniature golf 
courses. The Department's questions addressed the costs and benefits of 
applying the 2004 ADAAG to these spaces and facilities and the 
application of the specific technical requirements in the 2004 ADAAG for 
these spaces and facilities. The discussion of the comments received by 
the Department on these issues and the Department's response to those 
comments can be found in either the section of Appendix A to this rule 
entitled ``Other Issues,'' or in Appendix B to the final title III rule, 
which will be published today elsewhere in this volume.

            Section 35.151  New construction and alterations

    Section 35.151(a), which provided that those facilities 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

[[Page 643]]

by individuals with disabilities, is unchanged in the final rule, but 
has been redesignated as Sec. 35.151(a)(1). The Department has added a 
new section, designated as Sec. 35.151(a)(2), to provide that 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. This exception was contained in the title III regulation and 
in the 1991 Standards (applicable to both public accommodations and 
facilities used by public entities), so it has applied to any covered 
facility that was constructed under the 1991 Standards since the 
effective date of the ADA. The Department added it to the text of 
Sec. 35.151 to maintain consistency between the design requirements that 
apply under title II and those that apply under title III. The 
Department received no significant comments about this section.

                     Section 35.151(b)  Alterations

    The 1991 title II regulation does not contain any specific 
regulatory language comparable to the 1991 title III regulation relating 
to alterations and path of travel for covered entities, although the 
1991 Standards describe standards for path of travel during alterations 
to a primary function. See 28 CFR part 36, app A., section 4.1.6(a) 
(2009).
    The path of travel requirements contained in the title III 
regulation are based on section 303(a)(2) of the ADA, 42 U.S.C. 
12183(a)(2), which provides that when an entity undertakes an alteration 
to a place of public accommodation or commercial facility that affects 
or could affect the usability of or access to an area that contains a 
primary function, the entity shall ensure that, to the maximum extent 
feasible, the path of travel to the altered area--and the restrooms, 
telephones, and drinking fountains serving it--is readily accessible to 
and usable by individuals with disabilities, including individuals who 
use wheelchairs.
    The NPRM proposed amending Sec. 35.151 to add both the path of 
travel requirements and the exemption relating to barrier removal (as 
modified to apply to the program accessibility standard in title II) 
that are contained in the title III regulation to the title II 
regulation. Proposed Sec. 35.151(b)(4) contained the requirements for 
path of travel. Proposed Sec. 35.151(b)(2) stated that the path of 
travel requirements of Sec. 35.151(b)(4) shall not apply to measures 
taken solely to comply with program accessibility requirements.
    Where the specific requirements for path of travel apply under title 
III, they are limited to the extent that the cost and scope of 
alterations to the path of travel are disproportionate to the cost of 
the overall alteration, as determined under criteria established by the 
Attorney General.
    The Access Board included the path of travel requirement for 
alterations to facilities covered by the standards (other than those 
subject to the residential facilities standards) in section 202.4 of 
2004 ADAAG. Section 35.151(b)(4)(iii) of the final rule establishes the 
criteria for determining when the cost of alterations to the path of 
travel is ``disproportionate'' to the cost of the overall alteration.
    The NPRM also provided that areas such as supply storage rooms, 
employee lounges and locker rooms, janitorial closets, entrances, and 
corridors are not areas containing a primary function. Nor are restroom 
areas considered to contain a primary function unless the provision of 
restrooms is a primary purpose of the facility, such as at a highway 
rest stop. In that situation, a restroom would be considered to be an 
``area containing a primary function'' of the facility.
    The Department is not changing the requirements for program 
accessibility. As provided in Sec. 35.151(b)(2) of the regulation, the 
path of travel requirements of Sec. 35.151(b)(4) only apply to 
alterations undertaken solely for purposes other than to meet the 
program accessibility requirements. The exemption for the specific path 
of travel requirement was included in the regulation to ensure that the 
specific requirements and disproportionality exceptions for path of 
travel are not applied when areas are being altered to meet the title II 
program accessibility requirements in Sec. 35.150. In contrast, when 
areas are being altered to meet program accessibility requirements, they 
must comply with all of the applicable requirements referenced in 
section 202 of the 2010 Standards. A covered title II entity must 
provide accessibility to meet the requirements of Sec. 35.150 unless 
doing so is an undue financial and administrative burden in accordance 
with Sec. 35.150(a)(3). A covered title II entity may not use the 
disproportionality exception contained in the path of travel provisions 
as a defense to providing an accessible route as part of its obligation 
to provide program accessibility. The undue financial and administrative 
burden standard does not contain any bright line financial tests.
    The Department's proposed Sec. 35.151(b)(4) adopted the language now 
contained in Sec. 36.403 of the title III regulation, including the 
disproportionality limitation (i.e., alterations made to provide an 
accessible path of travel to the altered area would be deemed 
disproportionate to the overall alteration when the cost exceeds 20 
percent of the cost of the alteration to the primary function area). 
Proposed Sec. 35.151(b)(2) provided that the path of travel requirements 
do not apply to alterations undertaken solely to comply with program 
accessibility requirements.

[[Page 644]]

    The Department received a substantial number of comments objecting 
to the Department's adoption of the exemption for the path of travel 
requirements when alterations are undertaken solely to meet program 
accessibility requirements. These commenters argued that the Department 
had no statutory basis for providing this exemption nor does it serve 
any purpose. In addition, these commenters argued that the path of 
travel exemption has the effect of placing new limitations on the 
obligations to provide program access. A number of commenters argued 
that doing away with the path of travel requirement would render 
meaningless the concept of program access. They argued that just as the 
requirement to provide an accessible path of travel to an altered area 
(regardless of the reason for the alteration), including making the 
restrooms, telephones, and drinking fountains that serve the altered 
area accessible, is a necessary requirement in other alterations, it is 
equally necessary for alterations made to provide program access. 
Several commenters expressed concern that a readily accessible path of 
travel be available to ensure that persons with disabilities can get to 
the physical location in which programs are held. Otherwise, they will 
not be able to access the public entity's service, program, or activity. 
Such access is a cornerstone of the protections provided by the ADA. 
Another commenter argued that it would be a waste of money to create an 
accessible facility without having a way to get to the primary area. 
This commenter also stated that the International Building Code (IBC) 
requires the path of travel to a primary function area, up to 20 percent 
of the cost of the project. Another commenter opposed the exemption, 
stating that the trigger of an alteration is frequently the only time 
that a facility must update its facilities to comply with evolving 
accessibility standards.
    In the Department's view, the commenters objecting to the path of 
travel exemption contained in Sec. 35.151(b)(2) did not understand the 
intention behind the exemption. The exemption was not intended to 
eliminate any existing requirements related to accessibility for 
alterations undertaken in order to meet program access obligations under 
Sec. 35.149 and Sec. 35.150. Rather, it was intended to ensure that 
covered entities did not apply the path of travel requirements in lieu 
of the overarching requirements in this Subpart that apply when making a 
facility accessible in order to comply with program accessibility. The 
exemption was also intended to make it clear that the disproportionality 
test contained in the path of travel standards is not applicable in 
determining whether providing program access results in an undue 
financial and administration burden within the meaning of 
Sec. 35.150(a)(3). The exemption was also provided to maintain 
consistency with the title III path of travel exemption for barrier 
removal, see Sec. 36.304(d), in keeping with the Department's regulatory 
authority under title II of the ADA. See 42 U.S.C. 12134(b); see also H. 
R Rep. No. 101B485, pt. 2, at 84 (1990) (``The committee intends, 
however, that the forms of discrimination prohibited by section 202 be 
identical to those set out in the applicable provisions of titles I and 
III of this legislation.'').
    For title II entities, the path of travel requirements are of 
significance in those cases where an alteration is being made solely for 
reasons other than program accessibility. For example, a public entity 
might have six courtrooms in two existing buildings and might determine 
that only three of those courtrooms and the public use and common use 
areas serving those courtrooms in one building are needed to be made 
accessible in order to satisfy its program access obligations. When the 
public entity makes those courtrooms and the public use and common use 
areas serving them accessible in order to meet its program access 
obligations, it will have to comply with the 2010 Standards unless the 
public entity can demonstrate that full compliance would result in undue 
financial and administrative burdens as described in Sec. 35.150(a)(3). 
If such action would result in an undue financial or administrative 
burden, the public entity would nevertheless be required to take some 
other action that would not result in such an alteration or such burdens 
but would ensure that the benefits and services provided by the public 
entity are readily accessible to persons with disabilities. When the 
public entity is making modifications to meet its program access 
obligation, it may not rely on the path of travel exception under 
Sec. 35.151(b)(4), which limits the requirement to those alterations 
where the cost and scope of the alterations are not disproportionate to 
the cost and scope of the overall alterations. If the public entity 
later decides to alter courtrooms in the other building, for purposes of 
updating the facility (and, as previously stated, has met its program 
access obligations) then in that case, the public entity would have to 
comply with the path of travel requirements in the 2010 Standards 
subject to the disproportionality exception set forth in 
Sec. 35.151(b)(4).
    The Department has slightly revised proposed Sec. 35.151(b)(2) to 
make it clearer that the path of travel requirements only apply when 
alterations are undertaken solely for purposes other than program 
accessibility.

        Section 35.151(b)(4)(ii)(C)  Path of travel--safe harbor

    In Sec. 35.151(b)(4)(ii)(C) of the NPRM, the Department included a 
provision that stated

[[Page 645]]

that public entities that have brought required elements of path of 
travel into compliance with the 1991 Standards are not required to 
retrofit those elements in order to reflect incremental changes in the 
2010 Standards solely because of an alteration to a primary function 
area that is served by that path of travel. In these circumstances, the 
public entity is entitled to a safe harbor and is only required to 
modify elements to comply with the 2010 Standards if the public entity 
is planning an alteration to the element.
    A substantial number of commenters objected to the Department's 
imposition of a safe harbor for alterations to facilities of public 
entities that comply with the 1991 Standards. These commenters argued 
that if a public entity is already in the process of altering its 
facility, there should be a legal requirement that individuals with 
disabilities be entitled to increased accessibility by using the 2010 
Standards for path of travel work. They also stated that they did not 
believe there was a statutory basis for ``grandfathering'' facilities 
that comply with the 1991 Standards.
    The ADA is silent on the issue of ``grandfathering'' or establishing 
a safe harbor for measuring compliance in situations where the covered 
entity is not undertaking a planned alteration to specific building 
elements. The ADA delegates to the Attorney General the responsibility 
for issuing regulations that define the parameters of covered entities' 
obligations when the statute does not directly address an issue. This 
regulation implements that delegation of authority.
    One commenter proposed that a previous record of barrier removal be 
one of the factors in determining, prospectively, what renders a 
facility, when viewed in its entirety, usable and accessible to persons 
with disabilities. Another commenter asked the Department to clarify, at 
a minimum, that to the extent compliance with the 1991 Standards does 
not provide program access, particularly with regard to areas not 
specifically addressed in the 1991 Standards, the safe harbor will not 
operate to relieve an entity of its obligations to provide program 
access.
    One commenter supported the proposal to add a safe harbor for path 
of travel.
    The final rule retains the safe harbor for required elements of a 
path of travel to altered primary function areas for public entities 
that have already complied with the 1991 Standards with respect to those 
required elements. The Department believes that this safe harbor strikes 
an appropriate balance between ensuring that individuals with 
disabilities are provided access to buildings and facilities and 
potential financial burdens on existing public entities that are 
undertaking alterations subject to the 2010 Standards. This safe harbor 
is not a blanket exemption for facilities. If a public entity undertakes 
an alteration to a primary function area, only the required elements of 
a path of travel to that area that already comply with the 1991 
Standards are subject to the safe harbor. If a public entity undertakes 
an alteration to a primary function area and the required elements of a 
path of travel to the altered area do not comply with the 1991 
Standards, then the public entity must bring those elements into 
compliance with the 2010 Standards.

        Section 35.151(b)(3)  Alterations to historic facilities

    The final rule renumbers the requirements for alterations to 
historic facilities enumerated in current Sec. 35.151(d)(1) and (2) as 
Sec. 35.151(b)(3)(i) and (ii). Currently, the regulation provides that 
alterations to historic facilities shall comply to the maximum extent 
feasible with section 4.1.7 of UFAS or section 4.1.7 of the 1991 
Standards. See 28 CFR 35.151(d)(1). Section 35.151(b)(3)(i) of the final 
rule eliminates the option of using UFAS for alterations that commence 
on or after March 15, 2012. The substantive requirement in current 
Sec. 35.151(d)(2)--that alternative methods of access shall be provided 
pursuant to the requirements of Sec. 35.150 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--is contained in Sec. 35.151(b)(3)(ii).

  Section 35.151(c)  Accessibility standards for new construction and 
                               alterations

    Section 35.151(c) of the NPRM proposed to adopt ADA Chapter 1, ADA 
Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities 
Act and Architectural Barriers Act Guidelines (2004 ADAAG) into the ADA 
Standards for Accessible Design (2010 Standards). As the Department has 
noted, the development of these standards represents the culmination of 
a lengthy effort by the Access Board to update its guidelines, to make 
the Federal guidelines consistent to the extent permitted by law, and to 
harmonize the Federal requirements with the private sector model codes 
that form the basis of many State and local building code requirements. 
The full text of the 2010 Standards is available for public review on 
the ADA Home Page (http://www.ada.gov) and on the Access Board's Web 
site (http://www.access-board.gov/gs.htm) (last visited June 24, 2010). 
The Access Board site also includes an extensive discussion of the 
development of the 2004 ADA/ABA Guidelines, and a detailed comparison of 
the 1991 Standards, the 2004 ADA/ABA Guidelines, and the 2003 
International Building Code.

[[Page 646]]

    Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney 
General to issue regulations to implement title II that are consistent 
with the minimum guidelines published by the Access Board. The Attorney 
General (or his designee) is a statutory member of the Access Board (see 
29 U.S.C. 792(a)(1)(B(vii)) and was involved in the development of the 
2004 ADAAG. Nevertheless, during the process of drafting the NPRM, the 
Department reviewed the 2004 ADAAG to determine if additional regulatory 
provisions were necessary. As a result of this review, the Department 
decided to propose new sections, which were contained in Sec. 35.151(e)-
(h) of the NPRM, to clarify how the Department will apply the proposed 
standards to social service center establishments, housing at places of 
education, assembly areas, and medical care facilities. Each of these 
provisions is discussed below.
    Congress anticipated that there would be a need for close 
coordination of the ADA building requirements with State and local 
building code requirements. Therefore, the ADA authorized the Attorney 
General to establish an ADA code certification process under title III 
of the ADA. That process is addressed in 28 CFR part 36, subpart F. 
Revisions to that process are addressed in the regulation amending the 
title III regulation published elsewhere in the Federal Register today. 
In addition, the Department operates an extensive technical assistance 
program. The Department anticipates that once this rule is final, 
revised technical assistance material will be issued to provide guidance 
about its implementation.
    Section 35.151(c) of the 1991 title II regulation establishes two 
standards for accessible new construction and alteration. Under 
paragraph (c), design, construction, or alteration of facilities in 
conformance with UFAS or with the 1991 Standards (which, at the time of 
the publication of the rule were also referred to as the Americans with 
Disabilities Act Accessibility Guidelines for Buildings and Facilities 
(1991 ADAAG)) is deemed to comply with the requirements of this section 
with respect to those facilities (except that if the 1991 Standards are 
chosen, the elevator exemption does not apply). The 1991 Standards were 
based on the 1991 ADAAG, which was initially developed by the Access 
Board as guidelines for the accessibility of buildings and facilities 
that are subject to title III. The Department adopted the 1991 ADAAG as 
the standards for places of public accommodation and commercial 
facilities under title III of the ADA and it was published as Appendix A 
to the Department's regulation implementing title III, 56 FR 35592 (July 
26, 1991) as amended, 58 FR 17522 (April 5, 1993), and as further 
amended, 59 FR 2675 (Jan. 18, 1994), codified at 28 CFR part 36 (2009).
    Section 35.151(c) of the final rule adopts the 2010 Standards and 
establishes the compliance date and triggering events for the 
application of those standards to both new construction and alterations. 
Appendix B of the final title III rule (Analysis and Commentary on the 
2010 ADA Standards for Accessible Design) (which will be published today 
elsewhere in this volume and codified as Appendix B to 28 CFR part 36) 
provides a description of the major changes in the 2010 Standards (as 
compared to the 1991 ADAAG) and a discussion of the public comments that 
the Department received on specific sections of the 2004 ADAAG. A number 
of commenters asked the Department to revise certain provisions in the 
2004 ADAAG in a manner that would reduce either the required scoping or 
specific technical accessibility requirements. As previously stated, 
although the ADA requires the enforceable standards issued by the 
Department under title II and title III to be consistent with the 
minimum guidelines published by the Access Board, it is the sole 
responsibility of the Attorney General to promulgate standards and to 
interpret and enforce those standards. The guidelines adopted by the 
Access Board are ``minimum guidelines.'' 42 U.S.C. 12186(c).
    Compliance date. When the ADA was enacted, the effective dates for 
various provisions were delayed in order to provide time for covered 
entities to become familiar with their new obligations. Titles II and 
III of the ADA generally became effective on January 26, 1992, six 
months after the regulations were published. See 42 U.S.C. 12131 note; 
42 U.S.C. 12181 note. New construction under title II and alterations 
under either title II or title III had to comply with the design 
standards on that date. See 42 U.S.C. 12183(a)(1). For new construction 
under title III, the requirements applied to facilities designed and 
constructed for first occupancy after January 26, 1993--18 months after 
the 1991 Standards were published by the Department. In the NPRM, the 
Department proposed to amend Sec. 35.151(c)(1) by revising the current 
language to limit the application of the 1991 standards to facilities on 
which construction commences within six months of the final rule 
adopting revised standards. The NPRM also proposed adding paragraph 
(c)(2) to Sec. 35.151, which states that facilities on which 
construction commences on or after the date six months following the 
effective date of the final rule shall comply with the proposed 
standards adopted by that rule.
    As a result, under the NPRM, for the first six months after the 
effective date, public entities would have the option to use either UFAS 
or the 1991 Standards and be in compliance with title II. Six months 
after the effective date of the rule, the new standards would take 
effect. At that time, construction in accordance with UFAS would no 
longer satisfy ADA requirements. The Department

[[Page 647]]

stated that in order to avoid placing the burden of complying with both 
standards on public entities, the Department would coordinate a 
government-wide effort to revise Federal agencies' section 504 
regulations to adopt the 2004 ADAAG as the standard for new construction 
and alterations.
    The purpose of the proposed six-month delay in requiring compliance 
with the 2010 Standards was to allow covered entities a reasonable grace 
period to transition between the existing and the proposed standards. 
For that reason, if a title II entity preferred to use the 2010 
Standards as the standard for new construction or alterations commenced 
within the six-month period after the effective date of the final rule, 
such entity would be considered in compliance with title II of the ADA.
    The Department received a number of comments about the proposed six-
month effective date for the title II regulation that were similar in 
content to those received on this issue for the proposed title III 
regulation. Several commenters supported the six-month effective date. 
One commenter stated that any revisions to its State building code 
becomes effective six months after adoption and that this has worked 
well. In addition, this commenter stated that since 2004 ADAAG is 
similar to IBC 2006 and ICC/ANSI A117.1-2003, the transition should be 
easy. By contrast, another commenter advocated for a minimum 12-month 
effective date, arguing that a shorter effective date could cause 
substantial economic hardships to many cities and towns because of the 
lengthy lead time necessary for construction projects. This commenter 
was concerned that a six-month effective date could lead to projects 
having to be completely redrawn, rebid, and rescheduled to ensure 
compliance with the new standards. Other commenters advocated that the 
effective date be extended to at least 18 months after the publication 
of the rule. One of these commenters expressed concern that the kinds of 
bureaucratic organizations subject to the title II regulations lack the 
internal resources to quickly evaluate the regulatory changes, determine 
whether they are currently compliant with the 1991 standards, and 
determine what they have to do to comply with the new standards. The 
other commenter argued that 18 months is the minimum amount of time 
necessary to ensure that projects that have already been designed and 
approved do not have to undergo costly design revisions at taxpayer 
expense.
    The Department is persuaded by the concerns raised by commenters for 
both the title II and III regulations that the six-month compliance date 
proposed in the NPRM for application of the 2010 Standards may be too 
short for certain projects that are already in the midst of the design 
and permitting process. The Department has determined that for new 
construction and alterations, compliance with the 2010 Standards will 
not be required until 18 months from the date the final rule is 
published. Until the time compliance with the 2010 Standards is 
required, public entities will have the option of complying with the 
2010 Standards, the UFAS, or the 1991 Standards. However, public 
entities that choose to comply with the 2010 Standards in lieu of the 
1991 Standards or UFAS prior to the compliance date described in this 
rule must choose one of the three standards, and may not rely on some of 
the requirements contained in one standard and some of the requirements 
contained in the other standards.
    Triggering event. In Sec. 35.151(c)(2) of the NPRM, the Department 
proposed that the commencement of construction serve as the triggering 
event for applying the proposed standards to new construction and 
alterations under title II. This language is consistent with the 
triggering event set forth in Sec. 35.151(a) of the 1991 title II 
regulation. The Department received only four comments on this section 
of the title II rule. Three commenters supported the use of ``start of 
construction'' as the triggering event. One commenter argued that the 
Department should use the ``last building permit or start of physical 
construction, whichever comes first,'' stating that ``altering a design 
after a building permit has been issued can be an undue burden.''
    After considering these comments, the Department has decided to 
continue to use the commencement of physical construction as the 
triggering event for application of the 2010 Standards for entities 
covered by title II. The Department has also added clarifying language 
at Sec. 35.151(c)(4) to the regulation to make it clear that the date of 
ceremonial groundbreaking or the date a structure is razed to make it 
possible for construction of a facility to take place does not qualify 
as the commencement of physical construction.
    Section 234 of the 2010 Standards provides accessibility guidelines 
for newly designed and constructed amusement rides. The amusement ride 
provisions do not provide a ``triggering event'' for new construction or 
alteration of an amusement ride. An industry commenter requested that 
the triggering event of ``first use,'' as noted in the Advisory note to 
section 234.1 of the 2004 ADAAG, be included in the final rule. The 
Advisory note provides that ``[a] custom designed and constructed ride 
is new upon its first use, which is the first time amusement park 
patrons take the ride.'' The Department declines to treat amusement 
rides differently than other types of new construction and alterations. 
Under the final rule, they are subject to Sec. 35.151(c). Thus, newly 
constructed and altered amusement rides shall comply with the 2010 
Standards if the start of physical construction or the alteration is on 
or after 18 months from the publication date of this

[[Page 648]]

rule. The Department also notes that section 234.4.2 of the 2010 
Standards only applies where the structural or operational 
characteristics of an amusement ride are altered. It does not apply in 
cases where the only change to a ride is the theme.
    Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec. 35.150(b)(2) has no effect on new 
or altered elements in existing facilities that were subject to the 1991 
Standards or UFAS on the date that they were constructed or altered, but 
do not comply with the technical and scoping specifications for those 
elements in the 1991 Standards or UFAS. Section 35.151(c)(5) of the 
final rule sets forth the rules for noncompliant new construction or 
alterations in facilities that were subject to the requirements of this 
part. Under those provisions, noncomplying new construction and 
alterations constructed or altered after the effective date of the 
applicable ADA requirements and before March 15, 2012 shall, before 
March 15, 2012, be made accessible in accordance with either the 1991 
Standards, UFAS, or the 2010 Standards. Noncomplying new construction 
and alterations constructed or altered after the effective date of the 
applicable ADA requirements and before March 15, 2012, shall, on or 
after March 15, 2012 be made accessible in accordance with the 2010 
Standards.

                  Section 35.151(d)  Scope of coverage

    In the NPRM, the Department proposed a new provision, 
Sec. 35.151(d), to clarify that the requirements established by 
Sec. 35.151, including those contained in the 2004 ADAAG, prescribe what 
is necessary to ensure that buildings and facilities, including fixed or 
built-in elements in new or altered facilities, are accessible to 
individuals with disabilities. Once the construction or alteration of a 
facility has been completed, all other aspects of programs, services, 
and activities conducted in that facility are subject to the operational 
requirements established in this final rule. Although the Department may 
use the requirements of the 2010 Standards as a guide to determining 
when and how to make equipment and furnishings accessible, those 
determinations fall within the discretionary authority of the 
Department.
    The Department also wishes to clarify that the advisory notes, 
appendix notes, and figures that accompany the 1991 and 2010 Standards 
do not establish separately enforceable requirements unless specifically 
stated otherwise in the text of the standards. This clarification has 
been made to address concerns expressed by ANPRM commenters who 
mistakenly believed that the advisory notes in the 2004 ADAAG 
established requirements beyond those established in the text of the 
guidelines (e.g., Advisory 504.4 suggests, but does not require, that 
covered entities provide visual contrast on stair tread nosing to make 
them more visible to individuals with low vision). The Department 
received no significant comments on this section and it is unchanged in 
the final rule.
    Definitions of residential facilities and transient lodging. The 
2010 Standards add a definition of ``residential dwelling unit'' and 
modify the current definition of ``transient lodging.'' Under section 
106.5 of the 2010 Standards, ``residential dwelling unit'' is defined as 
``[a] unit intended to be used as a residence, that is primarily long-
term in nature'' and does not include transient lodging, inpatient 
medical care, licensed long-term care, and detention or correctional 
facilities. Additionally, section 106.5 of the 2010 Standards changes 
the definition of ``transient lodging'' to a building or facility 
``containing one or more guest room(s) for sleeping that provides 
accommodations that are primarily short-term in nature.'' ``Transient 
lodging'' does not include residential dwelling units intended to be 
used as a residence. The references to ``dwelling units'' and 
``dormitories'' that are in the definition of the 1991 Standards are 
omitted from the 2010 Standards.
    The comments about the application of transient lodging or 
residential standards to social service center establishments, and 
housing at a place of education are addressed separately below. The 
Department received one additional comment on this issue from an 
organization representing emergency response personnel seeking an 
exemption from the transient lodging accessibility requirements for crew 
quarters and common use areas serving those crew quarters (e.g., locker 
rooms, exercise rooms, day room) that are used exclusively by on-duty 
emergency response personnel and that are not used for any public 
purpose. The commenter argued that since emergency response personnel 
must meet certain physical qualifications that have the effect of 
exempting persons with mobility disabilities, there is no need to build 
crew quarters and common use areas serving those crew quarters to meet 
the 2004 ADAAG. In addition, the commenter argued that applying the 
transient lodging standards would impose significant costs and create 
living space that is less usable for most emergency response personnel.
    The ADA does not exempt spaces because of a belief or policy that 
excludes persons with disabilities from certain work. However, the 
Department believes that crew quarters that are used exclusively as a 
residence by emergency response personnel and the kitchens and bathrooms 
exclusively serving those quarters are more like residential dwelling 
units and are therefore covered by the residential dwelling standards in 
the 2010

[[Page 649]]

Standards, not the transient lodging standards. The residential dwelling 
standards address most of the concerns of the commenter. For example, 
the commenter was concerned that sinks in kitchens and lavatories in 
bathrooms that are accessible under the transient lodging standards 
would be too low to be comfortably used by emergency response personnel. 
The residential dwelling standards allow such features to be adaptable 
so that they would not have to be lowered until accessibility was 
needed. Similarly, grab bars and shower seats would not have to be 
installed at the time of construction provided that reinforcement has 
been installed in walls and located so as to permit their installation 
at a later date.

         Section 35.151(e)  Social service center establishments

    In the NPRM, the Department proposed a new Sec. 35.151(e) requiring 
group homes, halfway houses, shelters, or similar social service center 
establishments that provide temporary sleeping accommodations or 
residential dwelling units to comply with the provisions of the 2004 
ADAAG that apply to residential facilities, including, but not limited 
to, the provisions in sections 233 and 809.
    The NPRM explained that this proposal was based on two important 
changes in the 2004 ADAAG. First, for the first time, residential 
dwelling units are explicitly covered in the 2004 ADAAG in section 233. 
Second, the 2004 ADAAG eliminates the language contained in the 1991 
Standards addressing scoping and technical requirements for homeless 
shelters, group homes, and similar social service center establishments. 
Currently, such establishments are covered in section 9.5 of the 
transient lodging section of the 1991 Standards. The deletion of section 
9.5 creates an ambiguity of coverage that must be addressed.
    The NPRM explained the Department's belief that transferring 
coverage of social service center establishments from the transient 
lodging standards to the residential facilities standards would 
alleviate conflicting requirements for social service center providers. 
The Department believes that a substantial percentage of social service 
center establishments are recipients of Federal financial assistance 
from the Department of Housing and Urban Development (HUD). The 
Department of Health and Human Services (HHS) also provides financial 
assistance for the operation of shelters through the Administration for 
Children and Families programs. As such, these establishments are 
covered both by the ADA and section 504 of the Rehabilitation Act. UFAS 
is currently the design standard for new construction and alterations 
for entities subject to section 504. The two design standards for 
accessibility--the 1991 Standards and UFAS--have confronted many social 
service providers with separate, and sometimes conflicting, requirements 
for design and construction of facilities. To resolve these conflicts, 
the residential facilities standards in the 2004 ADAAG have been 
coordinated with the section 504 requirements. The transient lodging 
standards, however, are not similarly coordinated. The deletion of 
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two 
options: (1) Require coverage under the transient lodging standards, and 
subject such facilities to separate, conflicting requirements for design 
and construction; or (2) require coverage under the residential 
facilities standards, which would harmonize the regulatory requirements 
under the ADA and section 504. The Department chose the option that 
harmonizes the regulatory requirements: coverage under the residential 
facilities standards.
    In the NPRM, the Department expressed concern that the residential 
facilities standards do not include a requirement for clear floor space 
next to beds similar to the requirement in the transient lodging 
standards and as a result, the Department proposed adding a provision 
that would require certain social service center establishments that 
provide sleeping rooms with more than 25 beds to ensure that a minimum 
of 5 percent of the beds have clear floor space in accordance with 
section 806.2.3 or of the 2004 ADAAG.
    In the NPRM, the Department requested information from providers who 
operate homeless shelters, transient group homes, halfway houses, and 
other social service center establishments, and from the clients of 
these facilities who would be affected by this proposed change, asking, 
``[t]o what extent have conflicts between the ADA and section 504 
affected these facilities? What would be the effect of applying the 
residential dwelling unit requirements to these facilities, rather than 
the requirements for transient lodging guest rooms?'' 73 FR 34466, 34491 
(June 17, 2008).
    Many of the commenters supported applying the residential facilities 
requirements to social service center establishments, stating that even 
though the residential facilities requirements are less demanding in 
some instances, the existence of one clear standard will result in an 
overall increased level of accessibility by eliminating the confusion 
and inaction that are sometimes caused by the current existence of 
multiple requirements. One commenter also stated that ``it makes sense 
to treat social service center establishments like residential 
facilities because this is how these establishments function in 
practice.''
    Two commenters agreed with applying the residential facilities 
requirements to social service center establishments but recommended 
adding a requirement for various

[[Page 650]]

bathing options, such as a roll-in shower (which is not required under 
the residential standards).
    One commenter objected to the change and asked the Department to 
require that social service center establishments continue to comply 
with the transient lodging standards. One commenter stated that it did 
not agree that the standards for residential coverage would serve 
persons with disabilities as well as the 1991 transient lodging 
standards. This commenter expressed concern that the Department had 
eliminated guidance for social service agencies and that the rule should 
be put on hold until those safeguards are restored. Another commenter 
argued that the rule that would provide the greatest access for persons 
with disabilities should prevail.
    Several commenters argued for the application of the transient 
lodging standards to all social service center establishments except 
those that were ``intended as a person's place of abode,'' referencing 
the Department's question related to the definition of ``place of 
lodging'' in the title III NPRM. One commenter stated that the 
International Building Code requires accessible units in all transient 
facilities. The commenter expressed concern that group homes should be 
built to be accessible, rather than adaptable.
    The Department continues to be concerned about alleviating the 
challenges for social service providers that are also subject to section 
504 and would likely be subject to conflicting requirements if the 
transient lodging standards were applied. Thus, the Department has 
retained the requirement that social service center establishments 
comply with the residential dwelling standards. The Department believes, 
however, that social service center establishments that provide 
emergency shelter to large transient populations should be able to 
provide bathing facilities that are accessible to persons with mobility 
disabilities who need roll-in showers. Because of the transient nature 
of the population of these large shelters, it will not be feasible to 
modify bathing facilities in a timely manner when faced with a need to 
provide a roll-in shower with a seat when requested by an overnight 
visitor. As a result, the Department has added a requirement that social 
service center establishments with sleeping accommodations for more than 
50 individuals must provide at least one roll-in shower with a seat that 
complies with the relevant provisions of section 608 of the 2010 
Standards. Transfer-type showers are not permitted in lieu of a roll-in 
shower with a seat and the exceptions in sections 608.3 and 608.4 for 
residential dwelling units are not permitted. When separate shower 
facilities are provided for men and for women, at least one roll-in 
shower shall be provided for each group. This supplemental requirement 
to the residential facilities standards is in addition to the 
supplemental requirement that was proposed in the NPRM for clear floor 
space in sleeping rooms with more than 25 beds.
    The Department also notes that while dwelling units at some social 
service center establishments are also subject to the Fair Housing Act 
(FHAct) design and construction requirements that require certain 
features of adaptable and accessible design, FHAct units do not provide 
the same level of accessibility that is required for residential 
facilities under the 2010 Standards. The FHAct requirements, where also 
applicable, should not be considered a substitute for the 2010 
Standards. Rather, the 2010 Standards must be followed in addition to 
the FHAct requirements.
    The Department also notes that whereas the NPRM used the term 
``social service establishment,'' the final rule uses the term ``social 
service center establishment.'' The Department has made this editorial 
change so that the final rule is consistent with the terminology used in 
the ADA. See 42 U.S.C. 12181(7)(k).

           Section 35.151(f)  Housing at a place of education

    The Department of Justice and the Department of Education share 
responsibility for regulation and enforcement of the ADA in 
postsecondary educational settings, including its requirements for 
architectural features. In addition, the Department of Housing and Urban 
Development (HUD) has enforcement responsibility for housing subject to 
title II of the ADA. Housing facilities in educational settings range 
from traditional residence halls and dormitories to apartment or 
townhouse-style residences. In addition to title II of the ADA, public 
universities and schools that receive Federal financial assistance are 
also subject to section 504, which contains its own accessibility 
requirements through the application of UFAS. Residential housing in an 
educational setting is also covered by the FHAct, which requires newly 
constructed multifamily housing to include certain features of 
accessible and adaptable design. Covered entities subject to the ADA 
must always be aware of, and comply with, any other Federal statutes or 
regulations that govern the operation of residential properties.
    Although the 1991 Standards mention dormitories as a form of 
transient lodging, they do not specifically address how the ADA applies 
to dormitories or other types of residential housing provided in an 
educational setting. The 1991 Standards also do not contain any specific 
provisions for residential facilities, allowing covered entities to 
elect to follow the residential standards contained in UFAS. Although 
the 2004 ADAAG contains provisions for both residential facilities and 
transient lodging, the guidelines do not indicate which requirements 
apply to housing provided in an educational setting, leaving it

[[Page 651]]

to the adopting agencies to make that choice. After evaluating both sets 
of standards, the Department concluded that the benefits of applying the 
transient lodging standards outweighed the benefits of applying the 
residential facilities standards. Consequently, in the NPRM, the 
Department proposed a new Sec. 35.151(f) that provided that residence 
halls or dormitories operated by or on behalf of places of education 
shall comply with the provisions of the proposed standards for transient 
lodging, including, but not limited to, the provisions in sections 224 
and 806 of the 2004 ADAAG.
    Both public and private school housing facilities have varied 
characteristics. College and university housing facilities typically 
provide housing for up to one academic year, but may be closed during 
school vacation periods. In the summer, they are often used for short-
term stays of one to three days, a week, or several months. Graduate and 
faculty housing is often provided year-round in the form of apartments, 
which may serve individuals or families with children. These housing 
facilities are diverse in their layout. Some are double-occupancy rooms 
with a shared toilet and bathing room, which may be inside or outside 
the unit. Others may contain cluster, suite, or group arrangements where 
several rooms are located inside a defined unit with bathing, kitchen, 
and similar common facilities. In some cases, these suites are 
indistinguishable in features from traditional apartments. Universities 
may build their own housing facilities or enter into agreements with 
private developers to build, own, or lease housing to the educational 
institution or to its students. Academic housing may be located on the 
campus of the university or may be located in nearby neighborhoods.
    Throughout the school year and the summer, academic housing can 
become program areas in which small groups meet, receptions and 
educational sessions are held, and social activities occur. The ability 
to move between rooms--both accessible rooms and standard rooms--in 
order to socialize, to study, and to use all public use and common use 
areas is an essential part of having access to these educational 
programs and activities. Academic housing is also used for short-term 
transient educational programs during the time students are not in 
regular residence and may be rented out to transient visitors in a 
manner similar to a hotel for special university functions.
    The Department was concerned that applying the new construction 
requirements for residential facilities to educational housing 
facilities could hinder access to educational programs for students with 
disabilities. Elevators are not generally required under the 2004 ADAAG 
residential facilities standards unless they are needed to provide an 
accessible route from accessible units to public use and common use 
areas, while under the 2004 ADAAG as it applies to other types of 
facilities, multistory public facilities must have elevators unless they 
meet very specific exceptions. In addition, the residential facilities 
standards do not require accessible roll-in showers in bathrooms, while 
the transient lodging requirements require some of the accessible units 
to be served by bathrooms with roll-in showers. The transient lodging 
standards also require that a greater number of units have accessible 
features for persons with communication disabilities. The transient 
lodging standards provide for installation of the required accessible 
features so that they are available immediately, but the residential 
facilities standards allow for certain features of the unit to be 
adaptable. For example, only reinforcements for grab bars need to be 
provided in residential dwellings, but the actual grab bars must be 
installed under the transient lodging standards. By contrast, the 
residential facilities standards do require certain features that 
provide greater accessibility within units, such as more usable 
kitchens, and an accessible route throughout the dwelling. The 
residential facilities standards also require 5 percent of the units to 
be accessible to persons with mobility disabilities, which is a 
continuation of the same scoping that is currently required under UFAS, 
and is therefore applicable to any educational institution that is 
covered by section 504. The transient lodging standards require a lower 
percentage of accessible sleeping rooms for facilities with large 
numbers of rooms than is required by UFAS. For example, if a dormitory 
had 150 rooms, the transient lodging standards would require seven 
accessible rooms while the residential standards would require eight. In 
a large dormitory with 500 rooms, the transient lodging standards would 
require 13 accessible rooms and the residential facilities standards 
would require 25. There are other differences between the two sets of 
standards as well with respect to requirements for accessible windows, 
alterations, kitchens, accessible route throughout a unit, and clear 
floor space in bathrooms allowing for a side transfer.
    In the NPRM, the Department requested public comment on how to scope 
educational housing facilities, asking, ``[w]ould the residential 
facility requirements or the transient lodging requirements in the 2004 
ADAAG be more appropriate for housing at places of education? How would 
the different requirements affect the cost when building new dormitories 
and other student housing?'' 73 FR 34466, 34492 (June 17, 2008).
    The vast majority of the comments received by the Department 
advocated using the residential facilities standards for housing at a 
place of education instead of the transient lodging standards, arguing 
that housing at places of public education are in

[[Page 652]]

fact homes for the students who live in them. These commenters argued, 
however, that the Department should impose a requirement for a variety 
of options for accessible bathing and should ensure that all floors of 
dormitories be accessible so that students with disabilities have the 
same opportunities to participate in the life of the dormitory community 
that are provided to students without disabilities. Commenters 
representing persons with disabilities and several individuals argued 
that, although the transient lodging standards may provide a few more 
accessible features (such as roll-in showers), the residential 
facilities standards would ensure that students with disabilities have 
access to all rooms in their assigned unit, not just to the sleeping 
room, kitchenette, and wet bar. One commenter stated that, in its view, 
the residential facilities standards were congruent with overlapping 
requirements from HUD, and that access provided by the residential 
facilities requirements within alterations would ensure dispersion of 
accessible features more effectively. This commenter also argued that 
while the increased number of required accessible units for residential 
facilities as compared to transient lodging may increase the cost of 
construction or alteration, this cost would be offset by a reduced need 
to adapt rooms later if the demand for accessible rooms exceeds the 
supply. The commenter also encouraged the Department to impose a 
visitability (accessible doorways and necessary clear floor space for 
turning radius) requirement for both the residential facilities and 
transient lodging requirements to allow students with mobility 
impairments to interact and socialize in a fully integrated fashion.
    Two commenters supported the Department's proposed approach. One 
commenter argued that the transient lodging requirements in the 2004 
ADAAG would provide greater accessibility and increase the opportunity 
of students with disabilities to participate fully in campus life. A 
second commenter generally supported the provision of accessible 
dwelling units at places of education, and pointed out that the relevant 
scoping in the International Building Code requires accessible units 
``consistent with hotel accommodations.''
    The Department has considered the comments recommending the use of 
the residential facilities standards and acknowledges that they require 
certain features that are not included in the transient lodging 
standards and that should be required for housing provided at a place of 
education. In addition, the Department notes that since educational 
institutions often use their academic housing facilities as short-term 
transient lodging in the summers, it is important that accessible 
features be installed at the outset. It is not realistic to expect that 
the educational institution will be able to adapt a unit in a timely 
manner in order to provide accessible accommodations to someone 
attending a one-week program during the summer.
    The Department has determined that the best approach to this type of 
housing is to continue to require the application of transient lodging 
standards, but at the same time to add several requirements drawn from 
the residential facilities standards related to accessible turning 
spaces and work surfaces in kitchens, and the accessible route 
throughout the unit. This will ensure the maintenance of the transient 
lodging standard requirements related to access to all floors of the 
facility, roll-in showers in facilities with more than 50 sleeping 
rooms, and other important accessibility features not found in the 
residential facilities standards, but will also ensure usable kitchens 
and access to all the rooms in a suite or apartment.
    The Department has added a new definition to Sec. 35.104, ``Housing 
at a Place of Education,'' and has revised Sec. 35.151(f) to reflect the 
accessible features that now will be required in addition to the 
requirements set forth under the transient lodging standards. The 
Department also recognizes that some educational institutions provide 
some residential housing on a year-round basis to graduate students and 
staff which is comparable to private rental housing, and which contains 
no facilities for educational programming. Section 35.151(f)(3) exempts 
from the transient lodging standards apartments or townhouse facilities 
provided by or on behalf of a place of education that are leased on a 
year-round basis exclusively to graduate students or faculty, and do not 
contain any public use or common use areas available for educational 
programming; instead, such housing shall comply with the requirements 
for residential facilities in sections 233 and 809 of the 2010 
Standards.
    Section 35.151(f) uses the term ``sleeping room'' in lieu of the 
term ``guest room,'' which is the term used in the transient lodging 
standards. The Department is using this term because it believes that, 
for the most part, it provides a better description of the sleeping 
facilities used in a place of education than ``guest room.'' The final 
rule states that the Department intends the terms to be used 
interchangeably in the application of the transient lodging standards to 
housing at a place of education.

                    Section 35.151(g)  Assembly areas

    In the NPRM, the Department proposed Sec. 35.151(g) to supplement 
the assembly area requirements of the 2004 ADAAG, which the Department 
is adopting as part of the 2010 Standards. The NPRM proposed at 
Sec. 35.151(g)(1) to require wheelchair spaces and companion seating 
locations to be dispersed to all levels of the facility and are served 
by

[[Page 653]]

an accessible route. The Department received no significant comments on 
this paragraph and has decided to adopt the proposed language with minor 
modifications. The Department has retained the substance of this section 
in the final rule but has clarified that the requirement applies to 
stadiums, arenas, and grandstands. In addition, the Department has 
revised the phrase ``wheelchair and companion seating locations'' to 
``wheelchair spaces and companion seats.''
    Section 35.151(g)(1) ensures that there is greater dispersion of 
wheelchair spaces and companion seats throughout stadiums, arenas, and 
grandstands than would otherwise be required by sections 221 and 802 of 
the 2004 ADAAG. In some cases, the accessible route may not be the same 
route that other individuals use to reach their seats. For example, if 
other patrons reach their seats on the field by an inaccessible route 
(e.g., by stairs), but there is an accessible route that complies with 
section 206.3 of the 2010 Standards that could be connected to seats on 
the field, wheelchair spaces and companion seats must be placed on the 
field even if that route is not generally available to the public.
    Regulatory language that was included in the 2004 ADAAG advisory, 
but that did not appear in the NPRM, has been added by the Department in 
Sec. 35.151(g)(2). Section 35.151(g)(2) now requires an assembly area 
that has seating encircling, in whole or in part, a field of play or 
performance area such as an arena or stadium, to place wheelchair spaces 
and companion seats around the entire facility. This rule, which is 
designed to prevent a public entity from placing wheelchair spaces and 
companion seats on one side of the facility only, is consistent with the 
Department's enforcement practices and reflects its interpretation of 
section 4.33.3 of the 1991 Standards.
    In the NPRM, the Department proposed Sec. 35.151(g)(2) which 
prohibits wheelchair spaces and companion seating locations from being 
``located on, (or obstructed by) temporary platforms or other moveable 
structures.'' Through its enforcement actions, the Department discovered 
that some venues place wheelchair spaces and companion seats on 
temporary platforms that, when removed, reveal conventional seating 
underneath, or cover the wheelchair spaces and companion seats with 
temporary platforms on top of which they place risers of conventional 
seating. These platforms cover groups of conventional seats and are used 
to provide groups of wheelchair seats and companion seats.
    Several commenters requested an exception to the prohibition of the 
use of temporary platforms for public entities that sell most of their 
tickets on a season-ticket or other multi-event basis. Such commenters 
argued that they should be able to use temporary platforms because they 
know, in advance, that the patrons sitting in certain areas for the 
whole season do not need wheelchair spaces and companion seats. The 
Department declines to adopt such an exception. As it explained in 
detail in the NPRM, the Department believes that permitting the use of 
movable platforms that seat four or more wheelchair users and their 
companions have the potential to reduce the number of available 
wheelchair seating spaces below the level required, thus reducing the 
opportunities for persons who need accessible seating to have the same 
choice of ticket prices and amenities that are available to other 
patrons in the facility. In addition, use of removable platforms may 
result in instances where last minute requests for wheelchair and 
companion seating cannot be met because entire sections of accessible 
seating will be lost when a platform is removed. See 73 FR 34466, 34493 
(June 17, 2008). Further, use of temporary platforms allows facilities 
to limit persons who need accessible seating to certain seating areas, 
and to relegate accessible seating to less desirable locations. The use 
of temporary platforms has the effect of neutralizing dispersion and 
other seating requirements (e.g., line of sight) for wheelchair spaces 
and companion seats. Cf. Independent Living Resources v. Oregon Arena 
Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding that while a 
public accommodation may ``infill'' wheelchair spaces with removable 
seats when the wheelchair spaces are not needed to accommodate 
individuals with disabilities, under certain circumstances ``[s]uch a 
practice might well violate the rule that wheelchair spaces must be 
dispersed throughout the arena in a manner that is roughly proportionate 
to the overall distribution of seating''). In addition, using temporary 
platforms to convert unsold wheelchair spaces to conventional seating 
undermines the flexibility facilities need to accommodate secondary 
ticket markets exchanges as required by Sec. 35.138(g) of the final 
rule.
    As the Department explained in the NPRM, however, this provision was 
not designed to prohibit temporary seating that increases seating for 
events (e.g., placing temporary seating on the floor of a basketball 
court for a concert). Consequently, the final rule, at 
Sec. 35.151(g)(3), has been amended to clarify that if an entire seating 
section is on a temporary platform for a particular event, then 
wheelchair spaces and companion seats may be in that seating section. 
However, adding a temporary platform to create wheelchair spaces and 
companion seats that are otherwise dissimilar from nearby fixed seating 
and then simply adding a small number of additional seats to the 
platform would not qualify as an ``entire seating section'' on the 
platform. In addition, Sec. 35.151(g)(3) clarifies that facilities may 
fill in wheelchair

[[Page 654]]

spaces with removable seats when the wheelchair spaces are not needed by 
persons who use wheelchairs.
    The Department has been responsive to assembly areas' concerns about 
reduced revenues due to unused accessible seating. Accordingly, the 
Department has reduced scoping requirements significantly--by almost 
half in large assembly areas--and determined that allowing assembly 
areas to infill unsold wheelchair spaces with readily removable 
temporary individual seats appropriately balances their economic 
concerns with the rights of individuals with disabilities. See section 
221.2 of the 2010 Standards.
    For stadium-style movie theaters, in Sec. 35.151(g)(4) of the NPRM 
the Department proposed requiring placement of wheelchair seating spaces 
and companion seats on a riser or cross-aisle in the stadium section of 
the theater and placement of such seating so that it satisfies at least 
one of the following criteria: (1) It is located within the rear 60 
percent of the seats provided in the auditorium; or (2) it is located 
within the area of the auditorium where the vertical viewing angles are 
between the 40th to 100th percentile of vertical viewing angles for all 
seats in that theater as ranked from the first row (1st percentile) to 
the back row (100th percentile). The vertical viewing angle is the angle 
between a horizontal line perpendicular to the seated viewer's eye to 
the screen and a line from the seated viewer's eye to the top of the 
screen.
    The Department proposed this bright-line rule for two reasons: (1) 
The movie theater industry petitioned for such a rule; and (2) the 
Department has acquired expertise on the design of stadium style 
theaters from litigation against several major movie theater chains. See 
U.S. v. AMC Entertainment, 232 F. Supp. 2d 1092 (C.D. Ca. 2002), rev'd 
in part, 549 F. 3d 760 (9th Cir. 2008); U.S. v. Cinemark USA, Inc., 348 
F. 3d 569 (6th Cir. 2003), cert. denied, 542 U.S. 937 (2004). Two 
industry commenters--at least one of whom otherwise supported this 
rule--requested that the Department explicitly state that this rule does 
not apply retroactively to existing theaters. Although this rule on its 
face applies to new construction and alterations, these commenters were 
concerned that the rule could be interpreted to apply retroactively 
because of the Department's statement in the ANPRM that this bright-line 
rule, although newly-articulated, does not represent a ``substantive 
change from the existing line-of-sight requirements'' of section 4.33.3 
of the 1991 Standards. See 69 FR 58768, 58776 (Sept. 30, 2004).
    Although the Department intends for Sec. 35.151(g)(4) of this rule 
to apply prospectively to new construction and alterations, this rule is 
not a departure from, and is consistent with, the line-of-sight 
requirements in the 1991 Standards. The Department has always 
interpreted the line-of-sight requirements in the 1991 Standards to 
require viewing angles provided to patrons who use wheelchairs to be 
comparable to those afforded to other spectators. Section 35.151(g)(4) 
merely represents the application of these requirements to stadium-style 
movie theaters.
    One commenter from a trade association sought clarification whether 
Sec. 35.151(g)(4) applies to stadium-style theaters with more than 300 
seats, and argued that it should not since dispersion requirements apply 
in those theaters. The Department declines to limit this rule to 
stadium-style theaters with 300 or fewer seats; stadium-style theaters 
of all sizes must comply with this rule. So, for example, stadium-style 
theaters that must vertically disperse wheelchair and companion seats 
must do so within the parameters of this rule.
    The NPRM included a provision that required assembly areas with more 
than 5,000 seats to provide at least five wheelchair spaces with at 
least three companion seats for each of those five wheelchair spaces. 
The Department agrees with commenters who asserted that group seating is 
better addressed through ticketing policies rather than design and has 
deleted that provision from this section of the final rule.

               Section 35.151(h)  Medical care facilities

    In the 1991 title II regulation, there was no provision addressing 
the dispersion of accessible sleeping rooms in medical care facilities. 
The Department is aware, however, of problems that individuals with 
disabilities face in receiving full and equal medical care when 
accessible sleeping rooms are not adequately dispersed. When accessible 
rooms are not fully dispersed, a person with a disability is often 
placed in an accessible room in an area that is not medically 
appropriate for his or her condition, and is thus denied quick access to 
staff with expertise in that medical specialty and specialized 
equipment. While the Access Board did not establish specific design 
requirements for dispersion in the 2004 ADAAG, in response to extensive 
comments in support of dispersion it added an advisory note, Advisory 
223.1 General, encouraging dispersion of accessible rooms within the 
facility so that accessible rooms are more likely to be proximate to 
appropriate qualified staff and resources.
    In the NPRM, the Department sought additional comment on the issue, 
asking whether it should require medical care facilities, such as 
hospitals, to disperse their accessible sleeping rooms, and if so, by 
what method (by specialty area, floor, or other criteria). All of the 
comments the Department received on this issue supported dispersing 
accessible sleeping rooms proportionally by specialty area. These 
comments, from individuals, organizations, and a building code

[[Page 655]]

association, argued that it would not be difficult for hospitals to 
disperse rooms by specialty area, given the high level of regulation to 
which hospitals are subject and the planning that hospitals do based on 
utilization trends. Further, commenters suggested that without a 
requirement, it is unlikely that hospitals would disperse the rooms. In 
addition, concentrating accessible rooms in one area perpetuates 
segregation of individuals with disabilities, which is counter to the 
purpose of the ADA.
    The Department has decided to require medical care facilities to 
disperse their accessible sleeping rooms in a manner that is 
proportionate by type of medical specialty. This does not require exact 
mathematical proportionality, which at times would be impossible. 
However, it does require that medical care facilities disperse their 
accessible rooms by medical specialty so that persons with disabilities 
can, to the extent practical, stay in an accessible room within the wing 
or ward that is appropriate for their medical needs. The language used 
in this rule (``in a manner that is proportionate by type of medical 
specialty'') is more specific than that used in the NPRM (``in a manner 
that enables patients with disabilities to have access to appropriate 
specialty services'') and adopts the concept of proportionality proposed 
by the commenters. Accessible rooms should be dispersed throughout all 
medical specialties, such as obstetrics, orthopedics, pediatrics, and 
cardiac care.

                      Section 35.151(i)  Curb ramps

    Section 35.151(e) on curb ramps in the 1991 rule has been 
redesignated as Sec. 35.151(i). In the NPRM, the Department proposed 
making a minor editorial change to this section, deleting the phrase 
``other sloped areas'' from the two places in which it appears in the 
1991 title II regulation. In the NPRM, the Department stated that the 
phrase ``other sloped areas'' lacks technical precision. The Department 
received no significant public comments on this proposal. Upon further 
consideration, however, the Department has concluded that the regulation 
should acknowledge that there are times when there are transitions from 
sidewalk to road surface that do not technically qualify as ``curb 
ramps'' (sloped surfaces that have a running slope that exceed 5 
percent). Therefore, the Department has decided not to delete the phrase 
``other sloped areas.''

  Section 35.151(j)  Residential housing for sale to individual owners

    Although public entities that operate residential housing programs 
are subject to title II of the ADA, and therefore must provide 
accessible residential housing, the 1991 Standards did not contain 
scoping or technical standards that specifically applied to residential 
housing units. As a result, under the Department's title II regulation, 
these agencies had the choice of complying with UFAS, which contains 
specific scoping and technical standards for residential housing units, 
or applying the ADAAG transient lodging standards to their housing. 
Neither UFAS nor the 1991 Standards distinguish between residential 
housing provided for rent and those provided for sale to individual 
owners. Thus, under the 1991 title II regulation, public entities that 
construct residential housing units to be sold to individual owners must 
ensure that some of those units are accessible. This requirement is in 
addition to any accessibility requirements imposed on housing programs 
operated by public entities that receive Federal financial assistance 
from Federal agencies such as HUD.
    The 2010 Standards contain scoping and technical standards for 
residential dwelling units. However, section 233.3.2 of the 2010 
Standards specifically defers to the Department and to HUD, the 
standard-setting agency under the ABA, to decide the appropriate scoping 
for those residential dwelling units built by or on behalf of public 
entities with the intent that the finished units will be sold to 
individual owners. These programs include, for example, HUD's public 
housing and HOME programs as well as State-funded programs to construct 
units for sale to individuals. In the NPRM, the Department did not make 
a specific proposal for this scoping. Instead, the Department stated 
that after consultation and coordination with HUD, the Department would 
make a determination in the final rule. The Department also sought 
public comment on this issue stating that ``[t]he Department would 
welcome recommendations from individuals with disabilities, public 
housing authorities, and other interested parties that have experience 
with these programs. Please comment on the appropriate scoping for 
residential dwelling units built by or on behalf of public entities with 
the intent that the finished units will be sold to individual owners.'' 
73 FR 34466, 34492 (June 17, 2008).
    All of the public comments received by the Department in response to 
this question were supportive of the Department's ensuring that the 
residential standards apply to housing built on behalf of public 
entities with the intent that the finished units would be sold to 
individual owners. The vast majority of commenters recommended that the 
Department require that projects consisting of five or more units, 
whether or not the units are located on one or multiple locations, 
comply with the 2004 ADAAG requirements for scoping of residential 
units, which require that 5 percent, and no fewer than one, of the 
dwelling units provide mobility features, and that 2 percent, and no 
fewer

[[Page 656]]

than one, of the dwelling units provide communication features. See 2004 
ADAAG Section 233.3. These commenters argued that the Department should 
not defer to HUD because HUD has not yet adopted the 2004 ADAAG and 
there is ambiguity on the scope of coverage of pre-built for sale units 
under HUD's current section 504 regulations. In addition, these 
commenters expressed concern that HUD's current regulation, 24 CFR 8.29, 
presumes that a prospective buyer is identified before design and 
construction begins so that disability features can be incorporated 
prior to construction. These commenters stated that State and Federally 
funded homeownership programs typically do not identify prospective 
buyers before construction has commenced. One commenter stated that, in 
its experience, when public entities build accessible for-sale units, 
they often sell these units through a lottery system that does not make 
any effort to match persons who need the accessible features with the 
units that have those features. Thus, accessible units are often sold to 
persons without disabilities. This commenter encouraged the Department 
to make sure that accessible for-sale units built or funded by public 
entities are placed in a separate lottery restricted to income-eligible 
persons with disabilities.
    Two commenters recommended that the Department develop rules for 
four types of for-sale projects: single family pre-built (where buyer 
selects the unit after construction), single family post-built (where 
the buyer chooses the model prior to its construction), multi-family 
pre-built, and multi-family post-built. These commenters recommended 
that the Department require pre-built units to comply with the 2004 
ADAAG 233.1 scoping requirements. For post-built units, the commenters 
recommended that the Department require all models to have an alternate 
design with mobility features and an alternate design with 
communications features in compliance with 2004 ADAAG. Accessible models 
should be available at no extra cost to the buyer. One commenter 
recommended that, in addition to required fully accessible units, all 
ground floor units should be readily convertible for accessibility or 
for sensory impairments technology enhancements.
    The Department believes that consistent with existing requirements 
under title II, housing programs operated by public entities that design 
and construct or alter residential units for sale to individual owners 
should comply with the 2010 Standards, including the requirements for 
residential facilities in sections 233 and 809. These requirements will 
ensure that a minimum of 5 percent of the units, but no fewer than one 
unit, of the total number of residential dwelling units will be designed 
and constructed to be accessible for persons with mobility disabilities. 
At least 2 percent, but no fewer than one unit, of the total number of 
residential dwelling units shall provide communication features.
    The Department recognizes that there are some programs (such as the 
one identified by the commenter), in which units are not designed and 
constructed until an individual buyer is identified. In such cases, the 
public entity is still obligated to comply with the 2010 Standards. In 
addition, the public entity must ensure that pre-identified buyers with 
mobility disabilities and visual and hearing disabilities are afforded 
the opportunity to buy the accessible units. Once the program has 
identified buyers who need the number of accessible units mandated by 
the 2010 Standards, it may have to make reasonable modifications to its 
policies, practices, and procedures in order to provide accessible units 
to other buyers with disabilities who request such units.
    The Department notes that the residential facilities standards allow 
for construction of units with certain features of adaptability. Public 
entities that are concerned that fully accessible units are less 
marketable may choose to build these units to include the allowable 
adaptable features, and then adapt them at their own expense for buyers 
with mobility disabilities who need accessible units. For example, 
features such as grab bars are not required but may be added by the 
public entity if needed by the buyer at the time of purchase and 
cabinets under sinks may be designed to be removable to allow access to 
the required knee space for a forward approach.
    The Department agrees with the commenters that covered entities may 
have to make reasonable modifications to their policies, practices, and 
procedures in order to ensure that when they offer pre-built accessible 
residential units for sale, the units are offered in a manner that gives 
access to those units to persons with disabilities who need the features 
of the units and who are otherwise eligible for the housing program. 
This may be accomplished, for example, by adopting preferences for 
accessible units for persons who need the features of the units, holding 
separate lotteries for accessible units, or other suitable methods that 
result in the sale of accessible units to persons who need the features 
of such units. In addition, the Department believes that units designed 
and constructed or altered that comply with the requirements for 
residential facilities and are offered for sale to individuals must be 
provided at the same price as units without such features.

        Section 35.151(k)  Detention and correctional facilities

    The 1991 Standards did not contain specific accessibility standards 
applicable to cells in correctional facilities. However, correctional

[[Page 657]]

and detention facilities operated by or on behalf of public entities 
have always been subject to the nondiscrimination and program 
accessibility requirements of title II of the ADA. The 2004 ADAAG 
established specific requirements for the design and construction and 
alterations of cells in correctional facilities for the first time.
    Based on complaints received by the Department, investigations, and 
compliance reviews of jails, prisons, and other detention and 
correctional facilities, the Department has determined that many 
detention and correctional facilities do not have enough accessible 
cells, toilets, and shower facilities to meet the needs of their inmates 
with mobility disabilities and some do not have any at all. Inmates are 
sometimes housed in medical units or infirmaries separate from the 
general population simply because there are no accessible cells. In 
addition, some inmates have alleged that they are housed at a more 
restrictive classification level simply because no accessible housing 
exists at the appropriate classification level. The Department's 
compliance reviews and investigations have substantiated certain of 
these allegations.
    The Department believes that the insufficient number of accessible 
cells is, in part, due to the fact that most jails and prisons were 
built long before the ADA became law and, since then, have undergone few 
alterations that would trigger the obligation to provide accessible 
features in accordance with UFAS or the 1991 Standards. In addition, the 
Department has found that even some new correctional facilities lack 
accessible features. The Department believes that the unmet demand for 
accessible cells is also due to the changing demographics of the inmate 
population. With thousands of prisoners serving life sentences without 
eligibility for parole, prisoners are aging, and the prison population 
of individuals with disabilities and elderly individuals is growing. A 
Bureau of Justice Statistics study of State and Federal sentenced 
inmates (those sentenced to more than one year) shows the total 
estimated count of State and Federal prisoners aged 55 and older grew by 
36,000 inmates from 2000 (44,200) to 2006 (80,200). William J. Sabol et 
al., Prisoners in 2006, Bureau of Justice Statistics Bulletin, Dec. 
2007, at 23 (app. table 7), available at http://bjs.ojp.usdoj.gov/
index.cfm?ty=pbdetail&iid=908 (last visited July 16, 2008); Allen J. 
Beck et al., Prisoners in 2000, Bureau of Justice Statistics Bulletin, 
Aug. 2001, at 10 (Aug. 2001) (Table 14), available at bjs.ojp.usdoj.gov/
index.cfm?ty=pbdetail&iid=927 (last visited July 16, 2008). This jump 
constitutes an increase of 81 percent in prisoners aged 55 and older 
during this period.
    In the NPRM, the Department proposed a new section, Sec. 35.152, 
which combined a range of provisions relating to both program 
accessibility and application of the proposed standards to detention and 
correctional facilities. In the final rule, the Department is placing 
those provisions that refer to design, construction, and alteration of 
detention and correction facilities in a new paragraph (k) of 
Sec. 35.151, the section of the rule that addresses new construction and 
alterations for covered entities. Those portions of the final rule that 
address other issues, such as placement policies and program 
accessibility, are placed in the new Sec. 35.152.
    In the NPRM, the Department also sought input on how best to meet 
the needs of inmates with mobility disabilities in the design, 
construction, and alteration of detention and correctional facilities. 
The Department received a number of comments in response to this 
question.
    New Construction. The NPRM did not expressly propose that new 
construction of correctional and detention facilities shall comply with 
the proposed standards because the Department assumed it would be clear 
that the requirements of Sec. 35.151 would apply to new construction of 
correctional and detention facilities in the same manner that they apply 
to other facilities constructed by covered entities. The Department has 
decided to create a new section, Sec. 35.151(k)(1), which clarifies that 
new construction of jails, prisons, and other detention facilities shall 
comply with the requirements of 2010 Standards. Section 35.151(k)(1) 
also increases the scoping for accessible cells from the 2 percent 
specified in the 2004 ADAAG to 3 percent.
    Alterations. Although the 2010 Standards contain specifications for 
alterations in existing detention and correctional facilities, section 
232.2 defers to the Attorney General the decision as to the extent these 
requirements will apply to alterations of cells. The NPRM proposed at 
Sec. 35.152(c) that ``[a]lterations to jails, prisons, and other 
detention and correctional facilities will comply with the requirements 
of Sec. 35.151(b).'' 73 FR 34466, 34507 (June 17, 2008). The final rule 
retains that requirement at Sec. 35.151(k)(2), but increases the scoping 
for accessible cells from the 2 percent specified in the 2004 ADAAG to 3 
percent.
    Substitute cells. In the ANPRM, the Department sought public comment 
about the most effective means to ensure that existing correctional 
facilities are made accessible to prisoners with disabilities and 
presented three options: (1) Require all altered elements to be 
accessible, which would maintain the current policy that applies to 
other ADA alteration requirements; (2) permit substitute cells to be 
made accessible within the same facility, which would permit 
correctional authorities to meet their obligation by providing the 
required accessible features in cells within the same facility, other 
than those specific cells in which alterations are

[[Page 658]]

planned; or (3) permit substitute cells to be made accessible within a 
prison system, which would focus on ensuring that prisoners with 
disabilities are housed in facilities that best meet their needs, as 
alterations within a prison environment often result in piecemeal 
accessibility.
    In Sec. 35.152(c) of the NPRM, the Department proposed language 
based on Option 2, providing that when cells are altered, a covered 
entity may satisfy its obligation to provide the required number of 
cells with mobility features by providing the required mobility features 
in substitute cells (i.e., cells other than those where alterations are 
originally planned), provided that each substitute cell is located 
within the same facility, is integrated with other cells to the maximum 
extent feasible, and has, at a minimum, physical access equal to that of 
the original cells to areas used by inmates or detainees for visitation, 
dining, recreation, educational programs, medical services, work 
programs, religious services, and participation in other programs that 
the facility offers to inmates or detainees.
    The Department received few comments on this proposal. The majority 
who chose to comment supported an approach that allowed substitute cells 
to be made accessible within the same facility. In their view, such an 
approach balanced administrators' needs, cost considerations, and the 
needs of inmates with disabilities. One commenter noted, however, that 
with older facilities, required modifications may be inordinately costly 
and technically infeasible. A large county jail system supported the 
proposed approach as the most viable option allowing modification or 
alteration of existing cells based on need and providing a flexible 
approach to provide program and mobility accessibility. It noted, as an 
alternative, that permitting substitute cells to be made accessible 
within a prison system would also be a viable option since such an 
approach could create a centralized location for accessibility needs 
and, because that jail system's facilities were in close proximity, it 
would have little impact on families for visitation or on accessible 
programming.
    A large State department of corrections objected to the Department's 
proposal. The commenter stated that some very old prison buildings have 
thick walls of concrete and reinforced steel that are difficult, if not 
impossible to retrofit, and to do so would be very expensive. This State 
system approaches accessibility by looking at its system as a whole and 
providing access to programs for inmates with disabilities at selected 
prisons. This commenter explained that not all of its facilities offer 
the same programs or the same levels of medical or mental health 
services. An inmate, for example, who needs education, substance abuse 
treatment, and sex offender counseling may be transferred between 
facilities in order to meet his needs. The inmate population is always 
in flux and there are not always beds or program availability for every 
inmate at his security level. This commenter stated that the 
Department's proposed language would put the State in the position of 
choosing between adding accessible cells and modifying paths of travel 
to programs and services at great expense or not altering old 
facilities, causing them to become in states of disrepair and 
obsolescent, which would be fiscally irresponsible.
    The Department is persuaded by these comments and has modified the 
alterations requirement in Sec. 35.151(k)(2)(iv) in the final rule to 
allow that if it is technically infeasible to provide substitute cells 
in the same facility, cells can be provided elsewhere within the 
corrections system.
    Number of accessible cells. Section 232.2.1 of the 2004 ADAAG 
requires at least 2 percent, but no fewer than one, of the cells in 
newly constructed detention and correctional facilities to have 
accessibility features for individuals with mobility disabilities. 
Section 232.3 provides that, where special holding cells or special 
housing cells are provided, at least one cell serving each purpose shall 
have mobility features. The Department sought input on whether these 
2004 ADAAG requirements are sufficient to meet the needs of inmates with 
mobility disabilities. A major association representing county jails 
throughout the country stated that the 2004 ADAAG 2 percent requirement 
for accessible cells is sufficient to meet the needs of county jails. 
Similarly, a large county sheriff's department advised that the 2 
percent requirement far exceeds the need at its detention facility, 
where the average age of the population is 32. This commenter stressed 
that the regulations need to address the differences between a local 
detention facility with low average lengths of stay as opposed to a 
State prison housing inmates for lengthy periods. This commenter 
asserted that more stringent requirements will raise construction costs 
by requiring modifications that are not needed. If more stringent 
requirements are adopted, the commenter suggested that they apply only 
to State and Federal prisons that house prisoners sentenced to long 
terms. The Department notes that a prisoner with a mobility disability 
needs a cell with mobility features regardless of the length of 
incarceration. However, the length of incarceration is most relevant in 
addressing the needs of an aging population.
    The overwhelming majority of commenters responded that the 2 percent 
ADAAG requirement is inadequate to meet the needs of the incarcerated. 
Many commenters suggested that the requirement be expanded to apply to 
each area, type, use, and class of

[[Page 659]]

cells in a facility. They asserted that if a facility has separate areas 
for specific programs, such as a dog training program or a substance 
abuse unit, each of these areas should also have 2 percent accessible 
cells but not less than one. These same commenters suggested that 5-7 
percent of cells should be accessible to meet the needs of both an aging 
population and the larger number of inmates with mobility disabilities. 
One organization recommended that the requirement be increased to 5 
percent overall, and that at least 2 percent of each type and use of 
cell be accessible. Another commenter recommended that 10 percent of 
cells be accessible. An organization with extensive corrections 
experience noted that the integration mandate requires a sufficient 
number and distribution of accessible cells so as to provide 
distribution of locations relevant to programs to ensure that persons 
with disabilities have access to the programs.
    Through its investigations and compliance reviews, the Department 
has found that in most detention and correctional facilities, a 2 
percent accessible cell requirement is inadequate to meet the needs of 
the inmate population with disabilities. That finding is supported by 
the majority of the commenters that recommended a 5-7 percent 
requirement. Indeed, the Department itself requires more than 2 percent 
of the cells to be accessible at its own corrections facilities. The 
Federal Bureau of Prisons is subject to the requirements of the 2004 
ADAAG through the General Services Administration's adoption of the 2004 
ADAAG as the enforceable accessibility standard for Federal facilities 
under the Architectural Barriers Act of 1968. 70 FR 67786, 67846-47 
(Nov. 8, 2005). However, in order to meet the needs of inmates with 
mobility disabilities, the Bureau of Prisons has elected to increase 
that percentage and require that 3 percent of inmate housing at its 
facilities be accessible. Bureau of Prisons, Design Construction Branch, 
Design Guidelines, Attachment A: Accessibility Guidelines for Design, 
Construction, and Alteration of Federal Bureau of Prisons (Oct. 31, 
2006).
    The Department believes that a 3 percent accessible requirement is 
reasonable. Moreover, it does not believe it should impose a higher 
percentage on detention and corrections facilities than it utilizes for 
its own facilities. Thus, the Department has adopted a 3 percent 
requirement in Sec. 35.151(k) for both new construction and alterations. 
The Department notes that the 3 percent requirement is a minimum. As 
corrections systems plan for new facilities or alterations, the 
Department urges planners to include numbers of inmates with 
disabilities in their population projections in order to take the 
necessary steps to provide a sufficient number of accessible cells to 
meet inmate needs.
    Dispersion of Cells. The NPRM did not contain express language 
addressing dispersion of cells in a facility. However, Advisory 232.2 of 
the 2004 ADAAG recommends that ``[a]ccessible cells or rooms should be 
dispersed among different levels of security, housing categories, and 
holding classifications (e.g., male/female and adult/juvenile) to 
facilitate access.'' In explaining the basis for recommending, but not 
requiring, this type of dispersal, the Access Board stated that ``[m]any 
detention and correctional facilities are designed so that certain areas 
(e.g., `shift' areas) can be adapted to serve as different types of 
housing according to need'' and that ``[p]lacement of accessible cells 
or rooms in shift areas may allow additional flexibility in meeting 
requirements for dispersion of accessible cells or rooms.''
    The Department notes that inmates are typically housed in separate 
areas of detention and correctional facilities based on a number of 
factors, including their classification level. In many instances, 
detention and correctional facilities have housed inmates in 
inaccessible cells, even though accessible cells were available 
elsewhere in the facility, because there were no cells in the areas 
where they needed to be housed, such as in administrative or 
disciplinary segregation, the women's section of the facility, or in a 
particular security classification area.
    The Department received a number of comments stating that dispersal 
of accessible cells together with an adequate number of accessible cells 
is necessary to prevent inmates with disabilities from placement in 
improper security classification and to ensure integration. Commenters 
recommended modification of the scoping requirements to require a 
percentage of accessible cells in each program, classification, use or 
service area. The Department is persuaded by these comments. 
Accordingly, Sec. 35.151(k)(1) and (k)(2) of the final rule require 
accessible cells in each classification area.
    Medical facilities. The NPRM also did not propose language 
addressing the application of the 2004 ADAAG to medical and long-term 
care facilities in correctional and detention facilities. The provisions 
of the 2004 ADAAG contain requirements for licensed medical and long-
term care facilities, but not those that are unlicensed. A disability 
advocacy group and a number of other commenters recommended that the 
Department expand the application of section 232.4 to apply to all such 
facilities in detention and correctional facilities, regardless of 
licensure. They recommended that whenever a correctional facility has a 
program that is addressed specifically in the 2004 ADAAG, such as a 
long-term care facility, the 2004 ADAAG scoping and design features 
should apply for those elements. Similarly, a building code organization 
noted that its percentage requirements for accessible units is based on

[[Page 660]]

what occurs in the space, not on the building type.
    The Department is persuaded by these comments and has added 
Sec. 35.151(k)(3), which states that ``[w]ith respect to medical and 
long-term care facilities in jails, prisons, and other detention and 
correctional facilities, public entities shall apply the 2010 Standards 
technical and scoping requirements for those facilities irrespective of 
whether those facilities are licensed.''

     Section 35.152  Detention and correctional facilities--program 
                              requirements

    As noted in the discussion of Sec. 35.151(k), the Department has 
determined that inmates with mobility and other disabilities in 
detention and correctional facilities do not have equal access to prison 
services. The Department's concerns are based not only on complaints it 
has received, but the Department's substantial experience in 
investigations and compliance reviews of jails, prisons, and other 
detention and correctional facilities. Based on that review, the 
Department has found that many detention and correctional facilities 
have too few or no accessible cells, toilets, and shower facilities to 
meet the needs of their inmates with mobility disabilities. These 
findings, coupled with statistics regarding the current percentage of 
inmates with mobility disabilities and the changing demographics of the 
inmate population reflecting thousands of prisoners serving life 
sentences and increasingly large numbers of aging inmates who are not 
eligible for parole, led the Department to conclude that a new 
regulation was necessary to address these concerns.
    In the NPRM, the Department proposed a new section, Sec. 35.152, 
which combined a range of provisions relating to both program 
accessibility and application of the proposed standards to detention and 
correctional facilities. As mentioned above, in the final rule, the 
Department is placing those provisions that refer to design, 
construction, and alteration of detention and correction facilities in 
new paragraph (k) in Sec. 35.151 dealing with new construction and 
alterations for covered entities. Those portions of the final rule that 
address other program requirements remain in Sec. 35.152.
    The Department received many comments in response to the program 
accessibility requirements in proposed Sec. 35.152. These comments are 
addressed below.
    Facilities operated through contractual, licensing, or other 
arrangements with other public entities or private entities. The 
Department is aware that some public entities are confused about the 
applicability of the title II requirements to correctional facilities 
built or run by other public entities or private entities. It has 
consistently been the Department's position that title II requirements 
apply to correctional facilities used by State or local government 
entities, irrespective of whether the public entity contracts with 
another public or private entity to build or run the correctional 
facility. The power to incarcerate citizens rests with the State or 
local government, not a private entity. As the Department stated in the 
preamble to the original title II regulation, ``[a]ll governmental 
activities of public entities are covered, even if they are carried out 
by contractors.'' 28 CFR part 35, app. A at 558 (2009). If a prison is 
occupied by State prisoners and is inaccessible, the State is 
responsible under title II of the ADA. The same is true for a county or 
city jail. In essence, the private builder or contractor that operates 
the correctional facility does so at the direction of the government 
entity. Moreover, even if the State enters into a contractual, 
licensing, or other arrangement for correctional services with a public 
entity that has its own title II obligations, the State is still 
responsible for ensuring that the other public entity complies with 
title II in providing these services.
    Also, through its experience in investigations and compliance 
reviews, the Department has noted that public entities contract for a 
number of services to be run by private or other public entities, for 
example, medical and mental health services, food services, laundry, 
prison industries, vocational programs, and drug treatment and substance 
abuse programs, all of which must be operated in accordance with title 
II requirements.
    Proposed Sec. 35.152(a) in the NPRM was designed to make it clear 
that title II applies to all State and local detention and correctional 
facilities, regardless of whether the detention or correctional facility 
is directly operated by the public entity or operated by a private 
entity through a contractual, licensing, or other arrangement. 
Commenters specifically supported the language of this section. One 
commenter cited Department of Justice statistics stating that of the 
approximately 1.6 million inmates in State and Federal facilities in 
December 2006, approximately 114,000 of these inmates were held in 
private prison facilities. See William J. Sabol et al., Prisoners in 
2006, Bureau of Justice Statistics Bulletin, Dec. 2007, at 1, 4, 
available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=908. 
Some commenters wanted the text ``through contracts or other 
arrangements'' changed to read ``through contracts or any other 
arrangements'' to make the intent clear. However, a large number of 
commenters recommended that the text of the rule make explicit that it 
applies to correctional facilities operated by private contractors. Many 
commenters also suggested that the text make clear that the rule applies 
to adult facilities, juvenile

[[Page 661]]

justice facilities, and community correctional facilities. In the final 
rule, the Department is adopting these latter two suggestions in order 
to make the section's intent explicit.
    Section 35.152(a) of the final rule states specifically that the 
requirements of the section apply to public entities responsible for the 
operation or management of correctional facilities, ``either directly or 
through contractual, licensing, or other arrangements with public or 
private entities, in whole or in part, including private correctional 
facilities.'' Additionally, the section explicitly provides that it 
applies to adult and juvenile justice detention and correctional 
facilities and community correctional facilities.
    Discrimination prohibited. In the NPRM, Sec. 35.152(b)(1) proposed 
language stating that public entities are prohibited from excluding 
qualified detainees and inmates from participation in, or denying, 
benefits, services, programs, or activities because a facility is 
inaccessible to persons with disabilities ``unless the public entity can 
demonstrate that the required actions would result in a fundamental 
alteration or undue burden.'' 73 FR 34446, 34507 (June 17, 2008). One 
large State department of corrections objected to the entire section 
applicable to detention and correctional facilities, stating that it 
sets a higher standard for correctional and detention facilities because 
it does not provide a defense for undue administrative burden. The 
Department has not retained the proposed NPRM language referring to the 
defenses of fundamental alteration or undue burden because the 
Department believes that these exceptions are covered by the general 
language of 35.150(a)(3), which states that a public entity is not 
required 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.'' The Department has 
revised the language of Sec. 35.152(b)(1) accordingly.
    Integration of inmates and detainees with disabilities. In the NPRM, 
the Department proposed language in Sec. 35.152(b)(2) specifically 
applying the ADA's general integration mandate to detention and 
correctional facilities. The proposed language would have required 
public entities to ensure that individuals with disabilities are housed 
in the most integrated setting appropriate to the needs of the 
individual. It further stated that unless the public entity can 
demonstrate that it is appropriate to make an exception for a specific 
individual, a public entity:
    (1) Should not place inmates or detainees with disabilities in 
locations that exceed their security classification because there are no 
accessible cells or beds in the appropriate classification;
    (2) should not place inmates or detainees with disabilities in 
designated medical areas unless they are actually receiving medical care 
or treatment;
    (3) should not place inmates or detainees with disabilities in 
facilities that do not offer the same programs as the facilities where 
they would ordinarily be housed; and
    (4) should not place inmates or detainees with disabilities in 
facilities farther away from their families in order to provide 
accessible cells or beds, thus diminishing their opportunity for 
visitation based on their disability. 73 FR 34466, 34507 (June 17, 
2008).
    In the NPRM, the Department recognized that there are a wide range 
of considerations that affect decisions to house inmates or detainees 
and that in specific cases there may be compelling reasons why a 
placement that does not meet the general requirements of 
Sec. 35.152(b)(2) may, nevertheless, comply with the ADA. However, the 
Department noted that it is essential that the planning process 
initially assume that inmates or detainees with disabilities will be 
assigned within the system under the same criteria that would be applied 
to inmates who do not have disabilities. Exceptions may be made on a 
case-by-case basis if the specific situation warrants different 
treatment. For example, if an inmate is deaf and communicates only using 
sign language, a prison may consider whether it is more appropriate to 
give priority to housing the prisoner in a facility close to his family 
that houses no other deaf inmates, or if it would be preferable to house 
the prisoner in a setting where there are sign language interpreters and 
other sign language users with whom he can communicate.
    In general, commenters strongly supported the NPRM's clarification 
that the title II integration mandate applies to State and local 
corrections agencies and the facilities in which they house inmates. 
Commenters pointed out that inmates with disabilities continue to be 
segregated based on their disabilities and also excluded from 
participation in programs. An organization actively involved in 
addressing the needs of prisoners cited a number of recent lawsuits in 
which prisoners allege such discrimination.
    The majority of commenters objected to the language in proposed 
Sec. 35.152(b)(2) that creates an exception to the integration mandate 
when the ``public entity can demonstrate that it is appropriate to make 
an exception for a specific individual.'' 73 FR 34466, 34507 (June 17, 
2008). The vast majority of commenters asserted that, given the practice 
of many public entities to segregate and cluster inmates with 
disabilities, the exception will be used to justify the status quo. The 
commenters acknowledged that the intent of the section is to ensure that 
an individual with a disability who can be better served in a less 
integrated setting can legally be placed in that setting. They were 
concerned, however, that the proposed language would allow certain 
objectionable

[[Page 662]]

practices to continue, e.g., automatically placing persons with 
disabilities in administrative segregation. An advocacy organization 
with extensive experience working with inmates recommended that the 
inmate have ``input'' in the placement decision.
    Others commented that the exception does not provide sufficient 
guidance on when a government entity may make an exception, citing the 
need for objective standards. Some commenters posited that a prison 
administration may want to house a deaf inmate at a facility designated 
and equipped for deaf inmates that is several hundred miles from the 
inmate's home. Although under the exception language, such a placement 
may be appropriate, these commenters argued that this outcome appears to 
contradict the regulation's intent to eliminate or reduce the 
segregation of inmates with disabilities and prevent them from being 
placed far from their families. The Department notes that in some 
jurisdictions, the likelihood of such outcomes is diminished because 
corrections facilities with different programs and levels of 
accessibility are clustered in close proximity to one another, so that 
being far from family is not an issue. The Department also takes note of 
advancements in technology that will ease the visitation dilemma, such 
as family visitation through the use of videoconferencing.
    Only one commenter, a large State department of corrections, 
objected to the integration requirement. This commenter stated it houses 
all maximum security inmates in maximum security facilities. Inmates 
with lower security levels may or may not be housed in lower security 
facilities depending on a number of factors, such as availability of a 
bed, staffing, program availability, medical and mental health needs, 
and enemy separation. The commenter also objected to the proposal to 
prohibit housing inmates with disabilities in medical areas unless they 
are receiving medical care. This commenter stated that such housing may 
be necessary for several days, for example, at a stopover facility for 
an inmate with a disability who is being transferred from one facility 
to another. Also, this commenter stated that inmates with disabilities 
in disciplinary status may be housed in the infirmary because not every 
facility has accessible cells in disciplinary housing. Similarly the 
commenter objected to the prohibition on placing inmates in facilities 
without the same programs as facilities where they normally would be 
housed. Finally, the commenter objected to the prohibition on placing an 
inmate at a facility distant from where the inmate would normally be 
housed. The commenter stressed that in its system, there are few 
facilities near most inmates' homes. The commenter noted that most 
inmates are housed at facilities far from their homes, a fact shared by 
all inmates, not just inmates with disabilities. Another commenter noted 
that in some jurisdictions, inmates who need assistance in activities of 
daily living cannot obtain that assistance in the general population, 
but only in medical facilities where they must be housed.
    The Department has considered the concerns raised by the commenters 
with respect to this section and recognizes that corrections systems may 
move inmates routinely and for a variety of reasons, such as crowding, 
safety, security, classification change, need for specialized programs, 
or to provide medical care. Sometimes these moves are within the same 
facility or prison system. On other occasions, inmates may be 
transferred to facilities in other cities, counties, and States. Given 
the nature of the prison environment, inmates have little say in their 
placement and administrators must have flexibility to meet the needs of 
the inmates and the system. The Department has revised the language of 
the exception contained in renumbered Sec. 35.152(b)(2) to better 
accommodate corrections administrators' need for flexibility in making 
placement decisions based on legitimate, specific reasons. Moreover, the 
Department believes that temporary, short-term moves that are necessary 
for security or administrative purposes (e.g., placing an inmate with a 
disability in a medical area at a stopover facility during a transfer 
from one facility to another) do not violate the requirements of 
Sec. 35.152(b)(2).
    The Department notes that Sec. 35.150(a)(3) states that a public 
entity is not required 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.'' 
Thus, corrections systems would not have to comply with the requirements 
of Sec. 35.152(b)(1) in any specific circumstance where these defenses 
are met.
    Several commenters recommended that the word ``should'' be changed 
to ``shall'' in the subparts to Sec. 35.152(b)(2). The Department agrees 
that because the rule contains a specific exception and because the 
integration requirement is subject to the defenses provided in paragraph 
(a) of that section, it is more appropriate to use the word ``shall'' 
and the Department accordingly is making that change in the final rule.
    Program requirements. In a unanimous decision, the Supreme Court, in 
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), 
stated explicitly that the ADA covers the operations of State prisons; 
accordingly, title II's program accessibility requirements apply to 
State and local correctional and detention facilities. In the NPRM, in 
addressing the accessibility of existing correctional and detention 
facilities, the Department considered the challenges of applying the 
title II program access requirement for existing facilities under 
Sec. 31.150(a) in light of

[[Page 663]]

the realities of many inaccessible correctional facilities and strained 
budgets.
    Correctional and detention facilities commonly provide a variety of 
different programs for education, training, counseling, or other 
purposes related to rehabilitation. Some examples of programs generally 
available to inmates include programs to obtain GEDs, computer training, 
job skill training and on-the-job training, religious instruction and 
guidance, alcohol and substance abuse groups, anger management, work 
assignments, work release, halfway houses, and other programs. 
Historically, individuals with disabilities have been excluded from such 
programs because they are not located in accessible locations, or 
inmates with disabilities have been segregated in units without 
equivalent programs. In light of the Supreme Court's decision in Yeskey 
and the requirements of title II, however, it is critical that public 
entities provide these opportunities to inmates with disabilities. In 
proposed Sec. 35.152, the Department sought to clarify that title II 
required equal access for inmates with disabilities to participate in 
programs offered to inmates without disabilities.
    The Department wishes to emphasize that detention and correctional 
facilities are unique facilities under title II. Inmates cannot leave 
the facilities and must have their needs met by the corrections system, 
including needs relating to a disability. If the detention and 
correctional facilities fail to accommodate prisoners with disabilities, 
these individuals have little recourse, particularly when the need is 
great (e.g., an accessible toilet; adequate catheters; or a shower 
chair). It is essential that corrections systems fulfill their 
nondiscrimination and program access obligations by adequately 
addressing the needs of prisoners with disabilities, which include, but 
are not limited to, proper medication and medical treatment, accessible 
toilet and shower facilities, devices such as a bed transfer or a shower 
chair, and assistance with hygiene methods for prisoners with physical 
disabilities.
    In the NPRM, the Department also sought input on whether it should 
establish a program accessibility requirement that public entities 
modify additional cells at a detention or correctional facility to 
incorporate the accessibility features needed by specific inmates with 
mobility disabilities when the number of cells required by sections 
232.2 and 232.3 of the 2004 ADAAG are inadequate to meet the needs of 
their inmate population.
    Commenters supported a program accessibility requirement, viewing it 
as a flexible and practical means of allowing facilities to meet the 
needs of inmates in a cost effective and expedient manner. One 
organization supported a requirement to modify additional cells when the 
existing number of accessible cells is inadequate. It cited the example 
of a detainee who was held in a hospital because the local jail had no 
accessible cells. Similarly, a State agency recommended that the number 
of accessible cells should be sufficient to accommodate the population 
in need. One group of commenters voiced concern about accessibility 
being provided in a timely manner and recommended that the rule specify 
that the program accessibility requirement applies while waiting for the 
accessibility modifications. A group with experience addressing inmate 
needs recommended the inmate's input should be required to prevent 
inappropriate segregation or placement in an inaccessible or 
inappropriate area.
    The Department is persuaded by these comments. Accordingly, 
Sec. 35.152(b)(3) requires public entities to ``implement reasonable 
policies, including physical modifications to additional cells in 
accordance with the 2010 Standards, so as to ensure that each inmate 
with a disability is housed in a cell with the accessible elements 
necessary to afford the inmate access to safe, appropriate housing.''
    Communication. Several large disability advocacy organizations 
commented on the 2004 ADAAG section 232.2.2 requirement that at least 2 
percent of the general holding cells and housing cells must be equipped 
with audible emergency alarm systems. Permanently installed telephones 
within these cells must have volume control. Commenters said that the 
communication features in the 2004 ADAAG do not address the most common 
barriers that deaf and hard-of-hearing inmates face. They asserted that 
few cells have telephones and the requirements to make them accessible 
is limited to volume control, and that emergency alarm systems are only 
a small part of the amplified information that inmates need. One large 
association commented that it receives many inmate complaints that 
announcements are made over loudspeakers or public address systems, and 
that inmates who do not hear announcements for inmate count or other 
instructions face disciplinary action for failure to comply. They 
asserted that inmates who miss announcements miss meals, exercise, 
showers, and recreation. They argued that systems that deliver audible 
announcements, signals, and emergency alarms must be made accessible and 
that TTYs must be made available. Commenters also recommended that 
correctional facilities should provide access to advanced forms of 
telecommunications. Additional commenters noted that few persons now use 
TTYs, preferring instead to communicate by email, texting, and 
videophones.
    The Department agrees with the commenters that correctional 
facilities and jails must ensure that inmates who are deaf or hard of 
hearing actually receive the same information provided to other inmates. 
The

[[Page 664]]

Department believes, however, that the reasonable modifications, program 
access, and effective communications requirements of title II are 
sufficient to address the needs of individual deaf and hard of hearing 
inmates, and as a result, declines to add specific requirements for 
communications features in cells for deaf and hard of hearing inmates at 
this time. The Department notes that as part of its ongoing enforcement 
of the reasonable modifications, program access, and effective 
communications requirements of title II, the Department has required 
correctional facilities and jails to provide communication features in 
cells serving deaf and hard of hearing inmates.

                        Subpart E--Communications

                     Section 35.160  Communications.

    Section 35.160 of the 1991 title II regulation requires a public 
entity to take appropriate steps to ensure that communications with 
applicants, participants, and members of the public with disabilities 
are as effective as communications with others. 28 CFR 35.160(a). In 
addition, a public entity must ``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.'' 28 CFR 
35.160(b)(1). Moreover, the public entity must give ``primary 
consideration to the requests of the individual with disabilities'' in 
determining what type of auxiliary aid and service is necessary. 28 CFR 
35.160(b)(2).
    Since promulgation of the 1991 title II regulation, the Department 
has investigated hundreds of complaints alleging failures by public 
entities to provide effective communication, and many of these 
investigations resulted in settlement agreements and consent decrees. 
From these investigations, the Department has concluded that public 
entities sometimes misunderstand the scope of their obligations under 
the statute and the regulation. Section 35.160 in the final rule 
codifies the Department's longstanding policies in this area and 
includes provisions that reflect technological advances in the area of 
auxiliary aids and services.
    In the NPRM, the Department proposed adding ``companion'' to the 
scope of coverage under Sec. 35.160 to codify the Department's 
longstanding position that a public entity's obligation to ensure 
effective communication extends not just to applicants, participants, 
and members of the public with disabilities, but to companions as well, 
if any of them are individuals with disabilities. The NPRM defined 
companion as a person who is a family member, friend, or associate of a 
program participant, who, along with the program participant, is ``an 
appropriate person with whom the public entity should communicate.'' 73 
FR 34466, 34507 (June 17, 2008).
    Many commenters supported inclusion of ``companions'' in the rule, 
and urged even more specific language about public entities' 
obligations. Some commenters asked the Department to clarify that a 
companion with a disability may be entitled to effective communication 
from a public entity even though the applicants, participants, or 
members of the general public seeking access to, or participating in, 
the public entity's services, programs, or activities are not 
individuals with disabilities. Others requested that the Department 
explain the circumstances under which auxiliary aids and services should 
be provided to companions. Still others requested explicit clarification 
that where the individual seeking access to or participating in the 
public entity's program, services, or activities requires auxiliary aids 
and services, but the companion does not, the public entity may not seek 
out, or limit its communications to, the companion instead of 
communicating directly with the individual with a disability when it 
would be appropriate to do so.
    Some in the medical community objected to the inclusion of any 
regulatory language regarding companions, asserting that such language 
is overbroad, seeks services for individuals whose presence is not 
required by the public entity, is not necessary for the delivery of the 
services or participation in the program, and places additional burdens 
on the medical community. These commenters asked that the Department 
limit the public entity's obligation to communicate effectively with a 
companion to situations where such communications are necessary to serve 
the interests of the person who is receiving the public entity's 
services.
    After consideration of the many comments on this issue, the 
Department believes that explicit inclusion of ``companions'' in the 
final rule is appropriate to ensure that public entities understand the 
scope of their effective communication obligations. There are many 
situations in which the interests of program participants without 
disabilities require that their companions with disabilities be provided 
effective communication. In addition, the program participant need not 
be physically present to trigger the public entity's obligations to a 
companion. The controlling principle is that auxiliary aids and services 
must be provided if the companion is an appropriate person with whom the 
public entity should or would communicate.
    Examples of such situations include back-to-school nights or parent-
teacher conferences at a public school. If the faculty writes on the 
board or otherwise displays information in a visual context during a 
back-to-school night, this information must be communicated effectively 
to parents or guardians who are blind or have low vision.

[[Page 665]]

At a parent-teacher conference, deaf parents or guardians must be 
provided with appropriate auxiliary aids and services to communicate 
effectively with the teacher and administrators. It makes no difference 
that the child who attends the school does not have a disability. 
Likewise, when a deaf spouse attempts to communicate with public social 
service agencies about the services necessary for the hearing spouse, 
appropriate auxiliary aids and services to the deaf spouse must be 
provided by the public entity to ensure effective communication. Parents 
or guardians, including foster parents, who are individuals with 
disabilities, may need to interact with child services agencies on 
behalf of their children; in such a circumstance, the child services 
agencies would need to provide appropriate auxiliary aids and services 
to those parents or guardians.
    Effective communication with companions is particularly critical in 
health care settings where miscommunication may lead to misdiagnosis and 
improper or delayed medical treatment. The Department has encountered 
confusion and reluctance by medical care providers regarding the scope 
of their obligation with respect to such companions. Effective 
communication with a companion is necessary in a variety of 
circumstances. For example, a companion may be legally authorized to 
make health care decisions on behalf of the patient or may need to help 
the patient with information or instructions given by hospital 
personnel. A companion may be the patient's next-of-kin or health care 
surrogate with whom hospital personnel must communicate about the 
patient's medical condition. A companion could be designated by the 
patient to communicate with hospital personnel about the patient's 
symptoms, needs, condition, or medical history. Or the companion could 
be a family member with whom hospital personnel normally would 
communicate.
    Accordingly, Sec. 35.160(a)(1) in the final rule now reads, ``[a] 
public entity shall take appropriate steps to ensure that communications 
with applicants, participants, members of the public, and companions 
with disabilities are as effective as communications with others.'' 
Section 35.160(a)(2) further defines ``companion'' as ``a family member, 
friend, or associate of an individual seeking access to a service, 
program, or activity of a public entity, who, along with the individual, 
is an appropriate person with whom the public entity should 
communicate.'' Section 35.160(b)(1) clarifies that the obligation to 
furnish auxiliary aids and services extends to companions who are 
individuals with disabilities, whether or not the individual accompanied 
also is an individual with a disability. The provision now states that 
``[a] public entity shall furnish appropriate auxiliary aids and 
services where necessary to afford individuals with disabilities, 
including applicants, participants, companions, and members of the 
public, an equal opportunity to participate in, and enjoy the benefits 
of, a service, program, or activity of a public entity.''
    These provisions make clear that if the companion is someone with 
whom the public entity normally would or should communicate, then the 
public entity must provide appropriate auxiliary aids and services to 
that companion to ensure effective communication with the companion. 
This common-sense rule provides the guidance necessary to enable public 
entities to properly implement the nondiscrimination requirements of the 
ADA.
    As set out in the final rule, Sec. 35.160(b)(2) states, in pertinent 
part, that ``[t]he type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual, the nature, length, and complexity 
of the communication involved, and the context in which the 
communication is taking place. In determining what types of auxiliary 
aids and services are necessary, a public entity shall give primary 
consideration to the requests of individuals with disabilities.''
    The second sentence of Sec. 35.160(b)(2) of the final rule restores 
the ``primary consideration'' obligation set out at Sec. 35.160(b)(2) in 
the 1991 title II regulation. This provision was inadvertently omitted 
from the NPRM, and the Department agrees with the many commenters on 
this issue that this provision should be retained. As noted in the 
preamble to the 1991 title II regulation, and reaffirmed here: ``The 
public entity shall honor the choice [of the individual with a 
disability] 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.'' 28 CFR part 35, app. A at 580 
(2009).
    The first sentence in Sec. 35.160(b)(2) codifies the axiom that the 
type of auxiliary aid or service necessary to ensure effective 
communication will vary with the situation, and provides factors for 
consideration in making the determination, including the method of 
communication used by the individual; the nature, length, and complexity 
of the communication involved; and the context in which the 
communication is taking place. Inclusion of this language under title II 
is consistent with longstanding policy in this area. See, e.g., The 
Americans with Disabilities Act Title II Technical Assistance Manual 
Covering State and Local Government Programs and Services, section II-
7.1000, available at

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www.ada.gov/taman2.html (``The type of auxiliary aid or service 
necessary to ensure effective communication will vary in accordance with 
the length and complexity of the communication involved. * * * Sign 
language or oral interpreters, for example, may be required when the 
information being communicated in a transaction with a deaf individual 
is complex, or is exchanged for a lengthy period of time. 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.''); see also 28 CFR 
part 35, app. A at 580 (2009). As explained in the NPRM, an individual 
who is deaf or hard of hearing may need a qualified interpreter to 
communicate with municipal hospital personnel about diagnoses, 
procedures, tests, treatment options, surgery, or prescribed medication 
(e.g., dosage, side effects, drug interactions, etc.), or to explain 
follow-up treatments, therapies, test results, or recovery. In 
comparison, in a simpler, shorter interaction, the method to achieve 
effective communication can be more basic. An individual who is seeking 
local tax forms may only need an exchange of written notes to achieve 
effective communication.
    Section 35.160(c)(1) has been added to the final rule to make clear 
that a public entity shall not require an individual with a disability 
to bring another individual to interpret for him or her. The Department 
receives many complaints from individuals who are deaf or hard of 
hearing alleging that public entities expect them to provide their own 
sign language interpreters. Proposed Sec. 35.160(c)(1) was intended to 
clarify that when a public entity is interacting with a person with a 
disability, it is the public entity's responsibility to provide an 
interpreter to ensure effective communication. It is not appropriate to 
require the person with a disability to bring another individual to 
provide such services.
    Section 35.160(c)(2) of the NPRM proposed codifying the Department's 
position that there are certain limited instances when a public entity 
may rely on an accompanying individual to interpret or facilitate 
communication: (1) In an emergency involving a threat to the public 
safety or welfare; or (2) if the individual with a disability 
specifically requests it, the accompanying individual agrees to provide 
the assistance, and reliance on that individual for this assistance is 
appropriate under the circumstances.
    Many commenters supported this provision, but sought more specific 
language to address what they see as a particularly entrenched problem. 
Some commenters requested that the Department explicitly require the 
public entity first to notify the individual with a disability that the 
individual has a right to request and receive appropriate auxiliary aids 
and services without charge from the public entity before using that 
person's accompanying individual as a communication facilitator. 
Advocates stated that an individual who is unaware of his or her rights 
may decide to use a third party simply because he or she believes that 
is the only way to communicate with the public entity.
    The Department has determined that inclusion of specific language 
requiring notification is unnecessary. Section 35.160(b)(1) already 
states that is the responsibility of the public entity to provide 
auxiliary aids and services. Moreover, Sec. 35.130(f) already prohibits 
the public entity from imposing a surcharge on a particular individual 
with a disability or on any group of individuals with disabilities to 
cover the costs of auxiliary aids. However, the Department strongly 
advises public entities that they should first inform the individual 
with a disability that the public entity can and will provide auxiliary 
aids and services, and that there would be no cost for such aids or 
services.
    Many commenters requested that the Department make clear that the 
public entity cannot request, rely upon, or coerce an adult accompanying 
an individual with a disability to provide effective communication for 
that individual with a disability--that only a voluntary offer is 
acceptable. The Department states unequivocally that consent of, and 
for, the adult accompanying the individual with a disability to 
facilitate communication must be provided freely and voluntarily both by 
the individual with a disability and the accompanying third party--
absent an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available. The public entity may not coerce or attempt to persuade 
another adult to provide effective communication for the individual with 
a disability. Some commenters expressed concern that the regulation 
could be read by public entities, including medical providers, to 
prevent parents, guardians, or caregivers from providing effective 
communication for children or that a child, regardless of age, would 
have to specifically request that his or her caregiver act as 
interpreter. The Department does not intend Sec. 35.160(c)(2) to 
prohibit parents, guardians, or caregivers from providing effective 
communication for children where so doing would be appropriate. Rather, 
the rule prohibits public entities, including medical providers, from 
requiring, relying on, or forcing adults accompanying individuals with 
disabilities, including parents, guardians, or caregivers, to facilitate 
communication.
    Several commenters asked that the Department make absolutely clear 
that children are not to be used to provide effective communication for 
family members and

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friends, and that it is the public entity's responsibility to provide 
effective communication, stating that often interpreters are needed in 
settings where it would not be appropriate for children to be 
interpreting, such as those involving medical issues, domestic violence, 
or other situations involving the exchange of confidential or adult-
related material. Commenters observed that children are often hesitant 
to turn down requests to provide communication services, and that such 
requests put them in a very difficult position vis-a-vis family members 
and friends. The Department agrees. It is the Department's position that 
a public entity shall not rely on a minor child to facilitate 
communication with a family member, friend, or other individual, except 
in an emergency involving imminent threat to the safety or welfare of an 
individual or the public where there is no interpreter available. 
Accordingly, the Department has revised the rule to state: ``A public 
entity shall not rely on a minor child to interpret or facilitate 
communication, except in an emergency involving imminent threat to the 
safety or welfare of an individual or the public where there is no 
interpreter available.'' Sec. 35.160(c)(3). Sections 35.160(c)(2) and 
(3) have no application in circumstances where an interpreter would not 
otherwise be required in order to provide effective communication (e.g., 
in simple transactions such as purchasing movie tickets at a theater). 
The Department stresses that privacy and confidentiality must be 
maintained but notes that covered entities, such as hospitals, that are 
subject to the Health Insurance Portability and Accountability Act of 
1996 (HIPAA), Public Law 104-191, Privacy Rules are permitted to 
disclose to a patient's relative, close friend, or any other person 
identified by the patient (such as an interpreter) relevant patient 
information if the patient agrees to such disclosures. See 45 CFR parts 
160 and 164. The agreement need not be in writing. Covered entities 
should consult the HIPAA Privacy Rules regarding other ways disclosures 
might be able to be made to such persons.
    With regard to emergency situations, the NPRM proposed permitting 
reliance on an individual accompanying an individual with a disability 
to interpret or facilitate communication in an emergency involving a 
threat to the public safety or welfare. Commenters requested that the 
Department make clear that often a public entity can obtain appropriate 
auxiliary aids and services in advance of an emergency by making 
necessary advance arrangements, particularly in anticipated emergencies 
such as predicted dangerous weather or certain medical situations such 
as childbirth. These commenters did not want public entities to be 
relieved of their responsibilities to provide effective communication in 
emergency situations, noting that the obligation to provide effective 
communication may be more critical in such situations. Several 
commenters requested a separate rule that requires public entities to 
provide timely and effective communication in the event of an emergency, 
noting that the need for effective communication escalates in an 
emergency.
    Commenters also expressed concern that public entities, particularly 
law enforcement authorities and medical personnel, would apply the 
``emergency situation'' provision in inappropriate circumstances and 
would rely on accompanying individuals without making any effort to seek 
appropriate auxiliary aids and services. Other commenters asked that the 
Department narrow this provision so that it would not be available to 
entities that are responsible for emergency preparedness and response. 
Some commenters noted that certain exigent circumstances, such as those 
that exist during and perhaps immediately after, a major hurricane, 
temporarily may excuse public entities of their responsibilities to 
provide effective communication. However, they asked that the Department 
clarify that these obligations are ongoing and that, as soon as such 
situations begin to abate or stabilize, the public entity must provide 
effective communication.
    The Department recognizes that the need for effective communication 
is critical in emergency situations. After due consideration of all of 
these concerns raised by commenters, the Department has revised 
Sec. 35.160(c) to narrow the exception permitting reliance on 
individuals accompanying the individual with a disability during an 
emergency to make it clear that it only applies to emergencies involving 
an ``imminent threat to the safety or welfare of an individual or the 
public.'' See Sec. 35.160(c)(2)-(3). Arguably, all visits to an 
emergency room or situations to which emergency workers respond are by 
definition emergencies. Likewise, an argument can be made that most 
situations that law enforcement personnel respond to involve, in one way 
or another, a threat to the safety or welfare of an individual or the 
public. The imminent threat exception in Sec. 35.160(c)(2)-(3) is not 
intended to apply to the typical and foreseeable emergency situations 
that are part of the normal operations of these institutions. As such, a 
public entity may rely on an accompanying individual to interpret or 
facilitate communication under the Sec. 35.160(c)(2)-(3) imminent threat 
exception only where in truly exigent circumstances, i.e., where any 
delay in providing immediate services to the individual could have life-
altering or life-ending consequences.
    Many commenters urged the Department to stress the obligation of 
State and local courts to provide effective communication.

[[Page 668]]

The Department has received many complaints that State and local courts 
often do not provide needed qualified sign language interpreters to 
witnesses, litigants, jurors, potential jurors, and companions and 
associates of persons participating in the legal process. The Department 
cautions public entities that without appropriate auxiliary aids and 
services, such individuals are denied an opportunity to participate 
fully in the judicial process, and denied benefits of the judicial 
system that are available to others.
    Another common complaint about access to State and local court 
systems is the failure to provide effective communication in deferral 
programs that are intended as an alternative to incarceration, or for 
other court-ordered treatment programs. These programs must provide 
effective communication, and courts referring individuals with 
disabilities to such programs should only refer individuals with 
disabilities to programs or treatment centers that provide effective 
communication. No person with a disability should be denied access to 
the benefits conferred through participation in a court-ordered referral 
program on the ground that the program purports to be unable to provide 
effective communication.
    The general nondiscrimination provision in Sec. 35.130(a) provides 
that no 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. The Department 
consistently interprets this provision and Sec. 35.160 to require 
effective communication in courts, jails, prisons, and with law 
enforcement officers. Persons with disabilities who are participating in 
the judicial process as witnesses, jurors, prospective jurors, parties 
before the court, or companions of persons with business in the court, 
should be provided auxiliary aids and services as needed for effective 
communication. The Department has developed a variety of technical 
assistance and guidance documents on the requirements for title II 
entities to provide effective communication; those materials are 
available on the Department Web site at: http://www.ada.gov.
    Many advocacy groups urged the Department to add language in the 
final rule that would require public entities to provide accessible 
material in a manner that is timely, accurate, and private. The 
Department has included language in Sec. 35.160(b)(2) stating that 
``[i]n order to be effective, auxiliary aids and services must be 
provided in accessible formats, in a timely manner, and in such a way so 
as to protect the privacy and independence of the individual with a 
disability.''
    Because the appropriateness of particular auxiliary aids and 
services may vary as a situation changes, the Department strongly 
encourages public entities to do a communication assessment of the 
individual with a disability when the need for auxiliary aids and 
services is first identified, and to re-assess communication 
effectiveness regularly throughout the communication. For example, a 
deaf individual may go to an emergency department of a public community 
health center with what is at first believed to be a minor medical 
emergency, such as a sore knee, and the individual with a disability and 
the public community health center both believe that exchanging written 
notes will be effective. However, during that individual's visit, it is 
determined that the individual is, in fact, suffering from an anterior 
cruciate ligament tear and must have surgery to repair the torn 
ligament. As the situation develops and the diagnosis and recommended 
course of action evolve into surgery, an interpreter most likely will be 
necessary. A public entity has a continuing obligation to assess the 
auxiliary aids and services it is providing, and should consult with 
individuals with disabilities on a continuing basis to assess what 
measures are required to ensure effective communication. Public entities 
are further advised to keep individuals with disabilities apprised of 
the status of the expected arrival of an interpreter or the delivery of 
other requested or anticipated auxiliary aids and services.
    Video remote interpreting (VRI) services. In Sec. 35.160(d) of the 
NPRM, the Department proposed the inclusion of four performance 
standards for VRI (which the NPRM termed video interpreting services 
(VIS)), for effective communication: (1) High-quality, clear, real-time, 
full-motion video and audio over a dedicated high-speed Internet 
connection; (2) a clear, sufficiently large, and sharply delineated 
picture of the participating individual's head, arms, hands, and 
fingers, regardless of his body position; (3) clear transmission of 
voices; and (4) persons who are trained to set up and operate the VRI 
quickly. Commenters generally approved of those performance standards, 
but recommended that some additional standards be included in the final 
rule. Some State agencies and advocates for persons with disabilities 
requested that the Department add more detail in the description of the 
first standard, including modifying the term ``dedicated high-speed 
Internet connection'' to read ``dedicated high-speed, wide-bandwidth 
video connection.'' These commenters argued that this change was 
necessary to ensure a high-quality video image that will not produce 
lags, choppy images, or irregular pauses in communication. The 
Department agrees with those comments and has amended the provision in 
the final rule accordingly.
    For persons who are deaf with limited vision, commenters requested 
that the Department include an explicit requirement that interpreters 
wear high-contrast clothing with no patterns that might distract from

[[Page 669]]

their hands as they are interpreting, so that a person with limited 
vision can see the signs made by the interpreter. While the Department 
reiterates the importance of such practices in the delivery of effective 
VRI, as well as in-person interpreting, the Department declines to adopt 
such performance standards as part of this rule. In general, 
professional interpreters already follow such practices--the Code of 
Professional Conduct for interpreters developed by the Registry of 
Interpreters for the Deaf, Inc. and the National Association of the Deaf 
incorporates attire considerations into their standards of 
professionalism and conduct. (This code is available at http://
www.vid.org/userfiles/file/pdfs/codeofethics.pdf (Last visited July 18, 
2010). Moreover, as a result of this code, many VRI agencies have 
adopted detailed dress standards that interpreters hired by the agency 
must follow. In addition, commenters urged that a clear image of the 
face and eyes of the interpreter and others be explicitly required. 
Because the face includes the eyes, the Department has amended 
Sec. 35.160(d)(2) of the final rule to include a requirement that the 
interpreter's face be displayed.
    In response to comments seeking more training for users and non-
technicians responsible for VRI in title II facilities, the Department 
is extending the requirement in Sec. 35.160(d)(4) to require training 
for ``users of the technology'' so that staff who would have reason to 
use the equipment in an emergency room, State or local court, or 
elsewhere are properly trained. Providing for such training will enhance 
the success of VRI as means of providing effective communication.
    Captioning at sporting venues. In the NPRM at Sec. 35.160(e), the 
Department proposed that sports stadiums that have a capacity of 25,000 
or more shall provide captioning for safety and emergency information on 
scoreboards and video monitors. In addition, the Department posed four 
questions about captioning of information, especially safety and 
emergency information announcements, provided over public address (PA) 
systems. The Department received many extremely detailed and divergent 
responses to each of the four questions and the proposed regulatory 
text. Because comments submitted on the Department's title II and title 
III proposals were intertwined, because of the similarity of issues 
involved for title II entities and title III entities, and in 
recognition of the fact that many large sports stadiums are covered by 
both title II and title III as joint operations of State or local 
governments and one or more public accommodations, the Department 
presents here a single consolidated review and summary of the issues 
raised in comments.
    The Department asked whether requiring captioning of safety and 
emergency information made over the public address system in stadiums 
seating fewer than 25,000 would create an undue burden for smaller 
entities, whether it would be feasible for small stadiums, or whether a 
larger threshold, such as sports stadiums with a capacity of 50,000 or 
more, would be appropriate.
    There was a consensus among the commenters, including disability 
advocates as well as venue owners and stadium designers and operators, 
that using the stadium size or seating capacity as the exclusive 
deciding factor for any obligation to provide captioning for safety and 
emergency information broadcast over the PA system is not preferred. 
Most disability advocacy organizations and individuals with disabilities 
complained that using size or seating capacity as a threshold for 
captioning safety and emergency information would undermine the ``undue 
burden'' defense found in both titles II and III. Many commenters 
provided examples of facilities like professional hockey arenas that 
seat less than 25,000 fans but which, commenters argued, should be able 
to provide real-time captioning. Other commenters suggested that some 
high school or college stadiums, for example, may hold 25,000 fans or 
more and yet lack the resources to provide real-time captioning. Many 
commenters noted that real-time captioning would require trained 
stenographers and that most high school and college sports facilities 
rely upon volunteers to operate scoreboards and PA systems, and they 
would not be qualified stenographers, especially in case of an 
emergency. One national association noted that the typical stenographer 
expense for a professional football game in Washington, DC is about $550 
per game. Similarly, one trade association representing venues estimated 
that the cost for a professional stenographer at a sporting event runs 
between $500 and $1,000 per game or event, the cost of which, they 
argued, would be unduly burdensome in many cases. Some commenters 
posited that schools that do not sell tickets to athletic events would 
find it difficult to meet such expenses, in contrast to major college 
athletic programs and professional sports teams, which would be less 
likely to prevail using an ``undue burden'' defense.
    Some venue owners and operators and other covered entities argued 
that stadium size should not be the key consideration when requiring 
scoreboard captioning. Instead, these entities suggested that equipment 
already installed in the stadium, including necessary electrical 
equipment and backup power supply, should be the determining factor for 
whether captioning is mandated. Many commenters argued that the 
requirement to provide captioning should only apply to stadiums with 
scoreboards that meet the National Fire Protection Association (NFPA) 
National Fire Alarm Code

[[Page 670]]

(NFPA 72). Commenters reported that NFPA 72 requires at least two 
independent and reliable power supplies for emergency information 
systems, including one source that is a generator or battery sufficient 
to run the system in the event the primary power fails. Alternatively, 
some stadium designers and title II entities commented that the 
requirement should apply when the facility has at least one elevator 
providing firefighter emergency operation, along with approval of 
authorities with responsibility for fire safety. Other commenters argued 
for flexibility in the requirements for providing captioning and that 
any requirement should only apply to stadiums constructed after the 
effective date of the regulation.
    In the NPRM, the Department also asked whether the rule should 
address the specific means of captioning equipment, whether it should be 
provided through any effective means (scoreboards, line boards, handheld 
devices, or other means), or whether some means, such as handheld 
devices, should be eliminated as options. This question elicited many 
comments from advocates for persons with disabilities as well as from 
covered entities. Advocacy organizations and individuals with experience 
using handheld devices argue that such devices do not provide effective 
communication. These commenters noted that information is often delayed 
in the transmission to such devices, making them hard to use when 
following action on the playing field or in the event of an emergency 
when the crowd is already reacting to aural information provided over 
the PA system well before it is received on the handheld device.
    Several venue owners and operators and others commented that 
handheld technology offers advantages of flexibility and portability so 
that it may be used successfully regardless of where in the facility the 
user is located, even when not in the line of sight of a scoreboard or 
other captioning system. Still other commenters urged the Department not 
to regulate in such a way as to limit innovation and use of such 
technology now and in the future. Cost considerations were included in 
some comments from some stadium designers and venue owners and 
operators, who reported that the cost of providing handheld systems is 
far less than the cost of real-time captioning on scoreboards, 
especially in facilities that do not currently have the capacity to 
provide real-time captions on existing equipment. Others noted that 
handheld technology is not covered by fire and safety model codes, 
including the NFPA, and thus would be more easily adapted into existing 
facilities if captioning were required by the Department.
    The Department also asked about providing open captioning of all 
public address announcements, and not limiting captioning to safety and 
emergency information. A variety of advocates and persons with 
disabilities argued that all information broadcast over a PA system 
should be captioned in real time at all facilities in order to provide 
effective communication and that a requirement only to provide emergency 
and safety information would not be sufficient. A few organizations for 
persons with disabilities commented that installation of new systems 
should not be required, but that all systems within existing facilities 
that are capable of providing captioning must be utilized to the maximum 
extent possible to provide captioning of as much information as 
possible. Several organizations representing persons with disabilities 
commented that all facilities must include in safety planning the 
requirement to caption all aurally-provided information for patrons with 
communication disabilities. Some advocates suggested that demand for 
captions will only increase as the number of deaf and hard of hearing 
persons grows with the aging of the general population and with 
increasing numbers of veterans returning from war with disabilities. 
Multiple comments noted that the captioning would benefit others as well 
as those with communication disabilities.
    By contrast, venue owners and operators and others commented that 
the action on the sports field is self-explanatory and does not require 
captioning and they objected to an explicit requirement to provide real-
time captioning for all information broadcast on the PA system at a 
sporting event. Other commenters objected to requiring captioning even 
for emergency and safety information over the scoreboard rather than 
through some other means. By contrast, venue operators, State government 
agencies, and some model code groups, including NFPA, commented that 
emergency and safety information must be provided in an accessible 
format and that public safety is a paramount concern. Other commenters 
argued that the best method to deliver safety and emergency information 
would be television monitors showing local TV broadcasts with captions 
already mandated by the FCC. Some commenters posited that the most 
reliable information about a major emergency would be provided on the 
television news broadcasts. Several commenters argued that television 
monitors may be located throughout the facility, improving line of sight 
for patrons, some of whom might not be able to see the scoreboard from 
their seats or elsewhere in the facility. Some stadium designers, venue 
operators, and model code groups pointed out that video monitors are not 
regulated by the NFPA or other agencies, so that such monitors could be 
more easily provided. Video monitors may receive transmissions from 
within the facility and could provide real-time captions if there is the 
necessary software and equipment to feed the captioning signal to a 
closed video network

[[Page 671]]

within the facility. Several comments suggested that using monitors 
would be preferable to requiring captions on the scoreboard if the 
regulation mandates real-time captioning. Some venue owners and 
operators argued that retrofitting existing stadiums with new systems 
could easily cost hundreds of thousands of dollars per scoreboard or 
system. Some stadium designers and others argued that captioning should 
only be required in stadiums built after the effective date of the 
regulation. For stadiums with existing systems that allow for real-time 
captioning, one commenter posited that dedicating the system exclusively 
to real-time captioning would lead to an annual loss of between $2 and 
$3 million per stadium in revenue from advertising currently running in 
that space.
    After carefully considering the wide range of public comments on 
this issue, the Department has concluded that the final rule will not 
provide additional requirements for effective communication or emergency 
information provided at sports stadiums at this time. The 1991 title II 
and title III regulations and statutory requirements are not in any way 
affected by this decision. The decision to postpone rulemaking on this 
complex issue is based on a number of factors, including the multiple 
layers of existing regulation by various agencies and levels of 
government, and the wide array of information, requests, and 
recommendations related to developing technology offered by the public. 
In addition, there is a huge variety of covered entities, information 
and communication systems, and differing characteristics among sports 
stadiums. The Department has concluded that further consideration and 
review would be prudent before it issues specific regulatory 
requirements.

                   Section 35.161  Telecommunications.

    The Department proposed to retitle this section 
``Telecommunications'' to reflect situations in which the public entity 
must provide an effective means to communicate by telephone for 
individuals with disabilities. First, the NPRM proposed redesignating 
Sec. 35.161 as Sec. 35.161(a) and replacing the term 
``Telecommunications devices for the deaf (TDD)'' with ``Text telephones 
(TTY).'' Public comment was universally supportive of this change in 
nomenclature to TTY.
    In the NPRM, at Sec. 35.161(b), the Department addressed automated-
attendant systems that handle telephone calls electronically. Often 
individuals with disabilities, including persons who are deaf or hard of 
hearing, are unable to use such automated systems. Some systems are not 
compatible with TTYs or the telecommunications relay service. Automated 
systems can and often do disconnect calls from TTYs or relay calls, 
making it impossible for persons using a TTY or relay system to do 
business with title II entities in the same manner as others. The 
Department proposed language that would require a telecommunications 
service to permit persons using relay or TTYs or other assistive 
technology to use the automated-attendant system provided by the public 
entity. The FCC raised this concern with the Department after the 1991 
title II regulation went into effect, and the Department acted upon that 
request in the NPRM. Comments from disability advocates and persons with 
disabilities consistently requested the provision be amended to cover 
``voice mail, messaging, auto-attendant, and interactive voice response 
systems.'' The Department recognizes that those are important features 
of widely used telecommunications technology that should be as 
accessible to persons who are deaf or hard of hearing as they are to 
others, and has amended the section in the final rule to include the 
additional features.
    Many commenters, including advocates and persons with disabilities, 
as well as State agencies and national organizations, asked that all 
automated systems have an option for the caller to bypass the automated 
system and speak to a live person who could communicate using relay 
services. The Department understands that automated telecommunications 
systems typically do not offer the opportunity to avoid or bypass the 
automated system and speak to a live person. The Department believes 
that at this time it is inappropriate to add a requirement that all such 
systems provide an override capacity that permits a TTY or relay caller 
to speak with a live clerk on a telecommunications relay system. 
However, if a system already provides an option to speak to a person, 
that system must accept TTY and relay calls and must not disconnect or 
refuse to accept such calls.
    Other comments from advocacy organizations and individuals urged the 
Department to require specifications for the operation of such systems 
that would involve issuing technical requirements for encoding and 
storage of automated text, as well as controls for speed, pause, rewind, 
and repeat, and prompts without any background noise. The same comments 
urged that these requirements should be consistent with a pending 
advisory committee report to the Access Board, submitted in April 2008. 
See Telecommunications and Electronic Information Technology Advisory 
Committee, Report to the Access Board Refreshed Accessibility Standards 
and Guidelines in Telecommunications and Electronic and Information 
Technology (Apr. 2008) available at http://www.access-board.gov/sec508/
refresh/report/. The Department is declining at this time to preempt 
ongoing consideration of these issues by the Board. Instead, the 
Department

[[Page 672]]

will monitor activity by the Board. The Department is convinced that the 
general requirement to make such automated systems usable by persons 
with disabilities is appropriate at this time and title II entities 
should evaluate their automated systems in light of concerns about 
providing systems that offer effective communication to persons with 
disabilities.
    Finally, the Department has adopted in Sec. 35.161(c) of the final 
rule the requirement that all such systems must not disconnect or refuse 
to take calls from all forms of FCC-approved telecommunications relay 
systems, including Internet-based relay systems. (Internet-based relay 
systems refer to the mechanism by which the message is relayed). They do 
not require a public entity to have specialized computer equipment. 
Commenters from some State agencies, many advocacy organizations, and 
individuals strongly urged the Department to mandate such action because 
of the high proportion of TTY calls and relay service calls that are not 
completed because the title II entity's phone system or employees do not 
take the calls. This presents a serious obstacle for persons doing 
business with State and local government and denies persons with 
disabilities access to use the telephone for business that is typically 
handled over the phone for others.
    In addition, commenters requested that the Department include 
``real-time'' before any mention of ``computer-aided'' technology to 
highlight the value of simultaneous translation of any communication. 
The Department has added ``real-time'' before ``computer-aided 
transcription services'' in the definition of ``auxiliary aids in 
Sec. 35.104 and before ``communication'' in Sec. 35.161(b).

                    Subpart F--Compliance Procedures

                Section 35.171  Acceptance of complaints.

    In the NPRM, the Department proposed changing the current language 
in Sec. 35.171(a)(2)(i) regarding misdirected complaints to make it 
clear that if an agency receives a complaint for which it lacks 
jurisdiction either under section 504 or as a designated agency under 
the ADA, the agency may refer the complaint to the appropriate agency 
with title II or section 504 jurisdiction or to the Department of 
Justice. The language of the 1991 title II regulation only requires the 
agency to refer such a complaint to the Department, which in turn refers 
the complaint to the appropriate designated agency. The proposed 
revisions to Sec. 35.171 made it clear that an agency can refer a 
misdirected complaint either directly to the appropriate agency or to 
the Department. This amendment was intended to protect against the 
unnecessary backlogging of complaints and to prevent undue delay in an 
agency taking action on a complaint.
    Several commenters supported this amendment as a more efficient 
means of directing title II complaints to the appropriate enforcing 
agency. One commenter requested that the Department emphasize the need 
for timeliness in referring a complaint. The Department does not believe 
it is appropriate to adopt a specific time frame but will continue to 
encourage designated agencies to make timely referrals. The final rule 
retains, with minor modifications, the language in proposed 
Sec. 35.171(a)(2)(i). The Department has also amended 
Sec. 35.171(a)(2)(ii) to be consistent with the changes in the rule at 
Sec. 35.190(e), as discussed below.

         Section 35.172  Investigations and compliance reviews.

    In the NPRM, the Department proposed a number of changes to language 
in Sec. 35.172 relating to the resolution of complaints. Subtitle A of 
title II of the ADA defines the remedies, procedures, and rights 
provided for qualified individuals with disabilities who are 
discriminated against on the basis of disability in the services, 
programs, or activities of State and local governments. 42 U.S.C. 12131-
12134. Subpart F of the current regulation establishes administrative 
procedures for the enforcement of title II of the ADA. 28 CFR 35.170-
35.178. Subpart G identifies eight ``designated agencies,'' including 
the Department, that have responsibility for investigating complaints 
under title II. See 28 CFR 35.190(b).
    The Department's 1991 title II regulation is based on the 
enforcement procedures established in regulations implementing section 
504. Thus, the Department's 1991 title II regulation provides that the 
designated agency ``shall investigate each complete complaint'' alleging 
a violation of title II and shall ``attempt informal resolution'' of 
such complaint. 28 CFR 35.172(a). The full range of remedies (including 
compensatory damages) that are available to the Department when it 
resolves a complaint or resolves issues raised in a compliance review 
are available to designated agencies when they are engaged in informal 
complaint resolution or resolution of issues raised in a compliance 
review under title II.
    In the years since the 1991 title II regulation went into effect, 
the Department has received many more complaints alleging violations of 
title II than its resources permit it to resolve. The Department has 
reviewed each complaint that the Department has received and directed 
its resources to resolving the most critical matters. In the NPRM, the 
Department proposed deleting the word ``each'' as it appears before 
``complaint'' in Sec. 35.172(a) of the 1991 title II regulation as a 
means of clarifying that designated agencies may exercise discretion in 
selecting title II complaints for resolution.

[[Page 673]]

    Many commenters opposed the removal of the term ``each,'' requesting 
that all title II complaints be investigated. The commenters explained 
that complaints against title II entities implicate the fundamental 
right of access to government facilities and programs, making an 
administrative enforcement mechanism critical. Rather than aligning 
enforcement discretion of title II complaints with the discretion under 
the enforcement procedures of title III, the commenters favored 
obtaining additional resources to address more complaints. The 
commenters highlighted the advantage afforded by Federal involvement in 
complaint investigations in securing favorable voluntary resolutions. 
When Federal involvement results in settlement agreements, commenters 
believed those agreements are more persuasive to other public entities 
than private settlements. Private litigation as a viable alternative was 
rejected by the commenters because of the financial limitations of many 
complainants, and because in some scenarios legal barriers foreclose 
private litigation as an option.
    Several of those opposing this amendment argued that designated 
agencies are required to investigate each complaint under section 504, 
and a departure for title II complaints would be an inconsistency. The 
Department believes that Sec. 35.171(a) of the final rule is consistent 
with the obligation to evaluate all complaints. However, there is no 
statutory requirement that every title II complaint receive a full 
investigation. Section 203 of the ADA, 42 U.S.C. 12133, adopts the 
``remedies, procedures, and rights set forth in section 505 of the 
Rehabilitation Act of 1973'' (29 U.S.C. 794a). Section 505 of the 
Rehabilitation Act, in turn, incorporates the remedies available under 
title VI of the Civil Rights Act of 1964 into section 504. Under these 
statutes, agencies may engage in conscientious enforcement without fully 
investigating each citizen complaint. An agency's decision to conduct a 
full investigation requires a complicated balancing of a number of 
factors that are particularly within its expertise. Thus, the agency 
must not only assess whether a violation may have occurred, but also 
whether agency resources are best spent on this complaint or another, 
whether the agency is likely to succeed if it acts, and whether the 
particular enforcement action requested best fits the agency's overall 
policies. Availability of resources will always be a factor, and the 
Department believes discretion to maximize these limited resources will 
result in the most effective enforcement program. If agencies are bound 
to investigate each complaint fully, regardless of merit, such a 
requirement could have a deleterious effect on their overall enforcement 
efforts. The Department continues to expect that each designated agency 
will review the complaints the agency receives to determine whether 
further investigation is appropriate.
    The Department also proposed revising Sec. 35.172 to add a new 
paragraph (b) that provided explicit authority for compliance reviews 
consistent with the Department's longstanding position that such 
authority exists. The proposed section stated, ``[t]he designated agency 
may conduct compliance reviews of public entities based on information 
indicating a possible failure to comply with the nondiscrimination 
requirements of this part.'' Several commenters supported this 
amendment, identifying title III compliance reviews as having been a 
successful means for the Department and designated agencies to improve 
accessibility. The Department has retained this section. However, the 
Department has modified the language of the section to make the 
authority to conduct compliance reviews consistent with that available 
under section 504 and title VI. See, e.g., 28 CFR 42.107(a). The new 
provision reads as follows: ``(b) The designated agency may conduct 
compliance reviews of public entities in order to ascertain whether 
there has been a failure to comply with the nondiscrimination 
requirements of this part.'' The Department has also added a provision 
to Sec. 35.172(c)(2) clarifying the Department's longstanding view that 
agencies may obtain compensatory damages on behalf of complainants as 
the result of a finding of discrimination pursuant to a compliance 
review or in informal resolution of a complaint.
    Finally, in the NPRM, the Department proposed revising the 
requirements for letters of findings for clarification and to reflect 
current practice. Section 35.172(a) of the 1991 title II regulation 
required designated agencies to issue a letter of findings at the 
conclusion of an investigation if the complaint was not resolved 
informally, and to attempt to negotiate a voluntary compliance agreement 
if a violation was found. The Department's proposed changes to the 1991 
title II regulation moved the discussion of letters of findings to a new 
paragraph (c) in the NPRM, and clarified that letters of findings are 
only required when a violation is found.
    One commenter opposed the proposal to eliminate the obligation of 
the Department and designated agencies to issue letters of finding at 
the conclusion of every investigation. The commenter argued that it is 
beneficial for public entities, as well as complainants, for the 
Department to provide a reasonable explanation of both compliance and 
noncompliance findings.
    The Department has considered this comment but continues to believe 
that this change will promote the overall effectiveness of its 
enforcement program. The final rule retains the proposed language.

[[Page 674]]

                     Subpart G--Designated Agencies

                  Section 35.190  Designated agencies.

    Subpart G of the 1991 title II regulation designates specific 
Federal agencies to investigate certain title II complaints. Paragraph 
35.190(b) specifies these agency designations. Paragraphs 35.190(c) and 
(d), respectively, grant the Department discretion to designate further 
oversight responsibilities for matters not specifically assigned or 
where there are apparent conflicts of jurisdiction. The NPRM proposed 
adding a new Sec. 35.190(e) further refining procedures for complaints 
filed with the Department of Justice. Proposed Sec. 35.190(e) provides 
that when the Department receives a complaint alleging a violation of 
title II that is directed to the Attorney General but may fall within 
the jurisdiction of a designated agency or another Federal agency with 
jurisdiction under section 504, the Department may exercise its 
discretion to retain the complaint for investigation under this part. 
The Department would, of course, consult with the designated agency when 
the Department plans to retain a complaint. In appropriate 
circumstances, the Department and the designated agency may conduct a 
joint investigation.
    Several commenters supported this amendment as a more efficient 
means of processing title II complaints. The commenters supported the 
Department using its discretion to conduct timely investigations of such 
complaints. The language of the proposed Sec. 35.190(e) remains 
unchanged in the final rule.

                              Other Issues

 Questions Posed in the NPRM Regarding Costs and Benefits of Complying 
                         With the 2010 Standards

    In the NPRM, the Department requested comment on various cost and 
benefit issues related to eight requirements in the Department's Initial 
Regulatory Impact Analysis (Initial RIA), available at ada.gov/NPRM2008/
ria.htm), that were projected to have incremental costs exceeding 
monetized benefits by more than $100 million when using the 1991 
Standards as the comparative baseline, i.e., side reach, water closet 
clearances in single-user toilet rooms with in-swinging doors, stairs, 
elevators, location of accessible routes to stages, accessible attorney 
areas and witness stands, assistive listening systems, and accessible 
teeing grounds, putting greens, and weather shelters at golf courses. 73 
FR 34466, 34469 (June 17, 2008). The Department noted that pursuant to 
the ADA, the Department does not have statutory authority to modify the 
2004 ADAAG and is required instead to issue regulations implementing the 
ADA that are consistent with the Board's guidelines. In that regard, the 
Department also requested comment about whether any of these eight 
elements in the 2010 Standards should be returned to the Access Board 
for further consideration, in particular as applied to alterations. Many 
of the comments received by the Department in response to these 
questions addressed both titles II and III. As a result, the 
Department's discussion of these comments and its response are 
collectively presented for both titles.
    Side reach. The 1991 Standards at section 4.2.6 establish a maximum 
side-reach height of 54 inches. The 2010 Standards at section 308.3 
reduce that maximum height to 48 inches. The 2010 Standards also add 
exceptions for certain elements to the scoping requirement for operable 
parts.
    The vast majority of comments the Department received were in 
support of the lower side-reach maximum of 48 inches in the 2010 
Standards. Most of these comments, but not all, were received from 
individuals of short stature, relatives of individuals of short stature, 
or organizations representing the interests of persons with 
disabilities, including individuals of short stature. Comments from 
individuals with disabilities and disability advocacy groups stated that 
the 48-inch side reach would permit independence in performing many 
activities of daily living for individuals with disabilities, including 
individuals of short stature, persons who use wheelchairs, and persons 
who have limited upper body strength. In this regard, one commenter who 
is a business owner pointed out that as a person of short stature there 
were many occasions when he was unable to exit a public restroom 
independently because he could not reach the door handle. The commenter 
said that often elevator control buttons are out of his reach and, if he 
is alone, he often must wait for someone else to enter the elevator so 
that he can ask that person to press a floor button for him. Another 
commenter, who is also a person of short stature, said that he has on 
several occasions pulled into a gas station only to find that he was 
unable to reach the credit card reader on the gas pump. Unlike other 
customers who can reach the card reader, swipe their credit or debit 
cards, pump their gas and leave the station, he must use another method 
to pay for his gas. Another comment from a person of short stature 
pointed out that as more businesses take steps to reduce labor costs--a 
trend expected to continue--staffed booths are being replaced with 
automatic machines for the sale, for example, of parking tickets and 
other products. He observed that the ``ability to access and operate 
these machines becomes ever more critical to function in society,'' and, 
on that basis, urged the Department to adopt the 48-inch side-reach 
requirement. Another individual commented that persons of short stature 
should not have to carry with them

[[Page 675]]

adaptive tools in order to access building or facility elements that are 
out of their reach, any more than persons in wheelchairs should have to 
carry ramps with them in order to gain access to facilities.
    Many of the commenters who supported the revised side-reach 
requirement pointed out that lowering the side-reach requirement to 48 
inches would avoid a problem sometimes encountered in the built 
environment when an element was mounted for a parallel approach at 54 
inches only to find afterwards that a parallel approach was not 
possible. Some commenters also suggested that lowering the maximum 
unobstructed side reach to 48 inches would reduce confusion among design 
professionals by making the unobstructed forward and side-reach maximums 
the same (the unobstructed forward reach in both the 1991 and 2010 
Standards is 48 inches maximum). These commenters also pointed out that 
the ICC/ANSI A117.1 Standard, which is a private sector model 
accessibility standard, has included a 48-inch maximum high side-reach 
requirement since 1998. Many jurisdictions have already incorporated 
this requirement into their building codes, which these commenters 
believed would reduce the cost of compliance with the 2010 Standards. 
Because numerous jurisdictions have already adopted the 48-inch side-
reach requirement, the Department's failure to adopt the 48-inch side-
reach requirement in the 2010 Standards, in the view of many commenters, 
would result in a significant reduction in accessibility, and would 
frustrate efforts that have been made to harmonize private sector model 
construction and accessibility codes with Federal accessibility 
requirements. Given these concerns, they overwhelmingly opposed the idea 
of returning the revised side-reach requirement to the Access Board for 
further consideration.
    The Department also received comments in support of the 48-inch 
side-reach requirement from an association of professional commercial 
property managers and operators and from State governmental entities. 
The association of property managers pointed out that the revised side-
reach requirement provided a reasonable approach to ``regulating 
elevator controls and all other operable parts'' in existing facilities 
in light of the manner in which the safe harbor, barrier removal, and 
alterations obligations will operate in the 2010 Standards. One 
governmental entity, while fully supporting the 48-inch side-reach 
requirement, encouraged the Department to adopt an exception to the 
lower reach range for existing facilities similar to the exception 
permitted in the ICC/ANSI A117.1 Standard. In response to this latter 
concern, the Department notes that under the safe harbor, existing 
facilities that are in compliance with the 1991 Standards, which require 
a 54-inch side-reach maximum, would not be required to comply with the 
lower side-reach requirement, unless there is an alteration. See 
Sec. 35.150(b)(2).
    A number of commenters expressed either concern with, or opposition 
to, the 48-inch side-reach requirement and suggested that it be returned 
to the Access Board for further consideration. These commenters included 
trade and business associations, associations of retail stores, 
associations of restaurant owners, retail and convenience store chains, 
and a model code organization. Several businesses expressed the view 
that the lower side-reach requirement would discourage the use of their 
products and equipment by most of the general public. In particular, 
concerns were expressed by a national association of pay phone service 
providers regarding the possibility that pay telephones mounted at the 
lower height would not be used as frequently by the public to place 
calls, which would result in an economic burden on the pay phone 
industry. The commenter described the lower height required for side 
reach as creating a new ``barrier'' to pay phone use, which would reduce 
revenues collected from pay phones and, consequently, further discourage 
the installation of new pay telephones. In addition, the commenter 
expressed concern that phone service providers would simply decide to 
remove existing pay phones rather than incur the costs of relocating 
them at the lower height. With regard to this latter concern, the 
commenter misunderstood the manner in which the safe harbor obligation 
will operate in the revised title II regulation for elements that comply 
with the 1991 Standards. If the pay phones comply with the 1991 
Standards or UFAS, the adoption of the 2010 Standards does not require 
retrofitting of these elements to reflect incremental changes in the 
2010 Standards (see Sec. 35.150(b)(2)). However, pay telephones that 
were required to meet the 1991 Standards as part of new construction or 
alterations, but do not in fact comply with those standards, will need 
to be brought into compliance with the 2010 Standards as of 18 months 
from the publication date of this final rule. See Sec. 35.151(c)(5)(ii).
    The Department does not agree with the concerns expressed by the 
commenter about reduced revenues from pay phones mounted at lower 
heights. The Department believes that, while given the choice some 
individuals may prefer to use a pay phone that is at a higher height, 
the availability of some phones at a lower height will not deter 
individuals from making needed calls.
    The 2010 Standards will not require every pay phone to be installed 
or moved to a lowered height. The table accompanying section 217.2 of 
the 2010 Standards makes clear that, where one or more telephones are 
provided on a floor, level, or an exterior site, only one phone per 
floor, level, or exterior site must be placed at an accessible height. 
Similarly, where there is one bank of phones per floor,

[[Page 676]]

level, or exterior site, only one phone per floor, level, or exterior 
site must be accessible. And if there are two or more banks of phones 
per floor, level, or exterior site, only one phone per bank must be 
placed at an accessible height.
    Another comment in opposition to the lower reach range requirement 
was submitted on behalf of a chain of convenience stores with fuel 
stops. The commenter expressed the concern that the 48-inch side reach 
``will make it uncomfortable for the majority of the public,'' including 
persons of taller stature who would need to stoop to use equipment such 
as fuel dispensers mounted at the lower height. The commenter offered no 
objective support for the observation that a majority of the public 
would be rendered uncomfortable if, as required in the 2010 Standards, 
at least one of each type of fuel dispenser at a facility was made 
accessible in compliance with the lower reach range. Indeed, the 
Department received no comments from any individuals of tall stature 
expressing concern about accessible elements or equipment being mounted 
at the 48-inch height.
    Several convenience store, restaurant, and amusement park commenters 
expressed concern about the burden the lower side-reach requirement 
would place on their businesses in terms of self-service food stations 
and vending areas if the 48-inch requirement were applied retroactively. 
The cost of lowering counter height, in combination with the lack of 
control businesses exercise over certain prefabricated service or 
vending fixtures, outweighed, they argued, any benefits to persons with 
disabilities. For this reason, they suggested the lower side-reach 
requirement be referred back to the Access Board.
    These commenters misunderstood the safe harbor and barrier removal 
obligations that will be in effect under the 2010 Standards. Those 
existing self-service food stations and vending areas that already are 
in compliance with the 1991 Standards will not be required to satisfy 
the 2010 Standards unless they engage in alterations. With regard to 
prefabricated vending machines and food service components that will be 
purchased and installed in businesses after the 2010 Standards become 
effective, the Department expects that companies will design these 
machines and fixtures to comply with the 2010 Standards in the future, 
as many have already done in the 10 years since the 48-inch side-reach 
requirement has been a part of the model codes and standards used by 
many jurisdictions as the basis for their construction codes.
    A model code organization commented that the lower side-reach 
requirement would create a significant burden if it required entities to 
lower the mounting height for light switches, environmental controls, 
and outlets when an alteration did not include the walls where these 
elements were located, such as when ``an area is altered or as a path of 
travel obligation.'' The Department believes that the final rule 
adequately addresses those situations about which the commenter 
expressed concern by not requiring the relocation of existing elements, 
such as light switches, environmental controls, and outlets, unless they 
are altered. Moreover, under Sec. 35.151(b)(4)(iii) of the final rule, 
costs for altering the path of travel to an altered area of primary 
function that exceed 20 percent of the overall costs of the alteration 
will be deemed disproportionate.
    The Department has determined that the revised side-reach 
requirement should not be returned to the Access Board for further 
consideration, based in large part on the views expressed by a majority 
of the commenters regarding the need for, and importance of, the lower 
side-reach requirement to ensure access for persons with disabilities.

Alterations and Water Closet Clearances in Single-User Toilet Rooms With 
                            In-Swinging Doors

    The 1991 Standards allow a lavatory to be placed a minimum of 18 
inches from the water closet centerline and a minimum of 36 inches from 
the side wall adjacent to the water closet, which precludes side 
transfers. The 1991 Standards do not allow an in-swinging door in a 
toilet or bathing room to overlap the required clear floor space at any 
accessible fixture. To allow greater transfer options, section 604.3.2 
of the 2010 Standards prohibits lavatories from overlapping the clear 
floor space at water closets, except in residential dwelling units. 
Section 603.2.3 of the 2010 Standards maintains the prohibition on doors 
swinging into the clear floor space or clearance required for any 
fixture, except that they permit the doors of toilet or bathing rooms to 
swing into the required turning space, provided that there is sufficient 
clearance space for the wheelchair outside the door swing. In addition, 
in single-user toilet or bathing rooms, exception 2 of section 603.2.3 
of the 2010 Standards permits the door to swing into the clear floor 
space of an accessible fixture if a clear floor space that measures at 
least 30 inches by 48 inches is available outside the arc of the door 
swing.
    The majority of commenters believed that this requirement would 
increase the number of toilet rooms accessible to individuals with 
disabilities who use wheelchairs or mobility scooters, and will make it 
easier for them to transfer. A number of commenters stated that there 
was no reason to return this provision to the Access Board. Numerous 
commenters noted that this requirement is already included in other 
model accessibility standards and many State and local building codes 
and that the adoption of the 2010

[[Page 677]]

Standards is an important part of harmonization efforts.
    Other commenters, mostly trade associations, opposed this 
requirement, arguing that the added cost to the industry outweighs any 
increase in accessibility. Two commenters stated that these proposed 
requirements would add two feet to the width of an accessible single-
user toilet room; however, another commenter said the drawings in the 
proposed regulation demonstrated that there would be no substantial 
increase in the size of the toilet room. Several commenters stated that 
this requirement would require moving plumbing fixtures, walls, or doors 
at significant additional expense. Two commenters wanted the permissible 
overlap between the door swing and clearance around any fixture 
eliminated. One commenter stated that these new requirements will result 
in fewer alterations to toilet rooms to avoid triggering the requirement 
for increased clearances, and suggested that the Department specify that 
repairs, maintenance, or minor alterations would not trigger the need to 
provide increased clearances. Another commenter requested that the 
Department exempt existing guest room bathrooms and single-user toilet 
rooms that comply with the 1991 Standards from complying with the 
increased clearances in alterations.
    After careful consideration of these comments, the Department 
believes that the revised clearances for single-user toilet rooms will 
allow safer and easier transfers for individuals with disabilities, and 
will enable a caregiver, aide, or other person to accompany an 
individual with a disability into the toilet room to provide assistance. 
The illustrations in Appendix B to the final title III rule, ``Analysis 
and Commentary on the 2010 ADA Standards for Accessible Design,'' 
published elsewhere in this volume and codified as Appendix B to 28 CFR 
part 36, describe several ways for public entities and public 
accommodations to make alterations while minimizing additional costs or 
loss of space. Further, in any isolated instances where existing 
structural limitations may entail loss of space, the public entity and 
public accommodation may have a technical infeasibility defense for that 
alteration. The Department also recognizes that in attempting to create 
the required clear floor space pursuant to section 604.3.2, there may be 
certain specific circumstances where it would be technically infeasible 
for a covered entity to comply with the clear floor space requirement, 
such as where an entity must move a plumbing wall in a multistory 
building where the mechanical chase for plumbing is an integral part of 
a building's structure or where the relocation of a wall or fixture 
would violate applicable plumbing codes. In such circumstances, the 
required clear floor space would not have to be provided although the 
covered entity would have to provide accessibility to the maximum extent 
feasible. The Department has, therefore, decided not to return this 
requirement to the Access Board.
    Alterations to stairs. The 1991 Standards only require interior and 
exterior stairs to be accessible when they provide access to levels that 
are not connected by an elevator, ramp, or other accessible means of 
vertical access. In contrast, section 210.1 of the 2010 Standards 
requires all newly constructed stairs that are part of a means of egress 
to be accessible. However, exception 2 of section 210.1 of the 2010 
Standards provides that in alterations, stairs between levels connected 
by an accessible route need not be accessible, except that handrails 
shall be provided. Most commenters were in favor of this requirement for 
handrails in alterations, and stated that adding handrails to stairs 
during alterations was not only feasible and not cost-prohibitive, but 
also provided important safety benefits. One commenter stated that 
making all points of egress accessible increased the number of people 
who could use the stairs in an emergency. A majority of the commenters 
did not want this requirement returned to the Access Board for further 
consideration.
    The International Building Code (IBC), which is a private sector 
model construction code, contains a similar provision, and most 
jurisdictions enforce a version of the IBC as their building code, 
thereby minimizing the impact of this provision on public entities and 
public accommodations. The Department believes that by requiring only 
the addition of handrails to altered stairs where levels are connected 
by an accessible route, the costs of compliance for public entities and 
public accommodations are minimized, while safe egress for individuals 
with disabilities is increased. Therefore, the Department has decided 
not to return this requirement to the Access Board.
    Alterations to elevators. Under the 1991 Standards, if an existing 
elevator is altered, only that altered elevator must comply with the new 
construction requirements for accessible elevators to the maximum extent 
feasible. It is therefore possible that a bank of elevators controlled 
by a single call system may contain just one accessible elevator, 
leaving an individual with a disability with no way to call an 
accessible elevator and thus having to wait indefinitely until an 
accessible elevator happens to respond to the call system. In the 2010 
Standards, when an element in one elevator is altered, section 206.6.1 
will require the same element to be altered in all elevators that are 
programmed to respond to the same call button as the altered elevator.
    Most commenters favored the proposed requirement. This requirement, 
according to these commenters, is necessary so a person with a 
disability need not wait until an accessible elevator responds to his or 
her call.

[[Page 678]]

One commenter suggested that elevator owners could also comply by 
modifying the call system so the accessible elevator could be summoned 
independently. One commenter suggested that this requirement would be 
difficult for small businesses located in older buildings, and one 
commenter suggested that this requirement be sent back to the Access 
Board.
    After considering the comments, the Department agrees that this 
requirement is necessary to ensure that when an individual with a 
disability presses a call button, an accessible elevator will arrive in 
a timely manner. The IBC contains a similar provision, and most 
jurisdictions enforce a version of the IBC as their building code, 
minimizing the impact of this provision on public entities and public 
accommodations. Public entities and businesses located in older 
buildings need not comply with this requirement where it is technically 
infeasible to do so. Further, as pointed out by one commenter, modifying 
the call system so the accessible elevator can be summoned independently 
is another means of complying with this requirement in lieu of altering 
all other elevators programmed to respond to the same call button. 
Therefore, the Department has decided not to return this requirement to 
the Access Board.
    Location of accessible routes to stages. The 1991 Standards at 
section 4.33.5 require an accessible route to connect the accessible 
seating and the stage, as well as other ancillary spaces used by 
performers. The 2010 Standards at section 206.2.6 provide in addition 
that where a circulation path directly connects the seating area and the 
stage, the accessible route must directly connect the accessible seating 
and the stage, and, like the 1991 Standards, an accessible route must 
connect the stage with the ancillary spaces used by performers.
    In the NPRM, the Department asked operators of auditoria about the 
extent to which auditoria already provide direct access to stages and 
whether there were planned alterations over the next 15 years that 
included accessible direct routes to stages. The Department also asked 
how to quantify the benefits of this requirement for persons with 
disabilities, and invited commenters to provide illustrative anecdotal 
experiences about the requirement's benefits. The Department received 
many comments regarding the costs and benefits of this requirement. 
Although little detail was provided, many industry and governmental 
entity commenters anticipated that the costs of this requirement would 
be great and that it would be difficult to implement. They noted that 
premium seats may have to be removed and that load-bearing walls may 
have to be relocated. These commenters suggested that the significant 
costs would deter alterations to the stage area for a great many 
auditoria. Some commenters suggested that ramps to the front of the 
stage may interfere with means of egress and emergency exits. Several 
commenters requested that the requirement apply to new construction 
only, and one industry commenter requested an exemption for stages used 
in arenas or amusement parks where there is no audience participation or 
where the stage is a work area for performers only. One commenter 
requested that the requirement not apply to temporary stages.
    The final rule does not require a direct accessible route to be 
constructed where a direct circulation path from the seating area to the 
stage does not exist. Consequently, those commenters who expressed 
concern about the burden imposed by the revised requirement (i.e., where 
the stage is constructed with no direct circulation path connecting the 
general seating and performing area) should note that the final rule 
will not require the provision of a direct accessible route under these 
circumstances. The final rule applies to permanent stages, as well as 
``temporary stages,'' if there is a direct circulation path from the 
seating area to the stage. However, the Department does recognize that 
in some circumstances, such as an alteration to a primary function area, 
the ability to provide a direct accessible route to a stage may be 
costly or technically infeasible, the auditorium owner is not precluded 
by the revised requirement from asserting defenses available under the 
regulation. In addition, the Department notes that since section 4.33.5 
of the 1991 Standards requires an accessible route to a stage, the safe 
harbor will apply to existing facilities whose stages comply with the 
1991 Standards.
    Several governmental entities supported accessible auditoria and the 
revised requirement. One governmental entity noted that its State 
building code already required direct access, that it was possible to 
provide direct access, and that creative solutions had been found to do 
so.
    Many advocacy groups and individual commenters strongly supported 
the revised requirement, discussing the acute need for direct access to 
stages as it impacts a great number of people at important life events 
such as graduations and awards ceremonies, at collegiate and competitive 
performances and other school events, and at entertainment events that 
include audience participation. Many commenters expressed the belief 
that direct access is essential for integration mandates to be satisfied 
and that separate routes are stigmatizing and unequal. The Department 
agrees with these concerns.
    Commenters described the impact felt by persons in wheelchairs who 
are unable to access the stage at all when others are able to do so. 
Some of these commenters also discussed the need for performers and 
production staff who use wheelchairs to have direct

[[Page 679]]

access to the stage and provided a number of examples that illustrated 
the importance of the rule proposed in the NPRM. Personal anecdotes were 
provided in comments and at the Department's public hearing on the NPRM. 
One mother spoke passionately and eloquently about the unequal treatment 
experienced by her daughter, who uses a wheelchair, at awards ceremonies 
and band concerts. Her daughter was embarrassed and ashamed to be 
carried by her father onto a stage at one band concert. When the venue 
had to be changed for another concert to an accessible auditorium, the 
band director made sure to comment that he was unhappy with the switch. 
Rather than endure the embarrassment and indignities, her child dropped 
out of band the following year. Another father commented about how he 
was unable to speak from the stage at a PTA meeting at his child's 
school. Speaking from the floor limited his line of sight and his 
participation. Several examples were provided of children who could not 
participate on stage during graduation, awards programs, or special 
school events, such as plays and festivities. One student did not attend 
his college graduation because he would not be able to get on stage. 
Another student was unable to participate in the class Christmas 
programs or end-of-year parties unless her father could attend and lift 
her onto the stage. These commenters did not provide a method to 
quantify the benefits that would accrue by having direct access to 
stages. One commenter stated, however, that ``the cost of dignity and 
respect is without measure.''
    Many industry commenters and governmental entities suggested that 
the requirement be sent back to the Access Board for further 
consideration. One industry commenter mistakenly noted that some 
international building codes do not incorporate the requirement and that 
therefore there is a need for further consideration. However, the 
Department notes that both the 2003 and 2006 editions of the IBC include 
scoping provisions that are almost identical to this requirement and 
that these editions of the model code are the most frequently used. Many 
individuals and advocacy group commenters requested that the requirement 
be adopted without further delay. These commenters spoke of the acute 
need for direct access to stages and the amount of time it would take to 
resubmit the requirement to the Access Board. Several commenters noted 
that the 2004 ADAAG tracks recent model codes and thus there is no need 
for further consideration. The Department agrees that no further delay 
is necessary and therefore has decided not to return the requirement to 
the Access Board for further consideration.
    Attorney areas and witness stands. The 1991 Standards do not require 
that public entities meet specific architectural standards with regard 
to the construction and alteration of courtrooms and judicial 
facilities. Because it is apparent that the judicial facilities of State 
and local governments have often been inaccessible to individuals with 
disabilities, as part of the NPRM, the Department proposed the adoption 
of sections 206.2.4, 231.2, 808, 304, 305, and 902 of the 2004 ADAAG 
concerning judicial facilities and courtrooms, including requirements 
for accessible courtroom stations and accessible jury boxes and witness 
stands.
    Those who commented on access to judicial facilities and courtrooms 
uniformly favored the adoption of the 2010 Standards. Virtually all of 
the commenters stated that accessible judicial facilities are crucial to 
ensuring that individuals with disabilities are afforded due process 
under law and have an equal opportunity to participate in the judicial 
process. None of the commenters favored returning this requirement to 
the Access Board for further consideration.
    The majority of commenters, including many disability rights and 
advocacy organizations, stated that it is crucial for individuals with 
disabilities to have effective and meaningful access to our judicial 
system so as to afford them due process under law. They objected to 
asking the Access Board to reconsider this requirement. In addition to 
criticizing the initial RIA for virtually ignoring the intangible and 
non-monetary benefits associated with accessible courtrooms, these 
commenters frequently cited the Supreme Court's decision in Tennessee v. 
Lane, 541 U.S. 509, 531 (2004),\4\ as ample justification for the 
requirement, noting the Court's finding that ``[t]he unequal treatment 
of disabled persons in the administration of judicial services has a 
long history, and has persisted despite several legislative efforts to 
remedy the problem of disability discrimination.'' Id. at 531. These 
commenters also made a number of observations, including the following: 
providing effective access to individuals with mobility impairments is 
not possible when architectural barriers impede their path of travel and 
negatively emphasize an individual's disability; the perception 
generated by makeshift accommodations discredits witnesses and attorneys 
with disabilities, who should not be stigmatized or treated like second-
class citizens; the cost of accessibility modifications to existing 
courthouses can often be significantly decreased by planning ahead, by 
focusing on low-cost options that provide effective access, and by 
addressing existing barriers when reasonable modifications to the 
courtroom can be made;

[[Page 680]]

by planning ahead and by following best practices, jurisdictions can 
avoid those situations where it is apparent that someone's disability is 
the reason why ad hoc arrangements have to be made prior to the 
beginning of court proceedings; and accessibility should be a key 
concern during the planning and construction process so as to ensure 
that both courtroom grandeur and accessibility are achieved. One 
commenter stated that, in order for attorneys with disabilities to 
perform their professional duties to their clients and the court, it is 
essential that accessible courtrooms, conference rooms, law libraries, 
judicial chambers, and other areas of a courthouse be made barrier-free 
by taking accessible design into account prior to construction.
---------------------------------------------------------------------------

    \4\ The Supreme Court in Tennessee v. Lane, 541 U.S. 509, 533-534 
(2004), held that title II of the ADA constitutes a valid exercise of 
Congress' enforcement power under the Fourteenth Amendment in cases 
implicating the fundamental right of access to the courts.
---------------------------------------------------------------------------

    Numerous commenters identified a variety of benefits that would 
accrue as a result of requiring judicial facilities to be accessible. 
These included the following: maintaining the decorum of the courtroom 
and eliminating the disruption of court proceedings when individuals 
confront physical barriers; providing an accessible route to the witness 
stand and attorney area and clear floor space to accommodate a 
wheelchair within the witness area; establishing crucial lines of sight 
between the judge, jury, witnesses, and attorneys--which commenters 
described as crucial; ensuring that the judge and the jury will not miss 
key visual indicators of a witness; maintaining a witness's or 
attorney's dignity and credibility; shifting the focus from a witness's 
disability to the substance of that person's testimony; fostering the 
independence of an individual with disability; allowing persons with 
mobility impairments to testify as witnesses, including as expert 
witnesses; ensuring the safety of various participants in a courtroom 
proceeding; and avoiding unlawful discrimination. One commenter stated 
that equal access to the well of the courtroom for both attorney and 
client is important for equal participation and representation in our 
court system. Other commenters indicated that accessible judicial 
facilities benefit a wide range of people, including many persons 
without disabilities, senior citizens, parents using strollers with 
small children, and attorneys and court personnel wheeling documents 
into the courtroom. One commenter urged the adoption of the work area 
provisions because they would result in better workplace accessibility 
and increased productivity. Several commenters urged the adoption of the 
rule because it harmonizes the ADAAG with the model IBC, the standards 
developed by the American National Standards Institute (ANSI), and model 
codes that have been widely adopted by State and local building 
departments, thus increasing the prospects for better understanding and 
compliance with the ADAAG by architects, designers, and builders.
    Several commenters mentioned the report ``Justice for All: Designing 
Accessible Courthouses'' (Nov. 15, 2006), available at http://
www.access-board.gov/caac/report.htm (Nov. 24, 2009) (last visited June 
24, 2010). The report, prepared by the Courthouse Access Advisory 
Committee for the Access Board, contained recommendations for the 
Board's use in developing and disseminating guidance on accessible 
courthouse design under the ADA and the ABA. These commenters identified 
some of the report's best practices concerning courtroom accessibility 
for witness stands, jury boxes, and attorney areas; addressed the costs 
and benefits arising from the use of accessible courtrooms; and 
recommended that the report be incorporated into the Department's final 
rule. With respect to existing courtrooms, one commenter in this group 
suggested that consideration be given to ensuring that there are 
barrier-free emergency evacuation routes for all persons in the 
courtroom, including different evacuation routes for different classes 
of individuals given the unique nature of judicial facilities and 
courtrooms.
    The Department declines to incorporate the report into the 
regulation. However, the Department encourages State and local 
governments to consult the Committee report as a useful guide on ways to 
facilitate and increase accessibility of their judicial facilities. The 
report includes many excellent examples of accessible courtroom design.
    One commenter proposed that the regulation also require a sufficient 
number of accessible benches for judges with disabilities. Under section 
206.2.4 of the 2004 ADAAG, raised courtroom stations used by judges and 
other judicial staff are not required to provide full vertical access 
when first constructed or altered, as long as the required clear floor 
space, maneuvering space, and any necessary electrical service for 
future installation of a means of vertical access, is provided at the 
time of new construction or can be achieved without substantial 
reconstruction during alterations. The Department believes that this 
standard easily allows a courtroom station to be adapted to provide 
vertical access in the event a judge requires an accessible judge's 
bench.
    The Department received several anecdotal accounts of courtroom 
experiences of individuals with disabilities. One commenter recalled 
numerous difficulties that her law partner faced as the result of 
inaccessible courtrooms, and their concerns that the attention of judge 
and jury was directed away from the merits of case to the lawyer and his 
disability. Among other things, the lawyer had to ask the judges on an 
appellate panel to wait while he maneuvered through insufficient space 
to the counsel table; ask judges to relocate bench conferences to 
accessible areas; and make last-minute preparations and rearrangements 
that his peers without

[[Page 681]]

disabilities did not have to make. Another commenter with extensive 
experience as a lawyer, witness, juror, and consultant observed that it 
is common practice for a witness who uses mobility devices to sit in 
front of the witness stand. He described how disconcerting and 
unsettling it has been for him to testify in front of the witness stand, 
which allowed individuals in the courtroom to see his hands or legs 
shaking because of spasticity, making him feel like a second-class 
citizen.
    Two other commenters with mobility disabilities described their 
experiences testifying in court. One accessibility consultant stated 
that she was able to represent her clients successfully when she had 
access to an accessible witness stand because it gave her the ability 
``to look the judge in the eye, speak comfortably and be heard, hold up 
visual aids that could be seen by the judge, and perform without an 
architectural stigma.'' She did not believe that she was able to achieve 
a comparable outcome or have meaningful access to the justice system 
when she testified from an inaccessible location. Similarly, a licensed 
clinical social worker indicated that she has testified in several cases 
in accessible courtrooms, and that having full access to the witness 
stand in the presence of the judge and the jury was important to her 
effectiveness as an expert witness. She noted that accessible courtrooms 
often are not available, and that she was aware of instances in which 
victims, witnesses, and attorneys with disabilities have not been able 
to obtain needed disability accommodations in order to fulfill their 
roles at trial.
    Two other commenters indicated that they had been chosen for jury 
duty but that they were effectively denied their right to participate as 
jurors because the courtrooms were not accessible. Another commenter 
indicated that he has had to sit apart from the other jurors because the 
jury box was inaccessible.
    A number of commenters expressed approval of actions taken by States 
to facilitate access in judicial facilities. A member of a State 
commission on disability noted that the State had been working toward 
full accessibility since 1997 when the Uniform Building Code required 
interior accessible routes. This commenter stated that the State's 
district courts had been renovated to the maximum extent feasible to 
provide greater access. This commenter also noted that a combination of 
Community Development Block Grant money and State funds are often 
awarded for renovations of courtroom areas. One advocacy group that has 
dealt with court access issues stated that members of the State legal 
community and disability advocates have long been promoting efforts to 
ensure that the State courts are accessible to individuals with 
disabilities. The comment cited a publication distributed to the 
Washington State courts by the State bar association entitled, 
``Ensuring Equal Access to the Courts for Persons with Disabilities.'' 
(Aug. 2006), available at http://www.wsba.org/
ensuringaccessguidebook.pdf (last visited July 20, 2010). In addition, 
the commenter also indicated that the State supreme court had 
promulgated a new rule governing how the courts should respond to 
requests of accommodation based upon disability; the State legislature 
had created the position of Disability Access Coordinator for Courts to 
facilitate accessibility in the court system; and the State legislature 
had passed a law requiring that all planned improvements and alterations 
to historic courthouses be approved by the ADA State facilities program 
manager and committee in order to ensure that the alterations will 
enhance accessibility.
    The Department has decided to adopt the requirements in the 2004 
ADAAG with respect to judicial facilities and courtrooms and will not 
ask the Access Board to review these requirements. The final rule is 
wholly consistent with the objectives of the ADA. It addresses a well-
documented history of discrimination with respect to judicial 
administration and significantly increases accessibility for individuals 
with disabilities. It helps ensure that they will have an opportunity to 
participate equally in the judicial process. As stated, the final rule 
is consistent with a number of model and local building codes that have 
been widely adopted by State and local building departments and provides 
greater uniformity for planners, architects, and builders.
    Assistive listening systems. The 1991 Standards at sections 4.33.6 
and 4.33.7 require assistive listening systems (ALS) in assembly areas 
and prescribe general performance standards for ALS systems. In the 
NPRM, the Department proposed adopting the technical specifications in 
the 2004 ADAAG for ALS that are intended to ensure better quality and 
effective delivery of sound and information for persons with hearing 
impairments, especially those using hearing aids. The Department noted 
in the NPRM that since 1991, advancements in ALS and the advent of 
digital technology have made these systems more amenable to uniform 
standards, which, among other things, should ensure that a certain 
percentage of required ALS systems are hearing-aid compatible. 73 FR 
34466, 34471 (June 17, 2008). The 2010 Standards at section 219 provide 
scoping requirements and at section 706 address receiver jacks, hearing 
aid compatibility, sound pressure level, signal-to-noise ratio, and peak 
clipping level. The Department requested comments specifically from 
arena and assembly area administrators on the cost and maintenance 
issues associated with ALS, asked generally about the costs and

[[Page 682]]

benefits of ALS, and asked whether, based upon the expected costs of 
ALS, the issue should be returned to the Access Board for further 
consideration.
    Comments from advocacy organizations noted that persons who develop 
significant hearing loss often discontinue their normal routines and 
activities, including meetings, entertainment, and large group events, 
due to a sense of isolation caused by the hearing loss or embarrassment. 
Individuals with longstanding hearing loss may never have participated 
in group activities for many of the same reasons. Requiring ALS may 
allow individuals with disabilities to contribute to the community by 
joining in government and public events, and increasing economic 
activity associated with community activities and entertainment. Making 
public events and entertainment accessible to persons with hearing loss 
also brings families and other groups that include persons with hearing 
loss into more community events and activities, thus exponentially 
increasing the benefit from ALS.
    Many commenters noted that when a person has significant hearing 
loss, that person may be able to hear and understand information in a 
quiet situation with the use of hearing aids or cochlear implants; 
however, as background noise increases and the distance between the 
source of the sound and the listener grows, and especially where there 
is distortion in the sound, an ALS becomes essential for basic 
comprehension and understanding. Commenters noted that among the 31 
million Americans with hearing loss, and with a projected increase to 
over 78 million Americans with hearing loss by 2030, the benefit from 
ALS is huge and growing. Advocates for persons with disabilities and 
individuals commented that they appreciated the improvements in the 2004 
ADAAG standards for ALS, including specifications for the ALS systems 
and performance standards. They noted that neckloops that translate the 
signal from the ALS transmitter to a frequency that can be heard on a 
hearing aid or cochlear implant are much more effective than separate 
ALS system headsets, which sometimes create feedback, often malfunction, 
and may create distractions for others seated nearby. Comments from 
advocates and users of ALS systems consistently noted that the 
Department's regulation should, at a minimum, be consistent with the 
2004 ADAAG. Although there were requests for adjustments in the scoping 
requirements from advocates seeking increased scoping requirements, and 
from large venue operators seeking fewer requirements, there was no 
significant concern expressed by commenters about the technical 
specifications for ALS in the 2004 ADAAG.
    Some commenters from trade associations and large venue owners 
criticized the scoping requirements as too onerous and one commenter 
asked for a remand to the Access Board for new scoping rules. However, 
one State agency commented that the 2004 ADAAG largely duplicates the 
requirements in the 2006 IBC and the 2003 ANSI codes, which means that 
entities that comply with those standards would not incur additional 
costs associated with ADA compliance.
    According to one State office of the courts, the cost to install 
either an infrared system or an FM system at average-sized facilities, 
including most courtrooms covered by title II, would be between $500 and 
$2,000, which the agency viewed as a small price in comparison to the 
benefits of inclusion. Advocacy organizations estimated wholesale costs 
of ALS systems at about $250 each and individual neckloops to link the 
signal from the ALS transmitter to hearing aids or cochlear implants at 
less than $50 per unit. Many commenters pointed out that if a facility 
already is using induction neckloops, it would already be in compliance 
and would not have any additional installation costs. One major city 
commented that annual maintenance is about $2,000 for the entire system 
of performance venues in the city. A trade association representing very 
large venues estimated annual maintenance and upkeep expenses, including 
labor and replacement parts, to be at most about $25,000 for a very 
large professional sports stadium.
    One commenter suggested that the scoping requirements for ALS in the 
2004 ADAAG were too stringent and that the Department should return them 
to the Access Board for further review and consideration. Others 
commented that the requirement for new ALS systems should mandate 
multichannel receivers capable of receiving audio description for 
persons who are blind, in addition to a channel for amplification for 
persons who are hard of hearing. Some comments suggested that the 
Department should require a set schedule and protocol of mandatory 
maintenance. Department regulations already require maintenance of 
accessible features at Sec. 35.133(a) of the title II regulation, which 
obligates a title II entity to maintain ALS in good working order. The 
Department recognizes that maintenance of ALS is key to its usability. 
Necessary maintenance will vary dramatically from venue to venue based 
upon a variety of factors including frequency of use, number of units, 
quality of equipment, and others items. Accordingly, the Department has 
determined that it is not appropriate to mandate details of maintenance, 
but notes that failure to maintain ALS would violate Sec. 35.133(a) of 
this rule.
    The NPRM asked whether the Department should return the issue of ALS 
requirements to the Access Board. The Department has received 
substantial feedback on the technical and scoping requirements for ALS 
and is

[[Page 683]]

convinced that these requirements are reasonable and that the benefits 
justify the requirements. In addition, the Department believes that the 
new specifications will make ALS work more effectively for more persons 
with disabilities, which, together with a growing population of new 
users, will increase demand for ALS, thus mooting criticism from some 
large venue operators about insufficient demand. Thus, the Department 
has determined that it is unnecessary to refer this issue back to the 
Access Board for reconsideration.
    Accessible teeing grounds, putting greens, and weather shelters. In 
the NPRM, the Department sought public input on the proposed 
requirements for accessible golf courses. These requirements 
specifically relate to accessible routes within the boundaries of 
courses, as well as the accessibility of golfing elements (e.g., teeing 
grounds, putting greens, weather shelters).
    In the NPRM, the Department sought information from the owners and 
operators of golf courses, both public and private, on the extent to 
which their courses already have golf car passages, and, if so, whether 
they intended to avail themselves of the proposed accessible route 
exception for golf car passages. 73 FR 34466, 34471 (June 17, 2008).
    Most commenters expressed support for the adoption of an accessible 
route requirement that includes an exception permitting golf car passage 
as all or part of an accessible route. Comments in favor of the proposed 
standard came from golf course owners and operators, individuals, 
organizations, and disability rights groups, while comments opposing 
adoption of the golf course requirements generally came from golf 
courses and organizations representing the golf course industry.
    The majority of commenters expressed the general viewpoint that 
nearly all golf courses provide golf cars and have either well-defined 
paths or permit golf cars to drive on the course where paths are not 
present, thus meeting the accessible route requirement. Several 
commenters disagreed with the assumption in the initial RIA, that 
virtually every tee and putting green on an existing course would need 
to be regraded in order to provide compliant accessible routes. 
According to one commenter, many golf courses are relatively flat with 
little slope, especially those heavily used by recreational golfers. 
This commenter concurred with the Department that it is likely that most 
existing golf courses have a golf car passage to tees and greens, 
thereby substantially minimizing the cost of bringing an existing golf 
course into compliance with the proposed standards. One commenter 
reported that golf course access audits found that the vast majority of 
public golf courses would have little difficulty in meeting the proposed 
golf course requirements. In the view of some commenters, providing 
access to golf courses would increase golf participation by individuals 
with disabilities.
    The Department also received many comments requesting clarification 
of the term ``golf car passage.'' For example, one commenter requesting 
clarification of the term ``golf car passage'' argued that golf courses 
typically do not provide golf car paths or pedestrian paths onto the 
actual teeing grounds or greens, many of which are higher or lower than 
the car path. This commenter argued that if golf car passages were 
required to extend onto teeing grounds and greens in order to qualify 
for an exception, then some golf courses would have to substantially 
regrade teeing grounds and greens at a high cost.
    After careful consideration of the comments, the Department has 
decided to adopt the 2010 Standards specific to golf facilities. The 
Department believes that in order for individuals with mobility 
disabilities to have an opportunity to play golf that is equal to 
golfers without disabilities, it is essential that golf courses provide 
an accessible route or accessible golf car passage to connect accessible 
elements and spaces within the boundary of the golf course, including 
teeing grounds, putting greens, and weather shelters.

                  Public Comments on Other NPRM Issues

    Equipment and furniture. In the 1991 title II regulation, there are 
no specific provisions addressing equipment and furniture, although 
Sec. 35.150(b) states that one means by which a public entity can make 
its program accessible to individuals with disabilities is ``redesign of 
equipment.'' In the NPRM, the Department announced its intention not to 
regulate equipment, proposing instead to continue with the current 
approach, under which equipment and furniture are covered by other 
provisions, including those requiring reasonable modifications of 
policies, practices, or procedures, program accessibility, and effective 
communication. The Department suggested that entities apply the 
accessibility standards for fixed equipment in the 2004 ADAAG to 
analogous free-standing equipment in order to ensure that such equipment 
is accessible, and that entities consult relevant portions of the 2004 
ADAAG and standards from other Federal agencies to make equipment 
accessible to individuals who are blind or have low vision (e.g., the 
communication-related standards for ATMs in the 2004 ADAAG).
    The Department received numerous comments objecting to this decision 
and urging the Department to issue equipment and furniture regulations. 
Based on these comments, the Department has decided that it needs to 
revisit the issuance of equipment and furniture regulations and it 
intends to do so in future rulemaking.

[[Page 684]]

    Among the commenters' key concerns, many from the disability 
community and some public entities, were objections to the Department's 
earlier decision not to issue equipment regulations, especially for 
medical equipment. These groups recommended that the Department list by 
name certain types of medical equipment that must be accessible, 
including exam tables (that lower to 15 inches above floor or lower), 
scales, medical and dental chairs, and radiologic equipment (including 
mammography equipment). These commenters emphasized that the provision 
of medically related equipment and furniture should also be specifically 
regulated since they are not included in the 2004 ADAAG (while 
depositories, change machines, fuel dispensers, and ATMs were) and 
because of their crucial role in the provision of healthcare. Commenters 
described how the lack of accessible medical equipment negatively 
affects the health of individuals with disabilities. For example, some 
individuals with mobility disabilities do not get thorough medical care 
because their health providers do not have accessible examination tables 
or scales.
    Commenters also said that the Department's stated plan to assess the 
financial impact of free-standing equipment on businesses was not 
necessary, as any regulations could include a financial balancing test. 
Other commenters representing persons who are blind or have low vision 
urged the Department to mandate accessibility for a wide range of 
equipment--including household appliances (stoves, washers, microwaves, 
and coffee makers), audiovisual equipment (stereos and DVD players), 
exercise machines, vending equipment, ATMs, computers at Internet cafes 
or hotel business centers, reservations kiosks at hotels, and point-of-
sale devices--through speech output and tactile labels and controls. 
They argued that modern technology allows such equipment to be made 
accessible at minimal cost. According to these commenters, the lack of 
such accessibility in point-of-sale devices is particularly problematic 
because it forces blind individuals to provide personal or sensitive 
information (such as personal identification numbers) to third parties, 
which exposes them to identity fraud. Because the ADA does not apply 
directly to the manufacture of products, the Department lacks the 
authority to issue design requirements for equipment designed 
exclusively for use in private homes. See Department of Justice, 
Americans with Disabilities Act, ADA Title III Technical Assistance 
Manual Covering Public Accommodations and Commercial Facilities, III-
4.4200, available at http://www.ada.gov/taman3.
    Some commenters urged the Department to require swimming pool 
operators to provide aquatic wheelchairs for the use of persons with 
disabilities when the swimming pool has a sloped entry. If there is a 
sloped entry, a person who uses a wheelchair would require a wheelchair 
designed for use in the water in order to gain access to the pool 
because taking a personal wheelchair into water would rust and corrode 
the metal on the chair and damage any electrical components of a power 
wheelchair. Providing an aquatic wheelchair made of non-corrosive 
materials and designed for access into the water will protect the water 
from contamination and avoid damage to personal wheelchairs or other 
mobility aids.
    Additionally, many commenters urged the Department to regulate the 
height of beds in accessible hotel guest rooms and to ensure that such 
beds have clearance at the floor to accommodate a mechanical lift. These 
commenters noted that in recent years, hotel beds have become higher as 
hotels use thicker mattresses, thereby making it difficult or impossible 
for many individuals who use wheelchairs to transfer onto hotel beds. In 
addition, many hotel beds use a solid-sided platform base with no 
clearance at the floor, which prevents the use of a portable lift to 
transfer an individual onto the bed. Consequently, individuals who bring 
their own lift to transfer onto the bed cannot independently get 
themselves onto the bed. Some commenters suggested various design 
options that might avoid these situations.
    The Department intends to provide specific guidance relating to both 
hotel beds and aquatic wheelchairs in a future rulemaking. For the 
present, the Department reminds covered entities that they have an 
obligation to undertake reasonable modifications to their current 
policies and to make their programs accessible to persons with 
disabilities. In many cases, providing aquatic wheelchairs or adjusting 
hotel bed heights may be necessary to comply with those requirements.
    The Department has decided not to add specific scoping or technical 
requirements for equipment and furniture in this final rule. Other 
provisions of the regulation, including those requiring reasonable 
modifications of policies, practices, or procedures, program 
accessibility, and effective communication may require the provision of 
accessible equipment in individual circumstances. The 1991 title II 
regulation at Sec. 35.150(a) requires that entities operate each 
service, program, or activity so that, when viewed in its entirety, each 
is readily accessible to, and usable by, individuals with disabilities, 
subject to a defense of fundamental alteration or undue financial and 
administrative burdens. Section 35.150(b) specifies that such entities 
may meet their program accessibility obligation through the ``redesign 
of equipment.'' The Department expects to undertake a rulemaking to 
address these issues in the near future.

[[Page 685]]

    Accessible golf cars. An accessible golf car means a device that is 
designed and manufactured to be driven on all areas of a golf course, is 
independently usable by individuals with mobility disabilities, has a 
hand-operated brake and accelerator, carries golf clubs in an accessible 
location, and has a seat that both swivels and raises to put the golfer 
in a standing or semi-standing position.
    The 1991 title II regulation contained no language specifically 
referencing accessible golf cars. After considering the comments 
addressing the ANPRM's proposed requirement that golf courses make at 
least one specialized golf car available for the use of individuals with 
disabilities, and the safety of accessible golf cars and their use on 
golf course greens, the Department stated in the NPRM that it would not 
issue regulations specific to golf cars.
    The Department received many comments in response to its decision to 
propose no new regulation specific to accessible golf cars. The majority 
of commenters urged the Department to require golf courses to provide 
accessible golf cars. These comments came from individuals, disability 
advocacy and recreation groups, a manufacturer of accessible golf cars, 
and representatives of local government. Comments supporting the 
Department's decision not to propose a new regulation came from golf 
course owners, associations, and individuals.
    Many commenters argued that while the existing title II regulation 
covered the issue, the Department should nonetheless adopt specific 
regulatory language requiring golf courses to provide accessible golf 
cars. Some commenters noted that many local governments and park 
authorities that operate public golf courses have already provided 
accessible golf cars. Experience indicates that such golf cars may be 
used without damaging courses. Some argued that having accessible golf 
cars would increase golf course revenue by enabling more golfers with 
disabilities to play the game. Several commenters requested that the 
Department adopt a regulation specifically requiring each golf course to 
provide one or more accessible golf cars. Other commenters recommended 
allowing golf courses to make ``pooling'' arrangements to meet demands 
for such cars. A few commenters expressed support for using accessible 
golf cars to accommodate golfers with and without disabilities. 
Commenters also pointed out that the Departments of the Interior and 
Defense have already mandated that golf courses under their 
jurisdictional control must make accessible golf cars available unless 
it can be demonstrated that doing so would change the fundamental nature 
of the game.
    While an industry association argued that at least two models of 
accessible golf cars meet the specifications recognized in the field, 
and that accessible golf cars cause no more damage to greens or other 
parts of golf courses than players standing or walking across the 
course, other commenters expressed concerns about the potential for 
damage associated with the use of accessible golf cars. Citing safety 
concerns, golf organizations recommended that an industry safety 
standard be developed.
    Although the Department declines to add specific scoping or 
technical requirements for golf cars to this final rule, the Department 
expects to address requirements for accessible golf cars in future 
rulemaking. In the meantime, the Department believes that golfers with 
disabilities who need accessible golf cars are protected by other 
existing provisions in the title II regulation, including those 
requiring reasonable modifications of policies, practices, or 
procedures, and program accessibility.
    Web site accessibility. Many commenters expressed disappointment 
that the NPRM did not require title II entities to make their Web sites, 
through which they offer programs and services, accessible to 
individuals with disabilities, including those who are blind or have low 
vision. Commenters argued that the cost of making Web sites accessible, 
through Web site design, is minimal, yet critical to enabling 
individuals with disabilities to benefit from the entity's programs and 
services. Internet Web sites, when accessible, provide individuals with 
disabilities great independence, and have become an essential tool for 
many Americans. Commenters recommended that the Department require 
covered entities, at a minimum, to meet the section 508 Standard for 
Electronic and Information Technology for Internet accessibility. Under 
section 508 of the Rehabilitation Act of 1973, Federal agencies are 
required to make their Web sites accessible. 29 U.S.C. 794(d); 36 CFR 
1194.
    The Department agrees that the ability to access, on an equal basis, 
the programs and activities offered by public entities through Internet-
based Web sites is of great importance to individuals with disabilities, 
particularly those who are blind or who have low vision. When the ADA 
was enacted in 1990, the Internet was unknown to most Americans. Today, 
the Internet plays a critical role in daily life for personal, civic, 
commercial, and business purposes. In a period of shrinking resources, 
public entities increasingly rely on the web as an efficient and 
comprehensive way to deliver services and to inform and communicate with 
their citizens and the general public. In light of the growing 
importance Web sites play in providing access to public services and to 
disseminating the information citizens need to participate fully in 
civic life, accessing the Web sites of public entities can play a 
significant role in fulfilling the goals of the ADA.

[[Page 686]]

    Although the language of the ADA does not explicitly mention the 
Internet, the Department has taken the position that title II covers 
Internet Web site access. Public entities that choose to provide 
services through web-based applications (e.g., renewing library books or 
driver's licenses) or that communicate with their constituents or 
provide information through the Internet must ensure that individuals 
with disabilities have equal access to such services or information, 
unless doing so would result in an undue financial and administrative 
burden or a fundamental alteration in the nature of the programs, 
services, or activities being offered. The Department has issued 
guidance on the ADA as applied to the Web sites of public entities in a 
2003 publication entitled, Accessibility of State and Local Government 
Web sites to People with Disabilities, (June 2003) available at http://
www.ada.gov/websites2.htm. As the Department stated in that publication, 
an agency with an inaccessible Web site may also meet its legal 
obligations by providing an alternative accessible way for citizens to 
use the programs or services, such as a staffed telephone information 
line. However, such an alternative must provide an equal degree of 
access in terms of hours of operation and the range of options and 
programs available. For example, if job announcements and application 
forms are posted on an inaccessible Web site that is available 24 hours 
a day, seven days a week to individuals without disabilities, then the 
alternative accessible method must also be available 24 hours a day, 7 
days a week. Additional guidance is available in the Web Content 
Accessibility Guidelines (WCAG), (May 5, 1999) available at http://
www.w3.org/TR/WAI-WEBCONTENT (last visited June 24, 2010) which are 
developed and maintained by the Web Accessibility Initiative, a subgroup 
of the World Wide Web Consortium (W3C).
    The Department expects to engage in rulemaking relating to website 
accessibility under the ADA in the near future. The Department has 
enforced the ADA in the area of website accessibility on a case-by-case 
basis under existing rules consistent with the guidance noted above, and 
will continue to do so until the issue is addressed in a final 
regulation.
    Multiple chemical sensitivities. The Department received comments 
from a number of individuals asking the Department to add specific 
language to the final rule addressing the needs of individuals with 
chemical sensitivities. These commenters expressed concern that the 
presence of chemicals interferes with their ability to participate in a 
wide range of activities. These commenters also urged the Department to 
add multiple chemical sensitivities to the definition of a disability.
    The Department has determined not to include specific provisions 
addressing multiple chemical sensitivities in the final rule. In order 
to be viewed as a disability under the ADA, an impairment must 
substantially limit one or more major life activities. An individual's 
major life activities of respiratory or neurological functioning may be 
substantially limited by allergies or sensitivity to a degree that he or 
she is a person with a disability. When a person has this type of 
disability, a covered entity may have to make reasonable modifications 
in its policies and practices for that person. However, this 
determination is an individual assessment and must be made on a case-by-
case basis.
    Examinations and Courses. The Department received one comment 
requesting that it specifically include language regarding examinations 
and courses in the title II regulation. Because section 309 of the ADA 
42 U.S.C. 12189, reaches ``[a]ny person that offers examinations or 
courses related to applications, licensing, certification, or 
credentialing for secondary or post secondary education, professional, 
or trade purposes,'' public entities also are covered by this section of 
the ADA. Indeed, the requirements contained in title II (including the 
general prohibitions against discrimination, the program access 
requirements, the reasonable modifications requirements, and the 
communications requirements) apply to courses and examinations 
administered by public entities that meet the requirements of section 
309. While the Department considers these requirements to be sufficient 
to ensure that examinations and courses administered by public entities 
meet the section 309 requirements, the Department acknowledges that the 
title III regulation, because it addresses examinations in some detail, 
is useful as a guide for determining what constitutes discriminatory 
conduct by a public entity in testing situations. See 28 CFR 36.309.
    Hotel Reservations. In the NPRM, at Sec. 36.302(e), the Department 
proposed adding specific language to title III addressing the 
requirements that hotels, timeshare resorts, and other places of lodging 
make reasonable modifications to their policies, practices, or 
procedures, when necessary to ensure that individuals with disabilities 
are able to reserve accessible hotel rooms with the same efficiency, 
immediacy, and convenience as those who do not need accessible guest 
rooms. The NPRM did not propose adding comparable language to the title 
II regulation as the Department believes that the general 
nondiscrimination, program access, effective communication, and 
reasonable modifications requirements of title II provide sufficient 
guidance to public entities that operate places of lodging (i.e., lodges 
in State parks, hotels on public college campuses). The Department 
received no public comments suggesting that it add language

[[Page 687]]

on hotel reservations comparable to that proposed for the title III 
regulation. Although the Department continues to believe that it is 
unnecessary to add specific language to the title II regulation on this 
issue, the Department acknowledges that the title III regulation, 
because it addresses hotel reservations in some detail, is useful as a 
guide for determining what constitutes discriminatory conduct by a 
public entity that operates a reservation system serving a place of 
lodging.See 28 CFR 36.302(e).

[AG Order No. 3180-2010, 75 FR 56184, Sept. 15, 2010; 76 FR 13285, Mar. 
11, 2011]



       Sec. Appendix B to Part 35--Guidance on ADA Regulation on 
    Nondiscrimination on the Basis of Disability in State and Local 
         Government Services Originally 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 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

[[Page 688]]

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 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

[[Page 689]]

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 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

[[Page 690]]

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.
    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

[[Page 691]]

(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 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

[[Page 692]]

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 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

[[Page 693]]

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 Secs. 35.150 (a)(2) and 
(b)(2), which relate to accessibility of historic preservation programs, 
and Sec. 35.151(d), which relates to the alteration of historic 
properties.
    ``Illegal use of drugs.'' The definition of ``illegal use of drugs'' 
is taken from section 510(d)(1) of the Act and clarifies that the term 
includes the illegal use of one or more drugs.
    ``Individual with a disability'' means a person who has a disability 
but does not include an individual who is currently illegally using 
drugs, when the public entity acts on the basis of such use. The phrase 
``current illegal use of drugs'' is explained in Sec. 35.131.
    ``Public entity.'' The term ``public entity'' is defined in 
accordance with section 201(1) of the ADA as any State or local 
government; any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; or the 
National Railroad Passenger Corporation, and any commuter authority (as 
defined in section 103(8) of the Rail Passenger Service Act).
    ``Qualified individual with a disability.'' The definition of 
``qualified individual with a disability'' is taken from section 201(2) 
of the Act, which is derived from the definition of ``qualified 
handicapped person'' in the Department of Health and Human Services' 
regulation implementing section 504 (45 CFR Sec. 84.3(k)). It combines 
the definition at 45 CFR 84.3(k)(1) for employment (``a handicapped 
person who, with reasonable accommodation, can perform the essential 
functions of the job in question'') with the definition for other 
services at 45 CFR 84.3(k)(4) (``a handicapped person who meets the 
essential eligibility requirements for the receipt of such services'').
    Some commenters requested clarification of the term ``essential 
eligibility requirements.'' Because of the variety of situations in 
which an individual's qualifications will be at issue, it is not 
possible to include more

[[Page 694]]

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 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.

[[Page 695]]

    ``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 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.

[[Page 696]]

    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 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

[[Page 697]]

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 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.

[[Page 698]]

    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.
    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

[[Page 699]]

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 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

[[Page 700]]

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 
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.

[[Page 701]]

    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 
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

[[Page 702]]

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 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

[[Page 703]]

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.
    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

[[Page 704]]

with title I. In the final regulation this language is modified 
slightly. Subparagraph (1) of new paragraph (b) makes it clear that the 
standards established by the Equal Employment Opportunity Commission in 
29 CFR part 1630 will be the applicable compliance standards if the 
public entity is subject to title I. If the public entity is not covered 
by title I, or until it is covered by title I, subparagraph (b)(2) 
cross-references section 504 standards for what constitutes employment 
discrimination, as established by the Department of Justice in 28 CFR 
part 41. Standards for title I of the ADA and section 504 of the 
Rehabilitation Act are for the most part identical because title I of 
the ADA was based on requirements set forth in regulations implementing 
section 504.
    The Department, together with the other Federal agencies responsible 
for the enforcement of Federal laws prohibiting employment 
discrimination on the basis of disability, recognizes the potential for 
jurisdictional overlap that exists with respect to coverage of public 
entities and the need to avoid problems related to overlapping coverage. 
The other Federal agencies include the Equal Employment Opportunity 
Commission, which is the agency primarily responsible for enforcement of 
title I of the ADA, the Department of Labor, which is the agency 
responsible for enforcement of section 503 of the Rehabilitation Act of 
1973, and 26 Federal agencies with programs of Federal financial 
assistance, which are responsible for enforcing section 504 in those 
programs. Section 107 of the ADA requires that coordination mechanisms 
be developed in connection with the administrative enforcement of 
complaints alleging discrimination under title I and complaints alleging 
discrimination in employment in violation of the Rehabilitation Act. 
Although the ADA does not specifically require inclusion of employment 
complaints under title II in the coordinating mechanisms required by 
title I, Federal investigations of title II employment complaints will 
be coordinated on a government-wide basis also. The Department is 
currently working with the EEOC and other affected Federal agencies to 
develop effective coordinating mechanisms, and final regulations on this 
issue will be issued on or before January 26, 1992.

                    Subpart D--Program Accessibility

                Section 35.149  Discrimination Prohibited

    Section 35.149 states the general nondiscrimination principle 
underlying the program accessibility requirements of Secs. 35.150 and 
35.151.

                   Section 35.150  Existing Facilities

    Consistent with section 204(b) of the Act, this regulation adopts 
the program accessibility concept found in the section 504 regulations 
for federally conducted programs or activities (e.g., 28 CFR part 39). 
The concept of ``program accessibility'' was first used in the section 
504 regulation adopted by the Department of Health, Education, and 
Welfare for its federally assisted programs and activities in 1977. It 
allowed recipients to make their federally assisted programs and 
activities available to individuals with disabilities without extensive 
retrofitting of their existing buildings and facilities, by offering 
those programs through alternative methods. Program accessibility has 
proven to be a useful approach and was adopted in the regulations issued 
for programs and activities conducted by Federal Executive agencies. The 
Act provides that the concept of program access will continue to apply 
with respect to facilities now in existence, because the cost of 
retrofitting existing facilities is often prohibitive.
    Section 35.150 requires that each service, program, or activity 
conducted by a public entity, when viewed in its entirety, be readily 
accessible to and usable by individuals with disabilities. The 
regulation makes clear, however, that a public entity is not required to 
make each of its existing facilities accessible (Sec. 35.150(a)(1)). 
Unlike title III of the Act, which requires public accommodations to 
remove architectural barriers where such removal is ``readily 
achievable,'' or to provide goods and services through alternative 
methods, where those methods are ``readily achievable,'' title II 
requires a public entity to make its programs accessible in all cases, 
except where to do so would result in a fundamental alteration in the 
nature of the program or in undue financial and administrative burdens. 
Congress intended the ``undue burden'' standard in title II to be 
significantly higher than the ``readily achievable'' standard in title 
III. Thus, although title II may not require removal of barriers in some 
cases where removal would be required under title III, the program 
access requirement of title II should enable individuals with 
disabilities to participate in and benefit from the services, programs, 
or activities of public entities in all but the most unusual cases.
    Paragraph (a)(2), which establishes a special limitation on the 
obligation to ensure program accessibility in historic preservation 
programs, is discussed below in connection with paragraph (b).
    Paragraph (a)(3), which is taken from the section 504 regulations 
for federally conducted programs, generally codifies case law that 
defines the scope of the public entity's obligation to ensure program 
accessibility. This paragraph provides that, in meeting the program 
accessibility requirement, a public entity is not required to take any 
action that would result in a fundamental alteration in the nature of 
its service, program,

[[Page 705]]

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.

                     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

[[Page 706]]

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 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.

[[Page 707]]

            Section 35.151  New Construction and Alterations

    Section 35.151 provides that those buildings that are constructed or 
altered by, on behalf of, or for the use of a public entity shall be 
designed, constructed, or altered to be readily accessible to and usable 
by individuals with disabilities if the construction was commenced after 
the effective date of this part. Facilities under design on that date 
will be governed by this section if the date that bids were invited 
falls after the effective date. This interpretation is consistent with 
Federal practice under section 504.
    Section 35.151(c) establishes two standards for accessible new 
construction and alteration. Under paragraph (c), design, construction, 
or alteration of facilities in conformance with the Uniform Federal 
Accessibility Standards (UFAS) or with the Americans with Disabilities 
Act Accessibility Guidelines for Buildings and Facilities (hereinafter 
ADAAG) shall be deemed to comply with the requirements of this section 
with respect to those facilities except that, if ADAAG is chosen, the 
elevator exemption contained at Secs. 36.40l(d) and 36.404 does not 
apply. ADAAG is the standard for private buildings and was issued as 
guidelines by the Architectural and Transportation Barriers Compliance 
Board (ATBCB) under title III of the ADA. It has been adopted by the 
Department of Justice and is published as appendix A to the Department's 
title III rule in today's Federal Register. Departures from particular 
requirements of these standards by the use of other methods shall be 
permitted when it is clearly evident that equivalent access to the 
facility or part of the facility is thereby provided. Use of two 
standards is a departure from the proposed rule.
    The proposed rule adopted UFAS as the only interim accessibility 
standard because that standard was referenced by the regulations 
implementing section 504 of the Rehabilitation Act promulgated by most 
Federal funding agencies. It is, therefore, familiar to many State and 
local government entities subject to this rule. The Department, however, 
received many comments objecting to the adoption of UFAS. Commenters 
pointed out that, except for the elevator exemption, UFAS is not as 
stringent as ADAAG. Others suggested that the standard should be the 
same to lessen confusion.
    Section 204(b) of the Act states that title II regulations must be 
consistent not only with section 504 regulations but also with ``this 
Act.'' Based on this provision, the Department has determined that a 
public entity should be entitled to choose to comply either with ADAAG 
or UFAS.
    Public entities who choose to follow ADAAG, however, are not 
entitled to the elevator exemption contained in title III of the Act and 
implemented in the title III regulation at Sec. 36.401(d) for new 
construction and Sec. 36.404 for alterations. Section 303(b) of title 
III states that, with some exceptions, elevators are not required in 
facilities that are less than three stories or have less than 3000 
square feet per story. The section 504 standard, UFAS, contains no such 
exemption. Section 501 of the ADA makes clear that nothing in the Act 
may be construed to apply a lesser standard to public entities than the 
standards applied under section 504. Because permitting the elevator 
exemption would clearly result in application of a lesser standard than 
that applied under section 504, paragraph (c) states that the elevator 
exemption does not apply when public entities choose to follow ADAAG. 
Thus, a two-story courthouse, whether built according to UFAS or ADAAG, 
must be constructed with an elevator. It should be noted that Congress 
did not include an elevator exemption for public transit facilities 
covered by subtitle B of title II, which covers public transportation 
provided by public entities, providing further evidence that Congress 
intended that public buildings have elevators.
    Section 504 of the ADA requires the ATBCB to issue supplemental 
Minimum Guidelines and Requirements for Accessible Design of buildings 
and facilities subject to the Act, including title II. Section 204(c) of 
the ADA provides that the Attorney General shall promulgate regulations 
implementing title II that are consistent with the ATBCB's ADA 
guidelines. The ATBCB has announced its intention to issue title II 
guidelines in the future. The Department anticipates that, after the 
ATBCB's title II guidelines have been published, this rule will be 
amended to adopt new accessibility standards consistent with the ATBCB's 
rulemaking. Until that time, however, public entities will have a choice 
of following UFAS or ADAAG, without the elevator exemption.
    Existing buildings leased by the public entity after the effective 
date of this part are not required by the regulation to meet 
accessibility standards simply by virtue of being leased. They are 
subject, however, to the program accessibility standard for existing 
facilities in Sec. 35.150. To the extent the buildings are newly 
constructed or altered, they must also meet the new construction and 
alteration requirements of Sec. 35.151.
    The Department received many comments urging that the Department 
require that public entities lease only accessible buildings. Federal 
practice under section 504 has always treated newly leased buildings as 
subject to the existing facility program accessibility standard. Section 
204(b) of the Act states that, in the area of ``program accessibility, 
existing facilities,'' the title II regulations must be consistent with 
section 504 regulations. Thus, the Department has adopted the section 
504 principles for these

[[Page 708]]

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.

                        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.

[[Page 709]]

    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 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

[[Page 710]]

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 exist, clear signage should be posted indicating the 
location of the TDD. The Department believes that this is required by 
paragraph (a). In addition, the Department recommends that, in large 
buildings that house TDD's, directional signage indicating the location 
of available TDD's should be placed adjacent to banks of telephones that 
do not contain a TDD.

                         Section 35.164  Duties

    Section 35.164, like paragraph (a)(3) of Sec. 35.150, is taken from 
the section 504 regulations for federally conducted programs. Like 
paragraph (a)(3), it limits the obligation of the public entity to 
ensure effective communication in accordance with Davis and the circuit 
court opinions interpreting it. It also includes specific requirements 
for determining the existence of undue financial and administrative 
burdens. The preamble discussion of Sec. 35.150(a) regarding that 
determination is applicable to this section and further explains the 
public entity's obligation to comply with Secs. 35.160-35.164. Because

[[Page 711]]

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 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.

[[Page 712]]

                       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.

                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

[[Page 713]]

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, 
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.

[[Page 714]]

    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 that this approach will provide more flexibility 
in determining the appropriate agency for investigation of complaints 
involving those components of State and local governments not 
specifically addressed by the listings in paragraph (b). As provided in 
Secs. 35.170 and 35.171, complaints filed with the Department of Justice 
will be referred to the appropriate agency.
    Several commenters proposed a stronger role for the Department of 
Justice, especially with respect to the receipt and assignment of 
complaints, and the overall monitoring of the effectiveness of the 
enforcement activities of Federal agencies. As discussed above, 
Secs. 35.170 and 35.171 have been revised to provide for referral of 
complaints by the Department of Justice to appropriate enforcement 
agencies. Also, language has been added to Sec. 35.190(a) of the final 
regulation stating that the Assistant Attorney

[[Page 715]]

General shall provide policy guidance and interpretations to designated 
agencies to ensure the consistent and effective implementation of this 
part.

[Order No. 1512-91, 56 FR 35716, July 26, 1991, redesignated by AG Order 
No. 3180-2010, 75 FR 56184, Sept. 15, 2010]



 Sec. Appendix C to Part 35-- Guidance to Revisions to ADA Title II and 
  Title III Regulations Revising the Meaning and Interpretation of the 
     Definition of ``Disability'' and Other Provisions in Order To 
         Incorporate the Requirements of the ADA Amendments Act

    Note: This appendix contains guidance providing a section-by-section 
analysis of the revisions to 28 CFR parts 35 and 36 published on August 
11, 2016.

                Guidance and Section-by-Section Analysis

    This section provides a detailed description of the Department's 
changes to the meaning and interpretation of the definition of 
``disability'' in the title II and title III regulations, the reasoning 
behind those changes, and responses to public comments received on these 
topics. See Office of the Attorney General; Amendment of Americans with 
Disabilities Act Title II and Title III Regulations to Implement ADA 
Amendments Act of 2008, 79 FR 4839 (Jan. 30, 2014) (NPRM).

         Sections 35.101 and 36.101--Purpose and Broad Coverage

    Sections 35.101 and 36.101 set forth the purpose of the ADA title II 
and title III regulations. In the NPRM, the Department proposed revising 
these sections by adding references to the ADA Amendments Act in 
renumbered Secs. 35.101(a) and 36.101(a) and by adding new 
Secs. 35.101(b) and 36.101(b), which explain that the ADA is intended to 
have broad coverage and that the definition of ``disability'' shall be 
construed broadly. The proposed language in paragraph (b) stated that 
the primary purpose of the ADA Amendments Act is to make it easier for 
people with disabilities to obtain protection under the ADA. Consistent 
with the ADA Amendments Act's purpose of reinstating a broad scope of 
protection under the ADA, the definition of ``disability'' in this part 
shall be construed broadly in favor of expansive coverage to the maximum 
extent permitted by the terms of the ADA. The primary object of 
attention in ADA cases should be whether covered entities have complied 
with their obligations and whether discrimination has occurred, not 
whether the individual meets the definition of disability. The question 
of whether an individual meets the definition of disability should not 
demand extensive analysis.
    Many commenters supported inclusion of this information as 
reiterating the statutory language evincing Congress' intention ``to 
restore a broad definition of `disability' under the ADA. . . .'' 
Several commenters asked the Department to delete the last sentence in 
Secs. 35.101(b) and 36.101(b), arguing that inclusion of this language 
is inconsistent with the individualized assessment required under the 
ADA. Some of these commenters acknowledged, however, that this language 
is drawn directly from the ``Purposes'' of the ADA Amendments Act. See 
Public Law 110-325, sec. 2(b)(5). The Department declines to remove this 
sentence from the final rule. In addition to directly quoting the 
statute, the Department believes that this language neither precludes 
nor is inconsistent with conducting an individualized assessment of 
whether an individual is covered by the ADA.
    Some commenters recommended that the Department add a third 
paragraph to these sections expressly stating that ``not all impairments 
are covered disabilities.'' These commenters contended that ``[t]here is 
a common misperception that having a diagnosed impairment automatically 
triggers coverage under the ADA.'' While the Department does not agree 
that such a misperception is common, it agrees that it would be 
appropriate to include such a statement in the final rule, and has added 
it to the rules of construction explaining the phrase ``substantially 
limits'' at Secs. 35.108(d)(1)(v) and 36.105(d)(1)(v).

                 Sections 35.104 and 36.104--Definitions

    The current title II and title III regulations include the 
definition of ``disability'' in regulatory sections that contain all 
enumerated definitions in alphabetical order. Given the expanded length 
of the definition of ``disability'' and the number of additional 
subsections required in order to give effect to the requirements of the 
ADA Amendments Act, the Department, in the NPRM, proposed moving the 
definition of ``disability'' from the general definitional sections at 
Secs. 35.104 and 36.104 to a new section in each regulation, 
Secs. 35.108 and 36.105, respectively.
    The Department received no public comments in response to this 
proposal and the definition of ``disability'' remains in its own 
sections in the final rule.

  Sections 35.108(a)(1) and 36.105(a)(1) Definition of ``disability''--
                                 General

    In the ADA, Congress originally defined ``disability'' as ``(A) a 
physical or mental impairment that substantially limits one or more 
major life activities of an individual; (B) a record of such an 
impairment; or (C)

[[Page 716]]

being regarded as having such an impairment.'' Public Law 101-336, sec. 
3 (1990). This three-part definition--the ``actual,'' ``record of,'' and 
``regarded as'' prongs--was modeled after the definition of ``handicap'' 
found in the Rehabilitation Act of 1973. H.R. Rep. No. 110-730, pt. 2, 
at 6 (2008). The Department's 1991 title II and title III ADA 
regulations reiterate this three-part basic definition as follows:
    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.

56 FR 35694, 35717 (July 26, 1991); 56 FR 35544, 35548 (July 26, 1991).
    While the ADA Amendments Act did not amend the basic structure or 
terminology of the original statutory definition of ``disability,'' the 
Act revised the third prong to incorporate by reference two specific 
provisions construing this prong. 42 U.S.C. 12102(3)(A)-(B). The first 
statutory provision clarified the scope of the ``regarded as'' prong by 
explaining that ``[a]n individual meets the requirement of `being 
regarded as having such an impairment' if the individual establishes 
that he or she has been subjected to an action prohibited under this 
chapter because of an actual or perceived physical or mental impairment 
whether or not the impairment limits or is perceived to limit a major 
life activity.'' 42 U.S.C. 12102(3)(A). The second statutory provision 
provides an exception to the ``regarded as'' prong for impairments that 
are both transitory and minor. A transitory impairment is defined as 
``an impairment with an actual or expected duration of 6 months or 
less.'' 42 U.S.C. 12102(3)(B). In the NPRM, the Department proposed 
revising the ``regarded as'' prong in Secs. 35.108(a)(1)(iii) and 
36.105(a)(1)(iii) to reference the regulatory provisions that implement 
42 U.S.C. 12102(3). The NPRM proposed, at Secs. 35.108(f) and 36.105(f), 
that ``regarded as'' having an impairment would mean that the individual 
has been subjected to an action prohibited by the ADA because of an 
actual or perceived impairment that is not both ``transitory and 
minor.''
    The first proposed sentence directed that the meaning of the 
``regarded as prong'' shall be understood in light of the requirements 
in Secs. 35.108(f) and 36.105(f). The second proposed sentence merely 
provided a summary restatement of the requirements of Secs. 35.108(f) 
and 36.105(f). The Department received no comments in response to this 
proposed language. Upon consideration, however, the Department decided 
to retain the first proposed sentence but omit the second as 
superfluous. Because the first sentence explicitly incorporates and 
directs the public to the requirements set out in Secs. 35.108(f) and 
36.105(f), the Department believes that summarizing those requirements 
here is unnecessary. Accordingly, in the final rule, 
Secs. 35.108(a)(1)(iii) and 36.105(a)(1)(iii) simply reference paragraph 
(f) of the respective section. See also, discussion in the Guidance and 
Section-by-Section analysis of Secs. 35.108(f) and 36.105(f), below.

  Sections 35.108(a)(2) and 36.105(a)(2) Definition of ``disability''--
                          Rules of Construction

    In the NPRM, the Department proposed Secs. 35.108(a)(2) and 
36.105(a)(2), which set forth rules of construction on how to apply the 
definition of ``disability.'' Proposed Secs. 35.108(a)(2)(i) and 
36.105(a)(2)(i) state that an individual may establish coverage under 
any one or more of the prongs in the definition of ``disability''--the 
``actual disability'' prong in paragraph (a)(1)(i), the ``record of'' 
prong in paragraph (a)(1)(ii) or the ``regarded as'' prong in paragraph 
(a)(1)(iii). See Secs. 35.108(a)(1)(i) through (iii); 36.105(a)(1)(i) 
through (iii). The NPRM's inclusion of rules of construction stemmed 
directly from the ADA Amendments Act, which amended the ADA to require 
that the definition of ``disability'' be interpreted in conformance with 
several specific directives and an overarching mandate to ensure ``broad 
coverage . . . to the maximum extent permitted by the terms of [the 
ADA].'' 42 U.S.C. 12102(4)(A).
    To be covered under the ADA, an individual must satisfy only one 
prong. The term ``actual disability'' is used in these rules of 
construction as shorthand terminology to refer to an impairment that 
substantially limits a major life activity within the meaning of the 
first prong of the definition of ``disability.'' See 
Secs. 35.108(a)(1)(i); 36.105(a)(1)(i). The terminology selected is for 
ease of reference. It is not intended to suggest that an individual with 
a disability who is covered under the first prong has any greater rights 
under the ADA than an individual who is covered under the ``record of'' 
or ``regarded as'' prongs, with the exception that the ADA Amendments 
Act revised the ADA to expressly state that an individual who meets the 
definition of ``disability'' solely under the ``regarded as'' prong is 
not entitled to reasonable modifications of policies, practices, or 
procedures. See 42 U.S.C. 12201(h).
    Proposed Secs. 35.108(a)(2)(ii) and 36.105(a)(2)(ii) were intended 
to incorporate Congress's expectation that consideration of coverage 
under the ``actual disability'' and ``record of disability'' prongs of 
the definition of ``disability'' will generally be unnecessary except in 
cases involving requests for reasonable modifications. See 154 Cong. 
Rec. H6068 (daily ed. June 25, 2008) (joint statement of Reps. Steny 
Hoyer and Jim Sensenbrenner). Accordingly, these provisions state that, 
absent

[[Page 717]]

a claim that a covered entity has failed to provide reasonable 
modifications, typically it is not necessary to rely on the ``actual 
disability'' or ``record of'' disability prongs. Instead, in such cases, 
the coverage can be evaluated exclusively under the ``regarded as'' 
prong,'' which does not require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. Whether or not an individual is challenging a covered 
entity's failure to provide reasonable modifications, the individual may 
nevertheless proceed under the ``actual disability'' or ``record of'' 
prong. The Department notes, however, that where an individual is 
challenging a covered entity's failure to provide effective 
communication, that individual cannot rely solely on the ``regarded as 
prong'' because the entitlement to an auxiliary aid or service is 
contingent on a disability-based need for the requested auxiliary aid or 
service. See 28 CFR 35.160(b), 28 CFR 36.303(c).
    The Department received no comments objecting to these proposed 
rules of construction. The final rule retains these provisions but 
renumbers them as paragraphs (ii) and (iii) of Secs. 35.108(a)(2) and 
36.105(a)(2) and replaces the reference to ``covered entity'' in the 
title III regulatory text with ``public accommodation.''
    The Department has added a third rule of construction at the 
beginning of Secs. 35.108(a)(2) and 36.105(a)(2), numbered 
Secs. 35.108(a)(2)(i) and 36.105(a)(2)(i). Closely tracking the amended 
statutory language, these provisions state that ``[t]he definition of 
disability shall be construed broadly in favor of expansive coverage, to 
the maximum extent permitted by the terms of the ADA.'' See 42 U.S.C. 
12102(4)(A). This principle is referenced in other portions of the final 
rule, but the Department believes it is important to include here 
underscore Congress's intent that it be applied throughout the 
determination of whether an individual falls within the ADA definition 
of ``disability.''

     Sections 35.108(b) and 36.105(b)--Physical or Mental Impairment

    The ADA Amendments Act did not change the meaning of the term 
``physical or mental impairment.'' Thus, in the NPRM, the Department 
proposed only minor modifications to the general regulatory definitions 
for this term at Secs. 35.108(b)(1)(i) and 36.105(b)(1)(i) by adding 
examples of two additional body systems--the immune system and the 
circulatory system--that may be affected by a physical impairment.
    In addition, the Department proposed adding ``dyslexia'' to 
Secs. 35.108(b)(2) and 36.105(b)(2) as an example of a specific learning 
disability that falls within the meaning of the phrase ``physical or 
mental impairment.'' Although dyslexia is a specific diagnosable 
learning disability that causes difficulties in reading, unrelated to 
intelligence and education, the Department became aware that some 
covered entities mistakenly believe that dyslexia is not a clinically 
diagnosable impairment. Therefore, the Department sought public comment 
regarding its proposed inclusion of a reference to dyslexia in these 
sections.
    The Department received a significant number of comments in response 
to this proposal. Many commenters supported inclusion of the reference 
to dyslexia. Some of these commenters also asked the Department to 
include other examples of specific learning disabilities such as 
dysgraphia \1\ and dyscalculia.\2\ Several commenters remarked that as 
``research and practice bear out, dyslexia is just one of the specific 
learning disabilities that arise from `neurological differences in brain 
structure and function and affect a person's ability to receive, store, 
process, retrieve or communicate information.' '' These commenters 
identified the most common specific learning disabilities as: 
``Dyslexia, dysgraphia, dyscalculia, auditory processing disorder, 
visual processing disorder and non-verbal learning disabilities,'' and 
recommended that the Department rephrase its reference to specific 
learning disabilities to make clear that there are many other specific 
learning disabilities besides dyslexia. The Department has considered 
all of these comments and has decided to use the phrase ``dyslexia and 
other specific learning disabilities'' in the final rule.
---------------------------------------------------------------------------

    \1\ Dysgraphia is a learning disability that negatively affects the 
ability to write.
    \2\ Dyscalculia is a learning disability that negatively affects the 
processing and learning of numerical information.
---------------------------------------------------------------------------

    Another commenter asked the Department to add a specific definition 
of dyslexia to the regulatory text itself. The Department declines to do 
so as it does not give definitions for any other physical or mental 
impairment in the regulations.
    Other commenters recommended that the Department add ADHD to the 
list of examples of ``physical or mental impairments'' in 
Secs. 35.108(b)(2) and 36.105(b)(2).\3\ Some commenters stated that 
ADHD, which is not a

[[Page 718]]

specific learning disability, is a very commonly diagnosed impairment 
that is not always well understood. These commenters expressed concern 
that excluding ADHD from the list of physical and mental impairments 
could be construed to mean that ADHD is less likely to support an 
assertion of disability as compared to other impairments. On 
consideration, the Department agrees that, due to the prevalence of ADHD 
but lack of public understanding of the condition, inclusion of ADHD 
among the examples set forth in Secs. 35.108(b)(2) and 36.105(b)(2) will 
provide appropriate and helpful guidance to the public.
---------------------------------------------------------------------------

    \3\ The Department is using the term ADHD in the same manner as it 
is currently used in the Diagnostic and Statistical Manual of Mental 
Disorders: Fifth Edition (DSM-5), to refer to three different 
presentations of symptoms: Predominantly inattentive (which was 
previously known as ``attention deficit disorder); predominantly 
hyperactive or impulsive; or a combined presentation of inattention and 
hyperactivity-impulsivity. The DSM-5 is the most recent edition of a 
widely-used manual designed to assist clinicians and researchers in 
assessing mental disorders. See Diagnostic and Statistical Manual of 
Mental Disorders: Fifth Edition DSM-5, American Psychiatric Association, 
at 59-66 (2013).
---------------------------------------------------------------------------

    Other commenters asked the Department to include arthritis, 
neuropathy, and other examples of physical or mental impairments that 
could substantially impair a major life activity. The Department 
declines to add any other examples because, while it notes the value in 
clarifying the existence of impairments such as ADHD, it also recognizes 
that the regulation need not elaborate an inclusive list of all 
impairments, particularly those that are very prevalent, such as 
arthritis, or those that may be symptomatic of other underlying 
impairments already referenced in the list, such as neuropathy, which 
may be caused by cancer or diabetes. The list is merely illustrative and 
not exhaustive. The regulations clearly state that the phrase ``physical 
or mental impairment'' includes, but is not limited to'' the examples 
provided. No negative implications should be drawn from the omission of 
any specific impairment in Secs. 35.108(b) and 36.105(b).
    The Department notes that it is important to distinguish between 
conditions that are impairments and physical, environmental, cultural, 
or economic characteristics that are not impairments. The definition of 
the term ``impairment'' does not include physical characteristics such 
as eye color, hair color, or left-handedness, or height, weight, or 
muscle tone that are within ``normal'' range. Moreover, conditions that 
are not themselves physiological disorders, such as pregnancy, are not 
impairments. However, even if an underlying condition or characteristic 
is not itself a physical or mental impairment, it may give rise to a 
physical or mental impairment that substantially limits a major life 
activity. In such a case, an individual would be able to establish 
coverage under the ADA. For example, while pregnancy itself is not an 
impairment, a pregnancy-related impairment that substantially limits a 
major life activity will constitute a disability under the first prong 
of the definition.\4\ Major life activities that might be substantially 
limited by pregnancy-related impairments could include walking, 
standing, and lifting, as well as major bodily functions such as the 
musculoskeletal, neurological, cardiovascular, circulatory, endocrine, 
and reproductive functions. Alternatively, a pregnancy-related 
impairment may constitute a ``record of'' a substantially limiting 
impairment, or may be covered under the ``regarded as'' prong if it is 
the basis for a prohibited action and is not both ``transitory and 
minor.''
---------------------------------------------------------------------------

    \4\ Pregnancy-related impairments may include, but are not limited 
to: Disorders of the uterus and cervix, such as insufficient cervix or 
uterine fibroids; and pregnancy-related anemia, sciatica, carpal tunnel 
syndrome, gestational diabetes, nausea, abnormal heart rhythms, limited 
circulation, or depression. See EEOC Enforcement Guidance on Pregnancy 
Discrimination and Related Issues, EEOC Notice 915.003, June 25, 2015, 
available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm 
(last visited Feb. 3, 2016).
---------------------------------------------------------------------------

         Sections 35.108(c) and 36.105(c)--Major Life Activities

    Prior to the passage of the ADA Amendments Act, the ADA did not 
define ``major life activities,'' leaving delineation of illustrative 
examples to agency regulations. Paragraph 2 of the definition of 
``disability'' in the Department's current title II and title III 
regulations at 28 CFR 35.104 and 36.104 states that ``major life 
activities'' means functions such as caring for one's self, performing 
manual tasks, walking, seeing, hearing, speaking, breathing, learning, 
and working.
    The ADA Amendments Act significantly expanded the range of major 
life activities by directing that ``major'' be interpreted in a more 
expansive fashion, by adding a significant new category of major life 
activities, and by providing non-exhaustive lists of examples of major 
life activities. The amended statute's first list of major life 
activities includes, but is not limited to, ``caring for oneself, 
performing manual tasks, seeing, hearing, eating, sleeping, walking, 
standing, lifting, bending, speaking, breathing, learning, reading, 
concentrating, thinking, communicating, and working.'' 42 U.S.C. 
12102(2)(A). The ADA Amendments Act also broadened the definition of 
``major life activity'' to include physical or mental impairments that 
substantially limit the operation of a ``major bodily function,'' which 
include, but are not limited to, the ``functions of the

[[Page 719]]

immune system, normal cell growth, digestive, bowel, bladder, 
neurological, brain, respiratory, circulatory, endocrine, and 
reproductive functions.'' 42 U.S.C. 12102(2)(B). These expanded lists of 
examples of major life activities reflect Congress's directive to expand 
the meaning of the term ``major'' in response to court decisions that 
interpreted the term more narrowly than Congress intended. See Public 
Law 110-25, sec. 3 (b)(4).

Examples of Major Life Activities, Other Than the Operations of a Major 
                             Bodily Function

    In the NPRM, at Secs. 35.108(c) and 36.105(c), the Department 
proposed revisions of the title II and title III lists of examples of 
major life activities (other than the operations of a major bodily 
function) to incorporate all of the statutory examples, as well as to 
provide additional examples included in the EEOC title I final 
regulation--reaching, sitting, and interacting with others. See 29 CFR 
1630.2(i)(1)(i).
    A number of commenters representing persons with disabilities or the 
elderly recommended that the Department add a wide variety of other 
activities to this first list. Some commenters asked the Department to 
include references to test taking, writing, typing, keyboarding, or 
executive function.\5\ Several commenters asked the Department to 
include other activities as well, such as the ability to engage in 
sexual activity, perform mathematical calculations, travel, or drive. 
One commenter asked the Department to recognize that, depending upon 
where people live, other life activities may fall within the category of 
major life activities. This commenter asserted, for example, that 
tending livestock or operating farm equipment can be a major life 
activity in a farming or ranching community, and that maintaining 
septic, well or water systems, or gardening, composting, or hunting may 
be a major life activity in a rural community.
---------------------------------------------------------------------------

    \5\ ``Executive function'' is an umbrella term that has been 
described as referring to ``a constellation of cognitive abilities that 
include the ability to plan, organize, and sequence tasks and manage 
multiple tasks simultaneously.'' See, e.g. National Institute of 
Neurological Disorders and Stroke, Domain Specific Tasks of Executive 
Functions, available at grants.nih.gov/grants/guide/notice-files/NOT-NS-
04-012.html (last visited Feb. 3, 2016).
---------------------------------------------------------------------------

    On consideration of the legislative history and the relevant public 
comments, the Department decided to include ``writing'' as an additional 
example in its non-exhaustive list of examples of major life activities 
in the final rule. The Department notes Congress repeatedly stressed 
that writing is one of the major life activities that is often affected 
by a covered learning disability. See, e.g., 154 Cong. Rec. S8842 (daily 
ed. Sept. 16, 2008) (Statement of the Managers); H.R. Rep. No. 110-730 
pt. 1, at 10-11 (2008).
    Other than ``writing,'' the Department declines to add additional 
examples of major life activities to these provisions in the final rule. 
This list is illustrative, and the Department believes that it is 
neither necessary nor possible to list every major life activity. 
Moreover, the Department notes that many of the commenters' suggested 
inclusions implicate life activities already included on the list. For 
example, although, as commenters pointed out, some courts have concluded 
that test taking is a major life activity,\6\ the Department notes that 
one or more already-included major life activities--such as reading, 
writing, concentrating, or thinking, among others--will virtually always 
be implicated in test taking. Similarly, activities such as operating 
farm equipment, or maintaining a septic or well system, implicate 
already-listed major life activities such as reaching, lifting, bending, 
walking, standing, and performing manual tasks.
---------------------------------------------------------------------------

    \6\ In Bartlett v. N.Y. State Bd. of Law Exam'rs, 970 F. Supp. 1094, 
1117 (S.D.N.Y. 1997), aff'd in part and vacated in part, 156 F.3d 321 
(2d Cir. 1998), cert. granted, judgment vacated on other grounds, 527 
U.S. 1031 (1999), and aff'd in part, vacated in part, 226 F.3d 69 (2d 
Cir. 2000), then-Judge Sotomayor stated, ``[I]n the modern era, where 
test-taking begins in the first grade, and standardized tests are a 
regular and often life-altering occurrence thereafter, both in school 
and at work, I find test-taking is within the ambit of `major life 
activity.' '' See also Rawdin v. American Bd. of Pediatrics, 985 F. 
Supp. 2d 636 (E.D. Pa. 2013), aff'd. on other grounds, 2014 U.S. App. 
LEXIS 17002 (3d Cir. Sept. 3, 2014).
---------------------------------------------------------------------------

    The commenters' suggested additions also implicate the operations of 
various bodily systems that may already be recognized as major life 
activities. See discussion of Secs. 35.108(c)(1)(ii) and 
36.105(c)(1)(ii), below. For example, it is the Department's view that 
individuals who have cognitive or other impairments that affect the 
range of abilities that are often described as part of ``executive 
function'' will likely be able to assert that they have impairments that 
substantially limit brain function, which is one of the major bodily 
functions listed among the examples of major life activities.

Examples of Major Life Activities--Operations of a Major Bodily Function

    In the NPRM, the Department proposed revising the regulatory 
definitions of disability at Secs. 35.108(c)(1)(ii) and 36.105(c)(1)(ii) 
to make clear that the operations of major bodily functions are major 
life activities, and to include a non-exhaustive list of examples of 
major bodily functions, consistent with the language of the ADA as 
amended.

[[Page 720]]

Because the statutory list is non-exhaustive, the Department also 
proposed further expanding the list to include the following examples of 
major bodily functions: The functions of the special sense organs and 
skin, genitourinary, cardiovascular, hemic, lymphatic, and 
musculoskeletal systems. These six major bodily functions also are 
specified in the EEOC title I final regulation. 29 CFR 1630.2(i)(1)(i).
    One commenter objected to the Department's inclusion of additional 
examples of major life activities in both these lists, suggesting that 
the Department include only those activities and conditions specifically 
set forth in the ADA as amended. The Department believes that providing 
other examples of major life activities, including major bodily 
functions, is within the Attorney General's authority to both interpret 
titles II and III of the ADA and promulgate implementing regulations and 
that these examples provide helpful guidance to the public. Therefore, 
the Department declines to limit its lists of major life activities to 
those specified in the statute. Further, the Department notes that even 
the expanded lists of major life activities and major bodily functions 
are illustrative and non-exhaustive. The absence of a particular life 
activity or bodily function from the list should not create a negative 
implication as to whether such activity or function constitutes a major 
life activity under the statute or the implementing regulation.

             Rules of Construction for Major Life Activities

    In the NPRM, proposed Secs. 35.108(c)(2) and 36.105(c)(2) set out 
two specific principles applicable to major life activities: ``[i]n 
determining other examples of major life activities, the term `major' 
shall not be interpreted strictly to create a demanding standard for 
disability,'' and ``[w]hether an activity is a `major life activity' is 
not determined by reference to whether it is of `central importance to 
daily life.' '' The proposed language furthered a main purpose of the 
ADA Amendments Act--to reject the standards enunciated by the Supreme 
Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams that (1) 
strictly interpreted the terms ``substantially'' and ``major'' in the 
definition of ``disability'' to create a demanding standard for 
qualifying as disabled under the ADA, and that (2) required an 
individual to have an impairment that prevents or severely restricts the 
individual from doing activities that are of central importance to most 
people's daily lives to be considered as ``substantially limited'' in 
performing a major life activity under the ADA. Public Law 110-325, sec. 
2(b)(4).
    The Department did not receive any comments objecting to its 
proposed language. In the final rule, the Department retained these 
principles but has numbered each principle individually and deemed them 
``rules of construction'' because they are intended to inform the 
determination of whether a particular activity is a major life activity.

      Sections 35.108(d)(1) and 36.105(d)(1)--Substantially Limits

    Overview. The ADA as amended directs that the term ``substantially 
limits'' shall be ``interpreted consistently with the findings and 
purposes of the ADA Amendments Act.'' 42 U.S.C. 12102(4)(B). See also 
Findings and Purposes of the ADA Amendments Act, Public Law 110-325, 
sec. 2(a)-(b). In the NPRM, the Department proposed to add nine rules of 
construction at Secs. 35.108(d) and 36.105(d) clarifying how to 
interpret the meaning of ``substantially limits'' when determining 
whether an individual's impairment substantially limits a major life 
activity. These rules of construction are based on the requirements of 
the ADA as amended and the clear mandates of the legislative history. 
Due to the insertion of the rules of construction, these provisions are 
renumbered in the final rule.

Sections 35.108(d)(1)(i) and 36.105(d)(1)(i)--Broad Construction, Not a 
                           Demanding Standard

    In accordance with Congress's overarching directive to construe the 
term ``disability'' broadly, see 42 U.S.C. 12102(4)(A), the Department, 
in its NPRM, proposed Secs. 35.108(d)(1)(i) and 36.105(d)(1)(i), which 
state: ``The term `substantially limits' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA.'' These provisions are also rooted in the Findings and 
Purposes of the ADA Amendments Act, in which Congress instructed that 
``the question of whether an individual's impairment is a disability 
under the ADA should not demand extensive analysis.'' See Public Law 
110-325, sec. 2(b)(1), (4)-(5).
    Several commenters on these provisions supported the Department's 
proposal to include these rules of construction, noting that they were 
in keeping with both the statutory language and Congress's intent to 
broaden the definition of ``disability'' and restore expansive 
protection under the ADA. Some of these commenters stated that, even 
after the passage of the ADA Amendments Act, some covered entities 
continued to apply a narrow definition of ``disability.''
    Other commenters expressed concerns that the proposed language would 
undermine congressional intent by weakening the meaning of the word 
``substantial.'' One of these commenters asked the Department to define 
the term ``substantially limited'' to include an element of materiality, 
while other commenters objected to the breadth of these provisions and 
argued that it would make the pool of people who might claim 
disabilities

[[Page 721]]

too large, allowing those without substantial limitations to be afforded 
protections under the law. Another commenter expressed concern about the 
application of the regulatory language to the diagnosis of learning 
disabilities and ADHD.
    The Department considered all of these comments and declines to 
provide a definition of the term ``substantially limits'' or make any 
other changes to these provisions in the final rule. The Department 
notes that Congress considered and expressly rejected including language 
defining the term ``substantially limits'': ``We have concluded that 
adopting a new, undefined term that is subject to widely disparate 
meanings is not the best way to achieve the goal of ensuring consistent 
and appropriately broad coverage under this Act. The resulting need for 
further judicial scrutiny and construction will not help move the focus 
from the threshold issue of disability to the primary issue of 
discrimination.'' 154 Cong. Rec. S8441. (daily ed. Sept. 16, 2008) 
(Statement of the Managers).
    The Department believes that the nine rules of construction 
interpreting the term ``substantially limits'' provide ample guidance on 
determining whether an impairment substantially limits a major life 
activity and are sufficient to ensure that covered entities will be able 
to understand and apply Congress's intentions with respect to the 
breadth of the definition of ``disability.''
    Moreover, the commenters' arguments that these provisions would 
undermine congressional intent are unsupported. To the contrary, 
Congress clearly intended the ADA Amendments Act to expand coverage: 
``The managers have introduced the ADA Amendments Act of 2008 to restore 
the proper balance and application of the ADA by clarifying and 
broadening the definition of disability, and to increase eligibility for 
the protections of the ADA. It is our expectation that because this bill 
makes the definition of disability more generous, some people who were 
not covered before will now be covered.'' 154 Cong. Rec. S8441 (daily 
ed. Sept. 16, 2008) (Statement of the Managers).
    The Department has also considered the comments expressed about the 
interplay between the proposed regulatory language and the diagnosis of 
learning disabilities and ADHD disorders. The Department believes that 
the revised definition of ``disability,'' including, in particular, the 
provisions construing ``substantially limits,'' strikes the appropriate 
balance to effectuate Congress's intent when it passed the ADA 
Amendments Act, and will not modify its regulatory language in response 
to these comments.

 Sections 35.108(d)(1)(ii) and 36.105(d)(1)(ii)--Primary Object of ADA 
                                  Cases

    In the ADA Amendments Act, Congress directed that rules of 
construction should ensure that ``substantially limits'' is construed in 
accordance with the findings and purposes of the statute. See 42 U.S.C. 
12102(4)(B). One of the purposes of the Act was to convey that ``the 
primary object of attention in cases brought under the ADA should be 
whether entities covered under the ADA have complied with the 
obligations and to convey that the question of whether an individuals' 
impairment is a disability should not demand extensive analysis.'' 
Public Law 110-325, sec. 2(b)(5). The legislative history clarifies 
that: ``Through this broad mandate [of the ADA], Congress sought to 
protect anyone who is treated less favorably because of a current, past, 
or perceived disability. Congress did not intend for the threshold 
question of disability to be used as a means of excluding individuals 
from coverage. Nevertheless, as the courts began interpreting and 
applying the definition of disability strictly, individuals have been 
excluded from the protections that the ADA affords because they are 
unable to meet the demanding judicially imposed standard for qualifying 
as disabled.''). H.R. Rep. No. 110-730, pt. 2, at 5 (2008) (House 
Committee on the Judiciary).
    In keeping with Congress's intent and the language of the ADA 
Amendments Act, the rules of construction at proposed 
Secs. 35.108(d)(1)(iii) and 36.105(d)(1)(iii) make clear that the 
primary object of attention in ADA cases should be whether public or 
other covered entities have complied with their obligations and whether 
discrimination has occurred, not the extent to which an individual's 
impairment substantially limits a major life activity. In particular, 
the threshold issue of whether an impairment substantially limits a 
major life activity should not demand extensive analysis.
    A number of commenters expressed support for these rules of 
construction, noting that they reinforced Congress's intent in ensuring 
that the primary focus will be on compliance. Several commenters 
objected to the use of the word ``cases'' in these provisions, stating 
that it lacked clarity. The word ``cases'' tracks the language of the 
ADA Amendments Act and the Department declines to change the term.
    A few commenters objected to these provisions because they believed 
that the language would be used to supersede or otherwise change the 
required analysis of requests for reasonable modifications or testing 
accommodations. See 28 CFR 35.130(b)(7), 36.302, 36.309. The Department 
disagrees with these commenters. These rules of construction relate only 
to the determination of coverage under the ADA. They do not change the 
analysis of whether a discriminatory act has taken place, including the 
determination as to whether an individual is entitled to a reasonable 
modification or testing accommodation. See discussion of 
Secs. 35.108(d)(1)(vii) and 36.105(d)(1)(vii) below.

[[Page 722]]

    The Department retained the language of these rules of construction 
in the final rule except that in the title III regulatory text it has 
changed the reference from ``covered entity'' to ``public 
accommodation.'' The Department also renumbered these provisions as 
Secs. 35.108(d)(1)(ii) and 36.105(d)(1)(ii).

 Sections 35.108(d)(1)(iii) and 36.105(d)(1)(iii)--Impairment Need Not 
          Substantially Limit More Than One Major Life Activity

    Proposed Secs. 35.108(d)(1)(viii) and 36.105(d)(1)(viii) stated that 
``[a]n impairment that substantially limits one major life activity need 
not substantially limit other major life activities in order to be 
considered a substantially limiting impairment.'' See 42 U.S.C. 
12102(4)(C). This language reflected the statutory intent to reject 
court decisions that had required individuals to show that an impairment 
substantially limits more than one major life activity. See 154 Cong. 
Rec. S8841-44 (daily ed. Sept. 16, 2008) (Statement of the Managers). 
Applying this principle, for example, an individual seeking to establish 
coverage under the ADA need not show a substantial limitation in the 
ability to learn if that individual is substantially limited in another 
major life activity, such as walking, or the functioning of the nervous 
or endocrine systems. The proposed rule also was intended to clarify 
that the ability to perform one or more particular tasks within a broad 
category of activities does not preclude coverage under the ADA. See 
H.R. Rep. No. 110-730, pt. 2, at 19 & n.52 (2008) (House Committee on 
the Judiciary). For instance, an individual with cerebral palsy could 
have a capacity to perform certain manual tasks yet nonetheless show a 
substantial limitation in the ability to perform a ``broad range'' of 
manual tasks.
    The Department received one comment specifically supporting this 
provision and none opposing it. The Department is retaining this 
language in the final rule although it is renumbered and is found at 
Secs. 35.108(d)(1)(iii) and 36.105(d)(1)(iii).

  Sections 35.108(d)(1)(iv) and 36.105(d)(1)(iv)--Impairments That Are 
                        Episodic or in Remission

    The ADA as amended provides that ``an impairment that is episodic or 
in remission is a disability if it would substantially limit a major 
life activity when active.''
    42 U.S.C. 12102(4)(D). In the NPRM, the Department proposed 
Secs. 35.108(d)(1)(vii) and 36.105(d)(1)(vii) to directly incorporate 
this language. These provisions are intended to reject the reasoning of 
court decisions concluding that certain individuals with certain 
conditions--such as epilepsy or post traumatic stress disorder--were not 
protected by the ADA because their conditions were episodic or 
intermittent. The legislative history provides that ``[t]his . . . rule 
of construction thus rejects the reasoning of the courts in cases like 
Todd v. Academy Corp.
    [57 F. Supp. 2d 448, 453 (S.D. Tex. 1999)] where the court found 
that the plaintiff's epilepsy, which resulted in short seizures during 
which the plaintiff was unable to speak and experienced tremors, was not 
sufficiently limiting, at least in part because those seizures occurred 
episodically. It similarly rejects the results reached in cases [such as 
Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 182-83 
(D.N.H. 2002)] where the courts have discounted the impact of an 
impairment [such as cancer] that may be in remission as too short-lived 
to be substantially limiting. It is thus expected that individuals with 
impairments that are episodic or in remission (e.g., epilepsy, multiple 
sclerosis, cancer) will be able to establish coverage if, when active, 
the impairment or the manner in which it manifests (e.g., seizures) 
substantially limits a major life activity.'' H.R. Rep. No. 110-730, pt. 
2, at 19-20 (2008) (House Committee on the Judiciary).
    Some examples of impairments that may be episodic include 
hypertension, diabetes, asthma, major depressive disorder, bipolar 
disorder, and schizophrenia. The fact that the periods during which an 
episodic impairment is active and substantially limits a major life 
activity may be brief or occur infrequently is no longer relevant to 
determining whether the impairment substantially limits a major life 
activity. For example, a person with post-traumatic stress disorder who 
experiences intermittent flashbacks to traumatic events is substantially 
limited in brain function and thinking.
    The Department received three comments in response to these 
provisions. Two commenters supported this provision and one commenter 
questioned about how school systems should provide reasonable 
modifications to students with disabilities that are episodic or in 
remission. As discussed elsewhere in this guidance, the determination of 
what is an appropriate modification is separate and distinct from the 
determination of whether an individual is covered by the ADA, and the 
Department will not modify its regulatory language in response to this 
comment.

Sections 35.108(d)(1)(v) and 36.105(d)(1)(v)--Comparisons to Most People 
 in the Population, and Impairment Need Not Prevent or Significantly or 
                 Severely Restrict a Major Life Activity

    In the legislative history of the ADA Amendments Act, Congress 
explicitly recognized that it had always intended that determinations of 
whether an impairment substantially limits a major life activity should 
be based on a comparison to most people in the population. The Senate 
Managers Report approvingly referenced the discussion of this

[[Page 723]]

requirement in the committee report from 1989. See 154 Cong. Rec. S8842 
(daily ed. Sept. 16, 2008) (Statement of the Managers) (citing S. Rep. 
No. 101-116, at 23 (1989)). The preamble to the Department's 1990 title 
II and title III regulations also referenced that the impact of an 
individual's impairment should be based on a comparison to most people. 
See 56 FR 35694, 35699 (July 26, 1991).
    Consistent with its longstanding intent, Congress directed, in the 
ADA Amendments Act, that disability determinations ``should not demand 
extensive analysis'' and that impairments do not need to rise to the 
level of ``prevent[ing] or severely restrict[ing] the individual from 
doing activities that are of central importance to most people's daily 
lives.'' See Public Law 110-325, sec. 2(b)(4)-(5). In giving this 
direction, Congress sought to correct the standard that courts were 
applying to determinations of disability after Toyota, which had created 
``a situation in which physical or mental impairments that would 
previously have been found to constitute disabilities are not considered 
disabilities under the Supreme Court's narrower standard.'' 154 Cong. 
Rec. S8840-8841 (daily ed. Sept. 16, 2008) (Statement of the Managers). 
The ADA Amendments Act thus abrogates Toyota's holding by mandating that 
``substantially limited'' must no longer create ``an inappropriately 
high level of limitation.'' See Public Law 110-325, sec. 2(b)(4)-(5) and 
42 U.S.C. 12102(4)(B). For example, an individual with carpal tunnel 
syndrome, a physical impairment, can demonstrate that the impairment 
substantially limits the major life activity of writing even if the 
impairment does not prevent or severely restrict the individual from 
writing.
    Accordingly, proposed Secs. 35.108(d)(1)(ii) and 36.105(d)(1)(ii) 
state that an impairment is a disability if it substantially limits the 
ability of an individual to perform a major life activity as compared to 
most people in the general population. However, an impairment does not 
need to prevent, or significantly or severely restrict, an individual 
from performing a major life activity in order to be substantially 
limiting. The proposed language in the NPRM was rooted in the corrective 
nature of the ADA Amendments Act and its explicit rejection of the 
strict standards imposed under Toyota and its progeny. See Public Law 
110-325, sec. 2(b)(4).
    The Department received several comments on these provisions, none 
of which recommended modification of the regulatory language. A few 
commenters raised concerns that are further addressed in the 
``Condition, manner, or duration'' section below, regarding the 
Department's inclusion in the NPRM preamble of a reference to possibly 
using similarly situated individuals as the basis of comparison. The 
Department has removed this discussion and clarified that it does not 
endorse reliance on similarly situated individuals to demonstrate 
substantial limitations. For example, the Department recognizes that 
when determining whether an elderly person is substantially limited in a 
major life activity, the proper comparison is most people in the general 
population, and not similarly situated elderly individuals. Similarly, 
someone with ADHD should be compared to most people in the general 
population, most of whom do not have ADHD. Other commenters expressed 
interest in the possibility that, in some cases, evidence to support an 
assertion that someone has an impairment might simultaneously be used to 
demonstrate that the impairment is substantially limiting. These 
commenters approvingly referenced the EEOC's interpretive guidance for 
its ADA Amendments Act regulation, which provided an example of an 
individual with a learning disability. See 76 FR 16978, 17009 (Mar. 25, 
2011). In that example, evidence gathered to demonstrate the impairment 
of a learning disability showed a discrepancy between the person's age, 
measured intelligence, and education and that person's actual versus 
expected achievement. The EEOC noted that such individuals also likely 
would be able to demonstrate substantial limitations caused by that 
impairment to the major life activities of learning, reading, or 
thinking, when compared to most people in the general population, 
especially when the ameliorative effects of mitigating measures were set 
aside. The Department concurs with this view.
    Finally, the Department added an explicit statement recognizing that 
not every impairment will constitute a disability within the meaning of 
the section. This language echoes the Senate Statement of Managers, 
which clarified that: ``[N]ot every individual with a physical or mental 
impairment is covered by the first prong of the definition of disability 
in the ADA. An impairment that does not substantially limit a major life 
activity is not a disability under this prong.'' 154 Cong. Rec. S8841 
(daily ed. Sept. 16, 2008) (Statement of the Managers).

Sections 35.108(d)(1)(vi) and 36.105(d)(1)(vi)--``Substantially Limits'' 
Shall Be Interpreted To Require a Lesser Degree of Functional Limitation 
           Than That Required Prior to the ADA Amendments Act

    In the NPRM, proposed Secs. 35.108(d)(1)(iv) and 36.105(d)(1)(iv) 
state that determining whether an impairment substantially limits a 
major life activity requires an individualized assessment. But, the 
interpretation and application of the term ``substantially limits'' for 
this assessment requires a lower degree of functional limitation than 
the standard applied prior to the ADA Amendments Act.

[[Page 724]]

    These rules of construction reflect Congress's concern that prior to 
the adoption of the ADA Amendments Act, courts were using too high a 
standard to determine whether an impairment substantially limited a 
major life activity. See Public Law 110-325, sec. 2(b)(4)-(5); see also 
154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) (Statement of the 
Managers) (``This bill lowers the standard for determining whether an 
impairment constitute[s] a disability and reaffirms the intent of 
Congress that the definition of disability in the ADA is to be 
interpreted broadly and inclusively.'').
    The Department received no comments on these provisions. The text of 
these provisions is unchanged in the final rule, although they have been 
renumbered as Secs. 35.108(d)(1)(vi) and 36.105(d)(1)(vi).

 Sections Secs. 35.108(d)(1)(vii) and 36.105(d)(1)(vii)--Comparison of 
Individual's Performance of Major Life Activity Usually Will Not Require 
              Scientific, Medical, or Statistical Analysis

    In the NPRM, the Department proposed at Secs. 35.108(d)(1)(v) and 
36.105(d)(1)(v) rules of construction making clear that the comparison 
of an individual's performance of a major life activity to that of most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. However, this rule is not intended to 
prohibit or limit the use of scientific, medical, or statistical 
evidence in making such a comparison where appropriate.
    These rules of construction reflect Congress's rejection of the 
demanding standards of proof imposed upon individuals with disabilities 
who tried to assert coverage under the ADA prior to the adoption of the 
ADA Amendments Act. In passing the Act, Congress rejected the idea that 
the disability determination should be ``an onerous burden for those 
seeking accommodations or modifications.'' See 154 Cong. Rec. S8842 
(daily ed. Sept. 16, 2008) (Statement of the Managers). These rules make 
clear that in most cases, people with impairments will not need to 
present scientific, medical, or statistical evidence to support their 
assertion that an impairment is substantially limiting compared to most 
people in the general population. Instead, other types of evidence that 
are less onerous to collect, such as statements or affidavits of 
affected individuals, school records, or determinations of disability 
status under other statutes, should, in most cases, be considered 
adequate to establish that an impairment is substantially limiting. The 
Department's proposed language reflected Congress's intent to ensure 
that individuals with disabilities are not precluded from seeking 
protection under the ADA because of an overbroad, burdensome, and 
generally unnecessary requirement.
    The Department received several comments in support of these 
provisions and a number of comments opposing all or part of them. One 
commenter representing individuals with disabilities expressed support 
for the proposed language, noting that ``[m]any people with disabilities 
have limited resources and requiring them to hire an expert witness to 
confirm their disability would pose an insurmountable barrier that could 
prevent them from pursuing their ADA cases.''
    Commenters representing testing entities objected to this language 
arguing that they needed scientific, medical, or statistical evidence in 
order to determine whether an individual has a learning disability or 
ADHD. These commenters argued that, unlike other disabilities, 
assessment of learning disabilities and ADHD require scientific, 
medical, or statistical evidence because such disabilities have no overt 
symptoms, cannot be readily observed, and lack medical or scientific 
verifiability. One commenter stated that the proposed language 
``favor[s] expedience over evidence-based guidance.''
    In opposing these provisions, these commenters appear to conflate 
proof of the existence of an impairment with the analysis of how an 
impairment substantially limits a major life activity. These provisions 
address only how to evaluate whether an impairment substantially limits 
a major life activity, and the Department's proposed language 
appropriately reflects Congress's intent to ensure that individuals with 
disabilities are not precluded from seeking protection under the ADA 
because of overbroad, burdensome, and generally unnecessary evidentiary 
requirements. Moreover, the Department disagrees with the commenters' 
suggestion that an individual with ADHD or a specific learning 
disability can never demonstrate how the impairment substantially limits 
a major life activity without scientific, medical, or statistical 
evidence. Scientific, medical, or statistical evidence usually will not 
be necessary to determine whether an individual with a disability is 
substantially limited in a major life activity. However, as the rule 
notes, such evidence may be appropriate in some circumstances.
    One commenter suggested that the words ``where appropriate'' be 
deleted from these provisions in the final rule out of concern that they 
may be used to preclude individuals with disabilities from proffering 
scientific or medical evidence in support of a claim of coverage under 
the ADA. The Department disagrees with the commenter's reading of these 
provisions. Congress recognized that some people may choose to support 
their claim by presenting scientific or medical evidence and made clear 
that ``plaintiffs should not be constrained from offering evidence 
needed to establish that their impairment is substantially limiting.''

[[Page 725]]

See 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the 
Managers). The language ``where appropriate'' allows for those 
circumstances where an individual chooses to present such evidence, but 
makes clear that in most cases presentation of such evidence shall not 
be necessary.
    Finally, although the NPRM did not propose any changes with respect 
to the title III regulatory requirements applicable to the provision of 
testing accommodations at 28 CFR 36.309, one commenter requested 
revisions to Sec. 36.309 to acknowledge the changes to regulatory 
language in the definition of ``disability.'' Another commenter noted 
that the proposed changes to the regulatory definition of ``disability'' 
warrant new agency guidance on how the ADA applies to requests for 
testing accommodations.
    The Department does not consider it appropriate to include 
provisions related to testing accommodations in the definitional 
sections of the ADA regulations. The determination of disability, and 
thus coverage under the ADA, is governed by the statutory and regulatory 
definitions and the related rules of construction. Those provisions do 
not speak to what testing accommodations an individual with a disability 
is entitled to under the ADA nor to the related questions of what a 
testing entity may request or require from an individual with a 
disability who seeks testing accommodations. Testing entities' 
substantive obligations are governed by 42 U.S.C. 12189 and the 
implementing regulation at 28 CFR 36.309. The implementing regulation 
clarifies that private entities offering covered examinations need to 
make sure that any request for required documentation is reasonable and 
limited to the need for the requested modification, accommodation, or 
auxiliary aid or service. Furthermore, when considering requests for 
modifications, accommodations, or auxiliary aids or services, the entity 
should give considerable weight to documentation of past modifications, 
accommodations, or auxiliary aids or services received in similar 
testing situations or provided in response to an Individualized 
Education Program (IEP) provided under the IDEA or a plan describing 
services provided under section 504 of the Rehabilitation Act of 1973 
(often referred as a Section 504 Plan).
    Contrary to the commenters' suggestions, there is no conflict 
between the regulation's definitional provisions and title III's testing 
accommodation provisions. The first addresses the core question of who 
is covered under the definition of ``disability,'' while the latter sets 
forth requirements related to documenting the need for particular 
testing accommodations. To the extent that testing entities are urging 
conflation of the analysis for establishing disability with that for 
determining required testing accommodations, such an approach would 
contradict the clear delineation in the statute between the 
determination of disability and the obligations that ensue.
    Accordingly, in the final rule, the text of these provisions is 
largely unchanged, except that the provisions are renumbered as 
Secs. 35.108(d)(1)(vii) and 36.108(d)(1)(vii), and the Department added 
``the presentation of,'' in the second sentence, which was included in 
the corresponding provision of the EEOC final rule. See 29 CFR 
1630.2(j)(1)(v).

 Sections 35.108(d)(1)(viii) and 36.105(d)(1)(viii)--Determination Made 
    Without Regard to the Ameliorative Effects of Mitigating Measures

    The ADA as amended expressly prohibits any consideration of the 
ameliorative effects of mitigating measures when determining whether an 
individual's impairment substantially limits a major life activity, 
except for the ameliorative effects of ordinary eyeglasses or contact 
lenses. 42 U.S.C. 12102(4)(E). The statute provides an illustrative, and 
non-exhaustive list of different types of mitigating measures. Id.
    In the NPRM, the Department proposed Secs. 35.108(d)(2)(vi) and 
36.105(d)(2)(vi), which tracked the statutory language regarding 
consideration of mitigating measures. These provisions stated that the 
ameliorative effects of mitigating measures should not be considered 
when determining whether an impairment substantially limits a major life 
activity. However, the beneficial effects of ordinary eyeglasses or 
contact lenses should be considered when determining whether an 
impairment substantially limits a major life activity. Ordinary 
eyeglasses or contact lenses refer to lenses that are intended to fully 
correct visual acuity or to eliminate refractive errors. Proposed 
Secs. 35.108(d)(4) and 36.105(d)(4), discussed below, set forth examples 
of mitigating measures.
    A number of commenters agreed with the Department's proposed 
language and no commenters objected. Some commenters, however, asked the 
Department to add language to these sections stating that, although the 
ameliorative effects of mitigating measures may not be considered in 
determining whether an individual has a covered disability, they may be 
considered in determining whether an individual is entitled to specific 
testing accommodations or reasonable modifications. The ADA Amendments 
Act revised the definition of ``disability'' and the Department agrees 
that the Act's prohibition on assessing the ameliorative effects of 
mitigating measures applies only to the determination of whether an 
individual meets the definition of ``disability.'' The Department 
declines to add the requested language, however, because it goes beyond 
the scope of this rulemaking by addressing ADA requirements that are not 
related to the definition of ``disability.'' These rules of construction 
do

[[Page 726]]

not apply to the requirements to provide reasonable modifications under 
Secs. 35.130(b)(7) and 36.302 or testing accommodations under 
Sec. 36.309 in the title III regulations. The Department disagrees that 
further clarification is needed at this point and declines to modify 
these provisions except that they are now renumbered as 
Secs. 35.108(d)(1)(viii) and Sec. 36.105(d)(1)(viii).
    The Department notes that in applying these rules of construction, 
evidence showing that an impairment would be substantially limiting in 
the absence of the ameliorative effects of mitigating measures could 
include evidence of limitations that a person experienced prior to using 
a mitigating measure or evidence concerning the expected course of a 
particular disorder absent mitigating measures.
    The determination of whether an individual's impairment 
substantially limits a major life activity is unaffected by an 
individual's choice to forgo mitigating measures. For individuals who do 
not use a mitigating measure (including, for example, medication or 
auxiliary aids and services that might alleviate the effects of an 
impairment), the availability of such measures has no bearing on whether 
the impairment substantially limits a major life activity. The 
limitations posed by the impairment on the individual and any negative 
(non-ameliorative) effects of mitigating measures will serve as the 
foundation for a determination of whether an impairment is substantially 
limiting. The origin of the impairment, whether its effects can be 
mitigated, and any ameliorative effects of mitigating measures that are 
employed may not be considered in determining if the impairment is 
substantially limiting.

 Sections 35.108(d)(1)(ix) and 36.105(d)(1)(ix)--Impairment That Lasts 
Less Than Six Months Can Still Be a Disability Under First Two Prongs of 
                             the Definition

    In Secs. 35.108(d)(1)(ix) and 36.105(d)(1)(ix), the NPRM proposed 
rules of construction noting that the six-month ``transitory'' part of 
the ``transitory and minor'' exception does not apply to the ``actual 
disability'' or ``record of'' prongs of the definition of 
``disability.'' Even if an impairment may last or is expected to last 
six months or less, it can be substantially limiting.
    The ADA as amended provides that the ``regarded as'' prong of the 
definition of ``disability'' does ``not apply to impairments that are 
[both] transitory and minor.'' 42 U.S.C. 12102(3)(B). ``Transitory 
impairment'' is defined as ``an impairment with an actual or expected 
duration of six months or less.'' Id. The statute does not define the 
term ``minor.'' Whether an impairment is both ``transitory and minor'' 
is a question of fact that is dependent upon individual circumstances. 
The ADA as amended contains no such provision with respect to the first 
two prongs of the definition of ``disability''--``actual disability,'' 
and ``record of'' disability. The application of the ``transitory and 
minor'' exception to the ``regarded as'' prong is addressed in 
Secs. 35.108(f) and 36.105(f).
    The Department received two comments on this proposed language. One 
commenter recommended that the Department delete this language and 
``replace it with language clarifying that if a condition cannot meet 
the lower threshold of impairment under the third prong, it cannot meet 
the higher threshold of a disability under the first and second 
prongs.'' The Department declines to modify these provisions because the 
determination of whether an individual satisfies the requirements of a 
particular prong is not a comparative determination between the three 
means of demonstrating disability under the ADA. The Department believes 
that the suggested language would create confusion because there are 
significant differences between the first two prongs and the third 
prong. In addition, the Department believes its proposed language is in 
keeping with the ADA Amendments Act and the supporting legislative 
history.
    The other commenter suggested that the Department add language to 
provide greater clarity with respect to the application of the 
transitory and minor exception to the ``regarded as prong.'' The 
Department does not believe that additional language should be added to 
these rules of construction, which relate only to whether there is a 
six-month test for the first two prongs of the definition. As discussed 
below, the Department has revised both the regulatory text at 
Secs. 35.108(f) and 36.105(f) and its guidance on the application of the 
``transitory and minor'' exception to the ``regarded as'' prong. See 
discussion below.

     Sections 35.108(d)(2) and 36.105(d)(2)--Predictable Assessments

    In the NPRM, proposed Secs. 35.108(d)(2) and 36.105(d)(2) set forth 
examples of impairments that should easily be found to substantially 
limit one or more major life activities. These provisions recognized 
that while there are no ``per se'' disabilities, for certain types of 
impairments the application of the various principles and rules of 
construction concerning the definition of ``disability'' to the 
individualized assessment would, in virtually all cases, result in the 
conclusion that the impairment substantially limits a major life 
activity. Thus, the necessary individualized assessment of coverage 
premised on these types of impairments should be particularly simple and 
straightforward. The purpose of the ``predictable assessments'' 
provisions is to simplify consideration of those disabilities that 
virtually always create substantial limitations to major life 
activities, thus satisfying

[[Page 727]]

the statute's directive to create clear, consistent, and enforceable 
standards and ensuring that the inquiry of ``whether an individual's 
impairment is a disability under the ADA should not demand extensive 
analysis.'' See Public Law 110-325, sec. 2(b)(1), (5). The impairments 
identified in the predictable assessments provision are a non-exhaustive 
list of examples of the kinds of disabilities that meet these criteria 
and, with one exception, are consistent with the corresponding provision 
in the EEOC ADA Amendments Act rule. See 29 CFR 1630.2(j)(3)(iii).\7\
---------------------------------------------------------------------------

    \7\ In the NPRM, the Department proposed adding ``traumatic brain 
injury'' to the predictable assessments list.
---------------------------------------------------------------------------

    The Department believes that the predictable assessments provisions 
comport with the ADA Amendments Act's emphasis on adopting a less 
burdensome and more expansive definition of ``disability.'' The 
provisions are rooted in the application of the statutory changes to the 
meaning and interpretation of the definition of ``disability'' contained 
in the ADA Amendments Act and flow from the rules of construction set 
forth in Secs. 35.108(a)(2)(i), 36.105(a)(2)(i), 35.108(c)(2)(i) and 
(ii), 36.105(c)(2)(i) and (ii). These rules of construction and other 
specific provisions require the broad construction of the definition of 
``disability'' in favor of expansive coverage to the maximum extent 
permitted by the terms of the ADA. In addition, they lower the standard 
to be applied to ``substantially limits,'' making clear that an 
impairment need not prevent or significantly restrict an individual from 
performing a major life activity; clarify that major life activities 
include major bodily functions; elucidate that impairments that are 
episodic or in remission are disabilities if they would be substantially 
limiting when active; and incorporate the requirement that the 
ameliorative effects of mitigating measures (other than ordinary 
eyeglasses or contact lenses) must be disregarded in assessing whether 
an individual has a disability.
    Several organizations representing persons with disabilities and the 
elderly, constituting the majority of commenters on these provisions, 
supported the inclusion of the predictable assessments provisions. One 
commenter expressed strong support for the provision and recommended 
that it closely track the corresponding provision in the EEOC title I 
rule, while another noted its value in streamlining individual 
assessments. In contrast, some commenters from educational institutions 
and testing entities recommended the deletion of these provisions, 
expressing concern that it implies the existence of ``per se'' 
disabilities, contrary to congressional intent that each assertion of 
disability should be considered on a case-by-case basis. The Department 
does not believe that the predictable assessment provisions constitutes 
a ``per se'' list of disabilities and will retain it. These provisions 
highlight, through a non-exhaustive list, impairments that virtually 
always will be found to substantially limit one or more major life 
activities. Such impairments still warrant individualized assessments, 
but any such assessments should be especially simple and 
straightforward.
    The legislative history of the ADA Amendments Act supports the 
Department's approach in this area. In crafting the Act, Congress hewed 
to the ADA definition of ``disability,'' which was modeled on the 
definition of ``disability'' in the Rehabilitation Act, and indicated 
that it wanted courts to interpret the definition as it had originally 
been construed. See H.R. Rep. No. 110-730, pt. 2, at 6 (2008). 
Describing this goal, the legislative history states that courts had 
interpreted the Rehabilitation Act definition ``broadly to include 
persons with a wide range of physical and mental impairments such as 
epilepsy, diabetes, multiple sclerosis, and intellectual and 
developmental disabilities . . . even where a mitigating measure--like 
medication or a hearing aid--might lessen their impact on the 
individual.'' Id.; see also id. at 9 (referring to individuals with 
disabilities that had been covered under section 504 of the 
Rehabilitation Act and that Congress intended to include under the ADA--
``people with serious health conditions like epilepsy, diabetes, cancer, 
cerebral palsy, multiple sclerosis, intellectual and developmental 
disabilities''); id. at 6, n.6 (citing cases also finding that cerebral 
palsy, hearing impairments, intellectual disabilities, heart disease, 
and vision in only one eye were disabilities under the Rehabilitation 
Act); id. at 10 (citing testimony from Rep. Steny H. Hoyer, one of the 
original lead sponsors of the ADA in 1990, stating that ``[w]e could not 
have fathomed that people with diabetes, epilepsy, heart conditions, 
cancer, mental illnesses and other disabilities would have their ADA 
claims denied because they would be considered too functional to meet 
the definition of disability''); 2008 Senate Statement of Managers at 3 
(explaining that ``we [we]re faced with a situation in which physical or 
mental impairments that would previously have been found to constitute 
disabilities [under the Rehabilitation Act] [we]re not considered 
disabilities'' and citing individuals with impairments such as 
amputation, intellectual disabilities, epilepsy, multiple sclerosis, 
diabetes, muscular dystrophy, and cancer as examples).
    Some commenters asked the Department to add certain impairments to 
the predictable assessments list, while others asked the Department to 
remove certain impairments. Commenters representing educational and

[[Page 728]]

testing institutions urged that, if the Department did not delete the 
predictable assessment provisions, then the list should be modified to 
remove any impairments that are not obvious or visible to third parties 
and those for which functional limitations can change over time. One 
commenter cited to a pre-ADA Amendments Act reasonable accommodations 
case, which included language regarding the uncertainty facing employers 
in determining appropriate reasonable accommodations when mental 
impairments often are not obvious and apparent to employers. See Wallin 
v. Minnesota Dep't of Corrections, 153 F.3d 681, 689 (8th Cir. 1998). 
This commenter suggested that certain impairments, including autism, 
depression, post-traumatic stress disorder, and obsessive-compulsive 
disorder, should not be deemed predictable assessments because they are 
not immediately apparent to third parties. The Department disagrees with 
this commenter, and believes that it is appropriate to include these 
disabilities on the list of predictable assessments. Many disabilities 
are less obvious or may be invisible, such as cancer, diabetes, HIV 
infection, schizophrenia, intellectual disabilities, and traumatic brain 
injury, as well as those identified by the commenter. The likelihood 
that an impairment will substantially limit one or more major life 
activities is unrelated to whether or not the disability is immediately 
apparent to an outside observer. Therefore, the Department will retain 
the examples that involve less apparent disabilities on the list of 
predictable assessments.
    The Department believes that the list accurately illustrates 
impairments that virtually always will result in a substantial 
limitation of one or more major life activities. The Department 
recognizes that impairments are not always static and can result in 
different degrees of functional limitation at different times, 
particularly when mitigating measures are used. However, the ADA as 
amended anticipates variation in the extent to which impairments affect 
major life activities, clarifying that impairments that are episodic or 
in remission nonetheless are disabilities if they would be substantially 
limiting when active and requiring the consideration of disabilities 
without regard to ameliorative mitigating measures. The Department does 
not believe that limiting the scope of its provisions addressing 
predictable assessments only to those disabilities that would never vary 
in functional limitation would be appropriate.
    Other commenters speaking as individuals or representing persons 
with disabilities endorsed the inclusion of some impairments already on 
the list, including traumatic brain injury, sought the inclusion of 
additional impairments, requested revisions to some descriptions of 
impairments, or asked for changes to the examples of major life 
activities linked to specific impairments.
    Several commenters requested the expansion of the predictable 
assessments list, in particular to add specific learning disabilities. 
Some commenters pointed to the ADA Amendments Act's legislative history, 
which included Representative Stark's remarks that specific learning 
disabilities are ``neurologically based impairments that substantially 
limit the way these individuals perform major life activities, like 
reading or learning, or the time it takes to perform such activities.'' 
154 Cong. Rec. H8291 (daily ed. Sept. 17, 2008). Others recommended that 
some specific types of specific learning disabilities, including 
dyslexia, dyscalculia, dysgraphia, dyspraxia, and slowed processing 
speed should be referenced as predictable assessments. With respect to 
the major life activities affected by specific learning disabilities, 
commenters noted that specific learning disabilities are neurologically 
based and substantially limit learning, thinking, reading, 
communicating, and processing speed.
    Similarly, commenters recommended the inclusion of ADHD, urging that 
it originates in the brain and affects executive function skills 
including organizing, planning, paying attention, regulating emotions, 
and self-monitoring. One commenter noted that if ADHD meets the criteria 
established in the DSM-5, then it would consistently meet the criteria 
to establish disability under the ADA. The same commenter noted that 
ADHD is brain based and affects the major life activity of executive 
function. Another commenter suggested that ADHD should be included and 
should be identified as limiting brain function, learning, reading, 
concentrating, thinking, communicating, interacting with others, and 
working. Other commenters urged the inclusion of panic disorders, 
anxiety disorder, cognitive disorder, and post-concussive disorder. A 
number of commenters noted that the exclusion of impairments from the 
predictable assessments list could be seen as supporting an inference 
that the impairments that are not mentioned should not easily be found 
to be disabilities.
    The Department determined that it will retain the language it 
proposed in the NPRM and will not add or remove any impairments from 
this list. As discussed above, the list is identical to the EEOC's 
predictable assessments list, at 29 CFR 1630.2(g)(3)(iii), except that 
the Department's NPRM added traumatic brain injury. The Department 
received support for including traumatic brain injury and did not 
receive any comments recommending the removal of traumatic brain injury 
from the list; thus, we are retaining it in this final rule.
    The Department's decision to track the EEOC's list, with one minor 
exception, stems

[[Page 729]]

in part from our intent to satisfy the congressional mandate for 
``clear, strong, consistent, enforceable standards.'' A number of courts 
already have productively applied the EEOC's predictable assessments 
provision, and the Department believes that it will continue to serve as 
a useful, common-sense tool in promoting judicial efficiency. It is 
important to note, however, that the failure to include any impairment 
in the list of examples of predictable assessments does not indicate 
that that impairment should be subject to undue scrutiny.
    Some commenters expressed concern about the major life activities 
that the Department attributed to particular impairments. Two commenters 
sought revision of the major life activities attributed to intellectual 
disabilities, suggesting that it would be more accurate to reference 
cognitive function and learning, instead of reading, learning, and 
problem solving. One commenter recommended attributing the major life 
activity of brain function to autism rather than learning, social 
interaction, and communicating. The Department determined that it will 
follow the EEOC's model and, with respect to both intellectual 
disabilities and autism, it will reference the major bodily function of 
brain function. By using the term ``brain function'' to describe the 
system affected by various mental impairments, the Department intends to 
capture functions such as the brain's ability to regulate thought 
processes and emotions.
    The Department considers it important to reiterate that, just as the 
list of impairments in these sections is not comprehensive, the list of 
major bodily functions or other major life activities linked to those 
impairments are not exhaustive. The impairments identified in these 
sections, may affect a wide range of major bodily functions and other 
major life activities. The Department's specification of certain major 
life activities with respect to particular impairments simply provides 
one avenue by which a person might elect to demonstrate that he or she 
has a disability.
    The Department recognizes that impairments listed in 
Secs. 35.108(d)(2) and 36.105(d)(2) may substantially limit other major 
life activities in addition to those listed in the regulation. For 
example, diabetes may substantially limit major life activities 
including eating, sleeping, and thinking. Major depressive disorder may 
substantially limit major life activities such as thinking, 
concentrating, sleeping, and interacting with others. Multiple sclerosis 
may substantially limit major life activities such as walking, bending, 
and lifting.
    One commenter noted that the NPRM did not track the EEOC's language 
with respect to the manner in which it identified a major bodily 
function that is substantially limited by epilepsy, muscular dystrophy, 
or multiple sclerosis in 29 CFR 1630.2(j)(3)(iii). While the EEOC listed 
each of these three impairments individually, noting in each case that 
the major bodily function affected is neurological function, at 29 CFR 
1630.2(j)(3)(iii), the NPRM grouped the three impairments and noted that 
they affect neurological function. In order to clarify that each of the 
three impairments may manifest a substantial limitation of neurological 
function, the final rule incorporates ``each'' immediately following the 
list of the three impairments. Similarly, the Department added an 
``each'' to Secs. 35.108(d)(2)(iii)(K) and 36.105(d)(2)(iii)(K) to make 
clear that each of the listed impairments substantially limits brain 
function.
    Some commenters representing testing entities and educational 
institutions sought the insertion of language in the predictable 
assessment provisions that would indicate that individuals found to have 
disabilities are not, by virtue of a determination that they have a 
covered disability, eligible for a testing accommodation or a reasonable 
modification. The Department agrees with these commenters that the 
determination of disability is a distinct determination separate from 
the determination of the need for a requested modification or a testing 
accommodation. The Department declines to add the language suggested by 
the commenters to Secs. 35.108(d)(2) and 36.105(d)(2), however, because 
the requirements for reasonable modifications are addressed separately 
in Secs. 35.130(b)(7) and 36.302 of the title II and III regulations and 
the requirements related to providing appropriate accommodations in 
testing and licensing are found at Sec. 36.309.

 Sections 35.108(d)(3) and 36.105(d)(3)--Condition, Manner, or Duration

    Overview. Proposed Secs. 35.108(d)(3) and 36.105(d)(3), both titled 
``Condition, manner[,] and duration,'' addressed how evidence related to 
condition, manner, or duration may be used to show how impairments 
substantially limit major life activities. These principles were first 
addressed in the preamble to the 1991 rule. At that time, the Department 
noted that ``[a] person is considered an individual with a disability . 
. . 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.'' 56 FR 35544, 35549 (July 26, 1991); see 
also S. Rep. No. 101-116, at 23 (1989).
    These concepts were affirmed by Congress in the legislative history 
to the ADA Amendments Act: ``We particularly believe that this test, 
which articulated an analysis that considered whether a person's 
activities are limited in condition, duration and manner, is a useful 
one. We reiterate that using the correct standard--one that is lower 
than the strict or demanding standard created by the

[[Page 730]]

Supreme Court in Toyota--will make the disability determination an 
appropriate threshold issue but not an onerous burden for those seeking 
accommodations or modifications. At the same time, plaintiffs should not 
be constrained from offering evidence needed to establish that their 
impairment is substantially limiting.'' 154 Cong. Rec. S8346 (Sept. 11, 
2008). Noting its continued reliance on the functional approach to 
defining disability, Congress expressed its belief that requiring 
consistency with the findings and purposes of the ADA Amendments Act 
would ``establish[ ] an appropriate functionality test for determining 
whether an individual has a disability.'' Id. While condition, manner, 
and duration are not required factors that must be considered, the 
regulations clarify that these are the types of factors that may be 
considered in appropriate cases. To the extent that such factors may be 
useful or relevant to show a substantial limitation in a particular fact 
pattern, some or all of them (and related facts) may be considered, but 
evidence relating to each of these factors often will not be necessary 
to establish coverage.
    In the NPRM, proposed Secs. 35.108(d)(3)(i) and 35.105(d)(3)(i) 
noted that the rules of construction at Secs. 35.108(d)(1) and 
35.105(d)(1) should inform consideration of how individuals are 
substantially limited in major life activities. Sections 
35.108(d)(3)(ii) and 36.105(d)(3)(ii) provided examples of how 
restrictions on condition, manner, or duration might be interpreted and 
also clarified that the negative or burdensome side effects of 
medication or other mitigating measures may be considered when 
determining whether an individual has a disability. In 
Secs. 35.108(d)(3)(iii) and 36.105(d)(3)(iii), the proposed language set 
forth a requirement to focus on how a major life activity is 
substantially limited, rather than on the ultimate outcome a person with 
an impairment can achieve.
    The Department received comments on the condition, manner, or 
duration provision from advocacy groups for individuals with 
disabilities, from academia, from education and testing entities, and 
from interested individuals. Several advocacy organizations for 
individuals with disabilities and private individuals noted that the 
section title's heading was inconsistent with the regulatory text and 
sought the replacement of the ``and'' in the section's title, 
``Condition, manner, and duration,'' with an ``or.'' Commenters 
expressed concern that retaining the ``and'' in the heading title would 
be inconsistent with congressional intent and would incorrectly suggest 
that individuals are subject to a three-part test and must demonstrate 
that an impairment substantially limits a major life activity with 
respect to condition, manner, and duration. The Department agrees that 
the ``and'' used in the title of the proposed regulatory provision could 
lead to confusion and a misapplication of the law and has revised the 
title so it now reads ``Condition, manner, or duration.'' Consistent 
with the regulatory text, the revised heading makes clear that any one 
of the three descriptors--``condition,'' ``manner,'' or ``duration''--
may aid in demonstrating that an impairment substantially limits a major 
life activity or a major bodily function.

                     Condition, Manner, or Duration

    In the NPRM, proposed Secs. 35.108(d)(3)(i) and 36.105(d)(3)(i) 
noted that the application of the terms ``condition'' ``manner,'' or 
``duration'' should at all times take into account the principles in 
Sec. 35.108(d)(1) and Sec. 36.105(d)(1), respectively, which referred to 
the rules of construction for ``substantially limited.'' The proposed 
regulatory text also included brief explanations of the meaning of the 
core terms, clarifying that in appropriate cases, it could be useful to 
consider, in comparison to most people in the general population, the 
conditions under which an individual performs a major life activity; the 
manner in which an individual performs a major life activity; or the 
time it takes an individual to perform a major life activity, or for 
which the individual can perform a major life activity.
    Several disability rights advocacy groups and individuals supported 
the NPRM approach, with some referencing the value of pointing to the 
rules of construction and their relevance to condition, manner, or 
duration considerations. Some commenters noted that it was helpful to 
highlight congressional intent that the definition of ``disability'' 
should be broadly construed and not subject to extensive analysis. 
Another commenter recommended introducing a clarification that, while 
the limitation imposed by an impairment must be important, it does not 
need to rise to the level of severely or significantly restricting the 
ability to perform a major life activity. Some commenters sought 
additional guidance regarding the meaning of the terms ``condition,'' 
``manner,'' and ``duration'' and recommended the addition of more 
illustrative examples.
    In response to commenters' concerns, the Department has modified the 
regulatory text in Secs. 35.108(d)(3)(i) and 36.105(d)(3)(i) to 
reference all of the rules of construction rather than only those 
pertaining to ``substantially limited.'' The Department also added 
Secs. 35.108(d)(3)(iv) and 36.105(d)(3)(iv), further discussed below, to 
clarify that the rules of construction will not always require analysis 
of condition, manner, or duration, particularly with respect to certain 
impairments, such as those referenced in paragraph (d)(2)(iii) 
(predictable assessments). With these changes, the Department believes 
that

[[Page 731]]

the final rule more accurately reflects congressional intent. The 
Department also believes that clarifying the application of the rules of 
construction to condition, manner, or duration will contribute to 
consistent interpretation of the definition of ``disability'' and reduce 
inadvertent reliance on older cases that incorporate demanding standards 
rejected by Congress in the ADA Amendments Act.
    It is the Department's view that the rules of construction offer 
substantial guidance about how condition, manner, or duration must be 
interpreted so as to ensure the expansive coverage intended by Congress. 
Except for this clarification, the Department did not receive comments 
opposing the proposed regulatory text on condition, manner, or duration 
in Secs. 35.108(d)(3)(i) and 36.105(d)(3)(i) and did not make any other 
changes to these provisions.
    Some commenters objected to language in the preamble to the NPRM 
which suggested that there might be circumstances in which the 
consideration of condition, manner, or duration might not include 
comparisons to most people in the general population. On 
reconsideration, the Department recognizes that this discussion could 
create confusion about the requirements. The Department believes that 
condition, manner, or duration determinations should be drawn in 
contrast to most people in the general population, as is indicated in 
the related rules of construction, at Secs. 35.108(d)(1)(v) and 
36.105(d)(1)(v).

 Condition, Manner, or Duration Examples, Including Negative Effects of 
                           Mitigating Measures

    Proposed Secs. 35.108(d)(3)(ii) and 36.105(d)(3)(ii) set forth 
examples of the types of evidence that might demonstrate condition, 
manner, or duration limitations, including the way an impairment affects 
the operation of a major bodily function, the difficulty or effort 
required to perform a major life activity, the pain experienced when 
performing a major life activity, and the length of time it takes to 
perform a major life activity. These provisions also clarified that the 
non-ameliorative effects of mitigating measures may be taken into 
account to demonstrate the impact of an impairment on a major life 
activity. The Department's discussion in the NPRM preamble noted that 
such non-ameliorative effects could include negative side effects of 
medicine, burdens associated with following a particular treatment 
regimen, and complications that arise from surgery, among others. The 
preamble also provided further clarification of the possible 
applications of condition, manner, or duration analyses, along with 
several examples. Several commenters supported the proposed rule's 
incorporation of language and examples offering insight into the varied 
ways that limitations on condition, manner, or duration could 
demonstrate substantial limitation. One commenter positively noted that 
the language regarding the ``difficulty, effort, or time required to 
perform a major life activity'' could prove extremely helpful to 
individuals asserting a need for testing accommodations, as evidence 
previously presented regarding these factors was deemed insufficient to 
demonstrate the existence of a disability. Some commenters requested the 
insertion of additional examples and explanation in the preamble about 
how condition, manner or duration principles could be applied under the 
new rules of construction. Another commenter sought guidance on the 
specific reference points that should be used when drawing comparisons 
with most people in the general population. The commenter offered the 
example of delays in developmental milestones as a possible referent in 
evaluating children with speech-language disorders, but noted a lack of 
guidance regarding comparable referents for adults. The commenter also 
noted that guidance is needed regarding what average or acceptable 
duration might be with respect to certain activities. An academic 
commenter expressed support for the Department's reference to 
individuals with learning impairments using certain self-mitigating 
measures, such as extra time to study or taking an examination in a 
different format, and the relevance of these measures to condition, 
manner, and duration.
    The Department did not receive comments opposing the NPRM language 
on condition, manner, or duration in Secs. 35.108(d)(3)(ii) and 
36.105(d)(3)(ii) and is not making any changes to this language. The 
Department agrees that further explanation and examples as provided 
below regarding the concepts of condition, manner, or duration will help 
clarify how the ADA Amendments Act has expanded the definition of 
``disability.'' An impairment may substantially limit the ``condition'' 
or ``manner'' in which a major life activity can be performed in a 
number of different ways. For example, the condition or manner in which 
a major life activity can be performed may refer to how an individual 
performs a major life activity; e.g., the condition or manner under 
which a person with an amputated hand performs manual tasks will likely 
be more cumbersome than the way that most people in the general 
population would perform the same tasks. Condition or manner also may 
describe how performance of a major life activity affects an individual 
with an impairment. For example, an individual whose impairment causes 
pain or fatigue that most people would not experience when performing 
that major life activity may be substantially limited. Thus, the 
condition or manner under which someone with coronary artery disease 
performs the

[[Page 732]]

major life activity of walking would be substantially limited if the 
individual experiences shortness of breath and fatigue when walking 
distances that most people could walk without experiencing such effects. 
An individual with specific learning disabilities may need to approach 
reading or writing in a distinct manner or under different conditions 
than most people in the general population, possibly employing aids 
including verbalizing, visualizing, decoding or phonology, such that the 
effort required could support a determination that the individual is 
substantially limited in the major life activity of reading or writing.
    Condition or manner may refer to the extent to which a major life 
activity, including a major bodily function, can be performed. In some 
cases, the condition or manner under which a major bodily function can 
be performed may be substantially limited when the impairment ``causes 
the operation [of the bodily function] to over-produce or under-produce 
in some harmful fashion.'' See H.R. Rep. No. 110-730, pt. 2, at 17 
(2008). For example, the endocrine system of a person with type I 
diabetes does not produce sufficient insulin. For that reason, compared 
to most people in the general population, the impairment of diabetes 
substantially limits the major bodily functions of endocrine function 
and digestion. Traumatic brain injury substantially limits the condition 
or manner in which an individual's brain functions by impeding memory 
and causing headaches, confusion, or fatigue--each of which could 
constitute a substantial limitation on the major bodily function of 
brain function.
    ``Duration'' refers to the length of time an individual can perform 
a major life activity or the length of time it takes an individual to 
perform a major life activity, as compared to most people in the general 
population. For example, a person whose back or leg impairment precludes 
him or her from standing for more than two hours without significant 
pain would be substantially limited in standing, because most people can 
stand for more than two hours without significant pain. However, ``[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.'' See 154 Cong. Rec. S8842 
(daily ed. Sept. 16, 2008) (Statement of the Managers) (quoting S. Rep. 
No. 101-116, at 23 (1989)). Some impairments, such as ADHD, may have two 
different types of impact on duration considerations. ADHD frequently 
affects both an ability to sustain focus for an extended period of time 
and the speed with which someone can process information. Each of these 
duration-related concerns could demonstrate that someone with ADHD, as 
compared to most people in the general population, takes longer to 
complete major life activities such as reading, writing, concentrating, 
or learning.
    The Department reiterates that, because the limitations created by 
certain impairments are readily apparent, it would not be necessary in 
such cases to assess the negative side effects of a mitigating measure 
in determining that a particular impairment substantially limits a major 
life activity. For example, there likely would be no need to consider 
the burden that dialysis treatment imposes for someone with end-stage 
renal disease because the impairment would allow a simple and 
straightforward determination that the individual is substantially 
limited in kidney function.
    One commenter representing people with disabilities asked the 
Department to recognize that, particularly with respect to learning 
disabilities, on some occasions the facts related to condition, manner, 
or duration necessary to reach a diagnosis of a learning disability also 
are sufficient to establish that the affected individual has a 
disability under the ADA. The Department agrees that the facts gathered 
to establish a diagnosis of an impairment may simultaneously satisfy the 
requirements for demonstrating limitations on condition, manner, or 
duration sufficient to show that the impairment constitutes a 
disability.

               Emphasis on Limitations Instead of Outcomes

    In passing the ADA Amendments Act, Congress clarified that courts 
had misinterpreted the ADA definition of ``disability'' by, among other 
things, inappropriately emphasizing the capabilities of people with 
disabilities to achieve certain outcomes. See 154 Cong. Rec. S8842 
(daily ed. Sept. 16, 2008) (Statement of the Managers). For example, 
someone with a learning disability may achieve a high level of academic 
success, but may nevertheless be substantially limited in one or more of 
the major life activities of reading, writing, speaking, or learning 
because of the additional time or effort he or she must spend to read, 
speak, write, or learn compared to most people in the general 
population. As the House Education and Labor Committee Report 
emphasized:

    [S]ome courts have found that students who have reached a high level 
of academic achievement are not to be considered individuals with 
disabilities under the ADA, as such individuals may have difficulty 
demonstrating substantial limitation in the major life activities of 
learning or reading relative to ``most people.'' When considering the 
condition, manner or duration in which an individual with a specific 
learning disability performs a major life activity, it is critical to 
reject the assumption that an individual who performs well academically 
or otherwise cannot be substantially limited in

[[Page 733]]

activities such as learning, reading, writing, thinking, or speaking. As 
such, the Committee rejects the findings in Price v. National Board of 
Medical Examiners, Gonzales v. National Board of Medical Examiners, and 
Wong v. Regents of University of California.
    The Committee believes that the comparison of individuals with 
specific learning disabilities to ``most people'' is not problematic 
unto itself, but requires a careful analysis of the method and manner in 
which an individual's impairment limits a major life activity. For the 
majority of the population, the basic mechanics of reading and writing 
do not pose extraordinary lifelong challenges; rather, recognizing and 
forming letters and words are effortless, unconscious, automatic 
processes. Because specific learning disabilities are neurologically-
based impairments, the process of reading for an individual with a 
reading disability (e.g., dyslexia) is word-by-word, and otherwise 
cumbersome, painful, deliberate and slow--throughout life. The Committee 
expects that individuals with specific learning disabilities that 
substantially limit a major life activity will be better protected under 
the amended Act.

H.R. Rep. No. 110-730 pt. 1, at 10-11 (2008).
    Sections 35.108(d)(3)(iii) and 36.105(d)(3)(iii) of the proposed 
rule reflected congressional intent and made clear that the outcome an 
individual with a disability is able to achieve is not determinative of 
whether an individual is substantially limited in a major life activity. 
Instead, an individual can demonstrate the extent to which an impairment 
affects the condition, manner, or duration in which the individual 
performs a major life activity, such that it constitutes a substantial 
limitation. The ultimate outcome of an individual's efforts should not 
undermine a claim of disability, even if the individual ultimately is 
able to achieve the same or similar result as someone without the 
impairment.
    The Department received several comments on these provisions, with 
disability organizations and individuals supporting the inclusion of 
these provisions and some testing entities and an organization 
representing educational institutions opposing them. The opponents 
argued that academic performance and testing outcomes are objective 
evidence that contradict findings of disability and that covered 
entities must be able to focus on those outcomes in order to demonstrate 
whether an impairment has contributed to a substantial limitation. These 
commenters argued that the evidence frequently offered by those making 
claims of disability that demonstrate the time or effort required to 
achieve a result, such as evidence of self-mitigating measures, informal 
accommodations, or recently provided reasonable modifications, is 
inherently subjective and unreliable. The testing entities suggested 
that the Department had indicated support for their interest in focusing 
on outcomes over process-related obstacles in the NPRM preamble language 
where the Department had noted that covered entities ``may defeat a 
showing of substantial limitation by refuting whatever evidence the 
individual seeking coverage has offered, or by offering evidence that 
shows that an impairment does not impose a substantial limitation on a 
major life activity.'' NPRM, 79 FR 4839, 4847-48 (Jan. 30, 2014). The 
commenters representing educational institutions and testing entities 
urged the removal of Secs. 35.108(d)(3)(iii) and 36.105(d)(3)(iii) or, 
in the alternative, the insertion of language indicating that outcomes, 
such as grades and test scores indicating academic success, are relevant 
evidence that should be considered when making disability 
determinations.
    In contrast, commenters representing persons with disabilities and 
individual commenters expressed strong support for these provisions, 
noting that what an individual can accomplish despite an impairment does 
not accurately reflect the obstacles an individual had to overcome 
because of the impairment. One organization representing persons with 
disabilities noted that while individuals with disabilities have 
achieved successes at work, in academia, and in other settings, their 
successes should not create obstacles to addressing what they can do 
``in spite of an impairment.'' Commenters also expressed concerns that 
testing entities and educational institutions had failed to comply with 
the rules of construction or to revise prior policies and practices to 
comport with the new standards under the ADA as amended. Some commenters 
asserted that testing entities improperly rejected accommodation 
requests because the testing entities focused on test scores and 
outcomes rather than on how individuals learn; required severe levels of 
impairment; failed to disregard the helpful effect of self-mitigating 
measures; referenced participation in extracurricular activities as 
evidence that individuals did not have disabilities; and argued that 
individuals diagnosed with specific learning disabilities or ADHD in 
adulthood cannot demonstrate that they have a disability because their 
diagnosis occurred too late.
    Commenters representing persons with disabilities pointed to the 
discussion in the legislative history about restoring a focus on process 
rather than outcomes with respect to learning disabilities. They 
suggested that such a shift in focus also would be helpful in evaluating 
ADHD. One commenter asked the Department to include a reference to ADHD 
and to explain that persons with ADHD may achieve a high level of 
academic success but may nevertheless be substantially limited in one or 
more major life activities, such as reading, writing, speaking, 
concentrating, or

[[Page 734]]

learning. A private citizen requested the addition of examples 
demonstrating the application of these provisions because, in the 
commenter's view, there have been many problems with decisions regarding 
individuals with learning disabilities and an inappropriate focus on 
outcomes and test scores.
    The Department declines the request to add a specific reference to 
ADHD in these provisions. The Department believes that the principles 
discussed above apply equally to persons with ADHD as well as 
individuals with other impairments. The provision already references an 
illustrative, but not exclusive, example of an individual with a 
learning disability. The Department believes that this example 
effectively illustrates the concern that has affected individuals with 
other impairments due to an inappropriate emphasis on outcomes rather 
than how a major life activity is limited.
    Organizations representing testing and educational entities asked 
the Department to add regulatory language indicating that testing-
related outcomes, such as grades and test scores, are relevant to 
disability determinations under the ADA. The Department has considered 
this proposal and declines to adopt it because it is inconsistent with 
congressional intent. As discussed earlier in this section, Congress 
specifically stated that the outcome an individual with a disability is 
able to achieve is not determinative of whether that individual has a 
physical or mental impairment that substantially limits a major life 
activity. The analysis of whether an individual with an impairment has a 
disability is a fact-driven analysis shaped by how an impairment has 
substantially limited one or more major life activities or major bodily 
functions, considering those specifically asserted by the individual as 
well as any others that may apply. For example, if an individual with 
ADHD seeking a reasonable modification or a testing accommodation 
asserts substantial limitations in the major life activities of 
concentrating and reading, then the analysis of whether or not that 
individual has a covered disability will necessarily focus on 
concentrating and reading. Relevant considerations could include 
restrictions on the conditions, manner, or duration in which the 
individual concentrates or reads, such as a need for a non-stimulating 
environment or extensive time required to read. Even if an individual 
has asserted that an impairment creates substantial limitations on 
activities such as reading, writing, or concentrating, the individual's 
academic record or prior standardized testing results might not be 
relevant to the inquiry. Instead, the individual could show substantial 
limitations by providing evidence of condition, manner, or duration 
limitations, such as the need for a reader or additional time. The 
Department does not believe that the testing results or grades of an 
individual seeking reasonable modifications or testing accommodations 
always would be relevant to determinations of disability. While testing 
and educational entities may, of course, put forward any evidence that 
they deem pertinent to their response to an assertion of substantial 
limitation, testing results and grades may be of only limited relevance.
    In addition, the Department does not agree with the assertions made 
by testing and educational entities that evidence of testing and grades 
is objective and, therefore, should be weighted more heavily, while 
evidence of self-mitigating measures, informal accommodations, or 
recently provided accommodations or modifications is inherently 
subjective and should be afforded less consideration. Congress's 
discussion of the relevance of testing outcomes and grades clearly 
indicates that it did not consider them definitive evidence of the 
existence or non-existence of a disability. While tests and grades 
typically are numerical measures of performance, the capacity to 
quantify them does not make them inherently more valuable with respect 
to proving or disproving disability. To the contrary, Congress's 
incorporation of rules of construction emphasizing broad coverage of 
disabilities to the maximum extent permitted, its direction that such 
determinations should neither contemplate ameliorative mitigating 
measures nor demand extensive analysis, and its recognition of learned 
and adaptive modifications all support its openness for individuals with 
impairments to put forward a wide range of evidence to demonstrate their 
disabilities.
    The Department believes that Congress made its intention clear that 
the ADA's protections should encompass people for whom the nature of 
their impairment requires an assessment that focuses on how they engage 
in major life activities, rather than the ultimate outcome of those 
activities. Beyond directly addressing this concern in the debate over 
the ADA Amendments Act, Congress's incorporation of the far-reaching 
rules of construction, its explicit rejection of the consideration of 
ameliorative mitigating measures--including ``learned behavioral or 
adaptive neurological modifications,'' 42 U.S.C. 12102(4)(E)(i)(IV), 
such as those often employed by individuals with learning disabilities 
or ADHD--and its stated intention to ``reinstat[e] a broad scope of 
protection to be available under the ADA,'' Public Law 110-325, sec. 
2(b)(1), all support the language initially proposed in these 
provisions. For these reasons, the Department determined that it will 
retain the language of these provisions as they were originally drafted.

[[Page 735]]

     Analysis of Condition, Manner, or Duration Not Always Required

    As noted in the discussion above, the Department has added 
Secs. 35.108(d)(3)(iv) and 36.105(d)(3)(iv) in the final rule to clarify 
that analysis of condition, manner, or duration will not always be 
necessary, particularly with respect to certain impairments that can 
easily be found to substantially limit a major life activity. This 
language is also found in the EEOC ADA title I regulation. See 29 CFR 
1630(j)(4)(iv). As noted earlier, the inclusion of these provisions 
addresses several comments from organizations representing persons with 
disabilities. This language also responds to several commenters' 
concerns that the Department should clarify that, in some cases and 
particularly with respect to predictable assessments, no or only a very 
limited analysis of condition, manner, or duration is necessary.
    At the same time, individuals seeking coverage under the first or 
second prong of the definition of ``disability'' should not be 
constrained from offering evidence needed to establish that their 
impairment is substantially limiting. See 154 Cong. Rec. S8842 (daily 
ed. Sept. 16, 2008) (Statement of the Managers). Such evidence may 
comprise facts related to condition, manner, or duration. And, covered 
entities may defeat a showing of substantial limitation by refuting 
whatever evidence the individual seeking coverage has offered, or by 
offering evidence that shows that an impairment does not impose a 
substantial limitation on a major life activity. However, a showing of 
substantial limitation is not defeated by facts unrelated to condition, 
manner, or duration that are not pertinent to the substantial limitation 
of a major life activity that the individual has proffered.

 Sections 35.108(d)(4) and 36.105(d)(4)--Examples of Mitigating Measures

    The rules of construction set forth at Secs. 35.108(d)(1)(viii) and 
36.105(d)(1)(viii) of the final rule make clear that the ameliorative 
effects of mitigating measures shall not be considered when determining 
whether an impairment substantially limits a major life activity. In the 
NPRM, proposed Secs. 35.108(d)(4) and 36.105(d)(4) provided a non-
inclusive list of mitigating measures, which includes medication, 
medical supplies, equipment, appliances, low-vision devices, 
prosthetics, hearing aids, cochlear implants and implantable hearing 
devices, mobility devices, oxygen therapy equipment, and assistive 
technology. In addition, the proposed regulation clarified that 
mitigating measures can include ``learned behavioral or adaptive 
neurological modifications,'' psychotherapy, behavioral therapy, or 
physical therapy, and ``reasonable modifications'' or auxiliary aids and 
services.
    The phrase ``learned behavioral or adaptive neurological 
modifications,'' is intended to include strategies developed by an 
individual to lessen the impact of an impairment. The phrase 
``reasonable modifications'' is intended to include informal or 
undocumented accommodations and modifications as well as those provided 
through a formal process.
    The ADA as amended specifies one exception to the rule on mitigating 
measures, stating that the ameliorative effects of ordinary eyeglasses 
and contact lenses shall be considered in determining whether a person 
has an impairment that substantially limits a major life activity and 
thereby is a person with a disability. 42 U.S.C. 12102(4)(E)(ii). As 
discussed above, Secs. 35.108(d)(4)(i) and 36.105(d)(4)(i) incorporate 
this exception by excluding ordinary eyeglasses and contact lenses from 
the definition of ``low-vision devices,'' which are mitigating measures 
that may not be considered in determining whether an impairment is a 
substantial limitation.
    The Department received a number of comments supporting the 
Department's language in these sections and its broad range of examples 
of what constitutes a mitigating measure. Commenters representing 
students with disabilities specifically supported the inclusion of 
``learned behavioral or adaptive neurological modifications,'' noting 
that the section ``appropriately supports and highlights that students 
[and individuals in other settings] may have developed self-imposed ways 
to support their disability in order to perform major life activities 
required of daily life and that such measures cannot be used to find 
that the person is not substantially limited.''
    The Department notes that self-mitigating measures or undocumented 
modifications or accommodations for students who have impairments that 
substantially limit learning, reading, writing, speaking, or 
concentrating may include such measures as arranging to have multiple 
reminders for task completion; seeking help from others to provide 
reminders or to assist with the organization of tasks; selecting courses 
strategically (such as selecting courses that require papers instead of 
exams); devoting a far larger portion of the day, weekends, and holidays 
to study than students without disabilities; teaching oneself strategies 
to facilitate reading connected text or mnemonics to remember facts 
(including strategies such as highlighting and margin noting); being 
permitted extra time to complete tests; receiving modified homework 
assignments; or taking exams in a different format or in a less 
stressful or anxiety-provoking setting. Each of these mitigating 
measures, whether formal or informal, documented or undocumented, can 
improve the academic function of a student having to deal with a 
substantial limitation

[[Page 736]]

in a major life activity such as concentrating, reading, speaking, 
learning, or writing. However, when the determination of disability is 
made without considering the ameliorative effects of these measures, as 
required under the ADA as amended, these individuals still have a 
substantial limitation in major life activities and are covered by the 
ADA. See also discussion of Secs. 35.108(d)(1) and 36.105(d)(1), above.
    Some commenters argued that the Department's examples of mitigating 
measures inappropriately include normal learning strategies and asked 
that the Department withdraw or narrow its discussion of self-mitigating 
measures. The Department disagrees. Narrowing the discussion of self-
mitigating measures to exclude normal or common strategies would not be 
consistent with the ADA Amendments Act. The Department construes learned 
behavioral or adaptive neurological modifications broadly to include 
strategies applied or utilized by an individual with a disability to 
lessen the effect of an impairment; whether the strategy applied is 
normal or common to students without disabilities is not relevant to 
whether an individual with a disability's application of the strategy 
lessens the effect of an impairment.
    An additional commenter asked the Department to add language to the 
regulation and preamble addressing mitigating measures an individual 
with ADHD may employ. This commenter noted that ``[a]n individual with 
ADHD may employ a wide variety of self-mitigating measures, such as 
exertion of extensive extra effort, use of multiple reminders, whether 
low tech or high tech, seeking a quiet or distraction free place or 
environment to do required activities.'' The Department agrees with this 
commenter that these are examples of the type of self-mitigating 
measures used by individuals with ADHD, but believes that they fall 
within the range of mitigating measures already addressed by the 
regulatory language.
    Another commenter asked the Department to add language to the 
regulation or preamble addressing surgical interventions in a similar 
fashion to the approach taken in the EEOC's title I preamble, 76 FR 
16978, 16983 (Mar. 25, 2011). There, the EEOC noted that a surgical 
intervention may be an ameliorative mitigating measure that could result 
in the permanent elimination of an impairment, but it also indicated 
that confusion about how this example might apply recommended against 
its inclusion in the regulatory text. Therefore, the EEOC eliminated 
that example from the draft regulatory text and recommended that, 
``[d]eterminations about whether surgical interventions should be taken 
into consideration when assessing whether an individual has a disability 
are better assessed on a case-by-case basis.'' The Department agrees 
with the EEOC and underscores that surgical interventions may constitute 
mitigating measures that should not be considered in determining whether 
an individual meets the definition of ``disability.'' The Department 
declines to make any changes to its proposed regulatory text for these 
sections of the final rule.
    The ADA Amendments Act provides an ``illustrative but non-
comprehensive list of the types of mitigating measures that are not to 
be considered.'' 154 Cong. Rec. S8842 (daily ed. Sept. 16, 2008) 
(Statement of the Managers) at 9; see also H.R. Rep. No. 110-730, pt. 2, 
at 20 (2008). The absence of any particular mitigating measure should 
not convey a negative implication as to whether the measure is a 
mitigating measure under the ADA. Id. This principle applies equally to 
the non-exhaustive list in Secs. 35.108(d)(4) and 36.105(d)(4).

  Sections 35.108(e) and 36.105(e)--Has a Record of Such an Impairment

    The second prong of the definition of ``disability'' under the ADA 
provides that an individual with a record of an impairment that 
substantially limits or limited a major life activity is an individual 
with a disability. 42 U.S.C. 12102(1)(B).
    Paragraph (3) of the definition of ``disability'' in the existing 
title II and title III regulations states that 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. 28 CFR 35.104, 
36.104. The NPRM proposed keeping the language in the title II and title 
III regulations (with minor editorial changes) but to renumber it as 
Secs. 35.108(e)(1) and 36.105(e)(1). In addition, the NPRM proposed 
adding a new second paragraph stating that any individual's assertion of 
a record of impairment that substantially limits a major life activity 
should be broadly construed to the maximum extent permitted by the ADA 
and should not require extensive analysis. If an individual has a 
history of an impairment that substantially limited one or more major 
life activities when compared to most people in the general population 
or was misclassified as having had such an impairment, then that 
individual will satisfy the third prong of the definition of 
``disability.'' The NPRM also proposed adding paragraph (3), which 
provides that ``[a]n individual with a record of a substantially 
limiting impairment may be entitled to a reasonable modification if 
needed and related to the past disability.''
    The Department received no comments objecting to its proposed 
language for these provisions and has retained it in the final rule. The 
Department received one comment requesting additional guidance on the 
meaning of these provisions. The Department notes that Congress intended 
this prong of

[[Page 737]]

the definition of ``disability'' to ensure that people are not 
discriminated against based on prior medical history. This prong is also 
intended to ensure that individuals are not discriminated against 
because they have been misclassified as an individual with a disability. 
For example, individuals misclassified as having learning disabilities 
or intellectual disabilities are protected from discrimination on the 
basis of that erroneous classification. See H.R. Rep. No. 110-730, pt. 
2, at 7-8 & n.14 (2008).
    This prong of the definition is satisfied where evidence establishes 
that an individual has had a substantially limiting impairment. The 
impairment indicated in the record must be an impairment that would 
substantially limit one or more of the individual's major life 
activities. The terms ``substantially limits'' and ``major life 
activity'' under the second prong of the definition of ``disability'' 
are to be construed in accordance with the same principles applicable 
under the ``actual disability'' prong, as set forth in Secs. 35.108(b) 
and 36.105(b).
    There are many types of records that could potentially contain this 
information, including but not limited to, education, medical, or 
employment records. The Department notes that past history of an 
impairment need not be reflected in a specific document. Any evidence 
that an individual has a past history of an impairment that 
substantially limited a major life activity is all that is necessary to 
establish coverage under the second prong. An individual may have a 
``record of'' a substantially limiting impairment--and thus establish 
coverage under the ``record of'' prong of the statute--even if a covered 
entity does not specifically know about the relevant record. For the 
covered entity to be liable for discrimination under the ADA, however, 
the individual with a ``record of'' a substantially limiting impairment 
must prove that the covered entity discriminated on the basis of the 
record of the disability.
    Individuals who are covered under the ``record of'' prong may be 
covered under the first prong of the definition of ``disability'' as 
well. This is because the rules of construction in the ADA Amendments 
Act and the Department's regulations provide that an individual with an 
impairment that is episodic or in remission can be protected under the 
first prong if the impairment would be substantially limiting when 
active. See Secs. 35.108(d)(1)(iv); 36.105(d)(1)(iv). Thus, an 
individual who has cancer that is currently in remission is an 
individual with a disability under the ``actual disability'' prong 
because he has an impairment that would substantially limit normal cell 
growth when active. He is also covered by the ``record of'' prong based 
on his history of having had an impairment that substantially limited 
normal cell growth.
    Finally, these provisions of the regulations clarify that an 
individual with a record of a disability is entitled to a reasonable 
modification currently needed relating to the past substantially 
limiting impairment. In the legislative history, Congress stated that 
reasonable modifications were available to persons covered under the 
second prong of the definition. See H.R. Rep. No. 110-730, pt. 2, at 22 
(2008) (``This makes clear that the duty to accommodate. . . arises only 
when an individual establishes coverage under the first or second prong 
of the definition.''). For example, a high school student with an 
impairment that previously substantially limited, but no longer 
substantially limits, a major life activity may need permission to miss 
a class or have a schedule change as a reasonable modification that 
would permit him or her to attend follow-up or monitoring appointments 
from a health care provider.

    Sections 35.108(f) and 36.105(f)--Is Regarded as Having Such an 
                               Impairment

    The ``regarded as having such an impairment'' prong of the 
definition of ``disability'' was included in the ADA specifically to 
protect individuals who might not meet the first two prongs of the 
definition, but who were subject to adverse decisions by covered 
entities based upon unfounded concerns, mistaken beliefs, fears, myths, 
or prejudices about persons with disabilities. See 154 Cong. Rec. S8842 
(daily ed. Sept. 16, 2008) (Statement of the Managers). The rationale 
for the ``regarded as'' part of the definition of ``disability'' was 
articulated by the Supreme Court in the context of section 504 of the 
Rehabilitation Act of 1973 in School Board of Nassau County v. Arline, 
480 U.S. 273 (1987). In Arline, the Court noted that, although an 
individual may have an impairment that does not diminish his or her 
physical or mental capabilities, it 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. Thus, individuals 
seeking the protection of the ADA under the ``regarded as'' prong only 
had to show that a covered entity took some action prohibited by the 
statute because of an actual or perceived impairment. At the time of the 
Arline decision, there was no requirement that the individual 
demonstrate that he or she, in fact, had or was perceived to have an 
impairment that substantially limited a major life activity. See 154 
Cong. Rec. S8842 (daily ed. Sept. 16, 2008) (Statement of the Managers). 
For example, if a daycare center refused to admit a child with burn 
scars because of the presence of the scars, then the daycare center 
regarded the child as an individual with a disability, regardless of 
whether the child's scars substantially limited a major life activity.

[[Page 738]]

    In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the 
Supreme Court significantly narrowed the application of this prong, 
holding that individuals who asserted coverage under the ``regarded as 
having such an impairment'' prong had to establish either that the 
covered entity mistakenly believed that the individual had a physical or 
mental impairment that substantially limited a major life activity, or 
that the covered entity mistakenly believed that ``an actual, 
nonlimiting impairment substantially limit[ed]'' a major life activity, 
when in fact the impairment was not so limiting. Id. at 489. Congress 
expressly rejected this standard in the ADA Amendments Act by amending 
the ADA to clarify that it is sufficient for an individual to establish 
that the covered entity regarded him or her as having an impairment, 
regardless of whether the individual actually has the impairment or 
whether the impairment constitutes a disability under the Act. 42 U.S.C. 
12102(3)(A). This amendment restores Congress's intent to allow 
individuals to establish coverage under the ``regarded as'' prong by 
showing that they were treated adversely because of an actual or 
perceived impairment without having to establish the covered entity's 
beliefs concerning the severity of the impairment. See H.R. Rep. No. 
110-730, pt. 2, at 18 (2008).
    Thus, under the ADA as amended, it is not necessary, as it was prior 
to the ADA Amendments Act and following the Supreme Court's decision in 
Sutton, for an individual to demonstrate that a covered entity perceived 
him as substantially limited in the ability to perform a major life 
activity in order for the individual to establish that he or she is 
covered under the ``regarded as'' prong. Nor is it necessary to 
demonstrate that the impairment relied on by a covered entity is (in the 
case of an actual impairment) or would be (in the case of a perceived 
impairment) substantially limiting for an individual to be ``regarded as 
having such an impairment.'' In short, to be covered under the 
``regarded as'' prong, an individual is not subject to any functional 
test. See 154 Cong. Rec. S8843 (daily ed. Sept. 16, 2008) (Statement of 
the Managers) (``The functional limitation imposed by an impairment is 
irrelevant to the third `regarded as' prong.''); H.R. Rep. No. 110-730, 
pt. 2, at 17 (2008) (``[T]he individual is not required to show that the 
perceived impairment limits performance of a major life activity.'') The 
concepts of ``major life activities'' and ``substantial limitation'' 
simply are not relevant in evaluating whether an individual is 
``regarded as having such an impairment.''
    In the NPRM, the Department proposed Secs. 35.108(f)(1) and 
36.105(f)(1), which are intended to restore the meaning of the 
``regarded as'' prong of the definition of ``disability'' by adding 
language that incorporates the amended statutory provision: ``An 
individual is `regarded as having such an impairment' if the individual 
is subjected to an action prohibited by the ADA because of an actual or 
perceived physical or mental impairment, whether or not that impairment 
substantially limits, or is perceived to substantially limit, a major 
life activity, except for an impairment that is both transitory and 
minor.''
    The proposed provisions also incorporate the statutory definition of 
transitory impairment, stating that a ``transitory impairment is an 
impairment with an actual or expected duration of six months or less.'' 
The ``transitory and minor'' exception was not in the third prong in the 
original statutory definition of ``disability.'' Congress added this 
exception to address concerns raised by the business community that 
``absent this exception, the third prong of the definition would have 
covered individuals who are regarded as having common ailments like the 
cold or flu.'' See H.R. Rep. No. 110-730, pt. 2, at 18 (2008). However, 
as an exception to the general rule for broad coverage under the 
``regarded as'' prong, this limitation on coverage should be construed 
narrowly. Id. The ADA Amendments Act did not define ``minor.''
    In addition, proposed Secs. 35.108(f)(2) and 36.105(f)(2) stated 
that any time a public entity or covered entity takes a prohibited 
action because of an individual's actual or perceived impairment, even 
if the entity asserts, or may or does ultimately establish, a defense to 
such action, that individual is ``regarded as'' having such an 
impairment. Commenters on these provisions recommended that the 
Department revise its language to clarify that the determination of 
whether an impairment is in fact ``transitory and minor'' is an 
objective determination and that a covered entity may not defeat 
``regarded as'' coverage of an individual simply by demonstrating that 
it subjectively believed that the impairment is transitory and minor. In 
addition, a number of commenters cited the EEOC title I rule at 29 CFR 
1630.15(f) and asked the Department to clarify that ``the issue of 
whether an actual or perceived impairment is `transitory and minor' is 
an affirmative defense and not part of the plaintiff's burden of 
proof.'' The Department agrees with these commenters and has revised 
paragraphs (1) and (2) of these sections for clarity, as shown in 
Secs. 35.108(f)(2) and 36.105(f)(2) of the final rule.
    The revised language makes clear that the relevant inquiry under 
these sections is whether the actual or perceived impairment that is the 
basis of the covered entity's action is objectively ``transitory and 
minor,'' not whether the covered entity claims it subjectively believed 
the impairment was transitory and minor. For example, a private

[[Page 739]]

school that expelled a student whom it believes has bipolar disorder 
cannot take advantage of this exception by asserting that it believed 
the student's impairment was transitory and minor, because bipolar 
disorder is not objectively transitory and minor. Similarly, a public 
swimming pool that refused to admit an individual with a skin rash, 
mistakenly believing the rash to be symptomatic of HIV, will have 
``regarded'' the individual as having a disability. It is not a defense 
to coverage that the skin rash was objectively transitory and minor 
because the covered entity took the prohibited action based on a 
perceived impairment, HIV, that is not transitory and minor.
    The revised regulatory text also makes clear that the ``transitory 
and minor'' exception to a ``regarded as'' claim is a defense to a claim 
of discrimination and not part of an individual's prima facie case. The 
Department reiterates that to fall within this exception, the actual or 
perceived impairment must be both transitory (less than six months in 
duration) and minor. For example, an individual with a minor back injury 
could be ``regarded as'' an individual with a disability if the back 
impairment lasted or was anticipated to last more than six months. The 
Department notes that the revised regulatory text is consistent with the 
EEOC rule which added the transitory and minor exception to its general 
affirmative defense provision in its title I ADA regulation at 29 CFR 
1630.15(f). Finally, in the NPRM, the Department proposed 
Secs. 35.108(f)(3) and 36.105(f)(3) which provided that an individual 
who is ``regarded as having such an impairment'' does not establish 
liability based on that alone. Instead, an individual can establish 
liability only when an individual proves that a private entity or 
covered entity discriminated on the basis of disability within the 
meaning of the ADA. This provision was intended to make it clear that in 
order to establish liability, an individual must establish coverage as a 
person with a disability, as well as establish that he or she had been 
subjected to an action prohibited by the ADA.
    The Department received no comments on the language in these 
paragraphs. Upon consideration, in the final rule, the Department has 
decided to retain the regulatory text for Secs. 35.108(f)(3) and 
36.105(f)(3) except that the reference to ``covered entity'' in the 
title III regulatory text is changed to ``public accommodation.''

              Sections 35.108(g) and 36.105(g)--Exclusions

    The NPRM did not propose changes to the text of the existing 
exclusions contained in paragraph (5) of the definition of 
``disability'' in the title II and title III regulations, see 28 CFR 
35.104, 36.104, which are based on 42 U.S.C. 12211(b), a statutory 
provision that was not modified by the ADA Amendments Act. The NPRM did 
propose to renumber these provisions, relocating them at Secs. 35.108(g) 
and 36.105(g) of the Department's revised definition of ``disability.'' 
The Department received no comments on the proposed renumbering, which 
is retained in the final rule.

 Sections 35.130(b)(7)(i)--General Prohibitions Against Discrimination 
   and 36.302(g)--Modifications in Policies, Practices, or Procedures

    The ADA Amendments Act revised the ADA to specify that a public 
entity under title II, and any person who owns, leases (or leases to), 
or operates a place of public accommodation under title III, ``need not 
provide a reasonable accommodation or a reasonable modification to 
policies, practices, or procedures to an individual who meets the 
definition of disability'' solely on the basis of being regarded as 
having an impairment. 42 U.S.C. 12201(h). In the NPRM, the Department 
proposed Secs. 35.130(b)(7)(i) and 36.302(g) to reflect this concept, 
explaining that a public entity or covered entity ``is not required to 
provide a reasonable modification to an individual who meets the 
definition of disability solely under the `regarded as' prong of the 
definition of disability.'' These provisions clarify that the duty to 
provide reasonable modifications arises only when the individual 
establishes coverage under the first or second prong of the definition 
of ``disability.'' These provisions are not intended to diminish the 
existing obligations to provide reasonable modifications under title II 
and title III of the ADA.
    The Department received no comments associated with these provisions 
and retains the NPRM language in the final rule except for replacing the 
words ``covered entity'' with ``public accommodation'' in 
Sec. 36.302(g).

        Sections 35.130(i) and 36.201(c)--Claims of No Disability

    The ADA as amended provides that ``[n]othing in this [Act] shall 
provide the basis for a claim by an individual without a disability that 
the individual was subject to discrimination because of the individual's 
lack of disability.'' 42 U.S.C. 12201(g). In the NPRM the Department 
proposed adding Secs. 35.130(i) and 36.201(c) to the title II and title 
III regulations, respectively, which incorporate similar language. These 
provisions clarify that persons without disabilities do not have an 
actionable claim under the ADA on the basis of not having a disability.
    The Department received no comments associated with this issue and 
has retained these provisions in the final rule.

[[Page 740]]

 Effect of ADA Amendments Act on Academic Requirements in Postsecondary 
                                Education

    The Department notes that the ADA Amendments Act revised the rules 
of construction in title V of the ADA by including a provision affirming 
that nothing in the Act changed the existing ADA requirement that 
covered entities provide reasonable modifications in policies, 
practices, or procedures unless the entity can demonstrate that making 
such modifications, including academic requirements in postsecondary 
education, would fundamentally alter the nature of goods, services, 
facilities, privileges, advantages, or accommodations involved. See 42 
U.S.C. 12201(f). Congress noted that the reference to academic 
requirements in postsecondary education was included ``solely to provide 
assurances that the bill does not alter current law with regard to the 
obligations of academic institutions under the ADA, which we believe is 
already demonstrated in case law on this topic. Specifically, the 
reference to academic standards in post-secondary education is unrelated 
to the purpose of this legislation and should be given no meaning in 
interpreting the definition of disability.'' 154 Cong. Rec. S8843 (daily 
ed. Sept. 16, 2008) (Statement of the Managers). Given that Congress did 
not intend there to be any change to the law in this area, the 
Department did not propose to make any changes to its regulatory 
requirements in response to this provision of the ADA Amendments Act.

[AG Order 3702-2016, 81 FR 53225, Aug. 11, 2016]



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 and broad coverage.
36.102  Application.
36.103  Relationship to other laws.
36.104  Definitions.
36.105  Definition of ``disability.''
36.106-36.199  [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.
35.311  Mobility devices.
36.312-36.399  [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.
36.407-36.499  [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  Preliminary determination.
36.604  Procedure following preliminary determination of equivalency.
36.605  Procedure following preliminary denial of certification.
36.606  Effect of certification.
36.607  Guidance concerning model codes.

[[Page 741]]


Appendix A to Part 36--Guidance on Revisions to ADA Regulation on 
          Nondiscrimination on the Basis of Disability by Public 
          Accommodations and Commercial Facilities
Appendix B to Part 36--Analysis and Commentary on the 2010 ADA Standards 
          for Accessible Design
Appendix C to Part 36--Guidance on ADA Regulation on Nondiscrimination 
          on the Basis of Disability by Public Accommodations and in 
          Commercial Facilities originally published on July 26, 1991
Appendix D to Part 36--1991 Standards for Accessible Design as 
          Originally Published on July 26, 1991
Appendix E to Part 36--Guidance to Revisions to ADA Title II and Title 
          III Regulations Revising the Meaning and Interpretation of the 
          Definition of ``disability'' and Other Provisions in Order To 
          Incorporate the Requirements of the ADA Amendments Act
Appendix F to Part 36--Guidance and Section-by-Section Analysis

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b), 
12205a.

    Source: Order No. 1513-91, 56 FR 35592, July 26, 1991, unless 
otherwise noted.



                            Subpart A_General



Sec. 36.101  Purpose and broad coverage.

    (a) Purpose. The purpose of this part is to implement subtitle A of 
title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12181-12189), as amended by the ADA Amendments Act of 2008 (ADA 
Amendments Act) (Pub. L. 110-325, 122 Stat. 3553 (2008)), which 
prohibits discrimination on the basis of disability by covered 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.
    (b) Broad coverage. The primary purpose of the ADA Amendments Act is 
to make it easier for people with disabilities to obtain protection 
under the ADA. Consistent with the ADA Amendments Act's purpose of 
reinstating a broad scope of protection under the ADA, the definition of 
``disability'' in this part shall be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of the 
ADA. The primary object of attention in cases brought under the ADA 
should be whether entities covered under the ADA have complied with 
their obligations and whether discrimination has occurred, not whether 
the individual meets the definition of ``disability.'' The question of 
whether an individual meets the definition of ``disability'' under this 
part should not demand extensive analysis.

[AG Order 3702-2016, 81 FR 53240, Aug. 11, 2016]



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.

[[Page 742]]



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--
    1991 Standards means requirements set forth in the ADA Standards for 
Accessible Design, originally published on July 26, 1991, and 
republished as Appendix D to this part.
    2004 ADAAG means the requirements set forth in appendices B and D to 
36 CFR part 1191 (2009).
    2010 Standards means the 2010 ADA Standards for Accessible Design, 
which consist of the 2004 ADAAG and the requirements contained in 
subpart D of this part.
    Act means the Americans with Disabilities Act of 1990 (Pub. L. 101-
336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Commerce means travel, trade, traffic, commerce, transportation, or 
communication--
    (1) Among the several States;
    (2) Between any foreign country or any territory or possession and 
any State; or
    (3) Between points in the same State but through another State or 
foreign country.
    Commercial facilities means facilities--
    (1) Whose operations will affect commerce;
    (2) That are intended for nonresidential use by a private entity; 
and
    (3) That are not--
    (i) Facilities that are covered or expressly exempted from coverage 
under the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631);
    (ii) Aircraft; or
    (iii) Railroad locomotives, railroad freight cars, railroad 
cabooses, commuter or intercity passenger rail cars (including coaches, 
dining cars, sleeping cars, lounge cars, and food service cars), any 
other railroad cars described in section 242 of the Act or covered under 
title II of the Act, or railroad rights-of-way. For purposes of this 
definition, ``rail'' and ``railroad'' have the meaning given the term 
``railroad'' in section 202(e) of the Federal Railroad Safety Act of 
1970 (45 U.S.C. 431(e)).
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    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, as provided in Sec. 36.208.
    Disability. The definition of disability can be found at 
Sec. 36.105.
    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).
    Existing facility means a facility in existence on any given date, 
without regard to whether the facility may also be considered newly 
constructed or altered under this part.
    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.
    Housing at a place of education means housing operated by or on 
behalf of an elementary, secondary, undergraduate, or postgraduate 
school, or other place of education, including dormitories, suites, 
apartments, or other places of residence.

[[Page 743]]

    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term ``illegal use of drugs'' does 
not include the use of a drug taken under supervision by a licensed 
health care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term ``individual with a disability'' does not include an individual 
who is currently engaging in the illegal use of drugs, when the private 
entity acts on the basis of such use.
    Other power-driven mobility device means any mobility device powered 
by batteries, fuel, or other engines--whether or not designed primarily 
for use by individuals with mobility disabilities--that is used by 
individuals with mobility disabilities for the purpose of locomotion, 
including golf cars, electronic personal assistance mobility devices 
(EPAMDs), such as the Segway PT, or any mobility device 
designed to operate in areas without defined pedestrian routes, but that 
is not a wheelchair within the meaning of this section. This definition 
does not apply to Federal wilderness areas; wheelchairs in such areas 
are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).
    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) Place of lodging, except for an establishment located within a 
facility that contains not more than five rooms for rent or hire and 
that actually is occupied by the proprietor of the establishment as the 
residence of the proprietor. For purposes of this part, a facility is a 
``place of lodging'' if it is--
    (i) An inn, hotel, or motel; or
    (ii) A facility that--
    (A) Provides guest rooms for sleeping for stays that primarily are 
short-term in nature (generally 30 days or less) where the occupant does 
not have the right to return to a specific room or unit after the 
conclusion of his or her stay; and
    (B) Provides guest rooms under conditions and with amenities similar 
to a hotel, motel, or inn, including the following--
    (1) On- or off-site management and reservations service;
    (2) Rooms available on a walk-up or call-in basis;
    (3) Availability of housekeeping or linen service; and
    (4) Acceptance of reservations for a guest room type without 
guaranteeing a particular unit or room until check-in, and without a 
prior lease or security deposit.
    (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.

[[Page 744]]

    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, via a video remote 
interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.
    Qualified reader means a person who is able to read effectively, 
accurately, and impartially 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.
    Religious entity means a religious organization, including a place 
of worship.
    Service animal means any dog that is individually trained to do work 
or perform tasks for the benefit of an individual with a disability, 
including a physical, sensory, psychiatric, intellectual, or other 
mental disability. Other species of animals, whether wild or domestic, 
trained or untrained, are not service animals for the purposes of this 
definition. The work or tasks performed by a service animal must be 
directly related to the individual's disability. Examples of work or 
tasks include, but are not limited to, assisting individuals who are 
blind or have low vision with navigation and other tasks, alerting 
individuals who are deaf or hard of hearing to the presence of people or 
sounds, providing non-violent protection or rescue work, pulling a 
wheelchair, assisting an individual during a seizure, alerting 
individuals to the presence of allergens, retrieving items such as 
medicine or the telephone, providing physical support and assistance 
with balance and stability to individuals with mobility disabilities, 
and helping persons with psychiatric and neurological disabilities by 
preventing or interrupting impulsive or destructive behaviors. The crime 
deterrent effects of an animal's presence and the provision of emotional 
support, well-being, comfort, or companionship do not constitute work or 
tasks for the purposes of this definition.
    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,

[[Page 745]]

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.
    Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video connection 
that delivers high-quality video images as provided in Sec. 36.303(f).
    Wheelchair means a manually-operated or power-driven device designed 
primarily for use by an individual with a mobility disability for the 
main purpose of indoor or of both indoor and outdoor locomotion. This 
definition does not apply to Federal wilderness areas; wheelchairs in 
such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 
12207(c)(2).

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56250, Sept. 15, 2010; 76 FR 13287, Mar. 11, 2011; 
AG Order 3702-2016, 81 FR 53240, Aug. 11, 2016]



Sec. 36.105  Definition of ``disability.''

    (a)(1) Disability means, with respect to an individual:
    (i) A physical or mental impairment that substantially limits one or 
more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
paragraph (f) of this section.
    (2) Rules of construction. (i) The definition of ``disability'' 
shall be construed broadly in favor of expansive coverage, to the 
maximum extent permitted by the terms of the ADA.
    (ii) An individual may establish coverage under any one or more of 
the three prongs of the definition of ``disability'' in paragraph (a)(1) 
of this section, the ``actual disability'' prong in paragraph (a)(1)(i) 
of this section, the ``record of'' prong in paragraph (a)(1)(ii) of this 
section, or the ``regarded as'' prong in paragraph (a)(1)(iii) of this 
section.
    (iii) Where an individual is not challenging a public 
accommodation's failure to provide reasonable modifications under 
Sec. 36.302, it is generally unnecessary to proceed under the ``actual 
disability'' or ``record of'' prongs, which require a showing of an 
impairment that substantially limits a major life activity or a record 
of such an impairment. In these cases, the evaluation of coverage can be 
made solely under the ``regarded as'' prong of the definition of 
``disability,'' which does not require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. An individual may choose, however, to proceed under the 
``actual disability'' or ``record of'' prong regardless of whether the 
individual is challenging a public accommodation's failure to provide 
reasonable modifications.
    (b)(1) Physical or mental impairment means:
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more body systems, such as: 
Neurological, musculoskeletal, special sense organs, respiratory 
(including speech organs), cardiovascular, reproductive, digestive,

[[Page 746]]

genitourinary, immune, circulatory, hemic, lymphatic, skin, and 
endocrine; or
    (ii) Any mental or psychological disorder such as intellectual 
disability, organic brain syndrome, emotional or mental illness, and 
specific learning disability.
    (2) Physical or mental impairment includes, but is not limited to, 
contagious and noncontagious diseases and conditions such as the 
following: Orthopedic, visual, speech and hearing impairments, and 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, intellectual disability, emotional 
illness, dyslexia and other specific learning disabilities, Attention 
Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection 
(whether symptomatic or asymptomatic), tuberculosis, drug addiction, and 
alcoholism.
    (3) Physical or mental impairment does not include homosexuality or 
bisexuality.
    (c)(1) Major life activities include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, writing, communicating, interacting with others, and working; 
and
    (ii) The operation of a major bodily function, such as the functions 
of the immune system, special sense organs and skin, normal cell growth, 
and digestive, genitourinary, bowel, bladder, neurological, brain, 
respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, 
musculoskeletal, and reproductive systems. The operation of a major 
bodily function includes the operation of an individual organ within a 
body system.
    (2) Rules of construction. (i) In determining whether an impairment 
substantially limits a major life activity, the term major shall not be 
interpreted strictly to create a demanding standard.
    (ii) Whether an activity is a major life activity is not determined 
by reference to whether it is of central importance to daily life.
    (d) Substantially limits--(1) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of the ADA. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) The primary object of attention in cases brought under title 
III of the ADA should be whether public accommodations have complied 
with their obligations and whether discrimination has occurred, not the 
extent to which an individual's impairment substantially limits a major 
life activity. Accordingly, the threshold issue of whether an impairment 
substantially limits a major life activity should not demand extensive 
analysis.
    (iii) An impairment that substantially limits one major life 
activity does not need to limit other major life activities in order to 
be considered a substantially limiting impairment.
    (iv) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (v) An impairment is a disability within the meaning of this part if 
it substantially limits the ability of an individual to perform a major 
life activity as compared to most people in the general population. An 
impairment does not need to prevent, or significantly or severely 
restrict, the individual from performing a major life activity in order 
to be considered substantially limiting. Nonetheless, not every 
impairment will constitute a disability within the meaning of this 
section.
    (vi) The determination of whether an impairment substantially limits 
a major life activity requires an individualized assessment. However, in 
making this assessment, the term ``substantially limits'' shall be 
interpreted and applied to require a degree of functional limitation 
that is lower than the standard for substantially limits applied prior 
to the ADA Amendments Act.

[[Page 747]]

    (vii) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph (d)(1) is 
intended, however, to prohibit or limit the presentation of scientific, 
medical, or statistical evidence in making such a comparison where 
appropriate.
    (viii) The determination of whether an impairment substantially 
limits a major life activity shall be made without regard to the 
ameliorative effects of mitigating measures. However, the ameliorative 
effects of ordinary eyeglasses or contact lenses shall be considered in 
determining whether an impairment substantially limits a major life 
activity. Ordinary eyeglasses or contact lenses are lenses that are 
intended to fully correct visual acuity or to eliminate refractive 
error.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (f)(2) of this section does not apply to 
the ``actual disability'' or ``record of'' prongs of the definition of 
``disability.'' The effects of an impairment lasting or expected to last 
less than six months can be substantially limiting within the meaning of 
this section for establishing an actual disability or a record of a 
disability.
    (2) Predictable assessments. (i) The principles set forth in the 
rules of construction in this section are intended to provide for more 
generous coverage and application of the ADA's prohibition on 
discrimination through a framework that is predictable, consistent, and 
workable for all individuals and entities with rights and 
responsibilities under the ADA.
    (ii) Applying these principles, the individualized assessment of 
some types of impairments will, in virtually all cases, result in a 
determination of coverage under paragraph (a)(1)(i) of this section (the 
``actual disability'' prong) or paragraph (a)(1)(ii) of this section 
(the ``record of'' prong). Given their inherent nature, these types of 
impairments will, as a factual matter, virtually always be found to 
impose a substantial limitation on a major life activity. Therefore, 
with respect to these types of impairments, the necessary individualized 
assessment should be particularly simple and straightforward.
    (iii) For example, applying these principles it should easily be 
concluded that the types of impairments set forth in paragraphs 
(d)(2)(iii)(A) through (K) of this section will, at a minimum, 
substantially limit the major life activities indicated. The types of 
impairments described in this paragraph may substantially limit 
additional major life activities (including major bodily functions) not 
explicitly listed in paragraphs (d)(2)(iii)(A) through (K).
    (A) Deafness substantially limits hearing;
    (B) Blindness substantially limits seeing;
    (C) Intellectual disability substantially limits brain function;
    (D) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (E) Autism substantially limits brain function;
    (F) Cancer substantially limits normal cell growth;
    (G) Cerebral palsy substantially limits brain function;
    (H) Diabetes substantially limits endocrine function;
    (I) Epilepsy, muscular dystrophy, and multiple sclerosis each 
substantially limits neurological function;
    (J) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (K) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia each substantially limits brain function.
    (3) Condition, manner, or duration.(i) At all times taking into 
account the principles set forth in the rules of construction, in 
determining whether an individual is substantially limited in a major 
life activity, it may be useful in appropriate cases to consider, as 
compared to most people in the general population, the conditions under 
which the individual performs the major life activity; the manner in 
which the individual performs the major life activity;

[[Page 748]]

or the duration of time it takes the individual to perform the major 
life activity, or for which the individual can perform the major life 
activity.
    (ii) Consideration of facts such as condition, manner, or duration 
may include, among other things, consideration of the difficulty, effort 
or time required to perform a major life activity; pain experienced when 
performing a major life activity; the length of time a major life 
activity can be performed; or the way an impairment affects the 
operation of a major bodily function. In addition, the non-ameliorative 
effects of mitigating measures, such as negative side effects of 
medication or burdens associated with following a particular treatment 
regimen, may be considered when determining whether an individual's 
impairment substantially limits a major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' or ``record of'' prongs of the definition of 
``disability,'' the focus is on how a major life activity is 
substantially limited, and not on what outcomes an individual can 
achieve. For example, someone with a learning disability may achieve a 
high level of academic success, but may nevertheless be substantially 
limited in one or more major life activities, including, but not limited 
to, reading, writing, speaking, or learning because of the additional 
time or effort he or she must spend to read, write, speak, or learn 
compared to most people in the general population.
    (iv) Given the rules of construction set forth in this section, it 
may often be unnecessary to conduct an analysis involving most or all of 
the facts related to condition, manner, or duration. This is 
particularly true with respect to impairments such as those described in 
paragraph (d)(2)(iii) of this section, which by their inherent nature 
should be easily found to impose a substantial limitation on a major 
life activity, and for which the individualized assessment should be 
particularly simple and straightforward.
    (4) Mitigating measures include, but are not limited to:
    (i) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable modifications or auxiliary aids or services as 
defined in this regulation;
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (e) Has a record of such an impairment. (1) An individual has a 
record of such an impairment if the individual has a history of, or has 
been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by the ADA and should 
not demand extensive analysis. An individual will be considered to fall 
within this prong of the definition of ``disability'' if the individual 
has a history of an impairment that substantially limited one or more 
major life activities when compared to most people in the general 
population, or was misclassified as having had such an impairment. In 
determining whether an impairment substantially limited a major life 
activity, the principles articulated in paragraph (d)(1) of this section 
apply.
    (3) Reasonable modification. An individual with a record of a 
substantially limiting impairment may be entitled to a reasonable 
modification if needed and related to the past disability.
    (f) Is regarded as having such an impairment. The following 
principles apply under the ``regarded as'' prong of the definition of 
``disability'' (paragraph (a)(1)(iii) of this section):
    (1) Except as set forth in paragraph (f)(2) of this section, an 
individual is ``regarded as having such an impairment'' if the 
individual is subjected to a prohibited action because of an actual or 
perceived physical or mental

[[Page 749]]

impairment, whether or not that impairment substantially limits, or is 
perceived to substantially limit, a major life activity, even if the 
public accommodation asserts, or may or does ultimately establish, a 
defense to the action prohibited by the ADA.
    (2) An individual is not ``regarded as having such an impairment'' 
if the public accommodation demonstrates that the impairment is, 
objectively, both ``transitory'' and ``minor.'' A public accommodation 
may not defeat ``regarded as'' coverage of an individual simply by 
demonstrating that it subjectively believed the impairment was 
transitory and minor; rather, the public accommodation must demonstrate 
that the impairment is (in the case of an actual impairment) or would be 
(in the case of a perceived impairment), objectively, both 
``transitory'' and ``minor.'' For purposes of this section, 
``transitory'' is defined as lasting or expected to last six months or 
less.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under title III of the ADA only when an individual proves 
that a public accommodation discriminated on the basis of disability 
within the meaning of title III of the ADA, 42 U.S.C. 12181-12189.
    (g) Exclusions. The term ``disability'' does not include--
    (1) Transvestism, transsexualism, pedophilia, exhibitionism, 
voyeurism, gender identity disorders not resulting from physical 
impairments, or other sexual behavior disorders;
    (2) Compulsive gambling, kleptomania, or pyromania; or
    (3) Psychoactive substance use disorders resulting from current 
illegal use of drugs.

[AG Order 3702-2016, 81 FR 53240, Aug. 11, 2016]



Secs. 36.106-36.199  [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.
    (c) Claims of no disability. Nothing in this part shall provide the 
basis for a claim that an individual without a disability was subject to 
discrimination because of a lack of disability, including a claim that 
an individual with a disability was granted a reasonable modification 
that was denied to an individual without a disability.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
3702-2016, 81 FR 53243, Aug. 11, 2016]



Sec. 36.202  Activities.

    (a) Denial of participation. A public accommodation shall not 
subject an individual or class of individuals on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, to a denial of 
the opportunity of the individual or class to participate in or benefit 
from the goods, services, facilities, privileges, advantages, or 
accommodations of a place of public accommodation.
    (b) Participation in unequal benefit. A public accommodation shall 
not afford an individual or class of individuals, on the basis of a 
disability or disabilities of such individual or class, directly, or 
through contractual, licensing, or other arrangements, with the 
opportunity to participate in or benefit from a good, service, facility, 
privilege, advantage, or accommodation that is not equal to that 
afforded to other individuals.
    (c) Separate benefit. A public accommodation shall not provide an 
individual or class of individuals, on the basis of a disability or 
disabilities of such individual or class, directly, or

[[Page 750]]

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 751]]



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) 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 or the 
provision of auxiliary aids or services will mitigate the risk.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56251, Sept. 15, 2010]



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 752]]

    (c) If the 2010 Standards reduce the technical requirements or the 
number of required accessible elements below the number required by the 
1991 Standards, the technical requirements or the number of accessible 
elements in a facility subject to this part may be reduced in accordance 
with the requirements of the 2010 Standards.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56251, Sept. 15, 2010]



Sec. 36.212  Insurance.

    (a) This part shall not be construed to prohibit or restrict--
    (1) An insurer, hospital or medical service company, health 
maintenance organization, or any agent, or entity that administers 
benefit plans, or similar organizations from underwriting risks, 
classifying risks, or administering such risks that are based on or not 
inconsistent with State law; or
    (2) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that are based on underwriting risks, classifying risks, or 
administering such risks that are based on or not inconsistent with 
State law; or
    (3) A person or organization covered by this part from establishing, 
sponsoring, observing or administering the terms of a bona fide benefit 
plan that is not subject to State laws that regulate insurance.
    (b) Paragraphs (a) (1), (2), and (3) of this section shall not be 
used as a subterfuge to evade the purposes of the Act or this part.
    (c) A public accommodation shall not refuse to serve an individual 
with a disability because its insurance company conditions coverage or 
rates on the absence of individuals with disabilities.



Sec. 36.213  Relationship of subpart B to subparts C and D of 
this part.

    Subpart B of this part sets forth the general principles of 
nondiscrimination applicable to all entities subject to this part. 
Subparts C and D of this part provide guidance on the application of the 
statute to specific situations. The specific provisions, including the 
limitations on those provisions, control over the general provisions in 
circumstances where both specific and general provisions apply.



Secs. 36.214-36.299  [Reserved]



                     Subpart C_Specific Requirements



Sec. 36.301  Eligibility criteria.

    (a) General. A public accommodation shall not impose or apply 
eligibility criteria that screen out or tend to screen out an individual 
with a disability or any class of individuals with disabilities from 
fully and equally enjoying any goods, services, facilities, privileges, 
advantages, or accommodations, unless such criteria can be shown to be 
necessary for the provision of the goods, services, facilities, 
privileges, advantages, or accommodations being offered.
    (b) Safety. A public accommodation may impose legitimate safety 
requirements that are necessary for safe operation. Safety requirements 
must be based on actual risks and not on mere speculation, stereotypes, 
or generalizations about individuals with disabilities.
    (c) Charges. A public accommodation may not impose a surcharge on a 
particular individual with a disability or 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.

[[Page 753]]

    (b) Specialties--(1) General. A public accommodation may refer an 
individual with a disability to another public accommodation, if that 
individual is seeking, or requires, treatment or services outside of the 
referring public accommodation's area of specialization, and if, in the 
normal course of its operations, the referring public accommodation 
would make a similar referral for an individual without a disability who 
seeks or requires the same treatment or services.
    (2) Illustration--medical specialties. A health care provider may 
refer an individual with a disability to another provider, if that 
individual is seeking, or requires, treatment or services outside of the 
referring provider's area of specialization, and if the referring 
provider would make a similar referral for an individual without a 
disability who seeks or requires the same treatment or services. A 
physician who specializes in treating only a particular condition cannot 
refuse to treat an individual with a disability for that condition, but 
is not required to treat the individual for a different condition.
    (c) Service animals--(1) General. Generally, a public accommodation 
shall modify policies, practices, or procedures to permit the use of a 
service animal by an individual with a disability.
    (2) Exceptions. A public accommodation may ask an individual with a 
disability to remove a service animal from the premises if:
    (i) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (ii) The animal is not housebroken.
    (3) If an animal is properly excluded. If a public accommodation 
properly excludes a service animal under Sec. 36.302(c)(2), it shall 
give the individual with a disability the opportunity to obtain goods, 
services, and accommodations without having the service animal on the 
premises.
    (4) Animal under handler's control. A service animal shall be under 
the control of its handler. A service animal shall have a harness, 
leash, or other tether, unless either the handler is unable because of a 
disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case the 
service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (5) Care or supervision. A public accommodation is not responsible 
for the care or supervision of a service animal.
    (6) Inquiries. A public accommodation shall not ask about the nature 
or extent of a person's disability, but may make two inquiries to 
determine whether an animal qualifies as a service animal. A public 
accommodation may ask if the animal is required because of a disability 
and what work or task the animal has been trained to perform. A public 
accommodation shall not require documentation, such as proof that the 
animal has been certified, trained, or licensed as a service animal. 
Generally, a public accommodation may not make these inquiries about a 
service animal when it is readily apparent that an animal is trained to 
do work or perform tasks for an individual with a disability (e.g., the 
dog is observed guiding an individual who is blind or has low vision, 
pulling a person's wheelchair, or providing assistance with stability or 
balance to an individual with an observable mobility disability).
    (7) Access to areas of a public accommodation. Individuals with 
disabilities shall be permitted to be accompanied by their service 
animals in all areas of a place of public accommodation where members of 
the public, program participants, clients, customers, patrons, or 
invitees, as relevant, are allowed to go.
    (8) Surcharges. A public accommodation shall not ask or require an 
individual with a disability to pay a surcharge, even if people 
accompanied by pets are required to pay fees, or to comply with other 
requirements generally not applicable to people without pets. If a 
public accommodation normally charges individuals for the damage they 
cause, an individual with a disability may be charged for damage caused 
by his or her service animal.
    (9) Miniature horses. (i) A public accommodation shall make 
reasonable modifications in policies, practices, or

[[Page 754]]

procedures to permit the use of a miniature horse by an individual with 
a disability if the miniature horse has been individually trained to do 
work or perform tasks for the benefit of the individual with a 
disability.
    (ii) Assessment factors. In determining whether reasonable 
modifications in policies, practices, or procedures can be made to allow 
a miniature horse into a specific facility, a public accommodation shall 
consider--
    (A) The type, size, and weight of the miniature horse and whether 
the facility can accommodate these features;
    (B) Whether the handler has sufficient control of the miniature 
horse;
    (C) Whether the miniature horse is housebroken; and
    (D) Whether the miniature horse's presence in a specific facility 
compromises legitimate safety requirements that are necessary for safe 
operation.
    (iii) Other requirements. Sections 36.302(c)(3) through (c)(8), 
which apply to service animals, shall also apply to miniature horses.
    (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.
    (e)(1) Reservations made by places of lodging. A public 
accommodation that owns, leases (or leases to), or operates a place of 
lodging shall, with respect to reservations made by any means, including 
by telephone, in-person, or through a third party--
    (i) Modify its policies, practices, or procedures to ensure that 
individuals with disabilities can make reservations for accessible guest 
rooms during the same hours and in the same manner as individuals who do 
not need accessible rooms;
    (ii) Identify and describe accessible features in the hotels and 
guest rooms offered through its reservations service in enough detail to 
reasonably permit individuals with disabilities to assess independently 
whether a given hotel or guest room meets his or her accessibility 
needs;
    (iii) Ensure that accessible guest rooms are held for use by 
individuals with disabilities until all other guest rooms of that type 
have been rented and the accessible room requested is the only remaining 
room of that type;
    (iv) Reserve, upon request, accessible guest rooms or specific types 
of guest rooms and ensure that the guest rooms requested are blocked and 
removed from all reservations systems; and
    (v) Guarantee that the specific accessible guest room reserved 
through its reservations service is held for the reserving customer, 
regardless of whether a specific room is held in response to 
reservations made by others.
    (2) Exception. The requirements in paragraphs (iii), (iv), and (v) 
of this section do not apply to reservations for individual guest rooms 
or other units not owned or substantially controlled by the entity that 
owns, leases, or operates the overall facility.
    (3) Compliance date. The requirements in this section will apply to 
reservations made on or after March 15, 2012.
    (f) Ticketing. (1)(i) For the purposes of this section, ``accessible 
seating'' is defined as wheelchair spaces and companion seats that 
comply with sections 221 and 802 of the 2010 Standards along with any 
other seats required to be offered for sale to the individual with a 
disability pursuant to paragraph (4) of this section.
    (ii) Ticket sales. A public accommodation that sells tickets for a 
single event or series of events shall modify its policies, practices, 
or procedures to ensure that individuals with disabilities have an equal 
opportunity to purchase tickets for accessible seating--
    (A) During the same hours;
    (B) During the same stages of ticket sales, including, but not 
limited to, pre-sales, promotions, lotteries, wait-lists, and general 
sales;
    (C) Through the same methods of distribution;
    (D) In the same types and numbers of ticketing sales outlets, 
including telephone service, in-person ticket sales at

[[Page 755]]

the facility, or third-party ticketing services, as other patrons; and
    (E) Under the same terms and conditions as other tickets sold for 
the same event or series of events.
    (2) Identification of available accessible seating. A public 
accommodation that sells or distributes tickets for a single event or 
series of events shall, upon inquiry--
    (i) Inform individuals with disabilities, their companions, and 
third parties purchasing tickets for accessible seating on behalf of 
individuals with disabilities of the locations of all unsold or 
otherwise available accessible seating for any ticketed event or events 
at the facility;
    (ii) Identify and describe the features of available accessible 
seating in enough detail to reasonably permit an individual with a 
disability to assess independently whether a given accessible seating 
location meets his or her accessibility needs; and
    (iii) Provide materials, such as seating maps, plans, brochures, 
pricing charts, or other information, that identify accessible seating 
and information relevant thereto with the same text or visual 
representations as other seats, if such materials are provided to the 
general public.
    (3) Ticket prices. The price of tickets for accessible seating for a 
single event or series of events shall not be set higher than the price 
for other tickets in the same seating section for the same event or 
series of events. Tickets for accessible seating must be made available 
at all price levels for every event or series of events. If tickets for 
accessible seating at a particular price level cannot be provided 
because barrier removal in an existing facility is not readily 
achievable, then the percentage of tickets for accessible seating that 
should have been available at that price level but for the barriers 
(determined by the ratio of the total number of tickets at that price 
level to the total number of tickets in the assembly area) shall be 
offered for purchase, at that price level, in a nearby or similar 
accessible location.
    (4) Purchasing multiple tickets. (i) General. For each ticket for a 
wheelchair space purchased by an individual with a disability or a 
third-party purchasing such a ticket at his or her request, a public 
accommodation shall make available for purchase three additional tickets 
for seats in the same row that are contiguous with the wheelchair space, 
provided that at the time of purchase there are three such seats 
available. A public accommodation is not required to provide more than 
three contiguous seats for each wheelchair space. Such seats may include 
wheelchair spaces.
    (ii) Insufficient additional contiguous seats available. If patrons 
are allowed to purchase at least four tickets, and there are fewer than 
three such additional contiguous seat tickets available for purchase, a 
public accommodation shall offer the next highest number of such seat 
tickets available for purchase and shall make up the difference by 
offering tickets for sale for seats that are as close as possible to the 
accessible seats.
    (iii) Sales limited to fewer than four tickets. If a public 
accommodation limits sales of tickets to fewer than four seats per 
patron, then the public accommodation is only obligated to offer as many 
seats to patrons with disabilities, including the ticket for the 
wheelchair space, as it would offer to patrons without disabilities.
    (iv) Maximum number of tickets patrons may purchase exceeds four. If 
patrons are allowed to purchase more than four tickets, a public 
accommodation shall allow patrons with disabilities to purchase up to 
the same number of tickets, including the ticket for the wheelchair 
space.
    (v) Group sales. If a group includes one or more individuals who 
need to use accessible seating because of a mobility disability or 
because their disability requires the use of the accessible features 
that are provided in accessible seating, the group shall be placed in a 
seating area with accessible seating so that, if possible, the group can 
sit together. If it is necessary to divide the group, it should be 
divided so that the individuals in the group who use wheelchairs are not 
isolated from their group.
    (5) Hold and release of tickets for accessible seating. (i) Tickets 
for accessible seating may be released for sale in certain

[[Page 756]]

limited circumstances. A public accommodation may release unsold tickets 
for accessible seating for sale to individuals without disabilities for 
their own use for a single event or series of events only under the 
following circumstances--
    (A) When all non-accessible tickets (excluding luxury boxes, club 
boxes, or suites) have been sold;
    (B) When all non-accessible tickets in a designated seating area 
have been sold and the tickets for accessible seating are being released 
in the same designated area; or
    (C) When all non-accessible tickets in a designated price category 
have been sold and the tickets for accessible seating are being released 
within the same designated price category.
    (ii) No requirement to release accessible tickets. Nothing in this 
paragraph requires a facility to release tickets for accessible seating 
to individuals without disabilities for their own use.
    (iii) Release of series-of-events tickets on a series-of-events 
basis. (A) Series-of-events tickets sell-out when no ownership rights 
are attached. When series-of-events tickets are sold out and a public 
accommodation releases and sells accessible seating to individuals 
without disabilities for a series of events, the public accommodation 
shall establish a process that prevents the automatic reassignment of 
the accessible seating to such ticket holders for future seasons, future 
years, or future series, so that individuals with disabilities who 
require the features of accessible seating and who become newly eligible 
to purchase tickets when these series-of-events tickets are available 
for purchase have an opportunity to do so.
    (B) Series-of-events tickets when ownership rights are attached. 
When series-of-events tickets with an ownership right in accessible 
seating areas are forfeited or otherwise returned to a public 
accommodation, the public accommodation shall make reasonable 
modifications in its policies, practices, or procedures to afford 
individuals with mobility disabilities or individuals with disabilities 
that require the features of accessible seating an opportunity to 
purchase such tickets in accessible seating areas.
    (6) Ticket transfer. Individuals with disabilities who hold tickets 
for accessible seating shall be permitted to transfer tickets to third 
parties under the same terms and conditions and to the same extent as 
other spectators holding the same type of tickets, whether they are for 
a single event or series of events.
    (7) Secondary ticket market. (i) A public accommodation shall modify 
its policies, practices, or procedures to ensure that an individual with 
a disability may use a ticket acquired in the secondary ticket market 
under the same terms and conditions as other individuals who hold a 
ticket acquired in the secondary ticket market for the same event or 
series of events.
    (ii) If an individual with a disability acquires a ticket or series 
of tickets to an inaccessible seat through the secondary market, a 
public accommodation shall make reasonable modifications to its 
policies, practices, or procedures to allow the individual to exchange 
his ticket for one to an accessible seat in a comparable location if 
accessible seating is vacant at the time the individual presents the 
ticket to the public accommodation.
    (8) Prevention of fraud in purchase of tickets for accessible 
seating. A public accommodation may not require proof of disability, 
including, for example, a doctor's note, before selling tickets for 
accessible seating.
    (i) Single-event tickets. For the sale of single-event tickets, it 
is permissible to inquire whether the individual purchasing the tickets 
for accessible seating has a mobility disability or a disability that 
requires the use of the accessible features that are provided in 
accessible seating, or is purchasing the tickets for an individual who 
has a mobility disability or a disability that requires the use of the 
accessible features that are provided in the accessible seating.
    (ii) Series-of-events tickets. For series-of-events tickets, it is 
permissible to ask the individual purchasing the tickets for accessible 
seating to attest in writing that the accessible seating is for a person 
who has a mobility disability or a disability that requires the use of 
the accessible features that are provided in the accessible seating.

[[Page 757]]

    (iii) Investigation of fraud. A public accommodation may investigate 
the potential misuse of accessible seating where there is good cause to 
believe that such seating has been purchased fraudulently.
    (g) Reasonable modifications for individuals ``regarded as'' having 
a disability. A public accommodation is not required to provide a 
reasonable modification to an individual who meets the definition of 
``disability'' solely under the ``regarded as'' prong of the definition 
of ``disability'' at Sec. 36.105(a)(1)(iii).

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56251, Sept. 15, 2010; 76 FR 13287, Mar. 11, 2011; 
AG Order 3702-2016, 81 FR 53243, Aug. 11, 2016]



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 on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products and 
systems, including text telephones (TTYs), videophones, and captioned 
telephones, or equally effective telecommunications devices; videotext 
displays; accessible electronic and information technology; or other 
effective methods of making aurally delivered information available to 
individuals who are deaf or hard of hearing;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    (c) Effective communication. (1) A public accommodation shall 
furnish appropriate auxiliary aids and services where necessary to 
ensure effective communication with individuals with disabilities. This 
includes an obligation to provide effective communication to companions 
who are individuals with disabilities.
    (i) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to, or 
participating in, the goods, services, facilities, privileges, 
advantages, or accommodations of a public accommodation, who, along with 
such individual, is an appropriate person with whom the public 
accommodation should communicate.
    (ii) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and complexity 
of the communication involved; and the context in which the 
communication is taking place. A public accommodation should consult 
with individuals with disabilities whenever possible to determine what 
type of auxiliary aid is needed to ensure effective communication, but 
the ultimate decision as to what measures to take rests with the public 
accommodation, provided that the method chosen results in effective 
communication. In order to be effective, auxiliary aids and services 
must be provided in accessible formats, in a timely manner, and in such 
a way as to protect the privacy and independence of the individual with 
a disability.
    (2) A public accommodation shall not require an individual with a 
disability

[[Page 758]]

to bring another individual to interpret for him or her.
    (3) A public accommodation shall not rely on an adult accompanying 
an individual with a disability to interpret or facilitate 
communication, except--
    (i) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (ii) Where the individual with a disability specifically requests 
that the accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (4) A public accommodation shall not rely on a minor child to 
interpret or facilitate communication, except in an emergency involving 
an imminent threat to the safety or welfare of an individual or the 
public where there is no interpreter available.
    (d) Telecommunications. (1) When a public accommodation uses an 
automated-attendant system, including, but not limited to, voicemail and 
messaging, or an interactive voice response system, for receiving and 
directing incoming telephone calls, that system must provide effective 
real-time communication with individuals using auxiliary aids and 
services, including text telephones (TTYs) and all forms of FCC-approved 
telecommunications relay systems, including Internet-based relay 
systems.
    (2) A public accommodation that offers a customer, client, patient, 
or participant the opportunity to make outgoing telephone calls using 
the public accommodation's equipment on more than an incidental 
convenience basis shall make available accessible public telephones, 
TTYs, or other telecommunications products and systems for use by an 
individual who is deaf or hard of hearing, or has a speech impairment.
    (3) A public accommodation may use relay services in place of direct 
telephone communication for receiving or making telephone calls incident 
to its operations.
    (4) A public accommodation shall respond to telephone calls from a 
telecommunications relay service established under title IV of the ADA 
in the same manner that it responds to other telephone calls.
    (5) This part does not require a public accommodation to use a TTY 
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) Video remote interpreting (VRI) services. A public accommodation 
that chooses to provide qualified interpreters via VRI service shall 
ensure that it provides--
    (1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;
    (2) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of his or her 
body position;
    (3) A clear, audible transmission of voices; and
    (4) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.
    (g) Movie theater captioning and audio description--(1) Definitions. 
For the purposes of this paragraph (g)--
    (i) Analog movie means a movie exhibited in analog film format.
    (ii) Audio description means the spoken narration of a movie's key 
visual elements, such as the action, settings, facial expressions, 
costumes, and scene changes. Audio description generally requires the 
use of an audio description device for delivery to a patron.
    (iii) Audio description device means the individual device that a 
patron may use at any seat to hear audio description.
    (iv) Captioning device means the individual device that a patron may 
use at any seat to view closed movie captioning.

[[Page 759]]

    (v) Closed movie captioning means the written display of a movie's 
dialogue and non-speech information, such as music, the identity of the 
character who is speaking, and other sounds or sound effects. Closed 
movie captioning generally requires the use of a captioning device for 
delivery of the captions to the patron.
    (vi) Digital movie means a movie exhibited in digital cinema format.
    (vii) Movie theater means a facility, other than a drive-in theater, 
that is owned, leased by, leased to, or operated by a public 
accommodation and that contains one or more auditoriums that are used 
primarily for the purpose of showing movies to the public for a fee.
    (viii) Open movie captioning means the written on-screen display of 
a movie's dialogue and non-speech information, such as music, the 
identity of the character who is speaking, and other sounds and sound 
effects.
    (2) General. A public accommodation shall ensure that its movie 
theater auditoriums provide closed movie captioning and audio 
description whenever they exhibit a digital movie that is distributed 
with such features. Application of the requirements of paragraph (g) of 
this section is deferred for any movie theater auditorium that exhibits 
analog movies exclusively, but may be addressed in a future rulemaking.
    (3) Minimum requirements for captioning devices. A public 
accommodation shall provide a minimum number of fully operational 
captioning devices at its movie theaters in accordance with the 
following Table:

------------------------------------------------------------------------
                                                              Minimum
                                                             required
 Number of movie theater auditoriums exhibiting digital      number of
                         movies                             captioning
                                                              devices
------------------------------------------------------------------------
1.......................................................               4
2-7.....................................................               6
8-15....................................................               8
16 +....................................................              12
------------------------------------------------------------------------

    (4) Minimum requirements for audio description devices. (i) A public 
accommodation shall provide at its movie theaters a minimum of one fully 
operational audio description device for every two movie theater 
auditoriums exhibiting digital movies and no less than two devices per 
movie theater. When calculation of the required number of devices 
results in a fraction, the next greater whole number of devices shall be 
provided.
    (ii) A public accommodation may comply with the requirements in 
paragraph (g)(4)(i) of this section by using the existing assistive 
listening receivers that the public accommodation is already required to 
provide at its movie theaters in accordance with Table 219.3 of the 2010 
Standards, if those receivers have a minimum of two channels available 
for sound transmission to patrons.
    (5) Performance requirements for captioning devices and audio 
description devices. Each captioning device and each audio description 
device must be properly maintained by the movie theater to ensure that 
each device is fully operational, available to patrons in a timely 
manner, and easily usable by patrons. Captioning devices must be 
adjustable so that the captions can be viewed as if they are on or near 
the movie screen, and must provide clear, sharp images in order to 
ensure readability of captions.
    (6) Alternative technologies. (i) A public accommodation may meet 
its obligation to provide captioning and audio description in its movie 
theaters to persons with disabilities through any technology so long as 
that technology provides communication as effective as that provided to 
movie patrons without disabilities.
    (ii) A public accommodation may use open movie captioning as an 
alternative to complying with the requirements specified in paragraph 
(g)(3) of this section, either by providing open movie captioning at all 
showings of all movies available with captioning, or whenever requested 
by or for an individual who is deaf or hard of hearing prior to the 
start of the movie.
    (7) Compliance date for providing captioning and audio description. 
(i) A public accommodation must comply with the requirements in 
paragraphs (g)(2)-(6) of this section in its movie theaters that exhibit 
digital movies by June 2, 2018.
    (ii) If a public accommodation converts a movie theater auditorium 
from an analog projection system to a system that allows it to exhibit 
digital movies after December 2, 2016, then

[[Page 760]]

that auditorium must comply with the requirements in paragraph (g) of 
this section by December 2, 2018, or within 6 months of that 
auditorium's complete installation of a digital projection system, 
whichever is later.
    (8) Notice. On or after January 17, 2017, whenever a public 
accommodation provides captioning and audio description in a movie 
theater auditorium exhibiting digital movies, it shall ensure that all 
notices of movie showings and times at the box office and other 
ticketing locations, on Web sites and mobile apps, in newspapers, and 
over the telephone, inform potential patrons of the movies or showings 
that are available with captioning and audio description. This paragraph 
does not impose any obligation on third parties that provide information 
about movie theater showings and times, so long as the third party is 
not part of or subject to the control of the public accommodation.
    (9) Operational requirements. On or after January 17, 2017, whenever 
a public accommodation provides captioning and audio description in a 
movie theater auditorium exhibiting digital movies, it shall ensure that 
at least one employee is available at the movie theater to assist 
patrons seeking or using captioning or audio description whenever a 
digital movie is exhibited with these features. Such assistance includes 
the ability to--
    (i) Locate all necessary equipment that is stored and quickly 
activate the equipment and any other ancillary systems required for the 
use of the captioning devices and audio description devices;
    (ii) Operate and address problems with all captioning and audio 
description equipment prior to and during the movie;
    (iii) Turn on open movie captions if the movie theater is relying on 
open movie captioning to meet the requirements of paragraph (g)(3) of 
this section; and
    (iv) Communicate effectively with individuals with disabilities, 
including those who are deaf or hard of hearing or who are blind or have 
low vision, about how to use, operate, and resolve problems with 
captioning devices and audio description devices.
    (10) This section does not require the use of open movie captioning 
as a means of compliance with paragraph (g) of this section, even if 
providing closed movie captioning for digital movies would be an undue 
burden.
    (h) Alternatives. If provision of a particular auxiliary aid or 
service by a public accommodation would result in a fundamental 
alteration in the nature of the goods, services, facilities, privileges, 
advantages, or accommodations being offered or in an undue burden, i.e., 
significant difficulty or expense, the public accommodation shall 
provide an alternative auxiliary aid or service, if one exists, that 
would not result in an alteration or such burden but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the goods, services, facilities, privileges, 
advantages, or accommodations offered by the public accommodation.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56253, Sept. 15, 2010; AG Order 3779-2016, 81 FR 
87378, Dec. 2, 2016]



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;

[[Page 761]]

    (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)(3) of this section, 
measures taken to comply with the barrier removal requirements of this 
section shall comply with the applicable requirements for alterations in 
Sec. 36.402 and Secs. 36.404 through 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.
    (d)(2)(i) Safe harbor. Elements that have not been altered in 
existing facilities on or after March 15, 2012 and that comply with the 
corresponding technical and scoping specifications for those elements in 
the 1991 Standards are not required to be modified in order to comply 
with the requirements set forth in the 2010 Standards.
    (ii)(A) Before March 15, 2012, elements in existing facilities that 
do not comply with the corresponding technical and scoping 
specifications for those elements in the 1991 Standards must be modified 
to the extent readily achievable to comply with either the 1991 
Standards or the 2010 Standards. Noncomplying newly constructed and 
altered elements may also be subject to the requirements of 
Sec. 36.406(a)(5).
    (B) On or after March 15, 2012, elements in existing facilities that 
do not comply with the corresponding technical and scoping 
specifications for those elements in the 1991 Standards must be modified 
to the extent readily achievable to comply with the requirements set 
forth in the 2010 Standards. Noncomplying newly constructed and altered 
elements may also be subject to the requirements of Sec. 36.406(a)(5).
    (iii) The safe harbor provided in Sec. 36.304(d)(2)(i) does not 
apply to those elements in existing facilities that are subject to 
supplemental requirements (i.e., elements for which there are neither 
technical nor scoping specifications in the 1991 Standards), and 
therefore those elements must be modified to the extent readily 
achievable to comply with the 2010 Standards. Noncomplying newly 
constructed and altered elements may also be subject to

[[Page 762]]

the requirements of Sec. 36.406(a)(5). Elements in the 2010 Standards 
not eligible for the element-by-element safe harbor are identified as 
follows--
    (A) Residential facilities and dwelling units, sections 233 and 809.
    (B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.
    (C) Recreational boating facilities, sections 235 and 1003; 
206.2.10.
    (D) Exercise machines and equipment, sections 236 and 1004; 
206.2.13.
    (E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.
    (F) Golf facilities, sections 238 and 1006; 206.2.15.
    (G) Miniature golf facilities, sections 239 and 1007; 206.2.16.
    (H) Play areas, sections 240 and 1008; 206.2.17.
    (I) Saunas and steam rooms, sections 241 and 612.
    (J) Swimming pools, wading pools, and spas, sections 242 and 1009.
    (K) Shooting facilities with firing positions, sections 243 and 
1010.
    (L) Miscellaneous. (1) Team or player seating, section 221.2.1.4.
    (2) Accessible route to bowling lanes, section 206.2.11.
    (3) Accessible route in court sports facilities, section 206.2.12.
    (3) If, as a result of compliance with the alterations requirements 
specified in paragraph (d)(1) and (d)(2) of this section, the measures 
required to remove a barrier would not be readily achievable, a public 
accommodation may take other readily achievable measures to remove the 
barrier that do not fully comply with the specified requirements. Such 
measures include, for example, providing a ramp with a steeper slope or 
widening a doorway to a narrower width than that mandated by the 
alterations requirements. No measure shall be taken, however, that poses 
a significant risk to the health or safety of individuals with 
disabilities or others.

                       Appendix to Sec. 36.304(d)

                  Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor
----------------------------------------------------------------------------------------------------------------
                  Date                                    Requirement                    Applicable standards
----------------------------------------------------------------------------------------------------------------
Before March 15, 2012...................  Elements that do not comply with the        1991 Standards or 2010
                                           requirements for those elements in the      Standards.
                                           1991 Standards must be modified to the
                                           extent readily achievable.
                                          Note: Noncomplying newly constructed and
                                           altered elements may also be subject to
                                           the requirements of Sec. 36.406(a)(5)..
On or after March 15, 2012..............  Elements that do not comply with the        2010 Standards.
                                           requirements for those elements in the
                                           1991 Standards or that do not comply with
                                           the supplemental requirements (i.e.,
                                           elements for which there are neither
                                           technical nor scoping specifications in
                                           the 1991 Standards), must be modified to
                                           the extent readily achievable. There is
                                           an exception for existing pools, wading
                                           pools, and spas built before March 15,
                                           2012 [See Sec. 36.304(g)(5)].
                                          Note: Noncomplying newly constructed and
                                           altered elements may also be subject to
                                           the requirements of Sec. 36.406(a)(5)..
On or after January 31, 2013............  For existing pools, wading pools, and spas  Sections 242 and 1009 of
                                           built before March 15, 2012, elements       the 2010 Standards.
                                           that do not comply with the supplemental
                                           requirements for entry to pools, wading
                                           pools, and spas must be modified to the
                                           extent readily achievable [See Sec.
                                           36.304(g)(5)].
Elements not altered after March 15,      Elements that comply with the requirements  Safe Harbor.
 2012.                                     for those elements in the 1991 Standards
                                           do not need to be modified.
----------------------------------------------------------------------------------------------------------------

    (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.

[[Page 763]]

    (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.
    (4) This requirement does not apply to guest rooms in existing 
facilities that are places of lodging where the guest rooms are not 
owned by the entity that owns, leases, or operates the overall facility 
and the physical features of the guest room interiors are controlled by 
their individual owners.
    (5) With respect to facilities built before March 15, 2012, the 
requirements in this section for accessible means of entry for swimming 
pools, wading pools, and spas, as set forth in sections 242 and 1009 of 
the 2010 Standards, shall not apply until January 31, 2013.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56254, Sept. 15, 2010; AG Order No. 3332-2012, 77 
FR 30179, May 21, 2012]



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.



Sec. 36.308  Seating in assembly areas.

    A public accommodation shall ensure that wheelchair spaces and 
companion seats are provided in each specialty seating area that 
provides spectators with distinct services or amenities that generally 
are not available to other spectators. If it is not readily achievable 
for a public accommodation to place wheelchair spaces and companion 
seats in each such specialty seating area, it shall provide those 
services or

[[Page 764]]

amenities to individuals with disabilities and their companions at other 
designated accessible locations at no additional cost. The number of 
wheelchair spaces and companion seats provided in specialty seating 
areas shall be included in, rather than in addition to, wheelchair space 
requirements set forth in table 221.2.1.1 in the 2010 Standards.

[AG Order No. 3181-2010, 75 FR 56255, Sept. 15, 2010]



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.
    (iv) Any request for documentation, if such documentation is 
required, is reasonable and limited to the need for the modification, 
accommodation, or auxiliary aid or service requested.
    (v) When considering requests for modifications, accommodations, or 
auxiliary aids or services, the entity gives considerable weight to 
documentation of past modifications, accommodations, or auxiliary aids 
or services received in similar testing situations, as well as such 
modifications, accommodations, or related aids and services provided in 
response to an Individualized Education Program (IEP) provided under the 
Individuals with Disabilities Education Act or a plan describing 
services provided pursuant to section 504 of the Rehabilitation Act of 
1973, as amended (often referred to as a Section 504 Plan).
    (vi) The entity responds in a timely manner to requests for 
modifications, accommodations, or aids to ensure equal opportunity for 
individuals with disabilities.
    (2) Required modifications to an examination may include changes in 
the length of time permitted for completion of the examination and 
adaptation of the manner in which the examination is given.
    (3) A private entity offering an examination covered by this section 
shall provide appropriate auxiliary aids for persons with impaired 
sensory, manual, or speaking skills, unless that private entity can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the measurement of the skills or knowledge the examination is 
intended to test or would result in an undue burden. Auxiliary aids and 
services required by this section may include taped examinations, 
interpreters or other effective methods of making orally delivered 
materials available to individuals with hearing impairments, Brailled or 
large print examinations and answer sheets or qualified readers for 
individuals with visual impairments or learning disabilities, 
transcribers for individuals with manual impairments, and other similar 
services and actions.
    (4) Alternative accessible arrangements may include, for example, 
provision of an examination at an individual's home with a proctor if 
accessible facilities or equipment are unavailable. Alternative 
arrangements must provide comparable conditions to those provided for 
nondisabled individuals.

[[Page 765]]

    (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.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56255, Sept. 15, 2010]



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. 36.311  Mobility devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A public 
accommodation shall permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities in any areas open to pedestrian 
use.
    (b)(1) Use of other power-driven mobility devices. A public 
accommodation shall make reasonable modifications in its policies, 
practices, or procedures to permit the use of other power-driven 
mobility devices by individuals with mobility disabilities, unless the 
public accommodation can demonstrate that the class of other power-
driven mobility devices cannot be operated in accordance with legitimate 
safety requirements that the public accommodation has adopted pursuant 
to Sec. 36.301(b).

[[Page 766]]

    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a public 
accommodation shall consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its business is conducted indoors, its square footage, the 
density and placement of stationary devices, and the availability of 
storage for the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws and regulations.
    (c)(1) Inquiry about disability. A public accommodation shall not 
ask an individual using a wheelchair or other power-driven mobility 
device questions about the nature and extent of the individual's 
disability.
    (2) Inquiry into use of other power-driven mobility device. A public 
accommodation may ask a person using an other power-driven mobility 
device to provide a credible assurance that the mobility device is 
required because of the person's disability. A public accommodation that 
permits the use of an other power-driven mobility device by an 
individual with a mobility disability shall accept the presentation of a 
valid, State-issued disability parking placard or card, or State-issued 
proof of disability, as a credible assurance that the use of the other 
power-driven mobility device is for the individual's mobility 
disability. In lieu of a valid, State-issued disability parking placard 
or card, or State-issued proof of disability, a public accommodation 
shall accept as a credible assurance a verbal representation, not 
contradicted by observable fact, that the other power-driven mobility 
device is being used for a mobility disability. A ``valid'' disability 
placard or card is one that is presented by the individual to whom it 
was issued and is otherwise in compliance with the State of issuance's 
requirements for disability placards or cards.

[AG Order No. 3181-2010, 75 FR 56255, Sept. 15, 2010]



Secs. 36.312-36.399  [Reserved]



               Subpart D_New Construction and Alterations



Sec. 36.401  New construction.

    (a) General. (1) Except as provided in paragraphs (b) and (c) of 
this section, discrimination for purposes of this part includes a 
failure to design and construct facilities for first occupancy after 
January 26, 1993, that are readily accessible to and usable by 
individuals with disabilities.
    (2) For purposes of this section, a facility is designed and 
constructed for first occupancy after January 26, 1993, only--
    (i) If the last application for a building permit or permit 
extension for the facility is certified to be complete, by a State, 
County, or local government after January 26, 1992 (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the last application for a building permit or permit 
extension for the facility is received by the State, County, or local 
government after January 26, 1992); and
    (ii) If the first certificate of occupancy for the facility is 
issued after January 26, 1993.
    (b) Commercial facilities located in private residences. (1) When a 
commercial facility is located in a private residence, the portion of 
the residence used exclusively as a residence is not covered by this 
subpart, but that portion used exclusively in the operation of the 
commercial facility or that portion used both for the commercial 
facility and for residential purposes is covered by the new construction 
and alterations requirements of this subpart.

[[Page 767]]

    (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.
    (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,

[[Page 768]]

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. (1) 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.
    (2) If a private entity has constructed or altered required elements 
of a path of travel at a place of public accommodation or commercial 
facility in accordance with the specifications in the 1991 Standards, 
the private entity is not required to retrofit such elements to reflect 
the incremental changes in the 2010 Standards solely because of an 
alteration to a primary function area served by that path of travel.
    (b) Primary function. A ``primary function'' is a major activity for 
which the facility is intended. Areas that contain a primary function 
include, but are not limited to, the customer services lobby of a bank, 
the dining area of a cafeteria, the meeting rooms in a conference 
center, as well as offices and other work areas in which the activities 
of the public accommodation or other private entity using the facility 
are carried out. Mechanical rooms, boiler rooms, supply storage rooms, 
employee lounges or locker rooms, janitorial closets, entrances, 
corridors, and restrooms are not areas containing a primary function.
    (c) Alterations to an area containing a primary function. (1) 
Alterations that affect the usability of or access to an area containing 
a primary function include, but are not limited to--
    (i) Remodeling merchandise display areas or employee work areas in a 
department store;
    (ii) Replacing an inaccessible floor surface in the customer service 
or employee work areas of a bank;
    (iii) Redesigning the assembly line area of a factory; or
    (iv) Installing a computer center in an accounting firm.

[[Page 769]]

    (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 a 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a text telephone (TTY);
    (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 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

[[Page 770]]

determining if the cost of providing an accessible path of travel is 
disproportionate to the overall cost of the alterations.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order 
No. 3181-2010, 75 FR 56256, Sept. 15, 2010]



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 this part.
    (b) If it is determined 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 the facility, alternative methods of access shall be 
provided pursuant to the requirements of subpart C of this part.

[AG Order No. 3181-2010, 75 FR 56256, Sept. 15, 2010]



Sec. 36.406  Standards for new construction and alterations.

    (a) Accessibility standards and compliance date. (1) New 
construction and alterations subject to Secs. 36.401 or 36.402 shall 
comply with the 1991 Standards if the date when the last application for 
a building permit or permit extension is certified to be complete by a 
State, county, or local government (or, in those jurisdictions where the 
government does not certify completion of applications, if the date when 
the last application for a building permit or permit extension is 
received by the State, county, or local government) is before September 
15, 2010, or if no permit is required, if the start of physical 
construction or alterations occurs before September 15, 2010.
    (2) New construction and alterations subject to Secs. 36.401 or 
36.402 shall comply either with the 1991 Standards or with the 2010 
Standards if the date

[[Page 771]]

when the last application for a building permit or permit extension is 
certified to be complete by a State, county, or local government (or, in 
those jurisdictions where the government does not certify completion of 
applications, if the date when the last application for a building 
permit or permit extension is received by the State, county, or local 
government) is on or after September 15, 2010 and before March 15, 2012, 
or if no permit is required, if the start of physical construction or 
alterations occurs on or after September 15, 2010 and before March 15, 
2012.
    (3) New construction and alterations subject to Secs. 36.401 or 
36.402 shall comply with the 2010 Standards if the date when the last 
application for a building permit or permit extension is certified to be 
complete by a State, county, or local government (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the date when the last application for a building 
permit or permit extension is received by the State, county, or local 
government) is on or after March 15, 2012, or if no permit is required, 
if the start of physical construction or alterations occurs on or after 
March 15, 2012.
    (4) For the purposes of this section, ``start of physical 
construction or alterations'' does not mean ceremonial groundbreaking or 
razing of structures prior to site preparation.
    (5) Noncomplying new construction and alterations. (i) Newly 
constructed or altered facilities or elements covered by Secs. 36.401 or 
36.402 that were constructed or altered before March 15, 2012 and that 
do not comply with the 1991 Standards shall, before March 15, 2012, be 
made accessible in accordance with either the 1991 Standards or the 2010 
Standards.
    (ii) Newly constructed or altered facilities or elements covered by 
Secs. 36.401 or 36.402 that were constructed or altered before March 15, 
2012 and that do not comply with the 1991 Standards shall, on or after 
March 15, 2012, be made accessible in accordance with the 2010 
Standards.

                       Appendix to Sec. 36.406(a)
------------------------------------------------------------------------
 Compliance dates for new construction and
                alterations                     Applicable standards
------------------------------------------------------------------------
On or after January 26, 1993 and before     1991 Standards.
 September 15, 2010.
On or after September 15, 2010 and before   1991 Standards or 2010
 March 15, 2012.                             Standards.
On or after March 15, 2012................  2010 Standards.
------------------------------------------------------------------------

    (b) Scope of coverage. The 1991 Standards and the 2010 Standards 
apply to fixed or built-in elements of buildings, structures, site 
improvements, and pedestrian routes or vehicular ways located on a site. 
Unless specifically stated otherwise, the advisory notes, appendix 
notes, and figures contained in the 1991 Standards and 2010 Standards 
explain or illustrate the requirements of the rule; they do not 
establish enforceable requirements.
    (c) Places of lodging. Places of lodging subject to this part shall 
comply with the provisions of the 2010 Standards applicable to transient 
lodging, including, but not limited to, the requirements for transient 
lodging guest rooms in sections 224 and 806 of the 2010 Standards.
    (1) Guest rooms. Guest rooms with mobility features in places of 
lodging subject to the transient lodging requirements of 2010 Standards 
shall be provided as follows--
    (i) Facilities that are subject to the same permit application on a 
common site that each have 50 or fewer guest rooms may be combined for 
the purposes of determining the required number of accessible rooms and 
type of accessible bathing facility in accordance with table 224.2 to 
section 224.2 of the 2010 Standards.
    (ii) Facilities with more than 50 guest rooms shall be treated 
separately for the purposes of determining the required number of 
accessible rooms and type of accessible bathing facility in accordance 
with table 224.2 to section 224.2 of the 2010 Standards.
    (2) Exception. Alterations to guest rooms in places of lodging where 
the guest rooms are not owned or substantially controlled by the entity 
that owns, leases, or operates the overall facility and the physical 
features of the guest room interiors are controlled by

[[Page 772]]

their individual owners are not required to comply with Sec. 36.402 or 
the alterations requirements in section 224.1.1 of the 2010 Standards.
    (3) Facilities with residential dwelling units and transient lodging 
units. Residential dwelling units that are designed and constructed for 
residential use exclusively are not subject to the transient lodging 
standards.
    (d) Social service center establishments. Group homes, halfway 
houses, shelters, or similar social service center establishments that 
provide either temporary sleeping accommodations or residential dwelling 
units that are subject to this part shall comply with the provisions of 
the 2010 Standards applicable to residential facilities, including, but 
not limited to, the provisions in sections 233 and 809.
    (1) In sleeping rooms with more than 25 beds covered by this part, a 
minimum of 5% of the beds shall have clear floor space complying with 
section 806.2.3 of the 2010 Standards.
    (2) Facilities with more than 50 beds covered by this part that 
provide common use bathing facilities shall provide at least one roll-in 
shower with a seat that complies with the relevant provisions of section 
608 of the 2010 Standards. Transfer-type showers are not permitted in 
lieu of a roll-in shower with a seat, and the exceptions in sections 
608.3 and 608.4 for residential dwelling units are not permitted. When 
separate shower facilities are provided for men and for women, at least 
one roll-in shower shall be provided for each group.
    (e) Housing at a place of education. Housing at a place of education 
that is subject to this part shall comply with the provisions of the 
2010 Standards applicable to transient lodging, including, but not 
limited to, the requirements for transient lodging guest rooms in 
sections 224 and 806, subject to the following exceptions. For the 
purposes of the application of this section, the term ``sleeping room'' 
is intended to be used interchangeably with the term ``guest room'' as 
it is used in the transient lodging standards.
    (1) Kitchens within housing units containing accessible sleeping 
rooms with mobility features (including suites and clustered sleeping 
rooms) or on floors containing accessible sleeping rooms with mobility 
features shall provide turning spaces that comply with section 809.2.2 
of the 2010 Standards and kitchen work surfaces that comply with section 
804.3 of the 2010 Standards.
    (2) Multi-bedroom housing units containing accessible sleeping rooms 
with mobility features shall have an accessible route throughout the 
unit in accordance with section 809.2 of the 2010 Standards.
    (3) Apartments or townhouse facilities that are provided by or on 
behalf of a place of education, which are leased on a year-round basis 
exclusively to graduate students or faculty and do not contain any 
public use or common use areas available for educational programming, 
are not subject to the transient lodging standards and shall comply with 
the requirements for residential facilities in sections 233 and 809 of 
the 2010 Standards.
    (f) Assembly areas. Assembly areas that are subject to this part 
shall comply with the provisions of the 2010 Standards applicable to 
assembly areas, including, but not limited to, sections 221 and 802. In 
addition, assembly areas shall ensure that--
    (1) In stadiums, arenas, and grandstands, wheelchair spaces and 
companion seats are dispersed to all levels that include seating served 
by an accessible route;
    (2) In assembly areas that are required to horizontally disperse 
wheelchair spaces and companion seats by section 221.2.3.1 of the 2010 
Standards and that have seating encircling, in whole or in part, a field 
of play or performance, wheelchair spaces and companion seats are 
dispersed around that field of play or performance area;
    (3) Wheelchair spaces and companion seats are not located on (or 
obstructed by) temporary platforms or other movable structures, except 
that when an entire seating section is placed on temporary platforms or 
other movable structures in an area where fixed seating is not provided, 
in order to increase seating for an event, wheelchair spaces and 
companion seats may be placed in that section. When wheelchair spaces 
and companion seats are not required to accommodate persons eligible for

[[Page 773]]

those spaces and seats, individual, removable seats may be placed in 
those spaces and seats;
    (4) In stadium-style movie theaters, wheelchair spaces and companion 
seats are located on a riser or cross-aisle in the stadium section that 
satisfies at least one of the following criteria--
    (i) It is located within the rear 60% of the seats provided in an 
auditorium; or
    (ii) It is located within the area of an auditorium in which the 
vertical viewing angles (as measured to the top of the screen) are from 
the 40th to the 100th percentile of vertical viewing angles for all 
seats as ranked from the seats in the first row (1st percentile) to 
seats in the back row (100th percentile).
    (g) Medical care facilities. Medical care facilities that are 
subject to this part shall comply with the provisions of the 2010 
Standards applicable to medical care facilities, including, but not 
limited to, sections 223 and 805. In addition, medical care facilities 
that do not specialize in the treatment of conditions that affect 
mobility shall disperse the accessible patient bedrooms required by 
section 223.2.1 of the 2010 Standards in a manner that is proportionate 
by type of medical specialty.

[AG Order No. 3181-2010, 75 FR 56256, Sept. 15, 2010]



Secs. 36.407-36.499  [Reserved]



                          Subpart E_Enforcement



Sec. 36.501  Private suits.

    (a) General. Any person who is being subjected to discrimination on 
the basis of disability in violation of the Act or this part or who has 
reasonable grounds for believing that such person is about to be 
subjected to discrimination in violation of section 303 of the Act or 
subpart D of this part may institute a civil action for preventive 
relief, including an application for a permanent or temporary 
injunction, restraining order, or other order. Upon timely application, 
the court may, in its discretion, permit the Attorney General to 
intervene in the civil action if the Attorney General or his or her 
designee certifies that the case is of general public importance. Upon 
application by the complainant and in such circumstances as the court 
may deem just, the court may appoint an attorney for such complainant 
and may authorize the commencement of the civil action without the 
payment of fees, costs, or security. Nothing in this section shall 
require a person with a disability to engage in a futile gesture if the 
person has actual notice that a person or organization covered by title 
III of the Act or this part does not intend to comply with its 
provisions.
    (b) Injunctive relief. In the case of violations of Sec. 36.304, 
Secs. 36.308, 36.310(b), 36.401, 36.402, 36.403, and 36.405 of this 
part, injunctive relief shall include an order to alter facilities to 
make such facilities readily accessible to and usable by individuals 
with disabilities to the extent required by the Act or this part. Where 
appropriate, injunctive relief shall also include requiring the 
provision of an auxiliary aid or service, modification of a policy, or 
provision of alternative methods, to the extent required by the Act or 
this part.



Sec. 36.502  Investigations and compliance reviews.

    (a) The Attorney General shall investigate alleged violations of the 
Act or this part.
    (b) Any individual who believes that he or she or a specific class 
of persons has been subjected to discrimination prohibited by the Act or 
this part may request the Department to institute an investigation.
    (c) Where the Attorney General has reason to believe that there may 
be a violation of this part, he or she may initiate a compliance review.



Sec. 36.503  Suit by the Attorney General.

    Following a compliance review or investigation under Sec. 36.502, or 
at any other time in his or her discretion, the Attorney General may 
commence a civil action in any appropriate United States district court 
if the Attorney General has reasonable cause to believe that--
    (a) Any person or group of persons is engaged in a pattern or 
practice of discrimination in violation of the Act or this part; or
    (b) Any person or group of persons has been discriminated against in 
violation of the Act or this part and the

[[Page 774]]

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 before April 28, 2014, and 
not exceeding $75,000 for a first violation occurring on or after April 
28, 2014, except that, for civil penalties assessed after August 1, 
2016, for a first violation occurring after November 2, 2015, the civil 
penalty shall not exceed the applicable amount set forth in 28 CFR 85.5.
    (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, and before April 28, 
2014, and not exceeding $150,000 for any subsequent violation occurring 
on or after April 28, 2014, except that, for civil penalties assessed 
after August 1, 2016, for any subsequent violation occurring after 
November 2, 2015, the civil penalty shall not exceed the applicable 
amount set forth in 28 CFR 85.5.
    (b) Single violation. For purposes of paragraph (a) (3) of this 
section, in determining whether a first or subsequent violation has 
occurred, a determination in a single action, by judgment or settlement, 
that the covered entity has engaged in more than one discriminatory act 
shall be counted as a single violation.
    (c) Punitive damages. For purposes of paragraph (a)(2) of this 
section, the terms ``monetary damages'' and ``such other relief'' do not 
include punitive damages.
    (d) Judicial consideration. In a civil action under Sec. 36.503, the 
court, when considering what amount of civil penalty, if any, is 
appropriate, shall give consideration to any good faith effort or 
attempt to comply with this part by the entity. In evaluating good 
faith, the court shall consider, among other factors it deems relevant, 
whether the entity could have reasonably anticipated the need for an 
appropriate type of auxiliary aid needed to accommodate the unique needs 
of a particular individual with a disability.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by Order No. 
2249-99, 64 FR 47103, Aug. 30, 1999; AG Order No. 3324-2014, 79 FR 
17436, Mar. 28, 2014; AG Order 3690-2016, 81 FR 42499, June 30, 2016]



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

[[Page 775]]

any failure in the development or dissemination of any technical 
assistance manual authorized by the Act.



Sec. 36.508  Effective date.

    (a) General. Except as otherwise provided in this section and in 
this part, this part shall become effective on January 26, 1992.
    (b) Civil actions. Except for any civil action brought for a 
violation of section 303 of the Act, no civil action shall be brought 
for any act or omission described in section 302 of the Act that 
occurs--
    (1) Before July 26, 1992, against businesses with 25 or fewer 
employees and gross receipts of $1,000,000 or less.
    (2) Before January 26, 1993, against businesses with 10 or fewer 
employees and gross receipts of $500,000 or less.
    (c) Transportation services provided by public accommodations. Newly 
purchased or leased vehicles required to be accessible by Sec. 36.310 
must be readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs, if the 
solicitation for the vehicle is made after August 25, 1990.



Secs. 36.509-36.599  [Reserved]



      Subpart F_Certification of State Laws or Local Building Codes



Sec. 36.601  Definitions.

    Assistant Attorney General means the Assistant Attorney General for 
Civil Rights or his or her designee.
    Certification of equivalency means a final certification that a code 
meets or exceeds the minimum requirements of title III of the Act for 
accessibility and usability of facilities covered by that title.
    Code means a State law or local building code or similar ordinance, 
or part thereof, that establishes accessibility requirements.
    Model code means a nationally recognized document developed by a 
private entity for use by State or local jurisdictions in developing 
codes as defined in this section. A model code is intended for 
incorporation by reference or adoption in whole or in part, with or 
without amendment, by State or local jurisdictions.
    Preliminary determination of equivalency means a preliminary 
determination that a code appears to meet or exceed the minimum 
requirements of title III of the Act for accessibility and usability of 
facilities covered by that title.
    Submitting official means the State or local official who--
    (1) Has principal responsibility for administration of a code, or is 
authorized to submit a code on behalf of a jurisdiction; and
    (2) Files a request for certification under this subpart.



Sec. 36.602  General rule.

    On the application of a State or local government, the Assistant 
Attorney General may certify that a code meets or exceeds the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part by 
issuing a certification of equivalency. At any enforcement proceeding 
under title III of the Act, such certification shall be rebuttable 
evidence that such State law or local ordinance does meet or exceed the 
minimum requirements of title III.



Sec. 36.603  Preliminary determination.

    Upon receipt and review of all information relevant to a request 
filed by a submitting official for certification of a code, and 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.

[AG Order No. 3181-2010, 75 FR 56257, Sept. 15, 2010]



Sec. 36.604  Procedure following preliminary determination of equivalency.

    (a) If the Assistant Attorney General makes a preliminary 
determination of equivalency under Sec. 36.603, he or she shall inform 
the submitting official, in writing, of that preliminary determination. 
The Assistant Attorney General also shall--
    (1) Publish a notice in the Federal Register that advises the public 
of the preliminary determination of equivalency with respect to the 
particular

[[Page 776]]

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 
the State or local jurisdiction charged with administration and 
enforcement of the code, at which interested individuals, 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, as well as information provided previously by the 
submitting official, shall issue either a certification of equivalency 
or a final determination to deny the request for certification. The 
Assistant Attorney General shall publish notice of the certification of 
equivalency or denial of certification in the Federal Register.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, redesignated and amended 
by AG Order No. 3181-2010, 75 FR 56257, Sept. 15, 2010]



Sec. 36.605  Procedure following preliminary denial of certification.

    (a) If the Assistant Attorney General makes a preliminary 
determination to deny certification of a code under Sec. 36.603, 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.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, redesignated and amended 
by AG Order No. 3181-2010, 75 FR 56258, Sept. 15, 2010]



Sec. 36.606  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.
    (d) When the standards of the Act against which a code is deemed 
equivalent are revised or amended substantially, a certification of 
equivalency issued under the preexisting standards is no longer 
effective, as of the date the revised standards take effect. However, 
construction in compliance with a certified code during the period when 
a certification of equivalency was effective shall be considered 
rebuttable evidence of compliance with the Standards then in effect as 
to those elements

[[Page 777]]

of buildings and facilities that comply with the certified code. A 
submitting official may reapply for certification pursuant to the Act's 
revised standards, and, to the extent possible, priority will be 
afforded the request in the review process.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, redesignated and amended 
by AG Order No. 3181-2010, 75 FR 56258, Sept. 15, 2010]



Sec. 36.607  Guidance concerning model codes.

    Upon application by an authorized representative of a private entity 
responsible for developing a model code, the Assistant Attorney General 
may review the relevant model code and issue guidance concerning whether 
and in what respects the model code is consistent with the minimum 
requirements of the Act for the accessibility and usability of places of 
public accommodation and commercial facilities under this part.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, redesignated by AG Order 
No. 3181-2010, 75 FR 56258, Sept. 15, 2010]



 Sec. Appendix A to Part 36--Guidance on Revisions to ADA Regulation on 
 Nondiscrimination on the Basis of Disability by Public Accommodations 
                        and Commercial Facilities

    Note: This Appendix contains guidance providing a section-by-section 
analysis of the revisions to 28 CFR part 36 published on September 15, 
2010.

       Section-By-Section Analysis and Response to Public Comments

    This section provides a detailed description of the Department's 
changes to the title III regulation, the reasoning behind those changes, 
and responses to public comments received on these topics. The Section-
by-Section Analysis follows the order of the title III regulation 
itself, except that if the Department has not changed a regulatory 
section, the unchanged section has not been mentioned.

                           Subpart A--General

                       Section 36.104  Definitions

                  ``1991 Standards'' and ``2004 ADAAG''

    The Department has included in the final rule new definitions of 
both the ``1991 Standards'' and the ``2004 ADAAG.'' The term ``1991 
Standards'' refers to the ADA Standards for Accessible Design, 
originally published on July 26, 1991, and republished as Appendix D to 
28 CFR part 36. The term ``2004 ADAAG'' refers to ADA Chapter 1, ADA 
Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities 
Act and the Architectural Barriers Act Accessibility Guidelines, which 
were issued by the Access Board on July 23, 2004, codified at 36 CFR 
1191, app. B and D (2009), and which the Department has adopted in this 
final rule. These terms are included in the definitions section for ease 
of reference.

                           ``2010 Standards''

    The Department has added to the final rule a definition of the term 
``2010 Standards.'' The term ``2010 Standards'' refers to the 2010 ADA 
Standards for Accessible Design, which consist of the 2004 ADAAG and the 
requirements contained in subpart D of 28 CFR part 36.

                            ``Direct Threat''

    The final rule moves the definition of direct threat from 
Sec. 36.208(b) to the definitions section at Sec. 36.104. This is an 
editorial change. Consequently, Sec. 36.208(c) becomes Sec. 36.208(b) in 
the final rule.

                          ``Existing Facility''

    The 1991 title III regulation provided definitions for ``new 
construction'' at Sec. 36.401(a) and ``alterations'' at Sec. 36.402(b). 
In contrast, the term ``existing facility'' was not explicitly defined, 
although it is used in the statute and regulations for titles II and 
III. See, e.g., 42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 35.150. It has been 
the Department's view that newly constructed or altered facilities are 
also existing facilities subject to title III's continuing barrier 
removal obligation, and that view is made explicit in this rule.
    The classification of facilities under the ADA is neither static nor 
mutually exclusive. Newly constructed or altered facilities are also 
existing facilities. A newly constructed facility remains subject to the 
accessibility standards in effect at the time of design and 
construction, with respect to those elements for which, at that time, 
there were applicable ADA Standards. That same facility, however, after 
construction, is also an existing facility, and subject to the public 
accommodation's continuing obligation to remove barriers where it is 
readily achievable to do so. The fact that the facility is also an 
existing facility does not relieve the public accommodation of its 
obligations under the new construction requirements of this part. 
Rather, it means that in addition to the new construction requirements, 
the public accommodation has a continuing obligation to remove barriers 
that arise, or are deemed barriers, only after construction. Such 
barriers include but are not limited to

[[Page 778]]

the elements that are first covered in the 2010 Standards, as that term 
is defined in Sec. 36.104.
    At some point, the same facility may undergo alterations, which are 
subject to the alterations requirements in effect at that time. This 
facility remains subject to its original new construction standards for 
elements and spaces not affected by the alterations; the facility is 
subject to the alterations requirements and standards in effect at the 
time of the alteration for the elements and spaces affected by the 
alteration; and, throughout, the facility remains subject to the 
continuing barrier removal obligation.
    The Department's enforcement of the ADA is premised on a broad 
understanding of ``existing facility.'' The ADA contemplates that as the 
Department's knowledge and understanding of accessibility advances and 
evolves, this knowledge will be incorporated into and result in 
increased accessibility in the built environment. Title III's barrier 
removal provisions strike the appropriate balance between ensuring that 
accessibility advances are reflected in the built environment and 
mitigating the costs of those advances to public accommodations. With 
adoption of the final rule, public accommodations engaged in barrier 
removal measures will now be guided by the 2010 Standards, defined in 
Sec. 36.104, and the safe harbor in Sec. 36.304(d)(2).
    The NPRM included the following proposed definition of ``existing 
facility'': ``[A] facility that has been constructed and remains in 
existence on any given date.'' 73 FR 34508, 34552 (June 17, 2008). While 
the Department intended the proposed definition to provide clarity with 
respect to public accommodations' continuing obligation to remove 
barriers where it is readily achievable to do so, some commenters 
pointed out arguable ambiguity in the language and the potential for 
misapplication of the rule in practice.
    The Department received a number of comments on this issue. The 
commenters urged the Department to clarify that all buildings remain 
subject to the standards in effect at the time of their construction, 
that is, that a facility designed and constructed for first occupancy 
between January 26, 1993, and the effective date of the final rule is 
still considered ``new construction'' and that alterations occurring 
between January 26, 1993, and the effective date of the final rule are 
still considered ``alterations.''
    The final rule includes clarifying language to ensure that the 
Department's interpretation is accurately reflected. As established by 
this rule, existing facility means a facility in existence on any given 
date, without regard to whether the facility may also be considered 
newly constructed or altered under this part. Thus, this definition 
reflects the Department's longstanding interpretation that public 
accommodations have obligations in existing facilities that are 
independent of but may coexist with requirements imposed by new 
construction or alteration requirements in those same facilities.

                   ``Housing at a Place of Education''

    The Department has added a new definition to Sec. 36.104, ``housing 
at a place of education,'' to clarify the types of educational housing 
programs that are covered by this title. This section defines ``housing 
at a place of education'' as ``housing operated by or on behalf of an 
elementary, secondary, undergraduate, or postgraduate school, or other 
place of education, including dormitories, suites, apartments, or other 
places of residence.'' This definition does not apply to social service 
programs that combine residential housing with social services, such as 
a residential job training program.

        ``Other Power-Driven Mobility Device'' and ``Wheelchair''

    Because relatively few individuals with disabilities were using 
nontraditional mobility devices in 1991, there was no pressing need for 
the 1991 title III regulation to define the terms ``wheelchair'' or 
``other power-driven mobility device,'' to expound on what would 
constitute a reasonable modification in policies, practices, or 
procedures under Sec. 36.302, or to set forth within that section 
specific requirements for the accommodation of mobility devices. Since 
the issuance of the 1991 title III regulation, however, the choices of 
mobility devices available to individuals with disabilities have 
increased dramatically. The Department has received complaints about and 
has become aware of situations where individuals with mobility 
disabilities have utilized devices that are not designed primarily for 
use by an individual with a mobility disability, including the 
Segway Personal Transporter (Segway PT), golf 
cars, all-terrain vehicles (ATVs), and other locomotion devices.
    The Department also has received questions from public 
accommodations and individuals with mobility disabilities concerning 
which mobility devices must be accommodated and under what 
circumstances. Indeed, there has been litigation concerning the legal 
obligations of covered entities to accommodate individuals with mobility 
disabilities who wish to use an electronic personal assistance mobility 
device (EPAMD), such as the Segway PT, as a mobility device. 
The Department has participated in such litigation as amicus curiae. See 
Ault v. Walt Disney World Co., No. 6:07-cv-1785-Orl-31KRS, 2009 WL 
3242028 (M.D. Fla. Oct. 6, 2009). Much of the litigation has involved 
shopping malls where businesses have refused to allow persons with 
disabilities to use EPAMDs. See, e.g., McElroy v. Simon Property Group, 
No. 08-404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining

[[Page 779]]

mall from prohibiting the use of a Segway PT as a mobility 
device where an individual agrees to all of a mall's policies for use of 
the device, except indemnification); Shasta Clark, Local Man Fighting 
Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at 
http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 
2010).
    In response to questions and complaints from individuals with 
disabilities and covered entities concerning which mobility devices must 
be accommodated and under what circumstances, the Department began 
developing a framework to address the use of unique mobility devices, 
concerns about their safety, and the parameters for the circumstances 
under which these devices must be accommodated. As a result, the 
Department's NPRM proposed two new approaches to mobility devices. 
First, the Department proposed a two-tiered mobility device definition 
that defined the term ``wheelchair'' separately from ``other power-
driven mobility device.'' Second, the Department proposed requirements 
to allow the use of devices in each definitional category. In 
Sec. 36.311(a), the NPRM proposed that wheelchairs and manually-powered 
mobility aids used by individuals with mobility disabilities shall be 
permitted in any areas open to pedestrian use. Section 36.311(b) of the 
NPRM proposed that a public accommodation ``shall make reasonable 
modifications in its policies, practices, and procedures to permit the 
use of other power-driven mobility devices by individuals with 
disabilities, unless the public accommodation can demonstrate that the 
use of the device is not reasonable or that its use will result in a 
fundamental alteration in the nature of the public accommodation's 
goods, services, facilities, privileges, advantages, or 
accommodations.'' 73 FR 34508, 34556 (June 17, 2008).
    The Department sought public comment with regard to whether these 
steps would, in fact, achieve clarity on these issues. Toward this end, 
the Department's NPRM asked several questions relating to the 
definitions of ``wheelchair,'' ``other power-driven mobility device,'' 
and ``manually-powered mobility aids''; the best way to categorize 
different classes of mobility devices, the types of devices that should 
be included in each category; and the circumstances under which certain 
types of mobility devices must be accommodated or may be excluded 
pursuant to the policy adopted by the public accommodation.
    Because the questions in the NPRM that concerned mobility devices 
and their accommodation were interrelated, many of the commenters' 
responses did not identify the specific question to which they were 
responding. Instead, commenters grouped the questions together and 
provided comments accordingly. Most commenters spoke to the issues 
addressed in the Department's questions in broad terms and using general 
concepts. As a result, the responses to the questions posed are 
discussed below in broadly grouped issue categories rather than on a 
question-by-question basis.
    Two-tiered definitional approach. Commenters supported the 
Department's proposal to use a two-tiered definition of mobility device. 
Commenters nearly universally said that wheelchairs always should be 
accommodated and that they should never be subject to an assessment with 
regard to their admission to a particular public accommodation. In 
contrast, the vast majority of commenters indicated they were in favor 
of allowing public accommodations to conduct an assessment as to 
whether, and under which circumstances, other power-driven mobility 
devices will be allowed on-site.
    Many commenters also indicated their support for the two-tiered 
approach in responding to questions concerning the definition of 
``wheelchair'' and ``other power-driven mobility device.'' Nearly every 
disability advocacy group said that the Department's two-tiered approach 
strikes the proper balance between ensuring access for individuals with 
disabilities and addressing fundamental alteration and safety concerns 
held by public accommodations; however, a minority of disability 
advocacy groups wanted other power-driven mobility devices to be 
included in the definition of ``wheelchair.'' Most advocacy, nonprofit, 
and individual commenters supported the concept of a separate definition 
for ``other power-driven mobility device'' because a separate definition 
would maintain existing legal protections for wheelchairs while 
recognizing that some devices that are not designed primarily for 
individuals with mobility disabilities have beneficial uses for 
individuals with mobility disabilities. They also favored this concept 
because it recognizes technological developments and that innovative 
uses of varying devices may provide increased access to individuals with 
mobility disabilities.
    While two business associations indicated that they opposed the 
concept of ``other power-driven mobility device'' in its entirety, other 
business commenters expressed general and industry-specific concerns 
about permitting their use. They indicated that such devices create a 
host of safety, cost, and fraud issues that do not exist with 
wheelchairs. On balance, however, business commenters indicated that 
they support the establishment of a two-tiered regulatory approach 
because defining ``other power-driven mobility device'' separately from 
``wheelchair'' means that businesses will be able to maintain some 
measure of control over the admission of the former. Virtually all of 
these commenters indicated that their support for the dual approach and 
the concept of other power-driven mobility devices was, in large 
measure, due to the other power-driven

[[Page 780]]

mobility device assessment factors in Sec. 36.311(c) of the NPRM.
    By maintaining the two-tiered approach to mobility devices and 
defining ``wheelchair'' separately from ``other power-driven mobility 
device,'' the Department is able to preserve the protection users of 
traditional wheelchairs and other manually-powered mobility aids have 
had since the ADA was enacted, while also recognizing that human 
ingenuity, personal choice, and new technologies have led to the use of 
devices that may be more beneficial for individuals with certain 
mobility disabilities.
    Moreover, the Department believes the two-tiered approach gives 
public accommodations guidance to follow in assessing whether reasonable 
modifications can be made to permit the use of other power-driven 
mobility devices on-site and to aid in the development of policies 
describing the circumstances under which persons with disabilities may 
use such devices. The two-tiered approach neither mandates that all 
other power-driven mobility devices be accommodated in every 
circumstance, nor excludes these devices from all protection. This 
approach, in conjunction with the factor assessment provisions in 
Sec. 36.311(b)(2), will serve as a mechanism by which public 
accommodations can evaluate their ability to accommodate other power-
driven mobility devices. As will be discussed in more detail below, the 
assessment factors in Sec. 36.311(b)(2) are specifically designed to 
provide guidance to public accommodations regarding whether it is 
permissible to bar the use of a specific other power-driven mobility 
device in a specific facility. In making such a determination, a public 
accommodation must consider the device's type, size, weight dimensions, 
and speed; the facility's volume of pedestrian traffic; the facility's 
design and operational characteristics; whether the device conflicts 
with legitimate safety requirements; and whether the device poses a 
substantial risk of serious harm to the immediate environment or natural 
or cultural resources, or conflicts with Federal land management laws or 
regulations. In addition, under Sec. 36.311(b)(i) if the public 
accommodation claims that it cannot make reasonable modifications to its 
policies, practices, or procedures to permit the use of other power-
driven mobility devices by individuals with disabilities, the burden of 
proof to demonstrate that such devices cannot be operated in accordance 
with legitimate safety requirements rests upon the public accommodation.
    Categorization of wheelchair versus other power-driven mobility 
devices. Implicit in the creation of the two-tiered mobility device 
concept is the question of how to categorize which devices are 
wheelchairs and which are other power-driven mobility devices. Finding 
weight and size to be too restrictive, the vast majority of advocacy, 
nonprofit, and individual commenters opposed using the Department of 
Transportation's definition of ``common wheelchair'' to designate the 
mobility device's appropriate category. Business commenters who 
generally supported using weight and size as the method of 
categorization did so because of their concerns about having to make 
physical changes to their facilities to accommodate oversized devices. 
The vast majority of business commenters also favored using the device's 
intended use to categorize which devices constitute wheelchairs and 
which are other power-driven mobility devices. Furthermore, the 
intended-use determinant received a fair amount of support from 
advocacy, nonprofit, and individual commenters, either because they 
sought to preserve the broad accommodation of wheelchairs or because 
they sympathized with concerns about individuals without mobility 
disabilities fraudulently bringing other power-driven mobility devices 
into places of public accommodation.
    Commenters seeking to have the Segway PT included in the 
definition of ``wheelchair'' objected to classifying mobility devices on 
the basis of their intended use because they felt that such a 
classification would be unfair and prejudicial to Segway PT 
users and would stifle personal choice, creativity, and innovation. 
Other advocacy and nonprofit commenters objected to employing an 
intended-use approach because of concerns that the focus would shift to 
an assessment of the device, rather than the needs or benefits to the 
individual with the mobility disability. They were of the view that the 
mobility-device classification should be based on its function--whether 
it is used to address a mobility disability. A few commenters raised the 
concern that an intended-use approach might embolden public 
accommodations to assess whether an individual with a mobility 
disability really needs to use the other power-driven mobility device at 
issue or to question why a wheelchair would not provide sufficient 
mobility. Those citing objections to the intended-use determinant 
indicated it would be more appropriate to make the categorization 
determination based on whether the device is being used for a mobility 
disability in the context of the impact of its use in a specific 
environment. Some of these commenters preferred this approach because it 
would allow the Segway PT to be included in the definition 
of ``wheelchair.''
    Some commenters were inclined to categorize mobility devices by the 
way in which they are powered, such as battery-powered engines versus 
fuel or combustion engines. One commenter suggested using exhaust level 
as the determinant. Although there were only a few commenters who would 
make the determination based on indoor or

[[Page 781]]

outdoor use, there was nearly universal support for banning from indoor 
use devices that are powered by fuel or combustion engines.
    A few commenters thought it would be appropriate to categorize the 
devices based on their maximum speed. Others objected to this approach, 
stating that circumstances should dictate the appropriate speed at which 
mobility devices should be operated--for example, a faster speed may be 
safer when crossing streets than it would be for sidewalk use--and 
merely because a device can go a certain speed does not mean it will be 
operated at that speed.
    The Department has decided to maintain the device's intended use as 
the appropriate determinant for which devices are categorized as 
``wheelchairs.'' However, because wheelchairs may be intended for use by 
individuals who have temporary conditions affecting mobility, the 
Department has decided that it is more appropriate to use the phrase 
``primarily designed'' rather than ``solely designed'' in making such 
categorizations. The Department will not foreclose any future 
technological developments by identifying or banning specific devices or 
setting restrictions on size, weight, or dimensions. Moreover, devices 
designed primarily for use by individuals with mobility disabilities 
often are considered to be medical devices and are generally eligible 
for insurance reimbursement on this basis. Finally, devices designed 
primarily for use by individuals with mobility disabilities are less 
subject to fraud concerns because they were not designed to have a 
recreational component. Consequently, rarely, if ever, is any inquiry or 
assessment as to their appropriateness for use in a public accommodation 
necessary.
    Definition of ``wheelchair.'' In seeking public feedback on the 
NPRM's definition of ``wheelchair,'' the Department explained its 
concern that the definition of ``wheelchair'' in section 508(c)(2) of 
the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 372, 42 
U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-325 section 
6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains to Federal 
wilderness areas, is not specific enough to provide clear guidance in 
the array of settings covered by title III and that the stringent size 
and weight requirements for the Department of Transportation's 
definition of ``common wheelchair'' are not a good fit in the context of 
most public accommodations. The Department noted in the NPRM that it 
sought a definition of ``wheelchair'' that would include manually-
operated and power-driven wheelchairs and mobility scooters (i.e., those 
that typically are single-user, have three to four wheels, and are 
appropriate for both indoor and outdoor pedestrian areas), as well as a 
variety of types of wheelchairs and mobility scooters with 
individualized or unique features or models with different numbers of 
wheels. The NPRM defined a wheelchair as ``a device designed solely for 
use by an individual with a mobility impairment for the primary purpose 
of locomotion in typical indoor and outdoor pedestrian areas. A 
wheelchair may be manually-operated or power-driven.'' 73 FR 34508, 
34553 (June 17, 2008). Although the NPRM's definition of ``wheelchair'' 
excluded mobility devices that are not designed solely for use by 
individuals with mobility disabilities, the Department, noting that the 
use of the Segway PT by individuals with mobility 
disabilities is on the upswing, inquired as to whether this device 
should be included in the definition of ``wheelchair.''
    Most business commenters wished the definition of ``wheelchair'' had 
included size, weight, and dimension maximums. Ultimately, however, they 
supported the definition because it excludes other power-driven mobility 
devices and enables them to engage in an assessment to determine whether 
a particular device can be allowed as a reasonable modification. These 
commenters felt this approach gave them some measure of control over 
whether, and under what circumstances, other power-driven mobility 
devices may be used in their facilities by individuals with mobility 
disabilities. Two commenters noted that because many mobility scooters 
are oversized, they are misplaced in the definition of ``wheelchair'' 
and belong with other power-driven mobility devices. Another commenter 
suggested using maximum size and weight requirements to allocate which 
mobility scooters should be categorized as wheelchairs, and which should 
be categorized as other power-driven mobility devices.
    Many advocacy, nonprofit, and individual commenters indicated that 
as long as the Department intends the scope of the term ``mobility 
impairments'' to include other disabilities that cause mobility 
impairments (e.g., respiratory, circulatory, stamina, etc.), they were 
in support of the language. Several commenters indicated a preference 
for the definition of ``wheelchair'' in section 508(c)(2) of the ADA. 
One commenter indicated a preference for the term ``assistive device,'' 
as it is defined in the Rehabilitation Act of 1973, over the term 
``wheelchair.'' A few commenters indicated that strollers should be 
added to the preamble's list of examples of wheelchairs because parents 
of children with disabilities frequently use strollers as mobility 
devices until their children get older.
    In the final rule, the Department has rearranged some wording and 
has made some changes in the terminology used in the definition of 
``wheelchair,'' but essentially has retained the definition, and 
therefore the rationale, that was set forth in the NPRM.

[[Page 782]]

Again, the text of the ADA makes the definition of ``wheelchair'' 
contained in section 508(c)(2) applicable only to the specific context 
of uses in designated wilderness areas, and therefore does not compel 
the use of that definition for any other purpose. Moreover, the 
Department maintains that limiting the definition to devices suitable 
for use in an ``indoor pedestrian area'' as provided for in section 
508(c)(2) of the ADA would ignore the technological advances in 
wheelchair design that have occurred since the ADA went into effect and 
that the inclusion of the phrase ``indoor pedestrian area'' in the 
definition of ``wheelchair'' would set back progress made by individuals 
with mobility disabilities who, for many years now, have been using 
devices designed for locomotion in indoor and outdoor settings. The 
Department has concluded that same rationale applies to placing limits 
on the size, weight, and dimensions of wheelchairs.
    With regard to the term ``mobility impairments,'' the Department 
intended a broad reading so that a wide range of disabilities, including 
circulatory and respiratory disabilities, that make walking difficult or 
impossible, would be included. In response to comments on this issue, 
the Department has revisited the issue and has concluded that the most 
apt term to achieve this intent is ``mobility disability.''
    In addition, the Department has decided that it is more appropriate 
to use the phrase, ``primarily'' designed for use by individuals with 
disabilities in the final rule, rather than, ``solely'' designed for use 
by individuals with disabilities--the phrase, proposed in the NPRM. The 
Department believes that this phrase more accurately covers the range of 
devices the Department intends to fall within the definition of 
``wheelchair.''
    After receiving comments that the word ``typical'' is vague and the 
phrase ``pedestrian areas'' is confusing to apply, particularly in the 
context of similar, but not identical, terms used in the proposed 
Standards, the Department decided to delete the term ``typical indoor 
and outdoor pedestrian areas'' from the final rule. Instead, the final 
rule references ``indoor or * * * both indoor and outdoor locomotion,'' 
to make clear that the devices that fall within the definition of 
``wheelchair'' are those that are used for locomotion on indoor and 
outdoor pedestrian paths or routes and not those that are intended 
exclusively for traversing undefined, unprepared, or unimproved paths or 
routes. Thus, the final rule defines the term ``wheelchair'' to mean ``a 
manually-operated or power-driven device designed primarily for use by 
an individual with a mobility disability for the main purpose of indoor 
or of both indoor and outdoor locomotion.''
    Whether the definition of ``wheelchair'' includes the 
Segway PT. As discussed above, because individuals with 
mobility disabilities are using the Segway PT as a mobility 
device, the Department asked whether it should be included in the 
definition of ``wheelchair.'' The basic Segway PT model is a 
two-wheeled, gyroscopically-stabilized, battery-powered personal 
transportation device. The user stands on a platform suspended three 
inches off the ground by wheels on each side, grasps a T-shaped handle, 
and steers the device similarly to a bicycle. Most Segway 
PTs can travel up to 12\1/2\ miles per hour, compared to the average 
pedestrian walking speed of 3 to 4 miles per hour and the approximate 
maximum speed for power-operated wheelchairs of 6 miles per hour. In a 
study of trail and other non-motorized transportation users including 
EPAMDs, the Federal Highway Administration (FHWA) found that the eye 
height of individuals using EPAMDs ranged from approximately 69 to 80 
inches. See Federal Highway Administration, Characteristics of Emerging 
Road and Trail Users and Their Safety (Oct. 14, 2004), available at 
http://www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). 
Thus, the Segway PT can operate at much greater speeds than 
wheelchairs, and the average user stands much taller than most 
wheelchair users.
    The Segway PT has been the subject of debate among 
users, pedestrians, disability advocates, State and local governments, 
businesses, and bicyclists. The fact that the Segway PT is 
not designed primarily for use by individuals with disabilities, nor 
used primarily by persons with disabilities, complicates the question of 
to what extent individuals with disabilities should be allowed to 
operate them in areas and facilities where other power-driven mobility 
devices are not allowed. Those who question the use of the 
Segway PT in pedestrian areas argue that the speed, size, 
and operating features of the devices make them too dangerous to operate 
alongside pedestrians and wheelchair users.
    Comments regarding whether to include the Segway PT in 
the definition of ``wheelchair'' were, by far, the most numerous 
received in the category of comments regarding wheelchairs and other 
power-driven mobility devices. Significant numbers of veterans with 
disabilities, individuals with multiple sclerosis, and those advocating 
on their behalf made concise statements of general support for the 
inclusion of the Segway PT in the definition of 
``wheelchair.'' Two veterans offered extensive comments on the topic, 
along with a few advocacy and nonprofit groups and individuals with 
disabilities for whom sitting is uncomfortable or impossible.
    While there may be legitimate safety issues for EPAMD users and 
bystanders in some circumstances, EPAMDs and other non-traditional 
mobility devices can deliver real benefits to individuals with 
disabilities. Among the reasons given by commenters to

[[Page 783]]

include the Segway PT in the definition of ``wheelchair'' 
were that the Segway PT is well-suited for individuals with 
particular conditions that affect mobility including multiple sclerosis, 
Parkinson's disease, chronic obstructive pulmonary disease, amputations, 
spinal cord injuries, and other neurological disabilities, as well as 
functional limitations, such as gait limitation, inability to sit or 
discomfort in sitting, and diminished stamina issues. Such individuals 
often find that EPAMDs are more comfortable and easier to use than more 
traditional mobility devices and assist with balance, circulation, and 
digestion in ways that wheelchairs do not. See Rachel Metz, Disabled 
Embrace Segway, New York Times, Oct. 14, 2004. Commenters specifically 
cited pressure relief, reduced spasticity, increased stamina, and 
improved respiratory, neurologic, and muscular health as secondary 
medical benefits from being able to stand.
    Other arguments for including the Segway PT in the 
definition of ``wheelchair'' were based on commenters' views that the 
Segway PT offers benefits not provided by wheelchairs and 
mobility scooters, including its intuitive response to body movement, 
ability to operate with less coordination and dexterity than is required 
for many wheelchairs and mobility scooters, and smaller footprint and 
turning radius as compared to most wheelchairs and mobility scooters. 
Several commenters mentioned improved visibility, either due to the 
Segway PT's raised platform or simply by virtue of being in 
a standing position. And finally, some commenters advocated for the 
inclusion of the Segway PT simply based on civil rights 
arguments and the empowerment and self-esteem obtained from having the 
power to select the mobility device of choice.
    Many commenters, regardless of their position on whether to include 
the Segway PT in the definition of ``wheelchair,'' noted 
that the Segway PT's safety record is as good as, if not 
better, than the record for wheelchairs and mobility scooters.
    Most business commenters were opposed to the inclusion of the 
Segway PT in the definition of ``wheelchair'' but were 
supportive of its inclusion as an ``other power-driven mobility 
device.'' They raised industry- or venue-specific concerns about 
including the Segway PT in the definition of ``wheelchair.'' 
For example, civic centers, arenas, and theaters were concerned about 
the impact on sight-line requirements if Segway PT users 
remain on their devices in a designated wheelchair seating area; 
amusement parks expressed concern that rides have been designed, 
purchased, and installed to enable wheelchair users to transfer easily 
or to accommodate wheelchairs on the ride itself; and retail stores 
mentioned size constraints in some stores. Nearly all business 
commenters expressed concern--and perceived liability issues--related to 
having to store or stow the Segway PT, particularly if it 
could not be stored in an upright position. These commenters cited 
concerns about possible damage to the device, injury to customers who 
may trip over it, and theft of the device as a result of not being able 
to stow the Segway PT securely.
    Virtually every business commenter mentioned concerns about rider 
safety, as well as concerns for pedestrians unexpectedly encountering 
these devices or being hit or run over by these devices in crowded 
venues where maneuvering space is limited. Their main safety objection 
to the inclusion of the Segway PT in the definition of 
``wheelchair'' was that the maximum speed at which the 
Segway PT can operate is far faster than that of motorized 
wheelchairs. There was a universal unease among these commenters with 
regard to relying on the judgment of the Segway PT user to 
exercise caution because its top speed is far in excess of a 
wheelchair's top speed. Many other safety concerns were industry-
specific. For example, amusement parks were concerned that the 
Segway PT is much taller than children; that it is too quiet 
to warn pedestrians, particularly those with low vision or who are 
blind, of their presence; that it may keep moving after a rider has 
fallen off or power system fails; and that it has a full-power override 
which automatically engages when an obstacle is encountered. Hotels and 
retail stores mentioned that maneuvering the Segway PT 
through their tight quarters would create safety hazards.
    Business commenters also expressed concern that if the 
Segway PT were included in the definition of ``wheelchair'' 
they would have to make physical changes to their facilities to 
accommodate Segway PT riders who stand much taller in these 
devices than do users of wheelchairs. They also were concerned that if 
the Segway7 PT was included in the definition of 
``wheelchair,'' they would have no ability to assess whether it is 
appropriate to allow the entry of the Segway PT into their 
facilities the way they would have if the device is categorized as an 
``other power-driven mobility device.''
    Many disability advocacy and nonprofit commenters did not support 
the inclusion of the Segway PT in the definition of 
``wheelchair.'' Paramount to these commenters was the maintenance of 
existing protections for wheelchair users. Because there was unanimous 
agreement that wheelchair use rarely, if ever, may be restricted, these 
commenters strongly favored categorizing wheelchairs separately from the 
Segway PT and other power-driven mobility devices and 
applying the intended-use determinant to assign the devices to either 
category. They indicated that while they support the greatest degree of 
access in public accommodations for all persons with disabilities who 
require the use

[[Page 784]]

of mobility devices, they recognize that under certain circumstances 
allowing the use of other power-driven mobility devices would result in 
a fundamental alteration or run counter to legitimate safety 
requirements necessary for the safe operation of a public accommodation. 
While these groups supported categorizing the Segway PT as 
an ``other power-driven mobility device,'' they universally noted that 
because the Segway PT does not present environmental 
concerns and is as safe to use as, if not safer than, a wheelchair, it 
should be accommodated in most circumstances.
    The Department has considered all the comments and has concluded 
that it should not include the Segway PT in the definition 
of ``wheelchair.'' The final rule provides that the test for 
categorizing a device as a wheelchair or an other power-driven mobility 
device is whether the device is designed primarily for use by 
individuals with mobility disabilities. Mobility scooters are included 
in the definition of ``wheelchair'' because they are designed primarily 
for users with mobility disabilities. However, because the current 
generation of EPAMDs, including the Segway PT, was designed 
for recreational users and not primarily for use by individuals with 
mobility disabilities, the Department has decided to continue its 
approach of excluding EPAMDs from the definition of ``wheelchair'' and 
including them in the definition of ``other power-driven mobility 
device.'' Although EPAMDs, such as the Segway PT, are not 
included in the definition of a ``wheelchair,'' public accommodations 
must assess whether they can make reasonable modifications to permit 
individuals with mobility disabilities to use such devices on their 
premises. The Department recognizes that the Segway PT 
provides many benefits to those who use them as mobility devices, 
including a measure of privacy with regard to the nature of one's 
particular disability, and believes that in the vast majority of 
circumstances, the application of the factors described in Sec. 36.311 
for providing access to other-powered mobility devices will result in 
the admission of the Segway PT.
    Treatment of ``manually-powered mobility aids.'' The Department's 
NPRM did not define the term ``manually-powered mobility aids.'' 
Instead, the NPRM included a non-exhaustive list of examples in 
Sec. 36.311(a). The NPRM queried whether the Department should maintain 
this approach to manually-powered mobility aids or whether it should 
adopt a more formal definition.
    Only a few commenters addressed ``manually-powered mobility aids.'' 
Virtually all commenters were in favor of maintaining a non-exhaustive 
list of examples of ``manually-powered mobility aids'' rather than 
adopting a definition of the term. Of those who commented, a couple 
sought clarification of the term ``manually-powered.'' One commenter 
suggested that the term be changed to ``human-powered.'' Other 
commenters requested that the Department include ordinary strollers in 
the non-exhaustive list of manually-powered mobility aids. Since 
strollers are not devices designed primarily for individuals with 
mobility disabilities, the Department does not consider them to be 
manually-powered mobility aids; however, strollers used in the context 
of transporting individuals with disabilities are subject to the same 
assessment required by the ADA's reasonable modification standards at 
Sec. 36.302. The Department believes that because the existing approach 
is clear and understood easily by the public, no formal definition of 
the term ``manually-powered mobility aids'' is required.
    Definition of ``other power-driven mobility device.'' The 
Department's NPRM defined the term ``other power-driven mobility 
device'' in Sec. 36.104 as ``any of a large range of devices powered by 
batteries, fuel, or other engines--whether or not designed solely for 
use by individuals with mobility impairments--that are used by 
individuals with mobility impairments for the purpose of locomotion, 
including golf cars, bicycles, electronic personal assistance mobility 
devices (EPAMDs), or any mobility aid designed to operate in areas 
without defined pedestrian routes.'' 73 FR 34508, 34552 (June 17, 2008).
    Business commenters mostly were supportive of the definition of 
``other power-driven mobility device'' because it gave them the ability 
to develop policies pertaining to the admission of these devices, but 
they expressed concern that individuals will feign mobility disabilities 
so that they can use devices that are otherwise banned in public 
accommodations. Advocacy, nonprofit, and several individual commenters 
supported the definition of ``other power-driven mobility device'' 
because it allows new technologies to be added in the future, maintains 
the existing legal protections for wheelchairs, and recognizes that some 
devices, particularly the Segway PT, which are not designed 
primarily for individuals with mobility disabilities, have beneficial 
uses for individuals with mobility disabilities.
    Despite support for the definition of ``other power-driven mobility 
device,'' however, most advocacy and nonprofit commenters expressed at 
least some hesitation about the inclusion of fuel-powered mobility 
devices in the definition. While virtually all of these commenters noted 
that a blanket exclusion of any device that falls under the definition 
of ``other power-driven mobility device'' would violate basic civil 
rights concepts, they also specifically stated that certain devices, 
particularly off-highway vehicles, cannot be permitted in certain 
circumstances. They also made a distinction between the

[[Page 785]]

Segway PT and other power-driven mobility devices, noting 
that the Segway PT should be accommodated in most 
circumstances because it satisfies the safety and environmental elements 
of the policy analysis. These commenters indicated that they agree that 
other power-driven mobility devices must be assessed, particularly as to 
their environmental impact, before they are accommodated.
    Business commenters were even less supportive of the inclusion of 
fuel-powered devices in the other power-driven mobility devices 
category. They sought a complete ban on fuel-powered devices because 
they believe they are inherently dangerous and pose environmental and 
safety concerns.
    Although many commenters had reservations about the inclusion of 
fuel-powered devices in the definition of other power-driven mobility 
devices, the Department does not want the definition to be so narrow 
that it would foreclose the inclusion of new technological developments, 
whether powered by fuel or by some other means. It is for this reason 
that the Department has maintained the phrase ``any mobility device 
designed to operate in areas without defined pedestrian routes'' in the 
final rule's definition of other power-driven mobility devices. The 
Department believes that the limitations provided by ``fundamental 
alteration'' and the ability to impose legitimate safety requirements 
will likely prevent the use of fuel and combustion engine-driven devices 
indoors, as well as in outdoor areas with heavy pedestrian traffic. The 
Department notes, however, that in the future technological developments 
may result in the production of safe fuel-powered mobility devices that 
do not pose environmental and safety concerns. The final rule allows 
consideration to be given as to whether the use of a fuel-powered device 
would create a substantial risk of serious harm to the environment or 
natural or cultural resources, and to whether the use of such a device 
conflicts with Federal land management laws or regulations; this aspect 
of the final rule will further limit the inclusion of fuel-powered 
devices where they are not appropriate. Consequently, the Department has 
maintained fuel-powered devices in the definition of ``other power-
driven mobility devices.'' The Department has also added language to the 
definition of ``other power-driven mobility device'' to reiterate that 
the definition does not apply to Federal wilderness areas, which are not 
covered by title II of the ADA; the use of wheelchairs in such areas is 
governed by section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

                    ``Place of Public Accommodation''

    Definition of ``place of lodging.'' The NPRM stated that a covered 
``place of lodging'' is a facility that provides guest rooms for 
sleeping for stays that are primarily short-term in nature (generally 
two weeks or less), to which the occupant does not have the right or 
intent to return to a specific room or unit after the conclusion of his 
or her stay, and which operates under conditions and with amenities 
similar to a hotel, motel, or inn, particularly including factors such 
as: (1) An on-site proprietor and reservations desk; (2) rooms available 
on a walk-up basis; (3) linen service; and (4) a policy of accepting 
reservations for a room type without guaranteeing a particular unit or 
room until check-in, without a prior lease or security deposit. The NPRM 
stated that timeshares and condominiums or corporate hotels that did not 
meet this definition would not be covered by Sec. 36.406(c) of the 
proposed regulation, but may be covered by the requirements of the Fair 
Housing Act (FHAct).
    In the NPRM, the Department sought comment on its definition of 
``place of lodging,'' specifically seeking public input on whether the 
most appropriate time period for identifying facilities used for stays 
that primarily are short-term in nature should be set at 2 weeks or 30 
days.
    The vast majority of the comments received by the Department 
supported the use of a 30-day limitation on places of lodging as more 
consistent with building codes, local laws, and common real estate 
practices that treat stays of 30 days or less as transient rather than 
residential use. One commenter recommended using the phrase ``fourteen 
days or less.'' Another commenter objected to any bright line standard, 
stating that the difference between two weeks and 30 days for purposes 
of title III is arbitrary, viewed in light of conflicting regulations by 
the States. This commenter argued the Department should continue its 
existing practice under title III of looking to State law as one factor 
in determining whether a facility is used for stays that primarily are 
short-term in nature.
    The Department is persuaded by the majority of commenters to adopt a 
30-day guideline for the purposes of identifying facilities that 
primarily are short-term in nature and has modified the section 
accordingly. The 30-day guideline is intended only to determine when the 
final rule's transient lodging provisions apply to a facility. It does 
not alter an entity's obligations under any other applicable statute. 
For example, the Department recognizes that the FHAct does not employ a 
bright line standard for determining which facilities qualify as 
residential facilities under that Act and that there are circumstances 
where units in facilities that meet the definition of places of lodging 
will be covered under both the ADA and the FHAct and will have to comply 
with the requirements of both laws.

[[Page 786]]

    The Department also received comments about the factors used in the 
NPRM's definition of ``place of lodging.'' One commenter proposed 
modifications to the definition as follows: changing the words ``guest 
rooms'' to ``accommodations for sleeping''; and adding a fifth factor 
that states that ``the in-room decor, furnishings and equipment being 
specified by the owner or operator of the lodging operation rather than 
generally being determined by the owner of the individual unit or 
room.'' The Department does not believe that ``guest room'' should be 
changed to ``accommodations for sleeping.'' Such a change would create 
confusion because the transient lodging provisions in the 2004 ADAAG use 
the term ``guest rooms'' and not ``accommodations for sleeping.'' In 
addition, the Department believes that it would be confusing to add a 
factor relating to who dictates the in-room decor and furnishings in a 
unit or room, because there may be circumstances where particular rental 
programs require individual owners to use certain decor and furnishings 
as a condition of participating in that program.
    One commenter stated that the factors the Department has included 
for determining whether a rental unit is a place of lodging for the 
purposes of title III, and therefore a ``place of public accommodation'' 
under the ADA, address only the way an establishment appears to the 
public. This commenter recommended that the Department also consider the 
economic relationships among the unit owners, rental managers, and 
homeowners' associations, noting that where revenues are not pooled (as 
they are in a hotel), the economic relationships do not make it possible 
to spread the cost of providing accessibility features over the entire 
business enterprise. Another commenter argued that private ownership of 
sleeping accommodations sets certain facilities apart from traditional 
hotels, motels, and inns, and that the Department should revise the 
definition of places of lodging to exempt existing places of lodging 
that have sleeping accommodations separately owned by individual owners 
(e.g., condominiums) from the accessible transient lodging guest room 
requirements in sections 224 and 806 of the 2004 ADAAG, although the 
commenter agreed that newly constructed places of lodging should meet 
those standards.
    One commenter argued that the Department's proposed definition of 
place of lodging does not reflect fully the nature of a timeshare 
facility and one single definition does not fit timeshares, condo 
hotels, and other types of rental accommodations. This commenter 
proposed that the Department adopt a separate definition for timeshare 
resorts as a subcategory of place of lodging. The commenter proposed 
defining timeshare resorts as facilities that provide the recurring 
right to occupancy for overnight accommodations for the owners of the 
accommodations, and other occupancy rights for owners exchanging their 
interests or members of the public for stays that primarily are short-
term in nature (generally 30 consecutive days or less), where neither 
the owner nor any other occupant has the right or intent to use the unit 
or room on other than a temporary basis for vacation or leisure 
purposes. This proposed definition also would describe factors for 
determining when a timeshare resort is operating in a manner similar to 
a hotel, motel, or inn, including some or all of the following: rooms 
being available on a walk-in or call-in basis; housekeeping or linen 
services being available; on-site management; and reservations being 
accepted for a room type without guaranteeing any guest or owner use of 
a particular unit or room until check-in, without a prior lease or 
security deposit. Timeshares that do not meet this definition would not 
be subject to the transient lodging standards.
    The Department has considered these comments and has revised the 
definition of ``place of accommodation'' in Sec. 36.104 to include a 
revised subcategory (B), which more clearly defines the factors that 
must be present for a facility that is not an inn, motel, or hotel to 
qualify as a place of lodging. These factors include conditions and 
amenities similar to an inn, motel, or hotel, including on- or off-site 
management and reservations service, rooms available on a walk-up or 
call-in basis, availability of housekeeping or linen service, and 
accepting reservations for a room type without guaranteeing a particular 
unit or room until check-in without a prior lease or security deposit.
    Although the Department understands some of the concerns about the 
application of the ADA requirements to places of lodging that have 
ownership structures that involve individually owned units, the 
Department does not believe that the definitional section of the 
regulation is the place to address these concerns and has addressed them 
in Sec. 36.406(c)(2) and the accompanying discussion in Appendix A.

                        ``Qualified Interpreter''

    In the NPRM, the Department proposed adding language to the 
definition of ``qualified interpreter'' to clarify that the term 
includes, but is not limited to, sign language interpreters, oral 
interpreters, and cued-speech interpreters. As the Department explained, 
not all interpreters are qualified for all situations. For example, a 
qualified interpreter who uses American Sign Language (ASL) is not 
necessarily qualified to interpret orally. In addition, someone with 
only a rudimentary familiarity with sign language or finger spelling is 
not qualified, nor is someone who is fluent in sign language but unable 
to translate spoken communication

[[Page 787]]

into ASL or to translate signed communication into spoken words.
    As further explained, different situations will require different 
types of interpreters. For example, an oral interpreter who has special 
skill and training to mouth a speaker's words silently for individuals 
who are deaf or hard of hearing may be necessary for an individual who 
was raised orally and taught to read lips or was diagnosed with hearing 
loss later in life and does not know sign language. An individual who is 
deaf or hard of hearing may need an oral interpreter if the speaker's 
voice is unclear, if there is a quick-paced exchange of communication 
(e.g., in a meeting), or when the speaker does not directly face the 
individual who is deaf or hard of hearing. A cued-speech interpreter 
functions in the same manner as an oral interpreter except that he or 
she also uses a hand code or cue to represent each speech sound.
    The Department received many comments regarding the proposed 
modifications to the definition of ``qualified interpreter.'' Many 
commenters requested that the Department include within the definition a 
requirement that interpreters be certified, particularly if they reside 
in a State that licenses or certifies interpreters. Other commenters 
opposed a certification requirement as unduly limiting, noting that an 
interpreter may well be qualified even if that same interpreter is not 
certified. These commenters noted the absence of nationwide standards or 
universally accepted criteria for certification.
    On review of this issue, the Department has decided against imposing 
a certification requirement under the ADA. It is sufficient under the 
ADA that the interpreter be qualified. With respect to the proposed 
additions to the rule, most commenters supported the expansion of the 
list of qualified interpreters, and some advocated for the inclusion of 
other types of interpreters on the list as well, such as deaf-blind 
interpreters, certified deaf interpreters, and speech-to-speech 
interpreters. As these commenters explained, deaf-blind interpreters are 
interpreters who have specialized skills and training to interpret for 
individuals who are deaf and blind. Certified deaf interpreters are deaf 
or hard of hearing interpreters who work with hearing sign language 
interpreters to meet the specific communication needs of deaf 
individuals. Speech-to-speech interpreters have special skill and 
training to interpret for individuals who have speech disabilities.
    The list of interpreters in the definition of ``qualified 
interpreter'' is illustrative, and the Department does not believe it is 
necessary or appropriate to attempt to provide an exhaustive list of 
qualified interpreters. Accordingly, the Department has decided not to 
expand the proposed list. However, if a deaf and blind individual needs 
interpreting services, an interpreter who is qualified to handle the 
interpreting needs of that individual may be required. The guiding 
criterion is that the public accommodation must provide appropriate 
auxiliary aids and services to ensure effective communication with the 
individual.
    Commenters also suggested various definitions for the term ``cued-
speech interpreters,'' and different descriptions of the tasks they 
performed. After reviewing the various comments, the Department has 
determined that it is more accurate and appropriate to refer to such 
individuals as ``cued-language transliterators.'' Likewise, the 
Department has changed the term ``oral interpreters'' to ``oral 
transliterators.'' These two changes have been made to distinguish 
between sign language interpreters, who translate one language into 
another language (e.g., ASL to English and English to ASL), from 
transliterators, who interpret within the same language between deaf and 
hearing individuals. A cued-language transliterator is an interpreter 
who has special skill and training in the use of the Cued Speech system 
of handshapes and placements, along with non-manual information, such as 
facial expression and body language, to show auditory information 
visually, including speech and environmental sounds. An oral 
transliterator is an interpreter who has special skill and training to 
mouth a speaker's words silently for individuals who are deaf or hard of 
hearing. While the Department included definitions for ``cued-speech 
interpreter'' and ``oral interpreter'' in the regulatory text proposed 
in the NPRM, the Department has decided that it is unnecessary to 
include such definitions in the text of the final rule.
    Many commenters questioned the proposed deletion of the requirement 
that a qualified interpreter be able to interpret both receptively and 
expressively, noting the importance of both these skills. Commenters 
noted that this phrase was carefully crafted in the original regulation 
to make certain that interpreters both (1) are capable of understanding 
what a person with a disability is saying and (2) have the skills needed 
to convey information back to that individual. These are two very 
different skill sets and both are equally important to achieve effective 
communication. For example, in a medical setting, a sign language 
interpreter must have the necessary skills to understand the grammar and 
syntax used by an ASL user (receptive skills) and the ability to 
interpret complicated medical information--presented by medical staff in 
English--back to that individual in ASL (expressive skills). The 
Department agrees and has put the phrase ``both receptively and 
expressively'' back in the definition.

[[Page 788]]

    Several advocacy groups suggested that the Department make clear in 
the definition of qualified interpreter that the interpreter may appear 
either on-site or remotely using a video remote interpreting (VRI) 
service. Given that the Department has included in this rule both a 
definition of VRI services and standards that such services must 
satisfy, such an addition to the definition of qualified interpreter is 
appropriate.
    After consideration of all relevant information submitted during the 
public comment period, the Department has modified the definition from 
that initially proposed in the NPRM. The final definition now states 
that ``[q]ualified interpreter means an interpreter who, via a video 
remote interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively and 
expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.''

                          ``Qualified Reader''

    The 1991 title III regulation identified a qualified reader as an 
auxiliary aid, but did not define the term. Based upon the Department's 
investigation of complaints alleging that some entities have provided 
ineffective readers, the Department proposed in the NPRM to define 
``qualified reader'' similarly to ``qualified interpreter'' to ensure 
that public accommodations select qualified individuals to read an 
examination or other written information in an effective, accurate, and 
impartial manner. This proposal was suggested in order to make clear to 
public accommodations that a failure to provide a qualified reader to a 
person with a disability may constitute a violation of the requirement 
to provide appropriate auxiliary aids and services.
    The Department received comments supporting the inclusion in the 
regulation of a definition of a ``qualified reader.'' Some commenters 
suggested the Department add to the definition a requirement prohibiting 
the use of a reader whose accent, diction, or pronunciation makes full 
comprehension of material being read difficult. Another commenter 
requested that the Department include a requirement that the reader 
``will follow the directions of the person for whom he or she is 
reading.'' Commenters also requested that the Department define 
``accurately'' and ``effectively'' as used in this definition.
    While the Department believes that the regulatory definition 
proposed in the NPRM adequately addresses these concerns, the Department 
emphasizes that a reader, in order to be ``qualified,'' must be skilled 
in reading the language and subject matter and must be able to be easily 
understood by the individual with the disability. For example, if a 
reader is reading aloud the questions for a bar examination, that 
reader, in order to be qualified, must know the proper pronunciation of 
all legal terminology used and must be sufficiently articulate to be 
easily understood by the individual with a disability for whom he or she 
is reading. In addition, the terms ``effectively'' and ``accurately'' 
have been successfully used and understood in the Department's existing 
definition of ``qualified interpreter'' since 1991 without specific 
regulatory definitions. Instead, the Department has relied upon the 
common use and understanding of those terms from standard English 
dictionaries. Thus, the definition of ``qualified reader'' has not been 
changed from that contained in the NPRM. The final rule defines a 
``qualified reader'' to mean ``a person who is able to read effectively, 
accurately, and impartially using any necessary specialized 
vocabulary.''

                           ``Service Animal''

    Section 36.104 of the 1991 title III regulation defines a ``service 
animal'' as ``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.'' Section 36.302(c)(1) 
of the 1991 title III regulation requires that ``[g]enerally, a public 
accommodation shall modify policies, practices, or procedures to permit 
the use of a service animal by an individual with a disability.'' 
Section 36.302(c)(2) of the 1991 title III regulation states that ``a 
public accommodation [is not required] to supervise or care for a 
service animal.''
    The Department has issued guidance and provided technical assistance 
and publications concerning service animals since the 1991 regulations 
became effective. In the NPRM, the Department proposed to modify the 
definition of service animal and asked for public input on several 
issues related to the service animal provisions of the 1991 title III 
regulation: whether the Department should clarify the phrase ``providing 
minimal protection'' in the definition or remove it; whether there are 
any circumstances where a service animal ``providing minimal 
protection'' would be appropriate or expected; whether certain species 
should be eliminated from the definition of ``service animal,'' and, if 
so, which types of animals should be excluded; whether ``common domestic 
animal'' should be part of the definition; and whether a size or weight 
limitation

[[Page 789]]

should be imposed for common domestic animals, even if the animal 
satisfies the ``common domestic animal'' part of the NPRM definition.
    The Department received extensive comments on these issues, as well 
as requests to clarify the obligations of public accommodations to 
accommodate individuals with disabilities who use service animals, and 
has modified the final rule in response. In the interests of avoiding 
unnecessary repetition, the Department has elected to discuss the issues 
raised in the NPRM questions about service animals and the corresponding 
public comments in the following discussion of the definition of 
``service animal.''
    The Department's final rule defines ``service animal'' as ``any dog 
that is individually trained to do work or perform tasks for the benefit 
of an individual with a disability, including a physical, sensory, 
psychiatric, intellectual, or other mental disability. Other species of 
animals, whether wild or domestic, trained or untrained, are not service 
animals for the purposes of this definition. The work or tasks performed 
by a service animal must be directly related to the individual's 
disability. Examples of work or tasks include, but are not limited to, 
assisting individuals who are blind or have low vision with navigation 
and other tasks, alerting individuals who are deaf or hard of hearing to 
the presence of people or sounds, providing non-violent protection or 
rescue work, pulling a wheelchair, assisting an individual during a 
seizure, alerting individuals to the presence of allergens, retrieving 
items such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship do 
not constitute work or tasks for the purposes of this definition.''
    This definition has been designed to clarify a key provision of the 
ADA. Many covered entities indicated that they are confused regarding 
their obligations under the ADA with regard to individuals with 
disabilities who use service animals. Individuals with disabilities who 
use trained guide or service dogs are concerned that if untrained or 
unusual animals are termed ``service animals,'' their own right to use 
guide or service dogs may become unnecessarily restricted or questioned. 
Some individuals who are not individuals with disabilities have claimed, 
whether fraudulently or sincerely (albeit mistakenly), that their 
animals are service animals covered by the ADA, in order to gain access 
to hotels, restaurants, and other places of public accommodation. The 
increasing use of wild, exotic, or unusual species, many of which are 
untrained, as service animals has also added to the confusion.
    Finally, individuals with disabilities who have the legal right 
under the Fair Housing Act (FHAct) to use certain animals in their homes 
as a reasonable accommodation to their disabilities have assumed that 
their animals also qualify under the ADA. This is not necessarily the 
case, as discussed below.
    The Department recognizes the diverse needs and preferences of 
individuals with disabilities protected under the ADA, and does not wish 
to unnecessarily impede individual choice. Service animals play an 
integral role in the lives of many individuals with disabilities, and 
with the clarification provided by the final rule, individuals with 
disabilities will continue to be able to use their service animals as 
they go about their daily activities. The clarification will also help 
to ensure that the fraudulent or mistaken use of other animals not 
qualified as service animals under the ADA will be deterred. A more 
detailed analysis of the elements of the definition and the comments 
responsive to the service animal provisions of the NPRM follows.
    Providing minimal protection. The 1991 title III regulation included 
language stating that ``minimal protection'' was a task that could be 
performed by an individually trained service animal for the benefit of 
an individual with a disability. In the Department's ``ADA Business 
Brief on Service Animals'' (2002), the Department interpreted the 
``minimal protection'' language within the context of a seizure (i.e., 
alerting and protecting a person who is having a seizure). The 
Department received many comments in response to the question of whether 
the ``minimal protection'' language should be clarified. Many commenters 
urged the removal of the ``minimal protection'' language from the 
service animal definition for two reasons: (1) The phrase can be 
interpreted to allow any dog that is trained to be aggressive to qualify 
as a service animal simply by pairing the animal with a person with a 
disability; and (2) The phrase can be interpreted to allow any untrained 
pet dog to qualify as a service animal, since many consider the mere 
presence of a dog to be a crime deterrent, and thus sufficient to meet 
the minimal protection standard. These commenters argued, and the 
Department agrees, that these interpretations were not contemplated 
under the original title III regulation.
    While many commenters stated that they believe that the ``minimal 
protection'' language should be eliminated, other commenters recommended 
that the language be clarified, but retained. Commenters favoring 
clarification of the term suggested that the Department explicitly 
exclude the function of attack or exclude those animals that are trained 
solely to be aggressive or protective.

[[Page 790]]

Other commenters identified non-violent behavioral tasks that could be 
construed as minimally protective, such as interrupting self-mutilation, 
providing safety checks and room searches, reminding the individual to 
take medications, and protecting the individual from injury resulting 
from seizures or unconsciousness.
    Several commenters noted that the existing direct threat defense, 
which allows the exclusion of a service animal if the animal exhibits 
unwarranted or unprovoked violent behavior or poses a direct threat, 
prevents the use of ``attack dogs'' as service animals. One commenter 
noted that the use of a service animal trained to provide ``minimal 
protection'' may impede access to care in an emergency, for example, 
where the first responder is unable or reluctant to approach a person 
with a disability because the individual's service animal is in a 
protective posture suggestive of aggression.
    Many organizations and individuals stated that in the general dog 
training community, ``protection'' is code for attack or aggression 
training and should be removed from the definition. Commenters stated 
that there appears to be a broadly held misconception that aggression-
trained animals are appropriate service animals for persons with post 
traumatic stress disorder (PTSD). While many individuals with PTSD may 
benefit by using a service animal, the work or tasks performed 
appropriately by such an animal would not involve unprovoked aggression, 
but could include actively cuing the individual by nudging or pawing the 
individual to alert to the onset of an episode and removing the 
individual from the anxiety-provoking environment.
    The Department recognizes that despite its best efforts to provide 
clarification, the ``minimal protection'' language appears to have been 
misinterpreted. While the Department maintains that protection from 
danger is one of the key functions that service animals perform for the 
benefit of persons with disabilities, the Department recognizes that an 
animal individually trained to provide aggressive protection, such as an 
attack dog, is not appropriately considered a service animal. Therefore, 
the Department has decided to modify the ``minimal protection'' language 
to read ``non-violent protection,'' thereby excluding so-called ``attack 
dogs'' or dogs with traditional ``protection training'' as service 
animals. The Department believes that this modification to the service 
animal definition will eliminate confusion, without restricting 
unnecessarily the type of work or tasks that service animals may 
perform. The Department's modification also clarifies that the crime-
deterrent effect of a dog's presence, by itself, does not qualify as 
work or tasks for purposes of the service animal definition.
    Alerting to intruders. The phrase ``alerting to intruders'' is 
related to the issues of minimal protection and the work or tasks an 
animal may perform to meet the definition of a service animal. In the 
original 1991 regulatory text, this phrase was intended to identify 
service animals that alert individuals who are deaf or hard of hearing 
to the presence of others. This language has been misinterpreted by some 
to apply to dogs that are trained specifically to provide aggressive 
protection, resulting in the assertion that such training qualifies a 
dog as a service animal under the ADA. The Department reiterates that 
public accommodations are not required to admit any animal whose use 
poses a direct threat. In addition, the Department has decided to remove 
the word ``intruders'' from the service animal definition and replace it 
with the phrase ``the presence of people or sounds.'' The Department 
believes this clarifies that so-called ``attack training'' or other 
aggressive response types of training that cause a dog to provide an 
aggressive response do not qualify a dog as a service animal under the 
ADA.
    Conversely, if an individual uses a breed of dog that is perceived 
to be aggressive because of breed reputation, stereotype, or the history 
or experience the observer may have with other dogs, but the dog is 
under the control of the individual with a disability and does not 
exhibit aggressive behavior, the public accommodation cannot exclude the 
individual or the animal from the place of public accommodation. The 
animal can only be removed if it engages in the behaviors mentioned in 
Sec. 36.302(c) (as revised in the final rule) or if the presence of the 
animal constitutes a fundamental alteration to the nature of the goods, 
services, facilities, and activities of the place of public 
accommodation.
    ``Doing work'' or ``performing tasks.'' The NPRM proposed that the 
Department maintain the requirement first articulated in the 1991 title 
III regulation that in order to qualify as a service animal, the animal 
must ``perform tasks'' or ``do work'' for the individual with a 
disability. The phrases ``perform tasks'' and ``do work'' describe what 
an animal must do for the benefit of an individual with a disability in 
order to qualify as a service animal.
    The Department received a number of comments in response to the NPRM 
proposal urging the removal of the term ``do work'' from the definition 
of a service animal. These commenters argued that the Department should 
emphasize the performance of tasks instead. The Department disagrees. 
Although the common definition of work includes the performance of 
tasks, the definition of work is somewhat broader, encompassing 
activities that do not appear to involve physical action.

[[Page 791]]

    One service dog user stated that, in some cases, ``critical forms of 
assistance can't be construed as physical tasks,'' noting that the 
manifestations of ``brain-based disabilities,'' such as psychiatric 
disorders and autism, are as varied as their physical counterparts. The 
Department agrees with this statement but cautions that unless the 
animal is individually trained to do something that qualifies as work or 
a task, the animal is a pet or support animal and does not qualify for 
coverage as a service animal. A pet or support animal may be able to 
discern that the individual is in distress, but it is what the animal is 
trained to do in response to this awareness that distinguishes a service 
animal from an observant pet or support animal.
    The NPRM contained an example of ``doing work'' that stated ``a 
psychiatric service dog can help some individuals with dissociative 
identity disorder to remain grounded in time or place.'' 73 FR 34508, 
34521 (June 17, 2008). Several commenters objected to the use of this 
example, arguing that grounding was not a ``task'' and therefore the 
example inherently contradicted the basic premise that a service animal 
must perform a task in order to mitigate a disability. Other commenters 
stated that ``grounding'' should not be included as an example of 
``work'' because it could lead to some individuals claiming that they 
should be able to use emotional support animals in public because the 
dog makes them feel calm or safe. By contrast, one commenter with 
experience in training service animals explained that grounding is a 
trained task based upon very specific behavioral indicators that can be 
observed and measured. These tasks are based upon input from mental 
health practitioners, dog trainers, and individuals with a history of 
working with psychiatric service dogs.
    It is the Department's view that an animal that is trained to 
``ground'' a person with a psychiatric disorder does work or performs a 
task that would qualify it as a service animal as compared to an 
untrained emotional support animal whose presence affects a person's 
disability. It is the fact that the animal is trained to respond to the 
individual's needs that distinguishes an animal as a service animal. The 
process must have two steps: Recognition and response. For example, if a 
service animal senses that a person is about to have a psychiatric 
episode and it is trained to respond, for example, by nudging, barking, 
or removing the individual to a safe location until the episode 
subsides, then the animal has indeed performed a task or done work on 
behalf of the individual with the disability, as opposed to merely 
sensing an event.
    One commenter suggested defining the term ``task,'' presumably to 
improve the understanding of the types of services performed by an 
animal that would be sufficient to qualify the animal for coverage. The 
Department believes that the common definition of the word ``task'' is 
sufficiently clear and that it is not necessary to add to the 
definitions section. However, the Department has added examples of other 
kinds of work or tasks to help illustrate and provide clarity to the 
definition. After careful evaluation of this issue, the Department has 
concluded that the phrases ``do work'' and ``perform tasks'' have been 
effective during the past two decades to illustrate the varied services 
provided by service animals for the benefit of individuals with all 
types of disabilities. Thus, the Department declines to depart from its 
longstanding approach at this time.
    Species limitations. When the Department originally issued its title 
III regulation in the early 1990s, the Department did not define the 
parameters of acceptable animal species. At that time, few anticipated 
the variety of animals that would be promoted as service animals in the 
years to come, which ranged from pigs and miniature horses to snakes, 
iguanas, and parrots. The Department has followed this particular issue 
closely, keeping current with the many unusual species of animals 
represented to be service animals. Thus, the Department has decided to 
refine further this aspect of the service animal definition in the final 
rule.
    The Department received many comments from individuals and 
organizations recommending species limitations. Several of these 
commenters asserted that limiting the number of allowable species would 
help stop erosion of the public's trust, which has resulted in reduced 
access for many individuals with disabilities who use trained service 
animals that adhere to high behavioral standards. Several commenters 
suggested that other species would be acceptable if those animals could 
meet nationally recognized behavioral standards for trained service 
dogs. Other commenters asserted that certain species of animals (e.g., 
reptiles) cannot be trained to do work or perform tasks, so these 
animals would not be covered.
    In the NPRM, the Department used the term ``common domestic animal'' 
in the service animal definition and excluded reptiles, rabbits, farm 
animals (including horses, miniature horses, ponies, pigs, and goats), 
ferrets, amphibians, and rodents from the service animal definition. 73 
FR 34508, 34553 (June 17, 2008). However, the term ``common domestic 
animal'' is difficult to define with precision due to the increase in 
the number of domesticated species. Also, several State and local laws 
define a ``domestic'' animal as an animal that is not wild.
    The Department is compelled to take into account the practical 
considerations of certain animals and to contemplate their suitability 
in a variety of public contexts, such

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as restaurants, grocery stores, hospitals, and performing arts venues, 
as well as suitability for urban environments. The Department agrees 
with commenters' views that limiting the number and types of species 
recognized as service animals will provide greater predictability for 
public accommodations as well as added assurance of access for 
individuals with disabilities who use dogs as service animals. As a 
consequence, the Department has decided to limit this rule's coverage of 
service animals to dogs, which are the most common service animals used 
by individuals with disabilities.
    Wild animals, monkeys, and other nonhuman primates. Numerous 
business entities endorsed a narrow definition of acceptable service 
animal species, and asserted that there are certain animals (e.g., 
reptiles) that cannot be trained to do work or perform tasks. Other 
commenters suggested that the Department should identify excluded 
animals, such as birds and llamas, in the final rule. Although one 
commenter noted that wild animals bred in captivity should be permitted 
to be service animals, the Department has decided to make clear that all 
wild animals, whether born or bred in captivity or in the wild, are 
eliminated from coverage as service animals. The Department believes 
that this approach reduces risks to health or safety attendant with wild 
animals. Some animals, such as certain nonhuman primates, including 
certain monkeys, pose a direct threat; their behavior can be 
unpredictably aggressive and violent without notice or provocation. The 
American Veterinary Medical Association (AVMA) issued a position 
statement advising against the use of monkeys as service animals, 
stating that ``[t]he AVMA does not support the use of nonhuman primates 
as assistance animals because of animal welfare concerns, and the 
potential for serious injury and zoonotic [animal to human disease 
transmission] risks.'' AVMA Position Statement, Nonhuman Primates as 
Assistance Animals (2005), available at http://www.avma.org/issues/
policy/nonhuman_primates.asp (last visited June 24, 2010).
    An organization that trains capuchin monkeys to provide in-home 
services to individuals with paraplegia and quadriplegia was in 
substantial agreement with the AVMA's views but requested a limited 
recognition in the service animal definition for the capuchin monkeys it 
trains to provide assistance for persons with disabilities. The 
organization commented that its trained capuchin monkeys undergo 
scrupulous veterinary examinations to ensure that the animals pose no 
health risks, and are used by individuals with disabilities exclusively 
in their homes. The organization acknowledged that the capuchin monkeys 
it trains are not necessarily suitable for use in a place of public 
accommodation but noted that the monkeys may need to be used in 
circumstances that implicate title III coverage, e.g., in the event the 
handler had to leave home due to an emergency, to visit a veterinarian, 
or for the initial delivery of the monkey to the individual with a 
disability. The organization noted that several State and local 
government entities have local zoning, licensing, health, and safety 
laws that prohibit non-human primates, and that these prohibitions would 
prevent individuals with disabilities from using these animals even in 
their homes.
    The organization argued that including capuchin monkeys under the 
service animal umbrella would make it easier for individuals with 
disabilities to obtain reasonable modifications of State and local 
licensing, health, and safety laws that would permit the use of these 
monkeys. The organization argued that this limited modification to the 
service animal definition was warranted in view of the services these 
monkeys perform, which enable many individuals with paraplegia and 
quadriplegia to live and function with increased independence.
    The Department has carefully considered the potential risks 
associated with the use of nonhuman primates as service animals in 
places of public accommodation, as well as the information provided to 
the Department about the significant benefits that trained capuchin 
monkeys provide to certain individuals with disabilities in residential 
settings. The Department has determined, however, that nonhuman 
primates, including capuchin monkeys, will not be recognized as service 
animals for purposes of this rule because of their potential for disease 
transmission and unpredictable aggressive behavior. The Department 
believes that these characteristics make nonhuman primates unsuitable 
for use as service animals in the context of the wide variety of public 
settings subject to this rule. As the organization advocating the 
inclusion of capuchin monkeys acknowledges, capuchin monkeys are not 
suitable for use in public facilities.
    The Department emphasizes that it has decided only that capuchin 
monkeys will not be included in the definition of service animals for 
purposes of its regulation implementing the ADA. This decision does not 
have any effect on the extent to which public accommodations are 
required to allow the use of such monkeys under other Federal statutes, 
like the FHAct or the Air Carrier Access Act (ACAA). For example, a 
public accommodation that also is considered to be a ``dwelling'' may be 
covered under both the ADA and the FHAct. While the ADA does not require 
such a public accommodation to admit people with service monkeys, the 
FHAct may. Under the FHAct an individual with a disability may have the 
right to have an animal other than a dog in his or her home if the 
animal qualifies as a ``reasonable accommodation'' that is necessary to 
afford

[[Page 793]]

the individual equal opportunity to use and enjoy a dwelling, assuming 
that the use of the animal does not pose a direct threat. In some cases, 
the right of an individual to have an animal under the FHAct may 
conflict with State or local laws that prohibit all individuals, with or 
without disabilities, from owning a particular species. However, in this 
circumstance, an individual who wishes to request a reasonable 
modification of the State or local law must do so under the FHAct, not 
the ADA.
    Having considered all of the comments about which species should 
qualify as service animals under the ADA, the Department has determined 
the most reasonable approach is to limit acceptable species to dogs.
    Size or weight limitations. The vast majority of commenters did not 
support a size or weight limitation. Commenters were typically opposed 
to a size or weight limit because many tasks performed by service 
animals require large, strong dogs. For instance, service animals may 
perform tasks such as providing balance and support or pulling a 
wheelchair. Small animals may not be suitable for large adults. The 
weight of the service animal user is often correlated with the size and 
weight of the service animal. Others were concerned that adding a size 
and weight limit would further complicate the difficult process of 
finding an appropriate service animal. One commenter noted that there is 
no need for a limit because ``if, as a practical matter, the size or 
weight of an individual's service animal creates a direct threat or 
fundamental alteration to a particular public entity or accommodation, 
there are provisions that allow for the animal's exclusion or removal.'' 
Some common concerns among commenters in support of a size and weight 
limit were that a larger animal may be less able to fit in various areas 
with its handler, such as toilet rooms and public seating areas, and 
that larger animals are more difficult to control.
    Balancing concerns expressed in favor of and against size and weight 
limitations, the Department has determined that such limitations would 
not be appropriate. Many individuals of larger stature require larger 
dogs. The Department believes it would be inappropriate to deprive these 
individuals of the option of using a service dog of the size required to 
provide the physical support and stability these individuals may need to 
function independently. Since large dogs have always served as service 
animals, continuing their use should not constitute fundamental 
alterations or impose undue burdens on public accommodations.
    Breed limitations. A few commenters suggested that certain breeds of 
dogs should not be allowed to be used as service animals. Some suggested 
that the Department should defer to local laws restricting the breeds of 
dogs that individuals who reside in a community may own. Other 
commenters opposed breed restrictions, stating that the breed of a dog 
does not determine its propensity for aggression and that aggressive and 
non-aggressive dogs exist in all breeds.
    The Department does not believe that it is either appropriate or 
consistent with the ADA to defer to local laws that prohibit certain 
breeds of dogs based on local concerns that these breeds may have a 
history of unprovoked aggression or attacks. Such deference would have 
the effect of limiting the rights of persons with disabilities under the 
ADA who use certain service animals based on where they live rather than 
on whether the use of a particular animal poses a direct threat to the 
health and safety of others. Breed restrictions differ significantly 
from jurisdiction to jurisdiction. Some jurisdictions have no breed 
restrictions. Others have restrictions that, while well-meaning, have 
the unintended effect of screening out the very breeds of dogs that have 
successfully served as service animals for decades without a history of 
the type of unprovoked aggression or attacks that would pose a direct 
threat, e.g., German Shepherds. Other jurisdictions prohibit animals 
over a certain weight, thereby restricting breeds without invoking an 
express breed ban. In addition, deference to breed restrictions 
contained in local laws would have the unacceptable consequence of 
restricting travel by an individual with a disability who uses a breed 
that is acceptable and poses no safety hazards in the individual's home 
jurisdiction but is nonetheless banned by other jurisdictions. Public 
accommodations have the ability to determine, on a case-by-case basis, 
whether a particular service animal can be excluded based on that 
particular animal's actual behavior or history--not based on fears or 
generalizations about how an animal or breed might behave. This ability 
to exclude an animal whose behavior or history evidences a direct threat 
is sufficient to protect health and safety.
    Recognition of psychiatric service animals, but not ``emotional 
support animals.'' The definition of ``service animal'' in the NPRM 
stated the Department's longstanding position that emotional support 
animals are not included in the definition of ``service animal.'' The 
proposed text provided that ``[a]nimals whose sole function is to 
provide emotional support, comfort, therapy, companionship, therapeutic 
benefits, or to promote emotional well-being are not service animals.'' 
73 FR 34508, 34553 (June 17, 2008).
    Many advocacy organizations expressed concern and disagreed with the 
exclusion of comfort and emotional support animals. Others have been 
more specific, stating that individuals with disabilities may need their 
emotional support animals in order to have equal access. Some commenters 
noted that individuals with disabilities use animals

[[Page 794]]

that have not been trained to perform tasks directly related to their 
disability. These animals do not qualify as service animals under the 
ADA. These are emotional support or comfort animals.
    Commenters asserted that excluding categories such as ``comfort'' 
and ``emotional support'' animals recognized by laws such as the FHAct 
or the ACAA is confusing and burdensome. Other commenters noted that 
emotional support and comfort animals perform an important function, 
asserting that animal companionship helps individuals who experience 
depression resulting from multiple sclerosis.
    Some commenters explained the benefits emotional support animals 
provide, including emotional support, comfort, therapy, companionship, 
therapeutic benefits, and the promotion of emotional well-being. They 
contended that without the presence of an emotional support animal in 
their lives they would be disadvantaged and unable to participate in 
society. These commenters were concerned that excluding this category of 
animals will lead to discrimination against and excessive questioning of 
individuals with non-visible or non-apparent disabilities. Other 
commenters expressing opposition to the exclusion of individually 
trained ``comfort'' or ``emotional support'' animals asserted that the 
ability to soothe or de-escalate and control emotion is ``work'' that 
benefits the individual with the disability.
    Many commenters requested that the Department carve out an exception 
that permits current or former members of the military to use emotional 
support animals. They asserted that a significant number of service 
members returning from active combat duty have adjustment difficulties 
due to combat, sexual assault, or other traumatic experiences while on 
active duty. Commenters noted that some current or former members of the 
military service have been prescribed animals for conditions such as 
PTSD. One commenter stated that service women who were sexually 
assaulted while in the military use emotional support animals to help 
them feel safe enough to step outside their homes. The Department 
recognizes that many current and former members of the military have 
disabilities as a result of service-related injuries that may require 
emotional support and that such individuals can benefit from the use of 
an emotional support animal and could use such animal in their home 
under the FHAct. However, having carefully weighed the issues, the 
Department believes that its final rule appropriately addresses the 
balance of issues and concerns of both the individual with a disability 
and the public accommodation. The Department also notes that nothing in 
this part prohibits a public entity from allowing current or former 
military members or anyone else with disabilities to utilize emotional 
support animals if it wants to do so.
    Commenters asserted the view that if an animal's ``mere presence'' 
legitimately provides such benefits to an individual with a disability 
and if those benefits are necessary to provide equal opportunity given 
the facts of the particular disability, then such an animal should 
qualify as a ``service animal.'' Commenters noted that the focus should 
be on the nature of a person's disability, the difficulties the 
disability may impose and whether the requested accommodation would 
legitimately address those difficulties, not on evaluating the animal 
involved. The Department understands this approach has benefitted many 
individuals under the FHAct and analogous State law provisions, where 
the presence of animals poses fewer health and safety issues and where 
emotional support animals provide assistance that is unique to 
residential settings. The Department believes, however, that the 
presence of such animals is not required in the context of public 
accommodations, such as restaurants, hospitals, hotels, retail 
establishments, and assembly areas.
    Under the Department's previous regulatory framework, some 
individuals and entities assumed that the requirement that service 
animals must be individually trained to do work or perform tasks 
excluded all individuals with mental disabilities from having service 
animals. Others assumed that any person with a psychiatric condition 
whose pet provided comfort to them was covered by the 1991 title III 
regulation. The Department reiterates that psychiatric service animals 
that are trained to do work or perform a task for individuals whose 
disability is covered by the ADA are protected by the Department's 
present regulatory approach. Psychiatric service animals can be trained 
to perform a variety of tasks that assist individuals with disabilities 
to detect the onset of psychiatric episodes and ameliorate their 
effects. Tasks performed by psychiatric service animals may include 
reminding individuals to take medicine, providing safety checks or room 
searches for individuals with PTSD, interrupting self-mutilation, and 
removing disoriented individuals from dangerous situations.
    The difference between an emotional support animal and a psychiatric 
service animal is the work or tasks that the animal performs. 
Traditionally, service dogs worked as guides for individuals who were 
blind or had low vision. Since the original regulation was promulgated, 
service animals have been trained to assist individuals with many 
different types of disabilities.
    In the final rule, the Department has retained its position on the 
exclusion of emotional support animals from the definition of ``service 
animal.'' The definition states that ``[t]he provision of emotional 
support, well-

[[Page 795]]

being, comfort, or companionship * * * do[es] not constitute work or 
tasks for the purposes of this definition.'' The Department notes, 
however, that the exclusion of emotional support animals from coverage 
in the final rule does not mean that individuals with psychiatric or 
mental disabilities cannot use service animals that meet the regulatory 
definition. The final rule defines service animal as follows: ``Service 
animal means any dog that is individually trained to do work or perform 
tasks for the benefit of an individual with a disability, including a 
physical, sensory, psychiatric, intellectual, or other mental 
disability.'' This language simply clarifies the Department's 
longstanding position.
    The Department's position is based on the fact that the title II and 
title III regulations govern a wider range of public settings than the 
housing and transportation settings for which the Department of Housing 
and Urban Development (HUD) and the DOT regulations allow emotional 
support animals or comfort animals. The Department recognizes that there 
are situations not governed by the title II and title III regulations, 
particularly in the context of residential settings and transportation, 
where there may be a legal obligation to permit the use of animals that 
do not qualify as service animals under the ADA, but whose presence 
nonetheless provides necessary emotional support to persons with 
disabilities. Accordingly, other Federal agency regulations, case law, 
and possibly State or local laws governing those situations may provide 
appropriately for increased access for animals other than service 
animals as defined under the ADA. Public officials, housing providers, 
and others who make decisions relating to animals in residential and 
transportation settings should consult the Federal, State, and local 
laws that apply in those areas (e.g., the FHAct regulations of HUD and 
the ACAA) and not rely on the ADA as a basis for reducing those 
obligations.
    Retain term ``service animal.'' Some commenters asserted that the 
term ``assistance animal'' is a term of art and should replace the term 
``service animal''; however, the majority of commenters preferred the 
term ``service animal'' because it is more specific. The Department has 
decided to retain the term ``service animal'' in the final rule. While 
some agencies, like HUD, use the terms ``assistance animal,'' 
``assistive animal,'' or ``support animal,'' these terms are used to 
denote a broader category of animals than is covered by the ADA. The 
Department has decided that changing the term used in the final rule 
would create confusion, particularly in view of the broader parameters 
for coverage under the FHAct, cf. Preamble to HUD's Final Rule for Pet 
Ownership for the Elderly and Persons with Disabilities, 73 FR 63834-38 
(Oct. 27, 2008); HUD Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy 
Requirements of Subsidized Multifamily Housing Programs (June 2007), 
available at http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/
4350.3 (last visited June 24, 2010). Moreover, as discussed above, the 
Department's definition of ``service animal'' in the final rule does not 
affect the rights of individuals with disabilities who use assistance 
animals in their homes under the FHAct or who use ``emotional support 
animals'' that are covered under the ACAA and its implementing 
regulations. See 14 CFR 382.7 et seq.; see also Department of 
Transportation, Guidance Concerning Service Animals in Air 
Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing 
accommodation of service animals and emotional support animals on 
aircraft).

              ``Video Remote Interpreting (VRI) Services''

    In the NPRM, the Department proposed adding ``Video Interpreting 
Services (VIS)'' to the list of auxiliary aids available to provide 
effective communication. In the preamble to the NPRM, VIS was defined as 
``a technology composed of a video phone, video monitors, cameras, a 
high-speed Internet connection, and an interpreter. The video phone 
provides video transmission to a video monitor that permits the 
individual who is deaf or hard of hearing to view and sign to a video 
interpreter (i.e., a live interpreter in another location), who can see 
and sign to the individual through a camera located on or near the 
monitor, while others can communicate by speaking. The video monitor can 
display a split screen of two live images, with the interpreter in one 
image and the individual who is deaf or hard of hearing in the other 
image.'' 73 FR 34508, 34522 (June 17, 2008). Comments from advocacy 
organizations and individuals unanimously requested that the Department 
use the term ``video remote interpreting (VRI),'' instead of VIS, for 
consistency with Federal Communications Commission (FCC) regulations, 
FCC Public Notice, DA-0502417 (Sept. 7, 2005), and with common usage by 
consumers. The Department has made that change throughout the regulation 
to avoid confusion and to make the regulation more consistent with 
existing regulations.
    Many commenters also requested that the Department distinguish 
between VRI and ``video relay service (VRS).'' Both VRI and VRS use a 
remote interpreter who is able to see and communicate with a deaf person 
and a hearing person, and all three individuals may be connected by a 
video link. VRI is a fee-based interpreting service conveyed via 
videoconferencing where at least one person, typically the interpreter, 
is at a separate location. VRI can be provided as an on-demand

[[Page 796]]

service or by appointment. VRI normally involves a contract in advance 
for the interpreter who is usually paid by the covered entity.
    VRS is a telephone service that enables persons with disabilities to 
use the telephone to communicate using video connections and is a more 
advanced form of relay service than the traditional voice to text 
telephones (TTY) relay systems that were recognized in the 1991 title 
III regulation. More specifically, VRS is a video relay service using 
interpreters connected to callers by video hook-up and is designed to 
provide telephone services to persons who are deaf and use American Sign 
Language that are functionally equivalent to those services provided to 
users who are hearing. VRS is funded through the Interstate 
Telecommunications Relay Services Fund and overseen by the FCC. See 47 
CFR 64.601(a)(26). There are no fees for callers to use the VRS 
interpreters and the video connection, although there may be relatively 
inexpensive initial costs to the title III entities to purchase the 
videophone or camera for on-line video connection, or other equipment to 
connect to the VRS service. The FCC has made clear that VRS functions as 
a telephone service and is not intended to be used for interpreting 
services where both parties are in the same room; the latter is reserved 
for VRI. The Department agrees that VRS cannot be used as a substitute 
for in-person interpreters or for VRI in situations that would not, 
absent one party's disability, entail use of the telephone.
    Many commenters strongly recommended limiting the use of VRI to 
circumstances where it will provide effective communication. Commenters 
from advocacy groups and persons with disabilities expressed concern 
that VRI may not always be appropriate to provide effective 
communication, especially in hospitals and emergency rooms. Examples 
were provided of patients who are unable to see the video monitor 
because they are semi-conscious or unable to focus on the video screen; 
other examples were given of cases where the video monitor is out of the 
sightline of the patient or the image is out of focus; still other 
examples were given of patients who could not see the image because the 
signal was interrupted, causing unnatural pauses in the communication, 
or the image was grainy or otherwise unclear. Many commenters requested 
more explicit guidelines on the use of VRI and some recommended 
requirements for equipment maintenance, high-speed, wide-bandwidth video 
links using dedicated lines or wireless systems, and training of staff 
using VRI, especially in hospital and health care situations. Several 
major organizations requested a requirement to include the interpreter's 
face, head, arms, hands, and eyes in all transmissions.
    After consideration of the comments and the Department's own 
research and experience, the Department has determined that VRI can be 
an effective method of providing interpreting services in certain 
circumstances, but not in others. For example, VRI should be effective 
in many situations involving routine medical care, as well as in the 
emergency room where urgent care is important, but no in-person 
interpreter is available; however, VRI may not be effective in 
situations involving surgery or other medical procedures where the 
patient is limited in his or her ability to see the video screen. 
Similarly, VRI may not be effective in situations where there are 
multiple people in a room and the information exchanged is highly 
complex and fast paced. The Department recognizes that in these and 
other situations, such as where communication is needed for persons who 
are deaf-blind, it may be necessary to summon an in-person interpreter 
to assist certain individuals. To ensure that VRI is effective in 
situations where it is appropriate, the Department has established 
performance standards in Sec. 36.303(f).

                     Subpart B--General Requirements

                    Section 36.208(b)  Direct Threat

    The Department has revised the language of Sec. 36.208(b) (formerly 
Sec. 36.208(c) in the 1991 title III regulation) to include 
consideration of whether the provision of auxiliary aids or services 
will mitigate the risk that an individual will pose a direct threat to 
the health or safety of others. Originally, the reference to auxiliary 
aids or services as a mitigating factor was part of Sec. 36.208. 
However, that reference was removed from the section when, for editorial 
purposes, the Department removed the definition of ``direct threat'' 
from Sec. 36.208 and placed it in Sec. 36.104. The Department has put 
the reference to auxiliary aids or services as a mitigating factor back 
into Sec. 36.208(b) in order to maintain consistency with the current 
regulation.

           Section 36.211  Maintenance of Accessible Features

    Section 36.211 of the 1991 title III regulation provides that a 
public accommodation must maintain in operable working condition those 
features of facilities and equipment that are required to be readily 
accessible to and usable by individuals with disabilities. 28 CFR 
36.211. In the NPRM, the Department clarified the application of this 
provision and proposed one change to the section to address the discrete 
situation in which the scoping requirements provided in the 2010 
Standards reduce the number of required elements below the requirements 
of the 1991 Standards. In that discrete event, a

[[Page 797]]

public accommodation may reduce such accessible features in accordance 
with the requirements in the 2010 Standards.
    The Department received only four comments on this proposed 
amendment. None of the commenters opposed the change. In the final rule, 
the Department has revised the section to make it clear that if the 2010 
Standards reduce either the technical requirements or the number of 
required accessible elements below that required by the 1991 Standards, 
then the public accommodation may reduce the technical requirements or 
the number of accessible elements in a covered facility in accordance 
with the requirements of the 2010 Standards. One commenter, an 
association of convenience stores, urged the Department to expand the 
language of the section to include restocking of shelves as a 
permissible activity for isolated or temporary interruptions in service 
or access. It is the Department's position that a temporary interruption 
that blocks an accessible route, such as restocking of shelves, is 
already permitted by existing Sec. 36.211(b), which clarifies that 
``isolated or temporary interruptions in service or access due to 
maintenance or repairs'' are permitted. Therefore, the Department will 
not make any additional changes in the language of Sec. 36.211 other 
than those discussed in the preceding paragraph.

                    Subpart C--Specific Requirements

   Section 36.302  Modifications in Policies, Practices, or Procedures

                   Section 36.302(c)  Service Animals

    Section 36.302(c)(1) of the 1991 title III regulation states that 
``[g]enerally, a public accommodation shall modify [its] policies, 
practices, or procedures to permit the use of service animals by an 
individual with a disability.'' Section 36.302(c)(2) of the 1991 title 
III regulation states that ``[n]othing in this part requires a public 
accommodation to supervise or care for a service animal.'' The 
Department has decided to retain the scope of the 1991 title III 
regulation while clarifying the Department's longstanding policies and 
interpretations. Toward that end, the final rule has been revised to 
include the Department's policy interpretations as outlined in published 
technical assistance, Commonly Asked Questions about Service Animals in 
Places of Business (1996), available at http://www.ada.gov/qasrvc.htm, 
and ADA Guide for Small Businesses (1999), available at http://
www.ada.gov/smbustxt.htm, and to add that a public accommodation may 
exclude a service animal in certain circumstances where the service 
animal fails to meet certain behavioral standards. The Department 
received extensive comments in response to proposed Sec. 36.302(c) from 
individuals, disability advocacy groups, organizations involved in 
training service animals, and public accommodations. Those comments and 
the Department's response are discussed below.
    Exclusion of service animals. The 1991 regulatory provision in 
Sec. 36.302(c) addresses reasonable modification and remains unchanged 
in the final rule. However, based on comments received and the 
Department's analysis, the Department has decided to clarify those 
circumstances where otherwise eligible service animals may be excluded 
by public accommodations.
    In the NPRM, in Sec. 36.302(c)(2)(i), the Department proposed that a 
public accommodation may ask an individual with a disability to remove a 
service animal from the place of public accommodation if ``[t]he animal 
is out of control and the animal's handler does not take effective 
action to control it.'' 73 FR 34508, 34553 (June 17, 2008). The 
Department has long held that a service animal must be under the control 
of the handler at all times. Commenters overwhelmingly were in favor of 
this language, but noted that there are occasions when service animals 
are provoked to disruptive or aggressive behavior by agitators or 
troublemakers, as in the case of a blind individual whose service dog is 
taunted or pinched. While all service animals are trained to ignore and 
overcome these types of incidents, misbehavior in response to 
provocation is not always unreasonable. In circumstances where a service 
animal misbehaves or responds reasonably to a provocation or injury, the 
public accommodation must give the handler a reasonable opportunity to 
gain control of the animal. Further, if the individual with a disability 
asserts that the animal was provoked or injured, or if the public 
accommodation otherwise has reason to suspect that provocation or injury 
has occurred, the public accommodation should seek to determine the 
facts and, if provocation or injury occurred, the public accommodation 
should take effective steps to prevent further provocation or injury, 
which may include asking the provocateur to leave the place of public 
accommodation. This language is unchanged in the final rule.
    The NPRM also proposed language at Sec. 36.302(c)(2)(ii) to permit a 
public accommodation to exclude a service animal if the animal is not 
housebroken (i.e., trained so that, absent illness or accident, the 
animal controls its waste elimination) or the animal's presence or 
behavior fundamentally alters the nature of the service the public 
accommodation provides (e.g., repeated barking during a live 
performance). Several commenters were supportive of this NPRM language, 
but cautioned against overreaction by the public accommodation in these 
instances. One commenter noted that animals get sick, too, and that 
accidents occasionally happen. In these circumstances, simple clean

[[Page 798]]

up typically addresses the incident. Commenters noted that the public 
accommodation must be careful when it excludes a service animal on the 
basis of ``fundamental alteration,'' asserting for example, that a 
public accommodation should not exclude a service animal for barking in 
an environment where other types of noise, such as loud cheering or a 
child crying, is tolerated. The Department maintains that the 
appropriateness of an exclusion can be assessed by reviewing how a 
public accommodation addresses comparable situations that do not involve 
a service animal. The Department has retained in Sec. 36.302(c)(2) of 
the final rule the exception requiring animals to be housebroken. The 
Department has not retained the specific NPRM language stating that 
animals can be excluded if their presence or behavior fundamentally 
alters the nature of the service provided by the public accommodation, 
because the Department believes that this exception is covered by the 
general reasonable modification requirement contained in 
Sec. 36.302(c)(1).
    The NPRM also proposed in Sec. 36.302(c)(2)(iii) that a service 
animal can be excluded where ``[t]he animal poses a direct threat to the 
health or safety of others that cannot be eliminated by reasonable 
modifications.'' 73 FR 34508, 34553 (June 17, 2008). Commenters were 
universally supportive of this provision as it makes express the 
discretion of a public accommodation to exclude a service animal that 
poses a direct threat. Several commenters cautioned against the overuse 
of this provision and suggested that the Department provide an example 
of the rule's application. The Department has decided not to include 
regulatory language specifically stating that a service animal can be 
excluded if it poses a direct threat. The Department believes that the 
direct threat provision in Sec. 36.208 already provides this exception 
to public accommodations.
    Access to a public accommodation following the proper exclusion of a 
service animal. The NPRM proposed that in the event a public 
accommodation properly excludes a service animal, the public 
accommodation must give the individual with a disability the opportunity 
to obtain the goods and services of the public accommodation without 
having the service animal on the premises. Most commenters welcomed this 
provision as a common sense approach. These commenters noted that they 
do not wish to preclude individuals with disabilities from the full and 
equal enjoyment of the goods and services simply because of an isolated 
problem with a service animal. The Department has elected to retain this 
provision in Sec. 36.302(c)(2).
    Other requirements. The NPRM also proposed that the regulation 
include the following requirements: that the work or tasks performed by 
the service animal must be directly related to the handler's disability; 
that a service animal must be individually trained to do work or perform 
a task, be housebroken, and be under the control of the handler; and 
that a service animal must have a harness, leash, or other tether. Most 
commenters addressed at least one of these issues in their responses. 
Most agreed that these provisions are important to clarify further the 
1991 service animal regulation. The Department has moved the requirement 
that the work or tasks performed by the service animal must be related 
directly to the individual's disability to the definition of `service 
animal' in Sec. 36.104. In addition, the Department has modified the 
proposed language relating to the handler's control of the animal with a 
harness, leash, or other tether to state that ``[a] service animal shall 
have a harness, leash, or other tether, unless either the handler is 
unable because of a disability to use a harness, leash, or other tether, 
or the use of a harness, leash, or other tether would interfere with the 
service animal's safe, effective performance of work or tasks, in which 
case the service animal must be otherwise under the handler's control 
(e.g., voice control, signals, or other effective means).'' The 
Department has retained the requirement that the service animal must be 
individually trained, as well as the requirement that the service animal 
be housebroken.
    Responsibility for supervision and care of a service animal. The 
1991 title III regulation, in Sec. 36.302(c)(2), states that ``[n]othing 
in this part requires a public accommodation to supervise or care for a 
service animal.'' The NPRM modified this language to state that ``[a] 
public accommodation is not responsible for caring for or supervising a 
service animal.'' 73 FR 34508, 34553 (June 17, 2008). Most commenters 
did not address this particular provision. The Department notes that 
there are occasions when a person with a disability is confined to bed 
in a hospital for a period of time. In such an instance, the individual 
may not be able to walk or feed the service animal. In such cases, if 
the individual has a family member, friend, or other person willing to 
take on these responsibilities in the place of the individual with a 
disability, the individual's obligation to be responsible for the care 
and supervision of the service animal would be satisfied. The language 
of this section is retained, with minor modifications, in 
Sec. 36.302(c)(5) of the final rule.
    Inquiries about service animals. The NPRM proposed language at 
Sec. 36.302(c)(6) setting forth parameters about how a public 
accommodation may determine whether an animal qualifies as a service 
animal. The proposed section stated that a public accommodation may ask 
if the animal is required because of a disability and what task or work 
the animal has been trained to do but may not require proof of service 
animal certification or

[[Page 799]]

licensing. Such inquiries are limited to eliciting the information 
necessary to make a decision without requiring disclosure of 
confidential disability-related information that a public accommodation 
does not need.
    This language is consistent with the policy guidance outlined in two 
Department publications, Commonly Asked Questions about Service Animals 
in Places of Business (1996), available at http://www.ada.gov/
qasrvc.htm, and ADA Guide for Small Businesses (1999), available at 
http://www.ada.gov/smbustxt.htm.
    Although some commenters contended that the NPRM service animal 
provisions leave unaddressed the issue of how a public accommodation can 
distinguish between a psychiatric service animal, which is covered under 
the final rule, and a comfort animal, which is not, other commenters 
noted that the Department's published guidance has helped public 
accommodations to distinguish between service animals and pets on the 
basis of an individual's response to these questions. Accordingly, the 
Department has retained the NPRM language incorporating its guidance 
concerning the permissible questions into the final rule.
    Some commenters suggested that a title III entity be allowed to 
require current documentation, no more than one year old, on letterhead 
from a mental health professional stating the following: (1) That the 
individual seeking to use the animal has a mental health-related 
disability; (2) that having the animal accompany the individual is 
necessary to the individual's mental health or treatment or to assist 
the person otherwise; and (3) that the person providing the assessment 
of the individual is a licensed mental health professional and the 
individual seeking to use the animal is under that individual's 
professional care. These commenters asserted that this will prevent 
abuse and ensure that individuals with legitimate needs for psychiatric 
service animals may use them. The Department believes that this proposal 
would treat persons with psychiatric, intellectual, and other mental 
disabilities less favorably than persons with physical or sensory 
disabilities. The proposal would also require persons with disabilities 
to obtain medical documentation and carry it with them any time they 
seek to engage in ordinary activities of daily life in their 
communities--something individuals without disabilities have not been 
required to do. Accordingly, the Department has concluded that a 
documentation requirement of this kind would be unnecessary, burdensome, 
and contrary to the spirit, intent, and mandates of the ADA.
    Service animal access to areas of a public accommodation. The NPRM 
proposed at Sec. 36.302(c)(7) that an individual with a disability who 
uses a service animal has the same right of access to areas of a public 
accommodation as members of the public, program participants, and 
invitees. Commenters indicated that allowing individuals with 
disabilities to go with their service animals into the same areas as 
members of the public, program participants, clients, customers, 
patrons, or invitees is accepted practice by most places of public 
accommodation. The Department has included a slightly modified version 
of this provision in Sec. 36.302(c)(7) of the final rule.
    The Department notes that under the final rule, a healthcare 
facility must also permit a person with a disability to be accompanied 
by a service animal in all areas of the facility in which that person 
would otherwise be allowed. There are some exceptions, however. The 
Department follows the guidance of the Centers for Disease Control and 
Prevention (CDC) on the use of service animals in a hospital setting. 
Zoonotic diseases can be transmitted to humans through bites, scratches, 
direct contact, arthropod vectors, or aerosols.
    Consistent with CDC guidance, it is generally appropriate to exclude 
a service animal from limited-access areas that employ general 
infection-control measures, such as operating rooms and burn units. See 
Centers for Disease Control and Prevention, Guidelines for Environmental 
Infection Control in Health-Care Facilities: Recommendations of CDC and 
the Healthcare Infection Control Practices Advisory Committee (June 
2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/
eic_in_HCF_03.pdf (last visited June 24, 2010). A service animal may 
accompany its handler to such areas as admissions and discharge offices, 
the emergency room, inpatient and outpatient rooms, examining and 
diagnostic rooms, clinics, rehabilitation therapy areas, the cafeteria 
and vending areas, the pharmacy, restrooms, and all other areas of the 
facility where healthcare personnel, patients, and visitors are 
permitted without taking added precautions.
    Prohibition against surcharges for use of a service animal. In the 
NPRM, the Department proposed to incorporate the previously mentioned 
policy guidance, which prohibits the assessment of a surcharge for the 
use of a service animal, into proposed Sec. 36.302(c)(8). Several 
commenters agreed that this provision makes clear the obligation of a 
place of public accommodation to admit an individual with a service 
animal without surcharges, and that any additional costs imposed should 
be factored into the overall cost of doing business and passed on as a 
charge to all participants, rather than an individualized surcharge to 
the service animal user. Commenters also noted that service animal users 
cannot be required to comply with other requirements that are not 
generally applicable to other persons. If a public accommodation 
normally charges individuals for the damage they cause, an individual 
with a disability may be charged for damage

[[Page 800]]

caused by his or her service animals. The Department has retained this 
language, with minor modifications, in the final rule at 
Sec. 36.302(c)(8).
    Training requirement. Certain commenters recommended the adoption of 
formal training requirements for service animals. The Department has 
rejected this approach and will not impose any type of formal training 
requirements or certification process, but will continue to require that 
service animals be individually trained to do work or perform tasks for 
the benefit of an individual with a disability. While some groups have 
urged the Department to modify this position, the Department has 
determined that such a modification would not serve the full array of 
individuals with disabilities who use service animals, since individuals 
with disabilities may be capable of training, and some have trained, 
their service animal to perform tasks or do work to accommodate their 
disability. A training and certification requirement would increase the 
expense of acquiring a service animal and might limit access to service 
animals for individuals with limited financial resources.
    Some commenters proposed specific behavior or training standards for 
service animals, arguing that without such standards, the public has no 
way to differentiate between untrained pets and service animals. Many of 
the suggested behavior or training standards were lengthy and detailed. 
The Department believes that this rule addresses service animal behavior 
sufficiently by including provisions that address the obligations of the 
service animal user and the circumstances under which a service animal 
may be excluded, such as the requirements that an animal be housebroken 
and under the control of its handler.
    Miniature horses. The Department has been persuaded by commenters 
and the available research to include a provision that would require 
public accommodations to make reasonable modifications to policies, 
practices, or procedures to permit the use of a miniature horse by a 
person with a disability if the miniature horse has been individually 
trained to do work or perform tasks for the benefit of the individual 
with a disability. The traditional service animal is a dog, which has a 
long history of guiding individuals who are blind or have low vision, 
and over time dogs have been trained to perform an even wider variety of 
services for individuals with all types of disabilities. However, an 
organization that developed a program to train miniature horses, modeled 
on the program used for guide dogs, began training miniature horses in 
1991.
    Although commenters generally supported the species limitations 
proposed in the NPRM, some were opposed to the exclusion of miniature 
horses from the definition of a service animal. These commenters noted 
that these animals have been providing assistance to persons with 
disabilities for many years. Miniature horses were suggested by some 
commenters as viable alternatives to dogs for individuals with 
allergies, or for those whose religious beliefs preclude the use of 
dogs. Another consideration mentioned in favor of the use of miniature 
horses is the longer life span and strength of miniature horses in 
comparison to dogs. Specifically, miniature horses can provide service 
for more than 25 years while dogs can provide service for approximately 
seven years, and, because of their strength, miniature horses can 
provide services that dogs cannot provide. Accordingly, use of miniature 
horses reduces the cost involved to retire, replace, and train 
replacement service animals.
    The miniature horse is not one specific breed, but may be one of 
several breeds, with distinct characteristics that produce animals 
suited to service animal work. These animals generally range in height 
from 24 inches to 34 inches measured to the withers, or shoulders, and 
generally weigh between 70 and 100 pounds. These characteristics are 
similar to those of large breed dogs, such as Labrador Retrievers, Great 
Danes, and Mastiffs. Similar to dogs, miniature horses can be trained 
through behavioral reinforcement to be ``housebroken.'' Most miniature 
service horse handlers and organizations recommend that when the animals 
are not doing work or performing tasks, the miniature horses should be 
kept outside in a designated area instead of indoors in a house.
    According to information provided by an organization that trains 
service horses, these miniature horses are trained to provide a wide 
array of services to their handlers, primarily guiding individuals who 
are blind or have low vision, pulling wheelchairs, providing stability 
and balance for individuals with disabilities that impair the ability to 
walk, and supplying leverage that enables a person with a mobility 
disability to get up after a fall. According to the commenter, miniature 
horses are particularly effective for large stature individuals. The 
animal can be trained to stand (and in some cases, lie down) at the 
handler's feet in venues where space is at a premium, such as assembly 
areas or inside some vehicles that provide public transportation. Some 
individuals with disabilities have traveled by train and have flown 
commercially with their miniature horses.
    The miniature horse is not included in the definition of service 
animal, which is limited to dogs. However, the Department has added a 
specific provision at Sec. 36.302(c)(9) of the final rule covering 
miniature horses. Under this provision, public accommodations must make 
reasonable modifications in policies, practices, or procedures to permit 
the use of a miniature horse by an individual with a

[[Page 801]]

disability if the miniature horse has been individually trained to do 
work or perform tasks for the benefit of the individual with a 
disability. The public accommodation may take into account a series of 
assessment factors in determining whether to allow a miniature horse 
into a specific facility. These include the type, size, and weight of 
the miniature horse, whether the handler has sufficient control of the 
miniature horse, whether the miniature horse is housebroken, and whether 
the miniature horse's presence in a specific facility compromises 
legitimate safety requirements that are necessary for safe operation. In 
addition, paragraphs (c)(3)B-(8) of this section, which are applicable 
to dogs, also apply to miniature horses.
    Ponies and full-size horses are not covered by Sec. 36.302(c)(9). 
Also, because miniature horses can vary in size and can be larger and 
less flexible than dogs, covered entities may exclude this type of 
service animal if the presence of the miniature horse, because of its 
larger size and lower level of flexibility, results in a fundamental 
alteration to the nature of the services provided.

                  Section 36.302(e) Hotel Reservations

    Section 36.302 of the 1991 title III regulation requires public 
accommodations to make reasonable modifications in policies, practices, 
or procedures when such modifications are necessary to afford access to 
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. Hotels, 
timeshare resorts, and other places of lodging are subject to this 
requirement and must make reasonable modifications to reservations 
policies, practices, or procedures when necessary to ensure that 
individuals with disabilities are able to reserve accessible hotel rooms 
with the same efficiency, immediacy, and convenience as those who do not 
need accessible guest rooms.
    Each year the Department receives many complaints concerning failed 
reservations. Most of these complaints involve individuals who have 
reserved an accessible hotel room only to discover upon arrival that the 
room they reserved is either not available or not accessible. Although 
problems with reservations services were not addressed in the ANPRM, 
commenters independently noted an ongoing problem with hotel 
reservations and urged the Department to provide regulatory guidance. In 
response, the Department proposed specific language in the NPRM to 
address hotel reservations. In addition, the Department posed several 
questions regarding the current practices of hotels and other 
reservations services including questions about room guarantees and the 
holding and release of accessible rooms. The Department also questioned 
whether public accommodations that provide reservations services for a 
place or places of lodging but do not own, lease (or lease to), or 
operate a place of lodging--referred to in this discussion as ``third-
party reservations services''--should also be subject to the NPRM's 
proposals concerning hotel reservations.
    Although reservations issues were discussed primarily in the context 
of traditional hotels, the new rule modifies the definition of ``places 
of lodging'' to clarify the scope of the rule's coverage of rental 
accommodations in timeshare properties, condominium hotels, and mixed-
use and corporate hotel facilities that operate as places of public 
accommodation (as that term is now defined in Sec. 36.104), and the 
Department received detailed comments, discussed below, regarding the 
application of reservations requirements to this category of rental 
accommodations.
    General rule on reservations. Section 36.302(e)(1) of the NPRM 
required a public accommodation that owns, leases (or leases to), or 
operates a place of lodging to:

    Modify its policies, practices, or procedures to ensure that 
individuals with disabilities can make reservations, including 
reservations made by telephone, in-person, or through a third party, for 
accessible guest rooms during the same hours and in the same manner as 
individuals who do not need accessible rooms.
73 FR 34508, 34553 (June 17, 2008).
    Most individual commenters and organizations that represent 
individuals with disabilities strongly supported the requirement that 
individuals with disabilities should be able to make reservations for 
accessible guest rooms during the same hours and in the same manner as 
individuals who do not need accessible rooms. In many cases individuals 
with disabilities expressed frustration because, while they are aware of 
improvements in architectural access brought about as a result of the 
ADA, they are unable to take advantage of these improvements because of 
shortcomings in current hotel reservations systems. A number of these 
commenters pointed out that it can be difficult or impossible to obtain 
information about accessible rooms and hotel features and that even when 
information is provided it often is found to be incorrect upon arrival. 
They also noted difficulty reserving accessible rooms and the inability 
to guarantee or otherwise ensure that the appropriate accessible room is 
available when the guest arrives. The ability to obtain information 
about accessible guest rooms, to make reservations for accessible guest 
rooms in the same manner as other guests, and to be assured of an 
accessible room upon arrival was of critical importance to these 
commenters.

[[Page 802]]

    Other commenters, primarily hotels, resort developers, travel 
agencies, and organizations commenting on their behalf, did not oppose 
the general rule on reservations, but recommended that the language 
requiring that reservations be made ``in the same manner'' be changed to 
require that reservations be made ``in a substantially similar manner.'' 
These commenters argued that hotel reservations are made in many 
different ways and through a variety of systems. In general, they argued 
that current reservations database systems may not contain sufficient 
information to permit guests, travel agents, or other third-party 
reservations services to select the most appropriate room without 
consulting directly with the hotel, and that updating these systems 
might be expensive and time consuming. They also noted that in some 
cases, hotels do not always automatically book accessible rooms when 
requested to do so. Instead, guests may select from a menu of 
accessibility and other room options when making reservations. This 
information is transmitted to the hotel's reservations staff, who then 
contact the individual to verify the guest's accessibility needs. Only 
when such verification occurs will the accessible room be booked.
    The Department is not persuaded that individuals who need to reserve 
accessible rooms cannot be served in the same manner as those who do 
not, and it appears that there are hotels of all types and sizes that 
already meet this requirement. Further, the Department has been able to 
accomplish this goal in settlement agreements resolving complaints about 
this issue. As stated in the preamble to the NPRM, basic 
nondiscrimination principles mandate that individuals with disabilities 
should be able to reserve hotel rooms with the same efficiency, 
immediacy, and convenience as those who do not need accessible guest 
rooms. The regulation does not require reservations services to create 
new methods for reserving hotel rooms or available timeshare units; 
instead, covered entities must make the modifications needed to ensure 
that individuals who need accessible rooms are able to reserve them in 
the same manner as other guests. If, for example, hotel reservations are 
not final until all hotel guests have been contacted by the hotel to 
discuss the guest's needs, a hotel may follow the same process when 
reserving accessible rooms. Therefore, the Department declines to change 
this language, which has been moved to Sec. 36.302(e)(1)(i). However, in 
response to the commenters who recommended a transition period that 
would allow reservations services time to modify existing reservations 
systems to meet the requirements of this rule, Sec. 36.302(e)(3) now 
provides a 18-month transition period before the requirements of 
Sec. 36.302(e)(1) will be enforced.
    Hotels and organizations commenting on their behalf also requested 
that the language be changed to eliminate any liability for reservations 
made through third parties, arguing that they are unable to control the 
actions of unrelated parties. The rule, both as proposed and as adopted, 
requires covered public accommodations to ensure that reservations made 
on their behalf by third parties are made in a manner that results in 
parity between those who need accessible rooms and those who do not.
    Hotels and other places of lodging that use third-party reservations 
services must make reasonable efforts to make accessible rooms available 
through at least some of these services and must provide these third-
party services with information concerning the accessible features of 
the hotel and the accessible rooms. To the extent a hotel or other place 
of lodging makes available such rooms and information to a third-party 
reservation provider, but the third party fails to provide the 
information or rooms to people with disabilities in accordance with this 
section, the hotel or other place of lodging will not be responsible.
    Identification of accessible features in hotels and guest rooms. 
NPRM Sec. 36.302(e)(2) required public accommodations that provide hotel 
reservations services to identify and describe the accessible features 
in the hotels and guest rooms offered through that service. This 
requirement is essential to ensure that individuals with disabilities 
receive the information they need to benefit from the services offered 
by the place of lodging. As a practical matter, a public accommodation's 
designation of a guest room as ``accessible'' will not ensure 
necessarily that the room complies with all of the 1991 Standards. In 
older facilities subject to barrier removal requirements, strict 
compliance with the 1991 Standards is not required. Instead, public 
accommodations must remove barriers to the extent that it is readily 
achievable to do so.
    Further, hotel rooms that are in full compliance with current 
standards may differ, and individuals with disabilities must be able to 
ascertain which features--in new and existing facilities--are included 
in the hotel's accessible guest rooms. For example, under certain 
circumstances, an accessible hotel bathroom may meet accessibility 
requirements with either a bathtub or a roll-in shower. The presence or 
absence of particular accessible features such as these may be the 
difference between a room that is usable by a particular person with a 
disability and one that is not.
    Individuals with disabilities strongly supported this requirement. 
In addition to the importance of information about specific access 
features, several commenters pointed out the importance of knowing the 
size and number of beds in a room. Many individuals with disabilities 
travel with family members, personal care assistants, or other 
companions and require rooms with at least two

[[Page 803]]

beds. Although most hotels provide this information when generally 
categorizing the type or class of room (e.g., deluxe suite with king 
bed), as described below, all hotels should consider the size and number 
of beds to be part of the basic information they are required to 
provide.
    Comments made on behalf of reservations services expressed concern 
that unless the word ``hotels'' is stricken from the text, 
Sec. 36.302(e)(2) of the NPRM essentially would require reservations 
systems to include a full accessibility report on each hotel or resort 
property in its system. Along these lines, commenters also suggested 
that the Department identify the specific accessible features of hotel 
rooms that must be described in the reservations system. For example, 
commenters suggested limiting features that must be included to bathroom 
type (tub or roll-in shower) and communications features.
    The Department recognizes that a reservations system is not intended 
to be an accessibility survey. However, specific information concerning 
accessibility features is essential to travelers with disabilities. 
Because of the wide variations in the level of accessibility that 
travelers will encounter, the Department cannot specify what information 
must be included in every instance. For hotels that were built in 
compliance with the 1991 Standards, it may be sufficient to specify that 
the hotel is accessible and, for each accessible room, to describe the 
general type of room (e.g., deluxe executive suite), the size and number 
of beds (e.g., two queen beds), the type of accessible bathing facility 
(e.g., roll-in shower), and communications features available in the 
room (e.g., alarms and visual notification devices). Based on that 
information, many individuals with disabilities will be comfortable 
making reservations.
    For older hotels with limited accessibility features, information 
about the hotel should include, at a minimum, information about 
accessible entrances to the hotel, the path of travel to guest check-in 
and other essential services, and the accessible route to the accessible 
room or rooms. In addition to the room information described above, 
these hotels should provide information about important features that do 
not comply with the 1991 Standards. For example, if the door to the 
``accessible'' room or bathroom is narrower than required, this 
information should be included (e.g., door to guest room measures 30 
inches clear). This width may not meet current standards but may be 
adequate for some wheelchair users who use narrower chairs. In many 
cases, older hotels provide services through alternatives to barrier 
removal, for example, by providing check-in or concierge services at a 
different, accessible location. Reservations services for these entities 
should include this information and provide a way for guests to contact 
the appropriate hotel employee for additional information. To recognize 
that the information and level of detail needed will vary based on the 
nature and age of the facility, Sec. 36.302(e)(2) has been moved to 
Sec. 36.302(e)(1)(ii) in the final rule and modified to require 
reservations services to:
    Identify and describe accessible features in the hotels and guest 
rooms offered through its reservations service in enough detail to 
reasonably permit individuals with disabilities to assess independently 
whether a given hotel or guest room meets his or her accessibility 
needs. [Emphasis added]
    As commenters representing hotels have described, once reservations 
are made, some hotels may wish to contact the guest to offer additional 
information and services. Or, many individuals with disabilities may 
wish to contact the hotel or reservations service for more detailed 
information. At that point, trained staff (including staff located on-
site at the hotel and staff located off-site at a reservations center) 
should be available to provide additional information such as the 
specific layout of the room and bathroom, shower design, grab-bar 
locations, and other amenities available (e.g., bathtub bench).
    In the NPRM, the Department sought guidance concerning whether this 
requirement should be applied to third-party reservations services. 
Comments made by or on behalf of hotels, resort managers, and other 
members of the lodging and resort industry pointed out that, in most 
cases, these third parties do not have direct access to this information 
and must obtain it from the hotel or other place of lodging. Because 
third-party reservations services must rely on the place of lodging to 
provide the requisite information and to ensure that it is accurate and 
timely, the Department has declined to extend this requirement directly 
to third-party reservations services.
    Hold and release of accessible guest rooms. The Department has 
addressed the hold and release of accessible guest rooms in settlement 
agreements and recognizes that current practices vary widely. The 
Department is concerned about current practices by which accessible 
guest rooms are released to the general public even though the hotel is 
not sold out. In such instances, individuals with disabilities may be 
denied an equal opportunity to benefit from the services offered by the 
public accommodation, i.e., a hotel guest room. In the NPRM, the 
Department requested information concerning the current practices of 
hotels and third-party reservations services with respect to (1) holding 
accessible rooms for individuals with disabilities and (2) releasing 
accessible rooms to individuals without disabilities.
    Individuals with disabilities and organizations commenting on their 
behalf strongly supported requiring accessible rooms to be

[[Page 804]]

held back for rental by individuals with disabilities. In some cases 
commenters supported holding back all accessible rooms until all non-
accessible rooms were rented. Others supported holding back accessible 
rooms in each category of rooms until all other rooms of that type were 
reserved. This latter position was also supported in comments received 
on behalf of the lodging industry; commenters also noted that this is 
the current practice of many hotels. In general, holding accessible 
rooms until requested by an individual who needs a room with accessible 
features or until it is the only available room of its type was viewed 
widely as a sensible approach to allocating scarce accessible rooms 
without imposing unnecessary costs on hotels.
    The Department agrees with this latter approach and has added 
Sec. 36.302(e)(1)(iii), which requires covered entities to hold 
accessible rooms for use by individuals with disabilities until all 
other guest rooms of that type have been rented and the accessible room 
requested is the only remaining room of that type. For example, if there 
are 25 rooms of a given type and two of these rooms are accessible, the 
reservations service is required to rent all 23 non-accessible rooms 
before it is permitted to rent these two accessible rooms to individuals 
without disabilities. If a one-of-a-kind room is accessible, that room 
is available to the first party to request it. The Department believes 
that this is the fairest approach available since it reserves accessible 
rooms for individuals who require them until all non-accessible rooms of 
that type have been reserved, and then provides equal access to any 
remaining rooms. It is also fair to hotels because it does not require 
them to forego renting a room that actually has been requested in favor 
of the possibility that an individual with a disability may want to 
reserve it at a later date.
    Requirement to block accessible guest room reservations. NPRM 
Sec. 36.302(e)(3) required a public accommodation that owns, leases (or 
leases to), or operates a place of lodging to guarantee accessible guest 
rooms that are reserved through a reservations service to the same 
extent that it guarantees rooms that are not accessible. In the NPRM, 
the Department sought comment on the current practices of hotels and 
third party reservations services with respect to ``guaranteed'' hotel 
reservations and on the impact of requiring a public accommodation to 
guarantee accessible rooms to the extent it guarantees other rooms.
    Comments received by the Department by and on behalf of both 
individuals with disabilities and public accommodations that provide 
reservations services made clear that, in many cases, when speaking of 
room guarantees, parties who are not familiar with hotel terminology 
actually mean to refer to policies for blocking and holding specific 
hotel rooms. Several commenters explained that, in most cases, when an 
individual makes ``reservations,'' hotels do not reserve specific rooms; 
rather the individual is reserving a room with certain features at a 
given price. When the hotel guest arrives, he or she is provided with a 
room that has those features.
    In most cases, this does not pose a problem because there are many 
available rooms of a given type. However, in comparison, accessible 
rooms are much more limited in availability and there may be only one 
room in a given hotel that meets a guest's needs. As described in the 
discussion on the identification of accessible features in hotels and 
guest rooms, the presence or absence of particular accessible features 
may be the difference between a room that is usable by a particular 
person with a disability and one that is not.
    For that reason, the Department has added Sec. 36.302(e)(1)(iv) to 
the final rule. Section 36.302(e)(1)(iv) requires covered entities to 
reserve, upon request, accessible guest rooms or specific types of guest 
rooms and ensure that the guest rooms requested are blocked and removed 
from all reservations systems (to eliminate double-booking, which is a 
common problem that arises when rooms are made available to be reserved 
through more than one reservations service). Of course, if a public 
accommodation typically requires a payment or deposit from its patrons 
in order to reserve a room, it may require the same payment or deposit 
from individuals with disabilities before it reserves an accessible room 
and removes it from all its reservations systems. These requirements 
should alleviate the widely-reported problem of arriving at a hotel only 
to discover that, although an accessible room was reserved, the room 
available is not accessible or does not have the specific accessible 
features needed. Many hotels already have a similar process in place for 
other guest rooms that are unique or one-of-a-kind, such as 
``Presidential'' suites. The Department has declined to extend this 
requirement directly to third-party reservations services. Comments the 
Department received in response to the NPRM indicate that most of the 
actions required to implement these requirements primarily are within 
the control of the entities that own the place of lodging or that manage 
it on behalf of its owners.
    Guarantees of reservations for accessible guest rooms. The 
Department recognizes that not all reservations are guaranteed, and the 
rule does not impose an affirmative duty to guarantee reservations. When 
a public accommodation does guarantee hotel or other room reservations, 
it must provide the same guarantee for accessible guest rooms as it 
makes for other rooms, except that it must apply that guarantee to the 
specific room reserved and blocked, even if in other situations, its

[[Page 805]]

guarantee policy only guarantees that a room of a specific type will be 
available at the guaranteed price. Without this reasonable modification 
to its guarantee policy, any guarantee for accessible rooms would be 
meaningless. If, for example, a hotel makes reservations for an 
accessible ``Executive Suite'' but, upon arrival, offers its guest an 
inaccessible Executive Suite that the guest is unable to enter, it would 
be meaningless to consider the hotel's guarantee fulfilled. As with the 
requirements for identifying, holding, and blocking accessible rooms, 
the Department has declined to extend this requirement directly to 
third-party reservations services because the fulfillment of guarantees 
largely is beyond their power to control.
    Application to rental units in timeshare, vacation communities, and 
condo-hotels. Because the Department has revised the definition of 
``Places of Lodging'' in the final rule, the reservations requirements 
now apply to guest rooms and other rental units in timeshares, vacation 
communities, and condo-hotels where some or all of the units are owned 
and controlled by individual owners and rented out some portion of time 
to the public, as compared to traditional hotels and motels that are 
owned, controlled, and rented to the public by one entity. If a 
reservations service owns and controls one or more of the guest rooms or 
other units in the rental property (e.g., a developer who retains and 
rents out unsold inventory), it is subject to the requirements set forth 
in Sec. 36.302(e).
    Several commenters expressed concern about any rule that would 
require accessible units that are owned individually to be removed from 
the rental pool and rented last. Commenters pointed out that this would 
be a disadvantage to the owners of accessible units because they would 
be rented last, if at all. Further, certain vacation property managers 
consider holding specific units back to be a violation of their ethical 
responsibility to present all properties they manage at an equal 
advantage. To address these concerns, the Department has added 
Sec. 36.302(e)(2), which exempts reservations for individual guest rooms 
and other units that are not owned or substantially controlled by the 
entity that owns, leases, or operates the overall facility from the 
requirement that accessible guest rooms be held back from rental until 
all other guest rooms of that type have been rented. Section 
36.302(e)(2) also exempts such rooms from requirements for blocking and 
guaranteeing reserved rooms. In resort developments with mixed ownership 
structures, such as a resort where some units are operated as hotel 
rooms and others are owned and controlled individually, a reservations 
service operated by the owner of the hotel portion may apply the 
exemption only to the rooms that are not owned or substantially 
controlled by the entity that owns, manages, or otherwise controls the 
overall facility.
    Other reservations-related comments made on behalf of these entities 
reflected concerns similar to the general concerns expressed with 
respect to traditional hotel properties. For example, commenters noted 
that because of the unique nature of the timeshare industry, additional 
flexibility is needed when making reservations for accessible units. One 
commenter explained that reservations are sometimes made through unusual 
entities such as exchange companies, which are not public accommodations 
and which operate to trade ownership interests of millions of individual 
owners. The commenter expressed concern that developers or resort owners 
would be held responsible for the actions of these exchange entities. 
If, as described, the choice to list a unit with an exchange company is 
made by the individual owner of the property and the exchange company 
does not operate on behalf of the reservations service, the reservations 
service is not liable for the exchange company's actions.
    As with hotels, the Department believes that within the 18-month 
transition period these reservations services should be able to modify 
their systems to ensure that potential guests with disabilities who need 
accessible rooms can make reservations during the same hours and in the 
same manner as those who do not need accessible rooms.

                      Section 36.302(f)  Ticketing

    The 1991 title III regulation did not contain specific regulatory 
language on ticketing. The ticketing policies and practices of public 
accommodations, however, are subject to title III's nondiscrimination 
provisions. Through the investigation of complaints, enforcement 
actions, and public comments related to ticketing, the Department became 
aware that some venue operators, ticket sellers, and distributors were 
violating title III's nondiscrimination mandate by not providing 
individuals with disabilities the same opportunities to purchase tickets 
for accessible seating as provided to spectators purchasing conventional 
seats. In the NPRM, the Department proposed Sec. 36.302(f) to provide 
explicit direction and guidance on discriminatory practices for entities 
involved in the sale or distribution of tickets.
    The Department received comments from advocacy groups, assembly area 
trade associations, public accommodations, and individuals. Many 
commenters supported the addition of regulatory language pertaining to 
ticketing and urged the Department to retain it in the final rule. 
Several commenters, however, questioned why there were inconsistencies 
between the title II and title III

[[Page 806]]

provisions and suggested that the same language be used for both titles. 
The Department has decided to retain ticketing regulatory language and 
to ensure consistency between the ticketing provisions in title II and 
title III.
    Because many in the ticketing industry view season tickets and other 
multi-event packages differently from individual tickets, the Department 
bifurcated some season ticket provisions from those concerning single-
event tickets in the NPRM. This structure, however, resulted in some 
provisions being repeated for both types of tickets but not for others 
even though they were intended to apply to both types of tickets. The 
result was that it was not entirely clear that some of the provisions 
that were not repeated also were intended to apply to season tickets. 
The Department is addressing the issues raised by these commenters using 
a different approach. For the purposes of this section, a single event 
refers to an individual performance for which tickets may be purchased. 
In contrast, a series of events includes, but is not limited to, 
subscription events, event packages, season tickets, or any other 
tickets that may be purchased for multiple events of the same type over 
the course of a specified period of time whose ownership right reverts 
to the public accommodation at the end of each season or time period. 
Series-of-events tickets that give their holders an enhanced ability to 
purchase such tickets from the public accommodation in seasons or 
periods of time that follow, such as a right of first refusal or higher 
ranking on waiting lists for more desirable seats, are subject to the 
provisions in this section. In addition, the final rule merges together 
some NPRM paragraphs that dealt with related topics and has reordered 
and renamed some of the paragraphs that were in the NPRM.
    Ticket sales. In the NPRM, the Department proposed, in 
Sec. 36.302(f)(1), a general rule that a public accommodation shall 
modify its policies, practices, or procedures to ensure that individuals 
with disabilities can purchase tickets for accessible seating for an 
event or series of events in the same way as others (i.e., during the 
same hours and through the same distribution methods as other seating is 
sold). ``Accessible seating'' is defined in Sec. 36.302(f)(1)(i) of the 
final rule to mean ``wheelchair spaces and companion seats that comply 
with sections 221 and 802 of the 2010 Standards along with any other 
seats required to be offered for sale to the individual with a 
disability pursuant to paragraph (4) of this section.'' The defined term 
does not include designated aisle seats. A ``wheelchair space'' refers 
to a space for a single wheelchair and its occupant.
    The NPRM proposed requiring that accessible seats be sold through 
the ``same methods of distribution'' as non-accessible seats. 73 FR 
34508, 34554 (June 17, 2008). Comments from venue managers and others in 
the business community, in general, noted that multiple parties are 
involved in ticketing, and because accessible seats may not be allotted 
to all parties involved at each stage, such parties should be protected 
from liability. For example, one commenter noted that a third-party 
ticket vendor, like Ticketmaster, can only sell the tickets it receives 
from its client. Because Sec. 36.302(f)(1) of the final rule requires 
venue operators to make available accessible seating through the same 
methods of distribution they use for their regular tickets, venue 
operators that provide tickets to third-party ticket vendors are 
required to provide accessible seating to the third-party ticket vendor. 
This provision will enhance third-party ticket vendors' ability to 
acquire and sell accessible seating for sale in the future. The 
Department notes that once third-party ticket vendors acquire accessible 
tickets, they are obligated to sell them in accordance with these rules.
    The Department also has received frequent complaints that 
individuals with disabilities have not been able to purchase accessible 
seating over the Internet, and instead have had to engage in a laborious 
process of calling a customer service line, or sending an email to a 
customer service representative and waiting for a response. Not only is 
such a process burdensome, but it puts individuals with disabilities at 
a disadvantage in purchasing tickets for events that are popular and may 
sell out in minutes. Because Sec. 36.302(f)(5) of the final rule 
authorizes venues to release accessible seating in case of a sell-out, 
individuals with disabilities effectively could be cut off from buying 
tickets unless they also have the ability to purchase tickets in real 
time over the Internet. The Department's new regulatory language is 
designed to address this problem.
    Several commenters representing assembly areas raised concerns about 
offering accessible seating for sale over the Internet. They contended 
that this approach would increase the incidence of fraud since anyone 
easily could purchase accessible seating over the Internet. They also 
asserted that it would be difficult technologically to provide 
accessible seating for sale in real time over the Internet, or that to 
do so would require simplifying the rules concerning the purchase of 
multiple additional accompanying seats. Moreover, these commenters 
argued that requiring an individual purchasing accessible seating to 
speak with a customer service representative would allow the venue to 
meet the patron's needs most appropriately and ensure that wheelchair 
spaces are reserved for individuals with disabilities who require 
wheelchair spaces. Finally, these commenters argued that individuals who 
can transfer effectively and conveniently from a wheelchair to a seat 
with a movable armrest

[[Page 807]]

seat could instead purchase designated aisle seats.
    The Department considered these concerns carefully and has decided 
to continue with the general approach proposed in the NPRM. Although 
fraud is an important concern, the Department believes that it is best 
combated by other means that would not have the effect of limiting the 
ability of individuals with disabilities to purchase tickets, 
particularly since restricting the purchase of accessible seating over 
the Internet will, of itself, not curb fraud. In addition, the 
Department has identified permissible means for covered entities to 
reduce the incidence of fraudulent accessible seating ticket purchases 
in Sec. 36.302(f)(8) of the final rule.
    Several commenters questioned whether ticket Web sites themselves 
must be accessible to individuals who are blind or have low vision, and 
if so, what that requires. The Department has consistently interpreted 
the ADA to cover Web sites that are operated by public accommodations 
and stated that such sites must provide their services in an accessible 
manner or provide an accessible alternative to the Web site that is 
available 24 hours a day, seven days a week. The final rule, therefore, 
does not impose any new obligation in this area. The accessibility of 
Web sites is discussed in more detail in the section entitled ``Other 
Issues.''
    In Sec. 36.302(f)(2) of the NPRM, the Department also proposed 
requiring public accommodations to make accessible seating available 
during all stages of tickets sales including, but not limited to, 
presales, promotions, lotteries, waitlists, and general sales. For 
example, if tickets will be presold for an event that is open only to 
members of a fan club, or to holders of a particular credit card, then 
tickets for accessible seating must be made available for purchase 
through those means. This requirement does not mean that any individual 
with a disability would be able to purchase those seats. Rather, it 
means that an individual with a disability who meets the requirement for 
such a sale (e.g., who is a member of the fan club or holds that credit 
card) will be able to participate in the special promotion and purchase 
accessible seating. The Department has maintained the substantive 
provisions of the NPRM's Secs. 36.302(f)(1) and (f)(2) but has combined 
them in a single paragraph at Sec. 36.302(f)(1)(ii) of the final rule so 
that all of the provisions having to do with the manner in which tickets 
are sold are located in a single paragraph.
    Identification of available accessible seating. In the NPRM, the 
Department proposed Sec. 36.302(f)(3), which, as modified and renumbered 
Sec. 36.302(f)(2)(iii) in the final rule, requires a facility to 
identify available accessible seating through seating maps, brochures, 
or other methods if that information is made available about other seats 
sold to the general public. This rule requires public accommodations to 
provide information about accessible seating to the same degree of 
specificity that it provides information about general seating. For 
example, if a seating map displays color-coded blocks pegged to prices 
for general seating, then accessible seating must be similarly color-
coded. Likewise, if covered entities provide detailed maps that show 
exact seating and pricing for general seating, they must provide the 
same for accessible seating.
    The NPRM did not specify a requirement to identify prices for 
accessible seating. The final rule requires that if such information is 
provided for general seating, it must be provided for accessible seating 
as well.
    In the NPRM, the Department proposed in Sec. 36.302(f)(4) that a 
public accommodation, upon being asked, must inform persons with 
disabilities and their companions of the locations of all unsold or 
otherwise available seating. This provision is intended to prevent the 
practice of ``steering'' individuals with disabilities to certain 
accessible seating so that the facility can maximize potential ticket 
sales by releasing unsold accessible seating, especially in preferred or 
desirable locations, for sale to the general public. The Department 
received no significant comment on this proposal. The Department has 
retained this provision in the final rule but has added it, with minor 
modifications, to Sec. 36.302(f)(2) as paragraph (i).
    Ticket prices. In the NPRM, the Department proposed 
Sec. 36.302(f)(7) requiring that ticket prices for accessible seating be 
set no higher than the prices for other seats in that seating section 
for that event. The NPRM's provision also required that accessible 
seating be made available at every price range, and if an existing 
facility has barriers to accessible seating within a particular price 
range, a proportionate amount of seating (determined by the ratio of the 
total number of seats at that price level to the total number of seats 
in the assembly area) must be offered in an accessible location at that 
same price. Under this rule, for example, if it is not readily 
achievable for a 20,000-seat facility built in 1980 to place accessible 
seating in the $20-price category, which is on the upper deck, it must 
place a proportionate number of seats in an accessible location for $20. 
If the upper deck has 2,000 seats, then the facility must place 10 
percent of its accessible seating in an accessible location for $20 
provided that it is part of a seating section where ticket prices are 
equal to or more than $20--a facility may not place the $20-accessible 
seating in a $10-seating section. The Department received no significant 
comment on this rule, and it has been retained, as amended, in the final 
rule in Sec. 36.302(f)(3).
    Purchase of multiple tickets. In the NPRM, the Department proposed 
Sec. 36.302(f)(9) to address one of the most common ticketing

[[Page 808]]

complaints raised with the Department: that individuals with 
disabilities are not able to purchase more than two tickets. The 
Department proposed this provision to facilitate the ability of 
individuals with disabilities to attend events with friends, companions, 
or associates who may or may not have a disability by enabling 
individuals with disabilities to purchase the maximum number of tickets 
allowed per transaction to other spectators; by requiring venues to 
place accompanying individuals in general seating as close as possible 
to accessible seating (in the event that a group must be divided because 
of the large size of the group); and by allowing an individual with a 
disability to purchase up to three additional contiguous seats per 
wheelchair space if they are available at the time of sale. Section 
36.302(f)(9)(ii) of the NPRM required that a group containing one or 
more wheelchair users must be placed together, if possible, and that in 
the event that the group could not be placed together, the individuals 
with disabilities may not be isolated from the rest of the group.
    The Department asked in the NPRM whether this rule was sufficient to 
effectuate the integration of individuals with disabilities. Many 
advocates and individuals praised it as a welcome and much-needed 
change, stating that the trade-off of being able to sit with their 
family or friends was worth reducing the number of seats available for 
individuals with disabilities. Some commenters went one step further and 
suggested that the number of additional accompanying seats should not be 
restricted to three.
    Although most of the substance of the proposed provision on the 
purchase of multiple tickets has been maintained in the final rule, it 
has been renumbered as Sec. 36.302(f)(4), reorganized, and supplemented. 
To preserve the availability of accessible seating for other individuals 
with disabilities, the Department has not expanded the rule beyond three 
additional contiguous seats. Section 36.302(f)(4)(i) of the final rule 
requires public accommodations to make available for purchase three 
additional tickets for seats in the same row that are contiguous with 
the wheelchair space, provided that at the time of purchase there are 
three such seats available. The requirement that the additional seats be 
``contiguous with the wheelchair space'' does not mean that each of the 
additional seats must be in actual contact or have a border in common 
with the wheelchair space; however, at least one of the additional seats 
should be immediately adjacent to the wheelchair space. The Department 
recognizes that it will often be necessary to use vacant wheelchair 
spaces to provide for contiguous seating.
    The Department has added paragraphs (4)(ii) and (4)(iii) to clarify 
that in situations where there are insufficient unsold seats to provide 
three additional contiguous seats per wheelchair space or a ticket 
office restricts sales of tickets to a particular event to less than 
four tickets per customer, the obligation to make available three 
additional contiguous seats per wheelchair space would be affected. For 
example, if at the time of purchase, there are only two additional 
contiguous seats available for purchase because the third has been sold 
already, then the ticket purchaser would be entitled to two such seats. 
In this situation, the public entity would be required to make up the 
difference by offering one additional ticket for sale that is as close 
as possible to the accessible seats. Likewise, if ticket purchases for 
an event are limited to two per customer, a person who uses a wheelchair 
who seeks to purchase tickets would be entitled to purchase only one 
additional contiguous seat for the event.
    The Department has also added paragraph (4)(iv) to clarify that the 
requirement for three additional contiguous seats is not intended to 
serve as a cap if the maximum number of tickets that may be purchased by 
members of the general public exceeds the four tickets an individual 
with a disability ordinarily would be allowed to purchase (i.e., a 
wheelchair space and three additional contiguous seats). If the maximum 
number of tickets that may be purchased by members of the general public 
exceeds four, an individual with a disability is to be allowed to 
purchase the maximum number of tickets; however, additional tickets 
purchased by an individual with a disability beyond the wheelchair space 
and the three additional contiguous seats provided in 
Sec. 36.302(f)(4)(i) do not have to be contiguous with the wheelchair 
space.
    The NPRM proposed at Sec. 36.302(f)(9)(ii) that for group sales, if 
a group includes one or more individuals who use a wheelchair, then the 
group shall be placed in a seating area with accessible seating so that, 
if possible, the group can sit together. If it is necessary to divide 
the group, it should be divided so that the individuals in the group who 
use wheelchairs are not isolated from the rest of the members of their 
group. The final rule retains the NPRM language in paragraph (4)(v).
    Hold and release of unsold accessible seating. The Department 
recognizes that not all accessible seating will be sold in all assembly 
areas for every event to individuals with disabilities who need such 
seating and that public accommodations may have opportunities to sell 
such seating to the general public. The Department proposed in the NPRM 
a provision aimed at striking a balance between affording individuals 
with disabilities adequate time to purchase accessible seating and the 
entity's desire to maximize ticket

[[Page 809]]

sales. In the NPRM, the Department proposed Sec. 36.302(f)(6), which 
allowed for the release of accessible seating under the following 
circumstances: (i) When all seating in the facility has been sold, 
excluding luxury boxes, club boxes, or suites; (ii) when all seating in 
a designated area has been sold and the accessible seating being 
released is in the same area; or (iii) when all seating in a designated 
price range has been sold and the accessible seating being released is 
within the same price range.
    The Department's NPRM asked ``whether additional regulatory guidance 
is required or appropriate in terms of a more detailed or set schedule 
for the release of tickets in conjunction with the three approaches 
described above. For example, does the proposed regulation address the 
variable needs of assembly areas covered by the ADA? Is additional 
regulatory guidance required to eliminate discriminatory policies, 
practices and procedures related to the sale, hold, and release of 
accessible seating? What considerations should appropriately inform the 
determination of when unsold accessible seating can be released to the 
general public?'' 73 FR 34508, 34527 (June 17, 2008).
    The Department received comments both supporting and opposing the 
inclusion of a hold-and-release provision. One side proposed loosening 
the restrictions on the release of unsold accessible seating. One 
commenter from a trade association suggested that tickets should be 
released regardless of whether there is a sell-out, and that these 
tickets should be released according to a set schedule. Conversely, 
numerous individuals, advocacy groups, and at least one public entity 
urged the Department to tighten the conditions under which unsold 
tickets for accessible seating may be released. These commenters 
suggested that venues should not be permitted to release tickets during 
the first two weeks of sale, or alternatively, that they should not be 
permitted to be released earlier than 48 hours before a sold-out event. 
Many of these commenters criticized the release of accessible seating 
under the second and third prongs of Sec. 36.302(f)(6) in the NPRM (when 
there is a sell-out in general seating in a designated seating area or 
in a price range), arguing that it would create situations where general 
seating would be available for purchase while accessible seating would 
not be.
    Numerous commenters--both from the industry and from advocacy 
groups--asked for clarification of the term ``sell-out.'' Business 
groups commented that industry practice is to declare a sell-out when 
there are only ``scattered singles'' available--isolated seats that 
cannot be purchased as a set of adjacent pairs. Many of those same 
commenters also requested that ``sell-out'' be qualified with the phrase 
``of all seating available for sale'' since it is industry practice to 
hold back from release tickets to be used for groups connected with that 
event (e.g., the promoter, home team, or sports league). They argued 
that those tickets are not available for sale and any return of these 
tickets to the general inventory happens close to the event date. Noting 
the practice of holding back tickets, one advocacy group suggested that 
covered entities be required to hold back accessible seating in 
proportion to the number of tickets that are held back for later 
release.
    The Department has concluded that it would be inappropriate to 
interfere with industry practice by defining what constitutes a ``sell-
out'' and that a public accommodation should continue to use its own 
approach to defining a ``sell-out.'' If, however, a public accommodation 
declares a sell-out by reference to those seats that are available for 
sale, but it holds back tickets that it reasonably anticipates will be 
released later, it must hold back a proportional percentage of 
accessible seating to be released as well.
    Adopting any of the alternatives proposed in the comments summarized 
above would have upset the balance between protecting the rights of 
individuals with disabilities and meeting venues' concerns about lost 
revenue from unsold accessible seating. As a result, the Department has 
retained Sec. 36.302(f)(6) renumbered as Sec. 36.302(f)(5) in the final 
rule. The Department has, however, modified the regulation text to 
specify that accessible seating may be released only when ``all non-
accessible tickets in a designated seating area have been sold and the 
tickets for accessible seating are being released in the same designated 
area.'' As stated in the NPRM, the Department intended for this 
provision to allow, for example, the release of accessible seating at 
the orchestra level when all other seating at the orchestra level is 
sold. The Department has added this language to the final rule at 
Sec. 36.302(f)(5)(B) to clarify that venues cannot designate or 
redesignate seating areas for the purpose of maximizing the release of 
unsold accessible seating. So, for example, a venue may not determine on 
an ad hoc basis that a group of seats at the orchestra level is a 
designated seating area in order to release unsold accessible seating in 
that area.
    The Department also has maintained the hold-and-release provisions 
that appeared in the NPRM, but has added a provision to address the 
release of accessible seating for series-of-events tickets on a series-
of-events basis. Many commenters asked the Department whether unsold 
accessible seating may be converted to general seating and released to 
the general public on a season-ticket basis or longer when tickets 
typically are sold as a season-ticket package or other long-term basis. 
Several disability rights organizations and individual commenters argued 
that such a practice should not be permitted, and, if it

[[Page 810]]

were, that conditions should be imposed to ensure that individuals with 
disabilities have future access to those seats.
    The Department interprets the fundamental principle of the ADA as a 
requirement to give individuals with disabilities equal, not better, 
access to those opportunities available to the general public. Thus, for 
example, a public accommodation that sells out its facility on a season-
ticket only basis is not required to leave unsold its accessible seating 
if no persons with disabilities purchase those season-ticket seats. Of 
course, public accommodations may choose to go beyond what is required 
by reserving accessible seating for individuals with disabilities (or 
releasing such seats for sale to the general public) on an individual-
game basis.
    If a covered entity chooses to release unsold accessible seating for 
sale on a season-ticket or other long-term basis, it must meet at least 
two conditions. Under Sec. 36.302(f)(5)(iii) of the final rule, public 
accommodations must leave flexibility for game-day change-outs to 
accommodate ticket transfers on the secondary market. And public 
accommodations must modify their ticketing policies so that, in future 
years, individuals with disabilities will have the ability to purchase 
accessible seating on the same basis as other patrons (e.g., as season 
tickets). Put differently, releasing accessible seating to the general 
public on a season-ticket or other long-term basis cannot result in that 
seating being lost to individuals with disabilities in perpetuity. If, 
in future years, season tickets become available and persons with 
disabilities have reached the top of the waiting list or have met any 
other eligibility criteria for season ticket purchases, public 
accommodations must ensure that accessible seating will be made 
available to the eligible individuals. In order to accomplish this, the 
Department has added Sec. 36.302(f)(5)(iii)(A) to require public 
accommodations that release accessible season tickets to individuals who 
do not have disabilities that require the features of accessible seating 
to establish a process to prevent the automatic reassignment of such 
ticket holders to accessible seating. For example, a public 
accommodation could have in place a system whereby accessible seating 
that was released because it was not purchased by individuals with 
disabilities is not in the pool of tickets available for purchase for 
the following season unless and until the conditions for ticket release 
have been satisfied in the following season. Alternatively, a public 
accommodation might release tickets for accessible seating only when a 
purchaser who does not need its features agrees that he or she has no 
guarantee of or right to the same seats in the following season, or that 
if season tickets are guaranteed for the following season, the purchaser 
agrees that the offer to purchase tickets is limited to non-accessible 
seats with, to the extent practicable, comparable price, view, and 
amenities to the accessible seats such individuals held in the prior 
year. The Department is aware that this rule may require some 
administrative changes but believes that this process will not create 
undue financial and administrative burdens. The Department believes that 
this approach is balanced and beneficial. It will allow public 
accommodations to sell all of their seats and will leave open the 
possibility, in future seasons or series of events, that persons who 
need accessible seating may have access to it.
    The Department also has added Sec. 36.302(f)(5)(iii)(B) to address 
how season tickets or series-of-events tickets that have attached 
ownership rights should be handled if the ownership right returns to the 
public accommodation (e.g., when holders forfeit their ownership right 
by failing to purchase season tickets or sell their ownership right back 
to a public accommodation). If the ownership right is for accessible 
seating, the public accommodation is required to adopt a process that 
allows an eligible individual with a disability who requires the 
features of such seating to purchase the rights and tickets for such 
seating.
    Nothing in the regulatory text prevents a public accommodation from 
establishing a process whereby such ticket holders agree to be 
voluntarily reassigned from accessible seating to another seating area 
so that individuals with mobility disabilities or disabilities that 
require the features of accessible seating and who become newly eligible 
to purchase season tickets have an opportunity to do so. For example, a 
public accommodation might seek volunteers to relocate to another 
location that is at least as good in terms of its location, price, and 
amenities or a public accommodation might use a seat with forfeited 
ownership rights as an inducement to get a ticket holder to give up 
accessible seating he or she does not need.
    Ticket transfer. The Department received many comments asking 
whether accessible seating has the same transfer rights as general 
seats. The proposed regulation at Sec. 36.302(f)(5) required that 
individuals with disabilities must be allowed to purchase season tickets 
for accessible seating on the same terms and conditions as individuals 
purchasing season tickets for general seating, including the right--if 
it exists for other ticket-holders--to transfer individual tickets to 
friends or associates. Some commenters pointed out that the NPRM 
proposed explicitly allowing individuals with disabilities holding 
season tickets to transfer tickets but did not address the transfer of 
tickets purchased for individual events. Several commenters representing 
assembly areas argued that persons with disabilities holding tickets for 
an individual event should not be

[[Page 811]]

allowed to sell or transfer them to third parties because such ticket 
transfers would increase the risk of fraud or would make unclear the 
obligation of the entity to accommodate secondary ticket transfers. They 
argued that individuals holding accessible seating should either be 
required to transfer their tickets to another individual with a 
disability or return them to the facility for a refund.
    Although the Department is sympathetic to concerns about 
administrative burden, curtailing transfer rights for accessible seating 
when other ticket holders are permitted to transfer tickets would be 
inconsistent with the ADA's guiding principle that individuals with 
disabilities must have rights equal to others. Thus, the Department has 
added language in the final rule in Sec. 36.302(f)(6) that requires that 
individuals with disabilities holding accessible seating for any event 
have the same transfer rights accorded other ticket holders for that 
event. Section 36.302(f)(6) also preserves the rights of individuals 
with disabilities who hold tickets to accessible seats for a series of 
events to transfer individual tickets to others, regardless of whether 
the transferee needs accessible seating. This approach recognizes the 
common practice of individuals splitting season tickets or other multi-
event ticket packages with friends, colleagues, or other spectators to 
make the purchase of season tickets affordable; individuals with 
disabilities should not be placed in the burdensome position of having 
to find another individual with a disability with whom to share the 
package.
    This provision, however, does not require public accommodations to 
seat an individual who holds a ticket to an accessible seat in such 
seating if the individual does not need the accessible features of the 
seat. A public accommodation may reserve the right to switch these 
individuals to different seats if they are available, but a public 
accommodation is not required to remove a person without a disability 
who is using accessible seating from that seating, even if a person who 
uses a wheelchair shows up with a ticket from the secondary market for a 
non-accessible seat and wants accessible seating.
    Secondary ticket market. Section 36.302(f)(7) is a new provision in 
the final rule that requires a public accommodation to modify its 
policies, practices, or procedures to ensure that an individual with a 
disability, who acquires a ticket in the secondary ticket market, may 
use that ticket under the same terms and conditions as other ticket 
holders who acquire a ticket in the secondary market for an event or 
series of events. This principle was discussed in the NPRM in connection 
with Sec. 36.302(f)(5), pertaining to season-ticket sales. There, the 
Department asked for public comment regarding a public accommodation's 
proposed obligation to accommodate the transfer of accessible seating 
tickets on the secondary ticket market to those who do not need 
accessible seating and vice versa.
    The secondary ticket market, for the purposes of this rule, broadly 
means any transfer of tickets after the public accommodation's initial 
sale of tickets to individuals or entities. It thus encompasses a wide 
variety of transactions, from ticket transfers between friends to 
transfers using commercial exchange systems. Many commenters noted that 
the distinction between the primary and secondary ticket market has 
become blurred as a result of agreements between teams, leagues, and 
secondary market sellers. These commenters noted that the secondary 
market may operate independently of the public accommodation, and parts 
of the secondary market, such as ticket transfers between friends, 
undoubtedly are outside the direct jurisdiction of the public 
accommodation. To the extent that venues seat persons who have purchased 
tickets on the secondary market, they must similarly seat persons with 
disabilities who have purchased tickets on the secondary market. In 
addition, some public accommodations may acquire ADA obligations 
directly by formally entering the secondary ticket market.
    The Department's enforcement experience with assembly areas also has 
revealed that venues regularly provide for and make last-minute seat 
transfers. As long as there are vacant wheelchair spaces, requiring 
venues to provide wheelchair spaces for patrons who acquired 
inaccessible seats and need wheelchair spaces is an example of a 
reasonable modification of a policy under title III of the ADA. 
Similarly, a person who has a ticket for a wheelchair space but who does 
not require its accessible features could be offered non-accessible 
seating if such seating is available.
    The Department's longstanding position that title III of the ADA 
requires venues to make reasonable modifications in their policies to 
allow individuals with disabilities who acquired non-accessible tickets 
on the secondary ticket market to be seated in accessible seating, where 
such seating is vacant, is supported by the only Federal court to 
address this issue. See Independent Living Resources v. Oregon Arena 
Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998). The Department has 
incorporated this position into the final rule at Sec. 36.302(f)(7)(ii).
    The NPRM contained two questions aimed at gauging concern with the 
Department's consideration of secondary ticket market sales. The first 
question asked whether a secondary purchaser who does not have a 
disability and who buys an accessible seat should be required to move if 
the space is needed for someone with a disability.
    Many disability rights advocates answered that the individual should 
move provided

[[Page 812]]

that there is a seat of comparable or better quality available for him 
and his companion. Some venues, however, expressed concerns about this 
provision, and asked how they are to identify who should be moved and 
what obligations apply if there are no seats available that are 
equivalent or better in quality.
    The Department's second question asked whether there are particular 
concerns about the obligation to provide accessible seating, including a 
wheelchair space, to an individual with a disability who purchases an 
inaccessible seat through the secondary market.
    Industry commenters contended that this requirement would create a 
``logistical nightmare,'' with venues scrambling to reseat patrons in 
the short time between the opening of the venues' doors and the 
commencement of the event. Furthermore, they argued that they might not 
be able to reseat all individuals and that even if they were able to do 
so, patrons might be moved to inferior seats (whether in accessible or 
non-accessible seating). These commenters also were concerned that they 
would be sued by patrons moved under such circumstances.
    These commenters seem to have misconstrued the rule. Covered 
entities are not required to seat every person who acquires a ticket for 
inaccessible seating but needs accessible seating, and are not required 
to move any individual who acquires a ticket for accessible seating but 
does not need it. Covered entities that allow patrons to buy and sell 
tickets on the secondary market must make reasonable modifications to 
their policies to allow persons with disabilities to participate in 
secondary ticket transfers. The Department believes that there is no 
one-size-fits-all rule that will suit all assembly areas. In those 
circumstances where a venue has accessible seating vacant at the time an 
individual with a disability who needs accessible seating presents his 
ticket for inaccessible seating at the box office, the venue must allow 
the individual to exchange his ticket for an accessible seat in a 
comparable location if such an accessible seat is vacant. Where, 
however, a venue has sold all of its accessible seating, the venue has 
no obligation to provide accessible seating to the person with a 
disability who purchased an inaccessible seat on the secondary market. 
Venues may encourage individuals with disabilities who hold tickets for 
inaccessible seating to contact the box office before the event to 
notify them of their need for accessible seating, even though they may 
not require ticketholders to provide such notice.
    The Department notes that public accommodations are permitted, 
though not required, to adopt policies regarding moving patrons who do 
not need the features of an accessible seat. If a public accommodation 
chooses to do so, it might mitigate administrative concerns by marking 
tickets for accessible seating as such, and printing on the ticket that 
individuals who purchase such seats but who do not need accessible 
seating are subject to being moved to other seats in the facility if the 
accessible seating is required for an individual with a disability. Such 
a venue might also develop and publish a ticketing policy to provide 
transparency to the general public and to put holders of tickets for 
accessible seating who do not require it on notice that they may be 
moved.
    Prevention of fraud in purchase of accessible seating. Assembly area 
managers and advocacy groups have informed the Department that the 
fraudulent purchase of accessible seating is a pressing concern. Curbing 
fraud is a goal that public accommodations and individuals with 
disabilities share. Steps taken to prevent fraud, however, must be 
balanced carefully against the privacy rights of individuals with 
disabilities. Such measures also must not impose burdensome requirements 
upon, nor restrict the rights of, individuals with disabilities.
    In the NPRM, the Department struck a balance between these competing 
concerns by proposing Sec. 36.302(f)(8), which prohibited public 
accommodations from asking for proof of disability before the purchase 
of accessible seating but provided guidance in two paragraphs on 
appropriate measures for curbing fraud. Paragraph (i) proposed allowing 
a public accommodation to ask individuals purchasing single-event 
tickets for accessible seating whether they are wheelchair users. 
Paragraph (ii) proposed allowing a public accommodation to require 
individuals purchasing accessible seating for season tickets or other 
multi-event ticket packages to attest in writing that the accessible 
seating is for a wheelchair user. Additionally, the NPRM proposed to 
permit venues, when they have good cause to believe that an individual 
has fraudulently purchased accessible seating, to investigate that 
individual.
    Several commenters objected to this rule on the ground that it would 
require a wheelchair user to be the purchaser of tickets. The Department 
has reworded this paragraph to reflect that the individual with a 
disability does not have to be the ticket purchaser. The final rule 
allows third parties to purchase accessible tickets at the request of an 
individual with a disability.
    Commenters also argued that other individuals with disabilities who 
do not use wheelchairs should be permitted to purchase accessible 
seating. Some individuals with disabilities who do not use wheelchairs 
urged the Department to change the rule, asserting that they, too, need 
accessible seating. The Department agrees that such seating, although 
designed for use by a wheelchair user, may be used by non-wheelchair 
users, if those persons are persons with a disability who need to use 
accessible seating because of

[[Page 813]]

a mobility disability or because their disability requires the use of 
the features that accessible seating provides (e.g., individuals who 
cannot bend their legs because of braces, or individuals who, because of 
their disability, cannot sit in a straight-back chair).
    Some commenters raised concerns that allowing venues to ask 
questions to determine whether individuals purchasing accessible seating 
are doing so legitimately would burden individuals with disabilities in 
the purchase of accessible seating. The Department has retained the 
substance of this provision in Sec. 36.302(f)(8) of the final rule, but 
emphasizes that such questions should be asked at the initial time of 
purchase. For example, if the method of purchase is via the Internet, 
then the question(s) should be answered by clicking a yes or no box 
during the transaction. The public accommodation may warn purchasers 
that accessible seating is for individuals with disabilities and that 
individuals purchasing such tickets fraudulently are subject to 
relocation.
    One commenter argued that face-to-face contact between the venue and 
the ticket holder should be required in order to prevent fraud and 
suggested that individuals who purchase accessible seating should be 
required to pick up their tickets at the box office and then enter the 
venue immediately. The Department has declined to adopt that suggestion. 
It would be discriminatory to require individuals with disabilities to 
pick up tickets at the box office when other spectators are not required 
to do so. If the assembly area wishes to make face-to-face contact with 
accessible seating ticket holders to curb fraud, it may do so through 
its ushers and other customer service personnel located within the 
seating area.
    Some commenters asked whether it is permissible for assembly areas 
to have voluntary clubs where individuals with disabilities self-
identify to the public accommodation in order to become a member of a 
club that entitles them to purchase accessible seating reserved for club 
members or otherwise receive priority in purchasing accessible seating. 
The Department agrees that such clubs are permissible, provided that a 
reasonable amount of accessible seating remains available at all prices 
and dispersed at all locations for individuals with disabilities who are 
non-members.

               Section 36.303  Auxiliary Aids and Services

    Section 36.303(a) of the 1991 title III regulation 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. Implicit in this duty 
to provide auxiliary aids and services is the underlying obligation of a 
public accommodation to communicate effectively with customers, clients, 
patients, companions, or participants who have disabilities affecting 
hearing, vision, or speech. The Department notes that Sec. 36.303(a) 
does not require public accommodations to provide assistance to 
individuals with disabilities that is unrelated to effective 
communication, although requests for such assistance may be otherwise 
subject to the reasonable modifications or barrier removal requirements.
    The Department has investigated hundreds of complaints alleging that 
public accommodations have failed to provide effective communication, 
and many of these investigations have resulted in settlement agreements 
and consent decrees. During the course of these investigations, the 
Department has determined that public accommodations sometimes 
misunderstand the scope of their obligations under the statute and the 
regulation. Section 36.303 in the final rule codifies the Department's 
longstanding policies in this area, and includes provisions based on 
technological advances and breakthroughs in the area of auxiliary aids 
and services that have occurred since the 1991 title III regulation was 
published.
    Video remote interpreting (VRI). Section 36.303(b)(1) sets out 
examples of auxiliary aids and services. In the NPRM, the Department 
proposed adding video remote services (hereafter referred to as ``video 
remote interpreting'' or ``VRI'') and the exchange of written notes 
among the examples. The Department also proposed amending the provision 
to reflect technological advances, such as the wide availability of 
real-time capability in transcription services and captioning.
    VRI is defined in the final rule at Sec. 36.104 as ``an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video connection 
or wireless connection that delivers high-quality video images as 
provided in Sec. 36.303(f).'' The Department notes that VRI generally 
consists of a videophone, monitors, cameras, a high-speed video 
connection, and an interpreter provided by the public accommodation 
pursuant to a contract for services. The term's inclusion within the 
definition of ``qualified interpreter'' makes clear that a public 
accommodation's use of VRI satisfies its title III obligations only 
where VRI affords effective communication. Comments from advocates and 
persons with disabilities expressed concern that VRI may not always 
provide effective communication, especially in hospitals and emergency 
rooms. Examples were provided of patients who are unable to see the 
video monitor because they are semi-

[[Page 814]]

conscious or unable to focus on the video screen; other examples were 
given of cases where the video monitor is out of the sightline of the 
patient or the image is out of focus; still other examples were given of 
patients who cannot see the screen because the signal is interrupted, 
causing unnatural pauses in communication, or the image is grainy or 
otherwise unclear. Many commenters requested more explicit guidelines on 
the use of VRI, and some recommended requirements for equipment 
maintenance, dedicated high-speed, wide-bandwidth video connections, and 
training of staff using VRI, especially in hospital and health care 
situations. Several major organizations requested a requirement to 
include the interpreter's face, head, arms, hands, and eyes in all 
transmissions.
    The Department has determined that VRI can be an effective method of 
providing interpreting service in certain situations, particularly when 
a live interpreter cannot be immediately on the scene. To ensure that 
VRI is effective, the Department has established performance standards 
for VRI in Sec. 36.303(f). The Department recognizes that reliance on 
VRI may not be effective in certain situations, such as those involving 
the exchange of complex information or involving multiple parties, and 
for some individuals, such as for persons who are deaf-blind, and using 
VRI in those circumstances would not satisfy a public accommodation's 
obligation to provide effective communication.
    Comments from several disability advocacy organizations and 
individuals discouraged the Department from adding the exchange of 
written notes to the list of available auxiliary aids in Sec. 36.303(b). 
The Department consistently has recognized that the exchange of written 
notes may provide effective communication in certain contexts. The NPRM 
proposed adding an explicit reference to written notes because some 
title III entities do not understand that exchange of written notes 
using paper and pencil may be an available option in some circumstances. 
Advocates and persons with disabilities requested explicit limits on the 
use of written notes as a form of auxiliary aid because, they argued, 
most exchanges are not simple, and handwritten notes do not afford 
effective communication. One major advocacy organization, for example, 
noted that the speed at which individuals communicate orally or use sign 
language averages about 200 words per minute or more, and thus, the 
exchange of notes may provide only truncated or incomplete 
communication. For persons whose primary language is American Sign 
Language (ASL), some commenters pointed out, using written English in 
exchange of notes often is ineffective because ASL syntax and vocabulary 
is dissimilar from English. By contrast, some commenters from 
professional medical associations sought more specific guidance on when 
notes are allowed, especially in the context of medical offices and 
health care situations.
    Exchange of notes likely will be effective in situations that do not 
involve substantial conversation, for example, when blood is drawn for 
routine lab tests or regular allergy shots are administered. However, 
interpreters should be used when the matter involves more complexity, 
such as in communication of medical history or diagnoses, in 
conversations about medical procedures and treatment decisions, or in 
communication of instructions for care at home or elsewhere. The 
Department discussed in the NPRM the kinds of situations in which use of 
interpreters or captioning is necessary. Additional guidance on this 
issue can be found in a number of agreements entered into with health 
care providers and hospitals that are available on the Department's Web 
site at http://www.ada.gov.
    In addition, commenters requested that the Department include 
``real-time'' before any mention of ``computer-aided'' or ``captioning'' 
technology to highlight the value of simultaneous translation of any 
communication. The Department has added to the final rule appropriate 
references to ``real-time'' to recognize this aspect of effective 
communication. Lastly, in this provision and elsewhere in the title III 
regulation, the Department has replaced the term ``telecommunications 
devices for deaf persons (TDD)'' with ``text telephones (TTYs).'' As 
noted in the NPRM, TTY has become the commonly accepted term and is 
consistent with the terminology used by the Access Board in the 2004 
ADAAG. Comments from advocates and persons with disabilities expressed 
approval of the substitution of TTY for TDD in the proposed regulation, 
but expressed the view that the Department should expand the definition 
to ``voice, text, and video-based telecommunications products and 
systems, including TTY's, videophones, and captioned telephones, or 
equally effective telecommunications systems.'' The Department has 
expanded its definition of ``auxiliary aids and services'' in 
Sec. 36.303 to include those examples in the final rule. Other additions 
proposed in the NPRM, and retained in the final rule, include Brailled 
materials and displays, screen reader software, magnification software, 
optical readers, secondary auditory programs (SAP), and accessible 
electronic and information technology.
    As the Department noted in the preamble to the NPRM, the list of 
auxiliary aids in Sec. 36.303(b) is merely illustrative. The Department 
does not intend that every public accommodation covered by title III 
must have access to every device or all new technology at all times, as 
long as the communication provided is effective.
    Companions who are individuals with disabilities. The Department has 
added several new

[[Page 815]]

provisions to Sec. 36.303(c), but these provisions do not impose new 
obligations on places of public accommodation. Rather, these provisions 
simply codify the Department's longstanding positions. Section 
36.303(c)(1) now states that ``[a] public accommodation shall furnish 
appropriate auxiliary aids and services where necessary to ensure 
effective communication with individuals with disabilities. This 
includes an obligation to provide effective communication to companions 
who are individuals with disabilities.'' Section 36.303(c)(1)(i) defines 
``companion'' as ``a family member, friend, or associate of an 
individual seeking access to, or participating in, the goods, services, 
facilities, privileges, advantages, or accommodations of a public 
accommodation, who, along with such individual, is an appropriate person 
with whom the public accommodation should communicate.''
    This provision makes clear that if the companion is someone with 
whom the public accommodation normally would or should communicate, then 
the public accommodation must provide appropriate auxiliary aids and 
services to that companion to ensure effective communication with the 
companion. This commonsense rule provides the necessary guidance to 
public accommodations to implement properly the nondiscrimination 
requirements of the ADA. Commenters also questioned why, in the NPRM, 
the Department defined companion as ``a family member, friend, or 
associate of a program participant * * *,'' noting that the scope of a 
public accommodation's obligation is not limited to ``program 
participants'' but rather includes all individuals seeking access to, or 
participating in, the goods, services, facilities, privileges, 
advantages, or accommodations of the public accommodation. 73 FR 34508, 
34554 (June 17, 2008). The Department agrees and has amended the 
regulatory language accordingly. Many commenters supported inclusion of 
companions in the rule and requested that the Department clarify that a 
companion with a disability may be entitled to effective communication 
from the public accommodation, even though the individual seeking access 
to, or participating in, the goods, services, facilities, privileges, 
advantages, or accommodations of the public accommodation is not an 
individual with a disability. Some commenters asked the Department to 
make clear that if the individual seeking access to or participating in 
the public accommodation's program or services is an individual with a 
disability and the companion is not, the public accommodation may not 
limit its communication to the companion, instead of communicating 
directly with the individual with a disability, when it would otherwise 
be appropriate to communicate with the individual with the disability.
    Most entities and individuals from the medical field objected to the 
Department's proposal, suggesting that medical and health care 
providers, and they alone, should determine to whom medical information 
should be communicated and when auxiliary aids and services should be 
provided to companions. Others asked that the Department limit the 
public accommodation's obligation to communicate effectively with a 
companion to situations where such communication is necessary to serve 
the interests of the person who is receiving the public accommodation's 
services. It also was suggested that companions should receive auxiliary 
aids and services only when necessary to ensure effective communication 
with the person receiving the public accommodation's services, with an 
emphasis on the particular needs of the patient requiring assistance, 
not the patient's family or guardian.
    Some in the medical community objected to the inclusion of any 
regulatory language regarding companions, asserting that such language 
is overbroad, seeks services for individuals whose presence is neither 
required by the public accommodation nor necessary for the delivery of 
the services or good, places additional burdens on the medical 
community, and represents an uncompensated mandate. One medical 
association commenter stated that such a mandate was particularly 
burdensome in situations where a patient is fully and legally capable of 
participating in the decision-making process and needs little or no 
assistance in obtaining care and following through on physician's 
instructions.
    The final rule codifies the Department's longstanding interpretation 
of the ADA, and clarifies that public accommodations have effective 
communication obligations with respect to companions who are individuals 
with disabilities even where the individual seeking to participate in or 
benefit from what a public accommodation offers does not have a 
disability. There are many instances in which such an individual may not 
be an individual with a disability but his or her companion is an 
individual with a disability. The effective communication requirement 
applies equally to that companion.
    Effective communication with companions is particularly critical in 
health care settings where miscommunication may lead to misdiagnosis and 
improper or delayed medical treatment. The Department has encountered 
confusion and reluctance by medical care providers regarding the scope 
of their obligation with respect to such companions. Effective 
communication with a companion is necessary in a variety of 
circumstances. For example, a companion may be legally authorized to 
make health care decisions on behalf of the patient or may need to help 
the patient with information or instructions given by hospital 
personnel. In addition, a

[[Page 816]]

companion may be the patient's next of kin or health care surrogate with 
whom hospital personnel need to communicate concerning the patient's 
medical condition. Moreover, a companion could be designated by the 
patient to communicate with hospital personnel about the patient's 
symptoms, needs, condition, or medical history. Furthermore, the 
companion could be a family member with whom hospital personnel normally 
would communicate. It has been the Department's longstanding position 
that public accommodations are required to provide effective 
communication to companions when they accompany patients to medical care 
providers for treatment.
    The individual with a disability does not need to be present 
physically to trigger the public accommodation's obligation to provide 
effective communication to a companion. The controlling principle 
regarding whether appropriate auxiliary aids and services should be 
provided is whether the companion is an appropriate person with whom the 
public accommodation should communicate. Examples of such situations 
include back-to-school night or parent-teacher conferences at a private 
school. If the faculty writes on the board or otherwise displays 
information in a visual context during back-to-school night, this 
information must be communicated effectively to parents or guardians who 
are blind or have low vision. At a parent-teacher conference, deaf 
parents or guardians are to be provided with appropriate auxiliary aids 
and service to communicate effectively with the teacher and 
administrators. Likewise, when a deaf spouse attempts to communicate 
with private social service agencies about the services necessary for 
the hearing spouse, appropriate auxiliary aids and services must be 
provided to the deaf spouse by the public accommodation to ensure 
effective communication.
    One medical association sought approval to impose a charge against 
an individual with a disability, either the patient or the companion, 
where that person had stated he or she needed an interpreter for a 
scheduled appointment, the medical provider had arranged for an 
interpreter to appear, and then the individual requiring the interpreter 
did not show up for the scheduled appointment. Section 36.301(c) of the 
1991 title III regulation prohibits the imposition of surcharges to 
cover the costs of necessary auxiliary aids and services. As such, 
medical providers cannot pass along to their patients with disabilities 
the cost of obtaining an interpreter, even in situations where the 
individual cancels his or her appointment at the last minute or is a 
``no-show'' for the scheduled appointment. The medical provider, 
however, may charge for the missed appointment if all other patients are 
subject to such a charge in the same circumstances.
    Determining appropriate auxiliary aids. The type of auxiliary aid 
the public accommodation provides is dependent on which auxiliary aid is 
appropriate under the particular circumstances. Section 36.303(c)(1)(ii) 
codifies the Department's longstanding interpretation that the type of 
auxiliary aid or service necessary to ensure effective communication 
will vary in accordance with the method of communication used by the 
individual; the nature, length, and complexity of the communication 
involved; and the context in which the communication is taking place. As 
the Department explained in the NPRM, this provision lists factors the 
public accommodation should consider in determining which type of 
auxiliary aids and services are necessary. For example, an individual 
with a disability who is deaf or hard of hearing may need a qualified 
interpreter to discuss with hospital personnel a diagnosis, procedures, 
tests, treatment options, surgery, or prescribed medication (e.g., 
dosage, side effects, drug interactions, etc.). In comparison, an 
individual who is deaf or hard of hearing who purchases an item in the 
hospital gift shop may need only an exchange of written notes to achieve 
effective communication.
    The language in the first sentence of Sec. 36.303(c)(1)(ii) is 
derived from the Department's Technical Assistance Manual. See 
Department of Justice, Americans with Disabilities Act, ADA Title III 
Technical Assistance Manual Covering Public Accommodations and 
Commercial Facilities, III-4.3200, available at http://www.ada.gov/
taman3.html. There were few comments regarding inclusion of this policy 
in the regulation itself, and those received were positive.
    Many advocacy groups, particularly those representing blind 
individuals and those with low vision, urged the Department to add 
language in the final rule requiring the provision of accessible 
material in a manner that is timely, accurate, and private. This, they 
argued, would be especially important with regard to billing 
information, other time-sensitive material, or confidential information. 
The Department has added a provision in Sec. 36.303(c)(1)(ii) stating 
that in ``order to be effective, auxiliary aids and services must be 
provided in accessible formats, in a timely manner, and in such a way so 
as to protect the privacy and independence of the individual with a 
disability.''
    The second sentence of Sec. 36.303(c)(1)(ii) states that ``[a] 
public accommodation should consult with individuals with disabilities 
whenever possible to determine what type of auxiliary aid is needed to 
ensure effective communication, but the ultimate decision as to what 
measures to take rests with the public accommodation, provided that the 
method chosen results in effective communication.'' Many commenters 
urged the Department to amend this provision to require

[[Page 817]]

public accommodations to give primary consideration to the expressed 
choice of an individual with a disability. However, as the Department 
explained when it initially promulgated the 1991 title III regulation, 
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. See 28 
CFR part 36, app. B at 726 (2009). The legislative history does, 
however, demonstrate congressional intent to strongly encourage 
consulting with persons with disabilities. Id. As the Department 
explained in the 1991 preamble, ``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).'' Id.
    The commenters who urged that primary consideration be given to the 
individual with a disability noted, for example, that a public 
accommodation would not provide effective communication by using written 
notes where the individual requiring an auxiliary aid is in severe pain, 
or by providing a qualified ASL interpreter when an individual needs an 
oral interpreter instead. Both examples illustrate the importance of 
consulting with the individual with a disability in order to ensure that 
the communication provided is effective. When a public accommodation 
ignores the communication needs of the individual requiring an auxiliary 
aid or service, it does so at its peril, for if the communication 
provided is not effective, the public accommodation will have violated 
title III of the ADA.
    Consequently, the regulation strongly encourages the public 
accommodation to engage in a dialogue with the individual with a 
disability to determine what auxiliary aids and services are appropriate 
under the circumstances. This dialogue should include a communication 
assessment of the individual with a disability initially, regularly, and 
as needed, because the auxiliary aids and services necessary to provide 
effective communication to the individual may fluctuate. For example, a 
deaf individual may go to a private community health center with what is 
at first believed to be a minor medical emergency, such as a sore knee, 
and the individual with a disability and the community health center 
both may believe that exchanging written notes will be effective; 
however, during that individual's visit, it may be determined that the 
individual is, in fact, suffering from an anterior cruciate ligament 
tear and must have surgery to repair the torn ligament. As the situation 
develops and the diagnosis and recommended course of action evolve into 
surgery, an interpreter likely will be necessary. The community health 
center has a continuing obligation to assess the auxiliary aids and 
services it is providing, and should consult with individuals with 
disabilities on a continuing basis to assess what measures are required 
to ensure effective communication.
    Similarly, the Department strongly encourages public accommodations 
to keep individuals with disabilities apprised of the status of the 
expected arrival of an interpreter or the delivery of other requested or 
anticipated auxiliary aids and services. Also, when the public 
accommodation decides not to provide the auxiliary aids and services 
requested by an individual with a disability, the public accommodation 
should provide that individual with the reason for its decision.
    Family members and friends as interpreters. Section 36.303(c)(2), 
which was proposed in the NPRM, has been included in the final rule to 
make clear that a public accommodation shall not require an individual 
with a disability to bring another individual to interpret for him or 
her. The Department has added this regulatory requirement to emphasize 
that when a public accommodation is interacting with a person with a 
disability, it is the public accommodation's responsibility to provide 
an interpreter to ensure effective communication. It is not appropriate 
to require the person with a disability to bring another individual to 
provide such services.
    Many commenters supported inclusion of this language in the new 
rule. A representative from a cruise line association opined, however, 
that if a guest chose to cruise without an interpreter or companion, the 
ship would not be compelled to provide an interpreter for the medical 
facility. On the contrary, when an individual with a disability goes on 
a cruise, the cruise ship has an obligation to provide effective 
communication, including, if necessary, a qualified interpreter as 
defined in the rule.
    Some representatives of pediatricians objected to this provision, 
stating that parents of children with disabilities often know best how 
to interpret their children's needs and health status and relay that 
information to the child's physician, and to remove that parent, or add 
a stranger into the examining room, may frighten children. These 
commenters requested clarification in the regulation that public 
accommodations should permit parents, guardians, or caregivers of 
children with disabilities to accompany them in medical settings to 
ensure effective communication. The regulation does not prohibit 
parents, guardians, or caregivers from being present or providing 
effective communication for children. Rather, it prohibits medical 
professionals (and other public accommodations) from requiring or 
forcing individuals with disabilities to bring other individuals with 
them to facilitate communication so that the public accommodation

[[Page 818]]

will not have to provide appropriate auxiliary aids and services. The 
public accommodation cannot avoid its obligation to provide an 
interpreter except under the circumstances described in 
Sec. 36.303(c)(3)-(4).
    A State medical association also objected to this provision, opining 
that medical providers should have the authority to ask patients to 
bring someone with them to provide interpreting services if the medical 
provider determines that such a practice would result in effective 
communication and that patient privacy and confidentiality would be 
maintained. While the public accommodation has the obligation to 
determine what type of auxiliary aids and services are necessary to 
ensure effective communication, it cannot unilaterally determine whether 
the patient's privacy and confidentiality would be maintained.
    Section 36.303(c)(3) of the final rule codifies the Department's 
position that there are certain limited instances when a public 
accommodation may rely on an accompanying adult to interpret or 
facilitate communication: (1) In an emergency involving an imminent 
threat to the safety or welfare of an individual or the public; or (2) 
if the individual with a disability specifically requests it, the 
accompanying adult agrees to provide the assistance, and reliance on 
that adult for this assistance is appropriate under the circumstances. 
In such instances, the public accommodation should first offer to 
provide appropriate auxiliary aids and services free of charge.
    Commenters requested that the Department make clear that the public 
accommodation cannot request, rely on, or coerce an accompanying adult 
to provide effective communication for an individual with a disability, 
and that only a voluntary offer of assistance is acceptable. The 
Department states unequivocally that consent of, and for, the 
accompanying adult to facilitate communication must be provided freely 
and voluntarily both by the individual with a disability and the 
accompanying adult--absent an emergency involving an imminent threat to 
the safety or welfare of an individual or the public. The public 
accommodation cannot coerce or attempt to persuade another adult to 
provide effective communication for the individual with a disability.
    Several commenters asked that the Department make clear that 
children are not to be used to provide effective communication for 
family members and friends and that it is the responsibility of the 
public accommodation to provide effective communication, stating that 
interpreters often are needed in settings where it would not be 
appropriate for children to be interpreting, such as those involving 
medical issues, domestic violence, or other situations involving the 
exchange of confidential or adult-related material. Children often are 
hesitant to decline requests to provide communication services, which 
puts them in a very difficult position vis-a-vis family members and 
friends. The Department agrees. It is the Department's position that a 
public accommodation shall not rely on a minor child to facilitate 
communication with a family member, friend, or other individual except 
in an emergency involving an imminent threat to the safety or welfare of 
an individual or the public where no interpreter is available. 
Accordingly, the Department has revised the rule to state that ``[a] 
public accommodation shall not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public where 
there is no interpreter available.'' Sec. 36.303(c)(4). Sections 
36.303(c)(3) and (c)(4) have no application in circumstances where an 
interpreter would not otherwise be required in order to provide 
effective communication (e.g., in simple transactions such as purchasing 
movie tickets at a theater).
    The Department stresses that privacy and confidentiality must be 
maintained but notes that covered entities, such as hospitals, that are 
subject to the Privacy Rules, 45 CFR parts 160 and 164, of the Health 
Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 
104-191, are permitted to disclose to a patient's relative, close 
friend, or any other person identified by the patient (such as an 
interpreter) relevant patient information if the patient agrees to such 
disclosures. See 45 CFR parts 160 and 164. The agreement need not be in 
writing. Covered entities should consult the HIPAA Privacy Rules 
regarding other ways disclosures may be made to such persons.
    With regard to emergency situations, proposed Sec. 36.303(c)(3) 
permitted reliance on an individual accompanying an individual with a 
disability to interpret or facilitate communication in an emergency 
involving a threat to the safety or welfare of an individual or the 
public. Commenters requested that the Department make clear that often a 
public accommodation can obtain appropriate auxiliary aids and services 
in advance of an emergency, particularly in anticipated emergencies, 
such as predicted dangerous weather, or in certain medical situations, 
such as pending childbirth, by making necessary pre-arrangements. These 
commenters did not want public accommodations to be relieved of their 
responsibilities to provide effective communication in emergency 
situations, noting that the need for effective communication in 
emergencies is heightened. For the same reason, several commenters 
requested a separate rule that requires public accommodations to provide 
timely and effective communication in the event of an emergency.

[[Page 819]]

    One group of commenters asked that the Department narrow the 
regulation permitting reliance on a companion to interpret or facilitate 
communication in emergency situations so that it is not available to 
entities with responsibilities for emergency preparedness and response. 
Some commenters noted that certain exigent circumstances, such as those 
that exist during and, perhaps, immediately after a major hurricane, 
temporarily may excuse public accommodations of their responsibilities 
to provide effective communication. However, they asked that the 
Department clarify that these obligations are ongoing, and that as soon 
as such situations begin to abate or become stabilized, the public 
accommodation must provide effective communication.
    The Department recognizes the need for effective communication is 
critical in emergency situations. After due consideration of all of 
these concerns raised by commenters, the Department has revised 
Sec. 36.303(c) to narrow the exception permitting reliance on 
individuals accompanying the individual with a disability during an 
emergency to make it clear that it applies only to emergencies involving 
an ``imminent threat to the safety or welfare of an individual or the 
public * * *.'' Sec. 36.303(c)(3)-(4). The Department wishes to 
emphasize, however, that application of this exception is narrowly 
tailored to emergencies involving an imminent threat to the safety or 
welfare of individuals or the public. Arguably, all visits to an 
emergency room are by definition emergencies. Likewise, an argument can 
be made that most situations to which emergency workers respond involve, 
in one way or another, a threat to the safety or welfare of an 
individual or the public. The imminent threat exception in 
Sec. 36.303(c)(3)-(4) is not intended to apply to typical and 
foreseeable emergency situations that are part of the normal operations 
of these institutions. As such, a public accommodation may rely on an 
accompanying individual to interpret or facilitate communication under 
the Sec. 36.303(c)(3)-(4) imminent threat exception only where there is 
a true emergency, i.e., where any delay in providing immediate services 
to the individual could have life-altering or life-ending consequences.
    Telecommunications. In addition to the changes discussed in 
Sec. 36.303(b) regarding telecommunications, telephones, and text 
telephones, the Department has adopted provisions in Sec. 36.303(d) of 
the final rule (which also were included in the NPRM) requiring that 
public accommodations must not disconnect or refuse to take calls from 
FCC-approved telecommunications relay systems, including Internet-based 
relay systems. Commenters from some State agencies, many advocacy 
organizations, and individuals strongly urged the Department to mandate 
such action because of the high proportion of TTY calls and relay 
service calls to title III entities that are not completed because of 
phone systems or employees not taking the calls. This refusal presents a 
significant obstacle for persons using TTYs who do business with public 
accommodations and denies persons with disabilities telephone access for 
business that typically is handled over the telephone.
    Section 36.303(d)(1)(ii) of the NPRM added public telephones 
equipped with volume control mechanisms and hearing aid-compatible 
telephones to the examples of types of telephone equipment to be 
provided. Commenters from the disability community and from 
telecommunications relay service providers argued that requirements for 
these particular features on telephones are obsolete not only because 
the deaf and hard of hearing community uses video technology more 
frequently than other types of telecommunication, but also because all 
public coin phones have been hearing aid compatible since 1983, pursuant 
to the Telecommunications for the Disabled Act of 1982, 47 U.S.C. 610. 
The Hearing Aid Compatibility Act of 1988, 47 U.S.C. 610, extended this 
requirement to all wireline telephones imported into or manufactured in 
the United States since 1989. In 1997, the FCC further required that all 
such phones also be equipped with volume control. See 47 CFR 68.6. Given 
these existing statutory obligations, the proposed language is 
unnecessary. Accordingly, the Department has deleted that language from 
the final rule.
    The Department understands that there are many new devices and 
advances in technology that should be included in the definition of 
available auxiliary aids and is including many of the telecommunications 
devices and some new technology. While much of this technology is not 
expensive and should be available to most title III entities, there may 
be legitimate reasons why in a particular situation some of these new 
and developing auxiliary aids may not be available, may be prohibitively 
costly (thus supporting an undue burden defense), or may otherwise not 
be suitable given other circumstances related to the particular terrain, 
situation, or functionality in specialized areas where security, among 
other things, may be a factor limiting the appropriateness of the use of 
a particular technology or device. The Department recognizes that the 
available new technology may provide more effective communication than 
existing technology and that providing effective communication often 
will include use of new technology and video relay services, as well as 
interpreters. However, the Department has not mandated that title III 
entities make all technology or services available upon demand in all 
situations. When a public accommodation provides the opportunity to make 
outgoing phone calls on more than an incidental-convenience basis,

[[Page 820]]

it shall make available accessible public telephones, TTYs, or other 
telecommunications products and systems for use by an individual who is 
deaf or hard of hearing, or has a speech impairment.
    Video remote interpreting (VRI) services. In Sec. 36.303(f) of the 
NPRM, the Department proposed the inclusion of four performance 
standards for VRI (which the NPRM termed video interpreting services 
(VIS)), for effective communication: (1) High-quality, clear, real-time, 
full-motion video, and audio over a dedicated high-speed Internet 
connection; (2) a clear, sufficiently large, and sharply delineated 
picture of the participants' heads, arms, hands, and fingers, regardless 
of their body position; (3) clear transmission of voices; and (4) 
persons who are trained to set up and operate the VIS quickly and 
efficiently.
    Commenters generally approved of these proposed performance 
standards, but recommended that some additional standards be included in 
the final rule. For persons who are deaf with limited vision, commenters 
requested that the Department include an explicit requirement that 
interpreters wear high-contrast clothing with no patterns that might 
distract from their hands as they are interpreting, so that a person 
with limited vision could still see the signs made by the interpreter. 
While the Department reiterates the importance of such practices in the 
delivery of effective VRI as well as in-person interpreting, the 
Department declines to adopt such performance standards as part of this 
rule. In general, professional interpreters already follow such 
practices, as the Code of Professional Conduct for interpreters 
developed by the Registry of Interpreter for the Deaf and the National 
Association of the Deaf incorporates attire considerations into their 
standards of professionalism and conduct. Moreover, as a result of this 
code, many VRI agencies have adopted detailed dress standards that 
interpreters hired by the agency must follow. Commenters also urged 
explicit requirement of a clear image of the face and eyes of the 
interpreter and others. Because the face includes the eyes, the 
Department has amended Sec. 36.303(f)(2) of the final rule to include a 
requirement that the interpreter's face be displayed. Other commenters 
requested requirement of a wide-bandwidth video connection for the VRI 
system, and the Department has included this requirement in 
Sec. 36.303(f)(1) of the final rule.
    ATMs. The 2010 Standards set out detailed requirements for ATMs, 
including communication-related requirements to make ATMs usable by 
individuals who are blind or have low vision. In the NPRM, the 
Department discussed the application of a safe harbor to the 
communication-related elements of ATMs. The NPRM explained that the 
Department considers the communication-related elements of ATMs to be 
auxiliary aids and services, to which the safe harbor for elements built 
in compliance with the 1991 standards does not apply.
    The Department received several comments regarding this issue. 
Several commenters representing banks objected to the exclusion of 
communication-related aspects of ATMs from the safe harbor provision. 
They explained that the useful life of ATMs--on average 10 years--was 
longer than the Department noted; thus, without the safe harbor, banks 
would be forced to retrofit many ATMs in order to comply with the 
proposed regulation. Such retrofitting, they noted, would be costly to 
the industry. A few representatives of the disability community 
commented that communication-related aspects of ATMs should be excluded 
from the safe harbor.
    The Department consistently has taken the position that the 
communication-related elements of ATMs are auxiliary aids and services, 
rather than structural elements. See 28 CFR part 36, app. B at 728 
(2009). Thus, the safe harbor provision does not apply to these 
elements. The Department believes that the limitations on the effective 
communication requirements, which provide that a covered entity does not 
have to take measures that would result in a fundamental alteration of 
its program or would cause undue burdens, provide adequate protection to 
covered entities that operate ATMs.
    Captioning at sporting venues. In Sec. 36.303(g) of the NPRM, the 
Department proposed that sports stadiums that have a capacity of 25,000 
or more shall provide captioning for safety and emergency information on 
scoreboards and video monitors. In addition, the Department posed four 
questions about captioning of information, especially safety and 
emergency information announcements, provided over public address (PA) 
systems. The Department received many detailed and divergent responses 
to each of the four questions and the proposed regulatory text. Because 
comments submitted on the Department's title II and title III proposals 
were intertwined, because of the similarity of issues involved for title 
II entities and title III entities, and in recognition of the fact that 
many large sports stadiums are covered by both title II and title III as 
joint operations of State or local government and one or more public 
accommodations, the Department presents here a single consolidated 
review and summary of the issues raised in comments.
    The Department asked whether requiring captioning of safety and 
emergency information made over the public address system in stadiums 
seating fewer than 25,000 would create an undue burden for smaller 
entities, and whether it would be feasible for small stadiums to provide 
such captioning, or whether a larger threshold, such as sports stadiums

[[Page 821]]

with a capacity of 50,000 or more, would be appropriate.
    There was a consensus among the commenters, including disability 
advocates as well as venue owners and stadium designers and operators, 
that using the stadium size or seating capacity should not be the 
exclusive deciding factor for any obligation to provide captioning for 
safety and emergency information broadcast over the PA system. Most 
disability advocacy organizations and individuals with disabilities 
complained that using size or seating capacity as a threshold for 
captioning safety and emergency information would undermine the ``undue 
burden'' defense found in both titles II and III. Many commenters 
provided examples of facilities such as professional hockey arenas that 
seat less than 25,000 fans but that, commenters argued, should be able 
to provide real-time captioning. Other commenters suggested that some 
high school or college stadiums, for example, may hold 25,000 fans or 
more and yet lack the resources to provide real-time captioning. Many 
commenters noted that real-time captioning would require use of trained 
stenographers, and that most high school and college sports facilities 
rely upon volunteers to operate scoreboards and PA systems and they 
would not be qualified stenographers, especially in case of an 
emergency. One national association noted that the typical stenographer 
expense for a professional football game in Washington, DC, is about 
$550 per game. Similarly, one trade association representing venues 
estimated that the cost for a professional stenographer at a sporting 
event runs between $500 and $1,000 per game or event, the cost of which, 
they argued, would be unduly burdensome in many cases. Some commenters 
posited that schools that do not sell tickets to athletic events would 
be challenged to meet such expenses, in contrast to major college 
athletic programs and professional sports teams, which would be less 
likely to prevail using an ``undue burden'' defense.
    Some venue owners and operators and other covered entities also 
argued that stadium size should not be the key consideration for whether 
scoreboard captioning will be required. Instead, these entities 
suggested that equipment already installed in the stadium, including 
necessary electrical equipment and backup power supply, should be the 
determining factor for whether captioning is mandated. Many commenters 
argued that the requirement to provide captioning should apply only to 
stadiums with scoreboards that meet the National Fire Protection 
Association (NFPA) National Fire Alarm Code. Commenters reported that 
NFPA 72 requires at least two independent and reliable power supplies 
for emergency information systems, including one source that is a 
generator or a battery sufficient to run the system in the event the 
primary power fails. Alternatively, some stadium designers and title II 
entities commented that the requirement should arise when the facility 
has at least one elevator providing firefighter emergency operation, 
along with approval of authorities with responsibility for fire safety. 
An organization concerned with fire safety codes commented that the 
Department lacks the expertise to regulate on this topic. Other 
commenters argued for flexibility in the requirements for providing 
captioning and contended that any requirement should apply only to 
stadiums constructed after the effective date of the regulation.
    In the NPRM, the Department also asked whether the rule should 
address the specific means of captioning equipment, whether captioning 
should be provided through any effective means (e.g., scoreboards, line 
boards, handheld devices, or other means), or whether some means, such 
as handheld devices, should be eliminated as options. This question 
elicited many comments from advocates for persons with disabilities as 
well as from covered entities. Advocacy organizations and individuals 
with experience using handheld devices argued that such devices do not 
provide effective communication. These commenters noted that information 
is often delayed in the transmission to such devices, making them hard 
to use when following action on the playing field or in the event of an 
emergency when the crowd is already reacting to aural information 
provided over the PA system well before it is received on the handheld 
device.
    Several venue owners and operators and others commented that 
handheld technology offers advantages of flexibility and portability so 
that it may be used successfully regardless of where in the facility the 
user is located, even when not in the line of sight of a scoreboard or 
other captioning system. Still other commenters urged the Department not 
to regulate in such a way as to limit innovation and use of such 
technology now and in the future. Cost considerations were included in 
comments from some stadium designers and venue owners and operators who 
reported that the cost of providing handheld systems is far less than 
the cost of providing real-time captioning on scoreboards, especially in 
facilities that do not currently have the capacity to provide real-time 
captions on existing equipment. Others noted that handheld technology is 
not covered by fire and safety model codes, including the NFPA, and thus 
would be more easily adapted into existing facilities if captioning were 
required by the Department.
    The Department also asked about requiring open captioning of all 
public address announcements, rather than limiting the captioning 
requirement to safety and emergency

[[Page 822]]

information. A variety of advocates and persons with disabilities argued 
that all information broadcast over a PA system should be captioned in 
real time at all facilities in order to provide effective communication, 
and that a requirement only to provide emergency and safety information 
would not be sufficient. A few organizations representing persons with 
disabilities commented that installation of new systems should not be 
required, but that all systems within existing facilities that are 
capable of providing captioning should provide captioning of information 
to the maximum extent possible. Several organizations for persons with 
disabilities commented that all facilities should include in their 
safety planning measures a requirement that all aurally provided 
information for patrons with communication disabilities be captioned. 
Some advocates suggested that demand for captions will only increase as 
the number of deaf and hard of hearing persons grows with the aging of 
the general population and with increasing numbers of veterans returning 
from war with disabilities. Multiple commenters noted that the 
captioning would benefit others as well as those with communication 
disabilities.
    By contrast, venue owners and operators and others commented that 
the action on the sports field is self-explanatory and does not require 
captioning. These commenters objected to an explicit requirement to 
provide real-time captioning for all information broadcast on the PA 
system at a sporting event. Other commenters objected to requiring 
captioning even for emergency and safety information over the scoreboard 
rather than through some other means. By contrast, venue operators, 
State government agencies, and some model code groups, including the 
NFPA, commented that emergency and safety information must be provided 
in an accessible format and that public safety is a paramount concern. 
Other commenters argued that the best method to deliver safety and 
emergency information would be television monitors showing local TV 
broadcasts with captions already mandated by the FCC. Some commenters 
posited that the most reliable information about a major emergency would 
be provided on the television news broadcasts. They argued that 
television monitors may be located throughout the facility, improving 
line of sight for patrons, some of whom might not be able to see the 
scoreboard from their seats or elsewhere in the facility. Some stadium 
designers, venue operators, and model code groups pointed out that video 
monitors are not regulated by the NFPA or other agencies, so that such 
monitors could be more easily provided. Video monitors may receive 
transmissions from within the facility and could provide real-time 
captions if there is the necessary software and equipment to feed the 
captioning signal to a closed video network within the facility. Several 
commenters suggested that using monitors would be preferable to 
requiring captions on the scoreboard if the regulation mandates real-
time captioning. Some venue owners and operators argued that 
retrofitting existing stadiums with new systems could easily cost in the 
hundreds of thousands of dollars per scoreboard or system. Some stadium 
designers and others argued that captioning should be required only in 
stadiums built after the effective date of the regulation. For stadiums 
with existing systems that allow for real-time captioning, one commenter 
posited that dedicating the system exclusively to real-time captioning 
would lead to an annual loss of between two and three million dollars 
per stadium in revenue from advertising currently running in that space.
    After carefully considering the wide range of public comments on 
this issue, the Department has concluded that the final rule will not 
provide additional requirements for effective communication or emergency 
information provided at sports stadiums at this time. The 1991 title II 
and title III regulations and statutory requirements are not in any way 
affected by this decision. The decision to postpone rulemaking on this 
complex issue is based on a number of factors, including the multiple 
layers of existing regulations by various agencies and levels of 
government, and the wide array of information, requests, and 
recommendations related to developing technology offered by the public. 
The diversity of existing information and communication systems and 
other characteristics among sports stadiums also complicates the 
regulation of captioning. The Department has concluded that further 
consideration and review is prudent before it issues specific regulatory 
requirements.
    Movie captioning. In the NPRM, the Department stated that options 
were being considered to require movie theater owners and operators to 
exhibit movies that are captioned for patrons who are deaf or hard of 
hearing. Captioning makes films accessible to individuals whose hearing 
is too limited to benefit from assistive listening devices. Both open 
and closed captioning are examples of auxiliary aids and services 
required under the Department's 1991 title III regulation. See 28 CFR 
36.303(b)(1). Open captions are similar to subtitles in that the text is 
visible to everyone in the theater, while closed captioning displays the 
written text of the audio only to those individuals who request it.
    In the NPRM, the Department also stated that options were being 
considered to require

[[Page 823]]

movie theater owners and operators to exhibit movies with video 
description,\3\ a technology that enables individuals who are blind or 
have low vision to enjoy movies by providing a spoken interpretation of 
key visual elements of a movie, such as actions, settings, facial 
expressions, costumes, and scene changes. The descriptions are narrated 
and recorded onto an audiotape or disk that can be synchronized with the 
film as it is projected. An audio recording is an example of an 
auxiliary aid and service required under the Department's 1991 title III 
regulation. See 28 CFR 36.303(b)(2).
---------------------------------------------------------------------------

    \3\ In the NPRM, the Department referred to this technology as 
``narrative description.'' 73 FR 34508, 34531 (June 17, 2008). Several 
commenters informed the Department that the more accurate and commonly 
understood term is ``video description,'' even though the subject is 
movies, not video, and so the Department decided to employ that term.
---------------------------------------------------------------------------

    The NPRM stated that technological advances since the early 1990s 
have made open and closed captioning and video description for movies 
more readily available and effective and noted that the Department was 
considering options to require captioning and video description for 
movies exhibited by public accommodations. The NPRM also noted that the 
Department is aware that the movie industry is transitioning, in whole 
or in part, to movies in digital format and that movie theater owners 
and operators are beginning to purchase digital projectors. The 
Department noted in the NPRM that movie theater owners and operators 
with digital projectors may have available to them different 
capabilities than those without digital projectors. The Department 
sought comment regarding whether and how to require captioning and video 
description while the film industry makes this transition. In addition, 
the NPRM stated the Department's concern about the potential cost to 
exhibit captioned movies, noting that cost may vary depending upon 
whether open or closed captioning is used and whether or not digital 
projectors are used, and stated that the cost of captioning must stay 
within the parameters of the undue burden requirement in 28 CFR 
36.303(a). The Department further noted that it understands the cost of 
video description equipment to be less than that for closed captioning. 
The Department then stated that it was considering the possibility of 
requiring public accommodations to exhibit all new movies in captioned 
format and with video description at every showing. The NPRM stated that 
the Department would not specify the types of captioning required, 
leaving such decisions to the discretion of the movie theater owners and 
operators.
    In the NPRM, the Department requested public comment as to whether 
public accommodations should be required to exhibit all new movies in 
captioned format at every showing, whether it would be more appropriate 
to require captioning less frequently, and, if so, with what frequency 
captioning should be provided. The Department also inquired as to 
whether the requirement for captioning should be tied to the conversion 
of movies from film to the use of a digital format. The Department also 
asked for public comment regarding the exhibition of all new movies with 
narrative description, whether it would it be more appropriate to 
require narrative description less frequently, and whether narrative 
description of movies should be tied to the use of a digital format.
    Representatives from the movie industry, a commenter from a non-
profit organization, and a disability rights advocacy group provided 
information in their comments on the status of captioning and video 
description technology today as well as an update on the transition to 
digital cinema in the industry. A representative of major movie 
producers and distributors commented that traditionally open captions 
were created by ``burning'' the captions onto a special print of a 
selected movie, which the studios would make available to the exhibitors 
(movie theater owners and operators). Releases with open captions 
typically would be presented at special screenings. More recently, 
according to this commenter, alternative methods have been developed for 
presenting movies with open captions, but their common feature is that 
the captions are visible to all theater-goers. Closed captioning is an 
innovation in technology that was first made available in a feature film 
presentation in late 1997. Closed captioning technology currently in use 
allows viewers to see captions using a clear panel that is mounted in 
front of the viewer's seat.\4\ According to commenters from the 
industry, the panel reflects captions that are shown in reverse on an 
LED display in the back of the theater, with captions appearing on or 
near the movie image. Moviegoers may use this technology at any showing 
at a theater that has been equipped with the technology, so that the 
theater does not have to arrange limited special screenings.
---------------------------------------------------------------------------

    \4\ Other closed captioning technologies for movies that have been 
developed but are not in use at this time include hand-held displays 
similar to a PDA (personal digital assistant); eyeglasses fitted with a 
prism over one lens; and projected bitmap captions. The PDA and eyeglass 
systems use a wireless transmitter to send the captions to the display 
device.
---------------------------------------------------------------------------

    Video description technology also has existed since 1997, according 
to a commenter

[[Page 824]]

who works with the captioning and video description industry. According 
to a movie industry commenter, video description requires the creation 
of a separate script written by specially trained writers called 
``describers.'' As the commenter explained, a describer initially 
listens to the movie without watching it in order to approximate the 
experience of an audience member who is blind or has low vision. Using 
software to map out the pauses in the soundtrack, the describer writes a 
description in the space available. After an initial script is written 
for video description, it is edited and checked for timing, continuity, 
accuracy, and a natural flow. A narrator then records the new script to 
match the corresponding movie. This same industry commenter said that 
video description currently is provided in theaters through screens 
equipped with the same type of technology as that used for closed 
captioning. As commenters explained, technologies in use today deliver 
video descriptions via infrared or FM listening systems to headsets worn 
by individuals who are blind or have low vision.
    According to the commenter representing major movie producers and 
distributors, the percentage of motion pictures produced with closed 
captioning by its member studios had grown to 88 percent of total 
releases by 2007; the percentage of motion pictures produced with open 
captioning by its member studios had grown to 78 percent of total 
releases by 2007; and the percentage of motion pictures provided with 
video description has ranged consistently between 50 percent and 60 
percent of total releases. It is the movie producers and distributors, 
not the movie theater owners and operators, who determine what to 
caption and describe, the type of captioning to use, and the content of 
the captions and video description script. These same producers and 
distributors also assume the costs of captioning and describing movies. 
Movie theater owners and operators simply purchase the equipment to 
display the captions and play the video description in their auditoria.
    The transition to digital cinema, considered by the industry to be 
one of the most profound advancements in motion picture production and 
technology of the last 100 years, will provide numerous advantages both 
for the industry and the audience. According to one commenter, currently 
there are sufficient standards and interim solutions to support 
captioning and video description now in digital format. Additionally, 
movie studios are supporting those efforts by providing accessibility 
tracks (captioning and video description) in many digital cinema content 
packages. Moreover, a group of industry commenters composed in pertinent 
part of members of the motion picture industry, the central standards 
organizations for this industry, and key digital equipment vendors, 
noted that they are participating in a joint venture to establish the 
remaining accessibility specifications and standards for access audio 
tracks. Access audio tracks are supplemental sound audio tracks for the 
hard of hearing and narrative audio tracks for individuals who have 
vision disabilities. According to a commenter and to industry documents, 
these standards were expected to be in place by spring 2009. According 
to a commenter, at that time, all of the major digital cinema equipment 
vendors were expected to have support for a variety of closed caption 
display and video description products. This same commenter stated that 
these technologies will be supported by the studios that produce and 
distribute feature films, by the theaters that show these films to the 
public, and by the full complement of equipment in the production, 
distribution, and display chain.
    The initial investment for movie theater owners and operators to 
convert to digital cinema is expensive. One industry commenter estimated 
that converting theaters to digital projection costs between $70,000 and 
$100,000 per screen and that maintenance costs for digital projectors 
are estimated to run between $5,000 and $10,000 a year--approximately 
five times as expensive as the maintenance costs for film projectors. 
According to this same commenter, while there has been progress in 
making the conversion, only approximately 5,000 screens out of 38,794 
nationwide have been converted, and the cost to make the remaining 
conversions involves a total investment of several billion dollars. 
According to another commenter, predictions as to when more than half of 
all screens will have been converted to digital projection are 10 years 
or more, depending on the finances of the movie theater owners and 
operators, the state of the economy, and the incentives supporting 
conversion. That said, according to one commenter who represents movie 
theater owners and operators, the majority of screens in the United 
States were expected to enter into agreements by the end of 2008 to 
convert to digital cinema. Most importantly, however, according to a few 
commenters, the systems in place today for captioning and video 
description will not become obsolete once a theater has converted to 
digital cinema but still can be used by the movie theater owner and 
operator to exhibit captions and video description. The only difference 
for a movie theater owner or operator will be the way the data is 
delivered to the captioning and video description equipment in place in 
an auditorium.
    Despite the current availability of movies that are captioned and 
provide video description, movie theater owners and operators rarely 
exhibit the captions or descriptions. According to several commenters, 
less than 1 percent of all movies being exhibited in theaters are shown 
with captions.

[[Page 825]]

    Individuals with disabilities, advocacy groups, the representative 
from a non-profit, and representatives of State governments, including 
11 State attorneys general, overwhelmingly supported issuance of a 
regulation requiring movie theater owners and operators to exhibit 
captioned and video described movies at all showings unless doing so 
would result in an undue burden or fundamental alteration of the goods 
and services offered by the public accommodation. In addition, this same 
group of commenters urged that any such regulation should be made 
effective now, and should not be tied to the conversion to digital 
cinema by the movie theater owners and operators. In support of such 
arguments, these commenters stated that the technology exists now to 
display movies with captions and video descriptions, regardless of 
whether the movie is exhibited on film or using digital cinema. 
Moreover, since the technology in use for displaying captions and video 
descriptions on film will be compatible with digital projection systems, 
they argued, there is no need to postpone implementation of a captioning 
or video description regulation until the conversion to digital has been 
made. Furthermore, since the conversion to digital may take years, 
commenters urged the Department to issue a regulation requiring 
captioning and video description now, rather than several years from 
now.
    Advocacy groups and the 11 State attorneys general also requested 
that any regulation include factors describing what constitutes 
effective captioning and video description. Recommendations included 
requiring that captioning be within the same line of sight to the screen 
as the movie so that individuals who are deaf or hard of hearing can 
watch the movie and read the captions at the same time; that the 
captioning be accessible from each seat; that the captions be of 
sufficient size and contrast to the background so as to be readable 
easily; and that the recent recommendations of the Telecommunications 
and Electronics and Information Technology Advisory Committee Report to 
the Access Board that captions be ``timely, accurate, complete, and 
efficient'' \5\ also be included.
---------------------------------------------------------------------------

    \5\ Refreshed Accessibility Standards and Guidelines in 
Telecommunications and Electronic and Information Technology (April 
2008), available at http://www.access-board.gov/sec508/refresh/report/ 
(last visited June 24, 2010).
---------------------------------------------------------------------------

    The State attorneys general supported the Department's statement in 
the NPRM that the Department did not anticipate specifying which type of 
captioning to provide or what type of technology to use to provide video 
description, but would instead leave that to the discretion of the movie 
theater owners and operators. These State attorneys general opined that 
such discretion in the selection of the type of technology was 
consistent with the statutory and regulatory scheme of the ADA and would 
permit any new regulation to keep pace with future advancements in 
captioning and video description technology. These same commenters 
stated that such discretion may result in a mixed use of both closed 
captioning and open captioning, affording more choices both for the 
movie theater owners and operators and for individuals who are deaf or 
hard of hearing.
    The representatives from the movie theater industry strongly urged 
the Department against issuing a regulation requiring captioning or 
video description. These commenters argued that the legislative history 
of the ADA expressly precluded regulating in the area of captioning. 
(These same commenters were silent with regard to video description on 
this issue.) The industry commenters also argued that to require movie 
theater owners and operators to exhibit captioned and video described 
movies would constitute a fundamental alteration in the nature of the 
goods and services offered by the movie theater owners and operators. In 
addition, some industry commenters argued that any such regulation by 
the Department would be inconsistent with the Access Board's guidelines. 
Also, these commenters noted the progress that has been made in the 
industry in making cinema more accessible even though there is no 
mandate to caption or describe movies, and they questioned whether any 
mandate is necessary. Finally, all the industry commenters argued that 
to require captioning or video description in 100 percent of movie 
theater screens for all showings would constitute an undue burden.
    The comments have provided the Department with significant 
information on the state of the movie industry with regard to the 
availability of captioning and video description, the status of closed 
captioning technology, and the status of the transition to digital 
cinema. The Department also has given due consideration to the comments 
it has received from individuals, advocacy groups, governmental 
entities, and representatives of the movie industry. Recently, the 
United States Court of Appeals for the Ninth Circuit held that the ADA 
requires a chain of movie theaters to exhibit movies with closed 
captioning and video description unless the theaters can show that to do 
so would amount to a fundamental alteration or undue burden. Arizona ex 
rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666 (9th 
Cir. 2010). However, rather than issue specific regulatory text at this 
time, the Department has determined that it should obtain additional 
information regarding issues raised by commenters that were not 
contemplated at the time of the 2008 NPRM,

[[Page 826]]

supplemental technical information, and updated information regarding 
the current and future status of the conversion to digital cinema by 
movie theater owners and operators. To this end, the Department is 
planning to engage in rulemaking relating specifically to movie 
captioning under the ADA in the near future.

                   Section 36.304  Removal of Barriers

    With the adoption of the 2010 Standards, an important issue that the 
Department must address is the effect that the new (referred to as 
``supplemental'') and revised ADA Standards will have on the continuing 
obligation of public accommodations to remove architectural, 
transportation, and communication barriers in existing facilities to the 
extent that it is readily achievable to do so. See 42 U.S.C. 
12182(b)(2)(A)(iv). This issue was not addressed in the 2004 ADAAG 
because it was outside the scope of the Access Board's statutory 
authority under the ADA and section 502 of the Rehabilitation Act of 
1973. See 29 U.S.C. 792(b)(3)(A)-(B) (authorizing the Access Board to 
establish and maintain minimum guidelines for the standards issued 
pursuant to the Architectural Barriers Act of 1968 and titles II and III 
of the ADA). Responsibility for implementing title III's requirement 
that public accommodations eliminate barriers in existing facilities 
where such removal is readily achievable rests solely with the 
Department. The term ``existing facility'' is defined in Sec. 36.104 of 
the final rule. This definition is discussed in more detail above. See 
Appendix A discussion of definitions (Sec. 36.104).
    The requirements for barrier removal by public accommodations are 
established in the Department's title III regulation. 28 CFR 36.304. 
Under this regulation, the Department used the 1991 Standards as a guide 
to identify what constitutes an architectural barrier, as well as the 
specifications that covered entities must follow in making architectural 
changes to remove the barrier to the extent that such removal is readily 
achievable. 28 CFR 36.304(d); 28 CFR part 36, app. A (2009). With 
adoption of the final rule, public accommodations will now be guided by 
the 2010 Standards, defined in Sec. 36.104 as the 2004 ADAAG and the 
requirements contained in subpart D of 28 CFR part 36.
    The 2010 Standards include technical and scoping specifications for 
a number of elements that were not addressed specifically in the 1991 
Standards; these new requirements were identified as ``supplemental 
requirements'' in the NPRM. The 2010 Standards also include revisions to 
technical or scoping specifications for certain elements that were 
addressed in the 1991 Standards, i.e., elements for which there already 
were technical and scoping specifications. Requirements for which there 
are revised technical or scoping specifications in the 2010 Standards 
are referred to in the NPRM as ``incremental changes.''
    The Department expressed concern that requiring barrier removal for 
incremental changes might place unnecessary cost burdens on businesses 
that already had removed barriers in existing facilities in compliance 
with the 1991 Standards. With this rulemaking, the Department sought to 
strike an appropriate balance between ensuring that individuals with 
disabilities are provided access to facilities and mitigating potential 
financial burdens from barrier removal on existing places of public 
accommodation that satisfied their obligations under the 1991 Standards.
    In the NPRM, the Department proposed several potential additions to 
Sec. 36.304(d) that might reduce such financial burdens. First, the 
Department proposed a safe harbor for elements in existing facilities 
that were compliant with the 1991 Standards. Under this approach, an 
element that is not altered after the effective date of the 2010 
Standards and that complies with the scoping and technical requirements 
for that element in the 1991 Standards would not be required to undergo 
modification to comply with the 2010 Standards to satisfy the ADA's 
barrier removal obligations. The public accommodation would thus be 
deemed to have met its barrier removal obligation with respect to that 
element.
    The Department received many comments on this issue during the 60-
day public comment period. After consideration of all relevant 
information presented on the issue, it is the Department's view that 
this element-by-element safe harbor provision should be retained in the 
final rule. This issue is discussed further below.
    Second, the NPRM proposed several exceptions and exemptions from 
certain supplemental requirements to mitigate the barrier removal 
obligations of existing play areas and recreation facilities under the 
2004 ADAAG. These proposals elicited many comments from both the 
business and disability communities. After consideration of all relevant 
information presented on the issue, it is the Department's view that 
these exceptions and exemptions should not be retained in the final 
rule. The specific proposals and comments, and the Department's 
conclusions, are discussed below.
    Third, the NPRM proposed a new safe harbor approach to readily 
achievable barrier removal as applied to qualified small businesses. 
This proposed small business safe harbor was based on suggestions from 
small business advocacy groups that requested clearer guidance on the 
barrier removal obligations for small businesses. According to these 
groups, the Department's traditional approach to barrier removal 
disproportionately affects small businesses. They argued

[[Page 827]]

that most small businesses owners neither are equipped to understand the 
ADA Standards nor can they afford the architects, consultants, and 
attorneys that might provide some level of assurance of compliance with 
the ADA. For these same reasons, these commenters contended, small 
business owners are vulnerable to litigation, particularly lawsuits 
arising under title III, and often are forced to settle because the ADA 
Standards' complexity makes inadvertent noncompliance likely, even when 
a small business owner is acting in good faith, or because the business 
cannot afford the costs of litigation.
    To address these and similar concerns, the NPRM proposed a level of 
barrier removal expenditures at which qualified small businesses would 
be deemed to have met their readily achievable barrier removal 
obligations for certain tax years. This safe harbor would have provided 
some protection from litigation because compliance could be assessed 
easily. Such a rule, the Department believed, also could further 
accessibility, because qualified small businesses would have an 
incentive to incorporate barrier removal into short- and long-term 
planning. The Department recognized that a qualified small business safe 
harbor would be a significant change to the Department's title III 
enforcement scheme. Accordingly, the Department sought comment on 
whether such an approach would further the aims underlying the statute's 
barrier removal provisions, and, if so, the appropriate parameters of 
the provision.
    After consideration of the many comments received on this issue, the 
Department has decided not to include a qualified small business safe 
harbor in the final rule. This decision is discussed more fully below.
    Element-by-element safe harbor for public accommodations. Public 
accommodations have a continuing obligation to remove certain 
architectural, communications, and transportation barriers in existing 
facilities to the extent readily achievable. 42 U.S.C. 
12182(b)(2)(A)(iv). Because the Department uses the ADA Standards as a 
guide to identifying what constitutes an architectural barrier, the 2010 
Standards, once they become effective, will provide a new reference 
point for assessing an entity's barrier removal obligations. The 2010 
Standards introduce technical and scoping specifications for many 
elements that were not included in the 1991 Standards. Accordingly, 
public accommodations will have to consider these supplemental 
requirements when evaluating whether there are covered barriers in 
existing facilities, and, if so, remove them to the extent readily 
achievable. Also included in the 2010 Standards are revised technical 
and scoping requirements for elements that were addressed in the 1991 
Standards. These incremental changes were made to address technological 
changes that have occurred since the promulgation of the 1991 Standards, 
to reflect additional study by the Access Board, and to harmonize ADAAG 
requirements with the model codes.
    In the NPRM, the Department sought input on a safe harbor in 
proposed Sec. 36.304(d)(2) intended to address concerns about the 
practical effects of the incremental changes on public accommodations' 
readily achievable barrier removal obligations. The proposed element-by-
element safe harbor provided that in existing facilities elements that 
are, as of the effective date of the 2010 Standards, fully compliant 
with the applicable technical and scoping requirements in the 1991 
Standards, need not be modified or retrofitted to meet the 2010 
Standards, until and unless those elements are altered. The Department 
posited that it would be an inefficient use of resources to require 
covered entities that have complied with the 1991 Standards to retrofit 
already compliant elements when the change might only provide a minimal 
improvement in accessibility. In addition, the Department was concerned 
that covered entities would have a strong disincentive for voluntary 
compliance if every time the applicable standards were revised covered 
entities would be required once again to modify elements to keep pace 
with new requirements. The Department recognized that revisions to some 
elements might confer a significant benefit on some individuals with 
disabilities and because of the safe harbor these benefits would be 
unavailable until the facility undergoes alterations.
    The Department received many comments on this issue from the 
business and disability communities. Business owners and operators, 
industry groups and trade associations, and business advocacy 
organizations strongly supported the element-by-element safe harbor. By 
contrast, disability advocacy organizations and individuals commenting 
on behalf of the disability community were opposed to this safe harbor 
with near unanimity.
    Businesses and business groups agreed with the concerns outlined by 
the Department in the NPRM, and asserted that the element-by-element 
safe harbor is integral to ensuring continued good faith compliance 
efforts by covered entities. These commenters argued that the financial 
cost and business disruption resulting from retrofitting elements 
constructed or previously modified to comply with 1991 Standards would 
be detrimental to nearly all businesses and not readily achievable for 
most. They contended that it would be fundamentally unfair to place 
these entities in a position where, despite full compliance with the 
1991 Standards, the entities would now, overnight, be vulnerable to 
barrier removal litigation. They further contended that public 
accommodations will

[[Page 828]]

have little incentive to undertake large barrier removal projects or 
incorporate barrier removal into long-term planning if there is no 
assurance that the actions taken and money spent for barrier removal 
would offer some protection from litigation. One commenter also pointed 
out that the proposed safe harbor would be consistent with practices 
under other Federal accessibility standards, including the Uniform 
Federal Accessibility Standards (UFAS) and the ADAAG.
    Some business commenters urged the Department to expand the element-
by-element safe harbor to include supplemental requirements. These 
commenters argued that imposing the 2010 Standards on existing 
facilities will provide a strong incentive for such facilities to 
eliminate some elements entirely, particularly where the element is not 
critical to the public accommodation's business or operations (e.g., 
play areas in fast food restaurants) or the cost of retrofitting is 
significant. Some of these same commenters urged the Department to 
include within the safe harbor those elements not covered by the 1991 
Standards, but which an entity had built in compliance with State or 
local accessibility laws. Other commenters requested safe harbor 
protection where a business had attempted barrier removal prior to the 
establishment of technical and scoping requirements for a particular 
element (e.g., play area equipment) if the business could show that the 
element now covered by the 2010 Standards was functionally accessible.
    Other commenters noted ambiguity in the NPRM as to whether the 
element-by-element safe harbor applies only to elements that comply 
fully with the 1991 Standards, or also encompasses elements that comply 
with the 1991 Standards to the extent readily achievable. Some 
commenters proposed that the safe harbor should exist in perpetuity--
that an element subject to a safe harbor at one point in time also 
should be afforded the same protection with respect to all future 
revisions to the ADA Standards (as with many building codes). These 
groups contended that allowing permanent compliance with the 1991 
Standards will ensure readily accessible and usable facilities while 
also mitigating the need for expensive and time-consuming documentation 
of changes and maintenance.
    A number of commenters inquired about the effect of the element-by-
element safe harbor on elements that are not in strict compliance with 
the 1991 Standards, but conform to the terms of settlement agreements or 
consent decrees resulting from private litigation or Federal enforcement 
actions. These commenters noted that litigation or threatened litigation 
often has resulted in compromise among parties as to what is readily 
achievable. Business groups argued that facilities that have made 
modifications subject to those negotiated agreements should not be 
subject to the risk of further litigation as a result of the 2010 
Standards.
    Lastly, some business groups that supported the element-by-element 
safe harbor nevertheless contended that a better approach would be to 
separate barrier removal altogether from the 2010 Standards, such that 
the 2010 Standards would not be used to determine whether access to an 
existing facility is impeded by architectural barriers. These commenters 
argued that application of the 2010 Standards to barrier removal 
obligations is contrary to the ADA's directive that barrier removal is 
required only where ``easily accomplishable and able to be carried out 
without much difficulty or expense,'' 42 U.S.C. 12181(9).
    Nearly all commenters from the disability community objected to the 
proposed element-by-element safe harbor. These commenters asserted that 
the adoption of this safe harbor would permit and sanction the retention 
of outdated access standards even in cases where retrofitting to the 
2010 Standards would be readily achievable. They argued that title III's 
readily achievable defense is adequate to address businesses' cost 
concerns, and rejected the premise that requiring businesses to retrofit 
currently compliant elements would be an inefficient use of resources 
where readily achievable to do so. The proposed regulations, these 
commenters asserted, incorporate advances in technology, design, and 
construction, and reflect congressional and societal understanding that 
accessibility is not a static concept and that the ADA is a civil rights 
law intended to maximize accessibility. Additionally, these commenters 
noted that since the 2004 revision of the ADAAG will not be the last, 
setting a precedent of safe harbors for compliant elements will have the 
effect of preserving and protecting layers of increasingly outdated 
accessibility standards.
    Many commenters objected to the Department's characterization of the 
requirements subject to the safe harbor as reflecting only incremental 
changes and asserted that many of these incremental changes will result 
in significantly enhanced accessibility at little cost. The requirement 
concerning side-reach ranges was highlighted as an example of such 
requirements. Commenters from the disability community argued that the 
revised maximum side-reach range (from 54 inches to 48 inches) will 
result in a substantial increase in accessibility for many persons with 
disabilities--particularly individuals of short stature, for whom the 
revised reach range represents the difference between independent access 
to many features and dependence--and that the revisions should be made 
where readily achievable to do so. Business commenters, on the other 
hand, contended that application of the safe harbor to this requirement 
is critical because retrofitting

[[Page 829]]

items, such as light switches and thermostats often requires work (e.g., 
rewiring, patching, painting, and re-wallpapering), that would be 
extremely burdensome for entities to undertake. These commenters argued 
that such a burden is not justified where many of the affected entities 
already have retrofitted to meet the 1991 Standards.
    Some commenters that were opposed to the element-by-element safe 
harbor proposed that an entity's past efforts to comply with the 1991 
Standards might appropriately be a factor in the readily achievable 
analysis. Several commenters proposed a temporary 5-year safe harbor 
that would provide reassurance and stability to covered entities that 
have recently taken proactive steps for barrier removal, but would also 
avoid the problems of preserving access deficits in perpetuity and 
creating multiple standards as subsequent updates are adopted.
    After consideration of all relevant information presented on this 
issue during the comment period, the Department has decided to retain 
the proposed element-by-element safe harbor. Title III's architectural-
barrier provisions place the most significant requirements of 
accessibility on new construction and alterations. The aim is to require 
businesses to make their facilities fully accessible at the time they 
are first constructing or altering those facilities, when burdens are 
less and many design elements will necessarily be in flux, and to impose 
a correspondingly lesser duty on businesses that are not changing their 
facilities. The Department believes that it would be consistent with 
this statutory structure not to change the requirements for design 
elements that were specifically addressed in our prior standards for 
those facilities that were built or altered in full compliance with 
those standards. The Department similarly believes it would be 
consistent with the statutory scheme not to change the requirements for 
design elements that were specifically addressed in our prior standards 
for those existing facilities that came into full compliance with those 
standards. Accordingly, the final rule at Sec. 36.304(d)(2)(i) provides 
that elements that have not been altered in existing facilities on or 
after March 15, 2012 and that comply with the corresponding technical 
and scoping specifications for those elements in the 1991 Standards are 
not required to be modified in order to comply with the requirements set 
forth in the 2010 Standards. The safe harbor adopted is consistent in 
principle with the proposed provision in the NPRM, and reflects the 
Department's determination that this approach furthers the statute's 
barrier removal provisions and promotes continued good-faith compliance 
by public accommodations.
    The element-by-element safe harbor adopted in this final rule is a 
narrow one. The Department recognizes that this safe harbor will delay, 
in some cases, the increased accessibility that the incremental changes 
would provide and that for some individuals with disabilities the impact 
may be significant. This safe harbor, however, is not a blanket 
exemption for every element in existing facilities. Compliance with the 
1991 Standards is determined on an element-by-element basis in each 
existing facility.
    Section 36.304(d)(2)(ii)(A) provides that prior to the compliance 
date of the rule March 15, 2012, noncompliant elements that have not 
been altered are obligated to be modified to the extent readily 
achievable to comply with the requirements set forth in the 1991 
Standards or the 2010 Standards. Section 36.304(d)(2)(ii)(B) provides 
that after the date the 2010 Standards take effect (18 months after 
publication of the rule), noncompliant elements that have not been 
altered must be modified to the extent readily achievable to comply with 
the requirements set forth in the 2010 Standards. Noncomplying newly 
constructed and altered elements may also be subject to the requirements 
of Sec. 36.406(a)(5).
    The Department has not expanded the scope of the element-by-element 
safe harbor beyond those elements subject to the incremental changes. 
The Department has added Sec. 36.304(d)(2)(iii), explicitly clarifying 
that existing elements subject to supplemental requirements for which 
scoping and technical specifications are provided for the first time in 
the 2010 Standards (e.g., play area requirements) are not covered by the 
safe harbor and, therefore, must be modified to comply with the 2010 
Standards to the extent readily achievable. Section 36.304(d)(2)(iii) 
also identifies the elements in the 2010 Standards that are not eligible 
for the element-by-element safe harbor. The safe harbor also does not 
apply to the accessible routes not previously scoped in the 1991 
standards, such as those required to connect the boundary of each area 
of sport activity, including soccer fields, basketball courts, baseball 
fields, running tracks, skating rinks, and areas surrounding a piece of 
gymnastic equipment. See Advisory note to section F206.2.2 of the 2010 
Standards. The resource and fairness concerns underlying the element-by-
element safe harbor are not implicated by barrier removal involving 
supplemental requirements. Public accommodations have not been subject 
previously to technical and scoping specifications for these 
supplemental requirements. Thus, with respect to supplemental 
requirements, the existing readily achievable standard best maximizes 
accessibility in the built environment without imposing unnecessary 
burdens on public accommodations.
    The Department also has declined to expand the element-by-element 
safe harbor to cover existing elements subject to supplemental 
requirements that also may have

[[Page 830]]

been built in compliance with State or local accessibility laws. 
Measures taken to remove barriers under a Federal accessibility 
provision logically must be considered in regard to Federal standards, 
in this case the 2010 Standards. This approach is based on the 
Department's determination that reference to ADA Standards for barrier 
removal will promote certainty, safety, and good design while still 
permitting slight deviations through readily achievable alternative 
methods. The Department continues to believe that this approach provides 
an appropriate and workable framework for implementation of title III's 
barrier removal provisions. Because compliance with State or local 
accessibility codes is not a reliable indicator of effective access for 
purposes of the ADA Standards, the Department has decided not to include 
reliance on such codes as part of the safe harbor provision.
    Only elements compliant with the 1991 Standards are eligible for the 
safe harbor. Thus, where a public accommodation attempted barrier 
removal but full compliance with the 1991 Standards was not readily 
achievable, the modified element does not fall within the scope of the 
safe harbor provision. A public accommodation at any point in time must 
remove barriers to the extent readily achievable. For existing elements, 
for which removal is not readily achievable at any given time, the 
public accommodation must provide its goods, services, facilities, 
privileges, advantages, or accommodations through alternative methods 
that are readily achievable. See 42 U.S.C. 12182(b)(2)(A)(iv), (v).
    One-time evaluation and implementation of the readily achievable 
standard is not the end of the public accommodation's barrier-removal 
obligation. Public accommodations have a continuing obligation to 
reevaluate barrier removal on a regular basis. For example, if a public 
accommodation identified barriers under the 1991 Standards but did not 
remove them because removal was not readily achievable based on cost 
considerations, it has a continuing obligation to remove these barriers 
if the economic considerations for the public accommodation change. The 
fact that the public accommodation has been providing its goods or 
services through alternative methods does not negate the continuing 
obligation to assess whether removal of the barrier at issue has become 
readily achievable. Public accommodations should incorporate 
consideration of their continuing barrier removal obligations in both 
short-term and long-term business planning.
    The Department notes that commenters across the board expressed 
concern with recordkeeping burdens implicated by the element-by-element 
safe harbor. Businesses noted the additional costs and administrative 
burdens associated with identifying elements that fall within the 
element-by-element safe harbor, as well as tracking, documenting, and 
maintaining data on installation dates. Disability advocates expressed 
concern that varying compliance standards will make enforcement efforts 
more difficult, and urged the Department to clarify that title III 
entities bear the burden of proof regarding entitlement to safe harbor 
protection. The Department emphasizes that public accommodations wishing 
to benefit from the element-by-element safe harbor must demonstrate 
their safe harbor eligibility. The Department encourages public 
accommodations to take appropriate steps to confirm and document the 
compliance of existing elements with the 1991 Standards. Finally, while 
the Department has decided not to adopt in this rulemaking the 
suggestion by some commenters to make the protection afforded by the 
element-by-element safe harbor temporary, the Department believes this 
proposal merits further consideration. The Department, therefore, will 
continue to evaluate the efficacy and appropriateness of a safe harbor 
expiration or sunset provision.
    Application to specific scenarios raised in comments. In response to 
the NPRM, the Department received a number of comments that raised 
issues regarding application of the element-by-element safe harbor to 
particular situations. Business commenters requested guidance on whether 
the replacement for a broken or malfunctioning element that is covered 
by the 1991 Standards would have to comply with the 2010 Standards. 
These commenters expressed concern that in some cases replacement of a 
broken fixture might necessitate moving a number of other accessible 
fixtures (such as in a bathroom) in order to comply with the fixture and 
space requirements of the 2010 Standards. Others questioned the effect 
of the new standards where an entity replaces an existing element 
currently protected by the safe harbor provision for water or energy 
conservation reasons. The Department intends to address these types of 
scenarios in technical guidance.
    Effective date for barrier removal. Several commenters expressed 
concern that the NPRM did not propose a transition period for applying 
the 2004 ADAAG to barrier removal in existing facilities in cases where 
the safe harbors do not apply. These commenters argued that for newly 
covered elements, they needed time to hire attorneys and consultants to 
assess the impact of the new requirements, determine whether they need 
to make additional retrofits, price those retrofits, assess whether the 
change actually is ``readily achievable,'' obtain approval for the 
removal from owners who must pay for the changes, obtain permits, and 
then do the actual work. The commenters recognized that there may be 
some barrier removal actions that require little planning, but stated 
that

[[Page 831]]

other actions cost significantly more and require more budgeting, 
planning, and construction time.
    Barrier removal has been an ongoing requirement that has applied to 
public accommodations since the original regulation took effect on 
January 26, 1992. The final rule maintains the existing regulatory 
provision that barrier removal does not have to be undertaken unless it 
is ``readily achievable.'' The Department has provided in 
Sec. 36.304(d)(2)(ii)(B) that public accommodations are not required to 
apply the 2010 Standards to barrier removal until 18 months after the 
publication date of this rule. It is the Department's view that 18 
months is a sufficient amount of time for application of the 2010 
Standards to barrier removal for those elements not subject to the safe 
harbor. This is also consistent with the compliance date the Department 
has specified for applying the 2010 Standards to new construction and 
alterations.
    Reduced scoping for play areas and other recreation facilities.
    Play areas. The Access Board published final guidelines for play 
areas in October 2000. 65 FR 62498 (Oct. 18, 2000). The guidelines 
include requirements for ground-level and elevated play components, 
accessible routes connecting the components, accessible ground surfaces, 
and maintenance of those surfaces. They have been referenced in Federal 
playground construction and safety guidelines and in some State and 
local codes and have been used voluntarily when many play areas across 
the country have been altered or constructed.
    In adopting the 2004 ADAAG (which includes the play area guidelines 
published in 2000), the Department acknowledges both the importance of 
integrated, full access to play areas for children and parents with 
disabilities as well as the need to avoid placing an untenable fiscal 
burden on businesses. Consequently, the Department asked seven questions 
in the NPRM related to existing play areas. Two questions related to 
safe harbors: one on the appropriateness of a general safe harbor for 
existing play areas and another on public accommodations that have 
complied with State or local standards specific to play areas. The 
others related to reduced scoping, limited exemptions, and whether there 
is a ``tipping point'' at which the costs of compliance with 
supplemental requirements would be so burdensome that a public 
accommodation would shut down a program rather than comply with the new 
requirements. In the nearly 100 comments received on title III play 
areas, the majority of commenters strongly opposed all safe harbors, 
exemptions, and reductions in scoping, and questioned the feasibility of 
determining a tipping point. A smaller number of commenters advocated 
for a safe harbor from compliance with the 2004 ADAAG play area 
requirements along with reduced scoping and exemptions for both readily 
achievable barrier removal and alterations.
    Commenters were split as to whether the Department should exempt 
owners and operators of public accommodations from compliance with the 
supplemental requirements for play areas and recreation facilities and 
instead continue to determine accessibility in these facilities on a 
case-by-case basis under existing law. Many commenters were of the view 
that the exemption was not necessary because concerns of financial 
burden are addressed adequately by the defenses inherent in the standard 
for what constitutes readily achievable barrier removal. A number of 
commenters found the exemption inappropriate because no standards for 
play areas previously existed. Commenters also were concerned that a 
safe harbor applicable only to play areas and recreation facilities (but 
not to other facilities operated by a public accommodation) would create 
confusion, significantly limit access for children and parents with 
disabilities, and perpetuate the discrimination and segregation 
individuals with disabilities face in the important social arenas of 
play and recreation--areas where little access has been provided in the 
absence of specific standards. Many commenters suggested that instead of 
an exemption, the Department should provide guidance on barrier removal 
with respect to play areas and other recreation facilities.
    Several commenters supported the exemption, mainly on the basis of 
the cost of barrier removal. More than one commenter noted that the most 
expensive aspect of barrier removal on existing play areas is the 
surfaces for the accessible routes and use zones. Several commenters 
expressed the view that where a play area is ancillary to a public 
accommodation (e.g., in quick service restaurants or shopping centers), 
the play area should be exempt from compliance with the supplemental 
requirements because barrier removal would be too costly, and as a 
result, the public accommodation might eliminate the area.
    The Department has been persuaded that the ADA's approach to barrier 
removal, the readily achievable standard, provides the appropriate 
balance for the application of the 2010 Standards to existing play 
areas. Thus, in existing playgrounds, public accommodations will be 
required to remove barriers to access where these barriers can be 
removed without much difficulty or expense.
    The NPRM asked if there are State and local standards specifically 
regarding play and recreation area accessibility and whether facilities 
currently governed by, and in compliance with, such State and local 
standards or codes should be subject to a safe harbor from compliance 
with similar applicable requirements in the 2004 ADAAG. The Department 
also requested comments on

[[Page 832]]

whether it would be appropriate for the Access Board to consider the 
implementation of guidelines that would extend such a safe harbor to 
play and recreation areas undertaking alterations. In response, no 
comprehensive State or local codes were identified, and commenters 
generally noted that because the 2004 ADAAG contained comprehensive 
accessibility requirements for these unique areas, public accommodations 
should not be afforded a safe harbor from compliance with them when 
altering play and recreation areas. The Department is persuaded by these 
comments that there is insufficient basis to apply a safe harbor for 
readily achievable barrier removal or alterations for play areas built 
in compliance with State or local laws.
    In the NPRM, the Department requested that public accommodations 
identify a ``tipping point'' at which the costs of compliance with the 
supplemental requirements for existing play areas would be so burdensome 
that the entity simply would shut down the playground. In response, no 
tipping point was identified. Some commenters noted, however, that the 
scope of the requirements may create the choice between wholesale 
replacement of play areas and discontinuance of some play areas, while 
others speculated that some public accommodations may remove play areas 
that are merely ancillary amenities rather than incur the cost of 
barrier removal under the 2010 Standards. The Department has decided 
that the comments did not establish any clear tipping point and 
therefore that no regulatory response is appropriate in this area.
    The NPRM also asked for comment about the potential effect of 
exempting existing play areas of less than 1,000 square feet in size 
from the requirements applicable to play areas. Many trade and business 
associations favored exempting these small play areas, with some arguing 
that where the play areas are only ancillary amenities, the cost of 
barrier removal may dictate that they be closed down. Some commenters 
sought guidance on the definition of a 1,000-square-foot play area, 
seeking clarification that seating and bathroom spaces associated with a 
play area are not included in the size definition. Disability rights 
advocates, by contrast, overwhelmingly opposed this exemption, arguing 
that these play areas may be some of the few available in a community; 
that restaurants and day care facilities are important places for 
socialization between children with disabilities and those without 
disabilities; that integrated play is important to the mission of day 
care centers and that many day care centers and play areas in large 
cities, such as New York City, have play areas that are less than 1,000 
square feet in size; and that 1,000 square feet was an arbitrary size 
requirement.
    The Department agrees that children with disabilities are entitled 
to access to integrated play opportunities. However, the Department is 
aware that small public accommodations are concerned about the costs and 
efforts associated with barrier removal. The Department has given 
careful consideration as to how best to insulate small entities from 
overly burdensome costs and undertakings and has concluded that the 
existing readily achievable standard, not a separate exemption, is an 
effective and employable method by which to protect these entities. 
Under the existing readily achievable standard, small public 
accommodations would be required to comply only with the scoping and 
technical requirements of the 2010 Standards that are easily 
accomplishable and able to be carried out without much difficulty or 
expense. Thus, concerns about prohibitive costs and efforts clearly are 
addressed by the existing readily achievable standard. Moreover, as 
evidenced by comments inquiring as to how 1,000-square-foot play areas 
are to be measured and complaining that the 1,000-square-foot cut-off is 
arbitrary, the exemption posited in the NPRM would have been difficult 
to apply. Finally, a separate exemption would have created confusion as 
to whether, or when, to apply the exemption or the readily achievable 
standard. Consequently, the Department has decided that an exemption, 
separate and apart from the readily achievable standard, is not 
appropriate or necessary for small private play areas.
    In the NPRM, the Department requested public comment as to whether 
existing play areas should be permitted to substitute additional ground-
level play components for the elevated play components that they 
otherwise would have been required to make accessible. Most commenters 
opposed this substitution because the guidelines as well as 
considerations of ``readily achievable barrier removal'' inherently 
contain the flexibility necessary for a variety of situations. Such 
commenters also noted that the Access Board adopted extensive guidelines 
with ample public input, including significant negotiation and balancing 
of costs. In addition, commenters advised that including additional 
ground level play components might result in higher costs because more 
accessible route surfaces might be required. A limited number of 
commenters favored substitution. The Department is persuaded by these 
comments that the proposed substitution of elements may not be 
beneficial. The current rules applicable to readily achievable barrier 
removal will be used to determine the number and type of accessible 
elements appropriate for a specific facility.
    In the NPRM, the Department requested public comment on whether it 
would be appropriate for the Access Board to consider issuing guidelines 
for alterations to play and

[[Page 833]]

recreation facilities that would permit reduced scoping of accessible 
components or substitution of ground level play components in lieu of 
elevated play components. The Department received little input on this 
issue, and most commenters disfavored the suggestion. One commenter that 
supported this approach conjectured that it would encourage public 
accommodations to maintain and improve their playgrounds as well as 
provide more accessibility. The Department is persuaded that it is not 
necessary to ask the Access Board to revisit this issue.
    The NPRM also asked whether only one play area of each type should 
be required to comply at existing sites with multiple play areas and 
whether there are other select requirements applicable to play areas in 
the 2004 ADAAG for which the Department should consider exemptions or 
reduced scoping. Some commenters were opposed to the concept of 
requiring compliance at one play area of each type at a site with 
multiple play areas, citing lack of choice and ongoing segregation of 
children and adults with disabilities. Other commenters who supported an 
exemption and reduced scoping for alterations noted that the play 
equipment industry has adjusted to, and does not take issue with, the 
provisions of the 2004 ADAAG; however, they asked for some flexibility 
in the barrier removal requirements as applied to play equipment, 
arguing that augmentation of the existing equipment and installation of 
accessible play surfacing equates to wholesale replacement of the play 
equipment. The Department is persuaded that the current rules applicable 
to readily achievable barrier removal should be used to decide which 
play areas must comply with the supplemental requirements presented in 
the 2010 Standards.
    Swimming pools, wading pools, saunas, and steam rooms. Section 
36.304(d)(3)(ii) in the NPRM specified that for measures taken to comply 
with the barrier removal requirements, existing swimming pools with at 
least 300 linear feet of swimming pool wall would need to provide only 
one accessible means of entry that complies with section 1009.2 or 
section 1009.3 of the 2004 ADAAG, instead of the two means required for 
new construction. Commenters opposed the Department's reducing the 
scoping from that required in the 2004 ADAAG. The following were among 
the factors cited in comments: that swimming is a common therapeutic 
form of exercise for many individuals with disabilities; that the cost 
of a swimming pool lift or other options for pool access is readily 
achievable and can be accomplished without much difficulty or expense; 
and that the readily achievable standard already provides public 
accommodations with a means to reduce their scoping requirements. A few 
commenters cited safety concerns resulting from having just one 
accessible means of access, and stated that because pools typically have 
one ladder for every 75 linear feet of pool wall, they should have more 
than one accessible means of egress. Other commenters either approved or 
did not oppose providing one accessible means of access for larger pools 
so long as a lift was used.
    Section 36.304(d)(4)(ii) of the NPRM proposed to exempt existing 
swimming pools with fewer than 300 linear feet of swimming pool wall 
from the obligation to provide an accessible means of entry. Most 
commenters strongly opposed this provision, arguing that aquatic 
activity is a safe and beneficial form of exercise that is particularly 
appropriate for individuals with disabilities. Many argued that the 
readily achievable standard for barrier removal is available as a 
defense and is preferable to creating an exemption for pool operators 
for whom providing an accessible means of entry would be readily 
achievable. Commenters who supported this provision apparently assumed 
that providing an accessible means of entry would be readily achievable 
and that therefore the exemption is needed so that small pool operators 
do not have to provide an accessible means of entry.
    The Department has carefully considered all the information 
available to it as well as the comments submitted on these two proposed 
exemptions for swimming pools owned or operated by title III entities. 
The Department acknowledges that swimming provides important 
therapeutic, exercise, and social benefits for many individuals with 
disabilities and is persuaded that exemption of the vast majority of 
privately owned or operated pools from the 2010 Standards is neither 
appropriate nor necessary. The Department agrees with the commenters 
that title III already contains sufficient limitations on private 
entities' obligations to remove barriers. In particular, the Department 
agrees that those public accommodations that can demonstrate that making 
particular existing swimming pools accessible in accordance with the 
2010 Standards is not readily achievable are sufficiently protected from 
excessive compliance costs. Thus, the Department has eliminated proposed 
Sec. 36.304(d)(3)(ii) and (d)(4)(ii) from the final rule.
    Proposed Sec. 36.304(d)(4)(iii) would have exempted existing saunas 
and steam rooms that seat only two individuals from the obligation to 
remove barriers. This provision generated far fewer comments than the 
provisions for swimming pools. People who commented were split fairly 
evenly between those who argued that the readily achievable standard for 
barrier removal should be applied to all existing saunas and steam rooms 
and those who argued that all existing saunas and steam rooms, 
regardless of size, should be exempt from any barrier removal 
obligations. The Department considered these comments and has decided to 
eliminate the exemption for existing saunas and

[[Page 834]]

steam rooms that seat only two people. Such an exemption for saunas and 
steam rooms that seat only two people is unnecessary because the readily 
achievable standard provides sufficient protection against barrier 
removal that is overly expensive or too difficult. Moreover, the 
Department believes barrier removal likely will not be readily 
achievable for most of these small saunas because the nature of their 
prefabricated forms, which include built-in seats, make it either 
technically infeasible or too difficult or expensive to remove barriers. 
Consequently a separate exemption for saunas and steam rooms would have 
been superfluous. Finally, employing the readily achievable standard for 
small saunas and steam rooms is consistent with the Department's 
decisions regarding the proposed exemptions for play areas and swimming 
pools.
    Several commenters also argued in favor of a specific exemption for 
existing spas. The Department notes that the technically infeasible and 
readily achievable defenses are applicable equally to existing spas and 
declines to adopt such an exemption.
    The Department also solicited comment on the possibility of 
exempting existing wading pools from the obligation to remove barriers 
where readily achievable. Most commenters stated that installing a 
sloped entry in an existing wading pool is not likely to be feasible. 
Because covered entities are not required to undertake modifications 
that are not readily achievable or that would be technically infeasible, 
the Department believes that the rule as drafted provides sufficient 
protection from unwarranted expense to the operators of small existing 
wading pools. Other existing wading pools, particularly those large 
wading pools found in facilities such as water parks, must be assessed 
on a case-by-case basis. Therefore, the Department has not included an 
exemption for wading pools in its final rule.
    The Department received several comments recommending that existing 
wave pools be exempt from barrier removal requirements. The commenters 
pointed out that existing wave pools often have a sloped entry, but do 
not have the handrails, level landings, or edge protection required for 
accessible entry. Because pool bottom slabs are structural, they could 
be subject to catastrophic failure if the soil pressure stability or the 
under slab dewatering are not maintained during the installation of 
these accessibility features in an already-constructed pool. They also 
argue that the only safe design scenario is to design the wheelchair 
ramp, pool lift, or transfer access in a side cove where the mean water 
level largely is unaffected by the wave action, and that this additional 
construction to an existing wave pool is not readily achievable. If 
located in the main pool area, the handrails, stanchions, and edge 
protection for sloped entry will become underwater hazards when the wave 
action is pushing onto pool users, and the use of a pool lift will not 
be safe without a means of stabilizing the person against the forces of 
the waves while using the lift. They also pointed out that a wheelchair 
would pose a hazard to all wave pool users, in that the wave action 
might push other pool users into the wheelchair or push the wheelchair 
into other pool users. The wheelchair would have to be removed from the 
pool after the user has entered (and has transferred to a flotation 
device if needed). The commenters did not specify if these two latter 
concerns are applicable to all wave pools or only to those with more 
aggressive wave action. The Department has decided that the issue of 
modifications to wave pools is best addressed on a case-by-case basis, 
and therefore, this rule does not contain barrier removal exemptions 
applicable to wave pools.
    The Department also received comments suggesting that it is not 
appropriate to require two accessible means of entry to wave pools, lazy 
rivers, sand bottom pools, and other water amusements that have only one 
point of entry. The Department agrees. The 2010 Standards (at section 
242.2, Exception 2) provide that only one means of entry is required for 
wave pools, lazy rivers, sand bottom pools, and other water amusement 
where user access is limited to one area.
    Other recreation facilities. In the NPRM, the Department asked about 
a number of issues relating to recreation facilities, such as team or 
player seating areas, areas of sport activity, exercise machines, 
boating facilities, fishing piers and platforms, golf courses, and 
miniature golf courses. The Department asked for public comment on the 
costs and benefits of applying the 2004 ADAAG to these spaces and 
facilities. The discussion of the comments received by the Department on 
these issues and the Department's response to those comments can be 
found in either the section entitled ``Other Issues'' of Appendix A to 
this final rule.
    Safe harbor for qualified small businesses. Section 36.304(d)(5) of 
the NPRM would have provided that a qualified small business would meet 
its obligation to remove architectural barriers where readily achievable 
for a given year if, during that tax year, the entity spent at least 1 
percent of its gross revenue in the preceding tax year on measures 
undertaken in compliance with barrier removal requirements. Proposed 
Sec. 36.304(d)(5) has been omitted from the final rule.
    The qualified small business safe harbor was proposed in response to 
small business advocates' requests for clearer guidance on when barrier 
removal is, and is not, readily achievable. According to these groups, 
the Department's approach to readily achievable barrier removal 
disproportionately affects small business for the following reasons: (1) 
Small businesses are more likely to operate

[[Page 835]]

in older buildings and facilities; (2) the 1991 Standards are too 
numerous and technical for most small business owners to understand and 
determine how they relate to State and local building or accessibility 
codes; and (3) small businesses are vulnerable to title III litigation 
and often are compelled to settle because they cannot afford the 
litigation costs involved in proving that an action is not readily 
achievable.
    The 2010 Standards go a long way toward meeting the concern of small 
businesses with regard to achieving compliance with both Federal and 
State accessibility requirements, because the Access Board harmonized 
the 2004 ADAAG with the model codes that form the basis of most State 
and local accessibility codes. Moreover, the element-by-element safe 
harbor will ensure that unless and until a small business engages in 
alteration of affected elements, the small business will not have to 
retrofit elements that were constructed in compliance with the 1991 
Standards or, with respect to elements in an existing facility, that 
were retrofitted to the 1991 Standards in conjunction with the 
business's barrier removal obligation prior to the rule's compliance 
date.
    In proposing an additional safe harbor for small businesses, the 
Department had sought to promulgate a rule that would provide small 
businesses a level of certainty in short-term and long-term planning 
with respect to barrier removal. This in turn would benefit individuals 
with disabilities in that it would encourage small businesses to 
consider and incorporate barrier removal in their yearly budgets. Such a 
rule also would provide some protection, through diminished litigation 
risks, to small businesses that undertake significant barrier removal 
projects.
    As proposed in the NPRM, the qualified small business safe harbor 
would provide that a qualified small business has met its readily 
achievable barrier removal obligations for a given year if, during that 
tax year, the entity has spent at least 1 percent of its gross revenue 
in the preceding tax year on measures undertaken to comply with title 
III barrier removal requirements. (Several small business advocacy 
organizations pointed out an inconsistency between the Department's 
description of the small business safe harbor in the Section-by-Section 
Analysis for Sec. 36.304 and the proposed regulatory text for that 
provision. The proposed regulatory text sets out the correct parameters 
of the proposed rule. The Department does not believe that the error 
substantively affected the comments on this issue. Some commenters noted 
the discrepancy and commented on both; others commented more generally 
on the proposal, so the discrepancy was not relevant.) The Department 
noted that the efficacy of any proposal for a small business safe harbor 
would turn on the following two determinations: (1) The definition of a 
qualified small business, and (2) the formula for calculating what 
percentage of revenue is sufficient to satisfy the readily achievable 
presumption.
    As proposed in Sec. 36.104 in the NPRM, a ``qualified small 
business'' is a business entity defined as a small business concern 
under the regulations promulgated by the Small Business Administration 
(SBA) pursuant to the Small Business Act. See 15 U.S.C. 632; 13 CFR part 
121. The Department noted that under section 3(a)(2)(C) of the Small 
Business Act, Federal departments and agencies are prohibited from 
prescribing a size standard for categorizing a business concern as a 
small business unless the department or agency has been authorized 
specifically to do so or has proposed a size standard in compliance with 
the criteria set forth in the SBA regulations, has provided an 
opportunity for public notice and comment on the proposed standard, and 
has received approval from the Administrator of the SBA to use the 
standard. See 15 U.S.C. 632(a)(2)(C). The Department further noted that 
Federal agencies or departments promulgating regulations relating to 
small businesses usually use SBA size criteria, and they otherwise must 
be prepared to justify how they arrived at a different standard and why 
the SBA's regulations do not satisfy the agency's program requirements. 
See 13 CFR 121.903. The ADA does not define ``small business'' or 
specifically authorize the Department to prescribe size standards.
    In the NPRM, the Department indicated its belief that the size 
standards developed by the SBA are appropriate for determining which 
businesses subject to the ADA should be eligible for the small business 
safe harbor provisions, and proposed to adopt the SBA's size standards 
to define small businesses for purposes of the qualified small business 
safe harbor. The SBA's small business size standards define the maximum 
size that a concern, together with all of its affiliates, may be if it 
is to be eligible for Federal small business programs or to be 
considered a small business for the purpose of other Federal agency 
programs. Concerns primarily engaged in the same kind of economic 
activity are classified in the same industry regardless of their types 
of ownership (such as sole proprietorship, partnership, or corporation). 
Approximately 1200 industries are described in detail in the North 
American Industry Classification System--United States, 2007. For most 
businesses, the SBA has established a size standard based on average 
annual receipts. The majority of places of public accommodation will be 
classified as small businesses if their average annual receipts are less 
than $6.5 million. However, some will qualify with higher annual 
receipts. The SBA small business size standards should be familiar to 
many if not most small businesses, and using these standards in the ADA

[[Page 836]]

regulation would provide some certainty to owners, operators, and 
individuals because the SBA's current size standards can be changed only 
after notice and comment rulemaking.
    The Department explained in the NPRM that the choice of gross 
revenue as the basis for calculating the safe harbor threshold was 
intended to avoid the effect of differences in bookkeeping practices and 
to maximize accessibility consistent with congressional intent. The 
Department recognized, however, that entities with similar gross revenue 
could have very different net revenue, and that this difference might 
affect what is readily achievable for a particular entity. The 
Department also recognized that adopting a small business safe harbor 
would effect a marked change to the Department's current position on 
barrier removal. Accordingly, the Department sought public comment on 
whether a presumption should be adopted whereby qualifying small 
businesses are presumed to have done what is readily achievable for a 
given year if, during that tax year, the entity spent at least 1 percent 
of its gross revenue in the preceding tax year on barrier removal, and 
on whether 1 percent is an appropriate amount or whether gross revenue 
would be the appropriate measure.
    The Department received many comments on the proposed qualified 
small business safe harbor. From the business community, comments were 
received from individual business owners and operators, industry and 
trade groups, and advocacy organizations for business and industry. From 
the disability community, comments were received from individuals, 
disability advocacy groups, and nonprofit organizations involved in 
providing services for persons with disabilities or involved in 
disability-related fields. The Department has considered all relevant 
matter submitted on this issue during the 60-day public comment period.
    Small businesses and industry groups strongly supported a qualified 
small business safe harbor of some sort, but none supported the 
structure proposed by the Department in the NPRM. All felt strongly that 
clarifications and modifications were needed to strengthen the provision 
and to provide adequate protection from litigation.
    Business commenters' objections to the proposed qualified small 
business safe harbor fell generally into three categories: (1) That 
gross revenue is an inappropriate and inaccurate basis for determining 
what is readily achievable by a small business since it does not take 
into account expenses that may result in a small business operating at a 
loss; (2) that courts will interpret the regulation to mean that a small 
business must spend 1 percent of gross revenue each year on barrier 
removal, i.e., that expenditure of 1 percent of gross revenue on barrier 
removal is always ``readily achievable''; and (3) that a similar 
misinterpretation of the 1 percent gross revenue concept, i.e., that 1 
percent of gross revenue is always ``readily achievable,'' will be 
applied to public accommodations that are not small businesses and that 
have substantially larger gross revenue. Business groups also expressed 
significant concern about the recordkeeping burdens they viewed as 
inherent in the Department's proposal.
    Across the board, business commenters objected to the Department's 
proposed use of gross revenue as the basis for calculating whether the 
small business safe harbor has been met. All contended that 1 percent of 
gross revenue is too substantial a trigger for safe harbor protection 
and would result in barrier removal burdens far exceeding what is 
readily achievable or ``easily accomplishable and able to be carried out 
without much difficulty or expense.'' 42 U.S.C. 12181(9). These 
commenters further pointed out that gross revenue and receipts vary 
considerably from industry to industry depending on the outputs sold in 
each industry, and that the use of gross revenue or receipts would 
therefore result in arbitrary and inequitable burdens on those subject 
to the rule. These commenters stated that the readily achievable 
analysis, and thus the safe harbor threshold, should be premised on a 
business's net revenue so that operating expenses are offset before 
determining what amount might be available for barrier removal. Many 
business commenters contended that barrier removal is not readily 
achievable if an entity is operating at a loss, and that a spending 
formula premised on net revenue can reflect more accurately businesses' 
ability to engage in barrier removal.
    There was no consensus among the business commenters as to a formula 
that would reflect more accurately what is readily achievable for small 
businesses with respect to barrier removal. Those that proposed 
alternative formulas offered little in the way of substantive support 
for their proposals. One advocacy organization representing a large 
cross-section of small businesses provided some detail on the gross and 
net revenue of various industry types and sizes in support of its 
position that for nearly all small businesses, net revenue is a better 
indicator of a business's financial ability to spend money on barrier 
removal. The data also incidentally highlighted the importance and 
complexity of ensuring that each component in a safe harbor formula 
accurately informs and contributes to the ultimate question of what is 
and is not readily achievable for a small business.
    Several business groups proposed that a threshold of 0.5 percent (or 
one-half of 1 percent) of gross revenue, or 2.5 percent of net revenue, 
spent on ADA compliance might be a workable measure of what is ``readily 
achievable'' for small businesses. Other groups proposed 3 to 5 percent 
of net revenue

[[Page 837]]

as a possible measure. Several commenters proposed affording small 
businesses an option of using gross or net revenue to determine safe 
harbor eligibility. Another commenter proposed premising the safe harbor 
threshold on a designated percentage of the amount spent on renovation 
in a given year. Others proposed averaging gross or net revenue over a 
number of years to account for cyclical changes in economic and business 
environments. Additionally, many proposed that an entity should be able 
to roll over expenditures in excess of the safe harbor for inclusion in 
safe harbor analysis in subsequent years, to facilitate barrier removal 
planning and encourage large-scale barrier removal measures.
    Another primary concern of many businesses and business groups is 
that the 1 percent threshold for safe harbor protection would become a 
de facto ``floor'' for what is readily achievable for any small business 
entity. These commenters urged the Department to clarify that readily 
achievable barrier removal remains the standard, and that in any given 
case, an entity retains the right to assert that barrier removal 
expenditures below the 1 percent threshold are not readily achievable. 
Other business groups worried that courts would apply the 1 percent 
calculus to questions of barrier removal by businesses too large to 
qualify for the small business safe harbor. These commenters requested 
clarification that the rationale underlying the Department's 
determination that a percentage of gross revenue can appropriately 
approximate readily achievable barrier removal for small businesses does 
not apply outside the small business context.
    Small businesses and business groups uniformly requested guidance as 
to what expenses would be included in barrier removal costs for purposes 
of determining whether the safe harbor threshold has been met. These 
commenters contended that any and all expenses associated with ADA 
compliance--e.g., consultants, architects, engineers, staff training, 
and recordkeeping--should be included in the calculation. Some proposed 
that litigation-related expenses, including defensive litigation costs, 
also should be accounted for in a small business safe harbor. 
Additionally, several commenters urged the Department to issue a small 
business compliance guide with detailed guidance and examples regarding 
application of the readily achievable barrier removal standard and the 
safe harbor. Some commenters felt that the Department's regulatory 
efforts should be focused on clarifying the readily achievable standard 
rather than on introducing a safe harbor based on a set spending level.
    Businesses and business groups expressed concern that the 
Department's proposed small business safe harbor would not alleviate 
small business vulnerability to litigation. Individuals and advocacy 
groups were equally concerned that the practical effect of the 
Department's proposal likely would be to accelerate or advance the 
initiation of litigation. These commenters pointed out that an 
individual encountering barriers in small business facilities will not 
know whether the entity is noncompliant or entitled to safe harbor 
protection. Safe harbor eligibility can be evaluated only after review 
of the small business's barrier removal records and financial records. 
Individuals and advocacy groups argued that the Department should not 
promulgate a rule by which individuals must file suit to obtain the 
information needed to determine whether a lawsuit is appropriate in a 
particular case, and that, therefore, the rule should clarify that small 
businesses are required to produce such documentation to any individual 
upon request.
    Several commenters noted that a small business safe harbor based on 
net, rather than gross, revenue would complicate exponentially its 
efficacy as an affirmative defense, because accounting practices and 
asserted expenses would be subject to discovery and dispute. One 
business advocacy group representing a large cross-section of small 
businesses noted that some small business owners and operators likely 
would be uncomfortable with producing detailed financial information, or 
could be prevented from using the safe harbor because of inadvertent 
recordkeeping deficiencies.
    Individuals, advocacy groups, and nonprofit organizations commenting 
on behalf of the disability community uniformly and strongly opposed a 
safe harbor for qualified small businesses, saying it is fundamentally 
at odds with the intent of Congress and the plain language of the ADA. 
These commenters contended that the case-specific factors underlying the 
statute's readily achievable standard cannot be reconciled with a 
formulaic accounting approach, and that a blanket formula inherently is 
less fair, less flexible, and less effective than the current case-by-
case determination for whether an action is readily achievable. 
Moreover, they argued, a small business safe harbor for readily 
achievable barrier removal is unnecessary because the statutory standard 
explicitly provides that a business need only spend what is readily 
achievable--an amount that may be more or less than 1 percent of revenue 
in any given year.
    Several commenters opined that the formulaic approach proposed by 
the Department overlooks the factors that often prove most conducive and 
integral to readily achievable barrier removal--planning and 
prioritization. Many commenters expressed concern that the safe harbor 
creates an incentive for business entities to forego large-scale barrier 
removal in favor of smaller, less costly removal projects, regardless of

[[Page 838]]

the relative access the measures might provide. Others commented that an 
emphasis on a formulaic amount rather than readily achievable barrier 
removal might result in competition among types of disabilities as to 
which barriers get removed first, or discrimination against particular 
types of disabilities if barrier removal for those groups is more 
expensive.
    Many commenters opposed to the small business safe harbor proposed 
clarifications and limiting rules. A substantial number of commenters 
were strongly opposed to what they perceived as a vastly overbroad and 
overly complicated definition of ``qualified small business'' for 
purposes of eligibility for the safe harbor, and urged the Department to 
limit the qualified small business safe harbor to those businesses 
eligible for the ADA small business tax credit under section 44 of the 
Tax Code. Some commenters from the disability community contended that 
the spending level that triggers the safe harbor should be cumulative, 
to reflect the continuing nature of the readily achievable barrier 
obligation and to preclude a business from erasing years of 
unjustifiable inaction or insufficient action by spending up to the safe 
harbor threshold for one year. These commenters also sought explicit 
clarification that the small business safe harbor is an affirmative 
defense.
    A number of commenters proposed that a business seeking to use the 
qualified small business safe harbor should be required to have a 
written barrier removal plan that contains a prioritized list of 
significant access barriers, a schedule for removal, and a description 
of the methods used to identify and prioritize barriers. These 
commenters argued that only spending consistent with the plan should 
count toward the qualified small business threshold.
    After consideration of all relevant matter presented, the Department 
has concluded that neither the qualified small business safe harbor 
proposed in the NPRM nor any of the alternatives proposed by commenters 
will achieve the Department's intended results. Business and industry 
commenters uniformly objected to a safe harbor based on gross revenue, 
argued that 1 percent of gross revenue was out of reach for most, if not 
all, small businesses, and asserted that a safe harbor based on net 
revenue would better capture whether and to what extent barrier removal 
is readily achievable for small businesses. Individuals and disability 
advocacy groups rejected a set formula as fundamentally inconsistent 
with the case-specific approach reflected in the statute.
    Commenters on both sides noted ambiguity as to which ADA-related 
costs appropriately should be included in the calculation of the safe 
harbor threshold, and expressed concern about the practical effect of 
the proposed safe harbor on litigation. Disability organizations 
expressed concern that the proposal might increase litigation because 
individuals with disabilities confronted with barriers in places of 
public accommodation would not be able to independently assess whether 
an entity is noncompliant or is, in fact, protected by the small 
business safe harbor. The Department notes that the concerns about 
enforcement-related complexity and expense likely would increase 
exponentially with a small business safe harbor based on net revenue.
    The Department continues to believe that promulgation of a small 
business safe harbor would be within the scope of the Attorney General's 
mandate under 42 U.S.C. 12186(b) to issue regulations to carry out the 
provisions of title III. Title III defines ``readily achievable'' to 
mean ``easily accomplishable and able to be carried out without much 
difficulty or expense,'' 42 U.S.C. 12181(9), and sets out factors to 
consider in determining whether an action is readily achievable. While 
the statutory factors reflect that whether an action is readily 
achievable is a fact-based determination, there is no inherent 
inconsistency with the Department's proposition that a formula based on 
revenue and barrier removal expenditure could accurately approximate the 
high end of the level of expenditure that can be considered readily 
achievable for a circumscribed subset of title III entities defined, in 
part, by their maximum annual average receipts. Moreover, the 
Department's obligation under the SBREFA to consider alternative means 
of compliance for small businesses, see 5 U.S.C. 603(c), further 
supports the Department's conclusion that a well-targeted formula is a 
reasonable approach to implementation of the statute's readily 
achievable standard. While the Department ultimately has concluded that 
a small business safe harbor should not be included in the final rule, 
the Department continues to believe that it is within the Department's 
authority to develop and implement such a safe harbor.
    As noted above, the business community strongly objected to a safe 
harbor premised on gross revenue, on the ground that gross revenue is an 
unreliable indicator of an entity's ability to remove barriers, and 
urged the Department to formulate a safe harbor based on net revenue. 
The Department's proposed use of gross revenue was intended to offer a 
measure of certainty for qualified small businesses while ensuring that 
those businesses continue to meet their ongoing obligation to remove 
architectural barriers where doing so is readily achievable.
    The Department believes that a qualified small business safe harbor 
based on net revenue would be an unreliable indicator of what is readily 
achievable and would be unworkable in practice. Evaluation of what is 
readily achievable for a small business cannot rest solely on a 
business's net revenue

[[Page 839]]

because many decisions about expenses are inherently subjective, and in 
some cases a net loss may be more beneficial (in terms of taxes, for 
example) than a small net profit. The Department does not read the ADA's 
readily achievable standard to mean necessarily that architectural 
barrier removal is to be, or should be, a business's last concern, or 
that a business can claim that every barrier removal obligation is not 
readily achievable. Therefore, if a qualified small business safe harbor 
were to be premised on net revenue, assertion of the affirmative defense 
would trigger discovery and examination of the business's accounting 
methods and the validity or necessity of offsetting expenses. The 
practical benefits and legal certainty intended by the NPRM would be 
lost.
    Because there was little to no support for the Department's proposed 
use of gross revenue and no workable alternatives are available at this 
time, the Department will not adopt a small business safe harbor in this 
final rule. Small business public accommodations are subject to the 
barrier removal requirements set out in Sec. 36.304 of the final rule. 
In addition, the Department plans to provide small businesses with more 
detailed guidance on assessing and meeting their barrier removal 
obligations in a small business compliance guide.

                Section 36.308  Seating in Assembly Areas

    In the 1991 rule, Sec. 36.308 covered seating obligations for public 
accommodations in assembly areas. It was bifurcated into (a) existing 
facilities and (b) new construction and alterations. The new 
construction and alterations provision, Sec. 36.308(b), merely stated 
that assembly areas should be built or altered in accordance with the 
applicable provisions in the 1991 Standards. Section 36.308(a), by 
contrast, provided detailed guidelines on what barrier removal was 
required.
    The Department explained in the preamble to the 1991 rule that 
Sec. 36.308 provided specific rules on assembly areas to ensure that 
wheelchair users, who typically were relegated to inferior seating in 
the back of assembly areas separate from their friends and family, would 
be provided access to seats that were integrated and equal in quality to 
those provided to the general public. Specific guidance on assembly 
areas was desirable because they are found in many different types of 
places of public accommodation, ranging from opera houses (places of 
exhibition or entertainment) to private university lecture halls (places 
of education), and include assembly areas that range in size from small 
movie theaters of 100 or fewer seats to 100,000-seat sports stadiums.
    In the NPRM, the Department proposed to update Sec. 36.308(a) by 
incorporating some of the applicable assembly area provisions from the 
2010 Standards. Upon further review, however, the Department has 
determined that the need to provide special guidance for assembly areas 
in a separate section no longer exists, except for specialty seating 
areas, as discussed below. Since enactment of the ADA, the Department 
has interpreted the 1991 Standards as a guide for determining the 
existence of barriers. Courts have affirmed this interpretation. See, 
e.g., Colorado Cross Disability Coalition v. Too, Inc., 344 F. Supp. 2d 
707 (D. Colo. 2004); Access Now, Inc. v. AMH CGH, Inc., 2001 WL 1005593 
(S.D. Fla. 2001); Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 
(S.D.N.Y. 1999). The 2010 Standards now establish detailed guidance for 
newly constructed and altered assembly areas, which is provided in 
Sec. 36.406(f), and these Standards will serve as a new guide for 
barrier removal. Accordingly, the former Sec. 36.308(a) has been 
replaced in the final rule. Assembly areas will benefit from the same 
safe harbor provisions applicable to barrier removal in all places of 
public accommodations as provided in Sec. 36.304(d)(2) of the final 
rule.
    The Department has also decided to remove proposed Sec. 36.308(c)(2) 
from the final rule. This provision would have required assembly areas 
with more than 5,000 seats to provide five wheelchair spaces with at 
least three designated companion seats for each of those five wheelchair 
spaces. The Department agrees with commenters who asserted that group 
seating already is addressed more appropriately in ticketing under 
Sec. 36.302(f).
    The Department has determined that proposed Sec. 36.308(c)(1), 
addressing specialty seating in assembly areas, should remain as 
Sec. 36.308 in the final rule with additional language. This paragraph 
is designed to ensure that individuals with disabilities have an 
opportunity to access specialty seating areas that entitle spectators to 
distinct services or amenities not generally available to others. This 
provision is not, as several commenters mistakenly thought, designed to 
cover luxury boxes and suites. Those areas have separate requirements 
outlined in section 221 of the 2010 Standards.
    Section 36.308 requires only that accessible seating be provided in 
each area with distinct services or amenities. To the extent a covered 
entity provides multiple seating areas with the same services and 
amenities, each of those areas would not be distinct and thus all of 
them would not be required to be accessible. For example, if a facility 
has similar dining service in two areas, both areas would not need to be 
made accessible; however, if one dining service area is open to 
families, while the other is open only to individuals over the age of 
21, both areas would need to be made accessible. Factors distinguishing 
specialty seating areas generally are dictated by the type of facility 
or event, but may include, for example, such distinct services and 
amenities as access to wait staff

[[Page 840]]

for in-seat food or beverage service; availability of catered food or 
beverages for pre-game, intermission, or post-game events; restricted 
access to lounges with special amenities, such as couches or flat-screen 
televisions; or access to team personnel or facilities for team-
sponsored events (e.g., autograph sessions, sideline passes, or facility 
tours) not otherwise available to other spectators.
    The NPRM required public accommodations to locate wheelchair seating 
spaces and companion seats in each specialty seating area within the 
assembly area. The Department has added language in the final rule 
stating that public accommodations that cannot place wheelchair seating 
spaces and companion seats in each specialty area because it is not 
readily achievable to do so may meet their obligation by providing 
specialty services or amenities to individuals with disabilities and 
their companions at other designated accessible locations at no 
additional cost. For example, if a theater that only has barrier removal 
obligations provides wait service to spectators in the mezzanine, and it 
is not readily achievable to place accessible seating there, it may meet 
its obligation by providing wait service to patrons with disabilities 
who use wheelchairs and their companions at other designated accessible 
locations at no additional cost. This provision does not obviate the 
obligation to comply with applicable requirements for new construction 
and alterations, including dispersion of accessible seating.

                Section 36.309  Examinations and Courses

    Section 36.309(a) sets forth the general rule that any private 
entity that offers examinations or courses relating 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. In the NPRM preamble and proposed regulatory amendment and 
in this final rule, the Department relied on its history of enforcement 
efforts, research, and body of knowledge of testing and modifications, 
accommodations, and aids in detailing steps testing entities should take 
to ensure that persons with disabilities receive appropriate 
modifications, accommodations, or auxiliary aids in examination and 
course settings as required by the ADA. The Department received comments 
from disability rights groups, organizations that administer tests, 
State governments, professional associations, and individuals on the 
language appearing in the NPRM preamble and amended regulation and has 
carefully considered these comments.
    The Department initially set out the parameters of appropriate 
documentation requests relating to examinations and courses covered by 
this section in the 1991 preamble at 28 CFR part 36, stating that 
``requests for documentation must be reasonable and must be limited to 
the need for the modification or aid requested.'' See 28 CFR part 36, 
app. B at 735 (2009). Since that time, the Department, through its 
enforcement efforts pursuant to section 309, has addressed concerns that 
requests by testing entities for documentation regarding the existence 
of an individual's disability and need for a modification or auxiliary 
aid or service were often inappropriate and burdensome. The Department 
proposed language stating that while it may be appropriate for a testing 
entity to request that an applicant provide documentation supporting the 
existence of a disability and the need for a modification, 
accommodation, or auxiliary aid or service, the request by the testing 
entity for such documentation must be reasonable and limited. The NPRM 
proposed that testing entities should narrowly tailor requests for 
documentation, limiting those requests to materials that will allow the 
testing entities to ascertain the nature of the disability and the 
individual's need for the requested modification, accommodation, or 
auxiliary aid or service. This proposal codified the 1991 rule's 
preamble language regarding testing entities' requests for information 
supporting applicants' requests for testing modifications or 
accommodations.
    Overall, most commenters supported this addition to the regulation. 
These commenters generally agreed that documentation sought by testing 
entities to support requests for modifications and testing 
accommodations should be reasonable and tailored. Commenters noted, for 
example, that the proposal to require reasonable and tailored 
documentation requests ``is not objectionable. Indeed, it largely tracks 
DOJ's long-standing informal guidance that `requests for documentation 
must be reasonable and limited to the need for the modification or aid 
requested.' ''
    Commenters including disability rights groups, State governments, 
professional associations, and individuals made it clear that, in 
addition to the proposed regulatory change, other significant problems 
remain for individuals with disabilities who seek necessary 
modifications to examinations and courses. These problems include 
detailed questions about the nature of documentation materials submitted 
by candidates, testing entities' questioning of documentation provided 
by qualified professionals with expertise in the particular disability 
at issue, and lack of timeliness in determining whether to

[[Page 841]]

provide requested accommodations or modifications. Several commenters 
expressed enthusiasm for the preamble language addressing some of these 
issues, and some of these commenters recommended the incorporation of 
portions of this preamble language into the regulatory text. Some 
testing entities expressed concerns and uncertainty about the language 
in the preamble and sought clarifications about its meaning. These 
commenters focused most of their attention on the following language 
from the NPRM preamble:

    Generally, a testing entity should accept without further inquiry 
documentation provided by a qualified professional who has made an 
individualized assessment of the applicant. Appropriate documentation 
may include a letter from a qualified professional or evidence of a 
prior diagnosis, or accommodation, or classification, such as 
eligibility for a special education program. When an applicant's 
documentation is recent and demonstrates a consistent history of a 
diagnosis, there is no need for further inquiry into the nature of the 
disability. A testing entity should consider an applicant's past use of 
a particular auxiliary aid or service.

73 FR 34508, 34539 (June 17, 2008).

    Professional organizations, State governments, individuals, and 
disability rights groups fully supported the Department's preamble 
language and recommended further modification of the regulations to 
encompass the issues raised in the preamble. A disability rights group 
recommended that the Department incorporate the preamble language into 
the regulations to ensure that ``documentation demands are strictly 
limited in scope and met per se when documentation of previously 
provided accommodations or aids is provided.'' One professional 
education organization noted that many testing corporations disregard 
the documented diagnoses of qualified professionals, and instead 
substitute their own, often unqualified diagnoses of individuals with 
disabilities. Commenters confirmed that testing entities sometimes ask 
for unreasonable information that is either impossible, or extremely 
onerous, to provide. A disability rights organization supported the 
Department's proposals and noted that private testing companies impose 
burdensome documentation requirements upon applicants with disabilities 
seeking accommodations and that complying with the documentation 
requests is frequently so difficult, and negotiations over the requests 
so prolonged, that test applicants ultimately forgo taking the test. 
Another disability rights group urged the Department to ``expand the 
final regulatory language to ensure that regulations accurately provide 
guidance and support the comments made about reducing the burden of 
documenting the diagnosis and existence of a disability.''
    Testing entities, although generally supportive of the proposed 
regulatory amendment, expressed concern regarding the Department's 
proposed preamble language. The testing entities provided the Department 
with lengthy comments in which they suggested that the Department's 
rationale delineated in the preamble potentially could limit them from 
gathering meaningful and necessary documentation to determine whether, 
in any given circumstance, a disability is presented, whether 
modifications are warranted, and which modifications would be most 
appropriate. Some testing entities raised concerns about individuals 
skewing testing results by falsely claiming or feigning disabilities as 
an improper means of seeking advantage on an examination. Several 
testing entities raised concerns about and sought clarification 
regarding the Department's use of certain terms and concepts in the 
preamble, including ``without further inquiry,'' ``appropriate 
documentation,'' ``qualified professional,'' ``individualized 
assessment,'' and ``consider.'' These entities discussed the preamble 
language at length, noting that testing entities need to be able to 
question some aspects of testing applicants' documentation or to request 
further documentation from some candidates when the initial 
documentation is unclear or incomplete. One testing entity expressed 
concern that the Department's preamble language would require the 
acceptance of a brief note on a doctor's prescription pad as adequate 
documentation of a disability and the need for an accommodation. One 
medical examination organization stated that the Department's preamble 
language would result in persons without disabilities receiving 
accommodations and passing examinations as part of a broad expansion of 
unwarranted accommodations, potentially endangering the health and 
welfare of the general public. Another medical board ``strenuously 
objected'' to the ``without further inquiry'' language. Several of the 
testing entities expressed concern that the Department's preamble 
language might require testing companies to accept documentation from 
persons with temporary or questionable disabilities, making test scores 
less reliable, harming persons with legitimate entitlements, and 
resulting in additional expense for testing companies to accommodate 
more test takers.
    It remains the Department's view that, when testing entities receive 
documentation provided by a qualified professional who has made an 
individualized assessment of an applicant that supports the need for the 
modification, accommodation, or aid requested, they shall generally 
accept such documentation and provide the accommodation.

[[Page 842]]

    Several commenters sought clarifications on what types of 
documentation are acceptable to demonstrate the existence of a 
disability and the need for a requested modification, accommodation, or 
aid. The Department believes that appropriate documentation may vary 
depending on the nature of the disability and the specific modification 
or aid requested, and accordingly, testing entities should consider a 
variety of types of information submitted. Examples of types of 
information to consider include recommendations of qualified 
professionals familiar with the individual, results of psycho-
educational or other professional evaluations, an applicant's history of 
diagnosis, participation in a special education program, observations by 
educators, or the applicant's past use of testing accommodations. If an 
applicant has been granted accommodations post-high school by a 
standardized testing agency, there is no need for reassessment for a 
subsequent examination.
    Some commenters expressed concern regarding the use of the term 
``letter'' in the proposed preamble sentence regarding appropriate 
documentation. The NPRM preamble language stated that ``[a]ppropriate 
documentation may include a letter from a qualified professional or 
evidence of a prior diagnosis, accommodation, or classification, such as 
eligibility for a special education program.'' 73 FR 34508, 34539 (June 
17, 2008). Some testing entities posited that the preamble language 
would require them to accept a brief letter from a doctor or even a 
doctor's note on a prescription pad indicating ``I've been treating 
(student) for ADHD and he/she is entitled to extend time on the ACT.'' 
The Department's reference in the NPRM preamble to letters from 
physicians or other professionals was provided in order to offer 
examples of some types of acceptable documentation that may be 
considered by testing entities in evaluating the existence of an 
applicant's disability and the need for a certain modification, 
accommodation, or aid. No one piece of evidence may be dispositive in 
make a testing accommodation determination. The significance of a letter 
or other communication from a doctor or other qualified professional 
would depend on the professional's relationship with the candidate and 
the specific content of the communication, as well as how the letter 
fits in with the totality of the other factors used to determine testing 
accommodations under this rule. Similarly, an applicant's failure to 
provide results from a specific test or evaluation instrument should not 
of itself preclude approval of requests for modifications, 
accommodations, or aids if the documentation provided by the applicant, 
in its entirety, is sufficient to demonstrate that the individual has a 
disability and requires a requested modification, accommodation, or aid 
on the relevant examination. This issue is discussed in more detail 
below.
    One disability rights organization noted that requiring a 25-year 
old who was diagnosed in junior high school with a learning disability 
and accommodated ever since ``to produce elementary school report cards 
to demonstrate symptomology before the age of seven is unduly 
burdensome.'' The same organization commented that requiring an 
individual with a long and early history of disability to be assessed 
within three years of taking the test in question is similarly 
burdensome, stating that ``[t]here is no scientific evidence that 
learning disabilities abate with time, nor that Attention Deficits abate 
with time * * *.'' This organization noted that there is no 
justification for repeatedly subjecting people to expensive testing 
regimens simply to satisfy a disbelieving industry. This is particularly 
true for adults with, for example, learning disabilities such as 
dyslexia, a persistent condition without the need for retesting once the 
diagnosis has been established and accepted by a standardized testing 
agency.
    Some commenters from testing entities sought clarification regarding 
who may be considered a ``qualified professional.'' Qualified 
professionals are licensed or otherwise properly credentialed and 
possess expertise in the disability for which modifications or 
accommodations are sought. For example, a podiatrist would not be 
considered to be a qualified professional to diagnose a learning 
disability or support a request for testing accommodations on that 
basis. Types of professionals who might possess the appropriate 
credentials and expertise are doctors (including psychiatrists), 
psychologists, nurses, physical therapists, occupational therapists, 
speech therapists, vocational rehabilitation specialists, school 
counselors, and licensed mental health professionals. Additionally, 
while testing applicants should present documentation from qualified 
professionals with expertise in the pertinent field, it also is critical 
that testing entities that review documentation submitted by prospective 
examinees in support of requests for testing modifications or 
accommodations ensure that their own reviews are conducted by qualified 
professionals with similarly relevant expertise.
    Commenters also sought clarification of the term individualized 
assessment. The Department's intention in using this term is to ensure 
that documentation provided on behalf of a testing candidate is not only 
provided by a qualified professional, but also reflects that the 
qualified professional has individually and personally evaluated the 
candidate as opposed to simply considering scores from a review of 
documents. This is particularly important in the learning disabilities 
context, where proper diagnosis requires face-to-face evaluation. 
Reports from

[[Page 843]]

experts who have personal familiarity with the candidate should take 
precedence over those from, for example, reviewers for testing agencies, 
who have never personally met the candidate or conducted the requisite 
assessments for diagnosis and treatment.
    Some testing entities objected to the NPRM preamble's use of the 
phrase ``without further inquiry.'' The Department's intention here is 
to address the extent to which testing entities should accept 
documentation provided by an applicant when the testing entity is 
determining the need for modifications, accommodations, or auxiliary 
aids or services. The Department's view is that applicants who submit 
appropriate documentation, e.g., documentation that is based on the 
careful individual consideration of the candidate by a professional with 
expertise relating to the disability in question, should not be 
subjected to unreasonably burdensome requests for additional 
documentation. While some testing commenters objected to this standard, 
it reflects the Department's longstanding position. When an applicant's 
documentation demonstrates a consistent history of a diagnosis of a 
disability, and is prepared by a qualified professional who has made an 
individualized evaluation of the applicant, there is little need for 
further inquiry into the nature of the disability and generally testing 
entities should grant the requested modification, accommodation, or aid.
    After a careful review of the comments, the Department has decided 
to maintain the proposed regulatory language on the scope of appropriate 
documentation in Sec. 36.309(b)(1)(iv). The Department has also added 
new regulatory language at Sec. 36.309(b)(1)(v) that provides that 
testing entities shall give considerable weight to documentation of past 
modifications, accommodations, or auxiliary aids or services received in 
similar testing situations as well as such modifications, 
accommodations, or related aids and services provided in response to an 
Individualized Education Program (IEP) provided under the Individuals 
with Disabilities Education Act (IDEA) or a plan providing services 
pursuant to section 504 of the Rehabilitation Act of 1973, as amended 
(often referred to as a Section 504 Plan). These additions to the 
regulation are necessary because the Department's position on the bounds 
of appropriate documentation contained in Appendix B, 28 CFR part 36, 
app. B (2009), has not been implemented consistently and fully by 
organizations that administer tests.
    The new regulatory language clarifies that an applicant's past use 
of a particular modification, accommodation, or auxiliary aid or service 
in a similar testing setting or pursuant to an IEP or Section 504 Plan 
provides critical information in determining those examination 
modifications that would be applicable in a given circumstance. The 
addition of this language and the appropriate weight to be accorded it 
is seen as important by the Department because the types of 
accommodations provided in both these circumstances are typically 
granted in the context of individual consideration of a student's needs 
by a team of qualified and experienced professionals. Even though these 
accommodations decisions form a common sense and logical basis for 
testing entities to rely upon, they are often discounted and ignored by 
testing entities.
    For example, considerable weight is warranted when a student with a 
Section 504 Plan in place since middle school that includes the 
accommodations of extra time and a quiet room for testing is seeking 
these same accommodations from a testing entity covered by section 309 
of the Act. In this example, a testing entity receiving such 
documentation should clearly grant the request for accommodations. A 
history of test accommodations in secondary schools or in post-secondary 
institutions, particularly when determined through the rigors of a 
process required and detailed by Federal law, is as useful and 
instructive for determining whether a specific accommodation is required 
as accommodations provided in standardized testing situations.
    It is important to note, however, that the inclusion of this weight 
does not suggest that individuals without IEPs or Section 504 Plans are 
not also entitled to receive testing accommodations. Indeed, it is 
recommended that testing entities must consider the entirety of an 
applicant's history to determine whether that history, even without the 
context of a IEP or Section 504 Plan, indicates a need for 
accommodations. In addition, many students with learning disabilities 
have made use of informal, but effective accommodations. For example, 
such students often receive undocumented accommodations such as time to 
complete tests after school or at lunchtime, or being graded on content 
and not form or spelling of written work. Finally, testing entities 
shall also consider that because private schools are not subject to the 
IDEA, students at private schools may have a history of receiving 
accommodations in similar settings that are not pursuant to an IEP or 
Section 504 Plan.
    Some testing entities sought clarification that they should only be 
required to consider particular use of past modifications, 
accommodations, auxiliary aids or services received by testing 
candidates for prior testing and examination settings. These commenters 
noted that it would be unhelpful to consider the classroom 
accommodations for a testing candidate, as those accommodations would 
not typically apply in a standardized test setting. The Department's 
history of enforcement in this area has demonstrated

[[Page 844]]

that a recent history of past accommodations is critical to an 
understanding of the applicant's disability and the appropriateness of 
testing accommodations.
    The Department also incorporates the NPRM preamble's ``timely 
manner'' concept into the new regulatory language at 
Sec. 36.309(b)(1)(vi). Under this provision, testing entities are 
required to respond in a timely manner to requests for testing 
accommodations in order to ensure equal opportunity for persons with 
disabilities. Testing entities are to ensure that their established 
process for securing testing accommodations provides applicants with a 
reasonable opportunity to supplement the testing entities' requests for 
additional information, if necessary, and still be able to take the test 
in the same testing cycle. A disability rights organization commented 
that testing entities should not subject applicants to unreasonable and 
intrusive requests for information in a process that should provide 
persons with disabilities effective modifications in a timely manner, 
fulfilling the core objective of title III to provide equal access. 
Echoing this perspective, several disability rights organizations and a 
State government commenter urged that testing entities should not make 
unreasonably burdensome demands for documentation, particularly where 
those demands create impediments to receiving accommodations in a timely 
manner. Access to examinations should be offered to persons with 
disabilities in as timely a manner as it is offered to persons without 
disabilities. Failure by a testing entity to act in a timely manner, 
coupled with seeking unnecessary documentation, could result in such an 
extended delay that it constitutes a denial of equal opportunity or 
equal treatment in an examination setting for persons with disabilities.

                    Section 36.311  Mobility Devices

    Section 36.311 of the NPRM clarified the scope and circumstances 
under which covered entities are legally obligated to accommodate 
various ``mobility devices.'' Section 36.311 set forth specific 
requirements for the accommodation of mobility devices, including 
wheelchairs, manually-powered mobility aids, and other power-driven 
mobility devices.
    In both the NPRM and the final rule, Sec. 36.311(a) states the 
general rule that in any areas open to pedestrians, public 
accommodations shall permit individuals with mobility disabilities to 
use wheelchairs and manually-powered mobility aids, including walkers, 
crutches, canes, braces, or similar devices. Because mobility scooters 
satisfy the definition of ``wheelchair'' (i.e., ``a manually-operated or 
power-driven device designed primarily for use by an individual with a 
mobility disability for the main purpose of indoor, or of both indoor 
and outdoor locomotion''), the reference to them in Sec. 36.311(a) of 
the final rule has been omitted to avoid redundancy.
    Most business commenters expressed concern that permitting the use 
of other power-driven mobility devices by individuals with mobility 
disabilities would make such devices akin to wheelchairs and would 
require them to make physical changes to their facilities to accommodate 
their use. This concern is misplaced. If a facility complies with the 
applicable design requirements in the 1991 Standards or the 2010 
Standards, the public accommodation will not be required to exceed those 
standards to accommodate the use of wheelchairs or other power-driven 
mobility devices that exceed those requirements.
    Legal standard for other power-driven mobility devices. The NPRM 
version of Sec. 36.311(b) provided that a public accommodation ``shall 
make reasonable modifications in its policies, practices, and procedures 
to permit the use of other power-driven mobility devices by individuals 
with disabilities, unless the public accommodation can demonstrate that 
the use of the device is not reasonable or that its use will result in a 
fundamental alteration in the nature of the public accommodation's 
goods, services, facilities, privileges, advantages, or 
accommodations.'' 73 FR 34508, 34556 (June 17, 2008). In other words, 
public accommodations are by default required to permit the use of other 
power-driven mobility devices; the burden is on them to prove the 
existence of a valid exception.
    Most commenters supported the notion of assessing whether the use of 
a particular device is reasonable in the context of a particular venue. 
Commenters, however, disagreed about the meaning of the word 
``reasonable'' as it is used in Sec. 36.311(b) of the NPRM. Virtually 
every business and industry commenter took the use of the word 
``reasonable'' to mean that a general reasonableness standard would be 
applied in making such an assessment. Advocacy and nonprofit groups 
almost universally objected to the use of a general reasonableness 
standard with regard to the assessment of whether a particular device 
should be allowed at a particular venue. They argued that the assessment 
should be based on whether reasonable modifications could be made to 
allow a particular device at a particular venue, and that the only 
factors that should be part of the calculus that results in the 
exclusion of a particular device are undue burden, direct threat, and 
fundamental alteration.
    A few commenters opposed the proposed provision requiring public 
accommodations to assess whether reasonable modifications can be made to 
allow other power-driven mobility devices, preferring instead that the 
Department issue guidance materials so that public accommodations would 
not have to

[[Page 845]]

incur the cost of such analyses. Another commenter noted a ``fox 
guarding the hen house''-type of concern with regard to public 
accommodations developing and enforcing their own modification policy.
    In response to comments received, the Department has revised 
Sec. 36.311(b) to provide greater clarity regarding the development of 
legitimate safety requirements regarding other power-driven mobility 
devices. The Department has not retained the proposed NPRM language 
stating that an other power-driven mobility device can be excluded if a 
public accommodation can demonstrate that the use of the device is not 
reasonable or that its use fundamentally alters the nature of the goods, 
services, facilities, privileges, advantages, or accommodations offered 
by the public accommodation because the Department believes that these 
exceptions are covered by the general reasonable modification 
requirement contained in Sec. 36.302.
    Assessment factors. Section 36.311(c) of the NPRM required public 
accommodations to ``establish policies to permit the use of other power-
driven mobility devices'' and articulated four factors upon which public 
accommodations must base decisions as to whether a modification is 
reasonable to allow the use of a class of other power-driven mobility 
devices by individuals with disabilities in specific venues (e.g., 
doctors' offices, parks, commercial buildings, etc.). 73 FR 34508, 34556 
(June 17, 2008).
    The Department has relocated and modified the NPRM text that 
appeared in Sec. 36.311(c) to new paragraph Sec. 36.311(b)(2) to clarify 
what factors the public accommodation shall use in determining whether a 
particular other power-driven mobility device can be allowed in a 
specific facility as a reasonable modification. Section 36.311(b)(2) now 
states that ``[i]n determining whether a particular other power-driven 
mobility device can be allowed in a specific facility as a reasonable 
modification under (b)(1), a public accommodation shall consider'' 
certain enumerated factors. The assessment factors are designed to 
assist public accommodations in determining whether allowing the use of 
a particular other power-driven mobility device in a specific facility 
is reasonable. Thus, the focus of the analysis must be on the 
appropriateness of the use of the device at a specific facility, rather 
than whether it is necessary for an individual to use a particular 
device.
    The NPRM proposed the following specific assessment factors: (1) The 
dimensions, weight, and operating speed of the mobility device in 
relation to a wheelchair; (2) the potential risk of harm to others by 
the operation of the mobility device; (3) the risk of harm to the 
environment or natural or cultural resources or conflict with Federal 
land management laws and regulations; and (4) the ability of the public 
accommodation to stow the mobility device when not in use, if requested 
by the user.
    Factor 1 was designed to help public accommodations assess whether a 
particular device was appropriate, given its particular physical 
features, for a particular location. Virtually all commenters said the 
physical features of the device affected their view of whether a 
particular device was appropriate for a particular location. For 
example, while many commenters supported the use of an other power-
driven mobility device if the device were a Segway PT, 
because of environmental and health concerns they did not offer the same 
level of support if the device were an off-highway vehicle, all-terrain 
vehicle (ATV), golf car, or other device with a fuel-powered or 
combustion engine. Most commenters noted that indicators such as speed, 
weight, and dimension really were an assessment of the appropriateness 
of a particular device in specific venues and suggested that factor 1 
say this more specifically.
    The term ``in relation to a wheelchair'' in the NPRM's factor 1 
apparently created some concern that the same legal standards that apply 
to wheelchairs would be applied to other power-driven mobility devices. 
The Department has omitted the term ``in relation to a wheelchair'' from 
Sec. 36.311(b)(2)(i) to clarify that if a facility that is in compliance 
with the applicable provisions of the 1991 Standards or the 2010 
Standards grants permission for an other power-driven mobility device to 
go on-site, it is not required to exceed those standards to accommodate 
the use of other power-driven mobility devices.
    In response to requests that NPRM factor 1 state more specifically 
that it requires an assessment of an other power-driven mobility 
device's appropriateness under particular circumstances or in particular 
venues, the Department has added several factors and more specific 
language. In addition, although the NPRM made reference to the operation 
of other power-driven mobility devices in ``specific venues,'' the 
Department's intent is captured more clearly by referencing ``specific 
facility'' in paragraph (b)(2). The Department also notes that while 
speed is included in factor 1, public accommodations should not rely 
solely on a device's top speed when assessing whether the device can be 
accommodated; instead, public accommodations should also consider the 
minimum speeds at which a device can be operated and whether the 
development of speed limit policies can be established to address 
concerns regarding the speed of the device. Finally, since the ability 
of the public accommodation to stow the mobility device when not in use 
is an aspect of its design and operational characteristics, the text 
proposed as factor 4 in the NPRM has been incorporated in paragraph 
(b)(2)(iii).

[[Page 846]]

    The NPRM's version of factor 2 provided that the ``potential risk of 
harm to others by the operation of the mobility device'' is one of the 
determinants in the assessment of whether other power-driven mobility 
devices should be excluded from a site. With this language, the 
Department intended to incorporate the safety standard found in 
Sec. 36.301(b), which provides that public accommodations may ``impose 
legitimate safety requirements that are necessary for safe operation'' 
into the assessment. However, several commenters indicated that they 
read this language, particularly the phrase ``potential risk of harm'' 
to mean that the Department had adopted a concept of risk analysis 
different from that which is in the existing standards. The Department 
did not intend to create a new standard and has changed the language in 
paragraphs (b)(1) and (b)(2) to clarify the applicable standards, 
thereby avoiding the introduction of new assessments of risk beyond 
those necessary for the safe operation of the public accommodation.
    While all applicable affirmative defenses are available to public 
accommodations in the establishment and execution of their policies 
regarding other power-driven mobility devices, the Department did not 
explicitly incorporate the direct threat defense into the assessment 
factors because Sec. 36.301(b) provides public accommodations the 
appropriate framework with which to assess whether legitimate safety 
requirements that may preclude the use of certain other power-driven 
mobility devices are necessary for the safe operation of the public 
accommodation. In order to be legitimate, the safety requirement must be 
based on actual risks and not mere speculation regarding the device or 
how it will be operated. Of course, public accommodations may enforce 
legitimate safety rules established for the operation of other-power 
driven mobility devices (e.g., reasonable speed restrictions). Finally, 
NPRM factor 3 concerning environmental resources and conflicts of law 
has been relocated to paragraph (b)(2)(v).
    As a result of these comments and requests, NPRM factors 1, 2, 3, 
and 4 have been revised and renumbered within paragraph 36.311(b)(2) in 
the final rule.
    Several commenters requested that the Department provide guidance 
materials or more explicit concepts of which considerations might be 
appropriate for inclusion in a policy that allows the use of other 
power-driven mobility devices. A public accommodation that has 
determined that reasonable modifications can be made in its policies, 
practices, or procedures to allow the use of other power-driven mobility 
devices should develop a policy that clearly states the circumstances 
under which the use of other power-driven mobility devices by 
individuals with a mobility disability will be permitted. It also should 
include clear, concise statements of specific rules governing the 
operation of such devices. Finally, the public accommodation should 
endeavor to provide individuals with disabilities who use other power-
driven mobility devices with advanced notice of its policy regarding the 
use of such devices and what rules apply to the operation of these 
devices.
    For example, the U.S. General Services Administration (GSA) has 
developed a policy allowing the use of the Segway PT and 
other EPAMDs in all Federal buildings under GSA's jurisdiction. See 
General Services Administration, Interim Segway Personal 
Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/
graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited June 24, 
2010). The GSA policy defines the policy's scope of coverage by setting 
out what devices are and are not covered by the policy. The policy also 
sets out requirements for safe operation, such as a speed limit, 
prohibits the use of EPAMDs on escalators, and provides guidance 
regarding security screening of these devices and their operators.
    A public accommodation that determines that it can make reasonable 
modifications to permit the use of an other power-driven mobility device 
by an individual with a mobility disability might include in its policy 
the procedure by which claims that the other power-driven mobility 
device is being used for a mobility disability will be assessed for 
legitimacy (i.e., a credible assurance that the device is being used for 
a mobility disability, including a verbal representation by the person 
with a disability that is not contradicted by observable fact, or the 
presentation of a disability parking space placard or card, or State-
issued proof of disability); the type or classes of other power-driven 
mobility devices are permitted to be used by individuals with mobility 
disabilities; the size, weight, and dimensions of the other power-driven 
mobility devices that are permitted to be used by individuals with 
mobility disabilities; the speed limit for the other power-driven 
mobility devices that are permitted to be used by individuals with 
mobility disabilities; the places, times, or circumstances under which 
the use of the other power-driven mobility devices is or will be 
restricted or prohibited; safety, pedestrian, and other rules concerning 
the use of the other power-driven mobility devices; whether, and under 
which circumstances, storage for the other power-driven mobility devices 
will be made available; and how and where individuals with a mobility 
disability can obtain a copy of the other power-driven mobility device 
policy.
    Public accommodations also might consider grouping other power-
driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-
powered vehicles, and other devices).

[[Page 847]]

For example, an amusement park may determine that it is reasonable to 
allow individuals with disabilities to use EPAMDs in a variety of 
outdoor programs and activities, but that it would not be reasonable to 
allow the use of golf cars as mobility devices in similar circumstances. 
At the same time, the entity may address its concerns about factors such 
as space limitations by disallowing use of EPAMDs by members of the 
general public who do not have mobility disabilities.
    The Department anticipates that in many circumstances, public 
accommodations will be able to develop policies that will allow the use 
of other power-driven mobility devices by individuals with mobility 
disabilities without resulting in a fundamental alteration of a public 
accommodation's goods, services, facilities, privileges, advantages, or 
accommodations. Consider the following examples:

    Example 1: Although individuals who do not have mobility 
disabilities are prohibited from operating EPAMDs at a theme park, the 
park has developed a policy allowing individuals with mobility 
disabilities to use EPAMDs as their mobility device at the park. The 
policy states that EPAMDs are allowed in all areas of the theme park 
that are open to pedestrians as a reasonable modification to its general 
policy on EPAMDs. The public accommodation has determined that the 
facility provides adequate space for a taller device, such as an EPAMD, 
and that it does not fundamentally alter the nature of the theme park's 
goods and services. The theme park's policies do, however, require that 
EPAMDs be operated at a safe speed limit. A theme park employee may 
inquire at the ticket gate whether the device is needed due to the 
user's disability or may request the presentation of a valid, State-
issued, disability parking placard (though presentation of such a 
placard is not necessary), or other State-issued proof of disability or 
a credible assurance that the use of the EPAMD is for the individual's 
mobility disability. The park employee also may inform an individual 
with a disability using an EPAMD that the theme park's policy requires 
that it be operated at or below the park's designated speed limit.
    Example 2: A shopping mall has developed a policy whereby EPAMDs may 
be operated by individuals with mobility disabilities in the common 
pedestrian areas of the mall if the operator of the device agrees to the 
following: to operate the device no faster than the speed limit set by 
the policy; to use the elevator, not the escalator, to transport the 
EPAMD to different levels; to yield to pedestrian traffic; not to leave 
the device unattended unless it can stand upright and has a locking 
system; to refrain from using the device temporarily if the mall manager 
determines that the volume of pedestrian traffic is such that the 
operation of the device would interfere with legitimate safety 
requirements; and to present the mall management office with a valid, 
State-issued, disability parking placard (though presentation of such a 
placard is not necessary), or State-issued proof of disability, as a 
credible assurance that the use of the EPAMD is for the individual's 
mobility disability, upon entry to the mall.

    Inquiry into the use of other power-driven mobility device. Section 
36.311(d) of the NPRM provided that a ``public accommodation may ask a 
person using a power-driven mobility device if the mobility device is 
required because of the person's disability. A public accommodation 
shall not ask a person using a mobility device questions about the 
nature and extent of the person's disability.'' 73 FR 34508, 34556 (June 
17, 2008).
    While business commenters did not take issue with applying this 
standard to individuals who use wheelchairs, they were not satisfied 
with the application of this standard to other power-driven mobility 
devices. Business commenters expressed concern about people feigning 
mobility disabilities to be able to use other power-driven mobility 
devices in public accommodations in which their use is otherwise 
restricted. These commenters felt that a mere inquiry into whether the 
device is being used for a mobility disability was an insufficient 
mechanism by which to detect fraud by other power-driven mobility device 
users who do not have mobility disabilities. These commenters believed 
they should be given more latitude to make inquiries of other power-
driven mobility device users claiming a mobility disability than they 
would be given for wheelchair users. They sought the ability to 
establish a policy or method by which public accommodations may assess 
the legitimacy of the mobility disability. They suggested some form of 
certification, sticker, or other designation. One commenter suggested a 
requirement that a sticker bearing the international symbol for 
accessibility be placed on the device or that some other identification 
be required to signal that the use of the device is for a mobility 
disability. Other suggestions included displaying a disability parking 
placard on the device or issuing EPAMDs, like the Segway PT, 
a permit that would be similar to permits associated with parking spaces 
reserved for those with disabilities.
    Advocacy, nonprofit, and several individual commenters balked at the 
notion of allowing any inquiry beyond whether the device is necessary 
for a mobility disability and encouraged the Department to retain the 
NPRM's language on this topic. Other commenters, however, were 
empathetic with commenters who had concerns about fraud. At least one 
Segway PT advocate suggested

[[Page 848]]

it would be permissible to seek documentation of the mobility disability 
in the form of a simple sign or permit.
    The Department has sought to find common ground by balancing the 
needs of businesses and individuals with mobility disabilities wishing 
to use other power-driven mobility devices with the Department's 
longstanding, well-established policy of not allowing public 
accommodations or establishments to require proof of a mobility 
disability. There is no question that public accommodations have a 
legitimate interest in ferreting out fraudulent representations of 
mobility disabilities, especially given the recreational use of other 
power-driven mobility devices and the potential safety concerns created 
by having too many such devices in a specific facility at one time. 
However, the privacy of individuals with mobility disabilities and 
respect for those individuals are also vitally important.
    Neither Sec. 36.311(d) of the NPRM nor Sec. 36.311(c) of the final 
rule permits inquiries into the nature of a person's mobility 
disability. However, the Department does not believe it is unreasonable 
or overly intrusive for an individual with a mobility disability seeking 
to use an other power-driven mobility device to provide a credible 
assurance to verify that the use of the other power-driven mobility 
device is for a mobility disability. The Department sought to minimize 
the amount of discretion and subjectivity exercised by public 
accommodations in assessing whether an individual has a mobility 
disability and to allow public accommodations to verify the existence of 
a mobility disability. The solution was derived from comments made by 
several individuals who said they have been admitted with their 
Segway PTs into public entities and public accommodations 
that ordinarily do not allow these devices on-site when they have 
presented or displayed State-issued disability parking placards. In the 
examples provided by commenters, the parking placards were accepted as 
verification that the Segway PTs were being used as mobility 
devices.
    Because many individuals with mobility disabilities avail themselves 
of State programs that issue disability parking placards or cards and 
because these programs have penalties for fraudulent representations of 
identity and disability, utilizing the parking placard system as a means 
to establish the existence of a mobility disability strikes a balance 
between the need for privacy of the individual and fraud protection for 
the public accommodation. Consequently, the Department has decided to 
include regulatory text in Sec. 36.311(c)(2) of the final rule that 
requires public accommodations to accept the presentation of a valid, 
State-issued disability parking placard or card, or State-issued proof 
of disability, as verification that an individual uses the other power-
driven mobility device for his or her mobility disability. A ``valid'' 
disability placard or card is one that is presented by the individual to 
whom it was issued and is otherwise in compliance with the State of 
issuance's requirements for disability placards or cards. Public 
accommodations are required to accept a valid, State-issued disability 
parking placard or card, or State-issued proof of disability, as a 
credible assurance, but they cannot demand or require the presentation 
of a valid disability placard or card, or State-issued proof of 
disability, as a prerequisite for use of an other power-driven mobility 
device, because not all persons with mobility disabilities have such 
means of proof. If an individual with a mobility disability does not 
have such a placard or card, or State-issued proof of disability, he or 
she may present other information that would serve as a credible 
assurance of the existence of a mobility disability.
    In lieu of a valid, State-issued disability parking placard or card, 
or State-issued proof of disability, a verbal representation, not 
contradicted by observable fact, shall be accepted as a credible 
assurance that the other power-driven mobility device is being used 
because of a mobility disability. This does not mean, however, that a 
mobility disability must be observable as a condition for allowing the 
use of an other power-driven mobility device by an individual with a 
mobility disability, but rather that if an individual represents that a 
device is being used for a mobility disability and that individual is 
observed thereafter engaging in a physical activity that is contrary to 
the nature of the represented disability, the assurance given is no 
longer credible and the individual may be prevented from using the 
device.
    Possession of a valid, State-issued disability parking placard or 
card or a verbal assurance does not trump a public accommodation's valid 
restrictions on the use of other power-driven mobility devices. 
Accordingly, a credible assurance that the other power-driven mobility 
device is being used because of a mobility disability is not a guarantee 
of entry to a public accommodation because notwithstanding such a 
credible assurance, use of the device in a particular venue may be at 
odds with the legal standard in Sec. 36.311(b)(1) or with one or more of 
the Sec. 36.311(b)(2) factors. Only after an individual with a 
disability has satisfied all of the public accommodation's policies 
regarding the use of other power-driven mobility devices does a credible 
assurance become a factor in allowing the use of the device. For 
example, if an individual seeking to use an other power-driven mobility 
device fails to satisfy any of the public accommodation's stated 
policies regarding the use of other power-driven mobility devices, the 
fact that the individual legitimately possesses and presents a valid, 
State-issued disability parking

[[Page 849]]

placard or card, or State-issued proof of disability, does not trump the 
policy and require the public accommodation to allow the use of the 
device. In fact, in some instances, the presentation of a legitimately 
held placard or card, or State-issued proof of disability, will have no 
relevance or bearing at all on whether the other power-driven mobility 
device may be used, because the public accommodation's policy does not 
permit the device in question on-site under any circumstances (e.g., 
because its use would create a substantial risk of serious harm to the 
immediate environment or natural or cultural resources). Thus, an 
individual with a mobility disability who presents a valid disability 
placard or card, or State-issued proof of disability, will not be able 
to use an ATV as an other power-driven mobility device in a mall or a 
restaurant if the mall or restaurant has adopted a policy banning their 
use for any or all of the above-mentioned reasons.
    However, an individual with a mobility disability who has complied 
with a public accommodation's stated policies cannot be refused use of 
the other power-driven mobility device if he or she has provided a 
credible assurance that the use of the device is for a mobility 
disability.

               Subpart D--New Construction and Alterations

    Subpart D establishes the title III requirements applicable to new 
construction and alterations. The Department has amended this subpart to 
adopt the 2004 ADAAG, set forth the effective dates for implementation 
of the 2010 Standards, and make related revisions as described below.

               Section 36.403  Alterations: Path of Travel

    In the NPRM, the Department proposed one change to Sec. 36.403 on 
alterations and path of travel by adding a path of travel safe harbor. 
Proposed Sec. 36.403(a)(1) stated that if a private entity has 
constructed or altered required elements of a path of travel in 
accordance with the 1991 Standards, the private entity is not required 
to retrofit such elements to reflect incremental changes in the 2010 
Standards solely because of an alteration to a primary function area 
served by that path of travel.
    A substantial number of commenters objected to the Department's 
creation of a safe harbor for alterations to required elements of a path 
of travel that comply with the current 1991 Standards. These commenters 
argued that if a public accommodation already is in the process of 
altering its facility, there should be a legal requirement that 
individuals with disabilities are entitled to increased accessibility 
provided by the 2004 ADAAG for path of travel work. These commenters 
also stated that they did not believe there was a statutory basis for 
``grandfathering'' facilities that comply with the 1991 Standards. 
Another commenter argued that the updates incorporated into the 2004 
ADAAG provide very substantial improvements for access, and that since 
there already is a 20 percent cost limit on the amount that can be 
expended on path of travel alterations, there is no need for a further 
limitation.
    Some commenters supported the safe harbor as lessening the economic 
costs of implementing the 2004 ADAAG for existing facilities. One 
commenter also stated that without the safe harbor, entities that 
already have complied with the 1991 Standards will have to make and pay 
for compliance twice, as compared to those entities that made no effort 
to comply in the first place. Another commenter asked that the safe 
harbor be revised to include pre-ADA facilities that have been made 
compliant with the 1991 Standards to the extent ``readily achievable'' 
or, in the case of alterations, ``to the maximum extent feasible,'' but 
that are not in full compliance with the 1991 Standards.
    The final rule retains the safe harbor for required elements of a 
path of travel to altered primary function areas for private entities 
that already have complied with the 1991 Standards with respect to those 
required elements. As discussed with respect to Sec. 36.304, the 
Department believes that this safe harbor strikes an appropriate balance 
between ensuring that individuals with disabilities are provided access 
to buildings and facilities and mitigating potential financial burdens 
on existing places of public accommodation that are undertaking 
alterations subject to the 2010 Standards. This safe harbor is not a 
blanket exemption for facilities. If a private entity undertakes an 
alteration to a primary function area, only the required elements of a 
path of travel to that area that already comply with the 1991 Standards 
are subject to the safe harbor. If a private entity undertakes an 
alteration to a primary function area and the required elements of a 
path of travel to the altered area do not comply with the 1991 
Standards, then the private entity must bring those elements into 
compliance with the 2010 Standards.

           Section 36.405  Alterations: Historic Preservation

    In the 1991 rule, the Department provided guidance on making 
alterations to buildings or facilities that are eligible for listing in 
the National Register of Historic Places under the National Historic 
Preservation Act or that are designated as historic under State or local 
law. That provision referenced the 1991 Standards. Because those cross-
references to the 1991 Standards are no longer applicable, it is 
necessary in this final rule

[[Page 850]]

to provide new regulatory text. No substantive change in the 
Department's approach in this area is intended by this revision.

     Section 36.406  Standards for New Construction and Alterations

    Applicable standards. Section 306 of the ADA, 42 U.S.C. 12186, 
directs the Attorney General to issue regulations to implement title III 
that are consistent with the guidelines published by the Access Board. 
As described in greater detail elsewhere in this Appendix, the 
Department is a statutory member of the Access Board and was involved 
significantly in the development of the 2004 ADAAG. Nonetheless, the 
Department has reviewed the standards and has determined that additional 
regulatory provisions are necessary to clarify how the Department will 
apply the 2010 Standards to places of lodging, social service center 
establishments, housing at a place of education, assembly areas, and 
medical care facilities. Those provisions are contained in 
Sec. 36.406(c)-(g). Each of these provisions is discussed below.
    Section 36.406(a) adopts the 2004 ADAAG as part of the 2010 
Standards and establishes the compliance date and triggering events for 
the application of those standards to both new construction and 
alterations. Appendix B of this final rule (Analysis and Commentary on 
the 2010 ADA Standards for Accessible Design) provides a description of 
the major changes in the 2010 Standards (as compared to the 1991 ADAAG) 
and a discussion of the public comments that the Department received on 
specific sections of the 2004 ADAAG. A number of commenters asked the 
Department to revise certain provisions in the 2004 ADAAG in a manner 
that would reduce either the required scoping or specific technical 
accessibility requirements. As previously stated, the ADA requires the 
Department to adopt standards consistent with the guidelines adopted by 
the Access Board. The Department will not adopt any standards that 
provide less accessibility than is provided under the guidelines 
contained in the 2004 ADAAG because the guidelines adopted by the Access 
Board are ``minimum guidelines.'' 42 U.S.C. 12186(c).
    In the NPRM, the Department specifically proposed amending 
Sec. 36.406(a) by dividing it into two sections. Proposed 
Sec. 36.406(a)(1) specified that new construction and alterations 
subject to this part shall comply with the 1991 Standards if physical 
construction of the property commences less than six months after the 
effective date of the rule. Proposed Sec. 36.406(a)(2) specified that 
new construction and alterations subject to this part shall comply with 
the proposed standards if physical construction of the property 
commences six months or more after the effective date of the rule. The 
Department also proposed deleting the advisory information now published 
in a table at Sec. 36.406(b).
    Compliance date. When the ADA was enacted, the compliance dates for 
various provisions were delayed in order to provide time for covered 
entities to become familiar with their new obligations. Titles II and 
III of the ADA generally became effective on January 26, 1992, six 
months after the regulations were published. See 42 U.S.C. 12131 note; 
42 U.S.C. 12181 note. New construction under title II and alterations 
under either title II or title III had to comply with the design 
standards on that date. See 42 U.S.C. 12131 note; 42 U.S.C. 12183(a)(2). 
For new construction under title III, the requirements applied to 
facilities designed and constructed for first occupancy after January 
26, 1993--18 months after the 1991 Standards were published by the 
Department. See 42 U.S.C. 12183(a)(1).
    The Department received numerous comments on the issue of effective 
date, many of them similar to those received in response to the ANPRM. A 
substantial number of commenters advocated a minimum of 18 months from 
publication of the final rule to the effective date for application of 
the standards to new construction, consistent with the time period used 
for implementation of the 1991 Standards. Many of these commenters 
argued that the 18-month period was necessary to minimize the likelihood 
of having to redesign projects already in the design and permitting 
stages at the time that the final rule is published. According to these 
commenters, large projects take several years from design to occupancy, 
and can be subject to delays from obtaining zoning, site approval, 
third-party design approval (i.e., architectural review), and 
governmental permits. To the extent the new standards necessitate 
changes in any previous submissions or permits already issued, 
businesses might have to expend significant funds and incur delays due 
to redesign and resubmission.
    Some commenters also expressed concern that a six-month period would 
be hard to implement given that many renovations are planned around 
retail selling periods, holidays, and other seasonal concerns. For 
example, hotels plan renovations during their slow periods, retail 
establishments avoid renovations during the major holiday selling 
periods, and businesses in certain parts of the country cannot do any 
major construction during parts of the winter.
    Some commenters argued that chain establishments need additional 
time to redesign their ``master facility'' designs for replication at 
multiple locations, taking into account both the new standards and 
applicable State and local accessibility requirements.

[[Page 851]]

    Other commenters argued for extending the effective date from six 
months to a minimum of 12 months for many of the same reasons, and one 
commenter argued that there should be a tolling of the effective date 
for those businesses that are in the midst of the permitting process if 
the necessary permits are delayed due to legal challenges or other 
circumstances outside the business's control.
    Several commenters took issue with the Department's characterization 
of the 2004 ADAAG and the 1991 Standards as two similar rules. These 
commenters argued that many provisions in the 2004 ADAAG represent a 
``substantial and significant'' departure from the 1991 Standards and 
that it will take a great deal of time and money to identify all the 
changes and implement them. In particular, they were concerned that 
small businesses lacked the internal resources to respond quickly to the 
new changes and that they would have to hire outside experts to assist 
them. One commenter expressed concern that regardless of familiarity 
with the 2004 ADAAG, since the 2004 ADAAG standards are organized in an 
entirely different manner from the 1991 Standards, and contain, in the 
commenter's view, extensive changes, it will make the shift from the old 
to the new standards quite complicated.
    Several commenters also took issue with the Department's proffered 
rationale that by adopting a six-month effective date, the Department 
was following the precedent of other Federal agencies that have adopted 
the 2004 ADAAG for facilities whose accessibility they regulate. These 
commenters argued that the Department's title III regulation applies to 
a much broader range and number of facilities and programs than the 
other Federal agencies (i.e., Department of Transportation and the 
General Services Administration) and that those agencies regulate 
accessibility primarily in either governmental facilities or facilities 
operated by quasi-governmental authorities.
    Several commenters representing the travel, vacation, and golf 
industries argued that the Department should adopt a two-year effective 
date for new construction. In addition to many of the arguments made by 
commenters in support of an 18-month effective date, these commenters 
also argued that a two-year time frame would allow States with DOJ-
certified building codes to have the time to amend their codes to meet 
the 2004 ADAAG so that design professionals can work from compatible 
codes and standards.
    Several commenters recommended treating alterations differently than 
new construction, arguing for a one-year effective date for alterations. 
Another commenter representing building officials argued that a minimum 
of a six-month phase-in for alterations was sufficient, since a very 
large percentage of alteration projects ``are of a scale that they 
should be able to accommodate the phase-in.''
    In contrast, many commenters argued that the proposed six-month 
effective date should be retained in the final rule.
    The Department has been persuaded by concerns raised by some of the 
commenters that the six month compliance date proposed in the NPRM for 
application of the 2010 Standards may be too short for certain projects 
that are already in the midst of the design and permitting process. The 
Department has determined that for new construction and alterations, 
compliance with the 2010 Standards will not be required until 18 months 
from the date the final rule is published. This is consistent with the 
amount of time given when the 1991 regulation was published. Since many 
State and local building codes contain provisions that are consistent 
with 2004 ADAAG, the Department has decided that public accommodations 
that choose to comply with the 2010 Standards as defined in Sec. 36.104 
before the compliance date will still be considered in compliance with 
the ADA. However, public accommodations that choose to comply with the 
2010 Standards in lieu of the 1991 Standards prior to the compliance 
date described in this rule must choose one or the other standard, and 
may not rely on some of the requirements contained in one standard and 
some of the requirements contained in the other standard.
    Triggering event. In the NPRM, the Department proposed using the 
start of physical construction as the triggering event for applying the 
proposed standards to new construction under title III. This triggering 
event parallels that for the alterations provisions (i.e., the date on 
which construction begins), and would apply clearly across all types of 
covered public accommodations. The Department also proposed that for 
prefabricated elements, such as modular buildings and amusement park 
rides and attractions, or installed equipment, such as ATMs, the start 
of construction means the date on which the site preparation begins. 
Site preparation includes providing an accessible route to the element.
    The Department's NPRM sought public comment on how to define the 
start of construction and the practicality of applying commencement of 
construction as a triggering event. The Department also requested input 
on whether the proposed definition of the start of construction was 
sufficiently clear and inclusive of different types of facilities. The 
Department also sought input about facilities subject to title III for 
which commencement of construction would be ambiguous or problematic.
    The Department received numerous comments recommending that the 
Department adopt a two-pronged approach to defining the triggering 
event. In those cases where permits are required, the Department should

[[Page 852]]

use ``date of permit application'' as the effective date triggering 
event, and if no permit is required, the Department should use ``start 
of construction.'' A number of these commenters argued that the date of 
permit application is appropriate because the applicant would have to 
consider the applicable State and Federal accessibility standards in 
order to submit the designs usually required with the application. 
Moreover, the date of permit application is a typical triggering event 
in other code contexts, such as when jurisdictions introduce an updated 
building code. Some commenters expressed concern that using the date of 
``start of construction'' was problematic because the date can be 
affected by factors that are outside the control of the owner. For 
example, an owner can plan construction to start before the new 
standards take effect and therefore use the 1991 Standards in the 
design. If permits are not issued in a timely manner, then the 
construction could be delayed until after the effective date, and then 
the project would have to be redesigned. This problem would be avoided 
if the permit application date was the triggering event. Two commenters 
expressed concern that the term ``start of construction'' is ambiguous, 
because it is unclear whether start of construction means the razing of 
structures on the site to make way for a new facility or means site 
preparation, such as regrading or laying the foundation.
    One commenter recommended using the ``signing date of a construction 
contract,'' and an additional commenter recommended that the new 
standards apply only to ``buildings permitted after the effective date 
of the regulations.''
    One commenter stated that for facilities that fall outside the 
building permit requirements (ATMs, prefabricated saunas, small sheds), 
the triggering event should be the date of installation, rather than the 
date the space for the facility is constructed.
    The Department is persuaded by the comments to adopt a two-pronged 
approach to defining the triggering event for new construction and 
alterations. The final rule states that in those cases where permits are 
required, the triggering event shall be the date when the last 
application for a building permit application or permit extension is 
certified to be complete by a State, county, or local government, or in 
those jurisdictions where the government does not certify completion of 
applications, the date when the last application for a building permit 
or permit extension is received by the State, county, or local 
government. If no permits are required, then the triggering event shall 
be the ``start of physical construction or alterations.'' The Department 
has also added clarifying language related to the term ``start of 
physical construction or alterations'' to make it clear that ``start of 
physical construction or alterations'' is not intended to mean the date 
of ceremonial groundbreaking or the date a structure is razed to make it 
possible for construction of a facility to take place.
    Amusement rides. Section 234 of the 2010 Standards provides 
accessibility guidelines for newly designed and constructed amusement 
rides. The amusement ride provisions do not provide a ``triggering 
event'' for new construction or alteration of an amusement ride. An 
industry commenter requested that the triggering event of ``first use'' 
as noted in the Advisory note to section 234.1 of the 2004 ADAAG be 
included in the final rule. The Advisory note provides that ``[a] custom 
designed and constructed ride is new upon its first use, which is the 
first time amusement park patrons take the ride.'' The Department 
declines to treat amusement rides differently than other types of new 
construction and alterations and under the final rule, they are subject 
to Sec. 36.406(a)(3). Thus, newly constructed and altered amusement 
rides shall comply with the 2010 Standards if the start of physical 
construction or the alteration is on or after 18 months from the 
publication date of this rule. The Department also notes that section 
234.4.2 of the 2010 Standards only applies where the structural or 
operational characteristics of an amusement ride are altered. It does 
not apply in cases where the only change to a ride is the theme.
    Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec. 36.304(d)(2) has no effect on new 
or altered elements in existing facilities that were subject to the 1991 
Standards on the date that they were constructed or altered, but do not 
comply with the technical and scoping specifications for those elements 
in the 1991 Standards. Section 36.406(a)(5) of the final rule sets forth 
the rules for noncompliant new construction or alterations in facilities 
that were subject to the requirements of this part. Under those 
provisions, noncomplying new construction and alterations constructed or 
altered after the effective date of the applicable ADA requirements and 
before March 15, 2012 shall, before March 15, 2012, be made accessible 
in accordance with either the 1991 Standards or the 2010 Standards. 
Noncomplying new construction and alterations constructed or altered 
after the effective date of the applicable ADA requirements and before 
March 15, 2012, shall, on or after March 15, 2012, be made accessible in 
accordance with the 2010 Standards.

      Section 36.406(b)  Application of Standards to Fixed Elements

    The final rule contains a new Sec. 36.406(b) that clarifies that the 
requirements established by this section, including those contained in 
the 2004 ADAAG, prescribe the requirements necessary to ensure that 
fixed or

[[Page 853]]

built-in elements in new or altered facilities are accessible to 
individuals with disabilities. Once the construction or alteration of a 
facility has been completed, all other aspects of programs, services, 
and activities conducted in that facility are subject to the operational 
requirements established elsewhere in this final rule. Although the 
Department has often chosen to use the requirements of the 1991 
Standards as a guide to determining when and how to make equipment and 
furnishings accessible, those coverage determinations fall within the 
discretionary authority of the Department.
    The Department is also clarifying that the advisory notes, appendix 
notes, and figures that accompany the 1991 and 2010 Standards do not 
establish separately enforceable requirements unless otherwise specified 
in the text of the standards. This clarification has been made to 
address concerns expressed by ANPRM commenters who mistakenly believed 
that the advisory notes in the 2004 ADAAG established requirements 
beyond those established in the text of the guidelines (e.g., Advisory 
504.4 suggests, but does not require, that covered entities provide 
visual contrast on stair tread nosings to make them more visible to 
individuals with low vision). The Department received no comments on 
this provision in the NPRM.

                  Section 36.406(c)  Places of Lodging

    In the NPRM, the Department proposed a new definition for public 
accommodations that are ``places of lodging'' and a new Sec. 36.406(c) 
to clarify the scope of coverage for places of public accommodation that 
meet this definition. For many years the Department has received 
inquiries from members of the public seeking clarification of ADA 
coverage of rental accommodations in timeshares, condominium hotels, and 
mixed-use and corporate hotel facilities that operate as places of 
public accommodation (as that term is now defined in Sec. 36.104). These 
facilities, which have attributes of both residential dwellings and 
transient lodging facilities, have become increasingly popular since the 
ADA's enactment in 1990 and make up the majority of new hotel 
construction in some vacation destinations. The hybrid residential and 
lodging characteristics of these new types of facilities, as well as 
their ownership characteristics, complicate determinations of ADA 
coverage, prompting questions from both industry and individuals with 
disabilities. While the Department has interpreted the ADA to encompass 
these hotel-like facilities when they are used to provide transient 
lodging, the regulation previously has specifically not addressed them. 
In the NPRM, the Department proposed a new Sec. 36.406(c), entitled 
``Places of Lodging,'' which was intended to clarify that places of 
lodging, including certain timeshares, condominium hotels, and mixed-use 
and corporate hotel facilities, shall comply with the provisions of the 
proposed standards, including, but not limited to, the requirements for 
transient lodging in sections 224 and 806 of the 2004 ADAAG.
    The Department's NPRM sought public input on this proposal. The 
Department received a substantial number of comments on these issues 
from industry representatives, advocates for persons with disabilities, 
and individuals. A significant focus of these comments was on how the 
Department should define and regulate vacation rental units in 
timeshares, vacation communities, and condo-hotels where the units are 
owned and controlled by individual owners and rented out some portion of 
time to the public, as compared to traditional hotels and motels that 
are owned, controlled, and rented to the public by one entity.
    Scoping and technical requirements applicable to ``places of 
lodging.'' In the NPRM, the Department asked for public comment on its 
proposal in Sec. 36.406(c) to apply to places of lodging the scoping and 
technical requirements for transient lodging, rather than the scoping 
and technical requirements for residential dwelling units.
    Commenters generally agreed that the transient lodging requirements 
should apply to places of lodging. Several commenters stated that the 
determination as to which requirements apply should be made based on the 
intention for use at the time of design and construction. According to 
these commenters, if units are intended for transient rentals, then the 
transient lodging standards should apply, and if they are intended to be 
used for residential purposes, the residential standards should apply. 
Some commenters agreed with the application of transient lodging 
standards to places of lodging in general, but disagreed about the 
characterization of certain types of facilities as covered places of 
lodging.
    The Department agrees that the scoping and technical standards 
applicable to transient lodging should apply to facilities that contain 
units that meet the definition of ``places of lodging.''
    Scoping for timeshare or condominium hotels. In the NPRM, the 
Department sought comment on the appropriate basis for determining 
scoping for a timeshare or condominium-hotel. A number of commenters 
indicated that scoping should be based on the usage of the facility. 
Only those units used for short-term stays should be counted for 
application of the transient lodging standards, while units sold as 
residential properties should be treated as residential units not 
subject to the ADA. One commenter stated that scoping should be based on 
the maximum number of sleeping units available

[[Page 854]]

for public rental. Another commenter pointed out that unlike traditional 
hotels and motels, the number of units available for rental in a 
facility or development containing individually owned units is not fixed 
over time. Owners have the right to participate in a public rental 
program some, all, or none of the time, and individual owner 
participation changes from year to year.
    The Department believes that the determination for scoping should be 
based on the number of units in the project that are designed and 
constructed with the intention that their owners may participate in a 
transient lodging rental program. The Department cautions that it is not 
the number of owners that actually exercise their right to participate 
in the program that determines the scoping. Rather it is the units that 
could be placed into an on-site or off-site transient lodging rental 
program. In the final rule, the Department has added a provision to 
Sec. 36.406(c)(3), which states that units intended to be used 
exclusively for residential purposes that are contained in facilities 
that also meet the definition of place of lodging are not covered by the 
transient lodging standards. Title III of the ADA does not apply to 
units designed and constructed with the intention that they be rented or 
sold as exclusively residential units. Such units are covered by the 
Fair Housing Act (FHAct), which contains requirements for certain 
features of accessible and adaptable design both for units and for 
public and common use areas. All units designed and constructed with the 
intention that they may be used for both residential and transient 
lodging purposes are covered by the ADA and must be counted for 
determining the required number of units that must meet the transient 
lodging standards in the 2010 Standards. Public use and common use areas 
in facilities containing units subject to the ADA also must meet the 
2010 Standards. In some developments, units that may serve as 
residential units some of the time and rental units some of the time 
will have to meet both the FHAct and the ADA requirements. For example, 
all of the units in a vacation condominium facility whose owners choose 
to rent to the public when they are not using the units themselves would 
be counted for the purposes of determining the appropriate number of 
units that must comply with the 2010 Standards. In a newly constructed 
condominium that has three floors with units dedicated to be sold solely 
as residential housing and three floors with units that may be used as 
residences or hotel units, only the units on the three latter floors 
would be counted for applying the 2010 Standards. In a newly constructed 
timeshare development containing 100 units, all of which may be made 
available to the public through an exchange or rental program, all 100 
units would be counted for purposes of applying the 2010 Standards.
    One commenter also asked the Department for clarification of how to 
count individually owned ``lock-off units.'' Lock-off units are units 
that are multi-bedroom but can be ``locked off'' into two separate 
units, each having individual external access. This commenter requested 
that the Department state in the final rule that individually owned 
lock-off units do not constitute multiple guest rooms for purposes of 
calculating compliance with the scoping requirements for accessible 
units, since for the most part the lock-off units are used as part of a 
larger accessible unit, and portions of a unit not locked off would 
constitute both an accessible one-bedroom unit or an accessible two-
bedroom unit with the lock-off unit.
    It is the Department's view that lock-off units that are 
individually owned that can be temporarily converted into two units do 
not constitute two separate guest rooms for purposes of calculating 
compliance with the scoping requirements.
    One commenter asked the Department how developers should scope units 
where buildings are constructed in phases over a span of years, 
recommending that the scoping be based on the total number of units 
expected to be constructed at the project and not on a building-by-
building basis or on a phase-by-phase basis. The Department does not 
think scoping should be based on planned number of units, which may or 
may not be actually constructed over a period of years. However, the 
Department recognizes that resort developments may contain buildings and 
facilities that are of all sizes from single-unit cottages to facilities 
with hundreds of units. The Department believes it would be appropriate 
to allow designers, builders, and developers to aggregate the units in 
facilities with 50 or fewer units that are subject to a single permit 
application and that are on a common site or that are constructed at the 
same time for the purposes of applying the scoping requirements in table 
224.2. Facilities with more than 50 units should be scoped individually 
in accordance with the table. The regulation has been revised to reflect 
this application of the scoping requirements.
    One commenter also asked the Department to use the title III 
regulation to declare that timeshares subject to the transient lodging 
standards are exempt from the design and construction requirements of 
the FHAct. The coverage of the FHAct is set by Congress and interpreted 
by regulations issued by the Department of Housing and Urban 
Development. The Department has no authority to exempt anyone from 
coverage of the FHAct.
    Application of ADA to places of lodging that contain individually 
owned units. The Department believes that regardless of ownership

[[Page 855]]

structure for individual units, rental programs (whether they are on- or 
off-site) that make transient lodging guest rooms available to the 
public must comply with the general nondiscrimination requirements of 
the ADA. In addition, as provided in Sec. 36.406(c), newly constructed 
facilities that contain accommodations intended to be used for transient 
lodging purposes must comply with the 2010 Standards.
    In the NPRM, the Department asked for public comment on several 
issues related to ensuring the availability of accessible units in a 
rental program operated by a place of lodging. The Department sought 
input on how it could address a situation in which a new or converted 
facility constructs the required number of accessible units, but the 
owners of those units choose not to participate in the rental program; 
whether the facility has an obligation to encourage or require owners of 
accessible units to participate in the rental program; and whether the 
facility developer, the condominium association, or the hotel operator 
has an obligation to retain ownership or control over a certain number 
of accessible units to avoid this problem.
    In the NPRM, the Department sought public input on how to regulate 
scoping for a timeshare or condominium-rental facility that decides, 
after the sale of units to individual owners, to begin a rental program 
that qualifies the facility as a place of lodging, and how the 
condominium association, operator, or developer should determine which 
units to make accessible.
    A number of commenters expressed concerns about the ability of the 
Department to require owners of accessible units to participate in the 
rental program, to require developers, condo associations, or homeowners 
associations to retain ownership of accessible units, and to impose 
accessibility requirements on individual owners who choose to place 
inaccessible units into a rental program after purchase. These 
commenters stated that individuals who purchase accessible vacation 
units in condominiums, individual vacation homes, and timeshares have 
ownership rights in their units and may choose lawfully to make their 
units available to the public some, all, or none of the time. Commenters 
advised the Department that the Securities and Exchange Commission takes 
the position that if condominium units are offered in connection with 
participation in a required rental program for any part of the year, 
require the use of an exclusive rental agent, or impose conditions 
otherwise restricting the occupancy or rental of the unit, then that 
offering will be viewed as an offering of securities in the form of an 
investment (rather than a real estate offering). SEC Release No. 33-
5347, Guidelines as to the Applicability of the Federal Securities Laws 
to Offers and Sales of Condominiums or Units in a Real Estate 
Development (Jan. 4, 1973). Consequently, most condominium developers do 
not impose such restrictions at the time of sale. Moreover, owners who 
choose to rent their units as a short-term vacation rental can select 
any rental or management company to lease and manage their unit, or they 
may rent them out on their own. They also may choose never to lease 
those units. Thus, there are no guarantees that at any particular time, 
accessible units will be available for rental by the public. According 
to this commenter, providing incentives for owners of accessible units 
to place their units in the rental program will not work, because it 
does not guarantee the availability of the requisite number of rooms 
dispersed across the development, and there is not any reasonable, 
identifiable source of funds to cover the costs of such incentives.
    A number of commenters also indicated that it potentially is 
discriminatory as well as economically infeasible to require that a 
developer hold back the accessible units so that the units can be 
maintained in the rental program year-round. One commenter pointed out 
that if a developer did not sell the accessible condominiums or 
timeshares in the building inventory, the developer would be subject to 
a potential ADA or FHAct complaint because persons with disabilities who 
wanted to buy accessible units rather than rent them each year would not 
have the option to purchase them. In addition, if a developer held back 
accessible units, the cost of those units would have to be spread across 
all the buyers of the inaccessible units, and in many cases would make 
the project financially infeasible. This would be especially true for 
smaller projects. Finally, this commenter argued that requiring units to 
be part of the common elements that are owned by all of the individual 
unit owners is infeasible because the common ownership would result in 
pooled rental income, which would transform the owners into participants 
in a rental pool, and thus turn the sale of the condominiums into the 
sale of securities under SEC Release 33-5347.
    Several commenters noted that requiring the operator of the rental 
program to own the accessible units is not feasible either because the 
operator of the rental program would have to have the funds to invest in 
the purchase of all of the accessible units, and it would not have a 
means of recouping its investment. One commenter stated that in Texas, 
it is illegal for on-site rental programs to own condominium units. 
Another commenter noted that such a requirement might lead to the loss 
of on-site rental programs, leaving owners to use individual third-party 
brokers, or rent the units privately. One commenter acknowledged that 
individual owners cannot be required to place their units in a rental 
pool simply to offer an accessible unit to the public, since

[[Page 856]]

the owners may be purchasing units for their own use. However, this 
commenter recommended that owners who choose to place their units in a 
rental pool be required to contribute to a fund that would be used to 
renovate units that are placed in the rental pool to increase the 
availability of accessible units. One commenter argued that the legal 
entity running the place of lodging has an obligation to retain control 
over the required number of accessible units to ensure that they are 
available in accordance with title III.
    A number of commenters also argued that the Department has no legal 
authority to require individual owners to engage in barrier removal 
where an existing development adds a rental program. One commenter 
stated that Texas law prohibits the operator of on-site rental program 
from demanding that alterations be made to a particular unit. In 
addition, under Texas law, condominium declarations may not require some 
units and not others to make changes, because that would lead to unequal 
treatment of units and owners, which is not permissible.
    One commenter stated that since it was not possible for operators of 
rental programs offering privately owned condominiums to comply with 
accessible scoping, the Department should create exemptions from the 
accessible scoping, especially for existing facilities. In addition, 
this commenter stated that if an operator of an on-site rental program 
were to require renovations as a condition of participation in the 
rental program, unit owners might just rent their units through a 
different broker or on their own, in which case such requirements would 
not apply.
    A number of commenters argued that if a development decides to 
create a rental program, it must provide accessible units. Otherwise the 
development would have to ensure that units are retrofitted. A commenter 
argued that if an existing building is being converted, the Department 
should require that if alterations of the units are performed by an 
owner or developer prior to sale of the units, then the alterations 
requirements should apply, in order to ensure that there are some 
accessible units in the rental pool. This commenter stated that because 
of the proliferation of these type of developments in Hawaii, mandatory 
alteration is the only way to guarantee the availability of accessible 
units in the long run. In this commenter's view, since conversions 
almost always require makeover of existing buildings, this will not lead 
to a significant expense.
    The Department agrees with the commenters that it would not be 
feasible to require developers to hold back or purchase accessible units 
for the purposes of making them available to the public in a transient 
lodging rental program, nor would it be feasible to require individual 
owners of accessible units to participate in transient lodging rental 
programs.
    The Department recognizes that places of lodging are developed and 
financed under myriad ownership and management structures and agrees 
that there will be circumstances where there are legal barriers to 
requiring compliance with either the alterations requirements or the 
requirements related to barrier removal. The Department has added an 
exception to Sec. 36.406(c), providing that in existing facilities that 
meet the definition of places of lodging, where the guest rooms are not 
owned or substantially controlled by the entity that owns, leases, or 
operates the overall facility and the physical features of the guest 
room interiors are controlled by their individual owners, the units are 
not subject to the alterations requirement, even where the owner rents 
the unit out to the public through a transient lodging rental program. 
In addition, the Department has added an exception to the barrier 
removal requirements at Sec. 36.304(g) providing that in existing 
facilities that meet the definition of places of lodging, where the 
guest rooms are not owned or substantially controlled by the entity that 
owns, leases, or operates the overall facility and the physical features 
of the guest room interiors are controlled by their individual owners, 
the units are not subject to the barrier removal requirement. The 
Department notes, however, that there are legal relationships for some 
timeshares and cooperatives where the ownership interests do not convey 
control over the physical features of units. In those cases, it may be 
the case that the facility has an obligation to meet the alterations or 
barrier removal requirements or to maintain accessible features.

         Section 36.406(d) Social Service Center Establishments

    In the NPRM, the Department proposed a new Sec. 36.406(d) requiring 
group homes, halfway houses, shelters, or similar social service center 
establishments that provide temporary sleeping accommodations or 
residential dwelling units to comply with the provisions of the 2004 
ADAAG that apply to residential facilities, including, but not limited 
to, the provisions in sections 233 and 809.
    The NPRM explained that this proposal was based on two important 
changes in the 2004 ADAAG. First, for the first time, residential 
dwelling units are explicitly covered in the 2004 ADAAG in section 233. 
Second, the 2004 ADAAG eliminates the language contained in the 1991 
Standards addressing scoping and technical requirements for homeless 
shelters, group homes, and similar social service center establishments. 
Currently, such establishments are covered in section 9.5 of the 
transient lodging section of the 1991 Standards. The deletion of section

[[Page 857]]

9.5 creates an ambiguity of coverage that must be addressed.
    The NPRM explained the Department's belief that transferring 
coverage of social service center establishments from the transient 
lodging standards to the residential facilities standards would 
alleviate conflicting requirements for social service providers. The 
Department believes that a substantial percentage of social service 
providers are recipients of Federal financial assistance from the 
Department of Housing and Urban Development (HUD). The Department of 
Health and Human Services (HHS) also provides financial assistance for 
the operation of shelters through the Administration for Children and 
Families programs. As such, they are covered both by the ADA and section 
504. UFAS is currently the design standard for new construction and 
alterations for entities subject to section 504. The two design 
standards for accessibility--the 1991 Standards and UFAS--have 
confronted many social service providers with separate, and sometimes 
conflicting, requirements for design and construction of facilities. To 
resolve these conflicts, the residential facilities standards in the 
2004 ADAAG have been coordinated with the section 504 requirements. The 
transient lodging standards, however, are not similarly coordinated. The 
deletion of section 9.5 of the 1991 Standards from the 2004 ADAAG 
presented two options: (1) Require coverage under the transient lodging 
standards, and subject such facilities to separate, conflicting 
requirements for design and construction; or (2) require coverage under 
the residential facilities standards, which would harmonizes the 
regulatory requirements under the ADA and section 504. The Department 
chose the option that harmonizes the regulatory requirements: coverage 
under the residential facilities standards.
    In the NPRM, the Department expressed concern that the residential 
facilities standards do not include a requirement for clear floor space 
next to beds similar to the requirement in the transient lodging 
standards; as a result, the Department proposed adding a provision that 
would require certain social service center establishments that provide 
sleeping rooms with more than 25 beds to ensure that a minimum of 5 
percent of the beds have clear floor space in accordance with section 
806.2.3 of the 2004 ADAAG.
    The Department requested information from providers who operate 
homeless shelters, transient group homes, halfway houses, and other 
social service center establishments, and from the clients of these 
facilities who would be affected by this proposed change. In the NPRM, 
the Department asked to what extent conflicts between the ADA and 
section 504 have affected these facilities and what the effect would be 
of applying the residential dwelling unit requirements to these 
facilities, rather than the requirements for transient lodging guest 
rooms.
    Many of the commenters supported applying the residential facilities 
requirements to social service center establishments stating that even 
though the residential facilities requirements are less demanding, in 
some instances, the existence of one clear standard will result in an 
overall increased level of accessibility by eliminating the confusion 
and inaction that are sometimes caused by the current existence of 
multiple requirements. One commenter stated that the residential 
facilities guidelines were more appropriate because individuals housed 
in social service center establishments typically stay for a prolonged 
period of time, and guests of a transient lodging facility typically are 
not housed to participate in a program or receive services.
    One commenter opposed to the proposed section argued for the 
application of the transient lodging standards to all social service 
center establishments except those that were ``intended as a person's 
place of abode,'' referencing the Department's question related to the 
definition of place of lodging in the title III NPRM. A second commenter 
stated that the use of transient lodging guidelines would lead to 
greater accessibility.
    The Department continues to be concerned about alleviating the 
challenges for social service providers that are also subject to section 
504 and that would likely be subject to conflicting requirements if the 
transient lodging standard were applied. Thus, the Department has 
retained the requirement that social service center establishments 
comply with the residential dwelling standards. The Department did not 
receive comments regarding adding a requirement for bathing options, 
such as a roll-in shower, in social service center establishments 
operated by public accommodations. The Department did, however, receive 
comments in support of adding such a requirement regarding public 
entities under title II. The Department believes that social service 
center establishments that provide emergency shelter to large transient 
populations should be able to provide bathing facilities that are 
accessible to persons with mobility disabilities who need roll-in 
showers. Because of the transient nature of the population of these 
large shelters, it will not be feasible to modify bathing facilities in 
a timely manner when faced with a need to provide a roll-in shower with 
a seat when requested by an overnight visitor. As a result, the 
Department has added a requirement that social service center 
establishments with sleeping accommodations for more than 50 individuals 
must provide at least one roll-in shower with a seat that complies with 
the relevant provisions of section 608 of the 2010 Standards. Transfer-
type showers are not permitted in lieu of a roll-in shower with a

[[Page 858]]

seat, and the exceptions in sections 608.3 and 608.4 for residential 
dwelling units are not permitted. When separate shower facilities are 
provided for men and for women, at least one roll-in shower must be 
provided for each group. This supplemental requirement to the 
residential facilities standards is in addition to the supplemental 
requirement that was proposed in the NPRM for clear floor space in 
sleeping rooms with more than 25 beds.
    The Department also notes that while dwelling units at some social 
service center establishments are also subject to FHAct design and 
construction requirements that require certain features of adaptable and 
accessible design, FHAct units do not provide the same level of 
accessibility that is required for residential facilities under the 2010 
Standards. The FHAct requirements, where also applicable, should not be 
considered a substitute for the 2010 Standards. Rather, the 2010 
Standards must be followed in addition to the FHAct requirements.
    The Department also notes that while in the NPRM the Department used 
the term ``social service establishment,'' the final rule uses the term 
``social service center establishment.'' The Department has made this 
editorial change so that the final rule is consistent with the 
terminology used in the ADA. See 42 U.S.C. 12181(7)(K).

           Section 36.406(e)  Housing at a Place of Education

    The Department of Justice and the Department of Education share 
responsibility for regulation and enforcement of the ADA in 
postsecondary educational settings, including architectural features. 
Housing types in educational settings range from traditional residence 
halls and dormitories to apartment or townhouse-style residences. In 
addition to title III of the ADA, universities and schools that are 
recipients of Federal financial assistance also are subject to section 
504, which contains its own accessibility requirements currently through 
the application of UFAS. Residential housing, including housing in an 
educational setting, is also covered by the FHAct, which requires newly 
constructed multifamily housing to include certain features of 
accessible and adaptable design. Covered entities subject to the ADA 
must always be aware of, and comply with, any other Federal statutes or 
regulations that govern the operation of residential properties.
    Although the 1991 Standards mention dormitories as a form of 
transient lodging, they do not specifically address how the ADA applies 
to dormitories and other types of residential housing provided in an 
educational setting. The 1991 Standards also do not contain any specific 
provisions for residential facilities, allowing covered entities to 
elect to follow the residential standards contained in UFAS. Although 
the 2004 ADAAG contains provisions for both residential facilities and 
transient lodging, the guidelines do not indicate which requirements 
apply to housing provided in an educational setting, leaving it to the 
adopting agencies to make that choice. After evaluating both sets of 
standards, the Department concluded that the benefits of applying the 
transient lodging standards outweighed the benefits of applying the 
residential facilities standards. Consequently, in the NPRM, the 
Department proposed a new Sec. 36.406(e) that provided that residence 
halls or dormitories operated by or on behalf of places of education 
shall comply with the provisions of the proposed standards for transient 
lodging, including, but not limited to, the provisions in sections 224 
and 806 of the 2004 ADAAG.
    Private universities and schools covered by title III as public 
accommodations are required to make their programs and activities 
accessible to persons with disabilities. The housing facilities that 
they provide have varied characteristics. College and university housing 
facilities typically provide housing for up to one academic year, but 
may be closed during school vacation periods. In the summer, they often 
are used for short-term stays of one to three days, a week, or several 
months. Graduate and faculty housing often is provided year-round in the 
form of apartments, which may serve individuals or families with 
children. These housing facilities are diverse in their layout. Some are 
double-occupancy rooms with a shared toilet and bathing room, which may 
be inside or outside the unit. Others may contain cluster, suite, or 
group arrangements where several rooms are located inside a defined unit 
with bathing, kitchen, and similar common facilities. In some cases, 
these suites are indistinguishable in features from traditional 
apartments. Universities may build their own housing facilities or enter 
into agreements with private developers to build, own, or lease housing 
to the educational institution or to its students. Academic housing may 
be located on the campus of the university or may be located in nearby 
neighborhoods.
    Throughout the school year and the summer, academic housing can 
become program areas in which small groups meet, receptions and 
educational sessions are held, and social activities occur. The ability 
to move between rooms--both accessible rooms and standard rooms--in 
order to socialize, to study, and to use all public use and common use 
areas is an essential part of having access to these educational 
programs and activities. Academic housing also is used for short-term 
transient educational programs during the time students are not in 
regular residence and may be rented out to transient visitors in a 
manner similar to a hotel for special university functions.
    The Department was concerned that applying the new construction 
requirements for

[[Page 859]]

residential facilities to educational housing facilities could hinder 
access to educational programs for students with disabilities. Elevators 
generally are not required under the 2004 ADAAG residential facilities 
standards unless they are needed to provide an accessible route from 
accessible units to public use and common use areas, while under the 
2004 ADAAG as it applies to other types of facilities, multistory 
private facilities must have elevators unless they meet very specific 
exceptions. In addition, the residential facilities standards do not 
require accessible roll-in showers in bathrooms, while the transient 
lodging requirements require some of the accessible units to be served 
by bathrooms with roll-in showers. The transient lodging standards also 
require that a greater number of units have accessible features for 
persons with communication disabilities. The transient lodging standards 
provide for installation of the required accessible features so that 
they are available immediately, but the residential facilities standards 
allow for certain features of the unit to be adaptable. For example, 
only reinforcements for grab bars need to be provided in residential 
dwellings, but the actual grab bars must be installed under the 
transient lodging standards. By contrast, the residential facilities 
standards do require certain features that provide greater accessibility 
within units, such as usable kitchens and an accessible route throughout 
the dwelling. The residential facilities standards also require 5 
percent of the units to be accessible to persons with mobility 
disabilities, which is a continuation of the same scoping that is 
currently required under UFAS and is therefore applicable to any 
educational institution that is covered by section 504. The transient 
lodging standards require a lower percentage of accessible sleeping 
rooms for facilities with large numbers of rooms than is required by 
UFAS. For example, if a dormitory has 150 rooms, the transient lodging 
standards would require 7 accessible rooms, while the residential 
standards would require 8. In a large dormitory with 500 rooms, the 
transient lodging standards would require 13 accessible rooms, and the 
residential facilities standards would require 25. There are other 
differences between the two sets of standards, including requirements 
for accessible windows, alterations, kitchens, an accessible route 
throughout a unit, and clear floor space in bathrooms allowing for a 
side transfer.
    In the NPRM, the Department requested public comment on how to scope 
educational housing facilities, and it asked whether the residential 
facilities requirements or the transient lodging requirements in the 
2004 ADAAG would be more appropriate for housing at places of education 
and asked how the different requirements would affect the cost of 
building new dormitories and other student housing. See 73 FR 34508, 
34545 (June 17, 2008).
    The Department received several comments on this issue under title 
III. One commenter stated that the Department should adopt the 
residential facilities standards for housing at a place of education. In 
the commenter's view, the residential facilities standards are congruent 
with overlapping requirements imposed by HUD, and the residential 
facilities requirements would ensure dispersion of accessible features 
more effectively. This commenter also argued that while the increased 
number of required accessible units for residential facilities as 
compared to transient lodging may increase the cost of construction or 
alteration, this cost would be offset by a reduced need later to adapt 
rooms if the demand for accessible rooms exceeds the supply. The 
commenter also encouraged the Department to impose a visitability 
(accessible doorways and necessary clear floor space for turning radius) 
requirement for both the residential facilities and transient lodging 
requirements to allow students with mobility impairments to interact and 
socialize in a fully integrated fashion. Another commenter stated that 
while dormitories should be treated like residences as opposed to 
transient lodging, the Department should ensure that ``all floors are 
accessible,'' thus ensuring community integration and visitability. 
Another commenter argued that housing at a place of education is 
comparable to residential housing, and that most of the housing types 
used by schools do not have the same amenities and services or function 
like transient lodging and should not be treated as such.
    Several commenters focused on the length of stay at this type of 
housing and suggested that if the facilities are subject to occupancy 
for greater than 30 days, the residential standards should apply. 
Another commenter supported the Department's adoption of the transient 
lodging standards, arguing this will provide greater accessibility and 
therefore increase opportunities for students with disabilities to 
participate. One commenter, while supporting the use of transient 
lodging standards in this area, argued that the Department also should 
develop regulations relating to the usability of equipment in housing 
facilities by persons who are blind or visually impaired. Another 
commenter argued that the Department should not impose the transient 
lodging requirements on K-12 schools because the cost of adding 
elevators can be prohibitive, and because there are safety concerns 
related to evacuating students in wheelchairs living on floors above the 
ground floor in emergencies causing elevator failures.
    The Department has considered the comments recommending the use of 
the residential facilities standards and acknowledges that they require 
certain features that are

[[Page 860]]

not included in the transient lodging standards and that should be 
required for housing provided at a place of education. In addition, the 
Department notes that since educational institutions often use their 
academic housing facilities as short-term transient lodging in the 
summers, it is important that accessible features be installed at the 
outset. It is not realistic to expect that the educational institution 
will be able to adapt a unit in a timely manner in order to provide 
accessible accommodations to someone attending a one-week program during 
the summer.
    The Department has determined that the best approach to this type of 
housing is to continue to require the application of transient lodging 
standards but, at the same time, to add several requirements drawn from 
the residential facilities standards related to accessible turning 
spaces and work surfaces in kitchens, and the accessible route 
throughout the unit. This will ensure the maintenance of the transient 
lodging standard requirements related to access to all floors of the 
facility, roll-in showers in facilities with more than 50 sleeping 
rooms, and other important accessibility features not found in the 
residential facilities standards, but also will ensure usable kitchens 
and access to all the rooms in a suite or apartment.
    The Department has added a new definition to Sec. 36.104, ``Housing 
at a Place of Education,'' and has revised Sec. 36.406(e) to reflect the 
accessible features that now will be required in addition to the 
requirements set forth under the transient lodging standards. The 
Department also recognizes that some educational institutions provide 
some residential housing on a year-round basis to graduate students and 
staff that is comparable to private rental housing but contains no 
facilities for educational programming. Section 36.406(e)(3) exempts 
from the transient lodging standards apartments or townhouse facilities 
that are provided with a lease on a year-round basis exclusively to 
graduate students or faculty and that do not contain any public use or 
common use areas available for educational programming; instead, such 
housing must comply with the requirements for residential facilities in 
sections 233 and 809 of the 2010 Standards.
    The regulatory text uses the term ``sleeping room'' in lieu of the 
term ``guest room,'' which is the term used in the transient lodging 
standards. The Department is using this term because it believes that 
for the most part, it provides a better description of the sleeping 
facilities used in a place of education than ``guest room.'' The final 
rule states in Sec. 36.406(e) that the Department intends the terms to 
be used interchangeably in the application of the transient lodging 
standards to housing at a place of education.

                    Section 36.406(f)  Assembly Areas

    In the NPRM, the Department proposed Sec. 36.406(f) to supplement 
the assembly area requirements of the 2004 ADAAG, which the Department 
is adopting as part of the 2010 Standards. The NPRM proposed at 
Sec. 36.406(f)(1) to require wheelchair spaces and companion seating 
locations to be dispersed to all levels of the facility that are served 
by an accessible route. The Department received no significant comments 
on this paragraph and has decided to adopt the proposed language with 
minor modifications.
    Section 36.406(f)(1) ensures that there is greater dispersion of 
wheelchair spaces and companion seats throughout stadiums, arenas, and 
grandstands than would otherwise be required by sections 221 and 802 of 
the 2004 ADAAG. In some cases, the accessible route may not be the same 
route that other individuals use to reach their seats. For example, if 
other patrons reach their seats on the field by an inaccessible route 
(e.g., by stairs), but there is an accessible route that complies with 
section 206.3 of the 2004 ADAAG that could be connected to seats on the 
field, wheelchair spaces and companion seats must be placed on the field 
even if that route is not generally available to the public.
    Regulatory language that was included in the 2004 ADAAG advisory, 
but that did not appear in the NPRM, has been added by the Department in 
Sec. 36.406(f)(2). Section 36.406(f)(2) now requires an assembly area 
that has seating encircling, in whole or in part, a field of play or 
performance area, such as an arena or stadium, to place wheelchair 
spaces and companion seats around the entire facility. This rule, which 
is designed to prevent a public accommodation from placing wheelchair 
spaces and companion seats on one side of the facility only, is 
consistent with the Department's enforcement practices and reflects its 
interpretation of section 4.33.3 of the 1991 Standards.
    In the NPRM, the Department proposed Sec. 36.406(f)(2), which 
prohibits wheelchair spaces and companion seating locations from being 
``located on (or obstructed by) temporary platforms * * *.'' 73 FR 
34508, 34557 (June 17, 2008). Through its enforcement actions, the 
Department discovered that some venues place wheelchair spaces and 
companion seats on temporary platforms that, when removed, reveal 
conventional seating underneath, or cover the wheelchair spaces and 
companion seats with temporary platforms on top of which they place 
risers of conventional seating. These platforms cover groups of 
conventional seats and are used to provide groups of wheelchair seats 
and companion seats.
    Several commenters requested an exception to the prohibition of the 
use of temporary platforms for public accommodations that sell most of 
their tickets on a season-

[[Page 861]]

ticket or other multi-event basis. Such commenters argued that they 
should be able to use temporary platforms because they know, in advance, 
that the patrons sitting in certain areas for the whole season do not 
need wheelchair spaces and companion seats. The Department declines to 
adopt such an exception. As it explained in detail in the NPRM, the 
Department believes that permitting the use of movable platforms that 
seat four or more wheelchair users and their companions have the 
potential to reduce the number of available wheelchair seating spaces 
below the level required, thus reducing the opportunities for persons 
who need accessible seating to have the same choice of ticket prices and 
amenities that are available to other patrons in the facility. In 
addition, use of removable platforms may result in instances where last 
minute requests for wheelchair and companion seating cannot be met 
because entire sections of accessible seating will be lost when a 
platform is removed. See 73 FR 34508, 34546 (June 17, 2008). Further, 
use of temporary platforms allows facilities to limit persons who need 
accessible seating to certain seating areas, and to relegate accessible 
seating to less desirable locations. The use of temporary platforms has 
the effect of neutralizing dispersion and other seating requirements 
(e.g., line of sight) for wheelchair spaces and companion seats. Cf. 
Independent Living Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 
1171 (D. Or. 1998) (holding that while a public accommodation may 
``infill'' wheelchair spaces with removable seats when the wheelchair 
spaces are not needed to accommodate individuals with disabilities, 
under certain circumstances ``[s]uch a practice might well violate the 
rule that wheelchair spaces must be dispersed throughout the arena in a 
manner that is roughly proportionate to the overall distribution of 
seating''). In addition, using temporary platforms to convert unsold 
wheelchair spaces to conventional seating undermines the flexibility 
facilities need to accommodate secondary ticket market exchanges as 
required by Sec. 36.302(f)(7) of the final rule.
    As the Department explained in the NPRM, however, this provision was 
not designed to prohibit temporary seating that increases seating for 
events (e.g., placing temporary seating on the floor of a basketball 
court for a concert). Consequently, the final rule, at 
Sec. 36.406(f)(3), has been amended to clarify that if an entire seating 
section is on a temporary platform for a particular event, then 
wheelchair spaces and companion seats may also be in that seating 
section. However, adding a temporary platform to create wheelchair 
spaces and companion seats that are otherwise dissimilar from nearby 
fixed seating and then simply adding a small number of additional seats 
to the platform would not qualify as an ``entire seating section'' on 
the platform. In addition, Sec. 36.406(f)(3) clarifies that facilities 
may fill in wheelchair spaces with removable seats when the wheelchair 
spaces are not needed by persons who use wheelchairs.
    The Department has been responsive to assembly areas' concerns about 
reduced revenues due to unused accessible seating. Accordingly, the 
Department has reduced scoping requirements significantly--by almost 
half in large assembly areas--and determined that allowing assembly 
areas to in-fill unsold wheelchair spaces with readily removable 
temporary individual seats appropriately balances their economic 
concerns with the rights of individuals with disabilities. See section 
221.1 of the 2010 Standards.
    For stadium-style movie theaters, in Sec. 36.406(f)(4) of the NPRM 
the Department proposed requiring placement of wheelchair seating spaces 
and companion seats on a riser or cross-aisle in the stadium section of 
the theater that satisfies at least one of the following criteria: (1) 
It is located within the rear 60 percent of the seats provided in the 
auditorium; or (2) It is located within the area of the auditorium where 
the vertical viewing angles are between the 40th and 100th percentile of 
vertical viewing angles for all seats in that theater as ranked from the 
first row (1st percentile) to the back row (100th percentile). The 
vertical viewing angle is the angle between a horizontal line 
perpendicular to the seated viewer's eye to the screen and a line from 
the seated viewer's eye to the top of the screen.
    The Department proposed this bright-line rule for two reasons: (1) 
the movie theater industry petitioned for such a rule; and (2) the 
Department has acquired expertise in the design of stadium-style 
theaters during its litigation with several major movie theater chains. 
See United States. v. AMC Entertainment, Inc., 232 F. Supp.2d 1092 (C.D. 
Cal. 2002), rev'd in part, 549 F.3d 760 (9th Cir. 2008); United States 
v. Cinemark USA, Inc., 348 F.3d 569 (6th Cir. 2003). Two industry 
commenters--at least one of whom otherwise supported this rule--
requested that the Department explicitly state that this rule does not 
apply retroactively to existing theaters. Although this provision on its 
face applies to new construction and alterations, these commenters were 
concerned that the rule could be interpreted to apply retroactively 
because of the Department's statements in the NPRM and ANPRM that this 
bright line rule, although newly articulated, is not a new standard but 
``merely codifi[es] longstanding Department requirement[s],'' 73 FR 
34508, 34534 (June 17, 2008), and does not represent a ``substantive 
change from the existing line-of-sight requirements'' of section 4.33.3 
of the 1991 Standards, 69 FR 58768, 58776 (Sept. 30, 2004).

[[Page 862]]

    Although the Department intends for Sec. 36.406(f)(4) of this rule 
to apply prospectively to new construction and alterations, this rule is 
not a departure from, and is consistent with, the line-of-sight 
requirements in the 1991 Standards. The Department has always 
interpreted the line-of-sight requirements in the 1991 Standards to 
require viewing angles provided to patrons who use wheelchairs to be 
comparable to those afforded to other spectators. Section 36.406(f)(4) 
merely represents the application of these requirements to stadium-style 
movie theaters.
    One commenter from a trade association sought clarification whether 
Sec. 36.406(f)(4) applies to stadium-style theaters with more than 300 
seats, and argued that it should not since dispersion requirements apply 
in those theaters. The Department declines to limit this rule to 
stadium-style theaters with 300 or fewer seats; stadium-style theaters 
of all sizes must comply with this rule. So, for example, stadium-style 
theaters that must vertically disperse wheelchair spaces and companion 
seats must do so within the parameters of this rule.
    The NPRM included a provision that required assembly areas with more 
than 5,000 seats to provide at least five wheelchair spaces with at 
least three companion seats for each of those five wheelchair spaces. 
The Department agrees with commenters who asserted that group seating is 
better addressed through ticketing policies rather than design and has 
deleted that provision from this section of the final rule.

               Section 36.406(g)  Medical Care Facilities

    In the 1991 title III regulation, there was no provision addressing 
the dispersion of accessible sleeping rooms in medical care facilities. 
The Department is aware, however, of problems that individuals with 
disabilities face in receiving full and equal medical care when 
accessible sleeping rooms are not adequately dispersed. When accessible 
rooms are not fully dispersed, a person with a disability is often 
placed in an accessible room in an area that is not medically 
appropriate for his or her condition, and is thus denied quick access to 
staff with expertise in that medical specialty and specialized 
equipment. While the Access Board did not establish specific design 
requirements for dispersion in the 2004 ADAAG, in response to extensive 
comments in support of dispersion it added an advisory note, Advisory 
223.1 General, encouraging dispersion of accessible rooms within the 
facility so that accessible rooms are more likely to be proximate to 
appropriate qualified staff and resources.
    In the NPRM, the Department sought additional comment on the issue, 
asking whether it should require medical care facilities, such as 
hospitals, to disperse their accessible sleeping rooms, and if so, by 
what method (by specialty area, floor, or other criteria). All of the 
comments the Department received on this issue supported dispersing 
accessible sleeping rooms proportionally by specialty area. These 
comments from individuals, organizations, and a building code 
association, argued that it would not be difficult for hospitals to 
disperse rooms by specialty area, given the high level of regulation to 
which hospitals are subject and the planning that hospitals do based on 
utilization trends. Further, comments suggest that without a 
requirement, it is unlikely that hospitals would disperse the rooms. In 
addition, concentrating accessible rooms in one area perpetuates 
segregation of individuals with disabilities, which is counter to the 
purpose of the ADA.
    The Department has decided to require medical care facilities to 
disperse their accessible sleeping rooms in a manner that is 
proportionate by type of medical specialty. This does not require exact 
mathematical proportionality, which at times would be impossible. 
However, it does require that medical care facilities disperse their 
accessible rooms by medical specialty so that persons with disabilities 
can, to the extent practical, stay in an accessible room within the wing 
or ward that is appropriate for their medical needs. The language used 
in this rule (``in a manner that is proportionate by type of medical 
specialty'') is more specific than that used in the NPRM (``in a manner 
that enables patients with disabilities to have access to appropriate 
specialty services'') and adopts the concept of proportionality proposed 
by the commenters. Accessible rooms should be dispersed throughout all 
medical specialties, such as obstetrics, orthopedics, pediatrics, and 
cardiac care.

     Subpart F--Certification of State Laws or Local Building Codes

    Subpart F contains procedures implementing section 308(b)(1)(A)(ii) 
of the ADA, which provides that on the application of a State or local 
jurisdiction, the Attorney General may certify that a State 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. In its NPRM, the Department 
proposed three changes in subpart F that would streamline the process 
for public entities seeking certification, all of which are adopted in 
this final rule.
    First, the Department proposed deleting the existing Sec. 36.603, 
which establishes the obligations of a submitting authority that is 
seeking certification of its code, and issue in

[[Page 863]]

its place informal regulatory guidance regarding certification 
submission requirements. Due to the deletion of Sec. 36.603, 
Secs. 36.604 through 36.608 are renumbered, and Sec. 36.603 in the final 
rule is modified to indicate that the Assistant Attorney General for the 
Civil Rights Division (Assistant Attorney General) shall make a 
preliminary determination of equivalency after ``receipt and review of 
all information relevant to a request filed by a submitting official for 
certification of a code.'' Second, the Department proposed that the 
requirement in renumbered Sec. 36.604 (previously Sec. 36.605) that an 
informal hearing be held in Washington, DC, if the Assistant Attorney 
General makes a preliminary determination of equivalency be changed to a 
requirement that the hearing be held in the State or local jurisdiction 
charged with administration and enforcement of the code. Third, the 
Department proposed adding language to renumbered Sec. 36.606 
(previously Sec. 36.607) to explain the effect of the 2010 Standards on 
the codes of State or local jurisdictions that were determined in the 
past to meet or exceed the 1991 Standards. Once the 2010 Standards take 
effect, certifications issued under the 1991 Standards would not have 
any future effect, and States and local jurisdictions with codes 
certified under the 1991 Standards would need to reapply for 
certification under the 2010 Standards. With regard to elements of 
existing buildings and facilities constructed in compliance with a code 
when a certification of equivalency was in effect, the final rule 
requires that in any enforcement action this compliance would be treated 
as rebuttable evidence of compliance with the standards then in effect. 
The new provision added to Sec. 36.606 may also have implications in 
determining an entity's eligibility for the element-by-element safe 
harbor.
    No substantive comments were received regarding the Department's 
proposed changes in subpart F, and no other changes have been made to 
this subpart in the final rule. The Department did receive several 
comments addressing other issues raised in the NPRM that are related to 
subpart F. Because the 2010 Standards include specific design 
requirements for recreation facilities and play areas that may be new to 
many title III facilities, the Department sought comments in the NPRM 
about how the certification review process would be affected if the 
State or local jurisdiction allocates the authority to implement the new 
requirements to State or local agencies that are not ordinarily involved 
in administering building codes. One commenter, an association of 
building owners and managers, suggested that because of the increased 
scope of the 2010 Standards, it is likely that parts of covered elements 
in the new standards will be under the jurisdiction of multiple State or 
local agencies. In light of these circumstances, the commenter 
recommended that the Department allow State or local agencies to seek 
certification even if only one State or local regulatory agency requests 
certification. For example, if a State agency that regulates buildings 
seeks certification of its building code, it should be able to do so, 
even if another State agency that regulates amusement rides and 
miniature golf courses does not seek certification.
    The Department's discussion of this issue in the NPRM contemplated 
that all of a State or local government's accessibility requirements for 
title III facilities would be the subject of a request for 
certification. Any other approach would require the Department to 
certify only part of a State or local government's accessibility 
requirements as compared to the entirety of the revised ADA standards. 
As noted earlier, the Attorney General is authorized by section 
308(b)(1)(A)(ii) of the ADA to certify that a State or local building 
code meets or exceeds the ADA's minimum accessibility requirements, 
which are contained in this regulation. The Department has concluded 
that this is a decision that must be made on a case-by-case basis 
because of the wide variety of enforcement schemes adopted by the 
States. Piecemeal certification of laws or codes that do not contain all 
of the minimum accessibility requirements could fail to satisfy the 
Attorney General's responsibility to ensure that a State or local 
building code meets or exceeds the minimum accessibility requirements of 
the Act before granting certification. However, the Department wants to 
permit State and local code administrators to have maximum flexibility, 
so the Department will leave open the possibility for case-by-case 
review to determine if a State has successfully met the burden of 
demonstrating that its accessibility codes or other laws meet or exceed 
the ADA requirements.
    The commenter representing building owners and managers also urged 
the Department to extend the proposed effective date for the final rule. 
The commenter explained that a six-month phase-in period is inadequate 
for States to begin and complete a code amendment process. The commenter 
asserted that the inadequate phase-in period will place entities 
undertaking new construction and alterations, particularly in those 
States with certified codes, in a difficult position because State 
officials will continue to enforce previously certified State or local 
accessibility requirements that may be in conflict with the new 2010 
Standards. The Department received numerous comments on the issue of the 
effective date, many of them similar to the concerns expressed above, in 
response to both the NPRM and the ANPRM. See Appendix A discussion of 
compliance dates for new construction and alterations

[[Page 864]]

(Sec. 36.406). The Department has been persuaded by the concerns raised 
by many commenters addressing the time and costs related to the design 
process for both new construction and alterations, and has determined 
that for new construction and alterations, compliance with the 2010 
Standards will not be required until 18 months from the date the final 
rule is published. For more information on the issue of the compliance 
date, refer to subpart D--New Construction and Alterations.
    One commenter, an association of theater owners, recommended that 
the Department establish a training program for State building 
inspectors for those States that receive certification to ensure more 
consistent ADA compliance and to facilitate the review of builders' 
architectural plans. The commenter also recommended that State building 
inspectors, once trained, review architectural plans, and after 
completion and inspection of facilities, be authorized to certify that 
the inspected building or facility meets both the certified State and 
the Federal accessibility requirements. Although supportive of the idea 
of additional training for State and local building code officials 
regarding ADA compliance, the Department believes that the approach 
suggested by the commenter of allowing State and local code officials to 
determine if a covered facility is in compliance with Federal 
accessibility requirements is not consistent with or permissible under 
the statutory enforcement scheme established by the ADA. As the 
Department stated in the NPRM, certification of State and local codes 
serves, to some extent, to mitigate the absence of a Federal mechanism 
for conducting at the national level a review of all architectural plans 
and inspecting all covered buildings under construction to ensure 
compliance with the ADA. In this regard, certification operates as a 
bridge between the obligation to comply with the 1991 Standards in new 
construction and alterations, and the administrative schemes of State 
and local governments that regulate the design and construction process. 
By ensuring consistency between State or local codes and Federal 
accessibility standards, certification has the additional benefit of 
streamlining the regulatory process, thereby making it easier for those 
in the design and construction industry to satisfy both State and 
Federal requirements. The Department notes, however, that although 
certification has the potential to increase compliance with the ADA, 
this result, however desirable, is not guaranteed. The ADA contemplated 
that there could be enforcement actions brought even in States with 
certified codes, and it provided some protection in litigation to 
builders who adhered to the provisions of the code certified to be ADA-
equivalent. The Department's certification determinations make it clear 
that to get the benefit of certification, a facility must comply with 
the applicable code requirements--without relying on waivers or 
variances. The certified code, however, remains within the authority of 
the adopting State or local jurisdiction to interpret and enforce: 
Certification does not transform a State's building code into Federal 
law. Nor can certification alone authorize State and local building code 
officials implementing a certified code to do more than they are 
authorized to do under State or local law, and these officials cannot 
acquire authority through certification to render binding 
interpretations of Federal law. Therefore, the Department, while 
understanding the interest in obtaining greater assurance of compliance 
with the ADA through the interpretation and enforcement of a certified 
code by local code officials, declined in the NPRM to confer on local 
officials the authority not granted to them under the ADA to certify the 
compliance of individual facilities. The Department in the final rule 
finds no reason to alter its position on this issue in response to the 
comments that were received.
    The commenter representing theater owners also urged the Department 
to provide a safe harbor to facilities constructed in compliance with 
State or local building codes certified under the 1991 Standards. With 
regard to elements of facilities constructed in compliance with a 
certified code prior to the effective date of the 2010 Standards, and 
during the period when a certification of equivalency was in effect, the 
Department noted in the NPRM that its approach would be consistent with 
the approach to the safe harbor discussed in subpart C, Sec. 36.304 of 
the NPRM, with respect to elements in existing facilities constructed in 
compliance with the 1991 Standards. For example, elements in existing 
facilities in States with codes certified under the 1991 Standards would 
be eligible for a safe harbor if they were constructed in compliance 
with an ADA-certified code. In this scenario, compliance with the 
certified code would be treated as evidence of compliance with the 1991 
Standards for purposes of determining the application of the safe harbor 
provision to those elements. For more information on safe harbor, refer 
to subpart C, Sec. 36.304 of the final rule.
    One commenter, an advocacy group for the blind, suggested that, 
similar to the procedures for certifying a State or local building code, 
the Department should establish a program to certify an entity's 
obligation to make its goods and services accessible to persons with 
sensory disabilities. The Department believes that this commenter was 
suggesting that covered entities should be able to request that the 
Department review their business operations to determine if they have 
met their ADA obligations. As noted earlier, subpart F contains 
procedures implementing section 308(b)(1)(A)(ii) of the

[[Page 865]]

ADA, which provides that on the application of a State or local 
jurisdiction, the Attorney General may certify that a State or local 
building code or similar ordinance meets or exceeds the minimum 
accessibility requirements of the ADA. The only mechanism through which 
the Department is authorized to ensure a covered entity's compliance 
with the ADA is the enforcement scheme established under section 
308(b)(1)(A)(i) of the ADA. The Department notes, however, that title 
III of the ADA and its implementing regulation, which includes the 
standards for accessible design, already require existing, altered, and 
newly constructed places of public accommodation, such as retail stores, 
hotels, restaurants, movie theaters, and stadiums, to make their 
facilities readily accessible to and usable by individuals with 
disabilities, which includes individuals with sensory disabilities, so 
that individuals with disabilities have a full and equal opportunity to 
enjoy the benefits of a public accommodation's goods, services, 
facilities, privileges and advantages.

                              Other Issues

 Questions Posed in the NPRM Regarding Costs and Benefits of Complying 
                         With the 2010 Standards

    In the NPRM, the Department requested comments on various cost and 
benefit issues related to eight requirements in the Department's Initial 
RIA, that were projected to have incremental costs that exceeded 
monetized benefits by more than $100 million when using the 1991 
Standards as a comparative baseline, i.e., side reach, water closet 
clearances in single-user toilet rooms with in-swinging doors, stairs, 
elevators, location of accessible routes to stages, accessible attorney 
areas and witness stands, assistive listening systems, and accessible 
teeing grounds, putting greens, and weather shelters at golf courses. 73 
FR 34508, 34512 (June 17, 2008). The Department was particularly 
concerned about how these costs applied to alterations. The Department 
noted that pursuant to the ADA, the Department does not have statutory 
authority to modify the 2004 ADAAG and is required instead to issue 
regulations implementing the ADA that are consistent with the Board's 
guidelines. In that regard, the Department also requested comment about 
whether any of these eight elements in the 2010 Standards should be 
returned to the Access Board for further consideration, in particular as 
applied to alterations. Many of the comments received by the Department 
in response to these questions addressed both titles II and III. As a 
result, the Department's discussion of these comments and its response 
are collectively presented for both titles.
    Side reach. The 1991 Standards at section 4.2.6 establish a maximum 
side-reach height of 54 inches. The 2010 Standards at section 308.3.1 
reduce that maximum height to 48 inches. The 2010 Standards also add 
exceptions for certain elements to the scoping requirement for operable 
parts.
    The vast majority of comments the Department received were in 
support of the lower side-reach maximum of 48 inches in the 2010 
Standards. Most of these comments, but not all, were received from 
individuals of short stature, relatives of individuals of short stature, 
or organizations representing the interests of persons with 
disabilities, including individuals of short stature. Comments from 
individuals with disabilities and disability advocacy groups stated that 
the 48-inch side reach would permit independence in performing many 
activities of daily living for individuals with disabilities, including 
individuals of short stature, persons who use wheelchairs, and persons 
who have limited upper body strength. In this regard, one commenter who 
is a business owner pointed out that as a person of short stature there 
were many occasions when he was unable to exit a public restroom 
independently because he could not reach the door handle. The commenter 
said that often elevator control buttons are out of his reach, and, if 
he is alone, he often must wait for someone else to enter the elevator 
so that he can ask that person to press a floor button for him. Another 
commenter, who is also a person of short stature, said that he has on 
several occasions pulled into a gas station only to find that he was 
unable to reach the credit card reader on the gas pump. Unlike other 
customers who can reach the card reader, swipe their credit or debit 
cards, pump their gas, and leave the station, he must use another method 
to pay for his gas. Another comment from a person of short stature 
pointed out that as more businesses take steps to reduce labor costs--a 
trend expected to continue--staffed booths are being replaced with 
automatic machines for the sale, for example, of parking tickets and 
other products. He observed that the ``ability to access and operate 
these machines becomes ever more critical to function in society,'' and, 
on that basis, urged the Department to adopt the 48-inch side-reach 
requirement. Another individual commented that persons of short stature 
should not have to carry with them adaptive tools in order to access 
building or facility elements that are out of their reach, any more than 
persons in wheelchairs should have to carry ramps with them in order to 
gain access to facilities.
    Many of the commenters who supported the revised side-reach 
requirement pointed out that lowering the side-reach requirement to 48 
inches would avoid a problem sometimes encountered in the built 
environment when an element was mounted for a parallel

[[Page 866]]

approach at 54 inches, only to find afterwards that a parallel approach 
was not possible. Some commenters also suggested that lowering the 
maximum unobstructed side reach to 48 inches would reduce confusion 
among design professionals by making the unobstructed forward and side-
reach maximums the same (the unobstructed forward reach in both the 1991 
and 2010 Standards is 48 inches maximum). These commenters also pointed 
out that the ICC/ANSI A117.1 Standard, which is a private sector model 
accessibility standard, has included a 48-inch maximum high side-reach 
requirement since 1998. Many jurisdictions have already incorporated 
this requirement into their building codes, which these commenters 
believed would reduce the cost of compliance with the 2010 Standards. 
Because numerous jurisdictions have already adopted the 48-inch side-
reach requirement, the Department's failure to adopt the 48-inch side-
reach requirement in the 2010 Standards, in the view of many commenters, 
would result in a significant reduction in accessibility, and would 
frustrate efforts that have been made to harmonize private sector model 
construction and accessibility codes with Federal accessibility 
requirements. Given these concerns, they overwhelmingly opposed the idea 
of returning the revised side-reach requirement to the Access Board for 
further consideration.
    The Department also received comments in support of the 48-inch 
side-reach requirement from an association of professional commercial 
property managers and operators and from State governmental entities. 
The association of property managers pointed out that the revised side-
reach requirement provided a reasonable approach to ``regulating 
elevator controls and all other operable parts'' in existing facilities 
in light of the manner in which the safe harbor, barrier removal, and 
alterations obligations will operate in the 2010 Standards. One 
governmental entity, while fully supporting the 48-inch side-reach 
requirement, encouraged the Department to adopt an exception to the 
lower reach range for existing facilities similar to the exception 
permitted in the ICC/ANSI A117.1 Standard. In response to this latter 
concern, the Department notes that under the safe harbor, existing 
facilities that are in compliance with the 1991 Standards, which 
required a 54-inch side-reach maximum, would not be required to comply 
with the lower side-reach requirement, unless there is an alteration. 
See Sec. 36.304(d)(2)(i).
    A number of commenters expressed either concern with, or opposition 
to, the 48-inch side-reach requirement and suggested that it be returned 
to the Access Board for further consideration. These commenters included 
trade and business associations, associations of retail stores, 
associations of restaurant owners, retail and convenience store chains, 
and a model code organization. Several businesses expressed the view 
that the lower side-reach requirement would discourage the use of their 
products and equipment by most of the general public. In particular, 
concerns were expressed by a national association of pay phone service 
providers regarding the possibility that pay telephones mounted at the 
lower height would not be used as frequently by the public to place 
calls, which would result in an economic burden on the pay phone 
industry. The commenter described the lower height required for side 
reach as creating a new ``barrier'' to pay phone use, which would reduce 
revenues collected from pay phones and, consequently, further discourage 
the installation of new pay telephones. In addition, the commenter 
expressed concern that phone service providers would simply decide to 
remove existing pay phones rather than incur the costs of relocating 
them at the lower height. With regard to this latter concern, the 
commenter misunderstood the manner in which the safe harbor and barrier 
removal obligations under Sec. 36.304 will operate in the revised title 
III regulation for elements that comply with the 1991 Standards. The 
Department does not anticipate that wholesale relocation of pay 
telephones in existing facilities will be required under the final rule 
where the telephones in existing facilities already are in compliance 
with the 1991 Standards. If the pay phones comply with the 1991 
Standards, the adoption of the 2010 Standards does not require 
retrofitting of these elements to reflect incremental changes in the 
2010 Standards. See Sec. 36.304(d)(2). However, pay telephones that were 
required to meet the 1991 Standards as part of new construction or 
alterations, but do not in fact comply with those standards, will need 
to be brought into compliance with the 2010 Standards as of 18 months 
from the publication date of this final rule. See Sec. 36.406(a)(5).
    The Department does not agree with the concerns expressed by the 
commenter about reduced revenues from pay phones mounted at lower 
heights. The Department believes that while given the choice some 
individuals may prefer to use a pay phone that is at a higher height, 
the availability of some phones at a lower height will not deter 
individuals from making needed calls.
    The 2010 Standards will not require every pay phone to be installed 
or moved to a lowered height. The table accompanying section 217.2 of 
the 2010 Standards makes clear that where one or more telephones are 
provided on a floor, level, or an exterior site, only one phone per 
floor, level, or exterior site must be placed at an accessible height. 
Similarly, where there is one bank of phones per floor, level, or 
exterior site, only one phone per floor, level, or exterior site must be 
accessible. And if there are two or more banks of phones per floor, 
level, or exterior site, only

[[Page 867]]

one phone per bank must be placed at an accessible height.
    Another comment in opposition to the lower reach range requirement 
was submitted on behalf of a chain of convenience stores with fuel 
stops. The commenter expressed the concern that the 48-inch side reach 
``will make it uncomfortable for the majority of the public,'' including 
persons of taller stature who would need to stoop to use equipment such 
as fuel dispensers mounted at the lower height. The commenter offered no 
objective support for the observation that a majority of the public 
would be rendered uncomfortable if, as required in the 2010 Standards, 
at least one of each type of fuel dispenser at a facility was made 
accessible in compliance with the lower reach range. Indeed, the 
Department received no comments from any individuals of tall stature 
expressing concern about accessible elements or equipment being mounted 
at the 48-inch height.
    Several retail, convenience store, restaurant, and amusement park 
commenters expressed concern about the burden the lower side-reach 
requirement would place on their businesses in terms of self-service 
food stations and vending areas if the 48-inch requirement were applied 
retroactively. The cost of lowering counter height, in combination with 
the lack of control businesses exercise over certain prefabricated 
service or vending fixtures, outweighed, they argued, any benefits to 
persons with disabilities. For this reason, they suggested the lower 
side-reach requirement be referred back to the Access Board.
    These commenters misunderstood the safe harbor and barrier removal 
obligations that will be in effect under the 2010 Standards. Those 
existing self-service food stations and vending areas that already are 
in compliance with the 1991 Standards will not be required to satisfy 
the 2010 Standards unless they engage in alterations. With regard to 
prefabricated vending machines and food service components that will be 
purchased and installed in businesses after the 2010 Standards become 
effective, the Department expects that companies will design these 
machines and fixtures to comply with the 2010 Standards in the future, 
as many have already done in the 10 years since the 48-inch side-reach 
requirement has been a part of the model codes and standards used by 
many jurisdictions as the basis for their construction codes.
    A model code organization commented that the lower side-reach 
requirement would create a significant burden if it required entities to 
lower the mounting height for light switches, environmental controls, 
and outlets when an alteration did not include the walls where these 
elements were located, such as when ``an area is altered or as a path of 
travel obligation.'' The Department believes that the final rule 
adequately addresses those situations about which the commenter 
expressed concern by not requiring the relocation of existing elements, 
such as light switches, environmental controls, and outlets, unless they 
are altered. Moreover, under Sec. 36.403 of the 1991 rule, costs for 
altering the path of travel to an altered area of primary function that 
exceed 20 percent of the overall costs of the alteration will continue 
to be deemed disproportionate.
    The Department has determined that the revised side-reach 
requirement should not be returned to the Access Board for further 
consideration based in large part on the views expressed by a majority 
of the commenters regarding the need for, and importance of, the lower 
side-reach requirement to ensure access for persons with disabilities.
    Alterations and water closet clearances in single-user toilet rooms 
with in-swinging doors. The 1991 Standards allow a lavatory to be placed 
a minimum of 18 inches from the water closet centerline and a minimum of 
36 inches from the side wall adjacent to the water closet, which 
precludes side transfers. The 1991 Standards do not allow an in-swinging 
door in a toilet or bathing room to overlap the required clear floor 
space at any accessible fixture. To allow greater transfer options, 
section 604.3.2 of the 2010 Standards prohibits lavatories from 
overlapping the clear floor space at water closets, except in certain 
residential dwelling units. Section 603.2.3 of the 2010 Standards 
maintains the prohibition on doors swinging into the clear floor space 
or clearance required for any fixture, except that they permit the doors 
of toilet or bathing rooms to swing into the required turning space, 
provided that there is sufficient clearance space for the wheelchair 
outside the door swing. In addition, in single-user toilet or bathing 
rooms, exception 2 of section 603.2.3 of the 2010 Standards permits the 
door to swing into the clear floor space of an accessible fixture if a 
clear floor space that measures at least 30 inches by 48 inches is 
available outside the arc of the door swing.
    The majority of commenters believed that this requirement would 
increase the number of toilet rooms accessible to individuals with 
disabilities who use wheelchairs or mobility scooters, and will make it 
easier for them to transfer. A number of commenters stated that there 
was no reason to return this provision to the Access Board. Numerous 
commenters noted that this requirement is already included in other 
model accessibility standards and many State and local building codes 
and that the adoption of the 2010 Standards is an important part of 
harmonization efforts.
    Other commenters, mostly trade associations, opposed this 
requirement, arguing that the added cost to the industry outweighs any 
increase in accessibility. Two

[[Page 868]]

commenters stated that these proposed requirements would add two feet to 
the width of an accessible single-user toilet room; however, another 
commenter said the drawings in the proposed regulation demonstrated that 
there would be no substantial increase in the size of the toilet room. 
Several commenters stated that this requirement would require moving 
plumbing fixtures, walls, or doors at significant additional expense. 
Two commenters wanted the permissible overlap between the door swing and 
clearance around any fixture eliminated. One commenter stated that these 
new requirements will result in fewer alterations to toilet rooms to 
avoid triggering the requirement for increased clearances, and suggested 
that the Department specify that repairs, maintenance, or minor 
alterations would not trigger the need to provide increased clearances. 
Another commenter requested that the Department exempt existing guest 
room bathrooms and single-user toilet rooms that comply with the 1991 
Standards from complying with the increased clearances in alterations.
    After careful consideration of these comments, the Department 
believes that the revised clearances for single-user toilet rooms will 
allow safer and easier transfers for individuals with disabilities, and 
will enable a caregiver, aide, or other person to accompany an 
individual with a disability into the toilet room to provide assistance. 
The illustrations in Appendix B to this final rule, ``Analysis and 
Commentary on the 2010 ADA Standards for Accessible Design,'' describe 
several ways for public entities and public accommodations to make 
alterations while minimizing additional costs or loss of space. Further, 
in any isolated instances where existing structural limitations may 
entail loss of space, the public entity and public accommodation may 
have a technical infeasibility defense for that alteration. The 
Department has, therefore, decided not to return this requirement to the 
Access Board.
    Alterations to stairs. The 1991 Standards only require interior and 
exterior stairs to be accessible when they provide access to levels that 
are not connected by an elevator, ramp, or other accessible means of 
vertical access. In contrast, section 210.1 of the 2010 Standards 
requires all newly constructed stairs that are part of a means of egress 
to be accessible. However, exception 2 of section 210.1 of the 2010 
Standards provides that in alterations, stairs between levels connected 
by an accessible route need not be accessible, except that handrails 
shall be provided. Most commenters were in favor of this requirement for 
handrails in alterations, and stated that adding handrails to stairs 
during alterations was not only feasible and not cost prohibitive, but 
also provided important safety benefits. One commenter stated that 
making all points of egress accessible increased the number of people 
who could use the stairs in an emergency. A majority of the commenters 
did not want this requirement returned to the Access Board for further 
consideration.
    The International Building Code (IBC), which is a private sector 
model construction code, contains a similar provision, and most 
jurisdictions enforce a version of the IBC as their building code, 
thereby minimizing the impact of this provision on public entities and 
public accommodations. The Department believes that by requiring only 
the addition of handrails to altered stairs where levels are connected 
by an accessible route, the costs of compliance for public entities and 
public accommodations are minimized, while safe egress for individuals 
with disabilities is increased. Therefore, the Department has decided 
not to return this requirement to the Access Board.
    Alterations to elevators. Under the 1991 Standards, if an existing 
elevator is altered, only that altered elevator must comply with the new 
construction requirements for accessible elevators to the maximum extent 
feasible. It is therefore possible that a bank of elevators controlled 
by a single call system may contain just one accessible elevator, 
leaving an individual with a disability with no way to call an 
accessible elevator and thus having to wait indefinitely until an 
accessible elevator happens to respond to the call system. In the 2010 
Standards, when an element in one elevator is altered, section 206.6.1 
will require the same element to be altered in all elevators that are 
programmed to respond to the same call button as the altered elevator. 
Almost all commenters favored the proposed requirement. This 
requirement, according to these commenters, is necessary so a person 
with a disability need not wait until an accessible elevator responds to 
his or her call. One commenter suggested that elevator owners also could 
comply by modifying the call system so the accessible elevator could be 
summoned independently. One commenter suggested that this requirement 
would be difficult for small businesses located in older buildings, and 
one commenter suggested that this requirement be sent back to the Access 
Board.
    After considering the comments, the Department agrees that this 
requirement is necessary to ensure that when an individual with a 
disability presses a call button, an accessible elevator will arrive. 
The IBC contains a similar provision, and most jurisdictions enforce a 
version of the IBC as their building code, minimizing the impact of this 
provision on public entities and public accommodations. Public entities 
and small businesses located in older buildings need not comply with 
this requirement where it is technically infeasible to do so. Further, 
as pointed out by one commenter, modifying the call system so the 
accessible elevator can be summoned independently is another

[[Page 869]]

means of complying with this requirement in lieu of altering all other 
elevators programmed to respond to the same call button. Therefore, the 
Department has decided not to return this requirement to the Access 
Board.
    Location of accessible routes to stages. The 1991 Standards, at 
section 4.33.5, require an accessible route to connect the accessible 
seating and the stage, as well as other ancillary spaces used by 
performers. The 2010 Standards, at section 206.2.6, provide in addition 
that where a circulation path directly connects the seating area and the 
stage, the accessible route must connect directly the accessible seating 
and the stage, and, like the 1991 Standards, an accessible route must 
connect the stage with the ancillary spaces used by performers.
    In the NPRM, the Department asked operators of auditoria about the 
extent to which auditoria already provide direct access to stages and 
whether there were planned alterations over the next 15 years that 
included accessible direct routes to stages. The Department also asked 
how to quantify the benefits of this requirement for persons with 
disabilities, and invited commenters to provide illustrative anecdotal 
experiences about the requirement's benefits.
    The Department received many comments regarding the costs and 
benefits of this requirement. Although little detail was provided, many 
industry and governmental entity commenters anticipated that the costs 
of this requirement would be great and that it would be difficult to 
implement. They noted that premium seats may have to be removed and that 
load-bearing walls may have to be relocated. These commenters suggested 
that the significant costs would deter alterations to the stage area for 
a great many auditoria. Some commenters suggested that ramps to the 
front of the stage may interfere with means of egress and emergency 
exits. Several commenters requested that the requirement apply to new 
construction only, and one industry commenter requested an exemption for 
stages used in arenas or amusement parks where there is no audience 
participation or where the stage is a work area for performers only. One 
commenter requested that the requirement not apply to temporary stages.
    The final rule does not require a direct accessible route to be 
constructed where a direct circulation path from the seating area to the 
stage does not exist. Consequently, those commenters who expressed 
concern about the burden imposed by the revised requirement (i.e., where 
the stage is constructed with no direct circulation path connecting the 
general seating and performing area) should note that the final rule 
will not require the provision of a direct accessible route under these 
circumstances. The final rule applies to permanent stages, as well as 
``temporary stages,'' if there is a direct circulation path from the 
seating area to the stage. However, the Department recognizes that in 
some circumstances, such as an alteration to a primary function area, 
the ability to provide a direct accessible route to a stage may be 
costly or technically infeasible, and the auditorium owner is not 
precluded by the revised requirement from asserting defenses available 
under the regulation. In addition, the Department notes that since 
section 4.33.5 of the 1991 Standards requires an accessible route to a 
stage, the safe harbor will apply to existing facilities whose stages 
comply with the 1991 Standards.
    Several governmental entities supported accessible auditoria and the 
revised requirement. One governmental entity noted that its State 
building code already required direct access, that it was possible to 
provide direct access, and that creative solutions had been found to do 
so.
    Many advocacy groups and individual commenters strongly supported 
the revised requirement, discussing the acute need for direct access to 
stages, as such access has an impact on a great number of people at 
important life events, such as graduations and awards ceremonies, at 
collegiate and competitive performances and other school events, and at 
entertainment events that include audience participation. Many 
commenters expressed the belief that direct access is essential for 
integration mandates to be satisfied, and that separate routes are 
stigmatizing and unequal. The Department agrees with these concerns.
    Commenters described the impact felt by persons in wheelchairs who 
are unable to access the stage at all when others are able to do so. 
Some of these commenters also discussed the need for the performers and 
production staff who use wheelchairs to have direct access to the stage, 
and they provided a number of examples that illustrated the importance 
of the rule proposed in the NPRM. Personal anecdotes were provided in 
comments and at the Department's public hearing on the NPRM. One mother 
spoke passionately and eloquently about the unequal treatment 
experienced by her daughter, who uses a wheelchair, at awards ceremonies 
and band concerts. Her daughter was embarrassed and ashamed to be 
carried by her father onto a stage at one band concert. When the venue 
had to be changed for another concert to an accessible auditorium, the 
band director made sure to comment that he was unhappy with the switch. 
Rather than endure the embarrassment and indignities, her child dropped 
out of band the following year.
    Another father commented about how he was unable to speak from the 
stage at a PTA meeting at his child's school. Speaking from the floor 
limited his line of sight and his participation. Several examples were 
provided of children who could not participate on

[[Page 870]]

stage during graduation, awards programs, or special school events, such 
as plays and festivities. One student did not attend his college 
graduation because he would not be able to get on stage. Another student 
was unable to participate in the class Christmas programs or end-of-year 
parties unless her father could attend and lift her onto the stage. 
These commenters did not provide a method to quantify the benefits that 
would accrue by having direct access to stages. One commenter stated, 
however, that ``the cost of dignity and respect is without measure.''
    Many industry commenters and governmental entities suggested that 
the requirement be sent back to the Access Board for further 
consideration. One industry commenter mistakenly noted that some 
international building codes do not incorporate the requirement and 
that, therefore, there is a need for further consideration. However, the 
Department notes that both the 2003 and 2006 editions of the IBC include 
scoping provisions that are almost identical to this requirement and 
that these editions of the model code are the most frequently used. Many 
individuals and advocacy group commenters requested that the requirement 
be adopted without further delay. These commenters spoke of the acute 
need for direct access to stages and the amount of time it would take to 
resubmit the requirement to the Access Board. Several commenters noted 
that the 2004 ADAAG tracks recent model codes, and that there is thus no 
need for further consideration. The Department agrees that no further 
delay is necessary and therefore has decided it will not return the 
requirement to the Access Board for further consideration.
    Assistive listening systems. The 1991 Standards at sections 4.33.6 
and 4.33.7 require assistive listening systems (ALS) in assembly areas 
and prescribe general performance standards for ALS systems. In the 
NPRM, the Department proposed adopting the technical specifications in 
the 2004 ADAAG for ALS that are intended to ensure better quality and 
effective delivery of sound and information for persons with hearing 
impairments, especially those using hearing aids. The Department noted 
in the NPRM that since 1991, advancements in ALS and the advent of 
digital technology have made these systems more amenable to uniform 
standards, which, among other things, should ensure that a certain 
percentage of required ALS systems are hearing-aid compatible. 73 FR 
34508, 34513 (June 17, 2008). The 2010 Standards at section 219 provide 
scoping requirements and at section 706 address receiver jacks, hearing 
aid compatibility, sound pressure level, signal-to-noise ratio, and peak 
clipping level. The Department requested comments specifically from 
arena and assembly area administrators on the cost and maintenance 
issues associated with ALS, and asked generally about the costs and 
benefits of ALS, and asked whether, based upon the expected costs of 
ALS, the issue should be returned to the Access Board for further 
consideration.
    Commenters from advocacy organizations noted that persons who 
develop significant hearing loss often discontinue their normal routines 
and activities, including meetings, entertainment, and large group 
events, due to a sense of isolation caused by the hearing loss or 
embarrassment. Individuals with longstanding hearing loss may never have 
participated in group activities for many of the same reasons. Requiring 
ALS may allow individuals with disabilities to contribute to the 
community by joining in government and public events, and through 
increased economic activity associated with community activities and 
entertainment. Making public events and entertainment accessible to 
persons with hearing loss also brings families and other groups that 
include persons with hearing loss into more community events and 
activities, thus exponentially increasing the benefit from ALS.
    Many commenters noted that when a person has significant hearing 
loss, that person may be able to hear and understand information in a 
quiet situation with the use of hearing aids or cochlear implants; 
however, as background noise increases and the distance between the 
source of the sound and the listener grows, and especially where there 
is distortion in the sound, an ALS becomes essential for basic 
comprehension and understanding. Commenters noted that among the 31 
million Americans with hearing loss, and with a projected increase to 
over 78 million Americans with hearing loss by 2030, the benefit from 
ALS is huge and growing. Advocates for persons with disabilities and 
individuals commented that they appreciated the improvements in the 2004 
ADAAG standards for ALS, including specifications for the ALS systems 
and performance standards. They noted that providing neckloops that 
translate the signal from the ALS transmitter to a frequency that can be 
heard on a hearing aid or cochlear implant are much more effective than 
separate ALS system headsets, which sometimes create feedback, often 
malfunction, and may create distractions for others seated nearby. 
Comments from advocates and users of ALS systems consistently noted that 
the Department's regulation should, at a minimum, be consistent with the 
2004 ADAAG. Although there were requests for adjustments in the scoping 
requirements from advocates seeking increased scoping requirements, and 
from large venue operators seeking fewer requirements, there was no 
significant concern expressed by commenters about the technical 
specifications for ALS in the 2004 ADAAG.

[[Page 871]]

    Some commenters from trade associations and large venue owners 
criticized the scoping requirements as too onerous, and one commenter 
asked for a remand to the Access Board for new scoping rules. However, 
one State agency commented that the 2004 ADAAG largely duplicates the 
requirements in the 2006 IBC and the 2003 ANSI codes, which means that 
entities that comply with those standards would not incur additional 
costs associated with ADA compliance.
    According to one State office of the courts, the costs to install 
either an infrared system or an FM system at average-sized facilities, 
including most courtrooms covered by title II, would be between $500 and 
$2,000, which the agency viewed as a small price in comparison to the 
benefits of inclusion. Advocacy organizations estimated wholesale costs 
of ALS systems at about $250 each, and individual neckloops to link the 
signal from the ALS transmitter to hearing aids or cochlear implants at 
less than $50 per unit. Many commenters pointed out that if a facility 
already is using induction neckloops, it would already be in compliance 
already and would not have any additional installation costs. One major 
city commented that annual maintenance is about $2,000 for the entire 
system of performance venues in the city. A trade association 
representing very large venues estimated annual maintenance and upkeep 
expenses, including labor and replacement parts, to be at most about 
$25,000 for a very large professional sports stadium.
    One commenter suggested that the scoping requirements for ALS in the 
2004 ADAAG were too stringent and that the Department should refer them 
back to the Access Board for further review and consideration. Others 
commented that the requirement for new ALS systems should mandate 
multichannel receivers capable of receiving audio description for 
persons who are blind, in addition to a channel for amplification for 
persons who are hard of hearing. Some commenters suggested that the 
Department should require a set schedule and protocol of mandatory 
maintenance. Department regulations already require maintenance of 
accessible features at Sec. 36.211(a) of the title III regulation, which 
obligates a title III entity to maintain ALS in good working order. The 
Department recognizes that maintenance of ALS is key to its usability. 
Necessary maintenance will vary dramatically from venue to venue based 
upon a variety of factors including frequency of use, number of units, 
quality of equipment, and other items. Accordingly, the Department has 
determined that it is not appropriate to mandate details of maintenance, 
but notes that failure to maintain ALS would violate Sec. 36.211(a) of 
this rule.
    The NPRM asked whether the Department should return the issue of ALS 
requirements to the Access Board for further review. The Department has 
received substantial feedback on the technical and scoping requirements 
for ALS and is convinced that these requirements are reasonable--
especially in light of the fact that the requirements largely duplicate 
those in the 2006 IBC and the 2003 ANSI codes already adopted in many 
States--and that the benefits justify the requirements. In addition, the 
Department believes that the new specifications will make ALS work more 
effectively for more persons with disabilities, which, together with a 
growing population of new users, will increase demand for ALS, thus 
mooting criticism from some large venue operators about insufficient 
demand. Thus, the Department has determined that it is unnecessary to 
refer this issue back to the Access Board for reconsideration.
    Accessible teeing grounds, putting greens, and weather shelters. The 
Department's NPRM sought public input on the proposed requirements for 
accessible golf courses. These requirements specifically relate to 
accessible routes within the boundaries of the courses, as well as the 
accessibility of golfing elements (e.g., teeing grounds, putting greens, 
weather shelters).
    In the NPRM, the Department sought information from the owners and 
operators of golf courses, both public and private, on the extent to 
which their courses already have golf car passages, and, if so, whether 
they intended to avail themselves of the proposed accessible route 
exception for golf car passages. 73 FR 34508, 34513 (June 17, 2008).
    Most commenters expressed support for the adoption of an accessible 
route requirement that includes an exception permitting golf car passage 
as all or part of an accessible route. Comments in favor of the proposed 
standard came from golf course owners and operators, individuals, 
organizations, and disability rights groups, while comments opposing 
adoption of the golf course requirements generally came from golf 
courses and organizations representing the golf course industry.
    The majority of commenters expressed the general viewpoint that 
nearly all golf courses provide golf cars and have either well-defined 
paths or permit golf cars to drive on the course where paths are not 
present--and thus meet the accessible route requirement. Several 
commenters disagreed with the assumption in the Initial RIA that 
virtually every tee and putting green on an existing course would need 
to be regraded in order to provide compliant accessible routes. 
According to one commenter, many golf courses are relatively flat with 
little slope, especially those heavily used by recreational golfers. 
This commenter concurred with the Department that it is likely that most 
existing golf courses have a golf car passage to tees and greens, 
thereby substantially minimizing the cost of bringing an existing golf 
course into compliance with the proposed

[[Page 872]]

standards. One commenter reported that golf course access audits found 
that the vast majority of public golf courses would have little 
difficulty in meeting the proposed golf course requirements. In the view 
of some commenters, providing access to golf courses would increase golf 
participation by individuals with disabilities.
    The Department also received many comments requesting clarification 
of the term ``golf car passage.'' For example, one commenter requesting 
clarification of the term ``golf car passage'' argued that golf courses 
typically do not provide golf car paths or pedestrian paths onto the 
actual teeing grounds or greens, many of which are higher or lower than 
the car path. This commenter argued that if golf car passages were 
required to extend onto teeing grounds and greens in order to qualify 
for an exception, then some golf courses would have to substantially 
regrade teeing grounds and greens at a high cost.
    After careful consideration of the comments, the Department has 
decided to adopt the 2010 Standards specific to golf facilities. The 
Department believes that in order for individuals with mobility 
disabilities to have an opportunity to play golf that is equal to 
golfers without disabilities, it is essential that golf courses provide 
an accessible route or accessible golf car passage to connect accessible 
elements and spaces within the boundary of the golf course, including 
teeing grounds, putting greens, and weather shelters.

                  Public Comments on Other NPRM Issues

    Equipment and furniture. Equipment and furniture are covered under 
the Department's ADA regulations, including under the provision 
requiring modifications in policies, practices, and procedures and the 
provision requiring barrier removal. See 28 CFR 36.302, 36.304. The 
Department has not issued specific regulatory guidance on equipment and 
furniture, but proposed such regulations in 1991. The Department decided 
not to establish specific equipment requirements at that time because 
the requirements could be addressed under other sections of the 
regulation and because there were no appropriate accessibility standards 
applicable to many types of equipment at that time. See 28 CFR part 36, 
app. B (2009) (``Proposed Section 36.309 Purchase of Furniture and 
Equipment'').
    In the NPRM, the Department announced its intention not to regulate 
equipment, proposing instead to continue with the current approach. The 
Department received numerous comments objecting to this decision and 
urging the Department to issue equipment and furniture regulations. 
Based on these comments, the Department has decided that it needs to 
revisit the issuance of equipment and furniture regulations, and it 
intends to do so in future rulemaking.
    Among the commenters' key concerns, many from the disability 
community objected to the Department's earlier decision not to issue 
equipment regulations, especially for medical equipment. These groups 
recommended that the Department list by name certain types of medical 
equipment that must be accessible, including exam tables (that lower to 
15 inches above the floor or lower), scales, medical and dental chairs, 
and radiologic equipment (including mammography equipment). These 
commenters emphasized that the provision of medically-related equipment 
and furniture also should be specifically regulated since they are not 
included in the 2004 ADAAG (while depositories, change machines, fuel 
dispensers, and ATMs are) and because of their crucial role in the 
provision of healthcare. Commenters described how the lack of accessible 
medical equipment negatively affects the health of individuals with 
disabilities. For example, some individuals with mobility disabilities 
do not get thorough medical care because their health providers do not 
have accessible examination tables or scales.
    Commenters also said that the Department's stated plan to assess the 
financial impact of free-standing equipment on businesses was not 
necessary, as any regulations could include a financial-balancing test. 
Other commenters representing persons who are blind or have low vision 
urged the Department to mandate accessibility for a wide range of 
equipment--including household appliances (stoves, washers, microwaves, 
and coffee makers), audiovisual equipment (stereos and DVD players), 
exercise machines, vending equipment, ATMs, computers at Internet cafes 
or hotel business centers, reservations kiosks at hotels, and point-of-
sale devices--through speech output and tactile labels and controls. 
They argued that modern technology allows such equipment to be made 
accessible at minimal cost. According to these commenters, the lack of 
such accessibility in point-of-sale devices is particularly problematic 
because it forces blind individuals to provide personal or sensitive 
information (such as personal identification numbers) to third parties, 
which exposes them to identity fraud. Because the ADA does not apply 
directly to the manufacture of products, the Department lacks the 
authority to issue design requirements for equipment designed 
exclusively for use in private homes. See Department of Justice, 
Americans with Disabilities Act, ADA Title III Technical Assistance 
Manual Covering Public Accommodations and Commercial Facilities, III-
4.4200, available at http://www.ada.gov/taman3.html. To the extent that 
equipment intended for such use is used by a covered entity to 
facilitate a covered service or activity, that covered entity must make 
the

[[Page 873]]

equipment accessible to the extent that it can. See id.: 28 CFR part 36, 
app. B (2009) (``Proposed Section 36.309 Purchase of Furniture and 
Equipment'').
    Some commenters urged the Department to require swimming pool 
operators to provide aquatic wheelchairs for the use of persons with 
disabilities when the swimming pool has a sloped entry. If there is a 
sloped entry, a person who uses a wheelchair would require a wheelchair 
designed for use in the water in order to gain access to the pool since 
taking a personal wheelchair into water would rust and corrode the metal 
on the chair and damage any electrical components of a power wheelchair. 
Providing an aquatic wheelchair made of non-corrosive materials and 
designed for access into the water will protect the water from 
contamination and avoid damage to personal wheelchairs or other mobility 
aids.
    Additionally, many commenters urged the Department to regulate the 
height of beds in accessible hotel guest rooms and to ensure that such 
beds have clearance at the floor to accommodate a mechanical lift. These 
commenters noted that in recent years, hotel beds have become higher as 
hotels use thicker mattresses, thereby making it difficult or impossible 
for many individuals who use wheelchairs to transfer onto hotel beds. In 
addition, many hotel beds use a solid-sided platform base with no 
clearance at the floor, which prevents the use of a portable lift to 
transfer an individual onto the bed. Consequently, individuals who bring 
their own lift to transfer onto the bed cannot independently get 
themselves onto the bed. Some commenters suggested various design 
options that might avoid these situations.
    The Department intends to provide specific guidance relating to both 
hotel beds and aquatic wheelchairs in a future rulemaking. For the 
present, the Department reminds covered entities that they have the 
obligation to undertake reasonable modifications to their current 
policies and procedures and to undertake barrier removal or provide 
alternatives to barrier removal to make their facilities accessible to 
persons with disabilities. In many cases, providing aquatic wheelchairs 
or adjusting hotel bed heights may be necessary to comply with those 
requirements.
    Commenters from the business community objected to the lack of 
clarity from the NPRM as to which equipment must be accessible and how 
to make it accessible. Several commenters urged the Department to 
clarify that equipment located in a public accommodation need not meet 
the technical specifications of ADAAG so long as the service provided by 
the equipment can be provided by alternative means, such as an employee. 
For example, the commenters suggested that a self-service check-in kiosk 
in a hotel need not comply with the reach range requirement so long as a 
guest can check in at the front desk nearby. Several commenters argued 
that the Department should not require that point-of-sale devices be 
accessible to individuals who are blind or have low vision (although 
complying with accessible route and reach range was acceptable), 
especially until the Department adopts specific standards governing such 
access.
    The Department has decided not to add specific scoping or technical 
requirements for equipment and furniture in this final rule. Other 
provisions of the regulation, including those requiring reasonable 
modifications of policies, practices, or procedures, readily achievable 
barrier removal, and effective communication will require the provision 
of accessible equipment in appropriate circumstances. Because it is 
clear that many commenters want the Department to provide additional 
specific requirements for accessible equipment, the Department plans to 
initiate a rulemaking to address these issues in the near future.
    Accessible golf cars. An accessible golf car means a device that is 
designed and manufactured to be driven on all areas of a golf course, is 
independently usable by individuals with mobility disabilities, has a 
hand-operated brake and accelerator, carries golf clubs in an accessible 
location, and has a seat that both swivels and raises to put the golfer 
in a standing or semi-standing position. The 1991 regulation contained 
no language specifically referencing accessible golf cars. After 
considering the comments addressing the ANPRM's proposed requirement 
that golf courses make at least one specialized golf car available for 
the use of individuals with disabilities, and the safety of accessible 
golf cars and their use on golf course greens, the Department stated in 
the NPRM that it would not issue regulations specific to golf cars.
    The Department received many comments in response to its decision to 
propose no new regulation specific to accessible golf cars. The majority 
of commenters urged the Department to require golf courses to provide 
accessible golf cars. These comments came from individuals, disability 
advocacy and recreation groups, a manufacturer of accessible golf cars, 
and representatives of local government. Comments supporting the 
Department's decision not to propose a new regulation came from golf 
course owners, associations, and individuals.
    Many commenters argued that while the existing title III regulation 
covered the issue, the Department should nonetheless adopt specific 
regulatory language requiring golf courses to provide accessible golf 
cars. Some commenters noted that many local governments and park 
authorities that operate public golf courses have already provided 
accessible golf cars. Experience indicates that such golf cars may be 
used without

[[Page 874]]

damaging courses. Some argued that having accessible golf cars would 
increase golf course revenue by enabling more golfers with disabilities 
to play the game. Several commenters requested that the Department adopt 
a regulation specifically requiring each golf course to provide one or 
more accessible golf cars. Other commenters recommended allowing golf 
courses to make ``pooling'' arrangements to meet demands for such cars. 
A few commenters expressed support for using accessible golf cars to 
accommodate golfers with and without disabilities. Commenters also 
pointed out that the Departments of the Interior and Defense have 
already mandated that golf courses under their jurisdictional control 
must make accessible golf cars available unless it can be demonstrated 
that doing so would change the fundamental nature of the game.
    While an industry association argued that at least two models of 
accessible golf cars meet the specifications recognized in the field, 
and that accessible golf cars cause no more damage to greens or other 
parts of golf courses than players standing or walking across the 
course, other commenters expressed concerns about the potential for 
damage associated with the use of accessible golf cars. Citing safety 
concerns, golf organizations recommended that an industry safety 
standard be developed.
    Although the Department declines to add specific scoping or 
technical requirements for golf cars to this final rule, the Department 
expects to address requirements for accessible golf cars in future 
rulemaking. In the meantime, the Department believes that golfers with 
disabilities who need accessible golf cars are protected by other 
existing provisions in the title III regulation, including those 
requiring reasonable modifications of policies, practices, or 
procedures, and readily achievable barrier removal.
    Web site accessibility. Many commenters expressed disappointment 
that the NPRM did not specifically require title III-covered entities to 
make their Web sites, through which they offer goods and services, 
accessible to individuals with disabilities. Commenters urged the 
Department to require specifically that entities that provide goods or 
services on the Internet make their Web sites accessible, regardless of 
whether or not these entities also have a ``bricks and mortar'' 
location. The commenters explained that such clarification was needed 
because of the current ambiguity caused by court decisions as to whether 
web-only businesses are covered under title III. Commenters argued that 
the cost of making Web sites accessible through Web site design is 
minimal, yet critical, to enabling individuals with disabilities to 
benefit from the goods and services an entity offers through its Web 
site. The Internet has become an essential tool for many Americans and, 
when accessible, provides individuals with disabilities great 
independence. Commenters recommended that, at a minimum, the Department 
require covered entities to meet the Electronic and Information 
Technology Accessibility Standards issued pursuant to section 508. Under 
section 508 of the Rehabilitation Act of 1973, Federal agencies are 
required to make their Web sites accessible. 29 U.S.C. 794(d); 36 CFR 
Part 1194.
    The Department agrees that the ability to access the goods and 
services offered on the Internet through the Web sites of public 
accommodations is of great importance to individuals with disabilities, 
particularly those who are blind or who have low vision. When the ADA 
was enacted in 1990, the Internet was unknown to most of the public. 
Today, the Internet plays a critical role in daily life for personal, 
civic, commercial, and business purposes. In light of the growing 
importance of eBcommerce, ensuring nondiscriminatory access to the goods 
and services offered through the Web sites of covered entities can play 
a significant role in fulfilling the goals of the ADA.
    Although the language of the ADA does not explicitly mention the 
Internet, the Department has taken the position that title III covers 
access to Web sites of public accommodations. The Department has issued 
guidance on the ADA as applied to the Web sites of public entities, 
which includes the availability of standards for Web site accessibility. 
See Accessibility of State and Local Government Websites to People with 
Disabilities (June 2003), available at www.ada.gov/websites2.htm. As the 
Department stated in that publication, an agency (and similarly a public 
accommodation) with an inaccessible Web site also may meet its legal 
obligations by providing an accessible alternative for individuals to 
enjoy its goods or services, such as a staffed telephone information 
line. However, such an alternative must provide an equal degree of 
access in terms of hours of operation and range of options and programs 
available. For example, if retail goods or bank services are posted on 
an inaccessible Web site that is available 24 hours a day, 7 days a week 
to individuals without disabilities, then the alternative accessible 
method must also be available 24 hours a day, 7 days a week. Additional 
guidance is available in the Web Content Accessibility Guidelines 
(WCAG), available at http://www.w3.org/TR/WAI-WEBCONTENT (last visited 
June 24, 2010), which are developed and maintained by the Web 
Accessibility Initiative, a subgroup of the World Wide Web Consortium 
(W3C).
    The Department did not issue proposed regulations as part of its 
NPRM, and thus is unable to issue specific regulatory language on Web 
site accessibility at this time. However, the Department expects to 
engage in rulemaking relating to Web site accessibility under the ADA in 
the near future.

[[Page 875]]

    Multiple chemical sensitivities. The Department received comments 
from a number of individuals asking the Department to add specific 
language to the final rule addressing the needs of individuals with 
chemical sensitivities. These commenters expressed concern that the 
presence of chemicals interferes with their ability to participate in a 
wide range of activities. These commenters also urged the Department to 
add multiple chemical sensitivities to the definition of a disability.
    The Department has determined not to include specific provisions 
addressing multiple chemical sensitivities in the final rule. In order 
to be viewed as a disability under the ADA, an impairment must 
substantially limit one or more major life activities. An individual's 
major life activities of respiratory or neurological functioning may be 
substantially limited by allergies or sensitivity to a degree that he or 
she is a person with a disability. When a person has this type of 
disability, a covered entity may have to make reasonable modifications 
in its policies and practices for that person. However, this 
determination is an individual assessment and must be made on a case-by-
case basis.

[AG Order No. 3181-2010, 75 FR 56258, Sept. 15, 2010; 76 FR 13287, Mar. 
11, 2011]



  Sec. Appendix B to Part 36--Analysis and Commentary on the 2010 ADA 
                     Standards for Accessible Design

                          Appendix B to Part 36

 Analysis and Commentary on the 2010 ADA Standards for Accessible Design

    The following is a discussion of substantive changes in the scoping 
and technical requirements for new construction and alterations 
resulting from the adoption of new ADA Standards for Accessible Design 
(2010 Standards) in the final rules for title II (28 CFR part 35) and 
title III (28 CFR part 36) of the Americans with Disabilities Act (ADA). 
The full text of the 2010 Standards is available for review at http://
www.ada.gov.
    In the Department's revised ADA title II regulation, 28 CFR 35.104 
Definitions, the Department defines the term ``2010 Standards'' to mean 
the 2010 ADA Standards for Accessible Design. The 2010 Standards consist 
of the 2004 ADA Accessibility Guidelines (ADAAG) and the requirements 
contained in 28 CFR 35.151.
    In the Department's revised ADA title III regulation, 28 CFR 36.104 
Definitions, the Department defines the term ``2010 Standards'' to mean 
the 2010 ADA Standards for Accessible Design. The 2010 Standards consist 
of the 2004 ADA Accessibility Guidelines (ADAAG) and the requirements 
contained in 28 CFR part 36 subpart D.
    This summary addresses selected substantive changes between the 1991 
ADA Standards for Accessible Design (1991 Standards) codified at 28 CFR 
part 36, app. A (2009) and the 2010 Standards.
    Editorial changes are not discussed. Scoping and technical 
requirements are discussed together, where appropriate, for ease of 
understanding the requirements. In addition, this document addresses 
selected public comments received by the Department in response to its 
September 2004 Advance Notice of Proposed Rulemaking (ANPRM) and its 
June 2008 Notice of Proposed Rulemaking (NPRM).
    The ANPRM and NPRM issued by the Department concerning the proposed 
2010 Standards stated that comments received by the Access Board in 
response to its development of the ADAAG upon which the 2010 Standards 
are based would be considered in the development of the final Standards. 
Therefore, the Department will not restate here all of the comments and 
responses to them issued by the Access Board. The Department is 
supplementing the Access Board's comments and responses with substantive 
comments and responses here. Comments and responses addressed by the 
Access Board that also were separately submitted to the Department will 
not be restated in their entirety here.

            Section-by-Section Analysis With Public Comments

                     Application and Administration

                 102  Dimensions for Adults and Children

    Section 2.1 of the 1991 Standards stated that the specifications 
were based upon adult dimensions and anthropometrics. The 1991 Standards 
did not provide specific requirements for children's elements or 
facilities.
    Section 102 of the 2010 Standards states that the technical 
requirements are based on adult dimensions and anthropometrics. In 
addition, technical requirements are also provided based on children's 
dimensions and anthropometrics for drinking fountains, water closets and 
other elements located in toilet compartments, lavatories and sinks, 
dining surfaces, and work surfaces.

                      103  Equivalent Facilitation

    This section acknowledges that nothing in these requirements 
prevents the use of designs, products, or technologies as alternatives 
to those prescribed, provided that the alternatives result in 
substantially equivalent or greater accessibility and usability.
    A commenter encouraged the Department to include a procedure for 
determining

[[Page 876]]

equivalent facilitation. The Department believes that the responsibility 
for determining and demonstrating equivalent facilitation properly rests 
with the covered entity. The purpose of allowing for equivalent 
facilitation is to encourage flexibility and innovation while still 
ensuring access. The Department believes that establishing potentially 
cumbersome bureaucratic provisions for reviewing requests for equivalent 
facilitation is inappropriate.

                            104  Conventions

    Dimensions. Section 104.1 of the 2010 Standards notes that 
dimensions not stated as a ``maximum'' or ``minimum'' are absolute. 
Section 104.1.1 of the 2010 Standards provides that all dimensions are 
subject to conventional industry tolerances except where the requirement 
is stated as a range with specific minimum and maximum end points. A 
commenter stated that the 2010 Standards restrict the application of 
construction tolerances only to those few requirements that are 
expressed as an absolute dimension.
    This is an incorrect interpretation of sections 104.1 and 104.1.1 of 
the 2010 Standards. Construction and manufacturing tolerances apply to 
absolute dimensions as well as to dimensions expressed as a maximum or 
minimum. When the requirement states a specified range, such as in 
section 609.4 where grab bars must be installed between 33 inches and 36 
inches above the finished floor, that range provides an adequate 
tolerance. Advisory 104.1.1 gives further guidance about tolerances.
    Section 104.2 of the 2010 Standards provides that where the required 
number of elements or facilities to be provided is determined by 
calculations of ratios or percentages and remainders or fractions 
result, the next greater whole number of such elements or facilities 
shall be provided. Where the determination of the required size or 
dimension of an element or facility involves ratios or percentages, 
rounding down for values less than one-half is permissible.
    A commenter stated that it is customary in the building code 
industry to round up rather than down for values less than one-half. As 
noted here, where the 2010 Standards provide for scoping, any resulting 
fractional calculations will be rounded to the next whole number. The 
Department is retaining the portion of section 104.2 that permits 
rounding down for values less than one-half where the determination of 
the required size or dimension of an element or facility involves ratios 
or percentages. Such practice is standard with the industry, and is in 
keeping with model building codes.

                        105  Referenced Standards

    Section 105 lists the industry requirements that are referenced in 
the 2010 Standards. This section also clarifies that where there is a 
difference between a provision of the 2010 Standards and the referenced 
requirements, the provision of the 2010 Standards applies.

                            106  Definitions

    Various definitions have been added to the 2010 Standards and some 
definitions have been deleted.
    One commenter asked that the term public right-of-way be defined; 
others asked that various terms and words defined by the 1991 Standards, 
but which were eliminated from the 2010 Standards, plus other words and 
terms used in the 2010 Standards, be defined.
    The Department believes that it is not necessary to add definitions 
to this text because section 106.3 of the 2010 Standards provides that 
the meanings of terms not specifically defined in the 2010 Standards, in 
the Department's ADA regulations, or in referenced standards are to be 
defined by collegiate dictionaries in the sense that the context 
implies. The Department believes that this provision adequately 
addresses these commenters' concerns.

                   Scoping and Technical Requirements

                 202  Existing Buildings and Facilities

    Alterations. Under section 4.1.6(1)(c) of the 1991 Standards if 
alterations to single elements, when considered together, amount to an 
alteration of a room or space in a building or facility, the entire room 
or space would have to be made accessible. This requirement was 
interpreted to mean that if a covered entity chose to alter several 
elements in a room there would come a point when so much work had been 
done that it would be considered that the entire room or space would 
have to be made accessible. Under section 202.3 of the 2010 Standards 
entities can alter as many elements within a room or space as they like 
without triggering a requirement to make the entire room or space 
accessible based on the alteration of individual elements. This does 
not, however, change the requirement that if the intent was to alter the 
entire room or space, the entire room or space must be made accessible 
and comply with the applicable requirements of Chapter 2 of the 2010 
Standards.
    Alterations to Primary Function Areas. Section 202.4 restates a 
current requirement under title III, and therefore represents no change 
for title III facilities or for those title II facilities that have 
elected to comply with the 1991 Standards. However, under the revised 
title II regulation, state and local government facilities that have 
previously elected to comply with the Uniform Federal Accessibility 
Standards (UFAS) instead of the 1991 Standards will no longer have that 
option, and thus will now be subject to the path of travel requirement. 
The path of travel requirement provides that when a primary

[[Page 877]]

function area of an existing facility is altered, the path of travel to 
that area (including restrooms, telephones, and drinking fountains 
serving the area) must also be made accessible, but only to the extent 
that the cost of doing so does not exceed twenty percent (20%) of the 
cost of the alterations to the primary function area. The UFAS 
requirements for a substantial alteration, though different, may have 
covered some of the items that will now be covered by the path of travel 
requirement.
    Visible Alarms in Alterations to Existing Facilities. The 1991 
Standards, at sections 4.1.3(14) and 4.1.6(1)(b), and sections 202.3 and 
215.1 of the 2010 Standards require that when existing elements and 
spaces of a facility are altered, the alterations must comply with new 
construction requirements. Section 215.1 of the 2010 Standards adds a 
new exception to the scoping requirement for visible alarms in existing 
facilities so that visible alarms must be installed only when an 
existing fire alarm system is upgraded or replaced, or a new fire alarm 
system is installed.
    Some commenters urged the Department not to include the exception 
and to make visible alarms a mandatory requirement for all spaces, both 
existing and new. Other commenters said that the exception will make the 
safety of individuals with disabilities dependent upon the varying age 
of existing fire alarm systems. Other commenters suggested that 
including this requirement, even with the exception, will result in 
significant cost to building owners and operators.
    The Department believes that the language of the exception to 
section 215.1 of the 2010 Standards strikes a reasonable balance between 
the interests of individuals with disabilities and those of the business 
community. If undertaken at the time a system is installed, whether in a 
new facility or in a planned system upgrade, the cost of adding visible 
alarms is reasonable. Over time, existing facilities will become fully 
accessible to individuals who are deaf or hard of hearing, and will add 
minimal costs to owners and operators.

                         203  General Exceptions

    Limited Access Spaces and Machinery Spaces. The 1991 Standards, at 
section 4.1.1, contain an exception that exempts ``non-occupiable'' 
spaces that have limited means of access, such as ladders or very narrow 
passageways, and that are visited only by service personnel for 
maintenance, repair, or occasional monitoring of equipment, from all 
accessibility requirements. Sections 203.4 and 203.5 of the 2010 
Standards expand this exception by removing the condition that the 
exempt spaces be ``non-occupiable,'' and by separating the other 
conditions into two independent exceptions: one for spaces with limited 
means of access, and the other for machinery spaces. More spaces are 
exempted by the exception in the 2010 Standards.

                  203, 206 and 215  Employee Work Areas

    Common Use Circulation Paths in Employee Work Areas. The 1991 
Standards at section 4.1.1(3), and the 2010 Standards at section 203.9, 
require employee work areas in new construction and alterations only to 
be designed and constructed so that individuals with disabilities can 
approach, enter, and exit the areas. Section 206.2.8 of the 2010 
Standards requires accessible common use circulation paths within 
employee work areas unless they are subject to exceptions in sections 
206.2.8, 403.5, 405.5, and 405.8. The ADA, 42 U.S.C. 12112 (b)(5)(A) and 
(B), requires employers to make reasonable accommodations in the 
workplace for individuals with disabilities, which may include 
modifications to work areas when needed. Providing increased access in 
the facility at the time of construction or alteration will simplify the 
process of providing reasonable accommodations when they are needed.
    The requirement for accessible common use circulation paths will not 
apply to existing facilities pursuant to the readily achievable barrier 
removal requirement. The Department has consistently taken the position 
that barrier removal requirements do not apply to areas used exclusively 
by employees because the purpose of title III is to ensure that access 
is provided to clients and customers. See Appendix B to the 1991 
regulation implementing title III, 28 CFR part 36.
    Several exceptions to section 206.2.8 of the 2010 Standards exempt 
common use circulation paths in employee work areas from the 
requirements of section 402 where it may be difficult to comply with the 
technical requirements for accessible routes due to the size or function 
of the area:
      Employee work areas, or portions of employee work areas, 
that are less than 300 square feet and are elevated 7 inches or more 
above the ground or finish floor, where elevation is essential to the 
function of the space, are exempt.
      Common use circulation paths within employee work areas 
that are less than 1,000 square feet and are defined by permanently 
installed partitions, counters, casework, or furnishings are exempt. 
Kitchens in quick service restaurants, cocktail bars, and the employee 
side of service counters are frequently covered by this exception.
      Common use circulation paths within exterior employee work 
areas that are fully exposed to the weather are exempt. Farms, ranches, 
and outdoor maintenance facilities are covered by this exception.
    The 2010 Standards in sections 403.5 and 405.8 also contain 
exceptions to the technical requirements for accessible routes for 
circulation paths in employee work areas:

[[Page 878]]

      Machinery and equipment are permitted to reduce the clear 
width of common use circulation paths where the reduction is essential 
to the function of the work performed. Machinery and equipment that must 
be placed a certain way to work properly, or for ergonomics or to 
prevent workplace injuries are covered by this exception.
      Handrails are not required on ramps, provided that they 
can be added in the future.
    Commenters stated that the requirements set out in the 2010 
Standards for accessible common use circulation paths in employee work 
areas are inappropriate, particularly in commercial kitchens, 
storerooms, and behind cocktail bars where wheelchairs would not be 
easily accommodated. These commenters further urged the Department not 
to adopt a requirement that circulation paths in employee work areas be 
at least 36 inches wide, including those at emergency exits.
    These commenters misunderstand the scope of the provision. Nothing 
in the 2010 Standards requires all circulation paths in non-exempt areas 
to be accessible. The Department recognizes that building codes and fire 
and life safety codes, which are adopted by all of the states, require 
primary circulation paths in facilities, including employee work areas, 
to be at least 36 inches wide for purposes of emergency egress. 
Accessible routes also are at least 36 inches wide. Therefore, the 
Department anticipates that covered entities will be able to satisfy the 
requirement to provide accessible circulation paths by ensuring that 
their required primary circulation paths are accessible.
    Individual employee work stations, such as a grocery checkout 
counter or an automobile service bay designed for use by one person, do 
not contain common use circulation paths and are not required to comply. 
Other work areas, such as stockrooms that typically have narrow pathways 
between shelves, would be required to design only one accessible 
circulation path into the stockroom. It would not be necessary to make 
each circulation path in the room accessible. In alterations it may be 
technically infeasible to provide accessible common use circulation 
paths in some employee work areas. For example, in a stock room of a 
department store significant existing physical constraints, such as 
having to move walls to avoid the loss of space to store inventory, may 
mean that it is technically infeasible (see section 106.5 ``Defined 
Terms'' of the 2010 Standards) to make even the primary common use 
circulation path in that stock room wide enough to be accessible. In 
addition, the 2010 Standards include exceptions for common use 
circulation paths in employee work areas where it may be difficult to 
comply with the technical requirements for accessible routes due to the 
size or function of the areas. The Department believes that these 
exceptions will provide the flexibility necessary to ensure that this 
requirement does not interfere with legitimate business operations.
    Visible Alarms. Section 215.3 of the 2010 Standards provides that 
where employee work areas in newly constructed facilities have audible 
alarm coverage they are required to have wiring systems that are capable 
of supporting visible alarms that comply with section 702 of the 2010 
Standards. The 1991 Standards, at section 4.1.1(3), require visible 
alarms to be provided where audible fire alarm systems are provided, but 
do not require areas used only by employees as work areas to be equipped 
with accessibility features. As applied to office buildings, the 1991 
Standards require visible alarms to be provided in public and common use 
areas such as hallways, conference rooms, break rooms, and restrooms, 
where audible fire alarm systems are provided.
    Commenters asserted that the requirements of section 215.3 of the 
2010 Standards would be burdensome to meet. These commenters also raised 
concerns that all employee work areas within existing buildings and 
facilities must be equipped with accessibility features.
    The commenters' concerns about section 215.3 of the 2010 Standards 
represent a misunderstanding of the requirements applicable to employee 
work areas.
    Newly constructed buildings and facilities merely are required to 
provide wiring so that visible alarm systems can be added as needed to 
accommodate employees who are deaf or hard of hearing. This is a minimal 
requirement without significant impact.
    The other issue in the comments represents a misunderstanding of the 
Department's existing regulatory requirements. Employee common use areas 
in covered facilities (e.g., locker rooms, break rooms, cafeterias, 
toilet rooms, corridors to exits, and other common use spaces) were 
required to be accessible under the 1991 Standards; areas in which 
employees actually perform their jobs are required to enable a person 
using a wheelchair or mobility device to approach, enter, and exit the 
area. The 2010 Standards require increased access through the accessible 
common use circulation path requirement, but neither the 1991 Standards 
nor the 2010 Standards require employee work stations to be accessible. 
Access to specific employee work stations is governed by title I of the 
ADA.

                       205 and 309  Operable Parts

    Section 4.1.3, and more specifically sections 4.1.3(13), 4.27.3, and 
4.27.4 of the 1991 Standards, require operable parts on accessible 
elements, along accessible routes, and in accessible rooms and spaces to 
comply with the technical requirements for operable parts, including 
height and operation. The 1991 Standards, at section 4.27.3, contain an

[[Page 879]]

exception, ``* * * where the use of special equipment dictates otherwise 
or where electrical and communications systems receptacles are not 
normally intended for use by building occupants,'' from the technical 
requirement for the height of operable parts. Section 205.1 of the 2010 
Standards divides this exception into three exceptions covering operable 
parts intended only for use by service or maintenance personnel, 
electrical or communication receptacles serving a dedicated use, and 
floor electrical receptacles. Operable parts covered by these new 
exceptions are exempt from all of the technical requirements for 
operable parts in section 309. The 2010 Standards also add exceptions 
that exempt certain outlets at kitchen counters; heating, ventilating 
and air conditioning diffusers; redundant controls provided for a single 
element, other than light switches; and exercise machines and equipment 
from all of the technical requirements for operable parts. Exception 7, 
in section 205.1 of the 2010 Standards, exempts cleats and other boat 
securement devices from the accessible height requirement. Similarly, 
section 309.4 of the 2010 Standards exempts gas pump nozzles, but only 
from the technical requirement for activating force.
    Reach Ranges. The 1991 Standards set the maximum height for side 
reach at 54 inches above the floor. The 2010 Standards, at section 
308.3, lower that maximum height to 48 inches above the finish floor or 
ground. The 2010 Standards also add exceptions, as discussed above, to 
the scoping requirement for operable parts for certain elements that, 
among other things, will exempt them from the reach range requirements 
in section 308.
    The 1991 Standards, at sections 4.1.3, 4.27.3, and 4.2.6, and the 
2010 Standards, at sections 205.1, 228.1, 228.2, 308.3, and 309.3, 
require operable parts of accessible elements, along accessible routes, 
and in accessible rooms and spaces to be placed within the forward or 
side-reach ranges specified in section 308. The 2010 Standards also 
require at least five percent (5%) of mailboxes provided in an interior 
location and at least one of each type of depository, vending machine, 
change machine, and gas pump to meet the technical requirements for a 
forward or a side reach.
    Section 4.2.6 of the 1991 Standards specifies a maximum 54-inch high 
side reach and a minimum 9-inch low side reach for an unobstructed reach 
depth of 10 inches maximum. Section 308.3.1 of the 2010 Standards 
specifies a maximum 48-inch high side reach and a minimum 15-inch low 
side reach where the element being reached for is unobstructed. Section 
308.3.1, Exception 1, permits an obstruction that is no deeper than 10 
inches between the edge of the clear floor or ground space and the 
element that the individual with a disability is trying to reach. 
Changes in the side-reach range for new construction and alterations in 
the 2010 Standards will affect a variety of building elements such as 
light switches, electrical outlets, thermostats, fire alarm pull 
stations, card readers, and keypads.
    Commenters were divided in their views about the changes to the 
unobstructed side-reach range. Disability advocacy groups and others, 
including individuals of short stature, supported the modifications to 
the proposed reach range requirements. Other commenters stated that the 
new reach range requirements will be burdensome for small businesses to 
comply with. These comments argued that the new reach range requirements 
restrict design options, especially in residential housing.
    The Department continues to believe that data submitted by advocacy 
groups and others provides compelling evidence that lowered reach range 
requirements will better serve significantly greater numbers of 
individuals with disabilities, including individuals of short stature, 
persons with limited upper body strength, and others with limited use of 
their arms and fingers. The change to the side-reach range was developed 
by the Access Board over a prolonged period in which there was extensive 
public participation. This process did not produce any significant data 
to indicate that applying the new unobstructed side-reach range 
requirement in new construction or during alterations would impose a 
significant burden.

                  206 and Chapter 4  Accessible Routes

    Slope. The 2010 Standards provide, at section 403.3, that the cross 
slope of walking surfaces not be steeper than 1:48. The 1991 Standards' 
cross slope requirement was that it not exceed 1:50. A commenter 
recommended increasing the cross slope requirement to allow a maximum of 
\1/2\ inch per foot (1:24) to prevent imperfections in concrete surfaces 
from ponding water. The Department continues to believe that the 
requirement that a cross slope not be steeper than 1:48 adequately 
provides for water drainage in most situations. The suggested changes 
would double the allowable cross slope and create a significant 
impediment for many wheelchair users and others with a mobility 
disability.
    Accessible Routes from Site Arrival Points and Within Sites. The 
1991 Standards, at sections 4.1.2(1) and (2), and the 2010 Standards, at 
sections 206.2.1 and 206.2.2, require that at least one accessible route 
be provided within the site from site arrival points to an accessible 
building entrance and that at least one accessible route connect 
accessible facilities on the same site. The 2010 Standards also add two 
exceptions that exempt site arrival points and accessible facilities 
within a site from the accessible route requirements where the only 
means of access between them is a vehicular way that does not provide 
pedestrian access.

[[Page 880]]

    Commenters urged the Department to eliminate the exception that 
exempts site arrival points and accessible facilities from the 
accessible route requirements where the only means of access between 
them is a vehicular way not providing pedestrian access. The Department 
declines to accept this recommendation because the Department believes 
that its use will be limited. If it can be reasonably anticipated that 
the route between the site arrival point and the accessible facilities 
will be used by pedestrians, regardless of whether a pedestrian route is 
provided, then this exception will not apply. It will apply only in the 
relatively rare situations where the route between the site arrival 
point and the accessible facility dictates vehicular access--for 
example, an office complex on an isolated site that has a private access 
road, or a self-service storage facility where all users are expected to 
drive to their storage units.
    Another commenter suggested that the language of section 406.1 of 
the 2010 Standards is confusing because it states that curb ramps on 
accessible routes shall comply with 406, 405.2 through 405.5, and 
405.10. The 1991 Standards require that curb ramps be provided wherever 
an accessible route crosses a curb.
    The Department declines to change this language because the change 
is purely editorial, resulting from the overall changes in the format of 
the 2010 Standards. It does not change the substantive requirement. In 
the 2010 Standards all elements on a required accessible route must be 
accessible; therefore, if the accessible route crosses a curb, a curb 
ramp must be provided.
    Areas of Sport Activity. Section 206.2.2 of the 2010 Standards 
requires at least one accessible route to connect accessible buildings, 
facilities, elements, and spaces on the same site. Advisory section 
206.2.2 adds the explanation that an accessible route must connect the 
boundary of each area of sport activity (e.g., courts and playing 
fields, whether indoor or outdoor). Section 206.2.12 of the 2010 
Standards further requires that in court sports the accessible route 
must directly connect both sides of the court.
    Limited-Use/Limited-Application Elevators, Destination-Oriented 
Elevators and Private Residence Elevators. The 1991 Standards, at 
section 4.1.3(5), and the 2010 Standards, at sections 206.2 and 206.6, 
include exceptions to the scoping requirement for accessible routes that 
exempt certain facilities from connecting each story with an elevator. 
If a facility is exempt from the scoping requirement, but nonetheless 
installs an elevator, the 1991 Standards require the elevator to comply 
with the technical requirements for elevators. The 2010 Standards add a 
new exception that allows a facility that is exempt from the scoping 
requirement to install a limited-use/limited-application (LULA) 
elevator. LULA elevators are also permitted in the 1991 Standards and 
the 2010 Standards as an alternative to platform lifts. The 2010 
Standards also add a new exception that permits private residence 
elevators in multi-story dwelling and transient lodging units. The 2010 
Standards contain technical requirements for LULA elevators at section 
408 and private residence elevators at section 409.
    Section 407.2.1.4 of the 2010 Standards includes an exception to the 
technical requirements for locating elevator call buttons for 
destination-oriented elevators. The advisory at section 407.2.1.4 
describes lobby controls for destination-oriented elevator systems. Many 
elevator manufacturers have recently developed these new ``buttonless'' 
elevator control systems. These new, more efficient elevators are 
usually found in high-rise buildings that have several elevators. They 
require passengers to enter their destination floor on an entry device, 
usually a keypad, in the elevator lobby. The system then sends the most 
efficient car available to take all of the passengers going to the sixth 
floor, for example, only to the sixth floor, without making stops at the 
third, fourth, and fifth floors on the way to the sixth floor. The 
challenge for individuals who are blind or have low vision is how to 
know which elevator car to enter, after they have entered their 
destination floor into the keypad.
    Commenters requested that the Department impose a moratorium on the 
installation of destination-oriented elevators arguing that this new 
technology presents wayfinding challenges for persons who are blind or 
have low vision.
    Section 407.2.1.5 of the 2010 Standards allows destination-oriented 
elevators to not provide call buttons with visible signals to indicate 
when each call is registered and when each call is answered provided 
that visible and audible signals, compliant with 407.2.2 of the 2010 
Standards, indicating which elevator car to enter, are provided. This 
will require the responding elevator car to automatically provide 
audible and visible communication so that the system will always 
verbally and visually indicate which elevator car to enter.
    As with any new technology, all users must have time to become 
acquainted with how to use destination-oriented elevators. The 
Department will monitor the use of this new technology and work with the 
Access Board so that there is not a decrease in accessibility as a 
result of permitting this new technology to be installed.
    Accessible Routes to Tiered Dining Areas in Sports Facilities. The 
1991 Standards, at sections 4.1.3(1) and 5.4, and section 206.2.5 of the 
2010 Standards require an accessible route to be provided to all dining 
areas in new construction, including raised or sunken dining

[[Page 881]]

areas. The 2010 Standards add a new exception for tiered dining areas in 
sports facilities. Dining areas in sports facilities are typically 
integrated into the seating bowl and are tiered to provide adequate 
lines of sight for individuals with disabilities. The new exception 
requires accessible routes to be provided to at least 25 percent (25%) 
of the tiered dining areas in sports facilities. Each tier must have the 
same services and the accessible routes must serve the accessible 
seating.
    Accessible Routes to Press Boxes. The 1991 Standards, at sections 
4.1.1(1) and 4.1.3(1), cover all areas of newly constructed facilities 
required to be accessible, and require an accessible route to connect 
accessible entrances with all accessible spaces and elements within the 
facility. Section 201.1 of the 2010 Standards requires that all areas of 
newly designed and constructed buildings and facilities and altered 
portions of existing buildings and facilities be accessible. Sections 
206.2.7(1) and (2) of the 2010 Standards add two exceptions that exempt 
small press boxes that are located in bleachers with entrances on only 
one level, and small press boxes that are free-standing structures 
elevated 12 feet or more above grade, from the accessible route 
requirement when the aggregate area of all press boxes in a sports 
facility does not exceed 500 square feet. The Department anticipates 
that this change will significantly reduce the economic impact on 
smaller sports facilities, such as those associated with high schools or 
community colleges.
    Public Entrances. The 1991 Standards, at sections 4.1.3(8) and 
4.1.6(1)(h), require at least fifty percent (50%) of public entrances to 
be accessible. Additionally, the 1991 Standards require the number of 
accessible public entrances to be equivalent to the number of exits 
required by applicable building and fire codes. With very few 
exceptions, building and fire codes require at least two exits to be 
provided from spaces within a building and from the building itself. 
Therefore, under the 1991 Standards where two public entrances are 
planned in a newly constructed facility, both entrances are required to 
be accessible.
    Instead of requiring accessible entrances based on the number of 
public entrances provided or the number of exits required (whichever is 
greater), section 206.4.1 of the 2010 Standards requires at least sixty 
percent (60%) of public entrances to be accessible. The revision is 
intended to achieve the same result as the 1991 Standards. Thus, under 
the 2010 Standards where two public entrances are planned in a newly 
constructed facility, both entrances must be accessible.
    Where multiple public entrances are planned to serve different site 
arrival points, the 1991 Standards, at section 4.1.2(1), and section 
206.2.1 of the 2010 Standards require at least one accessible route to 
be provided from each type of site arrival point provided, including 
accessible parking spaces, accessible passenger loading zones, public 
streets and sidewalks, and public transportation stops, to an accessible 
public entrance that serves the site arrival point.
    Commenters representing small businesses recommended retaining the 
1991 requirement for fifty percent (50%) of public entrances of covered 
entities to be accessible. These commenters also raised concerns about 
the impact upon existing facilities of the new sixty percent (60%) 
requirement.
    The Department believes that these commenters misunderstand the 1991 
Standards. As explained above, the requirements of the 1991 Standards 
generally require more than fifty percent (50%) of entrances in small 
facilities to be accessible. Model codes require that most buildings 
have more than one means of egress. Most buildings have more than one 
entrance, and the requirements of the 1991 Standards typically resulted 
in these buildings having more than one accessible entrance. Requiring 
at least sixty percent (60%) of public entrances to be accessible is not 
expected to result in a substantial increase in the number of accessible 
entrances compared to the requirements of the 1991 Standards. In some 
very large facilities this change may result in fewer accessible 
entrances being required by the 2010 Standards. However, the Department 
believes that the realities of good commercial design will result in 
more accessible entrances being provided for the convenience of all 
users.
    The 1991 Standards and the 2010 Standards also contain exceptions 
that limit the number of accessible entrances required in alterations to 
existing facilities. When entrances to an existing facility are altered 
and the facility has an accessible entrance, the entrance being altered 
is not required to be accessible, unless a primary function area also is 
altered and then an accessible path of travel must be provided to the 
primary function area to the extent that the cost to do so is not 
disproportionate to the overall cost of the alteration.
    Alterations to Existing Elevators. When a single space or element is 
altered, the 1991 Standards, at sections 4.1.6(1)(a) and (b), require 
the space or element to be made accessible. When an element in one 
elevator is altered, the 2010 Standards, at section 206.6.1, require the 
same element to be altered in all elevators that are programmed to 
respond to the same call button as the altered elevator.
    The 2010 Standards, at sections 407.2.1-407.4.7.1.2, also contain 
exceptions to the technical requirements for elevators when existing 
elevators are altered that minimize the impact of this change.

[[Page 882]]

    Commenters expressed concerns about the requirement that when an 
element in one elevator is altered, the 2010 Standards, at section 
206.6.1, will require the same element to be altered in all elevators 
that are programmed to respond to the same call button as the altered 
elevator. Commenters noted that such a requirement is burdensome and 
will result in costly efforts without significant benefit to individuals 
with disabilities.
    The Department believes that this requirement is necessary to ensure 
that when an individual with a disability presses a call button, an 
accessible elevator will arrive. Without this requirement, individuals 
with disabilities would have to wait unnecessarily for an accessible 
elevator to make its way to them arbitrarily. The Department also 
believes that the effort required to meet this provision is minimal in 
the majority of situations because it is typical to upgrade all of the 
elevators in a bank at the same time.
    Accessible Routes in Dwelling Units with Mobility Features. Sections 
4.34.1 and 4.34.2 of the UFAS require the living area, kitchen and 
dining area, bedroom, bathroom, and laundry area, where provided, in 
covered dwelling units with mobility features to be on an accessible 
route. Where covered dwelling units have two or more bedrooms, at least 
two bedrooms are required to be on an accessible route.
    The 2010 Standards at sections 233.3.1.1, 809.1, 809.2, 809.2.1, and 
809.4 will require all spaces and elements within dwelling units with 
mobility features to be on an accessible route. These changes exempt 
unfinished attics and unfinished basements from the accessible route 
requirement. Section 233.3.5 of the 2010 Standards also includes an 
exception to the dispersion requirement that permits accessible single-
story dwelling units to be constructed, where multi-story dwelling units 
are one of the types of units provided.
    Location of Accessible Routes. Section 4.3.2(1) of the 1991 
Standards requires accessible routes connecting site arrival points and 
accessible building entrances to coincide with general circulation 
paths, to the maximum extent feasible. The 2010 Standards require all 
accessible routes to coincide with or be located in the same general 
area as general circulation paths. Additionally, a new provision 
specifies that where a circulation path is interior, the required 
accessible route must also be located in the interior of the facility. 
The change affects a limited number of buildings. Section 206.3 of the 
2010 Standards requires all accessible routes to coincide with or be 
located in the same general area as general circulation paths. Designing 
newly constructed interior accessible routes to coincide with or to be 
located in the same area as general circulation paths will not typically 
present a difficult design challenge and is expected to impose limited 
design constraints. The change will have no impact on exterior 
accessible routes. The 1991 Standards and the 2010 Standards also 
require accessible routes to be located in the interior of the facility 
where general circulation paths are located in the interior of the 
facility. The revision affects a limited number of buildings.
    Location of Accessible Routes to Stages. The 1991 Standards at 
section 4.33.5 require an accessible route to connect the accessible 
seating and the performing area. Section 206.2.6 of the 2010 Standards 
requires the accessible route to directly connect the seating area and 
the accessible seating, stage, and all areas of the stage, where a 
circulation path directly connects the seating area and the stage. Both 
the 1991 Standards and the 2010 Standards also require an accessible 
route to connect the stage and ancillary areas, such as dressing rooms, 
used by performers. The 2010 Standards do not require an additional 
accessible route to be provided to the stage. Rather, the changes 
specify where the accessible route to the stage, which is required by 
the 1991 Standards, must be located.

                     207  Accessible Means of Egress

    General. The 1991 Standards at sections 4.1.3(9); 4.1.6(1)(g); and 
4.3.10 establish scoping and technical requirements for accessible means 
of egress. Section 207.1 of the 2010 Standards reference the 
International Building Code (IBC) for scoping and technical requirements 
for accessible means of egress.
    The 1991 Standards require the same number of accessible means of 
egress to be provided as the number of exits required by applicable 
building and fire codes. The IBC requires at least one accessible means 
of egress and at least two accessible means of egress where more than 
one means of egress is required by other sections of the building code. 
The changes in the 2010 Standards are expected to have minimal impact 
since the model fire and life safety codes, which are adopted by all of 
the states, contain equivalent requirements with respect to the number 
of accessible means of egress.
    The 1991 Standards require areas of rescue assistance or horizontal 
exits in facilities with levels above or below the level of exit 
discharge. Areas of rescue assistance are spaces that have direct access 
to an exit, stair, or enclosure where individuals who are unable to use 
stairs can go to call for assistance and wait for evacuation. The 2010 
Standards incorporate the requirements established by the IBC. The IBC 
requires an evacuation elevator designed with standby power and other 
safety features that can be used for emergency evacuation of individuals 
with disabilities in facilities with four or more stories above or below 
the exit discharge level, and allows exit stairways and evacuation 
elevators to be used as an accessible means of egress in conjunction 
with areas of refuge or horizontal exits. The

[[Page 883]]

change is expected to have minimal impact since the model fire and life 
safety codes, adopted by most states, already contain parallel 
requirements with respect to evacuation elevators.
    The 1991 Standards exempt facilities equipped with a supervised 
automatic sprinkler system from providing areas of rescue assistance, 
and also exempt alterations to existing facilities from providing an 
accessible means of egress. The IBC exempts buildings equipped with a 
supervised automatic sprinkler system from certain technical 
requirements for areas of refuge, and also exempts alterations to 
existing facilities from providing an accessible means of egress.
    The 1991 and 2010 Standards require signs that provide direction to 
or information about functional spaces to meet certain technical 
requirements. The 2010 Standards, at section 216.4, address exit signs. 
This section is consistent with the requirements of the IBC. Signs used 
for means of egress are covered by this scoping requirement. The 
requirements in the 2010 Standards require tactile signs complying with 
sections 703.1, 703.2 and 703.5 at doors at exit passageways, exit 
discharge, and at exit stairways. Directional exit signs and signs at 
areas of refuge required by section 216.4.3 must have visual characters 
and features complying with section 703.5.
    Standby Power for Platform Lifts. The 2010 Standards at section 
207.2 require standby power to be provided for platform lifts that are 
permitted to serve as part of an accessible means of egress by the IBC. 
The IBC permits platform lifts to serve as part of an accessible means 
of egress in a limited number of places where platform lifts are allowed 
in new construction. The 1991 Standards, at 4.1.3(5) Exception 4(a) 
through (d), and the 2010 Standards, at sections 206.7.1 through 
206.7.10, similarly limit the places where platform lifts are allowed in 
new construction.
    Commenters urged the Department to reconsider provisions that would 
require standby power to be provided for platform lifts. Concerns were 
raised that ensuring standby power would be too burdensome. The 
Department views this issue as a fundamental life safety issue. Lift 
users face the prospect of being trapped on the lift in the event of a 
power failure if standby power is not provided. The lack of standby 
power could be life-threatening in situations where the power failure is 
associated with a fire or other emergency. The use of a platform lift is 
generally only one of the options available to covered entities. Covered 
entities that are concerned about the costs associated with maintaining 
standby power for a lift may wish to explore design options that would 
incorporate the use of a ramp.

                       208 and 502  Parking Spaces

    General. Where parking spaces are provided, the 1991 Standards, at 
sections 4.1.2(5)(a) and (7) and 7(a), and the 2010 Standards, at 
section 208.1, require a specified number of the parking spaces to be 
accessible. The 2010 Standards, at section 208, include an exception 
that exempts parking spaces used exclusively for buses, trucks, delivery 
vehicles, law enforcement vehicles, or for purposes of vehicular 
impound, from the scoping requirement for parking spaces, provided that 
when these lots are accessed by the public the lot has an accessible 
passenger loading zone.
    The 2010 Standards require accessible parking spaces to be 
identified by signs that display the International Symbol of 
Accessibility. Section 216.5, Exceptions 1 and 2, of the 2010 Standards 
exempt certain accessible parking spaces from this signage requirement. 
The first exception exempts sites that have four or fewer parking spaces 
from the signage requirement. Residential facilities where parking 
spaces are assigned to specific dwelling units are also exempted from 
the signage requirement.
    Commenters stated that the first exception, by allowing a small 
parking lot with four or fewer spaces not to post a sign at its one 
accessible space, is problematic because it could allow all drivers to 
park in accessible parking spaces. The Department believes that this 
exception provides necessary relief for small business entities that may 
otherwise face the prospect of having between twenty-five percent (25%) 
and one hundred percent (100%) of their limited parking area unavailable 
to their customers because they are reserved for the exclusive use of 
persons whose vehicles display accessible tags or parking placards. The 
2010 Standards still require these businesses to ensure that at least 
one of their available parking spaces is designed to be accessible.
    A commenter stated that accessible parking spaces must be clearly 
marked. The Department notes that section 502.6 of the 2010 Standards 
provides that accessible parking spaces must be identified by signs that 
include the International Symbol of Accessibility. Also, section 502.3.3 
of the 2010 Standards requires that access aisles be marked so as to 
discourage parking in them.
    Access Aisle. Section 502.3 of the 2010 Standards requires that an 
accessible route adjoin each access aisle serving accessible parking 
spaces. The accessible route connects each access aisle to accessible 
entrances.
    Commenters questioned why the 2010 Standards would permit an 
accessible route used by individuals with disabilities to coincide with 
the path of moving vehicles. The Department believes that the 2010 
Standards appropriately recognize that not all parking facilities 
provide separate pedestrian routes.

[[Page 884]]

Section 502.3 of the 2010 Standards provides the flexibility necessary 
to permit designers and others to determine the most appropriate 
location of the accessible route to the accessible entrances. If all 
pedestrians using the parking facility are expected to share the 
vehicular lanes, then the ADA permits covered entities to use the 
vehicular lanes as part of the accessible route. The advisory note in 
section 502.3 of the 2010 Standards, however, calls attention to the 
fact that this practice, while permitted, is not ideal. Accessible 
parking spaces must be located on the shortest accessible route of 
travel to an accessible entrance. Accessible parking spaces and the 
required accessible route should be located where individuals with 
disabilities do not have to cross vehicular lanes or pass behind parked 
vehicles to have access to an accessible entrance. If it is necessary to 
cross a vehicular lane because, for example, local fire engine access 
requirements prohibit parking immediately adjacent to a building, then a 
marked crossing running perpendicular to the vehicular route should be 
included as part of the accessible route to an accessible entrance.
    Van Accessible Parking Spaces. The 1991 Standards, at sections 
4.1.2(5)(b), 4.6.3, 4.6.4, and 4.6.5, require one in every eight 
accessible parking spaces to be van accessible. Section 208.2.4 of the 
2010 Standards requires one in every six accessible parking spaces to be 
van accessible.
    A commenter asked whether automobiles other than vans may park in 
van accessible parking spaces. The 2010 Standards do not prohibit 
automobiles other than vans from using van accessible parking spaces. 
The Department does not distinguish between vehicles that are actual 
``vans'' versus other vehicles such as trucks, station wagons, sport 
utility vehicles, etc. since many vehicles other than vans may be used 
by individuals with disabilities to transport mobility devices.
    Commenters' opinions were divided on this point. Facility operators 
and others asked for a reduction in the number of required accessible 
parking spaces, especially the number of van accessible parking spaces, 
because they claimed these spaces often are not used. Individuals with 
disabilities, however, requested an increase in the scoping requirements 
for these parking spaces.
    The Department is aware that a strong difference of opinion exists 
between those who use such spaces and those who must provide or maintain 
them. Therefore, the Department did not increase the total number of 
accessible spaces required. The only change was to increase the 
proportion of spaces that must be accessible to vans and other vehicles 
equipped to transport mobility devices.
    Direct Access Entrances From Parking Structures. Where levels in a 
parking garage have direct connections for pedestrians to another 
facility, the 1991 Standards, at section 4.1.3(8)(b)(i), require at 
least one of the direct connections to be accessible. The 2010 
Standards, at section 206.4.2, require all of these direct connections 
to be accessible.

           209 and 503  Passenger Loading Zones and Bus Stops

    Passenger Loading Zones at Medical Care and Long-Term Care 
Facilities. Sections 6.1 and 6.2 of the 1991 Standards and section 209.3 
of the 2010 Standards require medical care and long-term care 
facilities, where the period of stay exceeds 24 hours, to provide at 
least one accessible passenger loading zone at an accessible entrance. 
The 1991 Standards also require a canopy or roof overhang at this 
passenger loading zone. The 2010 Standards do not require a canopy or 
roof overhang.
    Commenters urged the Department to reinstate the requirement for a 
canopy or roof overhang at accessible passenger loading zones at medical 
care and long-term care facilities. While the Department recognizes that 
a canopy or roof overhang may afford useful protection from inclement 
weather conditions to everyone using a facility, it is not clear that 
the absence of such protection would impede access by individuals with 
disabilities. Therefore, the Department declined to reinstate that 
requirement.
    Passenger Loading Zones. Where passenger loading zones are provided, 
the 1991 Standards, at sections 4.1.2(5) and 4.6.6, require at least one 
passenger loading zone to be accessible. Sections 209.2.1 and 503 of the 
2010 Standards, require facilities such as airport passenger terminals 
that have long, continuous passenger loading zones to provide one 
accessible passenger loading zone in every continuous 100 linear feet of 
loading zone space. The 1991 Standards and the 2010 Standards both 
include technical requirements for the vehicle pull-up space (96 inches 
wide minimum and 20 feet long minimum). Accessible passenger loading 
zones must have an access aisle that is 60 inches wide minimum and 
extends the full length of the vehicle pull-up space. The 1991 Standards 
permit the access aisle to be on the same level as the vehicle pull-up 
space, or on the sidewalk. The 2010 Standards require the access aisle 
to be on the same level as the vehicle pull-up space and to be marked so 
as to discourage parking in the access aisle.
    Commenters expressed concern that certain covered entities, 
particularly airports, cannot accommodate the requirements of the 2010 
Standards to provide passenger loading zones, and urged a revision that 
would require one accessible passenger loading zone located in 
reasonable proximity to each building entrance served by the curb.
    Commenters raised a variety of issues about the requirements at 
section 503 of the 2010 Standards stating that the requirements

[[Page 885]]

for an access aisle, width, length, and marking of passenger loading 
zones are not clear, do not fully meet the needs of individuals with 
disabilities, may run afoul of state or local requirements, or may not 
be needed because many passenger loading zones are typically staffed by 
doormen or valet parkers. The wide range of opinions expressed in these 
comments indicates that this provision is controversial. However, none 
of these comments provided sufficient data to enable the Department to 
determine that the requirement is not appropriate.
    Valet Parking and Mechanical Access Parking Garages. The 1991 
Standards, at sections 4.1.2(5)(a) and (e), and sections 208.2, 209.4, 
and 209.5 of the 2010 Standards require parking facilities that provide 
valet parking services to have an accessible passenger loading zone. The 
2010 Standards extend this requirement to mechanical access parking 
garages. The 1991 Standards contained an exception that exempted valet 
parking facilities from providing accessible parking spaces. The 2010 
Standards eliminate this exception. The reason for not retaining the 
provision is that valet parking is a service, not a facility type.
    Commenters questioned why the exception for valet parking facilities 
from providing accessible parking spaces was eliminated. The provision 
was eliminated because valet parkers may not have the skills necessary 
to drive a vehicle that is equipped to be accessible, including use of 
hand controls, or when a seat is not present to accommodate a driver 
using a wheelchair. In that case, permitting the individual with a 
disability to self-park may be a required reasonable modification of 
policy by a covered entity.

                         210 and 504  Stairways

    The 1991 Standards require stairs to be accessible only when they 
provide access to floor levels not otherwise connected by an accessible 
route (e.g., where the accessible route is provided by an elevator, 
lift, or ramp). The 2010 Standards, at sections 210.1 and 504, require 
all newly constructed stairs that are part of a means of egress to 
comply with the requirements for accessible stairs, which include 
requirements for accessible treads, risers, and handrails. In existing 
facilities, where floor levels are connected by an accessible route, 
only the handrail requirement will apply when the stairs are altered. 
Exception 2 to section 210.1 of the 2010 Standards permits altered 
stairs to not comply with the requirements for accessible treads and 
risers where there is an accessible route between floors served by the 
stairs.
    Most commenters were in favor of this requirement for handrails in 
alterations and stated that adding handrails to stairs during 
alterations would be feasible and not costly while providing important 
safety benefits. The Department believes that it strikes an appropriate 
balance by focusing the expanded requirements on new construction. The 
2010 Standards apply to stairs which are part of a required means of 
egress. Few stairways are not part of a means of egress. The 2010 
Standards are consistent with most building codes which do not exempt 
stairways when the route is also served by a ramp or elevator.

                     211 and 602  Drinking Fountains

    Sections 4.1.3(10) and 4.15 of the 1991 Standards and sections 211 
and 602 of the 2010 Standards require drinking fountains to be provided 
for persons who use wheelchairs and for others who stand. The 1991 
Standards require wall and post-mounted cantilevered drinking fountains 
mounted at a height for wheelchair users to provide clear floor space 
for a forward approach with knee and toe clearance and free standing or 
built-in drinking fountains to provide clear floor space for a parallel 
approach. The 2010 Standards require drinking fountains mounted at a 
height for wheelchair users to provide clear floor space for a forward 
approach with knee and toe clearance, and include an exception for a 
parallel approach for drinking fountains installed at a height to 
accommodate very small children. The 2010 Standards also include a 
technical requirement for drinking fountains for standing persons.

       212 and 606  Kitchens, Kitchenettes, Lavatories, and Sinks

    The 1991 Standards, at sections 4.24, and 9.2.2(7), contain 
technical requirements for sinks and only have specific scoping 
requirements for sinks in transient lodging. Section 212.3 of the 2010 
Standards requires at least five percent (5%) of sinks in each 
accessible space to comply with the technical requirements for sinks. 
The technical requirements address clear floor space, height, faucets, 
and exposed pipes and surfaces. The 1991 Standards, at section 4.24, and 
the 2010 Standards, at section 606, both require the clear floor space 
at sinks to be positioned for a forward approach and knee and toe 
clearance to be provided under the sink. The 1991 Standards, at section 
9.2.2(7), allow the clear floor space at kitchen sinks and wet bars in 
transient lodging guest rooms with mobility features to be positioned 
for either a forward approach with knee and toe clearance or for a 
parallel approach.
    The 2010 Standards include an exception that permits the clear floor 
space to be positioned for a parallel approach at kitchen sinks in any 
space where a cook top or conventional range is not provided, and at a 
wet bar.
    A commenter stated that it is unclear what the difference is between 
a sink and a lavatory, and that this is complicated by requirements that 
apply to sinks (five percent (5%) accessible) and lavatories (at least 
one

[[Page 886]]

accessible). The term ``lavatory'' generally refers to the specific type 
of plumbing fixture required for hand washing in toilet and bathing 
facilities. The more generic term ``sink'' applies to all other types of 
sinks located in covered facilities.
    A commenter recommended that the mounting height of sinks and 
lavatories should take into consideration the increased use of three-
wheeled scooters and some larger wheelchairs. The Department is aware 
that the use of three-wheeled scooters and larger wheelchairs may be 
increasing and that some of these devices may require changes in space 
requirements in the future. The Access Board is funding research to 
obtain data that may be used to develop design guidelines that provide 
access to individuals using these mobility devices.

   213, 603, 604, and 608  Toilet and Bathing Facilities, Rooms, and 
                              Compartments

    General. Where toilet facilities and bathing facilities are 
provided, they must comply with section 213 of the 2010 Standards.
    A commenter recommended that all accessible toilet facilities, 
toilet rooms, and compartments should be required to have signage 
indicating that such spaces are restricted solely for the use of 
individuals with disabilities. The Department believes that it is 
neither necessary nor appropriate to restrict the use of accessible 
toilet facilities. Like many other facilities designed to be accessible, 
accessible toilet facilities can and do serve a wide range of 
individuals with and without disabilities.
    A commenter recommended that more than one wheelchair accessible 
compartment be provided in toilet rooms serving airports and train 
stations because these compartments are likely to be occupied by 
individuals with luggage and persons with disabilities often take longer 
to use them. The Access Board is examining airport terminal 
accessibility as part of an ongoing effort to facilitate accessibility 
and promote effective design. As part of these efforts, the Access Board 
will examine requirements for accessible toilet compartments in larger 
airport restrooms. The Department declines to change the scoping for 
accessible toilet compartments at this time.
    Ambulatory Accessible Toilet Compartments. Section 213.3.1 of the 
2010 Standards requires multi-user men's toilet rooms, where the total 
of toilet compartments and urinals is six or more, to contain at least 
one ambulatory accessible compartment. The 1991 Standards count only 
toilet stalls (compartments) for this purpose. The 2010 Standards 
establish parity between multi-user women's toilet rooms and multi-user 
men's toilet rooms with respect to ambulatory accessible toilet 
compartments.
    Urinals. Men's toilet rooms with only one urinal will no longer be 
required to provide an accessible urinal under the 2010 Standards. Such 
toilet rooms will still be required to provide an accessible toilet 
compartment.
    Commenters urged that the exception be eliminated. The Department 
believes that this change will provide flexibility to many small 
businesses and it does not alter the requirement that all common use 
restrooms must be accessible.
    Multiple Single-User Toilet Rooms. Where multiple single-user toilet 
rooms are clustered in a single location, fifty percent (50%), rather 
than the one hundred percent (100%) required by the 1991 Standards, are 
required to be accessible by section 213.2, Exception 4 of the 2010 
Standards. Section 216.8 of the 2010 Standards requires that accessible 
single-user toilet rooms must be identified by the International Symbol 
of Accessibility where all single-user toilet rooms are not accessible.
    Hospital Patient Toilet Rooms. An exception was added in section 
223.1 of the 2010 Standards to allow toilet rooms that are part of 
critical or intensive care patient sleeping rooms to no longer be 
required to provide mobility features.
    Water Closet Location and Rear Grab Bar. Section 604.2 of the 2010 
Standards allows greater flexibility for the placement of the centerline 
of wheelchair accessible and ambulatory accessible water closets. 
Section 604.5.2, Exception 1 permits a shorter grab bar on the rear wall 
where there is not enough wall space due to special circumstances (e.g., 
when a lavatory or other recessed fixture is located next to the water 
closet and the wall behind the lavatory is recessed so that the lavatory 
does not overlap the required clear floor space at the water closet). 
The 1991 Standards contain no exception for grab bar length, and require 
the water closet centerline to be exactly 18 inches from the side wall, 
while the 2010 Standards requirement allows the centerline to be between 
16 and 18 inches from the side wall in wheelchair accessible toilet 
compartments and 17 to 19 inches in ambulatory accessible toilet 
compartments.
    Water Closet Clearance. Section 604.3 of the 2010 Standards 
represents a change in the accessibility requirements where a lavatory 
is installed adjacent to the water closet. The 1991 Standards allow the 
nearest side of a lavatory to be placed 18 inches minimum from the water 
closet centerline and 36 inches minimum from the side wall adjacent to 
the water closet. However, locating the lavatory so close to the water 
closet prohibits many individuals with disabilities from using a side 
transfer. To allow greater transfer options, including side transfers, 
the 2010 Standards prohibit lavatories from overlapping the clear floor 
space at water closets, except in covered residential dwelling units.

[[Page 887]]

    A majority of commenters, including persons who use wheelchairs, 
strongly agreed with the requirement to provide enough space for a side 
transfer. These commenters believed that the requirement will increase 
the usability of accessible single-user toilet rooms by making side 
transfers possible for many individuals who use wheelchairs and would 
have been unable to transfer to a water closet using a side transfer 
even if the water closet complied with the 1991 Standards. In addition, 
many commenters noted that the additional clear floor space at the side 
of the water closet is also critical for those providing assistance with 
transfers and personal care for persons with disabilities. Numerous 
comments noted that this requirement is already included in other model 
accessibility standards and many state and local building codes and its 
adoption in the 2010 Standards is a important part of harmonization 
efforts. The Department agrees that the provision of enough clear floor 
space to permit side transfers at water closets is an important feature 
that must be provided to ensure access for persons with disabilities in 
toilet and bathing facilities. Furthermore, the adoption of this 
requirement closely harmonizes with the model codes and many state and 
local building codes.
    Other commenters urged the Department not to adopt section 604.3 of 
the 2010 Standards claiming that it will require single-user toilet 
rooms to be two feet wider than the 1991 Standards require, and this 
additional requirement will be difficult to meet. Multiple commentators 
also expressed concern that the size of single-user toilet rooms would 
be increased but they did not specify how much larger such toilet rooms 
would have to be in their estimation. In response to these concerns, the 
Department developed a series of single-user toilet room floor plans 
demonstrating that the total square footage between representative 
layouts complying with the 1991 Standards and the 2010 Standards are 
comparable. The Department believes the floor plan comparisons clearly 
show that size differences between the two Standards are not substantial 
and several of the 2010 Standards-compliant plans do not require 
additional square footage compared to the 1991 Standards plans. These 
single-user toilet room floor plans are shown below.
    Several commenters concluded that alterations of single-user toilet 
rooms should be exempt from the requirements of section 604.3 of the 
2010 Standards because of the significant reconfiguration and 
reconstruction that would be required, such as moving plumbing fixtures, 
walls, and/or doors at significant additional expense. The Department 
disagrees with this conclusion since it fails to take into account 
several key points. The 2010 Standards contain provisions for in-
swinging doors, 603.2.3, Exception 2, and recessed fixtures adjacent to 
water closets, 604.5.2, Exception 1. These provisions give flexibility 
to create more compact room designs and maintain required clearances 
around fixtures. As with the 1991 Standards, any alterations must comply 
to the extent that it is technically feasible to do so.
    The requirements at section 604.3.2 of the 2010 Standards specify 
how required clearance around the water closet can overlap with specific 
elements and spaces. An exception that applies only to covered 
residential dwelling units permits a lavatory to be located no closer 
than 18 inches from the centerline of the water closet. The requirements 
at section 604.3.2 of the 2010 Standards increase accessibility for 
individuals with disabilities. One commenter expressed concern about 
other items that might overlap the clear floor space, such as 
dispensers, shelves, and coat hooks on the side of the water closet 
where a wheelchair would be positioned for a transfer. Section 604.3.2 
of the 2010 Standards allows items such as associated grab bars, 
dispensers, sanitary napkin disposal units, coat hooks, and shelves to 
overlap the clear floor space. These are items that typically do not 
affect the usability of the clear floor space.
    Toilet Room Doors. Sections 4.22.2 and 4.22.3 of the 1991 Standards 
and Section 603.2.3 of the 2010 Standards permit the doors of all toilet 
or bathing rooms with in-swinging doors to swing into the required 
turning space, but not into the clear floor space required at any 
fixture. In single-user toilet rooms or bathing rooms, Section 603.2.3 
Exception 2 of the 2010 Standards permits the door to swing into the 
clear floor space of an accessible fixture if a clear floor space that 
measures at least 30 inches by 48 inches is provided outside of the door 
swing.
    Several commenters expressed reservations about Exception 2 of 
Section 603.2.3. Concerns were raised that permitting doors of single-
user toilet or bathing rooms with in-swinging doors to swing into the 
clearance around any fixture will result in inaccessibility to 
individuals using larger wheelchairs and scooters. Additionally, a 
commenter stated that the exception would require an unacceptable amount 
of precision maneuvering by individuals who use standard size 
wheelchairs. The Department believes that this provision achieves 
necessary flexibility while providing a minimum standard for maneuvering 
space. The standard does permit additional maneuvering space to be 
provided, if needed.
    In the NPRM, the Department provided a series of plan drawings 
illustrating comparisons of the minimum size single-user toilet rooms. 
These floor plans showed typical examples that met the minimum 
requirements of the proposed ADA Standards. A commenter was of the 
opinion that the single-user toilet plans shown in the NPRM demonstrated 
that the new requirements will not

[[Page 888]]

result in a substantial increase in room size. Several other commenters 
representing industry offered criticisms of the single-user toilet floor 
plans to support their assertion that a 2010 Standards-compliant single-
user toilet room will never be smaller and will likely be larger than 
such a toilet room required under the 1991 Standards. Commenters also 
asserted that the floor plans prepared by the Department were of a very 
basic design which could be accommodated in a minimal sized space 
whereas the types of facilities their customers demand would require 
additional space to be added to the rooms shown in the floor plans. The 
Department recognizes that there are many design choices that can affect 
the size of a room or space. Choices to install additional features may 
result in more space being needed to provide sufficient clear floor 
space for that additional feature to comply. However, many facilities 
that have these extra features also tend to have ample space to meet 
accessibility requirements. Other commenters asserted that public 
single-user toilet rooms always include a closer and a latch on the 
entry door, requiring a larger clear floor space than shown on the push 
side of the door shown in Plan 1B. The Department acknowledges that in 
instances where a latch is provided and a closer is required by other 
regulations or codes, the minimum size of a room with an out-swinging 
door may be slightly larger than as shown in Plan 1C.
    Additional floor plans of single-user toilet rooms are now included 
in further response to the commentary received.

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    Toilet Paper Dispensers. The provisions for toilet paper dispensers 
at section 604.7 of the 2010 Standards require the dispenser to be 
located seven inches minimum and nine inches maximum in front of the 
water closet measured to the centerline of the dispenser. The paper 
outlet of the dispenser must be located 15 inches minimum and 48 inches 
maximum above the finish floor. In the 1991 Standards the location of 
the toilet paper dispenser is determined by the centerline and forward 
edge of the dispenser. In the 2010 Standards

[[Page 896]]

the mounting location of the toilet paper dispenser is determined by the 
centerline of the dispenser and the location of the outlet for the 
toilet paper.
    One commenter discussed the difficulty of using large roll toilet 
paper dispensers and dispensers with two standard size rolls stacked on 
top of each other. The size of the large dispensers can block access to 
the grab bar and the outlet for the toilet paper can be too low or too 
high to be usable. Some dispensers also control the delivery of the 
toilet paper which can make it impossible to get the toilet paper. 
Toilet paper dispensers that control delivery or do not allow continuous 
paper flow are not permitted by the 1991 Standards or the 2010 
Standards. Also, many of the large roll toilet paper dispensers do not 
comply with the 2010 Standards since their large size does not allow 
them to be mounted 12 inches above or 1\1/2\ inches below the side grab 
bar as required by section 609.3.
    Shower Spray Controls. In accessible bathtubs and shower 
compartments, sections 607.6 and 608.6 of the 2010 Standards require 
shower spray controls to have an on/off control and to deliver water 
that is 120  deg.F (49  deg.C) maximum. Neither feature was required by 
the 1991 Standards, but may be required by plumbing codes. Delivering 
water that is no hotter than 120  deg.F (49  deg.C) will require 
controlling the maximum temperature at each accessible shower spray 
unit.
    Shower Compartments. The 1991 Standards at sections 4.21 and 9.1.2 
and the 2010 Standards at section 608 contain technical requirements for 
transfer-type and roll-in shower compartments. The 2010 Standards 
provide more flexibility than the 1991 Standards as follows:
      Transfer-type showers are exactly 36 inches wide by 36 
inches long.
      The 1991 Standards and the 2010 Standards permit a \1/2\-
inch maximum curb in transfer-type showers. The 2010 Standards add a new 
exception that permits a 2-inch maximum curb in transfer-type showers in 
alterations to existing facilities, where recessing the compartment to 
achieve a \1/2\-inch curb will disturb the structural reinforcement of 
the floor slab.
      Roll-in showers are 30 inches wide minimum by 60 inches 
long minimum. Alternate roll-in showers are 36 inches wide by 60 inches 
long minimum, and have a 36-inch minimum wide opening on the long side 
of the compartment. The 1991 Standards require alternate roll-in showers 
in a portion of accessible transient lodging guest rooms, but provision 
of this shower type in other facilities is generally permitted as an 
equivalent facilitation. The 1991 Standards require a seat to be 
provided adjacent to the opening; and require the controls to be located 
on the side adjacent to the seat. The 2010 Standards permit alternate 
roll-in showers to be used in any facility, only require a seat in 
transient lodging guest rooms, and allow location of controls on the 
back wall opposite the seat as an alternative.
    Commenters raised concerns that adding a new exception that permits 
a 2-inch maximum curb in transfer-type showers in alterations to 
existing facilities, where recessing the compartment to achieve a \1/2\-
inch curb will disturb the structural reinforcement of the floor slab, 
will impair the ability of individuals with disabilities to use 
transfer-type showers.
    The exception in section 608.7 of the 2010 Standards permitting a 2-
inch maximum curb in transfer-type showers is allowed only in existing 
facilities where provision of a \1/2\-inch high threshold would disturb 
the structural reinforcement of the floor slab. Whenever this exception 
is used the least high threshold that can be used should be provided, up 
to a maximum height of 2 inches. This exception is intended to provide 
some flexibility where the existing structure precludes full compliance.
    Toilet and Bathing Rooms. Section 213 of the 2010 Standards sets out 
the scoping requirements for toilet and bathing rooms.
    Commenters recommended that section 213, Toilet Facilities and 
Bathing Facilities, of the 2010 Standards include requirements that 
unisex toilet and bathing rooms be provided in certain facilities. These 
commenters suggested that unisex toilet and bathing rooms are most 
useful as companion care facilities.
    Model plumbing and building codes require single-user (unisex or 
family) toilet facilities in certain occupancies, primarily assembly 
facilities, covered malls, and transportation facilities. These types of 
toilet rooms provide flexibility for persons needing privacy so that 
they can obtain assistance from family members or persons of the 
opposite sex. When these facilities are provided, both the 1991 
Standards and 2010 Standards require that they be accessible. The 2010 
Standards do not scope unisex toilet facilities because plumbing codes 
generally determine the number and type of plumbing fixtures to be 
provided in a particular occupancy and often determine whether an 
occupancy must provide separate sex facilities in addition to single-
user facilities. However, the scoping at section 213.2.1 of the 2010 
Standards coordinates with model plumbing and building code requirements 
which will permit a small toilet room with two water closets or one 
water closet and one urinal to be considered a single-user toilet room 
provided that the room has a privacy latch. In this way, a person 
needing assistance from a person of the opposite sex can lock the door 
to use the facility while temporarily inconveniencing only one other 
potential user. These provisions strike a reasonable balance and impose 
less impact on covered entities.

[[Page 897]]

    A commenter recommended that in shower compartments rectangular 
seats as provided in section 610.3.1 of the 2010 Standards should not be 
permitted as a substitute for L-shaped seats as provided in 610.3.2.
    The 2010 Standards do not indicate a preference for either 
rectangular or L-shaped seats in shower compartments. L-shaped seats in 
transfer and certain roll-in showers have been used for many years to 
provide users with poor balance additional support because they can 
position themselves in the corner while showering.

            214 and 611  Washing Machines and Clothes Dryers

    Sections 214.2 (washing machines) and 214.3 (clothes dryers) of the 
2010 Standards specify the number of each type of these machines 
required to be accessible (one to two depending upon the total number of 
machines provided) and section 611 specifies the technical requirements. 
An exception will permit the maximum height for the tops of these 
machines to be 2 inches higher than the general requirement for maximum 
high reach over an obstruction.
    A commenter objected to the scoping provision for accessible washing 
machines and clothes dryers stating that the probability is low that 
more than one accessible machine would be needed at the same time in the 
laundry facility of a place of transient lodging.
    The scoping in this provision is based on the relative size of the 
facility. The Department assumes that the size of the facility (and, 
therefore, the number of accessible machines provided) will be 
determined by the covered entity's assessment of the demand for laundry 
facilities. The Department declines to assume that persons with 
disabilities will have less use for accessible facilities in transient 
lodging than in other public accommodations.

                           216 and 703  Signs

    The following types of signs, though they are not specifically 
subject to the 1991 Standards requirement for signs, will now be 
explicitly exempted by sections 216 and 703 of the 2010 Standards. These 
types of signs include: seat and row designations in assembly areas; 
occupant names, building addresses; company names and logos; signs in 
parking facilities (except those identifying accessible parking spaces 
and means of egress); and exterior signs identifying permanent rooms and 
spaces that are not located at the door to the space they serve. This 
requirement also clarifies that the exception for temporary signs 
applies to signs used for seven days or less.
    The 2010 Standards retain the option to provide one sign where both 
visual and tactile characters are provided or two signs, one with 
visual, and one with tactile characters.

                         217 and 704  Telephones

    Drive-up Public Telephones. Where public telephones are provided, 
the 1991 Standards, at section 4.1.3(17)(a), and section 217.2 of the 
2010 Standards, require a certain number of telephones to be wheelchair 
accessible. The 2010 Standards add a new exception that exempts drive-up 
public telephones.
    Text Telephones (TTY). Section 4.1.3(17) of the 1991 Standards 
requires a public TTY to be provided if there are four or more public 
pay telephones at a site and at least one is in an interior location. 
Section 217.4.2 of the 2010 Standards requires that a building or 
facility provide a public TTY on each floor that has four or more public 
telephones, and in each telephone bank that has four or more telephones. 
Additionally, section 217.4.4 of the 2010 Standards requires that at 
least one public TTY be installed where four or more public pay 
telephones are provided on an exterior site. Section 217.4.5 of the 2010 
Standards also requires that a public TTY be provided where at least one 
public pay telephone is provided at a public rest stop, emergency 
roadside stop, or service plaza. Section 217.4.6 of the 2010 Standards 
also requires that a public TTY be provided at each location where at 
least one public pay telephone is provided serving a hospital emergency 
room, a hospital recovery room, or a hospital waiting room. Section 
217.4.7 of the 2010 Standards also requires that, in addition to the 
requirements for a public TTY to be provided at each location where at 
least four or more public pay telephones are provided at a bank of pay 
telephones and where at least one public pay telephone is provided on a 
floor or in a public building, where at least one public pay telephone 
serves a particular entrance to a bus or rail facility at least one 
public TTY must serve that entrance. In airports, in addition to the 
requirements for the provision of a public TTY at phone banks, on 
floors, and in public buildings with pay phones, where four or more 
public pay phones are located in a terminal outside the security areas, 
in a concourse within the security areas, or a baggage claim area in a 
terminal at least one public TTY must be provided. Section 217.4.8 of 
the 2010 Standards also requires that a TTY be provided in at least one 
secured area where at least one pay telephone is provided in a secured 
area used only by detainees or inmates and security personnel in 
detention and correctional facilities.

                    Wheelchair Accessible Telephones

    Section 217.2 of the 2010 Standards requires that where public 
telephones are provided wheelchair accessible telephones complying

[[Page 898]]

with section 704.2 must be provided in accordance with Table 217.2.
    A commenter stated that requiring installation of telephones within 
the proposed reach range requirements would adversely impact public and 
telephone owners and operators. According to the commenter, individuals 
without disabilities will not use telephones that are installed within 
the reach range requirements because they may be inconvenienced by 
having to stoop to operate these telephones, and, therefore, owners and 
operators will lose revenue due to less use of public telephones.
    This comment misunderstands the scoping requirements for wheelchair 
accessible telephones. Section 217.2 of the 2010 Standards provides that 
where one or more single units are provided, only one unit per floor, 
level, or exterior site is required to be wheelchair accessible. 
However, where banks of telephones are provided, only one telephone in 
each bank is required to be wheelchair accessible. The Department 
believes these scoping requirements for wheelchair accessible telephones 
are reasonable and will not result in burdensome obligations or lost 
revenue for owners and operators.

                 218 and 810  Transportation Facilities

    Detectable Warnings. Detectable warnings provide a distinctively 
textured surface of truncated domes. The 1991 Standards at sections 
4.1.3(15), 4.7.7, 4.29.2, 4.29.5, 4.29.6, and 10.3.1(8) require 
detectable warnings at curb ramps, hazardous vehicular areas, reflecting 
pools, and transit platform edges. The 2010 Standards at sections 218, 
810.5, 705.1, and 705.2 only require detectable warnings at transit 
platform edges. The technical specifications for the diameter and 
spacing of the truncated domes have also been changed. The 2010 
Standards also delete the requirement for the material used to contrast 
in resiliency or sound-on-cane contact from adjoining walking surfaces 
at interior locations.
    The 2010 Standards apply to detectable warnings on developed sites. 
They do not apply to the public right-of-way. Scoping for detectable 
warnings at all locations other than transit platform edges has been 
eliminated from the 2010 Standards. However, because detectable warnings 
have been shown to significantly benefit individuals with disabilities 
at transit platform edges, the 2010 Standards provide scoping and 
technical requirements for detectable warnings at transit platform 
edges.

                219 and 706  Assistive Listening Systems

    Signs. Section 216.10 of the 2010 Standards requires each covered 
assembly area to provide signs at each auditorium to inform patrons that 
assistive listening systems are available. However, an exception to this 
requirement permits assembly areas that have ticket offices or ticket 
windows to display the required signs at the ticket window.
    A commenter recommended eliminating the exception at 216.10 because, 
for example, people who buy tickets through the mail, by subscription, 
or on-line may not need to stop at a ticket office or window upon 
arrival at the assembly area. The Department believes that an 
individual's decision to purchase tickets before arriving at a 
performance does not limit the discretion of the assembly operator to 
use the ticket window to provide other services to its patrons. The 
Department retained the exception at 216.10 to permit the venue operator 
some flexibility in determining how to meet the needs of its patrons.
    Audible Communication. The 1991 Standards, at section 4.1.3(19)(b), 
require assembly areas, where audible communication is integral to the 
use of the space, to provide an assistive listening system if they have 
an audio amplification system or an occupant load of 50 or more people 
and have fixed seating. The 2010 Standards at section 219 require 
assistive listening systems in spaces where communication is integral to 
the space and audio amplification is provided and in courtrooms.
    The 1991 Standards require receivers to be provided for at least 
four percent (4%) of the total number of fixed seats. The 2010 
Standards, at section 219.3, revise the percentage of receivers required 
according to a table that correlates the required number of receivers to 
the seating capacity of the facility. Small facilities will continue to 
provide receivers for four percent (4%) of the seats. The required 
percentage declines as the size of the facility increases. The changes 
also require at least twenty-five percent (25%), but no fewer than two, 
of the receivers to be hearing-aid compatible. Assembly areas served by 
an induction loop assistive listening system will not have to provide 
hearing-aid compatible receivers.
    Commenters were divided in their opinion of this change. The 
Department believes that the reduction in the required number of 
assistive listening systems for larger assembly areas will meet the 
needs of individuals with disabilities. The new requirement to provide 
hearing-aid compatible receivers should make assistive listening systems 
more usable for people who have been underserved until now.
    Concerns were raised that the requirement to provide assistive 
listening systems may have an adverse impact on restaurants. This 
comment misunderstands the scope of coverage. The 2010 Standards define 
the term ``assembly area'' to include facilities used for entertainment, 
educational, or civic gatherings. A restaurant would fall within

[[Page 899]]

this category only if it is presenting programs to educate or entertain 
diners, and it provides an audio amplification system.
    Same Management or Building. The 2010 Standards add a new exception 
that allows multiple assembly areas that are in the same building and 
under the same management, such as theaters in a multiplex cinema and 
lecture halls in a college building, to calculate the number of 
receivers required based on the total number of seats in all the 
assembly areas, instead of each assembly area separately, where the 
receivers are compatible with the assistive listening systems used in 
each of the assembly areas.
    Mono Jacks, Sound Pressure, Etc. Section 4.33.7 of the 1991 
Standards does not contain specific technical requirements for assistive 
listening systems. The 2010 Standards at section 706 require assistive 
listening systems to have standard mono jacks and will require hearing-
aid compatible receivers to have neck loops to interface with telecoils 
in hearing aids. The 2010 Standards also specify sound pressure level, 
signal-to-noise ratio, and peak clipping level. Currently available 
assistive listening systems typically meet these technical requirements.

        220 and 707  Automatic Teller Machines and Fare Machines

    Section 707 of the 2010 Standards adds specific technical 
requirements for speech output, privacy, tactilely-discernible input 
controls, display screens, and Braille instructions to the general 
accessibility requirements set out in the 1991 Standards. Machines shall 
be speech enabled and exceptions are provided that cover when audible 
tones are permitted, when advertisements or similar information are 
provided, and where speech synthesis cannot be supported. The 1991 
Standards require these machines to be accessible to and independently 
usable by persons with visual impairments, but do not contain any 
technical specifications.

                           221  Assembly Areas

    Wheelchair Spaces/Companion Seats. Owners of large assembly areas 
have historically complained to the Department that the requirement for 
one percent (1%) of seating to be wheelchair seating is excessive and 
that wheelchair seats are not being sold. At the same time, advocates 
have traditionally argued that persons who use wheelchairs will 
increasingly participate in activities at assembly areas once they 
become accessible and that at least one percent (1%) of seats should be 
accessible.
    The 1991 Standards, at sections 4.1.3(19)(a) and 4.33.3, require 
assembly areas to provide wheelchair and companion seats. In assembly 
areas with a capacity of more than five hundred seats, accessible 
seating at a ratio of one percent (1%) (plus one seat) of the number of 
traditional fixed seats must be provided. The 2010 Standards, at section 
221.2, require assembly areas with 501 to 5000 seats to provide at least 
six wheelchair spaces and companion seats plus one additional wheelchair 
space for each additional 150 seats (or fraction thereof) between 501 
through 5000. In assembly areas with more than 5000 seats at least 36 
wheelchair spaces and companion seats plus one additional wheelchair 
space for each 200 seats (or fraction thereof) more than 5000 are 
required. See sections 221.1 and 221.2 of the 2010 Standards.
    Commenters questioned why scoping requirements for large assembly 
areas are being reduced. During the development of the 2004 ADAAG, 
industry providers, particularly those representing larger stadium-style 
assembly areas, supplied data to the Access Board demonstrating the 
current scoping requirements for large assembly areas often exceed the 
demand. Based on the data provided to the Access Board, the Department 
believes the reduced scoping requirements will adequately meet the needs 
of individuals with disabilities, while balancing concerns of the 
industry.
    Commenters representing assembly areas supported the reduced 
scoping. One commenter asked that scoping requirements for larger 
assembly areas be reduced even further. Although the commenter 
referenced data demonstrating that wheelchair spaces in larger 
facilities with seating capacities of 70,000 or more may not be used by 
individuals with disabilities, the data was not based on actual results, 
but was calculated at least in part based on probability assumptions. 
The Department is not convinced that further reductions should be made 
based upon those projections and that further reductions would not 
substantially limit accessibility at assembly areas for persons who use 
wheelchairs.
    Section 221.2.1.3 of the 2010 Standards clarifies that the scoping 
requirements for wheelchair spaces and companion seats are to be applied 
separately to general seating areas and to each luxury box, club box, 
and suite in arenas, stadiums, and grandstands. In assembly areas other 
than arenas, stadiums, and grandstands, the scoping requirements will 
not be applied separately. Thus, in performing arts facilities with 
tiered boxes designed for spatial and acoustical purposes, the scoping 
requirement is to be applied to the seats in the tiered boxes. The 
requisite number of wheelchair spaces and companion seats required in 
the tiered boxes are to be dispersed among at least twenty percent (20%) 
of the tiered boxes. For example, if a performing arts facility has 20 
tiered boxes with 10 fixed seats in each box, for a total of 200 seats, 
at least five wheelchair spaces and companion seats must be provided in 
the

[[Page 900]]

boxes, and they must be dispersed among at least four of the 20 boxes.
    Commenters raised concerns that the 2010 Standards should clarify 
requirements for scoping of seating areas and that requiring accessible 
seating in each luxury box, club box, and suite in arenas, stadiums and 
grandstands could result in no wheelchair and companion spaces available 
for individuals with disabilities in the general seating area(s). These 
comments appear to misunderstand the requirements. The 2010 Standards 
require each luxury box, club box, and suite in an arena, stadium or 
grandstand to be accessible and to contain wheelchair spaces and 
companion seats as required by sections 221.2.1.1, 221.2.1.2 and 221.3. 
In addition, the remaining seating areas not located in boxes must also 
contain the number of wheelchair and companion seating locations 
specified in the 2010 Standards based on the total number of seats in 
the entire facility excluding luxury boxes, club boxes and suites.
    Wheelchair Space Overlap in Assembly Areas. Section 4.33.3 of the 
1991 Standards and the 2010 Standards, at sections 402, 403.5.1, 
802.1.4, and 802.1.5, require walkways that are part of an accessible 
route to have a 36-inch minimum clear width. Section 802.1.5 of the 2010 
Standards specifically prohibits accessible routes from overlapping 
wheelchair spaces. This change is consistent with the technical 
requirements for accessible routes, since the clear width of accessible 
routes cannot be obstructed by any object. The 2010 Standards also 
specifically prohibit wheelchair spaces from overlapping circulation 
paths. An advisory note clarifies that this prohibition applies only to 
the circulation path width required by applicable building codes and 
fire and life safety codes since the codes prohibit obstructions in the 
required width of assembly aisles.
    Section 802.1.5 of the 2010 Standards provides that where a main 
circulation path is located in front of a row of seats that contains a 
wheelchair space and the circulation path is wider than required by 
applicable building codes and fire and life safety codes, the wheelchair 
space may overlap the ``extra'' circulation path width. Where a main 
circulation path is located behind a row of seats that contains a 
wheelchair space and the wheelchair space is entered from the rear, the 
aisle in front of the row may need to be wider in order not to block the 
required circulation path to the other seats in the row, or a mid-row 
opening may need to be provided to access the required circulation path 
to the other seats.
    Line of Sight and Dispersion of Wheelchair Spaces in Assembly Areas. 
Section 4.33.3 of the 1991 Standards requires wheelchair spaces and 
companion seats to be an integral part of any fixed seating plan in 
assembly areas and to provide individuals with disabilities a choice of 
admission prices and lines of sight comparable to those available to 
other spectators. Section 4.33.3 also requires wheelchair spaces and 
companion seats to be dispersed in assembly areas with more than 300 
seats. Under the 1991 Standards, sports facilities typically located 
some wheelchair spaces and companion seats on each accessible level of 
the facility. In 1994, the Department issued official guidance 
interpreting the requirement for comparable lines of sight in the 1991 
Standards to mean wheelchair spaces and companion seats in sports stadia 
and arenas must provide patrons with disabilities and their companions 
with lines of sight over standing spectators to the playing field or 
performance area, where spectators were expected to stand during events. 
See ``Accessible Stadiums,'' www.ada.gov/stadium.pdf. The Department 
also interpreted the section 4.33.3 comparable lines of sight 
requirement to mean that wheelchair spaces and companion seats in 
stadium-style movie theaters must provide patrons with disabilities and 
their companions with viewing angles comparable to those provided to 
other spectators.
    Sections 221.2.3 and 802.2 of the 2010 Standards add specific 
technical requirements for providing lines of sight over seated and 
standing spectators and also require wheelchair spaces and companion 
seats (per section 221.3) to provide individuals with disabilities 
choices of seating locations and viewing angles that are substantially 
equivalent to, or better than, the choices of seating locations and 
viewing angles available to other spectators. This applies to all types 
of assembly areas, including stadium-style movie theaters, sports 
arenas, and concert halls. These rules are expected to have minimal 
impact since they are consistent with the Department's longstanding 
interpretation of the 1991 Standards and technical assistance.
    Commenters stated that the qualitative viewing angle language 
contained in section 221.2.3 is not appropriate for an enforceable 
regulatory standard unless the terms of such language are defined. Other 
commenters requested definitions for viewing angles, an explanation for 
precisely how viewing angles are measured, and an explanation for 
precisely how to evaluate whether one viewing angle is better than 
another viewing angle. The Department is convinced that the regulatory 
language in the 2010 Standards is sufficient to provide a performance-
based standard for designers, architects, and other professionals to 
design facilities that provide comparable lines of sight for wheelchair 
seating in assembly areas, including viewing angles. The Department 
believes that as a general rule, the vast variety of sizes and 
configurations in assembly areas requires it

[[Page 901]]

to establish a performance standard for designers to adapt to the 
specific circumstances of the venue that is being designed. The 
Department has implemented more explicit requirements for stadium-style 
movie theaters in 28 CFR 36.406(f) and 35.151(g) of the final 
regulations based on experience and expertise gained after several major 
enforcement actions.
    Another commenter inquired as to what determines whether a choice of 
seating locations or viewing angles is better than that available to all 
other spectators. The answer to this question varies according to each 
assembly area that is being designed, but designers and venue operators 
understand which seats are better and that understanding routinely 
drives design choices made to maximize profit and successful operation 
of the facility, among other things. For example, an ``equivalent or 
better'' line of sight in a major league football stadium would be 
different than for a 350-seat lecture hall. This performance standard is 
based upon the underlying principle of equal opportunity for a good 
viewing experience for everyone, including persons with disabilities. 
The Department believes that for each specific facility that is 
designed, the owner, operator, and design professionals will be able to 
distinguish easily between seating locations and the quality of the 
associated lines of sight from those seating locations in order to 
decide which ones are better than others. The wheelchair locations do 
not have to be exclusively among the seats with the very best lines of 
sight nor may they be exclusively among the seats with the worst lines 
of sight. Rather, wheelchair seating locations should offer a choice of 
viewing experiences and be located among the seats where most of the 
audience chooses to sit.
    Section 4.33.3 of the 1991 Standards requires wheelchair spaces and 
companion seating to be offered at a choice of admission prices, but 
section 221.2.3.2 of the 2010 Standards no longer requires wheelchair 
spaces and companion seats to be dispersed based on admission prices. 
Venue owners and operators commented during the 2004 ADAAG rulemaking 
process that pricing is not always established at the design phase and 
may vary from event to event within the same facility, making it 
difficult to determine where to place wheelchair seats during the design 
and construction phase. Their concern was that a failure by the venue 
owner or operator to provide a choice of ticket prices for wheelchair 
seating as required by the 1991 Standards governing new construction 
could somehow unfairly subject parties involved in the design and 
construction to liability unknowingly.
    Sections 221.2.3.2 and 221.3 of the 2010 Standards require 
wheelchair spaces and companion seats to be vertically dispersed at 
varying distances from the screen, performance area, or playing field. 
The 2010 Standards, at section 221.2.3.2, also require wheelchair spaces 
and companion seats to be located in each balcony or mezzanine served by 
an accessible route. The final regulations at 28 CFR 35.151(g)(1) and 
36.406(f)(1) also require assembly areas to locate wheelchair spaces and 
companion seats at all levels of the facility that include seating and 
that are served by an accessible route. The Department interprets that 
requirement to mean that wheelchair and companion seating must be 
provided in a particular area even if the accessible route may not be 
the same route that other individuals use to reach their seats. For 
example, if other patrons reach their seats on the field by an 
inaccessible route (e.g., by stairs), but there is an accessible route 
that complies with section 206.3 that could be connected to seats on the 
field, accessible seats must be placed on the field even if that route 
is not generally available to the public. The 2010 Standards, at section 
221.2.3.2, provide an exception for vertical dispersion in assembly 
areas with 300 or fewer seats if the wheelchair spaces and companion 
seats provide viewing angles that are equivalent to, or better than, the 
average viewing angle provided in the facility.
    Section 221.3 of the 2010 Standards requires wheelchair spaces and 
companion seats to be dispersed horizontally. In addition, 28 CFR 
35.151(g)(2) and 36.406(f)(2) require assembly areas that have seating 
around the field of play or performance area to place wheelchair spaces 
and companion seating all around that field of play or performance area.

                      Stadium-Style Movie Theaters

    Pursuant to 28 CFR 35.151(g) and 36.406(f), in addition to other 
obligations, stadium-style movie theaters must meet horizontal and 
vertical dispersion requirements set forth in sections 221.2.3.1 and 
221.2.3.2 of the 2010 Standards; placement of wheelchair and companion 
seating must be on a riser or cross-aisle in the stadium section of the 
theater; and placement of such seating must satisfy at least one of the 
following criteria: (i) It is located within the rear sixty percent 
(60%) of the seats provided in the auditorium; or (ii) it is located 
within the area of the auditorium where the vertical viewing angles are 
between the 40th and 100th percentile of vertical viewing angles for all 
seats in that theater as ranked from the first row (1st percentile) to 
the back row (100th percentile). The line-of-sight requirements 
recognize the importance to the movie-going experience of viewing 
angles, and the final regulations ensure that movie patrons with 
disabilities are provided views of the movie screen comparable to other 
theater patrons. Some commenters supported regulatory language that 
would require stadium-style theaters to meet standards of accessibility 
equal

[[Page 902]]

to those of non-stadium-style theaters, with larger theaters being 
required to provide accessible seating locations and viewing angles 
equal to those offered to individuals without disabilities.
    One commenter noted that stadium-style movie theaters, sports 
arenas, music venues, theaters, and concert halls each pose unique 
conditions that require separate and specific standards to accommodate 
patrons with disabilities, and recommended that the Department provide 
more specific requirements for sports arenas, music venues, theaters, 
and concert halls. The Department has concluded that the 2010 Standards 
will provide sufficient flexibility to adapt to the wide variety of 
assembly venues covered.
    Companion Seats. Section 4.33.3 of the 1991 Standards required at 
least one fixed companion seat to be provided next to each wheelchair 
space. The 2010 Standards at sections 221.3 and 802.3 permit companion 
seats to be movable. Several commenters urged the Department to ensure 
that companion seats are positioned in a manner that places the user at 
the same shoulder height as their companions using mobility devices. The 
Department recognizes that some facilities have created problems by 
locating the wheelchair space and companion seat on different floor 
elevations (often a difference of one riser height). Section 802.3.1 of 
the 2010 Standards addresses this problem by requiring the wheelchair 
space and the companion seat to be on the same floor elevation. This 
solution should prevent any vertical discrepancies that are not the 
direct result of differences in the sizes and configurations of 
wheelchairs.
    Designated Aisle Seats. Section 4.1.3(19)(a) of the 1991 Standards 
requires one percent (1%) of fixed seats in assembly areas to be 
designated aisle seats with either no armrests or folding or retractable 
armrests on the aisle side of the seat. The 2010 Standards, at sections 
221.4 and 802.4, base the number of required designated aisle seats on 
the total number of aisle seats, instead of on all of the seats in an 
assembly area as the 1991 Standards require. At least five percent (5%) 
of the aisle seats are required to be designated aisle seats and to be 
located closest to accessible routes. This option will almost always 
result in fewer aisle seats being designated aisle seats compared to the 
1991 Standards. The Department is aware that sports facilities typically 
locate designated aisle seats on, or as near to, accessible routes as 
permitted by the configuration of the facility.
    One commenter recommended that section 221.4, Designated Aisle 
Seats, be changed to require that aisle seats be on an accessible route, 
and be integrated and dispersed throughout an assembly area. Aisle 
seats, by their nature, typically are located within the general seating 
area, and integration occurs almost automatically. The issue of 
dispersing aisle seats or locating them on accessible routes is much 
more challenging. During the separate rulemaking on the 2004 ADAAG the 
Access Board specifically requested public comment on the question of 
whether aisle seats should be required to be located on accessible 
routes. After reviewing the comments submitted during the 2004 Access 
Board rulemaking, the Access Board concluded that this could not be done 
without making significant and costly changes in the design of most 
assembly areas. However, section 221.4 of the 2004 ADAAG required that 
designated aisle seats be the aisle seats closest to accessible routes. 
The Department proposed the same provision and concurs in the Access 
Board's conclusion and declines to implement further changes.
    Team or Player Seating Areas. Section 221.2.1.4 of the 2010 
Standards requires that at least one wheelchair space compliant with 
section 802.1 be provided in each team or player seating area serving 
areas of sport activity. For bowling lanes, the requirement for a 
wheelchair space in player seating areas is limited to lanes required to 
be accessible.
    Lawn Seating. The 1991 Standards, at section 4.1.1(1), require all 
areas of newly constructed facilities to be accessible, but do not 
contain a specific scoping requirement for lawn seating in assembly 
areas. The 2010 Standards, at section 221.5, specifically require lawn 
seating areas and exterior overflow seating areas without fixed seats to 
connect to an accessible route.
    Aisle Stairs and Ramps in Assembly Areas. Sections 4.1.3 and 
4.1.3(4) of the 1991 Standards require that interior and exterior stairs 
connecting levels that are not connected by an elevator, ramp, or other 
accessible means of vertical access must comply with the technical 
requirements for stairs set out in section 4.9 of the 1991 Standards. 
Section 210.1 of the 2010 Standards requires that stairs that are part 
of a means of egress shall comply with section 504's technical 
requirements for stairs. The 1991 Standards do not contain any 
exceptions for aisle stairs in assembly areas. Section 210.1, Exception 
3 of the 2010 Standards adds a new exception that exempts aisle stairs 
in assembly areas from section 504's technical requirements for stairs, 
including section 505's technical requirements for handrails.
    Section 4.8.5 of the 1991 Standards exempts aisle ramps that are 
part of an accessible route from providing handrails on the side 
adjacent to seating. The 2010 Standards, at section 405.1, exempt aisle 
ramps adjacent to seating in assembly areas and not serving elements 
required to be on an accessible route, from complying with all of 
section 405's technical requirements for ramps. Where aisle ramps in 
assembly areas serve elements required to be on an accessible route, the 
2010 Standards require that the

[[Page 903]]

aisle ramps comply with section 405's technical requirements for ramps. 
Sections 505.2 and 505.3 of the 2010 Standards provide exceptions for 
aisle ramp handrails. Section 505.2 states that in assembly areas, a 
handrail may be provided at either side or within the aisle width when 
handrails are not provided on both sides of aisle ramps. Section 505.3 
states that, in assembly areas, handrails need not be continuous in 
aisles serving seating.

            222 and 803  Dressing, Fitting, and Locker Rooms

    Dressing rooms, fitting rooms, and locker rooms are required to 
comply with the accessibility requirements of sections 222 and 803 of 
the 2010 Standards. Where these types of rooms are provided in clusters, 
five percent (5%) but at least one room in each cluster must comply. 
Some commenters stated that clothing and retail stores would have to 
expand and reconfigure accessible dressing, fitting and locker rooms to 
meet the changed provision for clear floor space alongside the end of 
the bench. Commenters explained that meeting the new requirement would 
result in a loss of sales and inventory space. Other commenters also 
expressed opposition to the changed requirement in locker rooms for 
similar reasons.
    The Department reminds the commenters that the requirements in the 
2010 Standards for the clear floor space to be beside the short axis of 
the bench in an accessible dressing, fitting, or locker room apply only 
to new construction and alterations. The requirements for alterations in 
the 2010 Standards at section 202.3 do not include the requirement from 
the 1991 Standards at section 4.1.6(1)(c) that if alterations to single 
elements, when considered together, amount to an alteration of a room or 
space in a building or facility, the entire space shall be made 
accessible. Therefore, under the 2010 Standards, the alteration 
requirements only apply to specific elements or spaces that are being 
altered. So providing the clear floor space at the end of the bench as 
required by the 2010 Standards instead of in front of the bench as is 
allowed by the 1991 Standards would only be required when the bench in 
the accessible dressing room is altered or when the entire dressing room 
area is altered.

               224 and 806  Transient Lodging Guest Rooms

    Scoping. The minimum number of guest rooms required to be accessible 
in transient lodging facilities is covered by section 224 of the 2010 
Standards. Scoping requirements for guest rooms with mobility features 
and guest rooms with communication features are addressed at section 
224.2 and section 224.4, respectively. Under the 1991 Standards all 
newly constructed guest rooms with mobility features must provide 
communication features. Under the 2010 Standards, in section 224.5, at 
least one guest room with mobility features must also provide 
communication features. Additionally, not more than ten percent (10%) of 
the guest rooms required to provide mobility features and also equipped 
with communication features can be used to satisfy the minimum number of 
guest rooms required to provide communication features.
    Some commenters opposed requirements for guest rooms accessible to 
individuals with mobility disabilities stating that statistics provided 
by the industry demonstrate that all types of accessible guest rooms are 
unused. They further claimed that the requirements of the 2010 Standards 
are too burdensome to meet in new construction, and that the 
requirements will result in a loss of living space in places of 
transient lodging. Other commenters urged the Department to increase the 
number of guest rooms required to be accessible. The number of guest 
rooms accessible to individuals with mobility disabilities and the 
number accessible to persons who are deaf or who are hard of hearing in 
the 2010 Standards are consistent with the 1991 Standards and with the 
IBC. The Department continues to receive complaints about the lack of 
accessible guest rooms throughout the country. Accessible guest rooms 
are used not only by individuals using mobility devices such as 
wheelchairs and scooters, but also by individuals with other mobility 
disabilities including persons who use walkers, crutches, or canes.
    Data provided by the Disability Statistics Center at the University 
of California, San Francisco demonstrated that the number of adults who 
use wheelchairs has been increasing at the rate of six percent (6%) per 
year from 1969 to 1999; and by 2010, it was projected that two percent 
(2%) of the adult population would use wheelchairs. In addition to 
persons who use wheelchairs, three percent (3%) of adults used crutches, 
canes, walkers, and other mobility devices in 1999; and the number was 
projected to increase to four percent (4%) by 2010. Thus, in 2010, up to 
six percent (6%) of the population may need accessible guest rooms.
    Dispersion. The 2010 Standards, in section 224.5, set scoping 
requirements for dispersion in facilities covered by the transient 
lodging provisions. This section covers guest rooms with mobility 
features and guest rooms with communication features and applies in new 
construction and alterations. The primary requirement is to provide 
choices of types of guest rooms, number of beds, and other amenities 
comparable to the choices provided to other guests. An advisory in 
section 224.5 provides guidance that ``factors to be considered in 
providing an equivalent range of options may include, but are not 
limited to, room size, bed size, cost, view, bathroom fixtures such as 
hot tubs and spas, smoking

[[Page 904]]

and nonsmoking, and the number of rooms provided.''
    Commenters asked the Department to clarify what is meant by various 
terms used in section 224.5 such as ``classes,'' ``types,'' ``options,'' 
and ``amenities.'' Other commenters asked the Department to clarify and 
simplify the dispersion requirements set forth in section 224.5 of the 
2010 Standards, in particular the scope of the term ``amenities.'' One 
commenter expressed concern that views, if considered an amenity, would 
further complicate room categories and force owners and operators to 
make an educated guess. Other commenters stated that views should only 
be a dispersion criteria if view is a factor for pricing room rates.
    These terms are not to be considered terms of art, but should be 
used as in their normal course. For example, ``class'' is defined by 
Webster's Dictionary as ``a division by quality.'' ``Type'' is defined 
as ``a group of * * * things that share common traits or characteristics 
distinguishing them as an identifiable group or class.'' Accordingly, 
these terms are not intended to convey different concepts, but are used 
as synonyms. In the 2010 Standards, section 224.5 and its advisory 
require dispersion in such a varied range of hotels and lodging 
facilities that the Department believes that the chosen terms are 
appropriate to convey what is intended. Dispersion required by this 
section is not ``one size fits all'' and it is imperative that each 
covered entity consider its individual circumstance as it applies this 
requirement. For example, a facility would consider view as an amenity 
if some rooms faced mountains, a beach, a lake, or other scenery that 
was considered to be a premium. A facility where view was not marketed 
or requested by guests would not factor the view as an amenity for 
purposes of meeting the dispersion requirement.
    Section 224.5 of the 2010 Standards requires that guest rooms with 
mobility features and guest rooms with communication features ``shall be 
dispersed among the various classes of guest rooms, and shall provide 
choices of types of guest rooms, number of beds, and other amenities 
comparable to the choices provided to other guests. When the minimum 
number of guest rooms required is not sufficient to allow for complete 
dispersion, guest rooms shall be dispersed in the following priority: 
guest room type, number of beds and amenities.''
    This general dispersion requirement is intended to effectuate 
Congress' directive that a percentage of each class of hotel rooms is to 
be fully accessible to persons with disabilities. See H.R. Rep. No. 101-
485 (II) at 391. Accordingly, the promise of the ADA in this instance is 
that persons with disabilities will have an equal opportunity to benefit 
from the various options available to hotel guests without disabilities, 
from single occupancy guest rooms with limited features (and 
accompanying limited price tags) to luxury suites with lavish features 
and choices. The inclusion of section 224.5 of the 2010 Standards is not 
new. Substantially similar language is contained in section 9.1.4 of the 
1991 Standards.
    Commenters raised concerns that the factors included in the advisory 
to section 224.5 of the 2010 Standards have been expanded. The advisory 
provides: ``[f]actors to be considered in providing an equivalent range 
of options may include, but are not limited to, room size, bed size, 
cost, view, bathroom fixtures such as hot tubs and spas, smoking and 
nonsmoking, and the number of rooms provided.''
    As previously discussed, the advisory materials provided in the 2010 
Standards are meant to be illustrative and do not set out specific 
requirements. In this particular instance, the advisory materials for 
section 224.5 set out some of the common types of amenities found at 
transient lodging facilities, and include common sense concepts such as 
view, bathroom fixtures, and smoking status. The intention of these 
factors is to indicate to the hospitality industry the sorts of 
considerations that the Department, in its enforcement efforts since the 
enactment of the ADA, has considered as amenities that should be made 
available to persons with disabilities, just as they are made available 
to guests without disabilities.
    Commenters offered several suggestions for addressing dispersion. 
One option included the flexibility to use an equivalent facilitation 
option similar to that provided in section 9.1.4(2) of the 1991 
Standards.
    The 2010 Standards eliminated all specific references to equivalent 
facilitation. Since Congress made it clear that each class of hotel room 
is to be available to individuals with disabilities, the Department 
declines to adopt such a specific limitation in favor of the specific 
requirement for new construction and alterations found in section 224.5 
of the 2010 Standards.
    In considering the comments of the hospitality industry from the 
ANPRM and the Department's enforcement efforts in this area, the 
Department sought comment in the NPRM on whether the dispersion 
requirements should be applied proportionally, or whether the 
requirements of section 224.5 of the 2010 Standards would be complied 
with if access to at least one guest room of each type were to be 
provided.
    One commenter expressed concern about requiring different guest room 
types to be proportionally represented in the accessible guest room pool 
as opposed to just having each type represented. Some commenters also 
expressed concern about accessible guest rooms created in pre-1993 
facilities and they requested that such accessible guest rooms be safe 
harbored just as they are safe

[[Page 905]]

harbored under the 1991 Standards. In addition, one commenter requested 
that the proposed dispersion requirements in section 224.5 of the 2010 
Standards not be applied to pre-1993 facilities even when they are 
altered. Some commenters also offered a suggestion for limitations to 
the dispersion requirements as an alternative to safe harboring pre-1993 
facilities. The suggestion included: (1) Guest rooms' interior or 
exterior footprints may remain unchanged in order to meet the dispersion 
requirements; (2) Dispersion should only be required among the types of 
rooms affected by an alteration; and (3) Subject to (1) and (2) above 
and technical feasibility, a facility would need to provide only one 
guest room in each guest room type such as single, double and suites. 
One commenter requested an exception to the dispersion criteria that 
applies to both existing and new multi-story timeshare facilities. This 
requested exception waives dispersion based on views to the extent that 
up to eight units may be vertically stacked in a single location.
    Section 224.1.1 of the 2010 Standards sets scoping requirements for 
alterations to transient lodging guest rooms. The advisory to section 
224.1.1 further explains that compliance with 224.5 is more likely to be 
achieved if all of the accessible guest rooms are not provided in the 
same area of the facility, when accessible guest rooms are added as a 
result of subsequent alterations.
    Some commenters requested a specific exemption for small hotels of 
300 or fewer guest rooms from dispersion regarding smoking rooms. The 
ADA requires that individuals with disabilities be provided with the 
same range of options as persons without disabilities, and, therefore, 
the Department declines to add such an exemption. It is noted, however, 
that the existence of this language in the advisory does not require a 
place of transient lodging that does not offer smoking guest rooms at 
its facility to do so only for individuals with disabilities.
    Guest Rooms with Mobility Features. Scoping provisions for guest 
rooms with mobility features are provided in section 224.2 of the 2010 
Standards. Scoping requirements for alterations are included in 224.1.1. 
These scoping requirements in the 2010 Standards are consistent with the 
1991 Standards.
    One commenter expressed opposition to the new scoping provisions for 
altered guest rooms, which, according to the commenter, require greater 
numbers of accessible guest rooms with mobility features.
    Section 224.1.1 of the 2010 Standards provides scoping requirements 
for alterations to guest rooms in existing facilities. Section 224.1.1 
modifies the scoping requirements for new construction in section 224 by 
limiting the application of section 224 requirements only to those guest 
rooms being altered or added until the number of such accessible guest 
rooms complies with the minimum number required for new construction in 
section 224.2 of the 2010 Standards. The minimum required number of 
accessible guest rooms is based on the total number of guest rooms 
altered or added instead of the total number of guest rooms provided. 
These requirements are consistent with the requirements in the 1991 
Standards. Language in the 2010 Standards clarifies the provision of 
section 104.2 of the 2010 Standards which requires rounding up values to 
the next whole number for calculations of percentages in scoping.
    Guest Rooms with Communication Features. The revisions at section 
224.4 of the 2010 Standards effect no substantive change from the 1991 
Standards with respect to the number of guest rooms required to provide 
communication features. The scoping requirement is consolidated into a 
single table, instead of appearing in three sections as in the 1991 
Standards. The revised provisions also limit the overlap between guest 
rooms required to provide mobility features and guest rooms required to 
provide communication features. Section 224.5 of the 2010 Standards 
requires that at least one guest room providing mobility features must 
also provide communications features. At least one, but not more than 
ten percent (10%), of the guest rooms required to provide mobility 
features can also satisfy the minimum number of guest rooms required to 
provide communication features.
    Commenters suggested that the requirements for scoping and 
dispersion of guest rooms for persons with mobility impairments and 
guest rooms with communication features are too complex for the industry 
to effectively implement.
    The Department believes the requirements for guest rooms with 
communications features in the 2010 Standards clarify the requirements 
necessary to provide equal opportunity for travelers with disabilities. 
Additional technical assistance will be made available to address 
questions before the rule goes into effect.
    Visible Alarms in Guest Rooms with Communication Features. The 1991 
Standards at sections 9.3.1 and 4.28.4 require transient lodging guest 
rooms with communication features to provide either permanently 
installed visible alarms that are connected to the building fire alarm 
system or portable visible alarms that are connected to a standard 110-
volt electrical outlet and are both activated by the building fire alarm 
system and provide a visible alarm when the single station smoke 
detector is activated. Section 215.4 of the 2010 Standards no longer 
includes the portable visible alarm option and instead requires that 
transient lodging guest rooms with communication features be equipped 
with a fire alarm system which includes permanently installed audible 
and visible

[[Page 906]]

alarms in accordance with NFPA 72 National Fire Alarm Code (1999 or 2002 
edition). Such guest rooms with communication features are also required 
by section 806.3.2 of the 2010 Standards to be equipped with visible 
notification devices that alert room occupants of incoming telephone 
calls and a door knock or bell.
    The 2010 Standards add a new exception for alterations to existing 
facilities that exempts existing fire alarm systems from providing 
visible alarms, unless the fire alarm system itself is upgraded or 
replaced, or a new fire alarm system is installed. Transient lodging 
facilities that alter guest rooms are not required to provide 
permanently installed visible alarms complying with the NFPA 72 if the 
existing fire alarm system has not been upgraded or replaced, or a new 
fire alarm system has not been installed.
    Commenters representing small providers of transient lodging raised 
concerns about the proposed changes to prohibit the use of portable 
visible alarms used in transient lodging guest rooms. These commenters 
recommended retaining requirements that allow the use of portable 
visible alarms.
    Persons who are deaf or hard of hearing have reported that portable 
visible alarms used in transient lodging guest rooms are deficient 
because the alarms are not activated by the building fire alarm system, 
and the alarms do not work when the building power source goes out in 
emergencies. The 2010 Standards are consistent with the model building, 
fire, and life safety codes as applied to newly constructed transient 
lodging facilities. One commenter sought confirmation of its 
understanding of visible alarm requirements from the Department. This 
commenter interpreted the exception to section 215.1 of the 2010 
Standards and the Department's commentary to the NPRM to mean that if a 
transient lodging facility does not have permanently installed visible 
alarms in its communication accessible guest rooms, it will not be 
required to provide such alarms until such time that its fire alarm 
system is upgraded or replaced, or a new fire alarm system is installed. 
In addition, this commenter also understood that, if a hotel already has 
permanently installed visible alarms in all of its mobility accessible 
guest rooms, it would not have to relocate such visible alarms and other 
communication features in those rooms to other guest rooms to comply 
with the ten percent (10%) overlap requirement until the alarm system is 
upgraded or replaced.
    This commenter's interpretation and understanding are consistent 
with the Department's position in this matter. Section 215.4 of the 2010 
Standards requires that guest rooms required to have communication 
features be equipped with a fire alarm system complying with section 
702. Communication accessible guest rooms are required to have all of 
the communication features described in section 806.3 of the 2010 
Standards including a fire alarm system which provides both audible and 
visible alarms. The exception to section 215.1 of the 2010 Standards, 
which applies only to fire alarm requirements for guest rooms with 
communication features in existing facilities, exempts the visible alarm 
requirement until such time as the existing fire alarm system is 
upgraded or replaced, or a new fire alarm system is installed. If guest 
rooms in existing facilities are altered and they are required by 
section 224 of the 2010 Standards to have communication features, such 
guest rooms are required by section 806.3 to have all other 
communication features including notification devices.
    Vanity Counter Space. Section 806.2.4.1 of the 2010 Standards 
requires that if vanity countertop space is provided in inaccessible 
transient lodging guest bathrooms, comparable vanity space must be 
provided in accessible transient lodging guest bathrooms.
    A commenter questioned whether in existing facilities vanity 
countertop space may be provided through the addition of a shelf. 
Another commenter found the term ``comparable'' vague and expressed 
concern about confusion the new requirement would cause. This commenter 
suggested that the phrase ``equal area in square inches'' be used 
instead of comparable vanity space.
    In some circumstances, the addition of a shelf in an existing 
facility may be a reasonable way to provide a space for travelers with 
disabilities to use their toiletries and other personal items. However, 
this is a determination that must be made on a case-by-case basis. 
Comparable vanity countertop space need not be one continuous surface 
and need not be exactly the same size as the countertops in comparable 
guest bathrooms. For example, accessible shelving within reach of the 
lavatory could be stacked to provide usable surfaces for toiletries and 
other personal items.
    Shower and Sauna Doors in Transient Lodging Facilities. Section 9.4 
of the 1991 Standards and section 206.5.3 of the 2010 Standards both 
require passage doors in transient lodging guest rooms that do not 
provide mobility features to provide at least 32 inches of clear width. 
Congress directed this requirement to be included so that individuals 
with disabilities could visit guests in other rooms. See H. Rept. 101-
485, pt. 2, at 118 (1990); S. Rept. 101-116, at 70 (1989). Section 
224.1.2 of the 2010 Standards adds a new exception to clarify that 
shower and sauna doors in such inaccessible guest rooms are exempt from 
the requirement for passage doors to provide at least 32 inches of clear 
width. Two commenters requested that saunas and steam rooms in existing 
facilities be exempt from the section 224.1.2 requirement and that the 
requirement be made applicable to new construction only.

[[Page 907]]

    The exemption to the section 224.1.2 requirement for a 32-inch wide 
clearance at doors to shower and saunas applies only to those showers 
and saunas in guest rooms which are not required to have mobility 
features. Showers and saunas in other locations, including those in 
common use areas and guest rooms with mobility features, are required to 
comply with the 32-inch clear width standard as well as other applicable 
accessibility standards. Saunas come in a variety of types: portable, 
pre-built, pre-cut, and custom-made. All saunas except for custom-made 
saunas are made to manufacturers' standard dimensions. The Department is 
aware that creating the required 32-inch clearance at existing narrower 
doorways may not always be technically feasible. However, the Department 
believes that owners and operators will have an opportunity to provide 
the required doorway clearance, unless doing so is technically 
infeasible, when an alteration to an existing sauna is undertaken. 
Therefore, the Department has retained these requirements.
    Platform Lifts in Transient Lodging Guest Rooms and Dwelling Units. 
The 1991 Standards, at section 4.1.3(5), exception 4, and the 2010 
Standards, at sections 206.7 and 206.7.6, both limit the locations where 
platform lifts are permitted to be used as part of an accessible route. 
The 2010 Standards add a new scoping requirement that permits platform 
lifts to be used to connect levels within transient lodging guest rooms 
and dwelling units with mobility features.

                   806  Transient Lodging Guest Rooms

    In the NPRM, the Department included floor plans showing examples of 
accessible guest rooms and bathrooms designs with mobility features to 
illustrate how compliance with the 2010 Standards could be accomplished 
with little or no additional space compared to designs that comply with 
the 1991 Standards.
    Commenters noted that the Department's plans showing accessible 
transient lodging guest rooms compliant with the 2010 Standards were not 
common in the transient lodging industry and also noted that the plans 
omitted doors at sleeping room closets.
    The Department agrees that the configuration of the accessible 
bathrooms is somewhat different from past designs used by the industry, 
but this was done to meet the requirements of the 2010 Standards. The 
plans were provided to show that, with some redesign, the 2010 Standards 
do not normally increase the square footage of an accessible sleeping 
room or bathroom with mobility features in new construction. The 
Department has also modified several accessible guest room plans to show 
that doors can be installed on closets and comply with the 2010 
Standards.
    A commenter stated that the Department's drawings suggest that the 
fan coil units for heat and air conditioning are overhead, while the 
typical sleeping room usually has a vertical unit, or a packaged 
terminal air conditioning unit within the room. The Department's 
drawings are sample plans, showing the layout of the space, relationship 
of elements to each other, and required clear floor and turning spaces. 
It was not the intent of the Department to provide precise locations for 
all elements, including heating and air conditioning units.
    Commenters noted that in guest rooms with two beds, each bed was 
positioned close to a wall, reducing access on one side. Another 
commenter stated that additional housekeeping time is needed to clean 
the room when beds are placed closer to walls. The 2010 Standards 
require that, when two beds are provided, there must be at least 36 
inches of clear space between the beds. The plans provided in the NPRM 
showed two bed arrangements with adequate clear width complying with the 
1991 Standards and the 2010 Standards. Additional space can be provided 
on the other side of the beds to facilitate housekeeping as long as the 
clear floor space between beds is at least 36 inches wide.
    Commenters stated that chases in sleeping room bathrooms that route 
plumbing and other utilities can present challenges when modifying 
existing facilities. In multi-story facilities, relocating or re-routing 
these elements may not be possible, limiting options for providing 
access. The Department recognizes that relocating mechanical chases in 
multi-story facilities may be difficult or impossible to accomplish. 
While these issues do not exist in new facilities, altered existing 
facilities must comply with the 2010 Standards to the extent that it is 
technically feasible to do so. When an alteration cannot fully comply 
because it is technically infeasible to do so, the alteration must still 
be designed to comply to the greatest extent feasible.
    Commenters noted that on some of the Department's plans where a 
vanity is located adjacent to a bathtub, the vanity may require more 
maintenance due to exposure to water. The Department agrees that it 
would be advisable that items placed next to a bathtub or shower be made 
of materials that are not susceptible to water damage.
    Transient Lodging Guest Room Floor Plans and Related Text. The 
Department has included the following floor plans showing application of 
the requirements of the 2010 Standards without significant loss of guest 
room living space in transient lodging compared to the 1991 Standards.

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                          225 and 811  Storage

    Section 225 of the 2010 Standards provides that where storage is 
provided in accessible spaces, at least one of each type shall comply 
with the 2010 Standards. Self-service shelving is required to be on an 
accessible route, but is not required to comply with the reach range 
requirements. These requirements are consistent with the 1991 Standards.
    Section 225.3 adds a new scoping requirement for self-storage 
facilities. Facilities with 200 or fewer storage spaces will be required 
to make at least five percent (5%) of the storage spaces accessible. 
Facilities with more than 200 storage spaces will be required to provide 
ten accessible storage spaces, plus two percent (2%) of the total 
storage spaces over 200.
    Sections 225.2.1 and 811 of the 2010 Standards require lockers to 
meet accessibility requirements. Where lockers are provided in clusters, 
five percent (5%) but at least one locker in each cluster will have to 
comply. Under the 1991 Standards, only one locker of each type provided 
must be accessible.
    Commenters recommended that the Department adopt language requiring 
public accommodations to provide access to all self-service shelves and 
display areas available to

[[Page 920]]

customers. Other commenters opposed this requirement as too burdensome 
to retail and other entities and claimed that significant revenue would 
be lost if this requirement were to be implemented.
    Other commenters raised concerns that section 225.2.2 of the 2010 
Standards scopes only self-service shelving whereas section 4.1.3(12)(b) 
of the 1991 Standards applies to both ``shelves or display units.''
    Although ``display units'' were not included in the 2010 Standards 
under the belief that displays are not to be touched and therefore by 
definition cannot be ``self-service,'' both the 2010 Standards and the 
1991 Standards should be read broadly to apply to all types of shelves, 
racks, hooks, and similar self-service merchandising fittings, including 
self-service display units. Such fixtures are permitted to be installed 
above or below the reach ranges possible for many persons with 
disabilities so that space available for merchandising is used as 
efficiently as possible.

             226 and 902  Dining Surfaces and Work Surfaces

    Section 226.1 of the 2010 Standards require that where dining 
surfaces are provided for the consumption of food or drink, at least 
five percent (5%) of the seating spaces and standing spaces at the 
dining surfaces comply with section 902. Section 902.2 requires the 
provision of accessible knee and toe clearance.
    Commenters stated that basing accessible seating on seating spaces 
and standing spaces potentially represents a significant increase in 
scoping, particularly given the ambiguity in what represents a 
``standing space'' and urged a return to the 1991 Standard of requiring 
accessible seating based on fixed dining tables. The scoping change 
merely takes into account that tables may vary in size so that basing 
the calculation on the number of tables rather than on the number of 
individuals that may be accommodated by the tables could unnecessarily 
restrict opportunities for persons with disabilities. The revised 
scoping permits greater flexibility by allowing designers to disperse 
accessible seating and standing spaces throughout the dining area. Human 
factors data, which is readily available to designers, provides 
information about the amount of space required for both eating and 
drinking while seated or standing.

                     227 and 904  Sales and Service

    Check-Out Aisles and Sales and Service Counters. The 1991 Standards, 
at section 7.2, and the 2010 Standards, at section 904.4, contain 
technical requirements for sales and service counters. The 1991 
Standards generally require sales and service counters to provide an 
accessible portion at least 36 inches long and no higher than 36 inches 
above the finish floor. The nondiscrimination requirements of the ADA 
regulations require the level of service provided at the accessible 
portion of any sales and service counter to be the same as the level of 
service provided at the inaccessible portions of the counter.
    The 2010 Standards specify different lengths for the accessible 
portion of sales and service counters based on the type of approach 
provided. Where a forward approach is provided, the accessible portion 
of the counter must be at least 30 inches long and no higher than 36 
inches, and knee and toe space must be provided under the counter. The 
requirement that knee and toe space be provided where only clear floor 
space for a forward approach to a sales and service counter is provided 
is not a new requirement. It is a clarification of the ongoing 
requirement that part of the sales and service counter be accessible. 
This requirement applies to the entire accessible part of sales and 
service counters and requires that the accessible clear floor or ground 
space adjacent to those counters be kept clear of merchandise, 
equipment, and other items so that the accessible part of the counter is 
readily accessible to and usable by individuals with disabilities. The 
accessible part of the counter must also be staffed and provide an 
equivalent level of service as that provided to all customers.
    Where clear floor space for a parallel approach is provided, the 
accessible portion of the counter must be at least 36 inches long and no 
higher than 36 inches above the finish floor. A clear floor or ground 
space that is at least 48 inches long  x  30 inches wide must be 
provided positioned for a parallel approach adjacent to the 36-inch 
minimum length of counter.
    Section 904.4 of the 2010 Standards includes an exception for 
alterations to sales and service counters in existing facilities. It 
permits the accessible portion of the counter to be at least 24 inches 
long, where providing a longer accessible counter will result in a 
reduction in the number of existing counters at work stations or 
existing mailboxes, provided that the required clear floor or ground 
space is centered on the accessible length of the counter.
    Section 904.4 of the 2010 Standards also clarifies that the 
accessible portion of the counter must extend the same depth as the 
sales or service counter top. Where the counter is a single-height 
counter, this requirement applies across the entire depth of the counter 
top. Where the counter is a split-height counter, this requirement 
applies only to the customer side of the counter top. The employee-side 
of the counter top may be higher or lower than the customer-side of the 
counter top.

[[Page 921]]

    Commenters recommended that the Department consider a regulatory 
alternative exempting small retailers from the new knee and toe 
clearance requirement and retaining existing wheelchair accessibility 
standards for sales and service counters. These commenters believed that 
the knee and toe clearance requirements will cause a reduction in the 
sales and inventory space at check-out aisles and other sales and 
service counters.
    Both the 1991 and the 2010 Standards permit covered entities to 
determine whether they will provide a forward or a parallel approach to 
sales and service counters. So any facility that does not wish to 
provide the knee or toe clearance required for a front approach to such 
a counter may avoid that option. However, the Department believes that 
permitting a forward approach without requiring knee and toe clearance 
is not adequate to provide accessibility because the person using a 
wheelchair will be prevented from coming close enough to the counter to 
see the merchandise or to transact business with a degree of convenience 
that is comparable to that provided to other customers.
    A parallel approach to sales and service counters also can provide 
the accessibility required by the 2010 Standards. Individuals using 
wheelchairs can approach sales and service counters from the side, and, 
assuming the necessary elements, features, or merchandise necessary to 
complete a business transaction are within the reach range requirements 
for a side approach, the needs of individuals with disabilities can be 
met effectively.
    Section 227 of the 2010 Standards clarifies the requirements for 
food service lines. Queues and waiting lines serving counters or check-
out aisles, including those for food service, must be accessible to 
individuals with disabilities.

                              229  Windows

    A new requirement at section 229.1 of the 2010 Standards provides 
that if operable windows are provided for building users, then at least 
one window in an accessible space must be equipped with controls that 
comply with section 309.
    Commenters generally supported this provision but some commenters 
asked whether the maximum five-pounds (5 lbs.) of force requirement of 
section 309 applies to the window latch itself or only to the force 
required to open the window. Section 309 applies to all controls and 
operating mechanisms, so the latch must comply with the requirement to 
operate with no more than five pounds of force (5 lbf).

               230 and 708  Two-Way Communication Systems

    New provisions of the 2010 Standards at sections 230.1 and 708 
require two-way communications systems to be equipped with visible as 
well as audible signals.

             231 and 808  Judicial Facilities and Courtrooms

    Section 231 of the 2010 Standards adds requirements for accessible 
courtrooms, holding cells, and visiting areas.
    Accessible Courtroom Stations. Sections 231.2, 808, 304, 305, and 
902 of the 2010 Standards provide increased accessibility at courtroom 
stations. Clear floor space for a forward approach is required for all 
courtroom stations (judges' benches, clerks' stations, bailiffs' 
stations, deputy clerks' stations, court reporters' stations, and 
litigants' and counsel stations). Other applicable specifications 
include accessible work surface heights and toe and knee clearance.
    Accessible Jury Boxes, Attorney Areas, and Witness Stands. Section 
206.2.4 of the 2010 Standards requires, in new construction and 
alterations, at least one accessible route to connect accessible 
building or facility entrances with all accessible spaces and elements 
within the building or facility that are connected by a circulation path 
unless they are exempted by Exceptions 1-7 of section 206.2.3. Advisory 
206.2.4 Spaces and Elements Exception 1 explains that the exception 
allowing raised courtroom stations to be used by court employees, such 
as judge's benches, to be adaptable does not apply to areas of the 
courtroom likely to be used by members of the public such as jury areas, 
attorney areas, or witness stands. These areas must be on an accessible 
route at the time of initial construction or alteration.
    Raised Courtroom Stations Not for Members of the Public. Section 
206.2.4, Exception 1 of the 2010 Standards provides that raised 
courtroom stations that are used by judges, clerks, bailiffs, and court 
reporters will not have to provide full vertical access when first 
constructed or altered if they are constructed to be easily adaptable to 
provide vertical accessibility.
    One commenter suggested that a sufficient number of accessible 
benches for judges with disabilities, in addition to requiring 
accessible witness stands and attorney areas, be required. The 
Department believes that the requirements regarding raised benches for 
judges are easily adaptable to provide vertical access in the event a 
judge requires an accessible bench. Section 206.2.4 of the 2010 
Standards provides that raised courtroom stations used by judges and 
other judicial staff do not have to provide full vertical access when 
first constructed or altered as long as the required clear floor space, 
maneuvering space, and electrical service,

[[Page 922]]

where appropriate, is provided at the time of new construction or can be 
achieved without substantial reconstruction during alterations.
    A commenter asserted that there is nothing inherent in clerks' 
stations, jury boxes, and witness stands that require them to be raised. 
While it would, of course, be easiest to provide access by eliminating 
height differences among courtroom elements, the Department recognizes 
that accessibility is only one factor that must be considered in the 
design process of a functioning courtroom. The need to ensure the 
ability of the judge to maintain order, the need to ensure sight lines 
among the judge, the witness, the jury, and other participants, and the 
need to maintain the security of the participants all affect the design 
of the space. The Department believes that the 2010 Standards have been 
drafted in a way that will achieve accessibility without unduly 
constraining the ability of a designer to address the other 
considerations that are unique to courtrooms.
    Commenters argued that permitting courtroom stations to be adaptable 
rather than fully accessible at the time of new construction likely will 
lead to discrimination in hiring of clerks, court reporters, and other 
court staff. The Department believes that the provisions will 
facilitate, not hinder, the hiring of court personnel who have 
disabilities. All courtroom work stations will be on accessible routes 
and will be required to have all fixed elements designed in compliance 
with the 2010 Standards. Elevated work stations for court employees may 
be designed to add vertical access as needed. Since the original design 
must provide the proper space and electrical wiring to install vertical 
access, the change should be easily accomplished.

          232  Detention Facilities and Correctional Facilities

    Section 232 of the 2010 Standards establishes requirements for the 
design and construction of cells, medical care facilities, and visiting 
areas in detention facilities and in correctional facilities. Section 
35.151(k) of the Department's title II rule provides scoping for newly 
constructed general holding cells and general housing cells requiring 
mobility features compliant with section 807.2 of the 2010 Standards in 
a minimum of three percent (3%) of cells, but no fewer than one cell. 
Section 232.2 of the 2010 Standards provides scoping for newly 
constructed cells with communications features requiring a minimum of 
two percent (2%) of cells, but at least one cell, to have communication 
features.
    The Department's title II rule at Sec. 35.151(k) also specifies 
scoping for alterations to detention and correctional facilities. 
Generally a minimum of three percent (3%), but no fewer than one, of the 
total number of altered cells must comply with section 807.2 of the 2010 
Standards and be provided within each facility. Altered cells with 
mobility features must be provided in each classification level, 
including administrative and disciplinary segregation, each use and 
service area, and special program. The Department notes that the three 
percent (3%), but no fewer than one, requirement is a minimum. As 
corrections systems plan for new facilities or alterations, the 
Department urges planners to include in their population estimates a 
projection of the numbers of inmates with disabilities so as to have 
sufficient numbers of accessible cells to meet inmate needs.

                       233  Residential Facilities

    Homeless Shelters, Group Homes, and Similar Social Service 
Establishments. Section 233 of the 2010 Standards includes specific 
scoping and technical provisions that apply to new construction and 
alteration of residential facilities. In the 1991 Standards scoping and 
technical requirements for homeless shelters, group homes, and similar 
social service establishments were included in section 9 Transient 
Lodging. These types of facilities will be covered by section 233 of the 
2010 Standards and by 28 CFR 35.151(e) and 36.406(d) and will be subject 
to requirements for residential facilities rather than the requirements 
for transient lodging. This approach will harmonize federal 
accessibility obligations under both the ADA and section 504 of the 
Rehabilitation Act of 1973, as amended. In sleeping rooms with more than 
25 beds that are covered by Sec. 36.406(d) a minimum of five percent 
(5%) of the beds must have clear floor space compliant with section 
806.2.3 of the 2010 Standards. In large facilities with more than 50 
beds, at least one roll-in shower compliant with section 608.2.2 or 
section 608.2.3 of the 2010 Standards must be provided. Where separate 
shower facilities are provided for men and for women, at least one roll-
in shower must be provided for each gender.
    Housing Operated By or On Behalf of Places of Education. Housing at 
a place of education includes: Residence halls, dormitories, suites, 
apartments, or other places of residence operated by or on behalf of 
places of education. Residence halls or dormitories operated by or on 
behalf of places of education are covered by the provisions in sections 
224 and 806 of the 2010 Standards. The Department has included in the 
title III rule at Sec. 36.406(e) requirements that apply to housing at 
places of education that clarify requirements for residence halls and 
dormitories and other types of student housing. Requirements for housing 
at a place of education covered by the title II rule are included at 
Sec. 35.151(f).

[[Page 923]]

    Kitchens and Kitchenettes. Section 4.34.2 of the UFAS requires a 
clear turning space at least 60 inches in diameter or an equivalent T-
shaped turning space in kitchens. Section 4.34.6 requires a clearance 
between opposing base cabinets, counters, appliances, or walls of at 
least 40 inches except in a U-shaped kitchen where the minimum clearance 
is 60 inches.
    Section 804 of the 2010 Standards provides technical requirements 
for kitchens and kitchenettes. Section 804.2.1 requires that pass 
through kitchens, which have two entries and counters, appliances, or 
cabinets on two opposite sides or opposite a parallel wall, provide at 
least 40 inches minimum clearance. Section 804.2.2 requires that U-
shaped kitchens, which are enclosed on three continuous sides, provide 
at least 60 inches minimum clearance between all opposing base cabinets, 
countertops, appliances, or walls within kitchen work areas. Kitchens 
that do not have a cooktop or conventional range are exempt from the 
clearance requirements but still must provide an accessible route.
    If a kitchen does not have two entries, the 2010 Standards require 
the kitchen to have 60 inches minimum clearance between the opposing 
base cabinets, counters, appliances, or walls.
    One commenter supported the provisions of section 804 of the 2010 
Standards but sought clarification whether this section applies to 
residential units only, or to lodging and office buildings as well. 
Section 212 makes section 804 applicable to all kitchens and 
kitchenettes in covered buildings.
    Residential Facilities. Section 4.1.4(11) of the UFAS contains 
scoping requirements for the new construction of housing. Under the 1991 
title II regulation, state and local governments had the option of 
complying with the UFAS or the 1991 Standards. After the compliance date 
for the 2010 Standards, state and local governments will no longer have 
the option of complying with the UFAS, but will have to use the 2010 
Standards for new construction and alterations.
    Sections 233.1, 233.2, 233.3, 233.3.1, and 233.3.2 of the 2010 
Standards differentiate between entities subject to the United States 
Department of Housing and Urban Development (HUD) regulations 
implementing section 504 of the Rehabilitation Act of 1973 and entities 
not subject to the HUD regulations. The HUD regulations apply to 
recipients of federal financial assistance through HUD, and require at 
least five percent (5%) of dwelling units in multi-family projects of 
five or more dwelling units to provide mobility features and at least 
two percent (2%) of the dwelling units to provide communication 
features. The HUD regulations define a project unique to its programs as 
``one or more residential structures which are covered by a single 
contract for federal financial assistance or application for assistance, 
or are treated as a whole for processing purposes, whether or not 
located on a common site.'' To avoid any potential conflicts with the 
HUD regulations, the 2010 Standards require residential dwelling units 
subject to the HUD regulations to comply with the scoping requirements 
in the HUD regulations, instead of the scoping requirements in the 2010 
Standards.
    For entities not subject to the HUD regulations, the 2010 Standards 
require at least five percent (5%) of the dwelling units in residential 
facilities to provide mobility features, and at least two percent (2%) 
of the dwelling units to provide communication features. The 2010 
Standards define facilities in terms of buildings located on a site. The 
2010 Standards permit facilities that contain 15 or fewer dwelling units 
to apply the scoping requirements to all the dwelling units that are 
constructed under a single contract, or are developed as whole, whether 
or not located on a common site.
    Alterations to Residential Facilities. Section 4.1.6 of the UFAS 
requires federal, state, and local government housing to comply with the 
general requirements for alterations to facilities. Applying the general 
requirements for alterations to housing can result in partially 
accessible dwelling units where single elements or spaces in dwelling 
units are altered.
    The 2010 Standards, at sections 202.3 Exception 3, 202.4, and 233.3, 
contain specific scoping requirements for alterations to dwelling units. 
Dwelling units that are not required to be accessible are exempt from 
the general requirements for alterations to elements and spaces and for 
alterations to primary function areas.
    The scoping requirements for alterations to dwelling units generally 
are based on the requirements in the UFAS:
      Where a building is vacated for purposes of alterations 
and has more than 15 dwelling units, at least five percent (5%) of the 
altered dwelling units are required to provide mobility features and at 
least two percent (2%) of the dwelling units are required to provide 
communication features.
      Where a bathroom or a kitchen is substantially altered in 
an individual dwelling unit and at least one other room is also altered, 
the dwelling unit is required to comply with the scoping requirements 
for new construction until the total number of dwelling units in the 
facility required to provide mobility features and communication 
features is met.
    As with new construction, the 2010 Standards permit facilities that 
contain 15 or fewer dwelling units to apply the scoping requirements to 
all the dwelling units that are altered under a single contract, or are 
developed as a whole, whether or not located on a common site. The 2010 
Standards also permit

[[Page 924]]

a comparable dwelling unit to provide mobility features where it is not 
technically feasible for the altered dwelling unit to comply with the 
technical requirements.

                      234 and 1002  Amusement Rides

    New and Altered Permanently Installed Amusement Rides. Section 234 
of the 2010 Standards sets out scoping requirements and section 1002 
sets out the technical requirements for the accessibility of permanently 
installed amusement rides. These requirements apply to newly designed 
and constructed amusement rides and used rides when certain alterations 
are made.
    A commenter raised concerns that smaller amusement parks tend to 
purchase used rides more frequently than new rides, and that the 
conversion of a used ride to provide the required accessibility may be 
difficult to ensure because of the possible complications in modifying 
equipment to provide accessibility.
    The Department agrees with this commenter. The Department notes, 
however, that the 2010 Standards will require modifications to existing 
amusement rides when a ride's structural and operational characteristics 
are altered to the extent that the ride's performance differs from that 
specified by the manufacturer or the original design. Such an extensive 
alteration to an amusement ride may well require that new load and 
unload areas be designed and constructed. When load and unload areas 
serving existing amusement rides are newly designed and constructed they 
must be level, provide wheelchair turning space, and be on an accessible 
route compliant with Chapter 4 of the 2010 Standards except as modified 
by section 1002.2 of the 2010 Standards.
    Mobile or Portable Amusement Rides. The exception in section 234.1 
of the 2010 Standards exempts mobile or portable amusement rides, such 
as those set up for short periods of time at carnivals, fairs or 
festivals, from having to comply with the 2010 Standards. However, even 
though the mobile/portable ride itself is not subject to the Standards, 
these facilities are still subject to the ADA's general requirement to 
ensure that individuals with disabilities have an equal opportunity to 
enjoy the services and amenities of these facilities.
    Subject to these general requirements, mobile or portable amusement 
rides should be located on an accessible route and the load and unload 
areas serving a ride should provide a level wheelchair turning space to 
provide equal opportunity for individuals with disabilities to be able 
to participate on the amusement ride to the extent feasible.
    One commenter noted that the exception in Section 234.1 of the 2010 
Standards for mobile or portable amusement rides limits the 
opportunities of persons with disabilities to participate on amusement 
rides because traveling or temporary amusement rides by their nature 
come to their customers' town or a nearby town rather than the customer 
having to go to them and so are less expensive than permanent amusement 
parks. While the Department understands the commenter's concerns, the 
Department notes that most amusement rides are too complex to be 
reasonably modified or re-engineered to accommodate the majority of 
individuals with disabilities and that additional complexities and 
safety concerns are added when the rides are mobile or portable.
    A commenter asked that section 234 of the 2010 Standards make clear 
that the requirements for accessible routes include the routes leading 
up to and including the loading and unloading areas of amusement rides. 
Sections 206.2.9 and 1002.2 of the 2010 Standards clarify that the 
requirements for accessible routes include the routes leading up to and 
including the loading and unloading areas of amusement rides.
    A commenter requested that the final rule specifically allow for 
wheelchair access through the exit or other routes, or alternate means 
of wheelchair access routes to amusement rides. The commenter stated 
that the concept of wheelchair access through the exit or alternate 
routes was a base assumption for the 2010 Standards. The commenter noted 
that the concept is apparent in the signage and load/unload area 
provisions in Section 216.12 (`` * * * where accessible unload areas 
also serve as accessible load areas, signs indicating the location of 
the accessible load and unload areas shall be provided at entries to 
queues and waiting lines''). The Department agrees with the commenter 
that accessible load and unload areas may be the same where signs that 
comply with section 216.12 are provided.
    Wheelchair Space or Transfer Seat or Transfer Device. Sections 234.3 
and 1002.4-1002.6 of the 2010 Standards provide that each new and 
altered amusement ride, except for mobile/portable rides and a few 
additional excepted rides, will be required to provide at least one type 
of access by means of one wheelchair space or one transfer seat or one 
transfer device (the design of the transfer device is not specified).
    Commenters urged the Department to revise the requirements for 
wheelchair spaces and transfer seats and devices because most amusement 
rides are too complex to be reasonably modified or re-engineered to 
accommodate the majority of individuals with disabilities. They argued 
that the experience of amusement rides will be significantly reduced if 
the proposed requirements are implemented.
    The 2004 ADAAG, which the Department adopted as part of the 2010 
Standards, was developed with the assistance of an advisory committee 
that included representation from the design staffs of major amusement

[[Page 925]]

venues and from persons with disabilities. The Department believes that 
the resulting 2004 ADAAG reflected sensitivity to the complex problems 
posed in adapting existing rides by focusing on new rides that can be 
designed from the outset to be accessible.
    To permit maximum design flexibility, the 2010 Standards permit 
designers to determine whether it is more appropriate to permit 
individuals who use wheelchairs to remain in their chairs on the ride, 
or to provide for transfer access.
    Maneuvering Space in Load and Unload Areas. Sections 234.2 and 
1002.3 of the 2010 Standards require that a level wheelchair turning 
space be provided at the load and unload areas of each amusement ride. 
The turning space must comply with sections 304.2 and 304.3.
    Signs Required at Waiting Lines to Amusement Rides. Section 216.12 
of the 2010 Standards requires signs at entries to queues and waiting 
lines identifying type and location of access for the amusement ride.

              235 and 1003  Recreational Boating Facilities

    These sections require that accessible boat slips and boarding piers 
be provided. Most commenters approved of the requirements for 
recreational boating facility accessibility and urged the Department to 
keep regulatory language consistent with those provisions. They 
commented that the requirements appropriately reflect industry 
conditions. Individual commenters and disability organizations agreed 
that the 2010 Standards achieve acceptable goals for recreational 
boating facility access.
    Accessible Route. Sections 206.2.10 and 1003.2 of the 2010 Standards 
require an accessible route to all accessible boating facilities, 
including boat slips and boarding piers at boat launch ramps. Section 
1003.2.1 provides a list of exceptions applicable to structures such as 
gangways, transition plates, floating piers, and structures containing 
combinations of these elements that are affected by water level changes. 
The list of exceptions specifies alternate design requirements 
applicable to these structures which, because of water level variables, 
cannot comply with the slope, cross slope, and handrail requirements for 
fixed ramps contained in sections 403.3, 405.2, 405.3, 405.6, and 405.7 
of the 2010 Standards. Exceptions 3 and 4 in Section 1003.2.1, which 
permit a slope greater than that specified in Section 405.2, are 
available for structures that meet specified length requirements. 
Section 206.7.10 permits the use of platform lifts as an alternative to 
gangways that are part of accessible routes.
    Commenters raised concerns that because of water level fluctuations 
it may be difficult to provide accessible routes to all accessible 
boating facilities, including boat slips and boarding piers at boat 
launch ramps. One of the specific concerns expressed by several 
commenters relates to the limits for running slope permitted on gangways 
that are part of an accessible route as gangways may periodically have a 
steeper slope than is permitted for a fixed ramp. The exceptions 
contained in section 1003.2 of the 2010 Standards modify the 
requirements of Chapter 4. For example, where the total length of a 
gangway or series of gangways serving as an accessible route is 80 feet 
or more an exception permits the slope on gangways to exceed the maximum 
slope in section 405.2.
    Some commenters suggested that permissible slope variations could be 
reduced further by introducing a formula that ties required gangway 
length to anticipated water level fluctuations. Such a formula would 
incorporate predictions of tidal level changes such as those issued by 
the National Oceanographic and Atmospheric Administration (NOAA) and the 
United States Geologic Survey (USGS). This suggested approach would be 
an alternative to the gangway length exceptions and limits in section 
1003.2.1 of the 2010 Standards. These commenters noted that contemporary 
building materials and techniques make gangways of longer length and 
alternative configurations achievable. These commenters provided at 
least one example of a regional regulatory authority using this type of 
formula. While this approach may be successfully implemented and 
consistent with the goals of the ADA, the example provided was applied 
in a highly developed area containing larger facilities. The Department 
has considered that many facilities do not have sufficient resources 
available to take advantage of the latest construction materials and 
design innovations. Other commenters supported compliance exceptions for 
facilities that are subject to extreme tidal conditions. One commenter 
noted that if a facility is located in an area with limited space and 
extreme tidal variations, a disproportionately long gangway might 
intrude into water travel routes. The Department has considered a wide 
range of boating facility characteristics including size, water surface 
areas, tidal fluctuations, water conditions, variable resources, whether 
the facility is in a highly developed or remote location, and other 
factors. The Department has determined that the 2010 Standards provide 
sufficient flexibility for such broad application. Additionally, the 
length requirement for accessible routes in section 1003.2.1 provides an 
easily determinable compliance standard.
    Accessible Boarding Piers. Where boarding piers are provided at boat 
launch ramps, sections 235.3 and 1003.3.2 of the 2010 Standards require 
that at least five percent (5%) of boarding piers, but at least one, 
must be accessible.
    Accessible Boat Slips. Sections 235.2 and 1003.3.1 of the 2010 
Standards require that a

[[Page 926]]

specified number of boat slips in each recreational boating facility 
meet specified accessibility standards. The number of accessible boat 
slips required by the 2010 Standards is set out in a chart in section 
235.2. One accessible boat slip is required for facilities containing 25 
or fewer total slips. The number of required accessible boat slips 
increases with the total number of slips at the facility. Facilities 
containing more than one thousand (1000) boat slips are required to 
provide twelve (12) accessible boat slips plus one for each additional 
one hundred slips at the facility.
    One commenter asserted the need for specificity in the requirement 
for dispersion of accessible slips. Section 235.2.1 of the 2010 
Standards addresses dispersion and requires that boat slips ``shall be 
dispersed throughout the various types of boat slips provided.'' The 
commenter was concerned that if a marina could not put accessible slips 
all on one pier, it would have to reconstruct the entire facility to 
accommodate accessible piers, gangways, docks and walkways. The 
provision permits required accessible boat slips to be grouped together. 
The Department recognizes that economical and structural feasibility may 
produce this result. The 2010 Standards do not require the dispersion of 
the physical location of accessible boat slips. Rather, the dispersion 
must be among the various types of boat slips offered by the facility. 
Section 235.2.1 of the 2010 Standards specifies that if the required 
number has been met, no further dispersion is required. For example, if 
a facility offers five different `types' of boat slips but is only 
required to provide three according to the table in Section 235.2, that 
facility is not required to provide more than three accessible boat 
slips, but the three must be varied among the five `types' of boat slips 
available at the facility.

              236 and 1004  Exercise Machines and Equipment

    Accessible Route to Exercise Machines and Equipment. Section 
206.2.13 of the 2010 Standards requires an accessible route to serve 
accessible exercise machines and equipment.
    Commenters raised concerns that the requirement to provide 
accessible routes to serve accessible exercise machines and equipment 
will be difficult for some facilities to provide, especially some 
transient lodging facilities that typically locate exercise machines and 
equipment in a single room. The Department believes that this 
requirement is a reasonable one in new construction and alterations 
because accessible exercise machines and equipment can be located so 
that an accessible route can serve more than one piece of equipment.
    Exercise Machines and Equipment. Section 236 of the 2010 Standards 
requires at least one of each type of exercise machine to meet clear 
floor space requirements of section 1004.1. Types of machines are 
generally defined according to the muscular groups exercised or the kind 
of cardiovascular exercise provided.
    Several commenters were concerned that existing facilities would 
have to reduce the number of available exercise equipment and machines 
in order to comply with the 2010 Standards. One commenter submitted 
prototype drawings showing equipment and machine layouts with and 
without the required clearance specified in the 2010 Standards. The 
accessible alternatives all resulted in a loss of equipment and 
machines. However, because these prototype layouts included certain 
possibly erroneous assumptions about the 2010 Standards, the Department 
wishes to clarify the requirements.
    Section 1004.1 of the 2010 Standards requires a clear floor space 
``positioned for transfer or for use by an individual seated in a 
wheelchair'' to serve at least one of each type of exercise machine and 
equipment. This requirement provides the designer greater flexibility 
regarding the location of the clear floor space than was employed by the 
commenter who submitted prototype layouts. The 2010 Standards do not 
require changes to exercise machines or equipment in order to make them 
more accessible to persons with disabilities. Even where machines or 
equipment do not have seats and typically are used by individuals in a 
standing position, at least one of each type of machine or equipment 
must have a clear floor space. Therefore, it is reasonable to assume 
that persons with disabilities wishing to use this type of machine or 
equipment can stand or walk, even if they use wheelchairs much of the 
time. As indicated in Advisory 1004.1, ``the position of the clear floor 
space may vary greatly depending on the use of the equipment or 
machine.'' Where exercise equipment or machines require users to stand 
on them, the clear floor space need not be located parallel to the 
length of the machine or equipment in order to provide a lateral seat-
to-platform transfer. It is permissible to locate the clear floor space 
for such machines or equipment in the aisle behind the device and to 
overlap the clear floor space and the accessible route.
    Commenters were divided in response to the requirement for 
accessible exercise machines and equipment. Some supported requirements 
for accessible machines and equipment; others urged the Department not 
to require accessible machines and equipment because of the costs 
involved. The Department believes that the requirement strikes an 
appropriate balance in ensuring that persons with disabilities, 
particularly those who use wheelchairs, will have the opportunity to use 
the exercise equipment. Providing access to exercise machines and 
equipment recognizes the need and desires of

[[Page 927]]

individuals with disabilities to have the same opportunity as other 
patrons to enjoy the advantages of exercise and maintaining health.

                237 and 1005  Fishing Piers and Platforms

    Accessible Route. Sections 206.2.14 and 1005.1 of the 2010 Standards 
require an accessible route to each accessible fishing pier and 
platform. The exceptions described under Recreational Boating above also 
apply to gangways and floating piers. All commenters supported the 
requirements for accessible routes to fishing piers and platforms.
    Accessible Fishing Piers and Platforms. Sections 237 and 1005 of the 
2010 Standards require at least twenty-five percent (25%) of railings, 
guards, or handrails (if provided) to be at a 34-inch maximum height (so 
that a person seated in a wheelchair can cast a fishing line over the 
railing) and to be located in a variety of locations on the fishing pier 
or platform to give people a variety of locations to fish. An exception 
allows a guard required to comply with the IBC to have a height greater 
than 34 inches. If railings, guards, or handrails are provided, 
accessible edge protection and clear floor or ground space at accessible 
railings are required. Additionally, at least one turning space 
complying with section 304.3 of the 2010 Standards is required to be 
provided on fishing piers and platforms.
    Commenters expressed concerns about the provision for fishing piers 
and platforms at the exception in section 1005.2.1 of the 2010 Standards 
that allows a maximum height of 42 inches for a guard when the pier or 
platform is covered by the IBC. Two commenters stated that allowing a 
42-inch guard or railing height for facilities covered by another 
building code would be difficult to enforce. They also thought that this 
would hinder access for persons with disabilities because the railing 
height would be too high for a person seated in a wheelchair to reach 
over with their fishing pole in order to fish. The Department 
understands these concerns but believes that the railing height 
exception is necessary in order to avoid confusion resulting from 
conflicting accessibility requirements, and therefore has retained this 
exception.

                      238 and 1006  Golf Facilities

    Accessible Route. Sections 206.2.15, 1006.2, and 1006.3 of the 2010 
Standards require an accessible route to connect all accessible elements 
within the boundary of the golf course and, in addition, to connect golf 
car rental areas, bag drop areas, teeing grounds, putting greens, and 
weather shelters. An accessible route also is required to connect any 
practice putting greens, practice teeing grounds, and teeing stations at 
driving ranges that are required to be accessible. An exception permits 
the accessible route requirements to be met, within the boundaries of 
the golf course, by providing a ``golf car passage'' (the path typically 
used by golf cars) if specifications for width and curb cuts are met.
    Most commenters expressed the general viewpoint that nearly all golf 
courses provide golf cars and have either well-defined paths or permit 
the cars to drive on the course where paths are not present, and thus 
meet the accessible route requirement.
    The Department received many comments requesting clarification of 
the term ``golf car passage.'' Some commenters recommended additional 
regulatory language specifying that an exception from a pedestrian route 
requirement should be allowed only when a golf car passage provides 
unobstructed access onto the teeing ground, putting green, or other 
accessible element of the course so that an accessible golf car can have 
full access to those elements. These commenters cautioned that full and 
equal access would not be provided if a golfer were required to navigate 
a steep slope up or down a hill or a flight of stairs in order to get to 
the teeing ground, putting green, or other accessible element of the 
course.
    Conversely, another commenter requesting clarification of the term 
``golf car passage'' argued that golf courses typically do not provide 
golf car paths or pedestrian paths up to actual tee grounds or greens, 
many of which are higher or lower than the car path. This commenter 
argued that if golf car passages were required to extend onto teeing 
grounds and greens in order to qualify for an exception, then some golf 
courses would have to substantially regrade teeing grounds and greens at 
a high cost.
    Some commenters argued that older golf courses, small nine-hole 
courses, and executive courses that do not have golf car paths would be 
unable to comply with the accessible route requirements because of the 
excessive cost involved. A commenter noted that, for those older courses 
that have not yet created an accessible pedestrian route or golf car 
passage, the costs and impacts to do so should be considered.
    A commenter argued that an accessible route should not be required 
where natural terrain makes it infeasible to create an accessible route. 
Some commenters cautioned that the 2010 Standards would jeopardize the 
integrity of golf course designs that utilize natural terrain elements 
and elevation changes to set up shots and create challenging golf holes.
    The Department has given careful consideration to the comments and 
has decided to adopt the 2010 Standards requiring that at least one 
accessible route connect accessible elements and spaces within the 
boundary of the golf course including teeing grounds, putting greens, 
and weather shelters, with an exception provided that golf car passages

[[Page 928]]

shall be permitted to be used for all or part of required accessible 
routes. In response to requests for clarification of the term ``golf car 
passage,'' the Department points out that golf car passage is merely a 
pathway on which a motorized golf car can operate and includes 
identified or paved paths, teeing grounds, fairways, putting greens, and 
other areas of the course. Golf cars cannot traverse steps and 
exceedingly steep slopes. A nine-hole golf course or an executive golf 
course that lacks an identified golf car path but provides golf car 
passage to teeing grounds, putting greens, and other elements throughout 
the course may utilize the exception for all or part of the accessible 
pedestrian route. The exception in section 206.2.15 of the 2010 
Standards does not exempt golf courses from their obligation to provide 
access to necessary elements of the golf course; rather, the exception 
allows a golf course to use a golf car passage for part or all of the 
accessible pedestrian route to ensure that persons with mobility 
disabilities can fully and equally participate in the recreational 
activity of playing golf.
    Accessible Teeing Grounds, Putting Greens, and Weather Shelters. 
Sections 238.2 and 1006.4 of the 2010 Standards require that golf cars 
be able to enter and exit each putting green and weather shelter. Where 
two teeing grounds are provided, the forward teeing ground is required 
to be accessible (golf car can enter and exit). Where three or more 
teeing grounds are provided, at least two, including the forward teeing 
ground, must be accessible.
    A commenter supported requirements for teeing grounds, particularly 
requirements for accessible teeing grounds, noting that accessible 
teeing grounds are essential to the full and equal enjoyment of the 
golfing experience.
    A commenter recommended that existing golf courses be required to 
provide access to only one teeing ground per hole. The majority of 
commenters reported that most public and private golf courses already 
provide golf car passage to teeing grounds and greens. The Department 
has decided that it is reasonable to maintain the requirement. The 2010 
Standards provide an exception for existing golf courses with three or 
more teeing grounds not to provide golf car passage to the forward 
teeing ground where terrain makes such passage infeasible.
    Section 1006.3.2 of the 2010 Standards requires that where curbs or 
other constructed barriers prevent golf cars from entering a fairway, 
openings 60 inches wide minimum shall be provided at intervals not to 
exceed 75 yards.
    A commenter disagreed with the requirement that openings 60 inches 
wide minimum be installed at least every 75 yards, arguing that a 
maximum spacing of 75 yards may not allow enough flexibility for terrain 
and hazard placements. To resolve this problem, the commenter 
recommended that the standards be modified to require that each golf car 
passage include one 60-inch wide opening for an accessible golf car to 
reach the tee, and that one opening be provided where necessary for an 
accessible golf car to reach a green. The requirement for openings where 
curbs or other constructed barriers may otherwise prevent golf cars from 
entering a fairway allows the distance between openings to be less than 
every 75 yards. Therefore, the Department believes that the language in 
section 1006.3.2 of the 2010 Standards allows appropriate flexibility. 
Where a paved path with curbs or other constructed barrier exists, the 
Department believes that it is essential that openings be provided to 
enable golf car passages to access teeing grounds, fairways and putting 
greens, and other required elements. Golf car passage is not restricted 
to a paved path with curbs. Golf car passage also includes fairways, 
teeing grounds, putting greens, and other areas on which golf cars 
operate.
    Accessible Practice Putting Greens, Practice Teeing Grounds, and 
Teeing Stations at Driving Ranges. Section 238.3 of the 2010 Standards 
requires that five percent (5%) but at least one of each of practice 
putting greens, practice teeing grounds, and teeing stations at driving 
ranges must permit golf cars to enter and exit.

                 239 and 1007  Miniature Golf Facilities

    Accessible Route to Miniature Golf Course Holes. Sections 206.2.16, 
239.3, and 1007.2 of the 2010 Standards require an accessible route to 
connect accessible miniature golf course holes and the last accessible 
hole on the course directly to the course entrance or exit. Accessible 
holes are required to be consecutive with an exception permitting one 
break in the sequence of consecutive holes provided that the last hole 
on the miniature golf course is the last hole in the sequence.
    Many commenters supported expanding the exception from one to 
multiple breaks in the sequence of accessible holes. One commenter noted 
that permitting accessible holes with breaks in sequence would enable 
customers with disabilities to enjoy the landscaping, water and theme 
elements of the miniature golf course. Another commenter wrote in favor 
of allowing multiple breaks in accessible holes with a connecting 
accessible route.
    Other commenters objected to allowing multiple breaks in the 
sequence of miniature golf holes. Commenters opposed to this change 
argued that allowing any breaks in the sequence of accessible holes at a 
miniature golf course would disrupt the flow of play for persons with 
disabilities and create a less socially integrated experience. A 
commenter noted that multiple breaks in sequence would not necessarily 
guarantee the

[[Page 929]]

provision of access to holes that are most representative of those with 
landscaping, water elements, or a fantasy-like experience.
    The Department has decided to retain the exception without change. 
Comments did not provide a sufficient basis on which to conclude that 
allowing multiple breaks in the sequence of accessible holes would 
necessarily increase integration of accessible holes with unique 
features of miniature golf courses. Some designs of accessible holes 
with multiple breaks in the sequence might provide equivalent 
facilitation where persons with disabilities gain access to landscaping, 
water or theme elements not otherwise represented in a consecutive 
configuration of accessible holes. A factor that might contribute to 
equivalent facilitation would be an accessible route designed to bring 
persons with disabilities to a unique feature, such as a waterfall, that 
would otherwise not be served by an accessible route connecting 
consecutive accessible holes.
    Specified exceptions are permitted for accessible route requirements 
when located on the playing surfaces near holes.
    Accessible Miniature Golf Course Holes. Sections 239.2 and 1007.3 of 
the 2010 Standards require at least fifty percent (50%) of golf holes on 
miniature golf courses to be accessible, including providing a clear 
floor or ground space that is 48 inches minimum by 60 inches minimum 
with slopes not steeper than 1:48 at the start of play.

                        240 and 1008  Play Areas

    Section 240 of the 2010 Standards provides scoping for play areas 
and section 1008 provides technical requirements for play areas. Section 
240.1 of the 2010 Standards sets requirements for play areas for 
children ages 2 and over and covers separate play areas within a site 
for specific age groups. Section 240.1 also provides four exceptions to 
the requirements that apply to family child care facilities, relocation 
of existing play components in existing play areas, amusement 
attractions, and alterations to play components where the ground surface 
is not altered.
    Ground Surfaces. Section 1008.2.6 of the 2010 Standards provides 
technical requirements for accessible ground surfaces for play areas on 
accessible routes, clear floor or ground spaces, and turning spaces. 
These ground surfaces must follow special rules, incorporated by 
reference from nationally recognized standards for accessibility and 
safety in play areas, including those issued by the American Society for 
Testing and Materials (ASTM).
    A commenter recommended that the Department closely examine the 
requirements for ground surfaces at play areas. The Department is aware 
that there is an ongoing controversy about play area ground surfaces 
arising from a concern that some surfaces that meet the ASTM 
requirements at the time of installation will become inaccessible if 
they do not receive constant maintenance. The Access Board is also aware 
of this issue and is working to develop a portable field test that will 
provide more relevant information on installed play surfaces. The 
Department would caution covered entities selecting among the ground 
surfacing materials that comply with the ASTM requirements that they 
must anticipate the maintenance costs that will be associated with some 
of the products. Permitting a surface to deteriorate so that it does not 
meet the 2010 Standards would be an independent violation of the 
Department's ADA regulations.
    Accessible Route to Play Components. Section 206.2.17 of the 2010 
Standards provides scoping requirements for accessible routes to ground 
level and elevated play components and to soft contained play 
structures. Sections 240.2 and 1008 of the 2010 Standards require that 
accessible routes be provided for play components. The accessible route 
must connect to at least one ground level play component of each 
different type provided (e.g., for different experiences such as 
rocking, swinging, climbing, spinning, and sliding). Table 240.2.1.2 
sets requirements for the number and types of ground level play 
components required to be on accessible routes. When elevated play 
components are provided, an accessible route must connect at least fifty 
percent (50%) of the elevated play components. Section 240.2.1.2, 
provides an exception to the requirements for ground level play 
components if at least fifty percent (50%) of the elevated play 
components are connected by a ramp and at least three of the elevated 
play components connected by the ramp are different types of play 
components.
    The technical requirements at section 1008 include provisions where 
if three or fewer entry points are provided to a soft contained play 
structure, then at least one entry point must be on an accessible route. 
In addition, where four or more entry points are provided to a soft 
contained play structure, then at least two entry points must be served 
by an accessible route.
    If elevated play components are provided, fifty percent (50%) of the 
elevated components are required to be accessible. Where 20 or more 
elevated play components are provided, at least twenty five percent 
(25%) will have to be connected by a ramp. The remaining play components 
are permitted to be connected by a transfer system. Where less than 20 
elevated play components are provided, a transfer system is permitted in 
lieu of a ramp.
    A commenter noted that the 2010 Standards allow for the provision of 
transfer steps to elevated play structures based on the

[[Page 930]]

number of elevated play activities, but asserted that transfer steps 
have not been documented as an effective means of access.
    The 2010 Standards recognize that play structures are designed to 
provide unique experiences and opportunities for children. The 2010 
Standards provide for play components that are accessible to children 
who cannot transfer from their wheelchair, but they also provide 
opportunities for children who are able to transfer. Children often 
interact with their environment in ways that would be considered 
inappropriate for adults. Crawling and climbing, for example, are 
integral parts of the play experience for young children. Permitting the 
use of transfer platforms in play structures provides some flexibility 
for creative playground design.
    Accessible Play Components. Accessible play components are required 
to be on accessible routes, including elevated play components that are 
required to be connected by ramps. These play components must also 
comply with other accessibility requirements, including specifications 
for clear floor space and seat heights (where provided).
    A commenter expressed concerns that the general requirements of 
section 240.2.1 of the 2010 Standards and the advisory accompanying 
section 240.2.1 conflict. The comment asserts that section 240.2.1 of 
the 2010 Standards provides that the only requirement for integration of 
equipment is where there are two or more required ground level play 
components, while the advisory appears to suggest that all accessible 
components must be integrated.
    The commenter misinterprets the requirement. The ADA mandates that 
persons with disabilities be able to participate in programs or 
activities in the most integrated setting appropriate to their needs. 
Therefore, all accessible play components must be integrated into the 
general playground setting. Section 240.2.1 of the 2010 Standards 
specifies that where there is more than one accessible ground level play 
component, the components must be both dispersed and integrated.

                   241 and 612  Saunas and Steam Rooms

    Section 241 of the 2010 Standards sets scoping for saunas and steam 
rooms and section 612 sets technical requirements including providing 
accessible turning space and an accessible bench. Doors are not 
permitted to swing into the clear floor or ground space for the 
accessible bench. The exception in section 612.2 of the 2010 Standards 
permits a readily removable bench to obstruct the required wheelchair 
turning space and the required clear floor or ground space. Where they 
are provided in clusters, five percent (5%) but at least one sauna or 
steam room in each cluster must be accessible.
    Commenters raised concerns that the safety of individuals with 
disabilities outweighs the usefulness in providing accessible saunas and 
steam rooms. The Department believes that there is an element of risk in 
many activities available to the general public. One of the major tenets 
of the ADA is that individuals with disabilities should have the same 
opportunities as other persons to decide what risks to take. It is not 
appropriate for covered entities to prejudge the abilities of persons 
with disabilities.

          242 and 1009  Swimming Pools, Wading Pools, and Spas

    Accessible Means of Entry to Pools. Section 242 of the 2010 
Standards requires at least two accessible means of entry for larger 
pools (300 or more linear feet) and at least one accessible entry for 
smaller pools. This section requires that at least one entry will have 
to be a sloped entry or a pool lift; the other could be a sloped entry, 
pool lift, a transfer wall, or a transfer system (technical 
specifications for each entry type are included at section 1009).
    Many commenters supported the scoping and technical requirements for 
swimming pools. Other commenters stated that the cost of requiring 
facilities to immediately purchase a pool lift for each indoor and 
outdoor swimming pool would be very significant especially considering 
the large number of swimming pools at lodging facilities. One commenter 
requested that the Department clarify what would be an ``alteration'' to 
a swimming pool that would trigger the obligation to comply with the 
accessible means of entry in the 2010 Standards.
    Alterations are covered by section 202.3 of the 2010 Standards and 
the definition of ``alteration'' is provided at section 106.5. A 
physical change to a swimming pool which affects or could affect the 
usability of the pool is considered to be an alteration. Changes to the 
mechanical and electrical systems, such as filtration and chlorination 
systems, are not alterations. Exception 2 to section 202.3 permits an 
altered swimming pool to comply with applicable requirements to the 
maximum extent feasible if full compliance is technically infeasible. 
``Technically infeasible'' is also defined in section 106.5 of the 2010 
Standards.
    The Department also received comments suggesting that it is not 
appropriate to require two accessible means of entry to wave pools, lazy 
rivers, sand bottom pools, and other water amusements where there is 
only one point of entry. Exception 2 of Section 242.2 of the 2010 
Standards exempts pools of this type from having to provide more than 
one accessible means of entry provided that the one accessible means of 
entry is a swimming pool lift compliant with section 1009.2, a sloped 
entry compliant with section 1009.3, or a transfer system compliant with 
section 1009.5 of the 2010 Standards.
    Accessible Means of Entry to Wading Pools. Sections 242.3 and 1009.3 
of the 2010 Standards

[[Page 931]]

require that at least one sloped means of entry is required into the 
deepest part of each wading pool.
    Accessible Means of Entry to Spas. Sections 242.4 and 1009.2, 
1009.4, and 1009.5 of the 2010 Standards require spas to meet 
accessibility requirements, including an accessible means of entry. 
Where spas are provided in clusters, five percent (5%) but at least one 
spa in each cluster must be accessible. A pool lift, a transfer wall, or 
a transfer system will be permitted to provide the required accessible 
means of entry.

             243  Shooting Facilities with Firing Positions

    Sections 243 and 1010 of the 2010 Standards require an accessible 
turning space for each different type of firing position at a shooting 
facility if designed and constructed on a site. Where firing positions 
are provided in clusters, five percent (5%), but at least one position 
of each type in each cluster must be accessible.

                    Additional Technical Requirements

                     302.1  Floor or Ground Surfaces

    Both section 4.5.1 of the 1991 Standards and section 302.2 of the 
2010 Standards require that floor or ground surfaces along accessible 
routes and in accessible rooms and spaces be stable, firm, slip-
resistant, and comply with either section 4.5 in the case of the 1991 
Standards or section 302 in the case of the 2010 Standards.
    Commenters recommended that the Department apply an ASTM Standard 
(with modifications) to assess whether a floor surface is ``slip 
resistant'' as required by section 302.1 of the 2010 Standards. The 
Department declines to accept this recommendation since, currently, 
there is no generally accepted test method for the slip-resistance of 
all walking surfaces under all conditions.

                           304  Turning Space

    Section 4.2.3 of the 1991 Standards and Section 304.3 of the 2010 
Standards allow turning space to be either a circular space or a T-
shaped space. Section 304.3 permits turning space to include knee and 
toe clearance complying with section 306. Section 4.2.3 of the 1991 
Standards did not specifically permit turning space to include knee and 
toe clearance. Commenters urged the Department to retain the turning 
space requirement, but exclude knee and toe clearance from being 
permitted as part of this space. They argued that wheelchairs and other 
mobility devices are becoming larger and that more individuals with 
disabilities are using electric three and four-wheeled scooters which 
cannot utilize knee clearance.
    The Department recognizes that the technical specifications for T-
shaped and circular turning spaces in the 1991 and 2010 Standards, which 
are based on manual wheelchair dimensions, may not adequately meet the 
needs of individuals using larger electric scooters. However, there is 
no consensus about the appropriate dimension on which to base revised 
requirements. The Access Board is conducting research to study this 
issue in order to determine if new requirements are warranted. For more 
information, see the Access Board's Web site at http://www.access-
board.gov/research/current-projects.htmsuny. The Department plans to 
wait for the results of this study and action by the Access Board before 
considering any changes to the Department's rules. Covered entities may 
wish to consider providing more than the minimum amount of turning space 
in confined spaces where a turn will be required. Appendix section 
A4.2.3 and Fig. A2 of the 1991 Standards provide guidance on additional 
space for making a smooth turn without bumping into surrounding objects.

                     404  Doors, Doorways, and Gates

    Automatic Door Break Out Openings. The 1991 Standards do not contain 
any technical requirement for automatic door break out openings. The 
2010 Standards at sections 404.1, 404.3, 404.3.1, and 404.3.6 require 
automatic doors that are part of a means of egress and that do not have 
standby power to have a 32-inch minimum clear break out opening when 
operated in emergency mode. The minimum clear opening width for 
automatic doors is measured with all leaves in the open position. 
Automatic bi-parting doors or pairs of swinging doors that provide a 32-
inch minimum clear break out opening in emergency mode when both leaves 
are opened manually meet the technical requirement. Section 404.3.6 of 
the 2010 Standards includes an exception that exempts automatic doors 
from the technical requirement for break out openings when accessible 
manual swinging doors serve the same means of egress.
    Maneuvering Clearance or Standby Power for Automatic Doors. Section 
4.13.6 of the 1991 Standards does not require maneuvering clearance at 
automatic doors. Section 404.3.2 of the 2010 Standards requires 
automatic doors that serve as an accessible means of egress to either 
provide maneuvering clearance or to have standby power to operate the 
door in emergencies. This provision has limited application and will 
affect, among others, in-swinging automatic doors that serve small 
spaces.
    Commenters urged the Department to reconsider provisions that would 
require maneuvering clearance or standby power for automatic doors. They 
assert that these requirements would impose unreasonable financial and 
administrative burdens on all

[[Page 932]]

covered entities, particularly smaller entities. The Department declines 
to change these provisions because they are fundamental life-safety 
issues. The requirement applies only to doors that are part of a means 
of egress that must be accessible in an emergency. If an emergency-
related power failure prevents the operation of the automatic door, a 
person with a disability could be trapped unless there is either 
adequate maneuvering room to open the door manually or a back-up power 
source.
    Thresholds at Doorways. The 1991 Standards, at section 4.13.8, 
require the height of thresholds at doorways not to exceed \1/2\ inch 
and thresholds at exterior sliding doors not to exceed \3/4\ inch. 
Sections 404.1 and 404.2.5 of the 2010 Standards require the height of 
thresholds at all doorways that are part of an accessible route not to 
exceed \1/2\ inch. The 1991 Standards and the 2010 Standards require 
raised thresholds that exceed \1/4\ inch in height to be beveled on each 
side with a slope not steeper than 1:2. The 2010 Standards include an 
exception that exempts existing and altered thresholds that do not 
exceed \3/4\ inch in height and are beveled on each side from the 
requirement.

                             505  Handrails

    The 2010 Standards add a new technical requirement at section 406.3 
for handrails along walking surfaces.
    The 1991 Standards, at sections 4.8.5, 4.9.4, and 4.26, and the 2010 
Standards, at section 505, contain technical requirements for handrails. 
The 2010 Standards provide more flexibility than the 1991 Standards as 
follows:
      Section 4.26.4 of the 1991 Standards requires handrail 
gripping surfaces to have edges with a minimum radius of \1/8\ inch. 
Section 505.8 of the 2010 Standards requires handrail gripping surfaces 
to have rounded edges.
      Section 4.26.2 of the 1991 Standards requires handrail 
gripping surfaces to have a diameter of 1\1/4\ inches to 1\1/2\ inches, 
or to provide an equivalent gripping surface. Section 505.7 of the 2010 
Standards requires handrail gripping surfaces with a circular cross 
section to have an outside diameter of 1\1/4\ inches to 2 inches. 
Handrail gripping surfaces with a non-circular cross section must have a 
perimeter dimension of 4 inches to 6\1/4\ inches, and a cross section 
dimension of 2\1/4\ inches maximum.
      Sections 4.8.5 and 4.9.4 of the 1991 Standards require 
handrail gripping surfaces to be continuous, and to be uninterrupted by 
newel posts, other construction elements, or obstructions. Section 505.3 
of the 2010 Standards sets technical requirements for continuity of 
gripping surfaces. Section 505.6 requires handrail gripping surfaces to 
be continuous along their length and not to be obstructed along their 
tops or sides. The bottoms of handrail gripping surfaces must not be 
obstructed for more than twenty percent (20%) of their length. Where 
provided, horizontal projections must occur at least 1\1/2\ inches below 
the bottom of the handrail gripping surface. An exception permits the 
distance between the horizontal projections and the bottom of the 
gripping surface to be reduced by \1/8\ inch for each \1/2\ inch of 
additional handrail perimeter dimension that exceeds 4 inches.
      Section 4.9.4 of the 1991 Standards requires handrails at 
the bottom of stairs to continue to slope for a distance of the width of 
one tread beyond the bottom riser nosing and to further extend 
horizontally at least 12 inches. Section 505.10 of the 2010 Standards 
requires handrails at the bottom of stairs to extend at the slope of the 
stair flight for a horizontal distance at least equal to one tread depth 
beyond the last riser nosing. Section 4.1.6(3) of the 1991 Standards has 
a special technical provision for alterations to existing facilities 
that exempts handrails at the top and bottom of ramps and stairs from 
providing full extensions where it will be hazardous due to plan 
configuration. Section 505.10 of the 2010 Standards has a similar 
exception that applies in alterations.
    A commenter noted that handrail extensions are currently required at 
the top and bottom of stairs, but the proposed regulations do not 
include this requirement, and urged the Department to retain the current 
requirement. Other commenters questioned the need for the extension at 
the bottom of stairs.
    Sections 505.10.2 and 505.10.3 of the 2010 Standards require 
handrail extensions at both the top and bottom of a flight of stairs. 
The requirement in the 1991 Standards that handrails extend horizontally 
at least 12 inches beyond the width of one tread at the bottom of a 
stair was changed in the 2004 ADAAG by the Access Board in response to 
public comments. Existing horizontal handrail extensions that comply 
with 4.9.4(2) of the 1991 Standards should meet or exceed the 
requirements of the 2010 Standards.
    Commenters noted that the 2010 Standards will require handrail 
gripping surfaces with a circular cross section to have an outside 
diameter of 2 inches, and that this requirement would impose a physical 
barrier to individuals with disabilities who need the handrail for 
stability and support while accessing stairs.
    The requirement permits an outside diameter of 1\1/4\ inches to 2 
inches. This range allows flexibility in meeting the needs of 
individuals with disabilities and designers and architects. The 
Department is not aware of any data indicating that an outside diameter 
of 2 inches would pose any adverse impairment to use by individuals with 
disabilities.
    Handrails Along Walkways. The 1991 Standards do not contain any 
technical requirement for handrails provided along walkways

[[Page 933]]

that are not ramps. Section 403.6 of the 2010 Standards specifies that 
where handrails are provided along walkways that are not ramps, they 
shall comply with certain technical requirements. The change is expected 
to have minimal impact.

[AG Order No. 3181-2010, 75 FR 56317, Sept. 15, 2010]



       Sec. Appendix C to Part 36--Guidance on ADA Regulation on 
 Nondiscrimination on the Basis of Disability by Public Accommodations 
   and in Commercial Facilities originally published on 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

[[Page 934]]

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 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,

[[Page 935]]

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 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

[[Page 936]]

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 (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.

[[Page 937]]

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 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.

[[Page 938]]

    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 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,

[[Page 939]]

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 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.

[[Page 940]]

    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 categories. While the list of 
categories is exhaustive, the representative examples of facilities 
within each category are not. Within each category only a few examples 
are given. The category of social service center establishments would 
include not only the types of establishments listed, day care centers, 
senior citizen centers, homeless shelters, food banks, adoption 
agencies, but also establishments such as substance abuse treatment 
centers, rape crisis centers, and halfway houses. As another example, 
the category of sales or rental establishments would include an 
innumerable array of facilities that would sweep far beyond the few 
examples given in the regulation. For example, other retail or wholesale 
establishments selling or renting items, such as bookstores, videotape 
rental stores, car rental establishment, pet stores, and jewelry stores 
would also be covered under this category, even though they are not 
specifically listed.
    Several commenters requested clarification as to the coverage of 
wholesale establishments under the category of ``sales or rental 
establishments.'' The Department intends for wholesale establishments to 
be covered under this category as places of public accommodation except 
in cases where they sell exclusively to other businesses and not to 
individuals. For example, a company that grows food produce and supplies 
its crops exclusively to food processing corporations on a wholesale 
basis does not become a public accommodation because of these 
transactions. If this company operates a road side stand where its crops 
are sold to the public, the road side stand would be a sales 
establishment covered by the ADA. Conversely, a sales establishment that 
markets its goods as ``wholesale to the public'' and sells to 
individuals would not be exempt from ADA coverage despite its use of the 
word ``wholesale'' as a marketing technique.
    Of course, a company that operates a place of public accommodation 
is subject to this part only in the operation of that place of public 
accommodation. In the example given above, the wholesale produce company 
that operates a road side stand would be a public accommodation only for 
the purposes of the operation of that stand. The company would be 
prohibited from discriminating on the basis of disability in the 
operation of the road side stand, and it would be required to remove 
barriers to physical access to the extent that it is readily achievable 
to do so (see Sec. 36.304); however, in the event that it is not readily 
achievable to remove barriers, for example, by replacing a gravel 
surface or regrading the area around the stand to permit access by 
persons with mobility impairments, the company could meet its 
obligations through alternative methods of making its goods available, 
such as delivering produce to a customer in his or her car (see 
Sec. 36.305). The concepts of readily achievable barrier removal and 
alternatives to barrier removal are discussed further in the preamble 
discussion of Secs. 36.304 and 36.305.
    Even if a facility does not fall within one of the 12 categories, 
and therefore does not qualify as a place of public accommodation, it 
still may be a commercial facility as defined in Sec. 36.104 and be 
subject to the new construction and alterations requirements of subpart 
D.
    A number of commenters questioned the treatment of residential 
hotels and other residential facilities in the Department's proposed 
rule. These commenters were essentially seeking resolution of the 
relationship between the Fair Housing Act and the ADA concerning 
facilities that are both residential in nature and engage in activities 
that would cause them to be classified as ``places of public 
accommodation'' under the ADA. The ADA's express exemption relating to 
the Fair Housing Act applies only to ``commercial facilities'' and not 
to ``places of public accommodation.''
    A facility whose operations affect interstate commerce is a place of 
public accommodation for purposes of the ADA to the extent that its 
operations include those types of activities engaged in or services 
provided by the facilities contained on the list of 12 categories in 
section 301(7) of the ADA. Thus, a facility that provides social 
services would be considered a ``social service center establishment.'' 
Similarly, the category ``places of lodging'' would exclude solely 
residential facilities because the nature of a place of lodging 
contemplates the use of the facility for short-term stays.
    Many facilities, however, are mixed use facilities. For example, in 
a large hotel that has a separate residential apartment wing, the 
residential wing would not be covered by the ADA because of the nature 
of the occupancy of that part of the facility. This residential wing 
would, however, be covered by the Fair Housing Act. The separate 
nonresidential accommodations in the rest of the hotel would be a place 
of lodging, and thus a public accommodation subject to the requirements 
of this final rule. If a hotel allows both residential and short-term 
stays, but does not allocate space for these different uses in separate, 
discrete units, both the ADA and the Fair Housing Act may

[[Page 941]]

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 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

[[Page 942]]

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 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

[[Page 943]]

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 or considerations of confidentiality that may adversely 
affect the ability to interpret ``effectively, accurately, and 
impartially.''
    ``Readily achievable.'' The definition of ``readily achievable'' 
follows the statutory definition of that term in section 301(9) of the 
ADA. Readily achievable means easily accomplishable and able to be 
carried out without much difficulty or expense. The term is used as a 
limitation on the obligation to remove barriers under Secs. 36.304(a), 
36.305(a), 36.308(a), and 36.310(b). Further discussion of the meaning 
and application of the term ``readily achievable'' may be found in the 
preamble section for Sec. 36.304.
    The definition lists factors to be considered in determining whether 
barrier removal is readily achievable in any particular circumstance. A 
significant number of commenters objected to Sec. 36.306 of the proposed 
rule, which listed identical factors to be considered for determining 
``readily achievable'' and ``undue burden'' together in one section. 
They asserted that providing a consolidated section blurred the 
distinction between the level of effort required by a public 
accommodation under the two standards. The readily achievable standard 
is a ``lower'' standard than the ``undue burden'' standard in terms of 
the level of effort required, but the factors used in determining 
whether an action is readily achievable or would result in an undue 
burden are identical (See Education and Labor report at 109). Although 
the preamble to the proposed rule clearly delineated the relationship 
between the two standards, to eliminate any confusion the Department has 
deleted Sec. 36.306 of the proposed rule. That section, in any event, as 
other commenters noted, had merely repeated the lists of factors 
contained in the definitions of readily achievable and undue burden.
    The list of factors included in the definition is derived from 
section 301(9) of the ADA. It reflects the congressional intention that 
a wide range of factors be considered in determining whether an action 
is readily achievable. It also takes into account that many local 
facilities are owned or operated by parent corporations or entities that 
conduct operations at many different sites. This section makes clear 
that, in some instances, resources beyond those of the local facility 
where the barrier must be removed may be relevant in determining whether 
an action is readily achievable. One must also evaluate the degree to 
which any parent entity has resources that may be allocated to the local 
facility.
    The statutory list of factors in section 301(9) of the Act uses the 
term ``covered entity'' to refer to the larger entity of which a 
particular facility may be a part. ``Covered entity'' is not a defined 
term in the ADA and is not used consistently throughout the Act. The 
definition, therefore, substitutes the term ``parent entity'' in place 
of ``covered entity'' in paragraphs (3), (4), and (5) when referring to 
the larger private entity whose overall resources may be taken into 
account. This usage is consistent with the House Judiciary Committee's 
use of the term ``parent company'' to describe the larger entity of 
which the local facility is a part (H.R. Rep. No. 485, 101st Cong., 2d 
Sess., pt. 3, at 40-41, 54-55 (1990) (hereinafter ``Judiciary 
report'')).
    A number of commenters asked for more specific guidance as to when 
and how the resources of a parent corporation or entity are to be taken 
into account in determining what is readily achievable. The Department 
believes that this complex issue is most appropriately resolved on a 
case-by-case basis. As the comments reflect, there is a wide variety of 
possible relationships between the site in question and any parent 
corporation or other entity. It would be unwise to posit legal 
ramifications under the ADA of even generic relationships (e.g., banks 
involved in foreclosures or insurance companies operating as trustees or 
in other similar fiduciary relationships), because any analysis will 
depend so completely on the detailed fact situations and the exact 
nature of the legal relationships involved. The final rule does, 
however, reorder the factors to be considered. This shift and the 
addition of the phrase ``if applicable'' make clear that the line of 
inquiry concerning factors will start at the site involved in the action 
itself. This change emphasizes that the overall resources, size, and 
operations of the parent corporation or entity should be considered to 
the extent appropriate in light of ``the geographic separateness, and 
the administrative or fiscal relationship of the site or sites in 
question to any parent corporation or entity.''
    Although some commenters sought more specific numerical guidance on 
the definition of readily achievable, the Department has declined to 
establish in the final rule any kind of numerical formula for 
determining whether an action is readily achievable. It would be 
difficult to devise a specific ceiling on compliance costs that would 
take into account the vast diversity of enterprises covered by the ADA's 
public accommodations requirements and the economic situation that any 
particular entity would find itself in at any moment. The final rule, 
therefore,

[[Page 944]]

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.
    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.

[[Page 945]]

    ``Undue burden.'' The definition of ``undue burden'' is analogous to 
the statutory definition of ``undue hardship'' in employment under 
section 101(10) of the ADA. The term undue burden means ``significant 
difficulty or expense'' and serves as a limitation on the obligation to 
provide auxiliary aids and services under Sec. 36.303 and Secs. 36.309 
(b)(3) and (c)(3). Further discussion of the meaning and application of 
the term undue burden may be found in the preamble discussion of 
Sec. 36.303.
    The definition lists factors considered in determining whether 
provision of an auxiliary aid or service in any particular circumstance 
would result in an undue burden. The factors to be considered in 
determining whether an action would result in an undue burden are 
identical to those to be considered in determining whether an action is 
readily achievable. However, ``readily achievable'' is a lower standard 
than ``undue burden'' in that it requires a lower level of effort on the 
part of the public accommodation (see Education and Labor report at 
109).
    Further analysis of the factors to be considered in determining 
undue burden may be found in the preamble discussion of the definition 
of the term ``readily achievable.''

                     Subpart B--General Requirements

    Subpart B includes general prohibitions restricting a public 
accommodation from discriminating against people with disabilities by 
denying them the opportunity to benefit from goods or services, by 
giving them unequal goods or services, or by giving them different or 
separate goods or services. These general prohibitions are patterned 
after the basic, general prohibitions that exist in other civil rights 
laws that prohibit discrimination on the basis of race, sex, color, 
religion, or national origin.

                         Section 36.201  General

    Section 36.201(a) contains the general rule that prohibits 
discrimination on the basis of disability in the full and equal 
enjoyment of goods, services, facilities, privileges, advantages, and 
accommodations of any place of public accommodation.
    Full and equal enjoyment means the right to participate and to have 
an equal opportunity to obtain the same results as others to the extent 
possible with such accommodations as may be required by the Act and 
these regulations. It does not mean that an individual with a disability 
must achieve an identical result or level of achievement as persons 
without a disability. For example, an exercise class cannot exclude a 
person who uses a wheelchair because he or she cannot do all of the 
exercises and derive the same result from the class as persons without a 
disability.
    Section 302(a) of the ADA states that the prohibition against 
discrimination applies to ``any person who owns, leases (or leases to), 
or operates a place of public accommodation,'' and this language is 
reflected in Sec. 36.201(a). The coverage is quite extensive and would 
include sublessees, management companies, and any other entity that 
owns, leases, leases to, or operates a place of public accommodation, 
even if the operation is only for a short time.
    The first sentence of paragraph (b) of Sec. 36.201 reiterates the 
general principle that both the landlord that owns the building that 
houses the place of public accommodation, as well as the tenant that 
owns or operates the place of public accommodation, are public 
accommodations subject to the requirements of this part. Although the 
statutory language could be interpreted as placing equal responsibility 
on all private entities, whether lessor, lessee, or operator of a public 
accommodation, the committee reports suggest that liability may be 
allocated. Section 36.201(b) of that section of the proposed rule 
attempted to allocate liability in the regulation itself. Paragraph 
(b)(2) of that section made a specific allocation of liability for the 
obligation to take readily achievable measures to remove barriers, and 
paragraph (b)(3) made a specific allocation for the obligation to 
provide auxiliary aids.
    Numerous commenters pointed out that these allocations would not 
apply in all situations. Some asserted that paragraph (b)(2) of the 
proposed rule only addressed the situation when a lease gave the tenant 
the right to make alterations with permission of the landlord, but 
failed to address other types of leases, e.g., those that are silent on 
the right to make alterations, or those in which the landlord is not 
permitted to enter a tenant's premises to make alterations. Several 
commenters noted that many leases contain other clauses more relevant to 
the ADA than the alterations clause. For example, many leases contain a 
``compliance clause,'' a clause which allocates responsibility to a 
particular party for compliance with all relevant Federal, State, and 
local laws. Many commenters pointed out various types of relationships 
that were left unaddressed by the regulation, e.g., sale and leaseback 
arrangements where the landlord is a financial institution with no 
control or responsibility for the building; franchises; subleases; and 
management companies which, at least in the hotel industry, often have 
control over operations but are unable to make modifications to the 
premises.
    Some commenters raised specific questions as to how the barrier 
removal allocation would work as a practical matter. Paragraph (b)(2) of 
the proposed rule provided that the burden of making readily achievable 
modifications within the tenant's place of public accommodation would 
shift to the landlord when the modifications were not readily

[[Page 946]]

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 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.

[[Page 947]]

    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 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

[[Page 948]]

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 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

[[Page 949]]

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. 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

[[Page 950]]

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 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

[[Page 951]]

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 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.

[[Page 952]]

    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 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

[[Page 953]]

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 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

[[Page 954]]

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 condition for participation in some drug rehabilitation 
programs, and may be a necessary requirement in inpatient or residential 
settings. The Department believes that this comment is well-founded. 
Congress clearly did not intend to exclude from drug treatment programs 
the very individuals who need such programs because of their use of 
drugs. In such a situation, however, once an individual has been 
admitted to a program, abstention may be a necessary and appropriate 
condition to continued participation. The final rule therefore provides 
that a drug rehabilitation or treatment program may deny participation 
to individuals who use drugs while they are in the program.
    Paragraph (c) expresses Congress' intention that the Act be neutral 
with respect to testing for illegal use of drugs. This paragraph 
implements the provision in section 510(b) of the Act that allows 
entities ``to adopt or administer reasonable policies or procedures, 
including but not limited to drug testing,'' that ensure an individual 
who is participating in a supervised rehabilitation program, or who has 
completed such a program or otherwise been rehabilitated successfully, 
is no longer engaging in the illegal use of drugs. Paragraph (c) is not 
to be construed to encourage, prohibit, restrict, or authorize the 
conducting of testing for the illegal use of drugs.
    Paragraph (c) of Sec. 36.209 clarifies that it is not a violation of 
this part to adopt or administer reasonable policies or procedures to 
ensure that an individual who formerly engaged in the illegal use of 
drugs is not currently engaging in illegal use of drugs. Any such 
policies or procedures must, of course, be reasonable, and must be 
designed to identify accurately the illegal use of drugs. This paragraph 
does not authorize inquiries, tests, or other procedures that would 
disclose use of substances that are not controlled substances or are 
taken under supervision by a licensed health care professional, or other 
uses authorized by the Controlled Substances Act or other provisions of 
Federal law, because such uses are not included in the definition of 
``illegal use of drugs.''
    One commenter argued that the rule should permit testing for lawful 
use of prescription drugs, but most favored the explanation that tests 
must be limited to unlawful use in order to avoid revealing the use of 
prescription medicine used to treat disabilities. Tests revealing legal 
use of prescription drugs might violate the prohibition in Sec. 36.301 
of attempts to unnecessarily identify the existence of a disability.

                         Section 36.210  Smoking

    Section 36.210 restates the clarification in section 501(b) of the 
Act that the Act does not preclude the prohibition of, or imposition of 
restrictions on, smoking. Some commenters argued that Sec. 36.210 does 
not go far enough, and that the regulation should prohibit smoking in 
all places of public accommodation. The reference to smoking in section 
501 merely clarifies that the Act does not require public accommodations 
to accommodate smokers by permitting them to smoke in places of public 
accommodations.

           Section 36.211  Maintenance of Accessible Features

    Section 36.211 provides that a public accommodation shall maintain 
in operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons with 
disabilities by the Act or this part. The Act requires that, to the 
maximum extent feasible, facilities must be accessible to, and usable 
by, individuals with disabilities. This section recognizes that it is 
not sufficient to provide features such as accessible routes, elevators, 
or ramps, if those features are not maintained in a manner that enables 
individuals with disabilities to use them. Inoperable elevators, locked 
accessible doors, or ``accessible'' routes that are obstructed by 
furniture, filing cabinets, or potted plants are neither ``accessible 
to'' nor ``usable by'' individuals with disabilities.
    Some commenters objected that this section appeared to establish an 
absolute requirement and suggested that language from the preamble be 
included in the text of the regulation. It is, of course, impossible to 
guarantee that mechanical devices will never fail to operate. Paragraph 
(b) of the final regulation provides that this section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs. This paragraph is intended to clarify that 
temporary obstructions or isolated instances of mechanical failure would 
not be considered violations of the Act or this part. However, allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance. Failure 
of the public accommodation to ensure that accessible routes are 
properly maintained and free of obstructions, or failure to arrange 
prompt

[[Page 955]]

repair of inoperable elevators or other equipment intended to provide 
access, would also violate this part.
    Other commenters requested that this section be expanded to include 
specific requirements for inspection and maintenance of equipment, for 
training staff in the proper operation of equipment, and for maintenance 
of specific items. The Department believes that this section properly 
establishes the general requirement for maintaining access and that 
further, more detailed requirements are not necessary.

                        Section 36.212  Insurance

    The Department received numerous comments on proposed Sec. 36.212. 
Most supported the proposed regulation but felt that it did not go far 
enough in protecting individuals with disabilities and persons 
associated with them from discrimination. Many commenters argued that 
language from the preamble to the proposed regulation should be included 
in the text of the final regulation. Other commenters argued that even 
that language was not strong enough, and that more stringent standards 
should be established. Only a few commenters argued that the Act does 
not apply to insurance underwriting practices or the terms of insurance 
contracts. These commenters cited language from the Senate committee 
report (S. Rep. No. 116, 101st Cong., 1st Sess., at 84-86 (1989) 
(hereinafter ``Senate report'')), indicating that Congress did not 
intend to affect existing insurance practices.
    The Department has decided to adopt the language of the proposed 
rule without change. Sections 36.212 (a) and (b) restate section 501(c) 
of the Act, which provides that the Act shall not be construed to 
restrict certain insurance practices on the part of insurance companies 
and employers, as long as such practices are not used to evade the 
purposes of the Act. Section 36.212(c) is a specific application of 
Sec. 36.202(a), which prohibits denial of participation on the basis of 
disability. It provides that a public accommodation may not refuse to 
serve an individual with a disability because of limitations on coverage 
or rates in its insurance policies (see Judiciary report at 56).
    Many commenters supported the requirements of Sec. 36.212(c) in the 
proposed rule because it addressed an important reason for denial of 
services by public accommodations. One commenter argued that services 
could be denied if the insurance coverage required exclusion of people 
whose disabilities were reasonably related to the risks involved in that 
particular place of public accommodation. Sections 36.208 and 36.301 
establish criteria for denial of participation on the basis of 
legitimate safety concerns. This paragraph does not prohibit 
consideration of such concerns in insurance policies, but provides that 
any exclusion on the basis of disability must be based on the 
permissible criteria, rather than on the terms of the insurance 
contract.
    Language in the committee reports indicates that Congress intended 
to reach insurance practices by prohibiting differential treatment of 
individuals with disabilities in insurance offered by public 
accommodations unless the differences are justified. ``Under the ADA, a 
person with a disability cannot be denied insurance or be subject to 
different terms or conditions of insurance based on disability alone, if 
the disability does not pose increased risks'' (Senate report at 84; 
Education and Labor report at 136). Section 501(c) (1) of the Act was 
intended to emphasize that ``insurers may continue to sell to and 
underwrite individuals applying for life, health, or other insurance on 
an individually underwritten basis, or to service such insurance 
products, so long as the standards used are based on sound actuarial 
data and not on speculation'' (Judiciary report at 70 (emphasis added); 
see also Senate report at 85; Education and Labor report at 137).
    The committee reports indicate that underwriting and classification 
of risks must be ``based on sound actuarial principles or be related to 
actual or reasonably anticipated experience'' (see, e.g., Judiciary 
report at 71). Moreover, ``while a plan which limits certain kinds of 
coverage based on classification of risk would be allowed * * *, the 
plan may not refuse to insure, or refuse to continue to insure, or limit 
the amount, extent, or kind of coverage available to an individual, or 
charge a different rate for the same coverage solely because of a 
physical or mental impairment, except where the refusal, limitation, or 
rate differential is based on sound actuarial principles or is related 
to actual or reasonably anticipated experience'' (Senate report at 85; 
Education and Labor report at 136-37; Judiciary report at 71). The ADA, 
therefore, does not prohibit use of legitimate actuarial considerations 
to justify differential treatment of individuals with disabilities in 
insurance.
    The committee reports provide some guidance on how nondiscrimination 
principles in the disability rights area relate to insurance practices. 
For example, a person who is blind may not be denied coverage based on 
blindness independent of actuarial risk classification. With respect to 
group health insurance coverage, an individual with a pre-existing 
condition may be denied coverage for that condition for the period 
specified in the policy, but cannot be denied coverage for illness or 
injuries unrelated to the pre-existing condition. Also, a public 
accommodation may offer insurance policies that limit coverage for 
certain procedures or treatments, but may not entirely deny coverage to 
a person with a disability.

[[Page 956]]

    The Department requested comment on the extent to which data that 
would establish statistically sound correlations are available. Numerous 
commenters cited pervasive problems in the availability and cost of 
insurance for individuals with disabilities and parents of children with 
disabilities. No commenters cited specific data, or sources of data, to 
support specific exclusionary practices. Several commenters reported 
that, even when statistics are available, they are often outdated and do 
not reflect current medical technology and treatment methods. Concern 
was expressed that adequate efforts are not made to distinguish those 
individuals who are high users of health care from individuals in the 
same diagnostic groups who may be low users of health care. One insurer 
reported that ``hard data and actuarial statistics are not available to 
provide precise numerical justifications for every underwriting 
determination,'' but argued that decisions may be based on ``logical 
principles generally accepted by actuarial science and fully consistent 
with state insurance laws.'' The commenter urged that the Department 
recognize the validity of information other than statistical data as a 
basis for insurance determinations.
    The most frequent comment was a recommendation that the final 
regulation should require the insurance company to provide a copy of the 
actuarial data on which its actions are based when requested by the 
applicant. Such a requirement would be beyond anything contemplated by 
the Act or by Congress and has therefore not been included in the 
Department's final rule. Because the legislative history of the ADA 
clarifies that different treatment of individuals with disabilities in 
insurance may be justified by sound actuarial data, such actuarial data 
will be critical to any potential litigation on this issue. This 
information would presumably be obtainable in a court proceeding where 
the insurer's actuarial data was the basis for different treatment of 
persons with disabilities. In addition, under some State regulatory 
schemes, insurers may have to file such actuarial information with the 
State regulatory agency and this information may be obtainable at the 
State level.
    A few commenters representing the insurance industry conceded that 
underwriting practices in life and health insurance are clearly covered, 
but argued that property and casualty insurance are not covered. The 
Department sees no reason for this distinction. Although life and health 
insurance are the areas where the regulation will have its greatest 
application, the Act applies equally to unjustified discrimination in 
all types of insurance provided by public accommodations. A number of 
commenters, for example, reported difficulties in obtaining automobile 
insurance because of their disabilities, despite their having good 
driving records.

      Section 36.213  Relationship of Subpart 8 to Subparts C and D

    This section explains that subpart B sets forth the general 
principles of nondiscrimination applicable to all entities subject to 
this regulation, while subparts C and D provide guidance on the 
application of this part to specific situations. The specific provisions 
in subparts C and D, including the limitations on those provisions, 
control over the general provisions in circumstances where both specific 
and general provisions apply. Resort to the general provisions of 
subpart B is only appropriate where there are no applicable specific 
rules of guidance in subparts C or D. This interaction between the 
specific requirements and the general requirements operates with regard 
to contractual obligations as well.
    One illustration of this principle is its application to the 
obligation of a public accommodation to provide access to services by 
removal of architectural barriers or by alternatives to barrier removal. 
The general requirement, established in subpart B by Sec. 36.203, is 
that a public accommodation must provide its services to individuals 
with disabilities in the most integrated setting appropriate. This 
general requirement would appear to categorically prohibit 
``segregated'' seating for persons in wheelchairs. Section 36.304, 
however, only requires removal of architectural barriers to the extent 
that removal is ``readily achievable.'' If providing access to all areas 
of a restaurant, for example, would not be ``readily achievable,'' a 
public accommodation may provide access to selected areas only. Also, 
Sec. 36.305 provides that, where barrier removal is not readily 
achievable, a public accommodation may use alternative, readily 
achievable methods of making services available, such as curbside 
service or home delivery. Thus, in this manner, the specific 
requirements of Secs. 36.304 and 36.305 control over the general 
requirement of Sec. 36.203.

                    Subpart C--Specific Requirements

    In general, subpart C implements the ``specific prohibitions'' that 
comprise section 302(b)(2) of the ADA. It also addresses the 
requirements of section 309 of the ADA regarding examinations and 
courses.

                  Section 36.301  Eligibility Criteria

    Section 36.301 of the rule prohibits the imposition or application 
of eligibility criteria that screen out or tend to screen out an 
individual with a disability or any class of individuals with 
disabilities from fully and equally enjoying any goods, services, 
facilities, privileges, advantages, and accommodations, unless such 
criteria can be shown to be

[[Page 957]]

necessary for the provision of the goods, services, facilities, 
privileges, advantages, or accommodations being offered. This 
prohibition is based on section 302(b)(2)(A)(i) of the ADA.
    It would violate this section to establish exclusive or segregative 
eligibility criteria that would bar, for example, all persons who are 
deaf from playing on a golf course or all individuals with cerebral 
palsy from attending a movie theater, or limit the seating of 
individuals with Down's syndrome to only particular areas of a 
restaurant. The wishes, tastes, or preferences of other customers may 
not be asserted to justify criteria that would exclude or segregate 
individuals with disabilities.
    Section 36.301 also prohibits attempts by a public accommodation to 
unnecessarily identify the existence of a disability; for example, it 
would be a violation of this section for a retail store to require an 
individual to state on a credit application whether the applicant has 
epilepsy, mental illness, or any other disability, or to inquire 
unnecessarily whether an individual has HIV disease.
    Section 36.301 also prohibits policies that unnecessarily impose 
requirements or burdens on individuals with disabilities that are not 
placed on others. For example, public accommodations may not require 
that an individual with a disability be accompanied by an attendant. As 
provided by Sec. 36.306, however, a public accommodation is not required 
to provide services of a personal nature including assistance in 
toileting, eating, or dressing.
    Paragraph (c) of Sec. 36.301 provides that public accommodations may 
not place a surcharge on a particular individual with a disability or 
any group of individuals with disabilities to cover the costs of 
measures, such as the provision of auxiliary aids and services, barrier 
removal, alternatives to barrier removal, and reasonable modifications 
in policies, practices, and procedures, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    A number of commenters inquired as to whether deposits required for 
the use of auxiliary aids, such as assistive listening devices, are 
prohibited surcharges. It is the Department's view that reasonable, 
completely refundable, deposits are not to be considered surcharges 
prohibited by this section. Requiring deposits is an important means of 
ensuring the availability of equipment necessary to ensure compliance 
with the ADA.
    Other commenters sought clarification as to whether Sec. 36.301(c) 
prohibits professionals from charging for the additional time that it 
may take in certain cases to provide services to an individual with 
disabilities. The Department does not intend Sec. 36.301(c) to prohibit 
professionals who bill on the basis of time from charging individuals 
with disabilities on that basis. However, fees may not be charged for 
the provision of auxiliary aids and services, barrier removal, 
alternatives to barrier removal, reasonable modifications in policies, 
practices, and procedures, or any other measures necessary to ensure 
compliance with the ADA.
    Other commenters inquired as to whether day care centers may charge 
for extra services provided to individuals with disabilities. As stated 
above, Sec. 36.302(c) is intended only to prohibit charges for measures 
necessary to achieve compliance with the ADA.
    Another commenter asserted that charges may be assessed for home 
delivery provided as an alternative to barrier removal under 
Sec. 36.305, when home delivery is provided to all customers for a fee. 
Charges for home delivery are permissible if home delivery is not 
considered an alternative to barrier removal. If the public 
accommodation offers an alternative, such as curb, carry-out, or 
sidewalk service for which no surcharge is assessed, then it may charge 
for home delivery in accordance with its standard pricing for home 
delivery.
    In addition, Sec. 36.301 prohibits the imposition of criteria that 
``tend to'' screen out an individual with a disability. This concept, 
which is derived from current regulations under section 504 (see, e.g., 
45 CFR 84.13), makes it discriminatory to impose policies or criteria 
that, while not creating a direct bar to individuals with disabilities, 
indirectly prevent or limit their ability to participate. For example, 
requiring presentation of a driver's license as the sole means of 
identification for purposes of paying by check would violate this 
section in situations where, for example, individuals with severe vision 
impairments or developmental disabilities or epilepsy are ineligible to 
receive a driver's license and the use of an alternative means of 
identification, such as another photo I.D. or credit card, is feasible.
    A public accommodation may, however, impose neutral rules and 
criteria that screen out, or tend to screen out, individuals with 
disabilities, if the criteria are necessary for the safe operation of 
the public accommodation. Examples of safety qualifications that would 
be justifiable in appropriate circumstances would include height 
requirements for certain amusement park rides or a requirement that all 
participants in a recreational rafting expedition be able to meet a 
necessary level of swimming proficiency. Safety requirements must be 
based on actual risks and not on speculation, stereotypes, or 
generalizations about individuals with disabilities.

   Section 36.302  Modifications in Policies, Practices, or Procedures

    Section 36.302 of the rule prohibits the failure to make reasonable 
modifications in policies, practices, and procedures when such

[[Page 958]]

modifications may be necessary to afford any goods, services, 
facilities, privileges, advantages, or accommodations, unless the entity 
can demonstrate that making such modifications would fundamentally alter 
the nature of such goods, services, facilities, privileges, advantages, 
or accommodations. This prohibition is based on section 302(b)(2)(A)(ii) 
of the ADA.
    For example, a parking facility would be required to modify a rule 
barring all vans or all vans with raised roofs, if an individual who 
uses a wheelchair-accessible van wishes to park in that facility, and if 
overhead structures are high enough to accommodate the height of the 
van. A department store may need to modify a policy of only permitting 
one person at a time in a dressing room, if an individual with mental 
retardation needs and requests assistance in dressing from a companion. 
Public accommodations may need to revise operational policies to ensure 
that services are available to individuals with disabilities. For 
instance, a hotel may need to adopt a policy of keeping an accessible 
room unoccupied until an individual with a disability arrives at the 
hotel, assuming the individual has properly reserved the room.
    One example of application of this principle is specifically 
included in a new Sec. 36.302(d) on check-out aisles. That paragraph 
provides that a store with check-out aisles must ensure that an adequate 
number of accessible check-out aisles is kept open during store hours, 
or must otherwise modify its policies and practices, in order to ensure 
that an equivalent level of convenient service is provided to 
individuals with disabilities as is provided to others. For example, if 
only one check-out aisle is accessible, and it is generally used for 
express service, one way of providing equivalent service is to allow 
persons with mobility impairments to make all of their purchases at that 
aisle. This principle also applies with respect to other accessible 
elements and services. For example, a particular bank may be in 
compliance with the accessibility guidelines for new construction 
incorporated in appendix A with respect to automated teller machines 
(ATM) at a new branch office by providing one accessible walk-up machine 
at that location, even though an adjacent walk-up ATM is not accessible 
and the drive-up ATM is not accessible. However, the bank would be in 
violation of this section if the accessible ATM was located in a lobby 
that was locked during evening hours while the drive-up ATM was 
available to customers without disabilities during those same hours. The 
bank would need to ensure that the accessible ATM was available to 
customers during the hours that any of the other ATM's was available.
    A number of commenters inquired as to the relationship between this 
section and Sec. 36.307, ``Accessible or special goods.'' Under 
Sec. 36.307, a public accommodation is not required to alter its 
inventory to include accessible or special goods that are designed for, 
or facilitate use by, individuals with disabilities. The rule enunciated 
in Sec. 36.307 is consistent with the ``fundamental alteration'' defense 
to the reasonable modifications requirement of Sec. 36.302. Therefore, 
Sec. 36.302 would not require the inventory of goods provided by a 
public accommodation to be altered to include goods with accessibility 
features. For example, Sec. 36.302 would not require a bookstore to 
stock Brailled books or order Brailled books, if it does not do so in 
the normal course of its business.
    The rule does not require modifications to the legitimate areas of 
specialization of service providers. Section 36.302(b) provides that a 
public accommodation may refer an individual with a disability to 
another public accommodation, if that individual is seeking, or 
requires, treatment or services outside of the referring public 
accommodation's area of specialization, and if, in the normal course of 
its operations, the referring public accommodation would make a similar 
referral for an individual without a disability who seeks or requires 
the same treatment or services.
    For example, it would not be discriminatory for a physician who 
specializes only in burn treatment to refer an individual who is deaf to 
another physician for treatment of an injury other than a burn injury. 
To require a physician to accept patients outside of his or her 
specialty would fundamentally alter the nature of the medical practice 
and, therefore, not be required by this section.
    A clinic specializing exclusively in drug rehabilitation could 
similarly refuse to treat a person who is not a drug addict, but could 
not refuse to treat a person who is a drug addict simply because the 
patient tests positive for HIV. Conversely, a clinic that specializes in 
the treatment of individuals with HIV could refuse to treat an 
individual that does not have HIV, but could not refuse to treat a 
person for HIV infection simply because that person is also a drug 
addict.
    Some commenters requested clarification as to how this provision 
would apply to situations where manifestations of the disability in 
question, itself, would raise complications requiring the expertise of a 
different practitioner. It is not the Department's intention in 
Sec. 36.302(b) to prohibit a physician from referring an individual with 
a disability to another physician, if the disability itself creates 
specialized complications for the patient's health that the physician 
lacks the experience or knowledge to address (see Education and Labor 
report at 106).
    Section 36.302(c)(1) requires that a public accommodation modify its 
policies, practices, or procedures to permit the use of a

[[Page 959]]

service animal by an individual with a disability in any area open to 
the general public. The term ``service animal'' is defined in 
Sec. 36.104 to include guide dogs, signal dogs, or any other animal 
individually trained to provide assistance to an individual with a 
disability.
    A number of commenters pointed to the difficulty of making the 
distinction required by the proposed rule between areas open to the 
general public and those that are not. The ambiguity and uncertainty 
surrounding these provisions has led the Department to adopt a single 
standard for all public accommodations.
    Section 36.302(c)(1) of the final rule now provides that 
``[g]enerally, a public accommodation shall modify policies, practices, 
and procedures to permit the use of a service animal by an individual 
with a disability.'' This formulation reflects the general intent of 
Congress that public accommodations take the necessary steps to 
accommodate service animals and to ensure that individuals with 
disabilities are not separated from their service animals. It is 
intended that the broadest feasible access be provided to service 
animals in all places of public accommodation, including movie theaters, 
restaurants, hotels, retail stores, hospitals, and nursing homes (see 
Education and Labor report at 106; Judiciary report at 59). The section 
also acknowledges, however, that, in rare circumstances, accommodation 
of service animals may not be required because a fundamental alteration 
would result in the nature of the goods, services, facilities, 
privileges, or accommodations offered or provided, or the safe operation 
of the public accommodation would be jeopardized.
    As specified in Sec. 36.302(c)(2), the rule does not require a 
public accommodation to supervise or care for any service animal. If a 
service animal must be separated from an individual with a disability in 
order to avoid a fundamental alteration or a threat to safety, it is the 
responsibility of the individual with the disability to arrange for the 
care and supervision of the animal during the period of separation.
    A museum would not be required by Sec. 36.302 to modify a policy 
barring the touching of delicate works of art in order to enhance the 
participation of individuals who are blind, if the touching threatened 
the integrity of the work. Damage to a museum piece would clearly be a 
fundamental alteration that is not required by this section.

              Section 36.303  Auxiliary Aids and Services.

    Section 36.303 of the final rule requires a public accommodation to 
take such steps as may be necessary to ensure that no individual with a 
disability is excluded, denied services, segregated or otherwise treated 
differently than other individuals because of the absence of auxiliary 
aids and services, unless the public accommodation can demonstrate that 
taking such steps would fundamentally alter the nature of the goods, 
services, facilities, advantages, or accommodations being offered or 
would result in an undue burden. This requirement is based on section 
302(b)(2)(A)(iii) of the ADA.
    Implicit in this duty to provide auxiliary aids and services is the 
underlying obligation of a public accommodation to communicate 
effectively with its customers, clients, patients, or participants who 
have disabilities affecting hearing, vision, or speech. To give emphasis 
to this underlying obligation, Sec. 36.303(c) of the rule incorporates 
language derived from section 504 regulations for federally conducted 
programs (see e.g., 28 CFR 39.160(a)) that requires that appropriate 
auxiliary aids and services be furnished to ensure that communication 
with persons with disabilities is as effective as communication with 
others.
    Auxiliary aids and services include a wide range of services and 
devices for ensuring effective communication. Use of the most advanced 
technology is not required so long as effective communication is 
ensured. The Department's proposed Sec. 36.303(b) provided a list of 
examples of auxiliary aids and services that was taken from the 
definition of auxiliary aids and services in section 3(1) of the ADA and 
was supplemented by examples from regulations implementing section 504 
in federally conducted programs (see e.g., 28 CFR 39.103). A substantial 
number of commenters suggested that additional examples be added to this 
list. The Department has added several items to this list but wishes to 
clarify that the list is not an all-inclusive or exhaustive catalogue of 
possible or available auxiliary aids or services. It is not possible to 
provide an exhaustive list, and such an attempt would omit new devices 
that will become available with emerging technology.
    The Department has added videotext displays, computer-aided 
transcription services, and open and closed captioning to the list of 
examples. Videotext displays have become an important means of accessing 
auditory communications through a public address system. Transcription 
services are used to relay aurally delivered material almost 
simultaneously in written form to persons who are deaf or hard of 
hearing. This technology is often used at conferences, conventions, and 
hearings. While the proposed rule expressly included television decoder 
equipment as an auxiliary aid or service, it did not mention captioning 
itself. The final rule rectifies this omission by mentioning both closed 
and open captioning.
    In this section, the Department has changed the proposed rule's 
phrase, ``orally delivered materials,'' to the phrase, ``aurally 
delivered materials.'' This new phrase tracks the language in the 
definition of ``auxiliary aids and services'' in section 3 of the ADA

[[Page 960]]

and is meant to include nonverbal sounds and alarms and computer-
generated speech.
    Several persons and organizations requested that the Department 
replace the term ``telecommunications devices for deaf persons'' or 
``TDD's'' with the term ``text telephone.'' The Department has declined 
to do so. The Department is aware that the Architectural and 
Transportation Barriers Compliance Board has used the phrase ``text 
telephone'' in lieu of the statutory term ``TDD'' in its final 
accessibility guidelines. Title IV of the ADA, however, uses the term 
``Telecommunications Device for the Deaf,'' and the Department believes 
it would be inappropriate to abandon this statutory term at this time.
    Paragraph (b)(2) lists examples of aids and services for making 
visually delivered materials accessible to persons with visual 
impairments. Many commenters proposed additional examples such as 
signage or mapping, audio description services, secondary auditory 
programs (SAP), telebraillers, and reading machines. While the 
Department declines to add these items to the list in the regulation, 
they may be considered appropriate auxiliary aids and services.
    Paragraph (b)(3) refers to the acquisition or modification of 
equipment or devices. For example, tape players used for an audio-guided 
tour of a museum exhibit may require the addition of Brailled adhesive 
labels to the buttons on a reasonable number of the tape players to 
facilitate their use by individuals who are blind. Similarly, permanent 
or portable assistive listening systems for persons with hearing 
impairments may be required at a hotel conference center.
    Several commenters suggested the addition of current technological 
innovations in microelectronics and computerized control systems (e.g., 
voice recognition systems, automatic dialing telephones, and infrared 
elevator and light control systems) to the list of auxiliary aids and 
services. The Department interprets auxiliary aids and services as those 
aids and services designed to provide effective communications, i. e., 
making aurally and visually delivered information available to persons 
with hearing, speech, and vision impairments. Methods of making 
services, programs, or activities accessible to, or usable by, 
individuals with mobility or manual dexterity impairments are addressed 
by other sections of this part, including the requirements for 
modifications in policies, practices, or procedures (Sec. 36.302), the 
elimination of existing architectural barriers (Sec. 36.304), and the 
provision of alternatives to barriers removal (Sec. 36.305).
    Paragraph (b)(4) refers to other similar services and actions. 
Several commenters asked for clarification that ``similar services and 
actions'' include retrieving items from shelves, assistance in reaching 
a marginally accessible seat, pushing a barrier aside in order to 
provide an accessible route, or assistance in removing a sweater or 
coat. While retrieving an item from a shelf might be an ``auxiliary aid 
or service'' for a blind person who could not locate the item without 
assistance, it might be a readily achievable alternative to barrier 
removal for a person using a wheelchair who could not reach the shelf, 
or a reasonable modification to a self-service policy for an individual 
who lacked the ability to grasp the item. (Of course, a store would not 
be required to provide a personal shopper.) As explained above, 
auxiliary aids and services are those aids and services required to 
provide effective communications. Other forms of assistance are more 
appropriately addressed by other provisions of the final rule.
    The auxiliary aid requirement is a flexible one. A public 
accommodation can choose among various alternatives as long as the 
result is effective communication. For example, a restaurant would not 
be required to provide menus in Braille for patrons who are blind, if 
the waiters in the restaurant are made available to read the menu. 
Similarly, a clothing boutique would not be required to have Brailled 
price tags if sales personnel provide price information orally upon 
request; and a bookstore would not be required to make available a sign 
language interpreter, because effective communication can be conducted 
by notepad.
    A critical determination is what constitutes an effective auxiliary 
aid or service. The Department's proposed rule recommended that, in 
determining what auxiliary aid to use, the public accommodation consult 
with an individual before providing him or her with a particular 
auxiliary aid or service. This suggestion sparked a significant volume 
of public comment. Many persons with disabilities, particularly persons 
who are deaf or hard of hearing, recommended that the rule should 
require that public accommodations give ``primary consideration'' to the 
``expressed choice'' of an individual with a disability. These 
commenters asserted that the proposed rule was inconsistent with 
congressional intent of the ADA, with the Department's proposed rule 
implementing title II of the ADA, and with longstanding interpretations 
of section 504 of the Rehabilitation Act.
    Based upon a careful review of the ADA legislative history, the 
Department believes that Congress did not intend under title III to 
impose upon a public accommodation the requirement that it give primary 
consideration to the request of the individual with a disability. To the 
contrary, the legislative history demonstrates congressional intent to 
strongly encourage consulting with persons with disabilities. In its 
analysis of the ADA's auxiliary aids requirement for public 
accommodations, the House Education and Labor Committee stated that it 
``expects'' that

[[Page 961]]

``public accommodation(s) will consult with the individual with a 
disability before providing a particular auxiliary aid or service'' 
(Education and Labor report at 107). Some commenters also cited a 
different committee statement that used mandatory language as evidence 
of legislative intent to require primary consideration. However, this 
statement was made in the context of reasonable accommodations required 
by title I with respect to employment (Education and Labor report at 
67). Thus, the Department finds that strongly encouraging consultation 
with persons with disabilities, in lieu of mandating primary 
consideration of their expressed choice, is consistent with 
congressional intent.
    The Department wishes to emphasize that public accommodations must 
take steps necessary to ensure that an individual with a disability will 
not be excluded, denied services, segregated or otherwise treated 
differently from other individuals because of the use of inappropriate 
or ineffective auxiliary aids. In those situations requiring an 
interpreter, the public accommodations must secure the services of a 
qualified interpreter, unless an undue burden would result.
    In the analysis of Sec. 36.303(c) in the proposed rule, the 
Department gave as an example the situation where a note pad and written 
materials were insufficient to permit effective communication in a 
doctor's office when the matter to be decided was whether major surgery 
was necessary. Many commenters objected to this statement, asserting 
that it gave the impression that only decisions about major surgery 
would merit the provision of a sign language interpreter. The statement 
would, as the commenters also claimed, convey the impression to other 
public accommodations that written communications would meet the 
regulatory requirements in all but the most extreme situations. The 
Department, when using the example of major surgery, did not intend to 
limit the provision of interpreter services to the most extreme 
situations.
    Other situations may also require the use of interpreters to ensure 
effective communication depending on the facts of the particular case. 
It is not difficult to imagine a wide range of communications involving 
areas such as health, legal matters, and finances that would be 
sufficiently lengthy or complex to require an interpreter for effective 
communication. In some situations, an effective alternative to use of a 
notepad or an interpreter may be the use of a computer terminal upon 
which the representative of the public accommodation and the customer or 
client can exchange typewritten messages.
    Section 36.303(d) specifically addresses requirements for TDD's. 
Partly because of the availability of telecommunications relay services 
to be established under title IV of the ADA, Sec. 36.303(d)(2) provides 
that a public accommodation is not required to use a telecommunication 
device for the deaf (TDD) in receiving or making telephone calls 
incident to its operations. Several commenters were concerned that relay 
services would not be sufficient to provide effective access in a number 
of situations. Commenters argued that relay systems (1) do not provide 
effective access to the automated systems that require the caller to 
respond by pushing a button on a touch tone phone, (2) cannot operate 
fast enough to convey messages on answering machines, or to permit a TDD 
user to leave a recorded message, and (3) are not appropriate for 
calling crisis lines relating to such matters as rape, domestic 
violence, child abuse, and drugs where confidentiality is a concern. The 
Department believes that it is more appropriate for the Federal 
Communications Commission to address these issues in its rulemaking 
under title IV.
    A public accommodation is, however, required to make a TDD available 
to an individual with impaired hearing or speech, if it customarily 
offers telephone service to its customers, clients, patients, or 
participants on more than an incidental convenience basis. Where entry 
to a place of public accommodation requires use of a security entrance 
telephone, a TDD or other effective means of communication must be 
provided for use by an individual with impaired hearing or speech.
    In other words, individual retail stores, doctors' offices, 
restaurants, or similar establishments are not required by this section 
to have TDD's, because TDD users will be able to make inquiries, 
appointments, or reservations with such establishments through the relay 
system established under title IV of the ADA. The public accommodation 
will likewise be able to contact TDD users through the relay system. On 
the other hand, hotels, hospitals, and other similar establishments that 
offer nondisabled individuals the opportunity to make outgoing telephone 
calls on more than an incidental convenience basis must provide a TDD on 
request.
    Section 36.303(e) requires places of lodging that provide 
televisions in five or more guest rooms and hospitals to provide, upon 
request, a means for decoding closed captions for use by an individual 
with impaired hearing. Hotels should also provide a TDD or similar 
device at the front desk in order to take calls from guests who use 
TDD's in their rooms. In this way guests with hearing impairments can 
avail themselves of such hotel services as making inquiries of the front 
desk and ordering room service. The term ``hospital'' is used in its 
general sense and should be interpreted broadly.
    Movie theaters are not required by Sec. 36.303 to present open-
captioned films. However, other public accommodations that impart verbal 
information through soundtracks on

[[Page 962]]

films, video tapes, or slide shows are required to make such information 
accessible to persons with hearing impairments. Captioning is one means 
to make the information accessible to individuals with disabilities.
    The rule specifies that auxiliary aids and services include the 
acquisition or modification of equipment or devices. For example, tape 
players used for an audio-guided tour of a museum exhibit may require 
the addition of Brailled adhesive labels to the buttons on a reasonable 
number of the tape players to facilitate their use by individuals who 
are blind. Similarly, a hotel conference center may need to provide 
permanent or portable assistive listening systems for persons with 
hearing impairments.
    As provided in Sec. 36.303(f), a public accommodation is not 
required to provide any particular aid or service that would result 
either in a fundamental alteration in the nature of the goods, services, 
facilities, privileges, advantages, or accommodations offered or in an 
undue burden. Both of these statutory limitations are derived from 
existing regulations and caselaw under section 504 and are to be applied 
on a case-by-case basis (see, e.g., 28 CFR 39.160(d) and Southeastern 
Community College v. Davis, 442 U.S. 397 (1979)). Congress intended that 
``undue burden'' under Sec. 36.303 and ``undue hardship,'' which is used 
in the employment provisions of title I of the ADA, should be determined 
on a case-by-case basis under the same standards and in light of the 
same factors (Judiciary report at 59). The rule, therefore, in 
accordance with the definition of undue hardship in section 101(10) of 
the ADA, defines undue burden as ``significant difficulty or expense'' 
(see Secs. 36.104 and 36.303(a)) and requires that undue burden be 
determined in light of the factors listed in the definition in 36.104.
    Consistent with regulations implementing section 504 in federally 
conducted programs (see, e.g., 28 CFR 39.160(d)), Sec. 36.303(f) 
provides that the fact that the provision of a particular auxiliary aid 
or service would result in an undue burden does not relieve a public 
accommodation from the duty to furnish an alternative auxiliary aid or 
service, if available, that would not result in such a burden.
    Section 36.303(g) of the proposed rule has been deleted from this 
section and included in a new Sec. 36.306. That new section continues to 
make clear that the auxiliary aids requirement does not mandate the 
provision of individually prescribed devices, such as prescription 
eyeglasses or hearing aids.
    The costs of compliance with the requirements of this section may 
not be financed by surcharges limited to particular individuals with 
disabilities or any group of individuals with disabilities 
(Sec. 36.301(c)).

                   Section 36.304  Removal of Barriers

    Section 36.304 requires the removal of architectural barriers and 
communication barriers that are structural in nature in existing 
facilities, where such removal is readily achievable, i.e., easily 
accomplishable and able to be carried out without much difficulty or 
expense. This requirement is based on section 302(b)(2)(A)(iv) of the 
ADA.
    A number of commenters interpreted the phrase ``communication 
barriers that are structural in nature'' broadly to encompass the 
provision of communications devices such as TDD's, telephone handset 
amplifiers, assistive listening devices, and digital check-out displays. 
The statute, however, as read by the Department, limits the application 
of the phrase ``communications barriers that are structural in nature'' 
to those barriers that are an integral part of the physical structure of 
a facility. In addition to the communications barriers posed by 
permanent signage and alarm systems noted by Congress (see Education and 
Labor report at 110), the Department would also include among the 
communications barriers covered by Sec. 36.304 the failure to provide 
adequate sound buffers, and the presence of physical partitions that 
hamper the passage of sound waves between employees and customers. Given 
that Sec. 36.304's proper focus is on the removal of physical barriers, 
the Department believes that the obligation to provide communications 
equipment and devices such as TDD's, telephone handset amplifiers, 
assistive listening devices, and digital check-out displays is more 
appropriately determined by the requirements for auxiliary aids and 
services under Sec. 36.303 (see Education and Labor report at 107-108). 
The obligation to remove communications barriers that are structural in 
nature under Sec. 36.304, of course, is independent of any obligation to 
provide auxiliary aids and services under Sec. 36.303.
    The statutory provision also requires the readily achievable removal 
of certain barriers in existing vehicles and rail passenger cars. This 
transportation requirement is not included in Sec. 36.304, but rather in 
Sec. 36.310(b) of the rule.
    In striking a balance between guaranteeing access to individuals 
with disabilities and recognizing the legitimate cost concerns of 
businesses and other private entities, the ADA establishes different 
standards for existing facilities and new construction. In existing 
facilities, which are the subject of Sec. 36.304, where retrofitting may 
prove costly, a less rigorous degree of accessibility is required than 
in the case of new construction and alterations (see Secs. 36.401-
36.406) where accessibility can be more conveniently and economically 
incorporated in the initial stages of design and construction.
    For example, a bank with existing automatic teller machines (ATM's) 
would have to

[[Page 963]]

remove barriers to the use of the ATM's, if it is readily achievable to 
do so. Whether or not it is necessary to take actions such as ramping a 
few steps or raising or lowering an ATM would be determined by whether 
the actions can be accomplished easily and without much difficulty or 
expense.
    On the other hand, a newly constructed bank with ATM's would be 
required by Sec. 36.401 to have an ATM that is ``readily accessible to 
and usable by'' persons with disabilities in accordance with 
accessibility guidelines incorporated under Sec. 36.406.
    The requirement to remove architectural barriers includes the 
removal of physical barriers of any kind. For example, Sec. 36.304 
requires the removal, when readily achievable, of barriers caused by the 
location of temporary or movable structures, such as furniture, 
equipment, and display racks. In order to provide access to individuals 
who use wheelchairs, for example, restaurants may need to rearrange 
tables and chairs, and department stores may need to reconfigure display 
racks and shelves. As stated in Sec. 36.304(f), such actions are not 
readily achievable to the extent that they would result in a significant 
loss of selling or serving space. If the widening of all aisles in 
selling or serving areas is not readily achievable, then selected 
widening should be undertaken to maximize the amount of merchandise or 
the number of tables accessible to individuals who use wheelchairs. 
Access to goods and services provided in any remaining inaccessible 
areas must be made available through alternative methods to barrier 
removal, as required by Sec. 36.305.
    Because the purpose of title III of the ADA is to ensure that public 
accommodations are accessible to their customers, clients, or patrons 
(as opposed to their employees, who are the focus of title I), the 
obligation to remove barriers under Sec. 36.304 does not extend to areas 
of a facility that are used exclusively as employee work areas.
    Section 36.304(b) provides a wide-ranging list of the types of 
modest measures that may be taken to remove barriers and that are likely 
to be readily achievable. The list includes examples of measures, such 
as adding raised letter markings on elevator control buttons and 
installing flashing alarm lights, that would be used to remove 
communications barriers that are structural in nature. It is not an 
exhaustive list, but merely an illustrative one. Moreover, the inclusion 
of a measure on this list does not mean that it is readily achievable in 
all cases. Whether or not any of these measures is readily achievable is 
to be determined on a case-by-case basis in light of the particular 
circumstances presented and the factors listed in the definition of 
readily achievable (Sec. 36.104).
    A public accommodation generally would not be required to remove a 
barrier to physical access posed by a flight of steps, if removal would 
require extensive ramping or an elevator. Ramping a single step, 
however, will likely be readily achievable, and ramping several steps 
will in many circumstances also be readily achievable. The readily 
achievable standard does not require barrier removal that requires 
extensive restructuring or burdensome expense. Thus, where it is not 
readily achievable to do, the ADA would not require a restaurant to 
provide access to a restroom reachable only by a flight of stairs.
    Like Sec. 36.405, this section permits deference to the national 
interest in preserving significant historic structures. Barrier removal 
would not be considered ``readily achievable'' if it would threaten or 
destroy the historic significance of a building or facility that is 
eligible for listing in the National Register of Historic Places under 
the National Historic Preservation Act (16 U.S.C. 470, et seq.), or is 
designated as historic under State or local law.
    The readily achievable defense requires a less demanding level of 
exertion by a public accommodation than does the undue burden defense to 
the auxiliary aids requirements of Sec. 36.303. In that sense, it can be 
characterized as a ``lower'' standard than the undue burden standard. 
The readily achievable defense is also less demanding than the undue 
hardship defense in section 102(b)(5) of the ADA, which limits the 
obligation to make reasonable accommodation in employment. Barrier 
removal measures that are not easily accomplishable and are not able to 
be carried out without much difficulty or expense are not required under 
the readily achievable standard, even if they do not impose an undue 
burden or an undue hardship.
    Section 36.304(f)(1) of the proposed rule, which stated that 
``barrier removal is not readily achievable if it would result in 
significant loss of profit or significant loss of efficiency of 
operation,'' has been deleted from the final rule. Many commenters 
objected to this provision because it impermissibly introduced the 
notion of profit into a statutory standard that did not include it. 
Concern was expressed that, in order for an action not to be considered 
readily achievable, a public accommodation would inappropriately have to 
show, for example, not only that the action could not be done without 
``much difficulty or expense'', but that a significant loss of profit 
would result as well. In addition, some commenters asserted use of the 
word ``significant,'' which is used in the definition of undue hardship 
under title I (the standard for interpreting the meaning of undue burden 
as a defense to title III's auxiliary aids requirements) (see 
Secs. 36.104, 36.303(f)), blurs the fact that the readily achievable 
standard requires a lower

[[Page 964]]

level of effort on the part of a public accommodation than does the 
undue burden standard.
    The obligation to engage in readily achievable barrier removal is a 
continuing one. Over time, barrier removal that initially was not 
readily achievable may later be required because of changed 
circumstances. Many commenters expressed support for the Department's 
position that the obligation to comply with Sec. 36.304 is continuing in 
nature. Some urged that the rule require public accommodations to assess 
their compliance on at least an annual basis in light of changes in 
resources and other factors that would be relevant to determining what 
barrier removal measures would be readily achievable.
    Although the obligation to engage in readily achievable barrier 
removal is clearly a continuing duty, the Department has declined to 
establish any independent requirement for an annual assessment or self-
evaluation. It is best left to the public accommodations subject to 
Sec. 36.304 to establish policies to assess compliance that are 
appropriate to the particular circumstances faced by the wide range of 
public accommodations covered by the ADA. However, even in the absence 
of an explicit regulatory requirement for periodic self-evaluations, the 
Department still urges public accommodations to establish procedures for 
an ongoing assessment of their compliance with the ADA's barrier removal 
requirements. The Department recommends that this process include 
appropriate consultation with individuals with disabilities or 
organizations representing them. A serious effort at self-assessment and 
consultation can diminish the threat of litigation and save resources by 
identifying the most efficient means of providing required access.
    The Department has been asked for guidance on the best means for 
public accommodations to comply voluntarily with this section. Such 
information is more appropriately part of the Department's technical 
assistance effort and will be forthcoming over the next several months. 
The Department recommends, however, the development of an implementation 
plan designed to achieve compliance with the ADA's barrier removal 
requirements before they become effective on January 26, 1992. Such a 
plan, if appropriately designed and diligently executed, could serve as 
evidence of a good faith effort to comply with the requirements of 
Sec. 36.104. In developing an implementation plan for readily achievable 
barrier removal, a public accommodation should consult with local 
organizations representing persons with disabilities and solicit their 
suggestions for cost-effective means of making individual places of 
public accommodation accessible. Such organizations may also be helpful 
in allocating scarce resources and establishing priorities. Local 
associations of businesses may want to encourage this process and serve 
as the forum for discussions on the local level between disability 
rights organizations and local businesses.
    Section 36.304(c) recommends priorities for public accommodations in 
removing barriers in existing facilities. Because the resources 
available for barrier removal may not be adequate to remove all existing 
barriers at any given time, Sec. 36.304(c) suggests priorities for 
determining which types of barriers should be mitigated or eliminated 
first. The purpose of these priorities is to facilitate long-term 
business planning and to maximize, in light of limited resources, the 
degree of effective access that will result from any given level of 
expenditure.
    Although many commenters expressed support for the concept of 
establishing priorities, a significant number objected to their 
mandatory nature in the proposed rule. The Department shares the concern 
of these commenters that mandatory priorities would increase the 
likelihood of litigation and inappropriately reduce the discretion of 
public accommodations to determine the most effective mix of barrier 
removal measures to undertake in particular circumstances. Therefore, in 
the final rule the priorities are no longer mandatory.
    In response to comments that the priorities failed to address 
communications issues, the Department wishes to emphasize that the 
priorities encompass the removal of communications barriers that are 
structural in nature. It would be counter to the ADA's carefully wrought 
statutory scheme to include in this provision the wide range of 
communication devices that are required by the ADA's provisions on 
auxiliary aids and services. The final rule explicitly includes Brailled 
and raised letter signage and visual alarms among the examples of steps 
to remove barriers provided in Sec. 36.304(c)(2).
    Section 36.304(c)(1) places the highest priority on measures that 
will enable individuals with disabilities to physically enter a place of 
public accommodation. This priority on ``getting through the door'' 
recognizes that providing actual physical access to a facility from 
public sidewalks, public transportation, or parking is generally 
preferable to any alternative arrangements in terms of both business 
efficiency and the dignity of individuals with disabilities.
    The next priority, which is established in Sec. 36.304(c)(2), is for 
measures that provide access to those areas of a place of public 
accommodation where goods and services are made available to the public. 
For example, in a hardware store, to the extent that it is readily 
achievable to do so, individuals with disabilities should be given 
access not only to assistance at the front desk, but also access, like 
that available to other customers, to the retail display areas of the 
store.

[[Page 965]]

    The Department agrees with those commenters who argued that access 
to the areas where goods and services are provided is generally more 
important than the provision of restrooms. Therefore, the final rule 
reverses priorities two and three of the proposed rule in order to give 
lower priority to accessible restrooms. Consequently, the third priority 
in the final rule (Sec. 36.304(c)(3)) is for measures to provide access 
to restroom facilities and the last priority is placed on any remaining 
measures required to remove barriers.
    Section 36.304(d) requires that measures taken to remove barriers 
under Sec. 36.304 be subject to subpart D's requirements for alterations 
(except for the path of travel requirements in Sec. 36.403). It only 
permits deviations from the subpart D requirements when compliance with 
those requirements is not readily achievable. In such cases, 
Sec. 36.304(d) permits measures to be taken that do not fully comply 
with the subpart D requirements, so long as the measures do not pose a 
significant risk to the health or safety of individuals with 
disabilities or others.
    This approach represents a change from the proposed rule which 
stated that ``readily achievable'' measures taken solely to remove 
barriers under Sec. 36.304 are exempt from the alterations requirements 
of subpart D. The intent of the proposed rule was to maximize the 
flexibility of public accommodations in undertaking barrier removal by 
allowing deviations from the technical standards of subpart D. It was 
thought that allowing slight deviations would provide access and release 
additional resources for expanding the amount of barrier removal that 
could be obtained under the readily achievable standard.
    Many commenters, however, representing both businesses and 
individuals with disabilities, questioned this approach because of the 
likelihood that unsafe or ineffective measures would be taken in the 
absence of the subpart D standards for alterations as a reference point. 
Some advocated a rule requiring strict compliance with the subpart D 
standard.
    The Department in the final rule has adopted the view of many 
commenters that (1) public accommodations should in the first instance 
be required to comply with the subpart D standards for alterations where 
it is readily achievable to do so and (2) safe, readily achievable 
measures must be taken when compliance with the subpart D standards is 
not readily achievable. Reference to the subpart D standards in this 
manner will promote certainty and good design at the same time that 
permitting slight deviations will expand the amount of barrier removal 
that may be achieved under Sec. 36.304.
    Because of the inconvenience to individuals with disabilities and 
the safety problems involved in the use of portable ramps, 
Sec. 36.304(e) permits the use of a portable ramp to comply with 
Sec. 36.304(a) only when installation of a permanent ramp is not readily 
achievable. In order to promote safety, Sec. 36.304(e) requires that due 
consideration be given to the incorporation of features such as nonslip 
surfaces, railings, anchoring, and strength of materials in any portable 
ramp that is used.
    Temporary facilities brought in for use at the site of a natural 
disaster are subject to the barrier removal requirements of Sec. 36.304.
    A number of commenters requested clarification regarding how to 
determine when a public accommodation has discharged its obligation to 
remove barriers in existing facilities. For example, is a hotel required 
by Sec. 36.304 to remove barriers in all of its guest rooms? Or is some 
lesser percentage adequate? A new paragraph (g) has been added to 
Sec. 36.304 to address this issue. The Department believes that the 
degree of barrier removal required under Sec. 36.304 may be less, but 
certainly would not be required to exceed, the standards for alterations 
under the ADA Accessibility Guidelines incorporated by subpart D of this 
part (ADAAG). The ADA's requirements for readily achievable barrier 
removal in existing facilities are intended to be substantially less 
rigorous than those for new construction and alterations. It, therefore, 
would be obviously inappropriate to require actions under Sec. 36.304 
that would exceed the ADAAG requirements. Hotels, then, in order to 
satisfy the requirements of Sec. 36.304, would not be required to remove 
barriers in a higher percentage of rooms than required by ADAAG. If 
relevant standards for alterations are not provided in ADAAG, then 
reference should be made to the standards for new construction.

             Section 36.305  Alternatives to Barrier Removal

    Section 36.305 specifies that where a public accommodation can 
demonstrate that removal of a barrier is not readily achievable, the 
public accommodation must make its goods, services, facilities, 
privileges, advantages, or accommodations available through alternative 
methods, if such methods are readily achievable. This requirement is 
based on section 302(b)(2)(A)(v) of the ADA.
    For example, if it is not readily achievable for a retail store to 
raise, lower, or remove shelves or to rearrange display racks to provide 
accessible aisles, the store must, if readily achievable, provide a 
clerk or take other alternative measures to retrieve inaccessible 
merchandise. Similarly, if it is not readily achievable to ramp a long 
flight of stairs leading to the front door of a restaurant or a 
pharmacy, the restaurant or the pharmacy must take alternative measures, 
if readily achievable, such as providing curb service or home delivery. 
If, within a restaurant, it is not readily achievable to remove physical 
barriers to a certain section of a restaurant, the restaurant must, 
where it is readily

[[Page 966]]

achievable to do so, offer the same menu in an accessible area of the 
restaurant.
    Where alternative methods are used to provide access, a public 
accommodation may not charge an individual with a disability for the 
costs associated with the alternative method (see Sec. 36.301(c)). 
Further analysis of the issue of charging for alternative measures may 
be found in the preamble discussion of Sec. 36.301(c).
    In some circumstances, because of security considerations, some 
alternative methods may not be readily achievable. The rule does not 
require a cashier to leave his or her post to retrieve items for 
individuals with disabilities, if there are no other employees on duty.
    Section 36.305(c) of the proposed rule has been deleted and the 
requirements have been included in a new Sec. 36.306. That section makes 
clear that the alternative methods requirement does not mandate the 
provision of personal devices, such as wheelchairs, or services of a 
personal nature.
    In the final rule, Sec. 36.305(c) provides specific requirements 
regarding alternatives to barrier removal in multiscreen cinemas. In 
some situations, it may not be readily achievable to remove enough 
barriers to provide access to all of the theaters of a multiscreen 
cinema. If that is the case, Sec. 36.305(c) requires the cinema to 
establish a film rotation schedule that provides reasonable access for 
individuals who use wheelchairs to films being presented by the cinema. 
It further requires that reasonable notice be provided to the public as 
to the location and time of accessible showings. Methods for providing 
notice include appropriate use of the international accessibility symbol 
in a cinema's print advertising and the addition of accessibility 
information to a cinema's recorded telephone information line.

              Section 36.306  Personal Devices and Services

    The final rule includes a new Sec. 36.306, entitled ``Personal 
devices and services.'' Section 36.306 of the proposed rule, ``Readily 
achievable and undue burden: Factors to be considered,'' was deleted for 
the reasons described in the preamble discussion of the definition of 
the term ``readily achievable'' in Sec. 36.104. In place of 
Secs. 36.303(g) and 36.305(c) of the proposed rule, which addressed the 
issue of personal devices and services in the contexts of auxiliary aids 
and alternatives to barrier removal, Sec. 36.306 provides a general 
statement that the regulation does not require the provision of personal 
devices and services. This section states that a public accommodation is 
not required to provide its customers, clients, or participants with 
personal devices, such as wheelchairs; individually prescribed devices, 
such as prescription eyeglasses or hearing aids; or services of a 
personal nature including assistance in eating, toileting, or dressing.
    This statement serves as a limitation on all the requirements of the 
regulation. The personal devices and services limitation was intended to 
have general application in the proposed rule in all contexts where it 
was relevant. The final rule, therefore, clarifies, this point by 
including a general provision that will explicitly apply not just to 
auxiliary aids and services and alternatives to barrier removal, but 
across-the-board to include such relevant areas as modifications in 
policies, practices, and procedures (Sec. 36.302) and examinations and 
courses (Sec. 36.309), as well.
    The Department wishes to clarify that measures taken as alternatives 
to barrier removal, such as retrieving items from shelves or providing 
curb service or home delivery, are not to be considered personal 
services. Similarly, minimal actions that may be required as 
modifications in policies, practices, or procedures under Sec. 36.302, 
such as a waiter's removing the cover from a customer's straw, a 
kitchen's cutting up food into smaller pieces, or a bank's filling out a 
deposit slip, are not services of a personal nature within the meaning 
of Sec. 36.306. (Of course, such modifications may be required under 
Sec. 36.302 only if they are ``reasonable.'') Similarly, this section 
does not preclude the short-term loan of personal receivers that are 
part of an assistive listening system.
    Of course, if personal services are customarily provided to the 
customers or clients of a public accommodation, e.g., in a hospital or 
senior citizen center, then these personal services should also be 
provided to persons with disabilities using the public accommodation.

              Section 36.307  Accessible or Special Goods.

    Section 36.307 establishes that the rule does not require a public 
accommodation to alter its inventory to include accessible or special 
goods with accessibility features that are designed for, or facilitate 
use by, individuals with disabilities. As specified in Sec. 36.307(c), 
accessible or special goods include such items as Brailled versions of 
books, books on audio-cassettes, closed captioned video tapes, special 
sizes or lines of clothing, and special foods to meet particular dietary 
needs.
    The purpose of the ADA's public accommodations requirements is to 
ensure accessibility to the goods offered by a public accommodation, not 
to alter the nature or mix of goods that the public accommodation has 
typically provided. In other words, a bookstore, for example, must make 
its facilities and sales operations accessible to individuals with 
disabilities, but is not required to stock Brailled or large print 
books. Similarly, a video store must make its facilities and rental 
operations accessible, but is not required to stock closed-captioned 
video tapes.

[[Page 967]]

The Department has been made aware, however, that the most recent titles 
in video-tape rental establishments are, in fact, closed captioned.
    Although a public accommodation is not required by Sec. 36.307(a) to 
modify its inventory, it is required by Sec. 36.307(b), at the request 
of an individual with disabilities, to order accessible or special goods 
that it does not customarily maintain in stock if, in the normal course 
of its operation, it makes special orders for unstocked goods, and if 
the accessible or special goods can be obtained from a supplier with 
whom the public accommodation customarily does business. For example, a 
clothing store would be required to order specially-sized clothing at 
the request of an individual with a disability, if it customarily makes 
special orders for clothing that it does not keep in stock, and if the 
clothing can be obtained from one of the store's customary suppliers.
    One commenter asserted that the proposed rule could be interpreted 
to require a store to special order accessible or special goods of all 
types, even if only one type is specially ordered in the normal course 
of its business. The Department, however, intends for Sec. 36.307(b) to 
require special orders only of those particular types of goods for which 
a public accommodation normally makes special orders. For example, a 
book and recording store would not have to specially order Brailled 
books if, in the normal course of its business, it only specially orders 
recordings and not books.

               Section 36.308  Seating in Assembly Areas.

    Section 36.308 establishes specific requirements for removing 
barriers to physical access in assembly areas, which include such 
facilities as theaters, concert halls, auditoriums, lecture halls, and 
conference rooms. This section does not address the provision of 
auxiliary aids or the removal of communications barriers that are 
structural in nature. These communications requirements are the focus of 
other provisions of the regulation (see Secs. 36.303-36.304).
    Individuals who use wheelchairs historically have been relegated to 
inferior seating in the back of assembly areas separate from 
accompanying family members and friends. The provisions of Sec. 36.308 
are intended to promote integration and equality in seating.
    In some instances it may not be readily achievable for auditoriums 
or theaters to remove seats to allow individuals with wheelchairs to sit 
next to accompanying family members or friends. In these situations, the 
final rule retains the requirement that the public accommodation provide 
portable chairs or other means to allow the accompanying individuals to 
sit with the persons in wheelchairs. Persons in wheelchairs should have 
the same opportunity to enjoy movies, plays, and similar events with 
their families and friends, just as other patrons do. The final rule 
specifies that portable chairs or other means to permit family members 
or companions to sit with individuals who use wheelchairs must be 
provided only when it is readily achievable to do so.
    In order to facilitate seating of wheelchair users who wish to 
transfer to existing seating, paragraph (a)(1) of the final rule adds a 
requirement that, to the extent readily achievable, a reasonable number 
of seats with removable aisle-side armrests must be provided. Many 
persons in wheelchairs are able to transfer to existing seating with 
this relatively minor modification. This solution avoids the potential 
safety hazard created by the use of portable chairs and fosters 
integration. The final ADA Accessibility Guidelines incorporated by 
subpart D (ADAAG) also add a requirement regarding aisle seating that 
was not in the proposed guidelines. In situations when a person in a 
wheelchair transfers to existing seating, the public accommodation shall 
provide assistance in handling the wheelchair of the patron with the 
disability.
    Likewise, consistent vith ADAAG, the final rule adds in 
Sec. 36.308(a)(1)(ii)(B) a requirement that, to the extent readily 
achievable, wheelchair seating provide lines of sight and choice of 
admission prices comparable to those for members of the general public.
    Finally, because Congress intended that the requirements for barrier 
removal in existing facilities be substantially less rigorous than those 
required for new construction and alterations, the final rule clarifies 
in Sec. 36.308(a)(3) that in no event can the requirements for existing 
facilities be interpreted to exceed the standards for alterations under 
ADAAG. For example, Sec. 4.33 of ADAAG only requires wheelchair spaces 
to be provided in more than one location when the seating capacity of 
the assembly area exceeds 300. Therefore, paragraph (a) of Sec. 36.308 
may not be interpreted to require readily achievable dispersal of 
wheelchair seating in assembly areas with 300 or fewer seats. Similarly, 
Sec. 4.1.3(19) of ADAAG requires six accessible wheelchair locations in 
an assembly area with 301 to 500 seats. The reasonable number of 
wheelchair locations required by paragraph (a), therefore, may be less 
than six, but may not be interpreted to exceed six.

      Proposed Section 36.309  Purchase of Furniture and Equipment

    Section 36.309 of the proposed rule would have required that newly 
purchased furniture or equipment made available for use at a place of 
public accommodation be accessible, to the extent such furniture or 
equipment is available, unless this requirement

[[Page 968]]

would fundamentally alter the goods, services, facilities, privileges, 
advantages, or accommodations offered, or would not be readily 
achievable. Proposed Sec. 36.309 has been omitted from the final rule 
because the Department has determined that its requirements are more 
properly addressed under other sections, and because there are currently 
no appropriate accessibility standards addressing many types of 
furniture and equipment.
    Some types of equipment will be required to meet the accessibility 
requirements of subpart D. For example, ADAAG establishes technical and 
scoping requirements in new construction and alterations for automated 
teller machines and telephones. Purchase or modification of equipment is 
required in certain instances by the provisions in Secs. 36.201 and 
36.202. For example, an arcade may need to provide accessible video 
machines in order to ensure full and equal enjoyment of the facilities 
and to provide an opportunity to participate in the services and 
facilities it provides. The barrier removal requirements of Sec. 36.304 
will apply as well to furniture and equipment (lowering shelves, 
rearranging furniture, adding Braille labels to a vending machine).

                Section 36.309  Examinations and Courses

    Section 36.309(a) sets forth the general rule that any private 
entity that offers examinations or courses related to applications, 
licensing, certification, or credentialing for secondary or 
postsecondary education, professional, or trade purposes shall offer 
such examinations or courses in a place and manner accessible to persons 
with disabilities or offer alternative accessible arrangements for such 
individuals.
    Paragraph (a) restates section 309 of the Americans with 
Disabilities Act. Section 309 is intended to fill the gap that is 
created when licensing, certification, and other testing authorities are 
not covered by section 504 of the Rehabilitation Act or title II of the 
ADA. Any such authority that is covered by section 504, because of the 
receipt of Federal money, or by title II, because it is a function of a 
State or local government, must make all of its programs accessible to 
persons with disabilities, which includes physical access as well as 
modifications in the way the test is administered, e.g., extended time, 
written instructions, or assistance of a reader.
    Many licensing, certification, and testing authorities are not 
covered by section 504, because no Federal money is received; nor are 
they covered by title II of the ADA because they are not State or local 
agencies. However, States often require the licenses provided by such 
authorities in order for an individual to practice a particular 
profession or trade. Thus, the provision was included in the ADA in 
order to assure that persons with disabilities are not foreclosed from 
educational, professional, or trade opportunities because an examination 
or course is conducted in an inaccessible site or without needed 
modifications.
    As indicated in the ``Application'' section of this part 
(Sec. 36.102), Sec. 36.309 applies to any private entity that offers the 
specified types of examinations or courses. This is consistent with 
section 309 of the Americans with Disabilities Act, which states that 
the requirements apply to ``any person'' offering examinations or 
courses.
    The Department received a large number of comments on this section, 
reflecting the importance of ensuring that the key gateways to education 
and employment are open to individuals with disabilities. The most 
frequent comments were objections to the fundamental alteration and 
undue burden provisions in Secs. 36.309 (b)(3) and (c)(3) and to 
allowing courses and examinations to be provided through alternative 
accessible arrangements, rather than in an integrated setting.
    Although section 309 of the Act does not refer to a fundamental 
alteration or undue burden limitation, those limitations do appear in 
section 302(b)(2)(A)(iii) of the Act, which establishes the obligation 
of public accommodations to provide auxiliary aids and services. The 
Department, therefore, included it in the paragraphs of Sec. 36.309 
requiring the provision of auxiliary aids. One commenter argued that 
similar limitations should apply to all of the requirements of 
Sec. 36.309, but the Department did not consider this extension 
appropriate.
    Commenters who objected to permitting ``alternative accessible 
arrangements'' argued that such arrangements allow segregation and 
should not be permitted, unless they are the least restrictive available 
alternative, for example, for someone who cannot leave home. Some 
commenters made a distinction between courses, where interaction is an 
important part of the educational experience, and examinations, where it 
may be less important. Because the statute specifically authorizes 
alternative accessible arrangements as a method of meeting the 
requirements of section 309, the Department has not adopted this 
suggestion. The Department notes, however, that, while examinations of 
the type covered by Sec. 36.309 may not be covered elsewhere in the 
regulation, courses will generally be offered in a ``place of 
education,'' which is included in the definition of ``place of public 
accommodation'' in Sec. 36.104, and, therefore, will be subject to the 
integrated setting requirement of Sec. 36.203.
    Section 36.309(b) sets forth specific requirements for examinations. 
Examinations covered by this section would include a bar exam or the 
Scholastic Aptitude Test prepared by the Educational Testing Service. 
Paragraph (b)(1) is adopted from the Department of Education's section 
504 regulation

[[Page 969]]

on admission tests to postsecondary educational programs (34 CFR 
104.42(b)(3)). Paragraph (b)(1)(i) requires that a private entity 
offering an examination covered by the section must assure that the 
examination is selected and administered so as to best ensure that the 
examination accurately reflects an individual's aptitude or achievement 
level or other factor the examination purports to measure, rather than 
reflecting the individual's impaired sensory, manual, or speaking skills 
(except where those skills are the factors that the examination purports 
to measure).
    Paragraph (b)(1)(ii) requires that any examination specially 
designed for individuals with disabilities be offered as often and in as 
timely a manner as other examinations. Some commenters noted that 
persons with disabilities may be required to travel long distances when 
the locations for examinations for individuals with disabilities are 
limited, for example, to only one city in a State instead of a variety 
of cities. The Department has therefore revised this paragraph to add a 
requirement that such examinations be offered at locations that are as 
convenient as the location of other examinations.
    Commenters representing organizations that administer tests wanted 
to be able to require individuals with disabilities to provide advance 
notice and appropriate documentation, at the applicants' expense, of 
their disabilities and of any modifications or aids that would be 
required. The Department agrees that such requirements are permissible, 
provided that they are not unreasonable and that the deadline for such 
notice is no earlier than the deadline for others applying to take the 
examination. Requiring individuals with disabilities to file earlier 
applications would violate the requirement that examinations designed 
for individuals with disabilities be offered in as timely a manner as 
other examinations.
    Examiners may require evidence that an applicant is entitled to 
modifications or aids as required by this section, but requests for 
documentation must be reasonable and must be limited to the need for the 
modification or aid requested. Appropriate documentation might include a 
letter from a physician or other professional, or evidence of a prior 
diagnosis or accommodation, such as eligibility for a special education 
program. The applicant may be required to bear the cost of providing 
such documentation, but the entity administering the examination cannot 
charge the applicant for the cost of any modifications or auxiliary 
aids, such as interpreters, provided for the examination.
    Paragraph (b)(1)(iii) requires that examinations be administered in 
facilities that are accessible to individuals with disabilities or 
alternative accessible arrangements are made.
    Paragraph (b)(2) gives examples of modifications to examinations 
that may be necessary in order to comply with this section. These may 
include providing more time for completion of the examination or a 
change in the manner of giving the examination, e.g., reading the 
examination to the individual.
    Paragraph (b)(3) requires the provision of auxiliary aids and 
services, unless the private entity offering the examination can 
demonstrate that offering a particular auxiliary aid would fundamentally 
alter the examination or result in an undue burden. Examples of 
auxiliary aids include taped examinations, interpreters or other 
effective methods of making aurally delivered materials available to 
individuals with hearing impairments, readers for individuals with 
visual impairments or learning disabilities, and other similar services 
and actions. The suggestion that individuals with learning disabilities 
may need readers is included, although it does not appear in the 
Department of Education regulation, because, in fact, some individuals 
with learning disabilities have visual perception problems and would 
benefit from a reader.
    Many commenters pointed out the importance of ensuring that 
modifications provide the individual with a disability an equal 
opportunity to demonstrate his or her knowledge or ability. For example, 
a reader who is unskilled or lacks knowledge of specific terminology 
used in the examination may be unable to convey the information in the 
questions or to follow the applicant's instructions effectively. 
Commenters pointed out that, for persons with visual impairments who 
read Braille, Braille provides the closest functional equivalent to a 
printed test. The Department has, therefore, added Brailled examinations 
to the examples of auxiliary aids and services that may be required. For 
similar reasons, the Department also added to the list of examples of 
auxiliary aids and services large print examinations and answer sheets; 
``qualified'' readers; and transcribers to write answers.
    A commenter suggested that the phrase ``fundamentally alter the 
examination'' in this paragraph of the proposed rule be revised to more 
accurately reflect the function affected. In the final rule the 
Department has substituted the phrase ``fundamentally alter the 
measurement of the skills or knowledge the examination is intended to 
test.''
    Paragraph (b)(4) gives examples of alternative accessible 
arrangements. For instance, the private entity might be required to 
provide the examination at an individual's home with a proctor. 
Alternative arrangements must provide conditions for individuals with 
disabilities that are comparable to the conditions under which other 
individuals take the examinations. In other words, an

[[Page 970]]

examination cannot be offered to an individual with a disability in a 
cold, poorly lit basement, if other individuals are given the 
examination in a warm, well lit classroom.
    Some commenters who provide examinations for licensing or 
certification for particular occupations or professions urged that they 
be permitted to refuse to provide modifications or aids for persons 
seeking to take the examinations if those individuals, because of their 
disabilities, would be unable to perform the essential functions of the 
profession or occupation for which the examination is given, or unless 
the disability is reasonably determined in advance as not being an 
obstacle to certification. The Department has not changed its rule based 
on this comment. An examination is one stage of a licensing or 
certification process. An individual should not be barred from 
attempting to pass that stage of the process merely because he or she 
might be unable to meet other requirements of the process. If the 
examination is not the first stage of the qualification process, an 
applicant may be required to complete the earlier stages prior to being 
admitted to the examination. On the other hand, the applicant may not be 
denied admission to the examination on the basis of doubts about his or 
her abilities to meet requirements that the examination is not designed 
to test.
    Paragraph (c) sets forth specific requirements for courses. 
Paragraph (c)(1) contains the general rule that any course covered by 
this section must be modified to ensure that the place and manner in 
which the course is given is accessible. Paragraph (c)(2) gives examples 
of possible modifications that might be required, including extending 
the time permitted for completion of the course, permitting oral rather 
than written delivery of an assignment by a person with a visual 
impairment, or adapting the manner in which the course is conducted 
(i.e., providing cassettes of class handouts to an individual with a 
visual impairment). In response to comments, the Department has added to 
the examples in paragraph (c)(2) specific reference to distribution of 
course materials. If course materials are published and available from 
other sources, the entity offering the course may give advance notice of 
what materials will be used so as to allow an individual to obtain them 
in Braille or on tape but materials provided by the course offerer must 
be made available in alternative formats for individuals with 
disabilities.
    In language similar to that of paragraph (b), paragraph (c)(3) 
requires auxiliary aids and services, unless a fundamental alteration or 
undue burden would result, and paragraph (c)(4) requires that courses be 
administered in accessible facilities. Paragraph (c)(5) gives examples 
of alternative accessible arrangements. These may include provision of 
the course through videotape, cassettes, or prepared notes. Alternative 
arrangements must provide comparable conditions to those provided to 
others, including similar lighting, room temperature, and the like. An 
entity offering a variety of courses, to fulfill continuing education 
requirements for a profession, for example, may not limit the selection 
or choice of courses available to individuals with disabilities.

    Section 36.310  Transportation Provided by Public Accommodations

    Section 36.310 contains specific provisions relating to public 
accommodations that provide transportation to their clients or 
customers. This section has been substantially revised in order to 
coordinate the requirements of this section with the requirements 
applicable to these transportation systems that will be contained in the 
regulations issued by the Secretary of Transportation pursuant to 
section 306 of the ADA, to be codified at 49 CFR part 37. The Department 
notes that, although the responsibility for issuing regulations 
applicable to transportation systems operated by public accommodations 
is divided between this Department and the Department of -
Transportation, enforcement authority is assigned only to the Department 
of Justice.
    The Department received relatively few comments on this section of 
the proposed rule. Most of the comments addressed issues that are not 
specifically addressed in this part, such as the standards for 
accessible vehicles and the procedure for determining whether equivalent 
service is provided. Those standards will be contained in the regulation 
issued by the Department of Transportation. Other commenters raised 
questions about the types of transportation that will be subject to this 
section. In response to these inquiries, the Department has revised the 
list of examples contained in the regulation.
    Paragraph (a)(1) states the general rule that covered public 
accommodations are subject to all of the specific provisions of subparts 
B, C, and D, except as provided in Sec. 36.310. Examples of operations 
covered by the requirements are listed in paragraph (a)(2). The stated 
examples include hotel and motel airport shuttle services, customer 
shuttle bus services operated by private companies and shopping centers, 
student transportation, and shuttle operations of recreational 
facilities such as stadiums, zoos, amusement parks, and ski resorts. 
This brief list is not exhaustive. The section applies to any fixed 
route or demand responsive transportation system operated by a public 
accommodation for the benefit of its clients or customers. The section 
does not apply to transportation services provided only to employees. 
Employee transportation will be subject to the regulations issued by the

[[Page 971]]

Equal Employment Opportunity Commission to implement title I of the Act. 
However, if employees and customers or clients are served by the same 
transportation system, the provisions of this section will apply.
    Paragraph (b) specifically provides that a public accommodation 
shall remove transportation barriers in existing vehicles to the extent 
that it is readily achievable to do so, but that the installation of 
hydraulic or other lifts is not required.
    Paragraph (c) provides that public accommodations subject to this 
section shall comply with the requirements for transportation vehicles 
and systems contained in the regulations issued by the Secretary of 
Transportation.

               Subpart D--New Construction and Alterations

    Subpart D implements section 303 of the Act, which requires that 
newly constructed or altered places of public accommodation or 
commercial facilities be readily accessible to and usable by individuals 
with disabilities. This requirement contemplates a high degree of 
convenient access. It is intended to ensure that patrons and employees 
of places of public accommodation and employees of commercial facilities 
are able to get to, enter, and use the facility.
    Potential patrons of places of public accommodation, such as retail 
establishments, should be able to get to a store, get into the store, 
and get to the areas where goods are being provided. Employees should 
have the same types of access, although those individuals require access 
to and around the employment area as well as to the area in which goods 
and services are provided.
    The ADA is geared to the future--its goal being that, over time, 
access will be the rule, rather than the exception. Thus, the Act only 
requires modest expenditures, of the type addressed in Sec. 36.304 of 
this part, to provide access to existing facilities not otherwise being 
altered, but requires all new construction and alterations to be 
accessible.
    The Act does not require new construction or alterations; it simply 
requires that, when a public accommodation or other private entity 
undertakes the construction or alteration of a facility subject to the 
Act, the newly constructed or altered facility must be made accessible. 
This subpart establishes the requirements for new construction and 
alterations.
    As explained under the discussion of the definition of ``facility,'' 
Sec. 36.104, pending development of specific requirements, the 
Department will not apply this subpart to places of public accommodation 
located in mobile units, boats, or other conveyances.

                    Section 36.401  New Construction

                                 General

    Section 36.401 implements the new construction requirements of the 
ADA. Section 303 (a)(1) of the Act provides that discrimination for 
purposes of section 302(a) of the Act includes a failure to design and 
construct facilities for first occupancy later than 30 months after the 
date of enactment (i.e., after January 26, 1993) that are readily 
accessible to and usable by individuals with disabilities.
    Paragraph 36.401(a)(1) restates the general requirement for 
accessible new construction. The proposed rule stated that ``any public 
accommodation or other private entity responsible for design and 
construction'' must ensure that facilities conform to this requirement. 
Various commenters suggested that the proposed language was not 
consistent with the statute because it substituted ``private entity 
responsible for design and construction'' for the statutory language; 
because it did not address liability on the part of architects, 
contractors, developers, tenants, owners, and other entities; and 
because it limited the liability of entities responsible for commercial 
facilities. In response, the Department has revised this paragraph to 
repeat the language of section 303(a) of the ADA. The Department will 
interpret this section in a manner consistent with the intent of the 
statute and with the nature of the responsibilities of the various 
entities for design, for construction, or for both.

              Designed and Constructed for First Occupancy

    According to paragraph (a)(2), a facility is subject to the new 
construction requirements only if a completed application for a building 
permit or permit extension is filed after January 26, 1992, and the 
facility is occupied after January 26, 1993.
    The proposed rule set forth for comment two alternative ways by 
which to determine what facilities are subject to the Act and what 
standards apply. Paragraph (a)(2) of the final rule is a slight 
variation on Option One in the proposed rule. The reasons for the 
Department's choice of Option One are discussed later in this section.
    Paragraph (a)(2) acknowledges that Congress did not contemplate 
having actual occupancy be the sole trigger for the accessibility 
requirements, because the statute prohibits a failure to ``design and 
construct for first occupancy,'' rather than requiring accessibility in 
facilities actually occupied after a particular date.
    The commenters overwhelmingly agreed with the Department's proposal 
to use a date certain; many cited the reasons given in the preamble to 
the proposed rule. First, it is

[[Page 972]]

helpful for designers and builders to have a fixed date for accessible 
design, so that they can determine accessibility requirements early in 
the planning and design stage. It is difficult to determine 
accessibility requirements in anticipation of the actual date of first 
occupancy because of unpredictable and uncontrollable events (e.g., 
strikes affecting suppliers or labor, or natural disasters) that may 
delay occupancy. To redesign or reconstruct portions of a facility if it 
begins to appear that occupancy will be later than anticipated would be 
quite costly. A fixed date also assists those responsible for enforcing, 
or monitoring compliance with, the statute, and those protected by it.
    The Department considered using as a trigger date for application of 
the accessibility standards the date on which a permit is granted. The 
Department chose instead the date on which a complete permit application 
is certified as received by the appropriate government entity. Almost 
all commenters agreed with this choice of a trigger date. This decision 
is based partly on information that several months or even years can 
pass between application for a permit and receipt of a permit. Design is 
virtually complete at the time an application is complete (i.e., 
certified to contain all the information required by the State, county, 
or local government). After an application is filed, delays may occur 
before the permit is granted due to numerous factors (not necessarily 
relating to accessibility): for example, hazardous waste discovered on 
the property, flood plain requirements, zoning disputes, or opposition 
to the project from various groups. These factors should not require 
redesign for accessibility if the application was completed before 
January 26, 1992. However, if the facility must be redesigned for other 
reasons, such as a change in density or environmental preservation, and 
the final permit is based on a new application, the rule would require 
accessibility if that application was certified complete after January 
26, 1992.
    The certification of receipt of a complete application for a 
building permit is an appropriate point in the process because 
certifications are issued in writing by governmental authorities. In 
addition, this approach presents a clear and objective standard.
    However, a few commenters pointed out that in some jurisdictions it 
is not possible to receive a ``certification'' that an application is 
complete, and suggested that in those cases the fixed date should be the 
date on which an application for a permit is received by the government 
agency. The Department has included such a provision in 
Sec. 36.401(a)(2)(i).
    The date of January 26, 1992, is relevant only with respect to the 
last application for a permit or permit extension for a facility. Thus, 
if an entity has applied for only a ``foundation'' permit, the date of 
that permit application has no effect, because the entity must also 
apply for and receive a permit at a later date for the actual 
superstructure. In this case, it is the date of the later application 
that would control, unless construction is not completed within the time 
allowed by the permit, in which case a third permit would be issued and 
the date of the application for that permit would be determinative for 
purposes of the rule.

 Choice of Option One for Defining ``Designed and Constructed for First 
                               Occupancy''

    Under the option the Department has chosen for determining 
applicability of the new construction standards, a building would be 
considered to be ``for first occupancy'' after January 26, 1993, only 
(1) if the last application for a building permit or permit extension 
for the facility is certified to be complete (or, in some jurisdictions, 
received) by a State, county, or local government after January 26, 
1992, and (2) if the first certificate of occupancy is issued after 
January 26, 1993. The Department also asked for comment on an Option 
Two, which would have imposed new construction requirements if a 
completed application for a building permit or permit extension was 
filed after the enactment of the ADA (July 26, 1990), and the facility 
was occupied after January 26, 1993.
    The request for comment on this issue drew a large number of 
comments expressing a wide range of views. Most business groups and some 
disability rights groups favored Option One, and some business groups 
and most disability rights groups favored Option Two. Individuals and 
government entities were equally divided; several commenters proposed 
other options.
    Those favoring Option One pointed out that it is more reasonable in 
that it allows time for those subject to the new construction 
requirements to anticipate those requirements and to receive technical 
assistance pursuant to the Act. Numerous commenters said that time 
frames for designing and constructing some types of facilities (for 
example, health care facilities) can range from two to four years or 
more. They expressed concerns that Option Two, which would apply to some 
facilities already under design or construction as of the date the Act 
was signed, and to some on which construction began shortly after 
enactment, could result in costly redesign or reconstruction of those 
facilities. In the same vein, some Option One supporters found Option 
Two objectionable on due process grounds. In their view, Option Two 
would mean that in July 1991 (upon issuance of the final DOJ rule) the 
responsible entities would learn that ADA standards had been in effect 
since July 26, 1990, and this would amount to retroactive

[[Page 973]]

application of standards. Numerous commenters characterized Option Two 
as having no support in the statute and Option One as being more 
consistent with congressional intent.
    Those who favored Option Two pointed out that it would include more 
facilities within the coverage of the new construction standards. They 
argued that because similar accessibility requirements are in effect 
under State laws, no hardship would be imposed by this option. Numerous 
commenters said that hardship would also be eliminated in light of their 
view that the ADA requires compliance with the Uniform Federal 
Accessibility Standards (UFAS) until issuance of DOJ standards. Those 
supporting Option Two claimed that it was more consistent with the 
statute and its legislative history.
    The Department has chosen Option One rather than Option Two, 
primarily on the basis of the language of three relevant sections of the 
statute. First, section 303(a) requires compliance with accessibility 
standards set forth, or incorporated by reference in, regulations to be 
issued by the Department of Justice. Standing alone, this section cannot 
be read to require compliance with the Department's standards before 
those standards are issued (through this rulemaking). Second, according 
to section 310 of the statute, section 303 becomes effective on January 
26, 1992. Thus, section 303 cannot impose requirements on the design of 
buildings before that date. Third, while section 306(d) of the Act 
requires compliance with UFAS if final regulations have not been issued, 
that provision cannot reasonably be read to take effect until July 26, 
1991, the date by which the Department of Justice must issue final 
regulations under title III.
    Option Two was based on the premise that the interim standards in 
section 306(d) take effect as of the ADA's enactment (July 26, 1990), 
rather than on the date by which the Department of Justice regulations 
are due to be issued (July 26, 1991). The initial clause of section 
306(d)(1) itself is silent on this question:
    If final regulations have not been issued pursuant to this section, 
for new construction for which a * * * building permit is obtained prior 
to the issuance of final regulations * * * (interim standards apply).
    The approach in Option Two relies partly on the language of section 
310 of the Act, which provides that section 306, the interim standards 
provision, takes effect on the date of enactment. Under this 
interpretation the interim standards provision would prevail over the 
operative provision, section 303, which requires that new construction 
be accessible and which becomes effective January 26, 1992. This 
approach would also require construing the language of section 306(d)(1) 
to take effect before the Department's standards are due to be issued. 
The preferred reading of section 306 is that it would require that, if 
the Department's final standards had not been issued by July 26, 1991, 
UFAS would apply to certain buildings until such time as the 
Department's standards were issued.

   General Substantive Requirements of the New Construction Provisions

    The rule requires, as does the statute, that covered newly 
constructed facilities be readily accessible to and usable by 
individuals with disabilities. The phrase ``readily accessible to and 
usable by individuals with disabilities'' is a term that, in slightly 
varied formulations, has been used in the Architectural Barriers Act of 
1968, the Fair Housing Act, the regulations implementing section 504 of 
the Rehabilitation Act of 1973, and current accessibility standards. It 
means, with respect to a facility or a portion of a facility, that it 
can be approached, entered, and used by individuals with disabilities 
(including mobility, sensory, and cognitive impairments) easily and 
conveniently. A facility that is constructed to meet the requirements of 
the rule's accessibility standards will be considered readily accessible 
and usable with respect to construction. To the extent that a particular 
type or element of a facility is not specifically addressed by the 
standards, the language of this section is the safest guide.
    A private entity that renders an ``accessible'' building 
inaccessible in its operation, through policies or practices, may be in 
violation of section 302 of the Act. For example, a private entity can 
render an entrance to a facility inaccessible by keeping an accessible 
entrance open only during certain hours (whereas the facility is 
available to others for a greater length of time). A facility could 
similarly be rendered inaccessible if a person with disabilities is 
significantly limited in her or his choice of a range of accommodations.
    Ensuring access to a newly constructed facility will include 
providing access to the facility from the street or parking lot, to the 
extent the responsible entity has control over the route from those 
locations. In some cases, the private entity will have no control over 
access at the point where streets, curbs, or sidewalks already exist, 
and in those instances the entity is encouraged to request modifications 
to a sidewalk, including installation of curb cuts, from a public entity 
responsible for them. However, as some commenters pointed out, there is 
no obligation for a private entity subject to title III of the ADA to 
seek or ensure compliance by a public entity with title II. Thus, 
although a locality may have an obligation under title II of the Act to 
install curb cuts at a particular location, that responsibility is 
separate from the private entity's title III obligation, and

[[Page 974]]

any involvement by a private entity in seeking cooperation from a public 
entity is purely voluntary in this context.

                               Work Areas

    Proposed paragraph 36.401(b) addressed access to employment areas, 
rather than to the areas where goods or services are being provided. The 
preamble noted that the proposed paragraph provided guidance for new 
construction and alterations until more specific guidance was issued by 
the ATBCB and reflected in this Department's regulation. The entire 
paragraph has been deleted from this section in the final rule. The 
concepts of paragraphs (b) (1), (2), and (5) of the proposed rule are 
included, with modifications and expansion, in ADAAG. Paragraphs (3) and 
(4) of the proposed rule, concerning fixtures and equipment, are not 
included in the rule or in ADAAG.
    Some commenters asserted that questions relating to new construction 
and alterations of work areas should be addressed by the EEOC under 
title I, as employment concerns. However, the legislative history of the 
statute clearly indicates that the new construction and alterations 
requirements of title III were intended to ensure accessibility of new 
facilities to all individuals, including employees. The language of 
section 303 sweeps broadly in its application to all public 
accommodations and commercial facilities. EEOC's title I regulations 
will address accessibility requirements that come into play when 
``reasonable accommodation'' to individual employees or applicants with 
disabilities is mandated under title I.
    The issues dealt with in proposed Sec. 36.401(b) (1) and (2) are now 
addressed in ADAAG section 4.1.1(3). The Department's proposed 
paragraphs would have required that areas that will be used only by 
employees as work stations be constructed so that individuals with 
disabilities could approach, enter, and exit the areas. They would not 
have required that all individual work stations be constructed or 
equipped (for example, with shelves that are accessible or adaptable) to 
be accessible. This approach was based on the theory that, as long as an 
employee with disabilities could enter the building and get to and 
around the employment area, modifications in a particular work station 
could be instituted as a ``reasonable accommodation'' to that employee 
if the modifications were necessary and they did not constitute an undue 
hardship.
    Almost all of the commenters agreed with the proposal to require 
access to a work area but not to require accessibility of each 
individual work station. This principle is included in ADAAG 4.1.1(3). 
Several of the comments related to the requirements of the proposed 
ADAAG and have been addressed in the accessibility standards.
    Proposed paragraphs (b) (3) and (4) would have required that 
consideration be given to placing fixtures and equipment at accessible 
heights in the first instance, and to purchasing new equipment and 
fixtures that are adjustable. These paragraphs have not been included in 
the final rule because the rule in most instances does not establish 
accessibility standards for purchased equipment. (See discussion 
elsewhere in the preamble of proposed Sec. 36.309.) While the Department 
encourages entities to consider providing accessible or adjustable 
fixtures and equipment for employees, this rule does not require them to 
do so.
    Paragraph (b)(5) of proposed Sec. 36.401 clarified that proposed 
paragraph (b) did not limit the requirement that employee areas other 
than individual work stations must be accessible. For example, areas 
that are employee ``common use'' areas and are not solely used as work 
stations (e.g., employee lounges, cafeterias, health units, exercise 
facilities) are treated no differently under this regulation than other 
parts of a building; they must be constructed or altered in compliance 
with the accessibility standards. This principle is not stated in 
Sec. 36.401 but is implicit in the requirements of this section and 
ADAAG.

               Commercial Facilities in Private Residences

    Section 36.401(b) of the final rule is a new provision relating to 
commercial facilities located in private residences. The proposed rule 
addressed these requirements in the preamble to Sec. 36.207, ``Places of 
public accommodation located in private residences.'' The preamble 
stated that the approach for commercial facilities would be the same as 
that for places of public accommodation, i.e., those portions used 
exclusively as a commercial facility or used as both a commercial 
facility and for residential purposes would be covered. Because 
commercial facilities are only subject to new construction and 
alterations requirements, however, the covered portions would only be 
subject to subpart D. This approach is reflected in Sec. 36.401(b)(1).
    The Department is aware that the statutory definition of 
``commercial facility'' excludes private residences because they are 
``expressly exempted from coverage under the Fair Housing Act of 1968, 
as amended.'' However, the Department interprets that exemption as 
applying only to facilities that are exclusively residential. When a 
facility is used as both a residence and a commercial facility, the 
exemption does not apply.
    Paragraph (b)(2) is similar to the new paragraph (b) under 
Sec. 36.207, ``Places of public accommodation located in private 
residences.'' The paragraph clarifies that the covered portion includes 
not only the space used as a commercial facility, but also the elements 
used to enter the commercial facility, e.g., the homeowner's front 
sidewalk, if any; the

[[Page 975]]

doorway; the hallways; the restroom, if used by employees or visitors of 
the commercial facility; and any other portion of the residence, 
interior or exterior, used by employees or visitors of the commercial 
facility.
    As in the case of public accommodations located in private 
residences, the new construction standards only apply to the extent that 
a portion of the residence is designed or intended for use as a 
commercial facility. Likewise, if a homeowner alters a portion of his 
home to convert it to a commercial facility, that work must be done in 
compliance with the alterations standards in appendix A.

                       Structural Impracticability

    Proposed Sec. 36.401(c) is included in the final rule with minor 
changes. It details a statutory exception to the new construction 
requirement: the requirement that new construction be accessible does 
not apply where an entity can demonstrate that it is structurally 
impracticable to meet the requirements of the regulation. This provision 
is also included in ADAAG, at section 4.1.1(5)(a).
    Consistent with the legislative history of the ADA, this narrow 
exception will apply only in rare and unusual circumstances where unique 
characteristics of terrain make accessibility unusually difficult. Such 
limitations for topographical problems are analogous to an acknowledged 
limitation in the application of the accessibility requirements of the 
Fair Housing Amendments Act (FHAA) of 1988.
    Almost all commenters supported this interpretation. Two commenters 
argued that the DOJ requirement is too limiting and would not exempt 
some buildings that should be exempted because of soil conditions, 
terrain, and other unusual site conditions. These commenters suggested 
consistency with HUD's Fair Housing Accessibility Guidelines (56 FR 9472 
(1991)), which generally would allow exceptions from accessibility 
requirements, or allow compliance with less stringent requirements, on 
sites with slopes exceeding 10%.
    The Department is aware of the provisions in HUD's guidelines, which 
were issued on March 6, 1991, after passage of the ADA and publication 
of the Department's proposed rule. The approach taken in these 
guidelines, which apply to different types of construction and implement 
different statutory requirements for new construction, does not bind 
this Department in regulating under the ADA. The Department has included 
in the final rule the substance of the proposed provision, which is 
faithful to the intent of the statute, as expressed in the legislative 
history. (See Senate report at 70-71; Education and Labor report at 
120.)
    The limited structural impracticability exception means that it is 
acceptable to deviate from accessibility requirements only where unique 
characteristics of terrain prevent the incorporation of accessibility 
features and where providing accessibility would destroy the physical 
integrity of a facility. A situation in which a building must be built 
on stilts because of its location in marshlands or over water is an 
example of one of the few situations in which the exception for 
structural impracticability would apply.
    This exception to accessibility requirements should not be applied 
to situations in which a facility is located in ``hilly'' terrain or on 
a plot of land upon which there are steep grades. In such circumstances, 
accessibility can be achieved without destroying the physical integrity 
of a structure, and is required in the construction of new facilities.
    Some commenters asked for clarification concerning when and how to 
apply the ADA rules or the Fair Housing Accessibility Guidelines, 
especially when a facility may be subject to both because of mixed use. 
Guidance on this question is provided in the discussion of the 
definitions of place of public accommodation and commercial facility. 
With respect to the structural impracticability exception, a mixed-use 
facility could not take advantage of the Fair Housing exemption, to the 
extent that it is less stringent than the ADA exemption, except for 
those portions of the facility that are subject only to the Fair Housing 
Act.
    As explained in the preamble to the proposed rule, in those rare 
circumstances in which it is structurally impracticable to achieve full 
compliance with accessibility retirements under the ADA, places of 
public accommodation and commercial facilities should still be designed 
and constructed to incorporate accessibility features to the extent that 
the features are structurally practicable. The accessibility 
requirements should not be viewed as an all-or-nothing proposition in 
such circumstances.
    If it is structurally impracticable for a facility in its entirety 
to be readily accessible to and usable by people with disabilities, then 
those portions that can be made accessible should be made accessible. If 
a building cannot be constructed in compliance with the full range of 
accessibility requirements because of structural impracticability, then 
it should still incorporate those features that are structurally 
practicable. If it is structurally impracticable to make a particular 
facility accessible to persons who have particular types of 
disabilities, it is still appropriate to require it to be made 
accessible to persons with other types of disabilities. For example, a 
facility that is of necessity built on stilts and cannot be made 
accessible to persons who use wheelchairs because it is structurally 
impracticable to do so, must be made accessible for individuals

[[Page 976]]

with vision or hearing impairments or other kinds of disabilities.

                           Elevator Exemption

    Section 36.401(d) implements the ``elevator exemption'' for new 
construction in section 303(b) of the ADA. The elevator exemption is an 
exception to the general requirement that new facilities be readily 
accessible to and usable by individuals with disabilities. Generally, an 
elevator is the most common way to provide individuals who use 
wheelchairs ``ready access'' to floor levels above or below the ground 
floor of a multi-story building. Congress, however, chose not to require 
elevators in new small buildings, that is, those with less than three 
stories or less than 3,000 square feet per story. In buildings eligible 
for the exemption, therefore, ``ready access'' from the building 
entrance to a floor above or below the ground floor is not required, 
because the statute does not require that an elevator be installed in 
such buildings. The elevator exemption does not apply, however, to a 
facility housing a shopping center, a shopping mall, or the professional 
office of a health care provider, or other categories of facilities as 
determined by the Attorney General. For example, a new office building 
that will have only two stories, with no elevator planned, will not be 
required to have an elevator, even if each story has 20,000 square feet. 
In other words, having either less than 3000 square feet per story or 
less than three stories qualifies a facility for the exemption; it need 
not qualify for the exemption on both counts. Similarly, a facility that 
has five stories of 2800 square feet each qualifies for the exemption. 
If a facility has three or more stories at any point, it is not eligible 
for the elevator exemption unless all the stories are less than 3000 
square feet.
    The terms ``shopping center or shopping mall'' and ``professional 
office of a health care provider'' are defined in this section. They are 
substantively identical to the definitions included in the proposed rule 
in Sec. 36.104, ``Definitions.'' They have been moved to this section 
because, as commenters pointed out, they are relevant only for the 
purposes of the elevator exemption, and inclusion in the general 
definitions section could give the incorrect impression that an office 
of a health care provider is not covered as a place of public 
accommodation under other sections of the rule, unless the office falls 
within the definition.
    For purposes of Sec. 36.401, a ``shopping center or shopping mall'' 
is (1) a building housing five or more sales or rental establishments, 
or (2) a series of buildings on a common site, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. The term ``shopping center or shopping mall'' only 
includes floor levels containing at least one sales or rental 
establishment, or any floor level that was designed or intended for use 
by at least one sales or rental establishment.
    Any sales or rental establishment of the type that is included in 
paragraph (5) of the definition of ``place of public accommodation'' 
(for example, a bakery, grocery store, clothing store, or hardware 
store) is considered a sales or rental establishment for purposes of 
this definition; the other types of public accommodations (e.g., 
restaurants, laundromats, banks, travel services, health spas) are not.
    In the preamble to the proposed rule, the Department sought comment 
on whether the definition of ``shopping center or mall'' should be 
expanded to include any of these other types of public accommodations. 
The Department also sought comment on whether a series of buildings 
should fall within the definition only if they are physically connected.
    Most of those responding to the first question (overwhelmingly 
groups representing people with disabilities, or individual commenters) 
urged that the definition encompass more places of public accommodation, 
such as restaurants, motion picture houses, laundromats, dry cleaners, 
and banks. They pointed out that often it is not known what types of 
establishments will be tenants in a new facility. In addition, they 
noted that malls are advertised as entities, that their appeal is in the 
``package'' of services offered to the public, and that this package 
often includes the additional types of establishments mentioned.
    Commenters representing business groups sought to exempt banks, 
travel services, grocery stores, drug stores, and freestanding retail 
stores from the elevator requirement. They based this request on the 
desire to continue the practice in some locations of incorporating 
mezzanines housing administrative offices, raised pharmacist areas, and 
raised areas in the front of supermarkets that house safes and are used 
by managers to oversee operations of check-out aisles and other 
functions. Many of these concerns are adequately addressed by ADAAG. 
Apart from those addressed by ADAAG, the Department sees no reason to 
treat a particular type of sales or rental establishment differently 
from any other. Although banks and travel services are not included as 
``sales or rental establishments,'' because they do not fall under 
paragraph (5) of the definition of place of public accommodation, 
grocery stores and drug stores are included.
    The Department has declined to include places of public 
accommodation other than sales or rental establishments in the 
definition. The statutory definition of ``public accommodation'' 
(section 301(7)) lists 12 types of establishments that are considered 
public

[[Page 977]]

accommodations. Category (E) includes ``a bakery, grocery store, 
clothing store, hardware store, shopping center, or other sales or 
rental establishment.'' This arrangement suggests that it is only these 
types of establishments that would make up a shopping center for 
purposes of the statute. To include all types of places of public 
accommodation, or those from 6 or 7 of the categories, as commenters 
suggest, would overly limit the elevator exemption; the universe of 
facilities covered by the definition of ``shopping center'' could well 
exceed the number of multitenant facilities not covered, which would 
render the exemption almost meaningless.
    For similar reasons, the Department is retaining the requirement 
that a building or series of buildings must house five or more sales or 
rental establishments before it falls within the definition of 
``shopping center.'' Numerous commenters objected to the number and 
requested that the number be lowered from five to three or four. 
Lowering the number in this manner would include an inordinately large 
number of two-story multitenant buildings within the category of those 
required to have elevators.
    The responses to the question concerning whether a series of 
buildings should be connected in order to be covered were varied. 
Generally, disability rights groups and some government agencies said a 
series of buildings should not have to be connected, and pointed to a 
trend in some areas to build shopping centers in a garden or village 
setting. The Department agrees that this design choice should not negate 
the elevator requirement for new construction. Some business groups 
answered the question in the affirmative, and some suggested a different 
definition of shopping center. For example, one commenter recommended 
the addition of a requirement that the five or more establishments be 
physically connected on the non-ground floors by a common pedestrian 
walkway or pathway, because otherwise a series of stand-alone facilities 
would have to comply with the elevator requirement, which would be 
unduly burdensome and perhaps infeasible. Another suggested use of what 
it characterized as the standard industry definition: ``A group of 
retail stores and related business facilities, the whole planned, 
developed, operated and managed as a unit.'' While the rule's definition 
would reach a series of related projects that are under common control 
but were not developed as a single project, the Department considers 
such a facility to be a shopping center within the meaning of the 
statute. However, in light of the hardship that could confront a series 
of existing small stand-alone buildings if elevators were required in 
alterations, the Department has included a common access route in the 
definition of shopping center or shopping mall for purposes of 
Sec. 36.404.
    Some commenters suggested that access to restrooms and other shared 
facilities open to the public should be required even if those 
facilities were not on a shopping floor. Such a provision with respect 
to toilet or bathing facilities is included in the elevator exception in 
final ADAAG 4.1.3(5).
    For purposes of this subpart, the rule does not distinguish between 
a ``shopping mall'' (usually a building with a roofed-over common 
pedestrian area serving more than one tenant in which a majority of the 
tenants have a main entrance from the common pedestrian area) and a 
``shopping center'' (e.g., a ``shopping strip''). Any facility housing 
five or more of the types of sales or rental establishments described, 
regardless of the number of other types of places of public 
accommodation housed there (e.g., offices, movie theatres, restaurants), 
is a shopping center or shopping mall.
    For example, a two-story facility built for mixed-use occupancy on 
both floors (e.g., by sales and rental establishments, a movie theater, 
restaurants, and general office space) is a shopping center or shopping 
mall if it houses five or more sales or rental establishments. If none 
of these establishments is located on the second floor, then only the 
ground floor, which contains the sales or rental establishments, would 
be a ``shopping center or shopping mall,'' unless the second floor was 
designed or intended for use by at least one sales or rental 
establishment. In determining whether a floor was intended for such use, 
factors to be considered include the types of establishments that first 
occupied the floor, the nature of the developer's marketing strategy, 
i.e., what types of establishments were sought, and inclusion of any 
design features particular to rental and sales establishments.
    A ``professional office of a health care provider'' is defined as a 
location where a person or entity regulated by a State to provide 
professional services related to the physical or mental health of an 
individual makes such services available to the public. In a two-story 
development that houses health care providers only on the ground floor, 
the ``professional office of a health care provider'' is limited to the 
ground floor unless the second floor was designed or intended for use by 
a health care provider. In determining if a floor was intended for such 
use, factors to be considered include whether the facility was 
constructed with special plumbing, electrical, or other features needed 
by health care providers, whether the developer marketed the facility as 
a medical office center, and whether any of the establishments that 
first occupied the floor was, in fact, a health care provider.
    In addition to requiring that a building that is a shopping center, 
shopping mall, or the professional office of a health care provider have 
an elevator regardless of square

[[Page 978]]

footage or number of floors, the ADA (section 303(b)) provides that the 
Attorney General may determine that a particular category of facilities 
requires the installation of elevators based on the usage of the 
facilities. The Department, as it proposed to do, has added to the 
nonexempt categories terminals, depots, or other stations used for 
specified public transportation, and airport passenger terminals. 
Numerous commenters in all categories endorsed this proposal; none 
opposed it. It is not uncommon for an airport passenger terminal or 
train station, for example, to have only two floors, with gates on both 
floors. Because of the significance of transportation, because a person 
with disabilities could be arriving or departing at any gate, and 
because inaccessible facilities could result in a total denial of 
transportation services, it is reasonable to require that newly 
constructed transit facilities be accessible, regardless of square 
footage or number of floors. One comment suggested an amendment that 
would treat terminals and stations similarly to shopping centers, by 
requiring an accessible route only to those areas used for passenger 
loading and unloading and for other passenger services. Paragraph 
(d)(2)(ii) has been modified accordingly.
    Some commenters suggested that other types of facilities (e.g., 
educational facilities, libraries, museums, commercial facilities, and 
social service facilities) should be included in the category of 
nonexempt facilities. The Department has not found adequate 
justification for including any other types of facilities in the 
nonexempt category at this time.
    Section 36.401(d)(2) establishes the operative requirements 
concerning the elevator exemption and its application to shopping 
centers and malls, professional offices of health care providers, 
transit stations, and airport passenger terminals. Under the rule's 
framework, it is necessary first to determine if a new facility 
(including one or more buildings) houses places of public accommodation 
or commercial facilities that are in the categories for which elevators 
are required. If so, and the facility is a shopping center or shopping 
mall, or a professional office of a health care provider, then any area 
housing such an office or a sales or rental establishment or the 
professional office of a health care provider is not entitled to the 
elevator exemption.
    The following examples illustrate the application of these 
principles:
    1. A shopping mall has an upper and a lower level. There are two 
``anchor stores'' (in this case, major department stores at either end 
of the mall, both with exterior entrances and an entrance on each level 
from the common area). In addition, there are 30 stores (sales or rental 
establishments) on the upper level, all of which have entrances from a 
common central area. There are 30 stores on the lower level, all of 
which have entrances from a common central area. According to the rule, 
elevator access must be provided to each store and to each level of the 
anchor stores. This requirement could be satisfied with respect to the 
60 stores through elevators connecting the two pedestrian levels, 
provided that an individual could travel from the elevator to any other 
point on that level (i.e., into any store through a common pedestrian 
area) on an accessible path.
    2. A commercial (nonresidential) ``townhouse'' development is 
composed of 20 two-story attached buildings. The facility is developed 
as one project, with common ownership, and the space will be leased to 
retailers. Each building has one accessible entrance from a pedestrian 
walk to the first floor. From that point, one can enter a store on the 
first floor, or walk up a flight of stairs to a store on the second 
floor. All 40 stores must be accessible at ground floor level or by 
accessible vertical access from that level. This does not mean, however, 
that 20 elevators must be installed. Access could be provided to the 
second floor by an elevator from the pedestrian area on the lower level 
to an upper walkway connecting all the areas on the second floor.
    3. In the same type of development, it is planned that retail stores 
will be housed exclusively on the ground floor, with only office space 
(not professional offices of health care providers) on the second. 
Elevator access need not be provided to the second floor because all the 
sales or rental establishments (the entities that make the facility a 
shopping center) are located on an accessible ground floor.
    4. In the same type of development, the space is designed and 
marketed as medical or office suites, or as a medical office facility. 
Accessible vertical access must be provided to all areas, as described 
in example 2.
    Some commenters suggested that building owners who knowingly lease 
or rent space to nonexempt places of public accommodation would violate 
Sec. 36.401. However, the Department does not consider leasing or 
renting inaccessible space in itself to constitute a violation of this 
part. Nor does a change in use of a facility, with no accompanying 
alterations (e.g., if a psychiatrist replaces an attorney as a tenant in 
a second-floor office, but no alterations are made to the office) 
trigger accessibility requirements.
    Entities cannot evade the requirements of this section by 
constructing facilities in such a way that no story is intended to 
constitute a ``ground floor.'' For example, if a private entity 
constructs a building whose main entrance leads only to stairways or 
escalators that connect with upper or lower floors, the Department would 
consider at least one level of the facility a ground story.

[[Page 979]]

    The rule requires in Sec. 36.401(d)(3), consistent with the proposed 
rule, that, even if a building falls within the elevator exemption, the 
floor or floors other than the ground floor must nonetheless be 
accessible, except for elevator access, to individuals with 
disabilities, including people who use wheelchairs. This requirement 
applies to buildings that do not house sales or rental establishments or 
the professional offices of a health care provider as well as to those 
in which such establishments or offices are all located on the ground 
floor. In such a situation, little added cost is entailed in making the 
second floor accessible, because it is similar in structure and floor 
plan to the ground floor.
    There are several reasons for this provision. First, some 
individuals who are mobility impaired may work on a building's second 
floor, which they can reach by stairs and the use of crutches; however, 
the same individuals, once they reach the second floor, may then use a 
wheelchair that is kept in the office. Secondly, because the first floor 
will be accessible, there will be little additional cost entailed in 
making the second floor, with the same structure and generally the same 
floor plan, accessible. In addition, the second floor must be accessible 
to those persons with disabilities who do not need elevators for level 
changes (for example, persons with sight or hearing impairments and 
those with certain mobility impairments). Finally, if an elevator is 
installed in the future for any reason, full access to the floor will be 
facilitated.
    One commenter asserted that this provision goes beyond the 
Department's authority under the Act, and disagreed with the 
Department's claim that little additional cost would be entailed in 
compliance. However, the provision is taken directly from the 
legislative history (see Education and Labor report at 114).
    One commenter said that where an elevator is not required, platform 
lifts should be required. Two commenters pointed out that the elevator 
exemption is really an exemption from the requirement for providing an 
accessible route to a second floor not served by an elevator. The 
Department agrees with the latter comment. Lifts to provide access 
between floors are not required in buildings that are not required to 
have elevators. This point is specifically addressed in the appendix to 
ADAAG (Sec. 4.1.3(5)). ADAAG also addresses in detail the situations in 
which lifts are permitted or required.

                       Section 36.402  Alterations

    Sections 36.402-36.405 implement section 303(a)(2) of the Act, which 
requires that alterations to existing facilities be made in a way that 
ensures that the altered portion is readily accessible to and usable by 
individuals with disabilities. This part does not require alterations; 
it simply provides that when alterations are undertaken, they must be 
made in a manner that provides access.
    Section 36.402(a)(1) provides that any alteration to a place of 
public accommodation or a commercial facility, after January 26, 1992, 
shall be made so as to ensure that, to the maximum extent feasible, the 
altered portions of the facility are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    The proposed rule provided that an alteration would be deemed to be 
undertaken after January 26, 1992, if the physical alteration of the 
property is in progress after that date. Commenters pointed out that 
this provision would, in some cases, produce an unjust result by 
requiring the redesign or retrofitting of projects initiated before this 
part established the ADA accessibility standards. The Department agrees 
that the proposed rule would, in some instances, unfairly penalize 
projects that were substantially completed before the effective date. 
Therefore, paragraph (a)(2) has been revised to specify that an 
alteration will be deemed to be undertaken after January 26, 1992, if 
the physical alteration of the property begins after that date. As a 
matter of interpretation, the Department will construe this provision to 
apply to alterations that require a permit from a State, County or local 
government, if physical alterations pursuant to the terms of the permit 
begin after January 26, 1992. The Department recognizes that this 
application of the effective date may require redesign of some 
facilities that were planned prior to the publication of this part, but 
no retrofitting will be required of facilities on which the physical 
alterations were initiated prior to the effective date of the Act. Of 
course, nothing in this section in any way alters the obligation of any 
facility to remove architectural barriers in existing facilities to the 
extent that such barrier removal is readily achievable.
    Paragraph (b) provides that, for the purposes of this part, an 
``alteration'' is a change to a place of public accommodation or a 
commercial facility that affects or could affect the usability of the 
building or facility or any part thereof. One commenter suggested that 
the concept of usability should apply only to those changes that affect 
access by persons with disabilities. The Department remains convinced 
that the Act requires the concept of ``usability'' to be read broadly to 
include any change that affects the usability of the facility, not 
simply changes that relate directly to access by individuals with 
disabilities.
    The Department received a significant number of comments on the 
examples provided in paragraphs (b)(1) and (b)(2) of the proposed rule. 
Some commenters urged the Department to limit the application of this 
provision to major structural modifications,

[[Page 980]]

while others asserted that it should be expanded to include cosmetic 
changes such as painting and wallpapering. The Department believes that 
neither approach is consistent with the legislative history, which 
requires this Department's regulation to be consistent with the 
accessibility guidelines (ADAAG) developed by the Architectural and 
Transportation Barriers Compliance Board (ATBCB). Although the 
legislative history contemplates that, in some instances, the ADA 
accessibility standards will exceed the current MGRAD requirements, it 
also clearly indicates the view of the drafters that ``minor changes 
such as painting or papering walls * * * do not affect usability'' 
(Education and Labor report at 111, Judiciary report at 64), and, 
therefore, are not alterations. The proposed rule was based on the 
existing MGRAD definition of ``alteration.'' The language of the final 
rule has been revised to be consistent with ADAAG, incorporated as 
appendix A to this part.
    Some commenters sought clarification of the intended scope of this 
section. The proposed rule contained illustrations of changes that 
affect usability and those that do not. The intent of the illustrations 
was to explain the scope of the alterations requirement; the effect was 
to obscure it. As a result of the illustrations, some commenters 
concluded that any alteration to a facility, even a minor alteration 
such as relocating an electrical outlet, would trigger an extensive 
obligation to provide access throughout an entire facility. That result 
was never contemplated.
    Therefore, in this final rule paragraph (b)(1) has been revised to 
include the major provisions of paragraphs (b)(1) and (b)(2) of the 
proposed rule. The examples in the proposed rule have been deleted. 
Paragraph (b)(1) now provides that alterations include, but are not 
limited to, remodeling, renovation, rehabilitation, reconstruction, 
historic restoration, changes or rearrangement in structural parts or 
elements, and changes or rearrangement in the plan configuration of 
walls and full-height partitions. Normal maintenance, reroofing, 
painting or wallpapering, asbestos removal, or changes to mechanical and 
electrical systems are not alterations unless they affect the usability 
of building or facility.
    Paragraph (b)(2) of this final rule was added to clarify the scope 
of the alterations requirement. Paragraph (b)(2) provides that if 
existing elements, spaces, or common areas are altered, then each such 
altered element, space, or area shall comply with the applicable 
provisions of appendix A (ADAAG). As provided in Sec. 36.403, if an 
altered space or area is an area of the facility that contains a primary 
function, then the requirements of that section apply.
    Therefore, when an entity undertakes a minor alteration to a place 
of public accommodation or commercial facility, such as moving an 
electrical outlet, the new outlet must be installed in compliance with 
ADAAG. (Alteration of the elements listed in Sec. 36.403(c)(2) cannot 
trigger a path of travel obligation.) If the alteration is to an area, 
such as an employee lounge or locker room, that is not an area of the 
facility that contains a primary function, that area must comply with 
ADAAG. It is only when an alteration affects access to or usability of 
an area containing a primary function, as opposed to other areas or the 
elements listed in Sec. 36.403(c)(2), that the path of travel to the 
altered area must be made accessible.
    The Department received relatively few comments on paragraph (c), 
which explains the statutory phrase ``to the maximum extent feasible.'' 
Some commenters suggested that the regulation should specify that cost 
is a factor in determining whether it is feasible to make an altered 
area accessible. The legislative history of the ADA indicates that the 
concept of feasibility only reaches the question of whether it is 
possible to make the alteration accessible in compliance with this part. 
Costs are to be considered only when an alteration to an area containing 
a primary function triggers an additional requirement to make the path 
of travel to the altered area accessible.
    Section 36.402(c) is, therefore, essentially unchanged from the 
proposed rule. At the recommendation of a commenter, the Department has 
inserted the word ``virtually'' to modify ``impossible'' to conform to 
the language of the legislative history. It explains that the phrase 
``to the maximum extent feasible'' as used in this section applies to 
the occasional case where the nature of an existing facility makes it 
virtually impossible to comply fully with applicable accessibility 
standards through a planned alteration. In the occasional cases in which 
full compliance is impossible, alterations shall provide the maximum 
physical accessibility feasible. Any features of the facility that are 
being altered shall be made accessible unless it is technically 
infeasible to do so. If providing accessibility in conformance with this 
section to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches or who have impaired vision or hearing, or those who have 
other types of impairments).

               Section 36.403  Alterations: Path of Travel

    Section 36.403 implements the statutory requirement that any 
alteration that affects or could affect the usability of or access to an 
area of a facility that contains a primary function shall be made so as 
to ensure that, to the maximum extent feasible, the path of travel to 
the altered area, and the restrooms,

[[Page 981]]

telephones, and drinking fountains serving the altered area, are readily 
accessible to and usable by individuals with disabilities, including 
individuals who use wheelchairs, unless the cost and scope of such 
alterations is disproportionate to the cost of the overall alteration. 
Paragraph (a) restates this statutory requirement.
    Paragraph (b) defines a ``primary function'' as a major activity for 
which the facility is intended. This paragraph is unchanged from the 
proposed rule. Areas that contain a primary function include, but are 
not limited to, the customer services lobby of a bank, the dining area 
of a cafeteria, the meeting rooms in a conference center, as well as 
offices and all other work areas in which the activities of the public 
accommodation or other private entities using the facility are carried 
out. The concept of ``areas containing a primary function'' is analogous 
to the concept of ``functional spaces'' in Sec. 3.5 of the existing 
Uniform Federal Accessibility Standards, which defines ``functional 
spaces'' as ``[t]he rooms and spaces in a building or facility that 
house the major activities for which the building or facility is 
intended.''
    Paragraph (b) provides that areas such as mechanical rooms, boiler 
rooms, supply storage rooms, employee lounges and locker rooms, 
janitorial closets, entrances, corridors, and restrooms are not areas 
containing a primary function. There may be exceptions to this general 
rule. For example, the availability of public restrooms at a place of 
public accommodation at a roadside rest stop may be a major factor 
affecting customers' decisions to patronize the public accommodation. In 
that case, a restroom would be considered to be an ``area containing a 
primary function'' of the facility.
    Most of the commenters who addressed this issue supported the 
approach taken by the Department; but a few commenters suggested that 
areas not open to the general public or those used exclusively by 
employees should be excluded from the definition of primary function. 
The preamble to the proposed rule noted that the Department considered 
an alternative approach to the definition of ``primary function,'' under 
which a primary function of a commercial facility would be defined as a 
major activity for which the facility was intended, while a primary 
function of a place of public accommodation would be defined as an 
activity which involves providing significant goods, services, 
facilities, privileges, advantages, or accommodations. However, the 
Department concluded that, although portions of the legislative history 
of the ADA support this alternative, the better view is that the 
language now contained in Sec. 36.403(b) most accurately reflects 
congressional intent. No commenter made a persuasive argument that the 
Department's interpretation of the legislative history is incorrect.
    When the ADA was introduced, the requirement to make alterations 
accessible was included in section 302 of the Act, which identifies the 
practices that constitute discrimination by a public accommodation. 
Because section 302 applies only to the operation of a place of public 
accommodation, the alterations requirement was intended only to provide 
access to clients and customers of a public accommodation. It was 
anticipated that access would be provided to employees with disabilities 
under the ``reasonable accommodation'' requirements of title I. However, 
during its consideration of the ADA, the House Judiciary Committee 
amended the bill to move the alterations provision from section 302 to 
section 303, which applies to commercial facilities as well as public 
accommodations. The Committee report accompanying the bill explains 
that:
    New construction and alterations of both public accommodations and 
commercial facilities must be made readily accessible to and usable by 
individuals with disabilities * * *. Essentially, [this requirement] is 
designed to ensure that patrons and employees of public accommodations 
and commercial facilities are able to get to, enter and use the facility 
* * *. The rationale for making new construction accessible applies with 
equal force to alterations.
Judiciary report at 62-63 (emphasis added).
    The ADA, as enacted, contains the language of section 303 as it was 
reported out of the Judiciary Committee. Therefore, the Department has 
concluded that the concept of ``primary function'' should be applied in 
the same manner to places of public accommodation and to commercial 
facilities, thereby including employee work areas in places of public 
accommodation within the scope of this section.
    Paragraph (c) provides examples of alterations that affect the 
usability of or access to an area containing a primary function. The 
examples include: Remodeling a merchandise display area or employee work 
areas in a department store; installing a new floor surface to replace 
an inaccessible surface in the customer service area or employee work 
areas of a bank; redesigning the assembly line area of a factory; and 
installing a computer center in an accounting firm. This list is 
illustrative, not exhaustive. Any change that affects the usability of 
or access to an area containing a primary function triggers the 
statutory obligation to make the path of travel to the altered area 
accessible.
    When the proposed rule was drafted, the Department believed that the 
rule made it clear that the ADA would require alterations to the path of 
travel only when such alterations are not disproportionate to the 
alteration to the primary function area. However, the comments that the 
Department received

[[Page 982]]

indicated that many commenters believe that even minor alterations to 
individual elements would require additional alterations to the path of 
travel. To address the concern of these commenters, a new paragraph 
(c)(2) has been added to the final rule to provide that alterations to 
such elements as windows, hardware, controls (e.g. light switches or 
thermostats), electrical outlets, or signage will not be deemed to be 
alterations that affect the usability of or access to an area containing 
a primary function. Of course, each element that is altered must comply 
with ADAAG (appendix A) . The cost of alterations to individual elements 
would be included in the overall cost of an alteration for purposes of 
determining disproportionality and would be counted when determining the 
aggregate cost of a series of small alterations in accordance with 
Sec. 36.401(h) if the area is altered in a manner that affects access to 
or usability of an area containing a primary function.
    Paragraph (d) concerns the respective obligations of landlords and 
tenants in the cases of alterations that trigger the path of travel 
requirement under Sec. 36.403. This paragraph was contained in the 
landlord/tenant section of the proposed rule, Sec. 36.201(b). If a 
tenant is making alterations upon its premises pursuant to terms of a 
lease that grant it the authority to do so (even if they constitute 
alterations that trigger the path of travel requirement), and the 
landlord is not making alterations to other parts of the facility, then 
the alterations by the tenant on its own premises do not trigger a path 
of travel obligation upon the landlord in areas of the facility under 
the landlord's authority that are not otherwise being altered. The 
legislative history makes clear that the path of travel requirement 
applies only to the entity that is already making the alteration, and 
thus the Department has not changed the final rule despite numerous 
comments suggesting that the tenant be required to provide a path of 
travel.
    Paragraph (e) defines a ``path of travel'' as a continuous, 
unobstructed way of pedestrian passage by means of which an altered area 
may be approached, entered, and exited; and which connects the altered 
area with an exterior approach (including sidewalks, streets, and 
parking areas), an entrance to the facility, and other parts of the 
facility. This concept of an accessible path of travel is analogous to 
the concepts of ``accessible route'' and ``circulation path'' contained 
in section 3.5 of the current UFAS. Some commenters suggested that this 
paragraph should address emergency egress. The Department disagrees. 
``Path of travel'' as it is used in this section is a term of art under 
the ADA that relates only to the obligation of the public accommodation 
or commercial facility to provide additional accessible elements when an 
area containing a primary function is altered. The Department recognizes 
that emergency egress is an important issue, but believes that it is 
appropriately addressed in ADAAG (appendix A), not in this paragraph. 
Furthermore, ADAAG does not require changes to emergency egress areas in 
alterations.
    Paragraph (e)(2) is drawn from section 3.5 of UFAS. It provides that 
an accessible path of travel may consist of walks and sidewalks, curb 
ramps and other interior or exterior pedestrian ramps; clear floor paths 
through lobbies, corridors, rooms, and other improved areas; parking 
access aisles; elevators and lifts; or a combination of such elements. 
Paragraph (e)(3) provides that, for the purposes of this part, the term 
``path of travel'' also includes the restrooms, telephones, and drinking 
fountains serving an altered area.
    Although the Act establishes an expectation that an accessible path 
of travel should generally be included when alterations are made to an 
area containing a primary function, Congress recognized that, in some 
circumstances, providing an accessible path of travel to an altered area 
may be sufficiently burdensome in comparison to the alteration being 
undertaken to the area containing a primary function as to render this 
requirement unreasonable. Therefore, Congress provided, in section 
303(a)(2) of the Act, that alterations to the path of travel that are 
disproportionate in cost and scope to the overall alteration are not 
required.
    The Act requires the Attorney General to determine at what point the 
cost of providing an accessible path of travel becomes disproportionate. 
The proposed rule provided three options for making this determination.
    Two committees of Congress specifically addressed this issue: the 
House Committee on Education and Labor and the House Committee on the 
Judiciary. The reports issued by each committee suggested that 
accessibility alterations to a path of travel might be 
``disproportionate'' if they exceed 30% of the alteration costs 
(Education and Labor report at 113; Judiciary report at 64). Because the 
Department believed that smaller percentage rates might be appropriate, 
the proposed rule sought comments on three options: 10%, 20%, or 30%.
    The Department received a significant number of comments on this 
section. Commenters representing individuals with disabilities generally 
supported the use of 30% (or more); commenters representing covered 
entities supported a figure of 10% (or less). The Department believes 
that alterations made to provide an accessible path of travel to the 
altered area should be deemed disproportionate to the overall alteration 
when the cost exceeds 20% of the cost of the alteration to the primary 
function area. This approach appropriately reflects the intent of 
Congress to provide access for individuals with disabilities without 
causing economic

[[Page 983]]

hardship for the covered public accommodations and commercial 
facilities.
    The Department has determined that the basis for this cost 
calculation shall be the cost of the alterations to the area containing 
the primary function. This approach will enable the public accommodation 
or other private entity that is making the alteration to calculate its 
obligation as a percentage of a clearly ascertainable base cost, rather 
than as a percentage of the ``total'' cost, an amount that will change 
as accessibility alterations to the path of travel are made.
    Paragraph (f)(2) (paragraph (e)(2) in the proposed rule) is 
unchanged. It provides examples of costs that may be counted as 
expenditures required to provide an accessible path of travel. They 
include:
      Costs associated with providing an accessible entrance and 
an accessible route to the altered area, for example, the cost of 
widening doorways or installing ramps;
      Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
      Costs associated with providing accessible telephones, 
such as relocating telephones to an accessible height, installing 
amplification devices, or installing telecommunications devices for deaf 
persons (TDD's);
      Costs associated with relocating an inaccessible drinking 
fountain.
    Paragraph (f)(1) of the proposed rule provided that when the cost of 
alterations necessary to make the path of travel serving an altered area 
fully accessible is disproportionate to the cost of the overall 
alteration, the path of travel shall be made accessible to the maximum 
extent feasible. In response to the suggestion of a commenter, the 
Department has made an editorial change in the final rule (paragraph 
(g)(1)) to clarify that if the cost of providing a fully accessible path 
of travel is disproportionate, the path of travel shall be made 
accessible ``to the extent that it can be made accessible without 
incurring disproportionate costs.''
    Paragraph (g)(2) (paragraph (f)(2) in the NPRM) establishes that 
priority should be given to those elements that will provide the 
greatest access, in the following order: An accessible entrance; an 
accessible route to the altered area; at least one accessible restroom 
for each sex or a single unisex restroom; accessible telephones; 
accessible drinking fountains; and, whenever possible, additional 
accessible elements such as parking, storage, and alarms. This paragraph 
is unchanged from the proposed rule.
    Paragraph (h) (paragraph (g) in the proposed rule) provides that the 
obligation to provide an accessible path of travel may not be evaded by 
performing a series of small alterations to the area served by a single 
path of travel if those alterations could have been performed as a 
single undertaking. If an area containing a primary function has been 
altered without providing an accessible path of travel to serve that 
area, and subsequent alterations of that area, or a different area on 
the same path of travel, are undertaken within three years of the 
original alteration, the total cost of alterations to primary function 
areas on that path of travel during the preceding three year period 
shall be considered in determining whether the cost of making the path 
of travel serving that area accessible is disproportionate. Only 
alterations undertaken after January 26, 1992, shall be considered in 
determining if the cost of providing accessible features is 
disproportionate to the overall cost of the alterations.

             Section 36.404  Alterations: Elevator Exemption

    Section 36.404 implements the elevator exemption in section 303(b) 
of the Act as it applies to altered facilities. The provisions of 
section 303(b) are discussed in the preamble to Sec. 36.401(d) above. 
The statute applies the same exemption to both new construction and 
alterations. The principal difference between the requirements of 
Sec. 36.401(d) and Sec. 36.404 is that, in altering an existing facility 
that is not eligible for the statutory exemption, the public 
accommodation or other private entity responsible for the alteration is 
not required to install an elevator if the installation of an elevator 
would be disproportionate in cost and scope to the cost of the overall 
alteration as provided in Sec. 36.403(f)(1). In addition, the standards 
referenced in Sec. 36.406 (ADAAG) provide that installation of an 
elevator in an altered facility is not required if it is ``technically 
infeasible.''
    This section has been revised to define the terms ``professional 
office of a health care provider'' and ``shopping center or shopping 
mall'' for the purposes of this section. The definition of 
``professional office of a health care provider'' is identical to the 
definition included in Sec. 36.401(d).
    It has been brought to the attention of the Department that there is 
some misunderstanding about the scope of the elevator exemption as it 
applies to the professional office of a health care provider. A public 
accommodation, such as the professional office of a health care 
provider, is required to remove architectural barriers to its facility 
to the extent that such barrier removal is readily achievable (see 
Sec. 36.304), but it is not otherwise required by this part to undertake 
new construction or alterations. This part does not require that an 
existing two story building that houses the professional office of a 
health care provider be altered for the 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

[[Page 984]]

an elevator might be required, but only if the cost of the elevator is 
not disproportionate to the cost of the overall alteration. Neither the 
Act nor this part prohibits a health care provider from locating his or 
her professional office in an existing facility that does not have an 
elevator.
    Because of the unique challenges presented in altering existing 
facilities, the Department has adopted a definition of ``shopping center 
or shopping mall'' for the purposes of this section that is slightly 
different from the definition adopted under Sec. 36.401(d). For the 
purposes of this section, a ``shopping center or shopping mall'' is (1) 
a building housing five or more sales or rental establishments, or (2) a 
series of buildings on a common site, connected by a common pedestrian 
access route above or below the ground floor, either under common 
ownership or common control or developed either as one project or as a 
series of related projects, housing five or more sales or rental 
establishments. As is the case with new construction, the term 
``shopping center or shopping mall'' only includes floor levels housing 
at least one sales or rental establishment, or any floor level that was 
designed or intended for use by at least one sales or rental 
establishment.
    The Department believes that it is appropriate to use a different 
definition of ``shopping center or shopping mall'' for this section than 
for Sec. 36.401, in order to make it clear that a series of existing 
buildings on a common site that is altered for the use of sales or 
rental establishments does not become a ``shopping center or shopping 
mall'' required to install an elevator, unless there is a common means 
of pedestrian access above or below the ground floor. Without this 
exemption, separate, but adjacent, buildings that were initially 
designed and constructed independently of each other could be required 
to be retrofitted with elevators, if they were later renovated for a 
purpose not contemplated at the time of construction.
    Like Sec. 36.401(d), Sec. 36.404 provides that the exemptions in 
this paragraph do not obviate or limit in any way the obligation to 
comply with the other accessibility requirements established in this 
subpart. For example, alterations to floors above or below the ground 
floor must be accessible regardless of whether the altered facility has 
an elevator. If a facility that is not required to install an elevator 
nonetheless has an elevator, that elevator shall meet, to the maximum 
extent feasible, the accessibility requirements of this section.

           Section 36.405  Alterations: Historic Preservation

    Section 36.405 gives effect to the intent of Congress, expressed in 
section 504(c) of the Act, that this part recognize the national 
interest in preserving significant historic structures. Commenters 
criticized the Department's use of descriptive terms in the proposed 
rule that are different from those used in the ADA to describe eligible 
historic properties. In addition, some commenters criticized the 
Department's decision to use the concept of ``substantially impairing'' 
the historic features of a property, which is a concept employed in 
regulations implementing section 504 of the Rehabilitation Act of 1973. 
Those commenters recommended that the Department adopt the criteria of 
``adverse effect'' published by the Advisory Council on Historic 
Preservation under the National Historic Preservation Act (36 CFR 800.9) 
as the standard for determining whether an historic property may be 
altered.
    The Department agrees with these comments to the extent that they 
suggest that the language of the rule should conform to the language 
employed by Congress in the ADA. Therefore, the language of this section 
has been revised to make it clear that this provision applies to 
buildings or facilities that are eligible for listing in the National 
Register of Historic Places under the National Historic Preservation Act 
(16 U.S.C. 470 et seq.) and to buildings or facilities that are 
designated as historic under State or local law. The Department 
believes, however, that the criteria of adverse effect employed under 
the National Historic Preservation Act are inappropriate for this rule 
because section 504(c) of the ADA specifies that special alterations 
provisions shall apply only when an alteration would ``threaten or 
destroy the historic significance of qualified historic buildings and 
facilities.''
    The Department intends that the exception created by this section be 
applied only in those very rare situations in which it is not possible 
to provide access to an historic property using the special access 
provisions in ADAAG. Therefore, paragraph (a) of Sec. 36.405 has been 
revised to provide that alterations to historic properties shall comply, 
to the maximum extent feasible, with section 4.1.7 of ADAAG. Paragraph 
(b) of this section has been revised to provide that if it has been 
determined, under the procedures established in ADAAG, that it is not 
feasible to provide physical access to an historic property that is a 
place of public accommodation in a manner that will not threaten or 
destroy the historic significance of the property, alternative methods 
of access shall be provided pursuant to the requirements of Subpart C.

     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

[[Page 985]]

and this part that are consistent with the supplemental minimum 
guidelines and requirements for accessible design published by the 
Architectural and Transportation Barriers Compliance Board (ATBCB or 
Board) pursuant to section 504 of the Act. This section of the rule 
provides that new construction and alterations subject to this part 
shall comply with the standards for accessible design published as 
appendix A to this part.
    Appendix A contains the Americans with Disabilities Act 
Accessibility Guidelines for Buildings and Facilities (ADAAG) which is 
being published by the ATBCB as a final rule elsewhere in this issue of 
the Federal Register. As proposed in this Department's proposed rule, 
Sec. 36.406(a) adopts ADAAG as the accessibility standard applicable 
under this rule.
    Paragraph (b) was not included in the proposed rule. It provides, in 
chart form, guidance for using ADAAG together with subparts A through D 
of this part when determining requirements for a particular facility. 
This chart is intended solely as guidance for the user; it has no effect 
for purposes of compliance or enforcement. It does not necessarily 
provide complete or mandatory information.
    Proposed Sec. 36.406(b) is not included in the final rule. That 
provision, which would have taken effect only if the final rule had 
followed the proposed Option Two for Sec. 36.401(a), is unnecessary 
because the Department has chosen Option One, as explained in the 
preamble for that section.
    Section 504(a) of the ADA requires the ATBCB to issue minimum 
guidelines to supplement the existing Minimum Guidelines and 
Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for 
purposes of title III. According to section 504(b) of the Act, the 
guidelines are to establish additional requirements, consistent with the 
Act, ``to ensure that buildings and facilities are accessible, in terms 
of architecture and design, . . . and communication, to individuals with 
disabilities.'' Section 306(c) of the Act requires that the 
accessibility standards included in the Department's regulations be 
consistent with the minimum guidelines, in this case ADAAG.
    As explained in the ATBCB's preamble to ADAAG, the substance and 
form of the guidelines are drawn from several sources. They use as their 
model the 1984 Uniform Federal Accessibility Standards (UFAS) (41 CFR 
part 101, subpart 101-19.6, appendix), which are the standards 
implementing the Architectural Barriers Act. UFAS is based on the 
Board's 1982 MGRAD. ADAAG follows the numbering system and format of the 
private sector American National Standard Institute's ANSI A117.1 
standards. (American National Specifications for Making Buildings and 
Facilities Accessible to and Usable by Physically Handicapped People 
(ANSI A117-1980) and American National Standard for Buildings and 
Facilities--Providing Accessibility and Usability for Physically 
Handicapped People (ANSI A117.1-1986).) ADAAG supplements MGRAD. In 
developing ADAAG, the Board made every effort to be consistent with 
MGRAD and the current and proposed ANSI Standards, to the extent 
consistent with the ADA.
    ADAAG consists of nine main sections and a separate appendix. 
Sections 1 through 3 contain general provisions and definitions. Section 
4 contains scoping provisions and technical specifications applicable to 
all covered buildings and facilities. The scoping provisions are listed 
separately for new construction of sites and exterior facilities; new 
construction of buildings; additions; alterations; and alterations to 
historic properties. The technical specifications generally reprint the 
text and illustrations of the ANSI A117.1 standard, except where 
differences are noted by italics. Sections 5 through 9 of the guidelines 
are special application sections and contain additional requirements for 
restaurants and cafeterias, medical care facilities, business and 
mercantile facilities, libraries, and transient lodging. The appendix to 
the guidelines contains additional information to aid in understanding 
the technical specifications. The section numbers in the appendix 
correspond to the sections of the guidelines to which they relate. An 
asterisk after a section number indicates that additional information 
appears in the appendix.
    ADAAG's provisions are further explained under Summary of ADAAG 
below.

                            General Comments

    One commenter urged the Department to move all or portions of 
subpart D, New Construction and Alterations, to the appendix (ADAAG) or 
to duplicate portions of subpart D in the appendix. The commenter 
correctly pointed out that subpart D is inherently linked to ADAAG, and 
that a self-contained set of rules would be helpful to users. The 
Department has attempted to simplify use of the two documents by 
deleting some paragraphs from subpart D (e.g., those relating to work 
areas), because they are included in ADAAG. However, the Department has 
retained in subpart D those sections that are taken directly from the 
statute or that give meaning to specific statutory concepts (e.g., 
structural impracticability, path of travel). While some of the subpart 
D provisions are 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

[[Page 986]]

be useful to have one self-contained document, the different focuses of 
this rule and ADAAG do not permit this result at this time. However, the 
chart included in Sec. 36.406(b) should assist users in applying the 
provisions of subparts A through D, and ADAAG together.
    Numerous business groups have urged the Department not to adopt the 
proposed ADAAG as the accessibility standards, because the requirements 
established are too high, reflect the ``state of the art,'' and are 
inflexible, rigid, and impractical. Many of these objections have been 
lodged on the basis that ADAAG exceeds the statutory mandate to 
establish ``minimum'' guidelines. In the view of the Department, these 
commenters have misconstrued the meaning of the term ``minimum 
guidelines.'' The statute clearly contemplates that the guidelines 
establish a level of access--a minimum--that the standards must meet or 
exceed. The guidelines are not to be ``minimal'' in the sense that they 
would provide for a low level of access. To the contrary, Congress 
emphasized that the ADA requires a ``high degree of convenient access.'' 
Education and Labor report at 117-18. The legislative history explains 
that the guidelines may not ``reduce, weaken, narrow or set less 
accessibility standards than those included in existing MGRAD'' and 
should provide greater guidance in communication accessibility for 
individuals with hearing and vision impairments. Id. at 139. Nor did 
Congress contemplate a set of guidelines less detailed than ADAAG; the 
statute requires that the ADA guidelines supplement the existing MGRAD. 
When it established the statutory scheme, Congress was aware of the 
content and purpose of the 1982 MGRAD; as ADAAG does with respect to 
ADA, MGRAD establishes a minimum level of access that the Architectural 
Barriers Act standards (i.e., UFAS) must meet or exceed, and includes a 
high level of detail.
    Many of the same commenters urged the Department to incorporate as 
its accessibility standards the ANSI standard's technical provisions and 
to adopt the proposed scoping provisions under development by the 
Council of American Building Officials' Board for the Coordination of 
Model Codes (BCMC). They contended that the ANSI standard is familiar to 
and accepted by professionals, and that both documents are developed 
through consensus. They suggested that ADAAG will not stay current, 
because it does not follow an established cyclical review process, and 
that it is not likely to be adopted by nonfederal jurisdictions in State 
and local codes. They urged the Department and the Board to coordinate 
the ADAAG provisions and any substantive changes to them with the ANSI 
A117 committee in order to maintain a consistent and uniform set of 
accessibility standards that can be efficiently and effectively 
implemented at the State and local level through the existing building 
regulatory processes.
    The Department shares the commenters' goal of coordination between 
the private sector and Federal standards, to the extent that 
coordination can lead to substantive requirements consistent with the 
ADA. A single accessibility standard, or consistent accessibility 
standards, that can be used for ADA purposes and that can be 
incorporated or referenced by State and local governments, would help to 
ensure that the ADA requirements are routinely implemented at the design 
stage. The Department plans to work toward this goal.
    The Department, however, must comply with the requirements of the 
ADA, the Federal Advisory Committee Act (5 U.S.C app. 1 et seq.) and the 
Administrative Procedure Act (5 U.S.C 551 et seq.). Neither the 
Department nor the Board can adopt private requirements wholesale. 
Furthermore, neither the 1991 ANSI A117 Standard revision nor the BCMC 
process is complete. Although the ANSI and BCMC provisions are not 
final, the Board has carefully considered both the draft BCMC scoping 
provisions and draft ANSI technical standards and included their 
language in ADAAG wherever consistent with the ADA.
    Some commenters requested that, if the Department did not adopt ANSI 
by reference, the Department declare compliance with ANSI/BCMC to 
constitute equivalency with the ADA standards. The Department has not 
adopted this recommendation but has instead worked as a member of the 
ATBCB to ensure that its accessibility standards are practical and 
usable. In addition, as explained under subpart F, Certification of 
State Laws or Local Building Codes, the proper forum for further 
evaluation of this suggested approach would be in conjunction with the 
certification process.
    Some commenters urged the Department to allow an additional comment 
period after the Board published its guidelines in final form, for 
purposes of affording the public a further opportunity to evaluate the 
appropriateness of including them as the Departments accessibility 
standards. Such an additional comment period is unnecessary and would 
unduly delay the issuance of final regulations. The Department put the 
public on notice, through the proposed rule, of its intention to adopt 
the proposed ADAAG, with any changes made by the Board, as the 
accessibility standards. As a member of the 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

[[Page 987]]

ADAAG, whether by the Board or by this Department, were thoroughly 
analyzed and considered by the Department in the context of whether the 
proposed ADAAG was consistent with the ADA and suitable for adoption as 
both guidelines and standards. The Department is convinced that ADAAG as 
adopted in its final form is appropriate for these purposes. The final 
guidelines, adopted here as standards, will ensure the high level of 
access contemplated by Congress, consistent with the ADA's balance 
between the interests of people with disabilities and the business 
community.
    A few commenters, citing the Senate report (at 70) and the Education 
and Labor report (at 119), asked the Department to include in the 
regulations a provision stating that departures from particular 
technical and scoping requirements of the accessibility standards will 
be permitted so long as the alternative methods used will provide 
substantially equivalent or greater access to and utilization of the 
facility. Such a provision is found in ADAAG 2.2 and by virtue of that 
fact is included in these regulations.

            Comments on specific provisions of proposed ADAAG

    During the course of accepting comments on its proposed rule, the 
Department received numerous comments on ADAAG. Those areas that 
elicited the heaviest response included assistive listening systems, 
automated teller machines, work areas, parking, areas of refuge, 
telephones (scoping for TDD's and volume controls) and visual alarms. 
Strenuous objections were raised by some business commenters to the 
proposed provisions of the guidelines concerning check-out aisles, 
counters, and scoping for hotels and nursing facilities. All these 
comments were considered in the same manner as other comments on the 
Department's proposed rule and, in the Department's view, have been 
addressed adequately in the final ADAAG.
    Largely in response to comments, the Board made numerous changes 
from its proposal, including the following:
      Generally, at least 50% of public entrances to new 
buildings must be accessible, rather than all entrances, as would often 
have resulted from the proposed approach.
      Not all check-out aisles are required to be accessible.
      The final guidelines provide greater flexibility in 
providing access to sales counters, and no longer require a portion of 
every counter to be accessible.
      Scoping for TDD's or text telephones was increased. One 
TDD or text telephone, for speech and hearing impaired persons, must be 
provided at locations with 4, rather than 6, pay phones, and in 
hospitals and shopping malls. Use of portable (less expensive) TDD's is 
allowed.
      Dispersal of wheelchair seating areas in theaters will be 
required only where there are more than 300 seats, rather than in all 
cases. Seats with removable armrests (i.e., seats into which persons 
with mobility impairments can transfer) will also be required.
      Areas of refuge (areas with direct access to a stairway, 
and where people who cannot use stairs may await assistance during 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

[[Page 988]]

must meet the guidelines' requirements for doors and accessible routes, 
and recommends, but does not require, that 5% of individual work 
stations be designed to permit a person using a wheelchair to maneuver 
within the space.
    Further discussion of work areas is found in the preamble concerning 
proposed Sec. 36.401(b).
    Section 4.1.1(5)(a) includes an exception for structural 
impracticability that corresponds to the one found in Sec. 36.401(c) and 
discussed in that portion of the preamble.

   Section 4.1.2, Accessible Sites and Exterior Facilities: New 
                              Construction

    This section addresses exterior features, elements, or spaces such 
as parking, portable toilets, and exterior signage, in new construction. 
Interior elements and spaces are covered by Sec. 4.1.3.
    The final rule retains the UFAS scoping for parking but also 
requires that at least one of every eight accessible parking spaces be 
designed with adequate adjacent space to deploy a lift used with a van. 
These spaces must have a sign indicating that they are van-accessible, 
but they are not to be reserved exclusively for van users.

       Section 4.1.3, Accessible Buildings: New Construction

    This section establishes scoping requirements for new construction 
of buildings and facilities.
    Sections 4.1.3 (1) through (4) cover accessible routes, protruding 
objects, ground and floor surfaces, and stairs.
    Section 4.1.3(5) generally requires elevators to serve each level in 
a newly constructed building, with four exceptions included in the 
subsection. Exception 1 is the ``elevator exception'' established in 
Sec. 36.401(d), which must be read with this section. Exception 4 allows 
the use of platform lifts under certain conditions.
    Section 4.1.3(6), Windows, is reserved. Section 4.1.3(7) applies to 
doors.
    Under Sec. 4.1.3(8), at least 50% of all public entrances must be 
accessible. In addition, if a building is designed to provide access to 
enclosed parking, pedestrian tunnels, or elevated walkways, at least one 
entrance that serves each such function must be accessible. Each tenancy 
in a building must be served by an accessible entrance. Where local 
regulations (e.g., fire codes) require that a minimum number of exits be 
provided, an equivalent number of accessible entrances must be provided. 
(The latter provision does not require a greater number of entrances 
than otherwise planned.)
    ADAAG Section 4.1.3(9), with accompanying technical requirements in 
Section 4.3, requires an area of rescue assistance (i.e., an area with 
direct access to an exit stairway and where people who are unable to use 
stairs may await assistance during an emergency evacuation) to be 
established on each floor of a multi-story building. This was one of the 
most controversial provisions in the guidelines. The final ADAAG is 
based on current Uniform Building Code requirements and retains the 
requirement that areas of refuge (renamed ``areas of rescue 
assistance'') be provided, but specifies that this requirement does not 
apply to buildings that have a supervised automatic sprinkler system. 
Areas of refuge are not required in alterations.
    The next seven subsections deal with drinking fountains 
(Sec. 4.1.3(10)); toilet facilities (Sec. 4.1.3(11)); storage, shelving, 
and display units (Sec. 4.1.3(12)), controls and operating mechanisms 
(Sec. 4.1.3(13)), emergency warning systems (Sec. 4.1.3(14)), detectable 
warnings (Sec. 4.1.3(15)), and building signage (Sec. 4.1.3(16)). 
Paragraph 11 requires that toilet facilities comply with Sec. 4.22, 
which requires one accessible toilet stall (60<"  x  60<") in each newly 
constructed restroom. In response to public comments, the final rule 
requires that a second accessible stall (36<"  x  60<") be provided in 
restrooms that have six or more stalls.
    ADAAG Section 4.1.3(17) establishes requirements for accessibility 
of pay phones to persons with mobility impairments, hearing impairments 
(requiring some phones with volume controls), and those who cannot use 
voice telephones. It requires one interior ``text telephone'' to be 
provided at any facility that has a total of four or more public pay 
phones. (The term ``text telephone'' has been adopted to reflect current 
terminology and changes in technology.) In addition, text telephones 
will be required in specific locations, such as covered shopping malls, 
hospitals (in emergency rooms, waiting rooms, and recovery areas), and 
convention centers.
    Paragraph 18 of Section 4.1.3 generally requires that at least five 
percent of fixed or built-in seating or tables be accessible.
    Paragraph 19, covering assembly areas, specifies the number of 
wheelchair seating spaces and types and numbers of assistive listening 
systems required. It requires dispersal of wheelchair seating locations 
in facilities where there are more than 300 seats. The guidelines also 
require that at least one percent of all fixed seats be aisle seats 
without armrests (or with moveable armrests) on the aisle side to 
increase accessibility for persons with mobility impairments who prefer 
to transfer from their wheelchairs to 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

[[Page 989]]

that are accessible to persons with sight impairments.
    Under paragraph 21, where dressing rooms are provided, five percent 
or at least one must comply with section 4.35.

                     Section 4.1.5, Additions

    Each addition to an existing building or facility is regarded as an 
alteration subject to Secs. 36.402 through 36.406 of subpart D, 
including the date established in Sec. 36.402(a). But additions also 
have attributes of new construction, and to the extent that a space or 
element in the addition is newly constructed, each new space or element 
must comply with the applicable scoping provisions of sections 4.1.1 to 
4.1.3 for new construction, the applicable technical specifications of 
sections 4.2 through 4.34, and any applicable special provisions in 
sections 5 through 10. For instance, if a restroom is provided in the 
addition, it must comply with the requirements for new construction. 
Construction of an addition does not, however, create an obligation to 
retrofit the entire existing building or facility to meet requirements 
for new construction. Rather, the addition is to be regarded as an 
alteration and to the extent that it affects or could affect the 
usability of or access to an area containing a primary function, the 
requirements in section 4.1.6(2) are triggered with respect to providing 
an accessible path of travel to the altered area and making the 
restrooms, telephones, and drinking fountains serving the altered area 
accessible. For example, if a museum adds a new wing that does not have 
a separate entrance as part of the addition, an accessible path of 
travel would have to be provided through the existing building or 
facility unless it is disproportionate to the overall cost and scope of 
the addition as established in Sec. 36.403(f).

                    Section 4.1.6, Alterations

    An alteration is a change to a building or facility that affects or 
could affect the usability of or access to the building or facility or 
any part thereof. There are three general principles for alterations. 
First, if any existing element or space is altered, the altered element 
or space must meet new construction requirements (section 4.1.6(1)(b)). 
Second, if alterations to the elements in a space when considered 
together amount to an alteration of the space, the entire space must 
meet new construction requirements (section 4.1.6(1)(c)). Third, if the 
alteration affects or could affect the usability of or access to an area 
containing a primary function, the path of travel to the altered area 
and the restrooms, drinking fountains, and telephones serving the 
altered area must be made accessible unless it is disproportionate to 
the overall alterations in terms of cost and scope as determined under 
criteria established by the Attorney General (Sec. 4.1.6(2)).
    Section 4.1.6 should be read with Secs. 36.402 through 36.405. 
Requirements concerning alterations to an area serving a primary 
function are addressed with greater detail in the latter sections than 
in section 4.1.6(2). Section 4.1.6(1)(j) deals with technical 
infeasibility. Section 4.1.6(3) contains special technical provisions 
for alterations to existing buildings and facilities.

               Section 4.1.7, Historic Preservation

    This section contains scoping provisions and alternative 
requirements for alterations to qualified historic buildings and 
facilities. It clarifies the procedures under the National Historic 
Preservation Act and their application to alterations covered by the 
ADA. An individual seeking to alter a facility that is subject to the 
ADA guidelines and to State or local historic preservation statutes 
shall consult with the State Historic Preservation Officer to determine 
if the planned alteration would threaten or destroy the historic 
significance of the facility.

                     Sections 4.2 Through 4.35

    Sections 4.2 through 4.35 contain the technical specifications for 
elements and spaces required to be accessible by the scoping provisions 
(sections 4.1 through 4.1.7) and special application sections (sections 
5 through 10). The technical specifications are the same as the 1980 
version of ANSI A117.1 standard, except as noted in the text by italics.

                       Sections 5 Through 9

    These are special application sections and contain additional 
requirements for restaurants and cafeterias, medical care facilities, 
business and mercantile facilities, libraries, and transient lodging. 
For example, at least 5 percent, but not less than one, of the fixed 
tables in a restaurant must be accessible.
    In section 7, Business and Mercantile, paragraph 7.2 (Sales and 
Service Counters, Teller Windows, Information Counters) has been revised 
to provide greater flexibility in new construction than did the proposed 
rule. At least one of each type of sales or service counter where a cash 
register is located shall be made accessible. Accessible counters shall 
be dispersed throughout the facility. At counters such as bank teller 
windows or ticketing counters, alternative methods of 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.

[[Page 990]]

    Section 7.3., Check-out Aisles, provides that, in new construction, 
a certain number of each design of check-out aisle, as listed in a chart 
based on the total number of check-out aisles of each design, shall be 
accessible. The percentage of check-outs required to be accessible 
generally ranges from 20% to 40%. In a newly constructed or altered 
facility with less than 5,000 square feet of selling space, at least one 
of each type of check-out aisle must be accessible. In altered 
facilities with 5,000 or more square feet of selling space, at least one 
of each design of check-out aisle must be made accessible when altered, 
until the number of accessible aisles of each design equals the number 
that would be required for new construction.

              Section 9, Accessible Transient Lodging

    Section 9 addresses two types of transient lodging: hotels, motels, 
inns, boarding houses, dormitories, resorts, and other similar places 
(sections 9.1 through 9.4); and homeless shelters, halfway houses, 
transient group homes, and other social service establishments (section 
9.5). The interplay of the ADA and Fair Housing Act with respect to such 
facilities is addressed in the preamble discussion of the definition of 
``place of public accommodation'' in Sec. 36.104.
    The final rule establishes scoping requirements for accessibility of 
newly constructed hotels. Four percent of the first hundred rooms, and 
roughly two percent of rooms in excess of 100, must meet certain 
requirements for accessibility to persons with mobility or hearing 
impairments, and an additional identical percentage must be accessible 
to persons with hearing impairments. An additional 1% of the available 
rooms must be equipped with roll-in showers, raising the actual scoping 
for rooms accessible to persons with mobility impairments to 5% of the 
first hundred rooms and 3% thereafter. The final ADAAG also provides 
that when a hotel is being altered, one fully accessible room and one 
room equipped with visual alarms, notification devices, and amplified 
telephones shall be provided for each 25 rooms being altered until the 
number of accessible rooms equals that required under the new 
construction standard. Accessible rooms must be dispersed in a manner 
that will provide persons with disabilities with a choice of single or 
multiple-bed accommodations.
    In new construction, homeless shelters and other social service 
entities must comply with ADAAG; at least one type of amenity in each 
common area must be accessible. In a facility that is not required to 
have an elevator, it is not necessary to provide accessible amenities on 
the inaccessible floors if at least one of each type of amenity is 
provided in accessible common areas. The percentage of accessible 
sleeping accommodations required is the same as that required for other 
places of transient lodging. Requirements for facilities altered for use 
as a homeless shelter parallel the current MGRAD accessibility 
requirements for leased buildings. A shelter located in an altered 
facility must have at least one accessible entrance, accessible sleeping 
accommodations in a number equivalent to that established for new 
construction, at least one accessible toilet and bath, at least one 
accessible common area, and an accessible route connecting all 
accessible areas. All accessible areas in a homeless shelter in an 
altered facility may be located on one level.

                  Section 10, Transportation Facilities

    Section 10 of ADAAG is reserved. On March 20, 1991, the ATBCB 
published a supplemental notice of proposed rulemaking (56 FR 11874) to 
establish special access requirements for transportation facilities. The 
Department anticipates that when the ATBCB issues final guidelines for 
transportation facilities, this part will be amended to include those 
provisions.

                         Subpart E--Enforcement

    Because the Department of Justice does not have authority to 
establish procedures for judicial review and enforcement, subpart E 
generally restates the statutory procedures for enforcement.
    Section 36.501 describes the procedures for private suits by 
individuals and the judicial remedies available. In addition to the 
language in section 308(a)(1) of the Act, Sec. 36.501(a) of this part 
includes the language from section 204(a) of the Civil Rights Act of 
1964 (42 U.S.C. 2000a-3(a)) which is incorporated by reference in the 
ADA. A commenter noted that the proposed rule did not include the 
provision in section 204(a) allowing the court to appoint an attorney 
for the complainant and authorize the commencement of the civil action 
without the payment of fees, costs, or security. That provision has been 
included in the final rule.
    Section 308(a)(1) of the ADA permits a private suit by an individual 
who has reasonable grounds for believing that he or she is ``about to 
be'' subjected to discrimination in violation of section 303 of the Act 
(subpart D 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

[[Page 991]]

a futile gesture if he or she has notice that a person or organization 
covered by title III of the Act does not intend to comply with its 
provisions.
    Section 36.501(b) restates the provisions of section 308(a)(2) of 
the Act, which states that injunctive relief for the failure to remove 
architectural barriers in existing facilities or the failure to make new 
construction and alterations accessible ``shall include'' an order to 
alter these facilities to make them readily accessible to and usable by 
persons with disabilities to the extent required by title III. The 
Report of the Energy and Commerce Committee notes that ``an order to 
make a facility readily accessible to and usable by individuals with 
disabilities is mandatory'' under this standard. H.R. Rep. No. 485, 
101st Cong., 2d Sess, pt 4, at 64 (1990). Also, injunctive relief shall 
include, where appropriate, requiring the provision of an auxiliary aid 
or service, modification of a policy, or provision of alternative 
methods, to the extent required by title III of the Act and this part.
    Section 36.502 is based on section 308(b)(1)(A)(i) of the Act, which 
provides that the Attorney General shall investigate alleged violations 
of title III and undertake periodic reviews of compliance of covered 
entities. Although the Act does not establish a comprehensive 
administrative enforcement mechanism for investigation and resolution of 
all complaints received, the legislative history notes that 
investigation of alleged violations and periodic compliance reviews are 
essential to effective enforcement of title III, and that the Attorney 
General is expected to engage in active enforcement and to allocate 
sufficient resources to carry out this responsibility. Judiciary Report 
at 67.
    Many commenters argued for inclusion of more specific provisions for 
administrative resolution of disputes arising under the Act and this 
part in order to promote voluntary compliance and avoid the need for 
litigation. Administrative resolution is far more efficient and 
economical than litigation, particularly in the early stages of 
implementation of complex legislation when the specific requirements of 
the statute are not widely understood. The Department has added a new 
paragraph (c) to this section authorizing the Attorney General to 
initiate a compliance review where he or she has reason to believe there 
may be a violation of this rule.
    Section 36.503 describes the procedures for suits by the Attorney 
General set out in section 308(b)(1)(B) of the Act. If the Department 
has reasonable cause to believe that any person or group of persons is 
engaged in a pattern or practice of resistance to the full enjoyment of 
any of the rights granted by title III or that any person or group of 
persons has been denied any of the rights granted by title III and such 
denial raises an issue of general public importance, the Attorney 
General may commence a civil action in any appropriate United States 
district court. The proposed rule provided for suit by the Attorney 
General ``or his or her designee.'' The reference to a ``designee'' has 
been omitted in the final rule because it is unnecessary. The Attorney 
General has delegated enforcement authority under the ADA to the 
Assistant Attorney General for Civil Rights. 55 FR 40653 (October 4, 
1990) (to be codified at 28 CFR 0.50(l).)
    Section 36.504 describes the relief that may be granted in a suit by 
the Attorney General under section 308(b)(2) of the Act. In such an 
action, the court may grant any equitable relief it considers to be 
appropriate, including granting temporary, preliminary, or permanent 
relief, providing an auxiliary aid or service, modification of policy or 
alternative method, or making facilities readily accessible to and 
usable by individuals with disabilities, to the extent required by title 
III. In addition, a court may award such other relief as the court 
considers to be appropriate, including monetary damages to persons 
aggrieved, when requested by the Attorney General.
    Furthermore, the court may vindicate the public interest by 
assessing a civil penalty against the covered entity in an amount not 
exceeding $50,000 for a first violation and not exceeding $100,000 for 
any subsequent violation. Section 36.504(b) of the rule adopts the 
standard of section 308(b)(3) of the Act. This section makes it clear 
that, in counting the number of previous determinations of violations 
for determining whether a ``first'' or ``subsequent'' violation has 
occurred, determinations in the same action that the entity has engaged 
in more than one discriminatory act are to be counted as a single 
violation. A ``second violation'' would not accrue to that entity until 
the Attorney General brought another suit against the entity and the 
entity was again held in violation. Again, all of the violations found 
in the second suit would be cumulatively considered as a ``subsequent 
violation.''
    Section 36.504(c) clarifies that the terms ``monetary damages'' and 
``other relief'' do not include punitive damages. They do include, 
however, all forms of compensatory damages, including out-of-pocket 
expenses and damages for pain and suffering.
    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

[[Page 992]]

deems relevant, whether the entity could have reasonably anticipated the 
need for an appropriate type of auxiliary aid needed to accommodate the 
unique needs of a particular individual with a disability.''
    The ``good faith'' standard referred to in this section is not 
intended to imply a willful or intentional standard--that is, an entity 
cannot demonstrate good faith simply by showing that it did not 
willfully, intentionally, or recklessly disregard the law. At the same 
time, the absence of such a course of conduct would be a factor a court 
should weigh in determining the existence of good faith.
    Section 36.505 states that courts are authorized to award attorneys 
fees, including litigation expenses and costs, as provided in section 
505 of the Act. Litigation expenses include items such as expert witness 
fees, travel expenses, etc. The Judiciary Committee Report specifies 
that such items are included under the rubric of ``attorneys fees'' and 
not ``costs'' so that such expenses will be assessed against a plaintiff 
only under the standard set forth in Christiansburg Garment Co. v. Equal 
Employment Opportunity Commission, 434 U.S. 412 (1978). (Judiciary 
report at 73.)
    Section 36.506 restates section 513 of the Act, which encourages use 
of alternative means of dispute resolution. Section 36.507 explains 
that, as provided in section 506(e) of the Act, a public accommodation 
or other private entity is not excused from compliance with the 
requirements of this part because of any failure to receive technical 
assistance.

                     Section 36.305  Effective Date

    In general, title III is effective 18 months after enactment of the 
Americans with Disabilities Act, i.e., January 26, 1992. However, there 
are several exceptions to this general rule contained throughout title 
III. Section 36.508 sets forth all of these exceptions in one place.
    Paragraph (b) contains the rule on civil actions. It states that, 
except with respect to new construction and alterations, no civil action 
shall be brought for a violation of this part that occurs before July 
26, 1992, against businesses with 25 or fewer employees and gross 
receipts of $1,000,000 or less; and before January 26, 1993, against 
businesses with 10 or fewer employees and gross receipts of $500,000 or 
less. In determining what constitutes gross receipts, it is appropriate 
to exclude amounts collected for sales taxes.
    Paragraph (c) concerns transportation services provided by public 
accommodations not primarily engaged in the business of transporting 
people. The 18-month effective date applies to all of the transportation 
provisions except those requiring newly purchased or leased vehicles to 
be accessible. Vehicles subject to that requirement must be accessible 
to and usable by individuals with disabilities if the solicitation for 
the vehicle is made on or after August 26, 1990.

     Subpart F--Certification of State Labs or Local Building Codes

    Subpart F establishes procedures to implement section 
308(b)(1)(A)(ii) of the Act, which provides that, on the application of 
a State or local government, the Attorney General may certify that a 
State law or local building code or similar ordinance meets or exceeds 
the minimum accessibility requirements of the Act. In enforcement 
proceedings, this certification will constitute rebuttable evidence that 
the law or code meets or exceeds the ADA's requirements.
    Three significant changes, further explained below, were made from 
the proposed subpart, in response to comments. First, the State or local 
jurisdiction is required to hold a public hearing on its proposed 
request for certification and to submit to the Department, as part of 
the information and materials in support of a request for certification, 
a transcript of the hearing. Second, the time allowed for interested 
persons and organizations to comment on the request filed with the 
Department (Sec. 36.605(a)(1)) has been changed from 30 to 60 days. 
Finally, a new Sec. 36.608, Guidance concerning model codes, has been 
added.
    Section 36.601 establishes the definitions to be used for purposes 
of this subpart. Two of the definitions have been modified, and a 
definition of ``model code'' has been added. First, in response to a 
comment, a reference to a code ``or part thereof'' has been added to the 
definition of ``code.'' The purpose of this addition is to clarify that 
an entire code need not be submitted if only part of it is relevant to 
accessibility, or if the jurisdiction seeks certification of only some 
of the portions that concern accessibility. The Department does not 
intend to encourage ``piecemeal'' requests for certification by a single 
jurisdiction. In fact, the Department 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

[[Page 993]]

to follow the State accessibility requirements. Consistent with these 
comments, the Department has added to the definition language clarifying 
that the official can be one authorized to submit a code on behalf of a 
jurisdiction.
    A definition of ``model code'' has been added in light of new 
Sec. 36.608.
    Most commenters generally approved of the proposed certification 
process. Some approved of what they saw as the Department's attempt to 
bring State and local codes into alignment with the ADA. A State agency 
said that this section will be the backbone of the intergovernmental 
cooperation essential if the accessibility provisions of the ADA are to 
be effective.
    Some comments disapproved of the proposed process as timeconsuming 
and laborious for the Department, although some of these comments 
pointed out that, if the Attorney General certified model codes on which 
State and local codes are based, many perceived problems would be 
alleviated. (This point is further addressed by new Sec. 36.608.)
    Many of the comments received from business organizations, as well 
as those from some individuals and disability rights groups, addressed 
the relationship of the ADA requirements and their enforcement, to 
existing State and local codes and code enforcement systems. These 
commenters urged the Department to use existing code-making bodies for 
interpretations of the ADA, and to actively participate in the 
integration of the ADA into the text of the national model codes that 
are adopted by State and local enforcement agencies. These issues are 
discussed in preamble section 36.406 under General comments.
    Many commenters urged the Department to evaluate or certify the 
entire code enforcement system (including any process for hearing 
appeals from builders of denials by the building code official of 
requests for variances, waivers, or modifications). Some urged that 
certification not be allowed in jurisdictions where waivers can be 
granted, unless there is a clearly identified decision-making process, 
with written rulings and notice to affected parties of any waiver or 
modification request. One commenter urged establishment of a dispute 
resolution mechanism, providing for interpretation (usually through a 
building official) and an administrative appeals mechanism (generally 
called Boards of Appeal, Boards of Construction Appeals, or Boards of 
Review), before certification could be granted.
    The Department thoroughly considered these proposals but has 
declined to provide for certification of processes of enforcement or 
administration of State and local codes. The statute clearly authorizes 
the Department to certify the codes themselves for equivalency with the 
statute; it would be ill-advised for the Department at this point to 
inquire beyond the face of the code and written interpretations of it. 
It would be inappropriate to require those jurisdictions that grant 
waivers or modifications to establish certain procedures before they can 
apply for certification, or to insist that no deviations can be 
permitted. In fact, the Department expects that many jurisdictions will 
allow slight variations from a particular code, consistent with ADAAG 
itself. ADAAG includes in Sec. 2.2 a statement allowing departures from 
particular requirements where substantially equivalent or greater access 
and usability is provided. Several sections specifically allow for 
alternative methods providing equivalent facilitation and, in some 
cases, provide examples. (See, e.g., section 4.31.9, Text Telephones; 
section 7.2(2) (iii), Sales and Service Counters.) Section 4.1.6 
includes less stringent requirements that are permitted in alterations, 
in certain circumstances.
    However, in an attempt to ensure that it does not certify a code 
that in practice has been or will be applied in a manner that defeats 
its equivalency with the ADA, the Department will require that the 
submitting official include, with the application for certification, any 
relevant manuals, guides, or any other interpretive information issued 
that pertain to the code. (Sec. 36.603(c)(1).) The requirement that this 
information be provided is in addition to the NPRM's requirement that 
the official provide any pertinent formal opinions of the State Attorney 
General or the chief legal officer of the jurisdiction.
    The first step in the certification process is a request for 
certification, filed by a ``submitting official'' (Sec. 36.603). The 
Department will not accept requests for certification until after 
January 26, 1992, the effective date of this part. The Department 
received numerous comments from individuals and organizations 
representing a variety of interests, urging that the hearing required to 
be held by the Assistant Attorney General in Washington, DC, after a 
preliminary determination of equivalency (Sec. 36.605(a)(2)), be 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

[[Page 994]]

filed in duplicate with the office of the Assistant Attorney General for 
Civil Rights. The Assistant Attorney General may request further 
information. The request and supporting materials will be available for 
public examination at the office of the Assistant Attorney General and 
at the office of the State or local agency charged with administration 
and enforcement of the code. The submitting official must publish public 
notice of the request for certification.
    Next, under Sec. 36.604, the Assistant Attorney General's office 
will consult with the ATBCB and make a preliminary determination to 
either (1) find that the code is equivalent (make a ``preliminary 
determination of equivalency'') or (2) deny certification. The next step 
depends on which of these preliminary determinations is made.
    If the preliminary determination is to find equivalency, the 
Assistant Attorney General, under Sec. 36.605, will inform the 
submitting official in writing of the preliminary determination and 
publish a notice in the Federal Register informing the public of the 
preliminary determination and inviting comment for 60 days. (This time 
period has been increased from 30 days in light of public comment 
pointing out the need for more time within which to evaluate the code.) 
After considering the information received in response to the comments, 
the Department will hold 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

[[Page 995]]

responsible for developing a model code to apply to the Assistant 
Attorney General for review of the code. The review process will be 
informal and will not be subject to the procedures of Secs. 36.602 
through 36.607. The result of the review will take the form of guidance 
from the Assistant Attorney General as to whether and in what respects 
the model code is consistent with the ADA's requirements. The guidance 
will not be binding on any entity or on the Department; it will assist 
in evaluations of individual State or local codes and may serve as a 
basis for establishing priorities for consideration of individual codes. 
The Department anticipates that this approach will foster further 
cooperation among various government levels, the private entities 
developing standards, and individuals with disabilities.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, redesignated by AG Order 
No. 3181-2010, 75 FR 56317, Sept. 15, 2010]

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  Sec. Appendix D to Part 36--1991 Standards for Accessible Design as 
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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. 
Redesignated by AG Order No. 3181-2010, 75 FR 56258, Sept. 15, 2010]

[[Page 1087]]



  Sec. Appendix E--Guidance to Revisions to ADA Title II and Title III 
Regulations Revising the Meaning and Interpretation of the Definition of 
    ``disability'' and Other Provisions in Order To Incorporate the 
                 Requirements of the ADA Amendments Act

    For guidance providing a section-by-section analysis of the 
revisions to 28 CFR parts 35 and 36 published on August 11, 2016, see 
appendix C of 28 CFR part 35.

[AG Order 3702-2016, 81 FR 53243, Aug. 11, 2016]



  Sec. Appendix F to Part 36--Guidance and Section-by-Section Analysis

                    Section 36.303(g)(1)  Definitions

    In the Notice of Proposed Rulemaking, 79 FR 44976 (Aug. 1, 2014) 
(NPRM), the Department proposed Sec. 36.303(g)(1), which set forth 
definitions for certain terms specifically referenced in paragraph (g). 
The Department sought public comment on these proposed definitions.

                            ``Analog Movie''

    Although the Department did not specifically propose a definition of 
``analog movie'' in the NPRM, the Department defined the term in the 
preamble and solicited comment on the state of analog movies and their 
availability. In the final rule, the Department has added a definition 
of ``analog movie'' in order to distinguish between movies shown in 
digital cinema format and movies shown in analog format. ``Analog 
movie'' is defined to mean ``a movie exhibited in analog film format.''

                          ``Audio Description''

    In the NPRM, the Department used the term ``audio description'' to 
refer to the spoken description of information describing the visual 
elements of a movie to an individual who is blind or has low vision and 
who is unable to see the images and action on the screen. Proposed 
Sec. 36.303(g)(1)(i) defined ``audio description'' as the ``provision of 
a spoken narration of key visual elements of a visually delivered 
medium, including, but not limited to, actions, settings, facial 
expressions, costumes, and scene changes.'' Although the Department 
believes that the term ``audio description'' is most commonly used to 
describe this service, it sought public comment on whether to use this 
or some other nomenclature.
    All commenters addressing this issue agreed with the Department's 
proposal and supported the use of the term and the Department's 
definition. In the final rule, the Department has retained the term 
``audio description,'' and has slightly modified the definition for 
clarity to read as follows: ``Audio description means the spoken 
narration of a movie's key visual elements, such as the action, 
settings, facial expressions, costumes, and scene changes. Audio 
description generally requires the use of an audio description device 
for delivery to a patron.''

                      ``Audio Description Device''

    In the NPRM, at proposed Sec. 36.303(g)(1)(iii), the Department used 
the term ``individual audio description listening device'' to refer to 
the ``individual device that patrons may use at their seats to hear 
audio description.'' The sole commenter on this definition expressed 
concern that the term ``individual audio description listening device'' 
was unnecessarily long. The Department agrees with the commenter and has 
revised the name of the device accordingly in the final rule. The final 
rule retains the text of the proposed definition with minor edits.

                          ``Captioning Device''

    In the NPRM, at proposed Sec. 36.303(g)(1)(iv), the Department used 
the term ``individual captioning device'' to refer to the ``individual 
device that patrons may use at their seats to view the closed 
captions.'' The sole commenter on this definition recommended that the 
Department shorten the nomenclature for this device to ``captioning 
device.'' The Department agrees with the commenter and has revised the 
name of the device accordingly in the final rule. The final rule retains 
the text of the proposed definition with minor edits.

                       ``Closed Movie Captioning''

    The NPRM defined ``closed movie captioning'' as ``the written text 
of the movie dialogue and other sounds or sound making (e.g. sound 
effects, music, and the character who is speaking).'' The NPRM further 
provided that closed movie captioning be available only to individuals 
who request it, and that, generally, it requires the use of an 
individual captioning device to deliver the captions to the patron.
    Commenters were equally split as to whether the Department should 
use ``closed movie captioning'' or some other language to refer to the 
technology. Some commenters urged the Department to use the term 
``closed captioning.'' Other commenters disagreed, however, and stated 
that the Department should avoid using the term ``closed captioning'' to 
distinguish it from the ``closed captioning'' that is turned on at home 
by a person viewing the television. In the final rule, the Department is 
retaining the term ``closed movie captioning,'' but the definition is 
modified for clarity to read: ``Closed movie captioning means the 
written display of a movie's dialogue and non-speech

[[Page 1088]]

information, such as music, the identity of the character who is 
speaking, and other sounds or sound effects. Closed movie captioning 
generally requires the use of a captioning device for delivery of the 
captions to the patron.''

                            ``Digital Movie''

    The Department has added a definition of ``digital movie,'' meaning 
``a movie exhibited in digital cinema format.''

                            ``Movie Theater''

    The NPRM proposed defining ``movie theater'' as ``a facility other 
than a drive-in theater that is used primarily for the purpose of 
showing movies to the public for a fee'' in order to make clear which 
facilities are subject to the specific captioning and audio description 
requirements set forth in Sec. 36.303(g). The Department intended this 
definition to exclude drive-in movie theaters as well as facilities that 
screen movies if the facility is not used primarily for the purpose of 
showing movies for a fee, such as museums, hotels, resorts, or cruise 
ships, even if they charge an additional fee. The Department asked for 
public comment on the proposed definition and whether it adequately 
described the movie theaters that should be covered by this regulation.
    Commenters generally supported the Department's proposed definition 
for ``movie theater,'' but there were some concerns about the proposed 
definition's scope. Some commenters asserted that the definition of 
``movie theater'' should be expanded to include the institutions that 
the Department expressly excluded, such as museums, hotels, resorts, 
cruise ships, amusement parks, and other similar public accommodations 
that show movies as a secondary function, whether or not they charge a 
fee. One commenter expressed concern that such entities might believe 
that they are otherwise exempt from any requirement to furnish auxiliary 
aids and services to ensure effective communication, and another 
commenter urged the Department to consider developing additional 
regulations that would specifically address public accommodations that 
are not covered by the proposed definition but otherwise exhibit movies 
or other video content.
    The Department declines to make any changes at this time to address 
public accommodations that do not meet the definition of ``movie 
theater'' and are, therefore, not subject to the requirements of 
paragraph (g). The Department's title III regulation has always made 
clear that all public accommodations must provide effective 
communication to the public through the provision of auxiliary aids and 
services, including, where appropriate, captioning and audio 
description. See generally 28 CFR 36.303; 28 CFR part 36, app. A. The 
requirements of this rule were not intended to supplant the general 
obligation to provide effective communication through the provision of 
auxiliary aids and services. They are only intended to provide clarity 
about how ``movie theaters'' must meet this obligation. The Department 
notes that many public accommodations that screen movies as a secondary 
function already provide appropriate auxiliary aids and services, and 
where the Department has identified the need for enforcement action, 
these types of public accommodations have been willing to comply with 
the ADA and the effective communication requirement. See, e.g., Press 
Release, U.S. Department of Justice, Justice Department Reaches 
Settlement with National Museum of Crime and Punishment to Improve 
Access for People with Disabilities (Jan. 13, 2015), available at http:/
/www.justice.gov/opa/pr/justice-department-reaches-settlement-national-
museum-crime-and-punishment-improve-access (last visited Sept. 12, 
2016).
    Two commenters asked the Department to revise the definition of 
``movie theater'' to clarify that public accommodations used as 
temporary screening locations during film festivals, such as pop-up 
tents, convention centers, and museums with theaters, are not subject to 
the requirements of paragraph (g). According to such commenters, most 
movies screened at festivals are not ready for distribution, and 
typically have not yet been distributed with captioning and audio 
description. To the extent a film is already distributed with these 
features, the commenters argued that the myriad of logistics entailed in 
coordinating a festival may preclude a film festival from making such 
features available.
    The Department does not believe that its definition of ``movie 
theater'' encompasses the temporary facilities described by the 
commenters that host film festivals. However, operators of film 
festivals, just like any other public accommodation that operates a 
place of entertainment, are still subject to the longstanding general 
requirement under Sec. 36.303 to provide effective communication unless 
doing so would be a fundamental alteration of the program or service or 
would constitute an undue burden. Moreover, if a festival programmer 
schedules the screening of a movie that is already distributed with 
captioning and audio description at a movie theater that is subject to 
the requirements in paragraph (g), then the effective communication 
obligation would require the festival to ensure that the accessible 
features are available at all scheduled screenings of a movie 
distributed with such features.
    The Department also received several comments regarding the 
exclusion of drive-in movie theaters in the proposed definition. Many 
commenters agreed that drive-in movie theaters should not be subject to 
the

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requirements of paragraph (g) because the technology still does not 
exist to exhibit movies with closed movie captioning and audio 
description in this setting. A few commenters pointed out innovative 
ways for drive-in movie theaters to provide captioning and audio 
description and argued that such options are feasible. For example, one 
commenter suggested that drive-in movie theaters provide audio 
description through a second low-power FM broadcast transmitter or on a 
second FM channel. However, these commenters did not clearly identify 
technology that is currently available or under development to provide 
closed movie captioning in this setting. Finally, one commenter 
expressed concern that if audio description was broadcast at a drive-in 
theater, it would likely be heard by patrons who do not require audio 
description and would result in a fundamental alteration of the movie-
going experience for such patrons.
    The Department declines to change its position that drive-in movie 
theaters should be excluded from the requirements of paragraph (g). 
Given the diminishing number of drive-in movie theaters, the current 
lack of accessible technology to provide closed movie captioning and 
audio description in this setting, and the fact that it is unlikely that 
such technology will be developed in the future, the Department remains 
convinced that rulemaking regarding drive-in movie theaters should be 
deferred until the necessary technology becomes commercially available.
    For the reasons discussed above, the Department has retained the 
text of the proposed definition of ``movie theater'' with minor edits. 
The final rule defines ``movie theater'' as ``a facility, other than a 
drive-in theater, that is owned, leased by, leased to, or operated by a 
public accommodation and that contains one or more auditoriums that are 
used primarily for the purpose of showing movies to the public for a 
fee.''

                        ``Open Movie Captioning''

    The NPRM proposed defining ``open movie captioning'' as ``the 
provision of the written text of the movie dialogue and other sounds or 
sound making in an on-screen text format that is seen by everyone in the 
movie theater.''
    While commenters were evenly split on whether the new regulation 
should use the term ``open movie captioning'' or ``open captioning,'' 
the Department chose the former to avoid confusion and emphasize that 
the term refers only to captioning provided at movie theaters. The final 
rule defines ``open movie captioning'' as ``the written on-screen 
display of a movie's dialogue and non-speech information, such as music, 
the identity of the character who is speaking, and other sounds and 
sound effects.''

                      Section 36.303(g)(2)  General

    In the NPRM, the Department proposed at Sec. 36.303(g)(2)(i) that 
``[a] public accommodation that owns, leases, leases to, or operates a 
movie theater shall ensure that its auditoriums have the capability to 
exhibit movies with closed movie captions.'' That paragraph further 
provided that in all cases where the movies the theater intends to 
exhibit are produced, distributed, or otherwise made available with 
closed movie captions, the public accommodation must ensure that it 
acquires the captioned version of those movies and makes closed movie 
captions available at all scheduled screenings of those movies. An 
identical provision requiring movie theaters to exhibit movies with 
audio description was proposed at Sec. 36.303(g)(3)(i). The Department 
proposed applying the requirements for closed movie captioning and audio 
description to all movie screens (auditoriums) in movie theaters that 
show digital movies and sought public comment as to the best approach to 
take with respect to movie theaters that show analog movies. The 
Department sought public comment on whether it should adopt one of two 
options regarding the specific obligation to provide captioning and 
audio description at movie theater auditoriums that display analog 
movies. Option 1 proposed covering movie theater screens (auditoriums) 
that display analog movies but giving them 4 years to come into 
compliance with the requirements of Sec. 36.303(g). Option 2 proposed 
deferring the decision whether to apply the rule's requirements to movie 
theater screens (auditoriums) showing analog movies and considering 
additional rulemaking at a later date.
    Many commenters generally agreed with the provisions as they related 
to movie theaters displaying digital movies. These commenters stressed, 
however, that movie theaters should in no way be prohibited or limited 
from exhibiting a movie that is not available with captioning or audio 
description, or be required to add captioning and audio description when 
these features are not available.
    Commenters were split in response to the Department's question 
concerning the best approach to take with respect to analog movie 
theaters. A slight majority of commenters supported deferral for movie 
theater auditoriums that exhibit analog movies exclusively. In support 
of Option 2, these commenters pointed to the state of the movie 
industry, the financial condition of many small movie theaters, and the 
unintended consequences of a 4-year compliance date. According to the 
comments, there are very few remaining movie theaters that display 
analog movies exclusively, and despite the industry's urging that such 
movie theaters must convert to digital to remain viable,

[[Page 1090]]

many of these movie theaters have not converted because they cannot 
afford the high cost to do so. Therefore, these commenters argued that a 
regulation covering analog movie theaters will have minimal overall 
impact in addition to being an unnecessary strain on small businesses, 
considering the high cost of compliance for such movie theaters.
    The remaining commenters responding to this question stated that the 
Department should adopt Option 1's 4-year compliance date for movie 
theaters displaying analog movies. These commenters reasoned that 
fairness and equality concerns justified adoption of Option 1 because, 
in their view, Option 2 could incentivize more movie theaters to delay 
their digital conversion, resulting in fewer movie theaters being 
subject to the regulation, and individuals with hearing and vision 
disabilities continuing to face unequal access to movie theaters. A few 
disability groups argued that because a movie theater is subject to 
title III of the ADA regardless of whether it displays analog movies or 
digital movies, adoption of Option 2 could be seen as carving out an 
exception within the ADA where none exists otherwise.
    In consideration of these comments and the Department's independent 
research, the Department has decided to defer until a later date the 
decision whether to engage in rulemaking with respect to movie theater 
auditoriums that exhibit analog movies exclusively. Thus, the final rule 
makes clear that the requirements of paragraph (g) apply only to movie 
theaters with auditoriums that show digital movies. The Department 
agrees with commenters that very few analog movie theaters remain, and 
that the number of such movie theaters has declined rapidly in recent 
years. The Department believes that it is prudent to wait until it is 
clear whether there will be any movie theaters that continue to show 
analog movies and whether analog movies will continue to be produced at 
all, or distributed with captioning and audio description. Although 
movie theater auditoriums that exhibit analog movies exclusively are not 
subject to the specific requirements of paragraph (g) at this time, such 
movie theaters are nonetheless public accommodations and subject to the 
effective communication requirements of title III.
    The final rule provides that ``[a] public accommodation shall ensure 
that its movie theater auditoriums provide closed movie captioning and 
audio description whenever they exhibit a digital movie that is 
distributed with such features. Application of the requirements of 
paragraph (g) is deferred for any movie theater auditorium that exhibits 
analog movies exclusively, but may be addressed in a future 
rulemaking.''
    The requirements of paragraph (g) do not in any way prohibit a movie 
theater from displaying a movie that has not been made available with 
captioning and audio description features nor do the requirements 
require a movie theater to independently add such features to a movie 
that is not distributed with such features. In addition, all movie 
theaters, regardless of size, status of conversion to digital cinema, or 
economic viability, continue to have available to them the 
individualized and fact-specific undue burden limitation specified in 
Sec. 36.303(a). This regulation does not change the availability of this 
compliance limitation nor the circumstances under which it can be 
asserted. See 28 CFR 36.104 (defining undue burden and listing factors 
to be considered in determining whether an action would result in an 
undue burden). It does, however, provide clarity about how movie 
theaters can meet their longstanding effective communication obligations 
under the ADA.
    The Department notes that even if a movie theater cannot initially 
install captioning and audio description equipment in all of its 
auditoriums because it is an undue burden, the movie theater is still 
obligated to comply with renumbered Sec. 36.303(h) and provide 
alternatives to full compliance by providing captioning and audio 
description in some of its auditoriums up to the point where the cost 
becomes an undue burden. In such a situation, the movie theater should 
take steps to maximize the range of movie options for customers who are 
deaf or hard of hearing, or blind or have low vision, by dispersing the 
available equipment throughout their auditoriums so that the theater is 
able to exhibit as many movies as possible with captioning and audio 
description throughout the day and evening on weekdays and weekends. If, 
for example, a six-auditorium movie theater can only afford to install 
captioning equipment in half of its auditoriums, and it has auditoriums 
with different capacities, it should install captioning equipment in a 
large, a medium, and a small auditorium. This distribution of equipment 
would permit exhibition of different types of movies, as blockbusters 
generally are shown in larger auditoriums first and lower budget or 
older movies may only be shown in medium or small auditoriums.
    It has been, and continues to be, the Department's position that it 
would not be a fundamental alteration of the business of showing movies 
in theaters to exhibit movies already distributed with closed movie 
captioning and audio description in order to ensure effective 
communication for individuals who are deaf or hard of hearing, or blind 
or have low vision. The service that movie theaters provide is the 
screening or exhibiting of movies. The use of captioning and audio 
description to make that service available to those who are deaf or hard 
of hearing, or blind or have low vision, does not change that service. 
Rather, the provision of such auxiliary aids is the means by which these

[[Page 1091]]

individuals gain access to movie theaters' services and thereby achieve 
the ``full and equal enjoyment,'' 42 U.S.C. 12182(a), of the screening 
of movies. See, e.g., Brief for the United States as Amicus Curiae 
Supporting Appellants and Urging Reversal at 15-17, Arizona ex rel. 
Goddard v. Harkins Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010) 
(No. 08-16075); see also NPRM, 79 FR 44976, 44982-83 (Aug. 1, 2014). The 
Department received no public comments challenging that position.

    Section 36.303(g)(3)  Minimum Requirements for Captioning Devices

    In the NPRM, the Department proposed that movie theaters be required 
to have available a minimum number of captioning devices equal to 
approximately half the number of assistive listening receivers already 
mandated for assembly areas by sections 219 and 706 of the 2010 
Standards. The calculation was based on a movie theater's total seating 
capacity and 2010 Census data estimating that 3.1 percent of the U.S. 
population ages 15 and older (7.6 million) has difficulty hearing. See 
U.S. Census Bureau, U.S. Department of Commerce, P70-131, Americans with 
Disabilities: 2010 Household Economic Studies at 8 (2012), available at 
http://www.census.gov/prod/2012pubs/p70-131.pdf (last visited Sept. 12, 
2016). Thus, the proposed Sec. 36.303(g)(2)(iii)(A) required that a 
movie theater maintain captioning devices for approximately 2-4 percent 
of all available seats and stated that: ``a public accommodation that 
owns, leases, leases to, or operates a movie theater shall provide 
individual captioning devices in accordance with the following Table 
[below]. This requirement does not apply to movie theaters that elect to 
exhibit all movies at all times at that facility with open movie 
captioning.''

------------------------------------------------------------------------
                                            Minimum required number of
  Capacity of seating in movie theater    individual captioning devices
------------------------------------------------------------------------
100 or less............................  2.
101 to 200.............................  2 plus 1 per 50 seats over 100
                                          seats or a fraction thereof.
201 to 500.............................  4 plus 1 per 50 seats over 200
                                          seats or a fraction thereof.
501 to 1000............................  10 plus 1 per 75 seats over 500
                                          seats or a fraction thereof.
1001 to 2000...........................  18 plus 1 per 100 seats over
                                          1000 seats or a fraction
                                          thereof.
2001 and over..........................  28 plus 1 per 200 seats over
                                          2000 seats or a fraction
                                          thereof.
------------------------------------------------------------------------

    The Department received more than 70 comments on its proposed 
scoping requirements for captioning devices. All commenters disagreed 
with the formula in the NPRM, and with the exception of a very few 
individuals and a law school clinic, commenters uniformly maintained 
that the Department's proposed requirements substantially overestimated 
the number of captioning devices necessary for a variety of reasons.
    Many commenters asserted that seating capacity does not equate with 
the need for captioning devices because movie theaters are rarely at 100 
percent seat occupancy, and not all Americans attend the movies 
simultaneously. They stressed that even at peak attendance times 
(weekends), average seat occupancy rates are substantially less than 
half of capacity while small movie theaters in rural areas with one or 
two auditoriums report even lower attendance rates. Other commenters 
noted that old historic theaters often have large seating capacities, 
despite low attendance rates. And some noted that at large, multi-
auditorium complexes, not all auditoriums are simultaneously in use at 
all times. Thus, these commenters asserted that average movie attendance 
during weekend hours, not the number of theater seats, most accurately 
predicts anticipated demand for captioning devices.
    Some commenters maintained that the Department's proposed scoping 
requirements significantly overestimated the need for captioning devices 
because the percentage of persons in the population who have difficulty 
hearing does not reflect those who will actually benefit from or use the 
devices. In their view, captioning devices will not be used by the vast 
majority of individuals who are deaf or hard of hearing because such 
devices are only needed by persons who have ``severe'' difficulty 
hearing, and assistive listening receivers, which amplify the volume of 
sound, are already required and available at movie theaters. These 
commenters also cited statistics showing that a significant percentage 
of Americans do not attend the movies at least once a year, and while 
hearing loss disproportionately affects seniors, they represent a 
smaller proportion of persons who actually attend the movies.
    Commenters also stressed that in their experience, the Department's 
proposed scoping requirements for captioning devices far exceed demand 
in those movie theaters that currently stock and advertise the 
availability of such devices. To support this conclusion, NATO offered 
device usage data from five movie theater companies (which included a 
small business with a total screen (auditorium) count in the 1-75 range, 
three regional companies with a total screen (auditorium) count in the 
300-700 range, and a national company with a 2000+ screen (auditorium) 
count) that stock and advertise the availability of captioning devices 
on their Web sites, at ticket counters, and on third-party Web sites. 
According to NATO, that

[[Page 1092]]

data showed that even though four of these five companies stocked far 
fewer captioning devices than the NPRM proposed, actual demand rarely, 
if ever, exceeded supply even at peak attendance times. Other movie 
theaters and a trade association also submitted tracking records to 
confirm the same.
    Several commenters objected to the Department's proposed scoping 
requirements because they provided a fixed, nonadjustable number that 
was not tied to actual consumer demand and failed to account for 
variations in attendance based on theater location and patron 
demographics. These commenters noted that while movie theaters near 
areas with a high concentration of residents or students who are deaf or 
hard of hearing may experience greatest demand for devices, a movie 
theater in a small rural area may have only a few requests. Many 
commenters also expressed concern that because the Department's proposed 
scoping requirements would result in the vast majority of movie theaters 
having to purchase expensive technology far in excess of what is needed 
or would be used, those movie theaters would likely avoid investing in 
new, superior technology as it becomes available.
    Although commenters overwhelmingly disagreed with the Department's 
proposed approach to scoping, most did not suggest a formula for 
determining the number of captioning devices that should be required. 
Instead, they recommended that the number of required devices be based 
on one or more factors, including actual or average weekend movie 
attendance, percentage of individuals who have severe hearing difficulty 
and will likely use the devices, demand for devices, number of movie 
theater seats, screen count, and patron demographics. For example, a 
Federal agency recommended that the Department set scoping requirements 
in accordance with the optimal number of devices sufficient to provide 
accessibility to the disability community (based on relevant factors 
such as device usage, demand, and weekend theater attendance) while 
minimizing the burden on small businesses. A few movie theaters 
maintained that any minimum device requirement would be a waste of 
resources and unnecessary because movie theaters seek to satisfy their 
patrons' needs, and as a result, many already advertise and provide 
captioning devices upon request.
    NATO and four advocacy groups representing persons who are deaf or 
hard of hearing \1\ submitted a Joint Comment offering a three-tiered 
approach to scoping that was referenced and supported by many 
commenters. First, the Joint Comment recommended that movie theaters 
obtain a minimum number of captioning devices based on the number of 
screens (auditoriums) displaying digital movies, in accordance with the 
following:

    \1\ Those advocacy groups are the National Association of the Deaf, 
the Hearing Loss Association of America, the Association of Late 
Deafened Adults, and the Alexander Graham Bell Association for the Deaf 
and Hard of Hearing.
---------------------------------------------------------------------------

Single Screen: 4 devices
Miniplex (2-7 screens): 6 devices
Multiplex (8-15 screens): 8 devices
Megaplex (16+ screens): 12 devices

    Second, in order to address the limited circumstances when demand 
for captioning devices exceeds minimum requirements, the Joint Comment 
proposed that movie theaters record weekend demand for captioning 
devices and adjust the number of devices biannually to be equal to 150 
percent of the average weekend demand during a 6-month tracking period. 
For example, under this formula, a movie theater that is initially 
required to have 6 devices and calculates an average actual weekend 
demand of 8 devices during a tracking period must increase the number of 
available devices to 12 (150 percent of 8). Finally, the Joint Comment 
recommended that the Department require every movie theater company to 
submit an annual report of its tracking records to the Department.
    After considering all comments, census data, statistics regarding 
movie theater attendance, actual usage data, and its independent 
research, the Department has modified its approach to captioning device 
scoping and has adopted a final rule that requires movie theaters to 
have on hand the minimum number of captioning devices proposed in the 
Joint Comment. Thus, the final rule at renumbered Sec. 36.303(g)(3)(i) 
states that ``[a] public accommodation shall provide a minimum number of 
fully operational captioning devices at its movie theaters in accordance 
with the following Table:''

------------------------------------------------------------------------
                                                              Minimum
                                                             required
 Number of movie theater auditoriums exhibiting digital      number of
                         movies                             captioning
                                                              devices
------------------------------------------------------------------------
1.......................................................               4
2-7.....................................................               6
8-15....................................................               8
16+.....................................................              12
------------------------------------------------------------------------

    The Department imposes these requirements because its own research 
and analysis confirms that they will easily satisfy maximum weekend 
demand for captioning devices at movie theaters across the nation in 
almost every location. Thus, the Department believes that the final rule 
obligates movie theaters to provide the optimum number of captioning 
devices sufficient to provide accessibility to individuals with 
disabilities

[[Page 1093]]

who will need and use them, without requiring movie theaters to purchase 
equipment that may likely never be used.
    Despite NATO's and a number of other comments to the contrary, the 
Department has also decided not to impose specific requirements at this 
time for providing additional captioning devices when actual demand for 
them exceeds the rule's minimum requirements. While the Department 
acknowledges that there are a few movie theaters located in areas where 
there is an unusually high concentration of individuals who are deaf or 
hard of hearing, comments, usage data, and independent research all 
indicate that only in those rare circumstances is there a reasonable 
possibility that regular demand for devices may exceed the rule's 
minimum requirements. That same information also reflects that many 
movie theaters located in markets that consistently have an unusually 
large number of patrons with hearing difficulties are already making 
voluntary efforts to satisfy consumer demand. For example, because open 
movie captioning is popular with many movie patrons who are deaf or hard 
of hearing, some movie theaters near schools that educate persons who 
are deaf provide open-captioned screenings on-demand, or in accordance 
with a convenient, regular, and frequent schedule. In any event, the 
Department currently lacks adequate information and data to craft an 
appropriate standard to address these situations.
    In addition, the Department decided not to impose a recordkeeping 
requirement on movie theaters at this time, even though some commenters 
suggested that the Department do so in order to require movie theaters 
to keep records of actual demand for devices. The NPRM did not solicit 
information about existing movie theater recordkeeping practices with 
respect to the provision of assistive listening receivers or captioning 
and audio description devices, and the Department lacks adequate data as 
to the costs and the burdens of imposing such a requirement on all movie 
theaters. Moreover, the Department has not previously imposed this type 
of recordkeeping requirement on public accommodations, and it declines 
to do so without more information about the need and the costs. The 
Department intends, however, to reach out to stakeholders in the future 
and obtain additional information about whether it should consider 
engaging in supplemental rulemaking regarding a recordkeeping 
requirement and imposing a standard that addresses situations when 
actual demand exceeds the rule's minimum requirements.
    In the interim, for those movie theaters that are located in the few 
places where there is an unusually high concentration of individuals who 
are deaf or hard of hearing, the Department strongly encourages these 
public accommodations to voluntarily work with the local disability 
community to identify and maintain an appropriate number of captioning 
devices, or to utilize other approaches, including open movie 
captioning, to satisfy their patrons' regular and actual demand.

Section 36.303(g)(4)  Minimum Requirements for Audio Description Devices

    In order to ensure that individuals who are blind or have low vision 
have access to audio-described movies when such movies are available, 
movie theaters must provide a reasonable number of audio description 
devices. In the NPRM, the Department proposed at 
Sec. 36.303(g)(3)(ii)(A) that movie theaters maintain one audio 
description device per auditorium, with a minimum of two devices per 
movie theater. However, the Department noted at proposed 
Sec. 36.303(g)(3)(ii)(B) that ``[a] movie theater may comply with this 
requirement by using receivers it already has available as assistive 
listening devices in accordance with the requirements in Table 219.3 of 
the 2010 Standards, if those receivers have a minimum of two channels 
available for sound transmission to patrons.'' The Department theorized 
that many movie theaters utilized the newer, multi-channel assistive 
listening receivers, and as a result, most movie theaters would not be 
required to purchase additional devices in order to comply with this 
requirement.
    The Department received extensive comments regarding the proposed 
scoping for audio description devices. Although commenters 
overwhelmingly supported the proposed rule's goal of ensuring access to 
audio description in movie theaters, only three commenters agreed with 
the proposed scoping.
    Several commenters recommended a greater number of audio description 
devices than the Department proposed in the NPRM to accommodate an 
increase in the number of individuals who are blind or have low vision 
who will likely attend the movies if accessible technologies are 
available. A few commenters recommended two audio description devices 
per auditorium, citing a movie theater's usage data to support the 
suggestion. One commenter, concerned that a movie theater should be able 
to accommodate a larger group of blind or visually impaired movie 
patrons, recommended at least eight audio description devices per movie 
theater, or two devices per auditorium, whichever is greater. Finally, 
one commenter proposed requiring three audio description devices per 
auditorium to accommodate a larger user pool, and to counteract a 
reduction in available devices that may arise in the event of equipment 
failure, or when devices are being recharged.
    The majority of commenters, however, stated that the recommended 
scoping was

[[Page 1094]]

excessive and too inflexible. These commenters reasoned that the 
proposed scoping failed to consider attendance variability or 
demographics, and inhibited movie theaters from moving devices between 
locations to effectively meet demographic needs. Commenters recommended 
basing the number of required audio description devices on factors such 
as weekend attendance, annual attendance, tracked usage rates, and 
market demand. The Department received a large number of comments from 
movie theaters stating that current requests by patrons for audio 
description devices are extremely low. Additionally, a trade association 
submitted comments stating that member companies reported signing out a 
maximum of 1-4 audio description devices at any time, and that these 
companies never had more requests for devices than the number of devices 
available. Based on this information, the trade association recommended 
that the Department require one audio description device for every two 
auditoriums, with a minimum of two devices per movie theater.
    In addition to comments criticizing the proposed scoping, commenters 
also addressed the Department's belief that most movie theaters utilize 
multi-channel headsets to meet their assistive listening device 
obligations. A couple of movie theaters indicated that they have the 
dual-channel receivers. However, a trade association commented that many 
movie theaters still rely on single-channel headsets to meet their 
assistive listening device obligations and that the Department erred in 
assuming that most movie theaters would not need to buy additional 
devices in order to comply with these scoping requirements.
    In consideration of the comments received and the Department's 
independent research, the Department has adjusted the required number of 
audio description devices to one device for every two auditoriums. The 
Department believes that the available data supports its view that the 
revised scoping ensures that movie theaters will have available an 
adequate number of devices without requiring movie theaters to purchase 
more equipment than is likely necessary. The final rule at renumbered 
Sec. 36.303(g)(4)(i) reads as follows: ``A public accommodation shall 
provide at its movie theaters a minimum of one fully operational audio 
description device for every two movie theater auditoriums exhibiting 
digital movies and no less than two devices per movie theater. When 
calculation of the required number of devices results in a fraction, the 
next greater whole number of devices shall be provided.'' The Department 
has retained the provision in proposed Sec. 36.303(g)(3)(ii)(B) 
regarding the use of multi-channel assistive listening receivers to meet 
this requirement. The Department notes that if movie theaters are 
purchasing new receivers to replace existing single-channel receivers, 
they may choose to purchase two-channel receivers and then use them to 
meet both their requirements to provide assistive listening receivers 
and audio description devices if use of the two-channel receivers is 
compatible with their audio description and assistive listening systems. 
The Department does not, however, intend this provision to discourage 
movie theaters from using induction loop systems for sound amplification 
while using a different system for transmission of audio description. 
Renumbered Sec. 36.303(g)(4)(ii) states that ``[a] public accommodation 
may comply with the requirements in paragraph (g)(4)(i) by using the 
existing assistive listening receivers that the public accommodation is 
already required to provide at its movie theaters in accordance with 
Table 219.3 of the 2010 Standards, if those receivers have a minimum of 
two channels available for sound transmission to patrons.''

 Section 36.303(g)(5)  Performance Requirements for Captioning Devices 
                      and Audio Description Devices

    In the NPRM, the Department proposed performance requirements for 
the individual devices used by movie patrons at their individual seats. 
Proposed Sec. 36.303(g)(2)(iii)(B) stated that the individual devices 
needed to be adjustable; be available to patrons in a timely manner; 
provide clear, sharp images; be properly maintained; and be easily 
usable by the patron in order to ensure effective communication.
    While the comments were generally supportive of the existence of 
performance requirements, there were differences of opinion expressed 
about the specifics of this provision. Some commenters supported the 
Department's language, but others expressed concern that the 
requirements as written were vague and subjective. For example, a few 
commenters proposed that the Department define specific quantifiable and 
technical standards, and several commenters suggested that the 
Department develop a program to encourage the development of better 
accessibility technology due to their concerns associated with the 
design and quality of current technology.
    The Department also received conflicting comments with respect to 
adding requirements beyond those proposed in the NPRM. Several 
commenters suggested that the Department require captioning devices to 
have an adjustable font size while many disagreed, stating that an 
adjustable font size requirement would be problematic. Other commenters 
believed that the Department should require that all devices be clean, 
in addition to being available and functional. Commenters also suggested 
requiring quality assurance procedures, frequent testing, and regular 
maintenance schedules to ensure

[[Page 1095]]

that the devices are functional and deliver complete and accurate 
captions and audio description. One commenter encouraged the Department 
to require that movie theaters maintain the most recent technology in a 
range of device styles and consult with customers and consumer groups to 
decide which devices to purchase. Although the NPRM language focused on 
captioning devices, many of the comments urged the Department to ensure 
that both captioning and audio description devices are maintained and 
readily available.
    After considering all comments, the Department has decided to retain 
the performance requirements as proposed in the NPRM with minor 
structural edits and to make clear that the requirements for maintenance 
and timely availability apply to both types of devices. The Department 
declines to impose any additional requirements related to ensuring the 
functionality of the captioning and audio description devices provided 
by movie theaters. The rule imposes the responsibility on movie theaters 
to ensure that the equipment is fully operational (meets all of the 
performance requirements in the regulation) and available. The 
Department believes that movie theaters are able to determine the best 
approach for ensuring compliance with the regulatory requirements and 
notes that Sec. 36.211(b) (Maintenance of accessible features) ``does 
not prohibit isolated or temporary interruptions in service or access 
due to maintenance or repairs.''
    The Department also declines to include specific technical 
specifications regarding the captioning and audio description devices. 
The Department notes that its approach to performance requirements for 
captioning and audio description devices is similar to the approach the 
Department took with respect to performance standards for video remote 
interpreting services. See Sec. 36.303(f).
    The Department also declines to impose an obligation that movie 
theaters must upgrade to the most recent technology. While the 
Department is in favor of technological development, such a requirement 
is beyond the scope of this regulation. Additionally, the Department 
believes that many of the concerns about current devices raised by 
commenters (e.g., poor power connection or poor signal) are adequately 
addressed by the requirements in paragraphs (g)(3) through (5)--that 
devices be fully operational and maintained.
    Renumbered Sec. 36.303(g)(5) of the final rule retains the 
performance requirements proposed in the NPRM, but it has been 
restructured for clarity.

             Section 36.303(g)(6)  Alternative Technologies

    Although commenters on the 2010 Advance Notice of Proposed 
Rulemaking, 75 FR 43467 (July 26, 2010) (ANPRM), encouraged the 
Department to require open movie captioning at movie theaters, the 
Department declined to make such a proposal in the NPRM, noting that in 
the debate leading up to passage of the ADA, the House Committee on 
Education and Labor explicitly stated that ``[o]pen-captioning, for 
example, of feature films playing in movie theaters, is not required by 
this legislation.'' H.R. Rep. No. 101-485, pt. 2, at 108 (1990). The 
Senate Committee on Labor and Human Resources included a statement in 
its report on the ADA to the same effect. S. Rep. No. 101-116, at 64 
(1989). As the House Committee also recognized, however, ``technological 
advances * * * may require public accommodations to provide auxiliary 
aids and services in the future which today would not be required 
because they would be held to impose undue burdens on such entities.'' 
H.R. Rep. No. 101-485, pt. 2, at 108.
    The Department included a provision in the NPRM giving movie theater 
owners and operators the choice to use other technologies to comply with 
the captioning and audio description requirements of this rule. Proposed 
Sec. 36.303(g)(2)(ii) provided that ``[m]ovie theaters may meet their 
obligation to provide captions to persons with disabilities through use 
of a different technology, such as open movie captioning, so long as the 
communication provided is as effective as that provided to movie patrons 
without disabilities. Open movie captioning at some or all showings of 
movies is never required as a means of compliance with this section, 
even if it is an undue burden for a theater to exhibit movies with 
closed movie captioning in an auditorium.''
    Commenters disagreed on whether this provision struck an appropriate 
balance between the cost to movie theaters, the benefit to individuals 
with hearing and vision disabilities, and the impact on the movie-going 
experience for individuals without disabilities. The majority of 
comments on this provision concerned open movie captioning. Although 
some commenters expressed concern that an open-movie-captioning 
requirement would have an impact on the cinematic experience of hearing 
patrons, most commenters argued that the Department should require open 
movie captioning. Several open-movie-captioning requirements were 
proposed by commenters, including: Requiring open movie captioning at 
100 percent of showings; requiring one open-captioned movie per day; 
requiring dedicated open-captioned auditoriums; or requiring open movie 
captioning if closed movie captioning is unavailable for any reason. One 
commenter who supported an open-movie-captioning requirement asserted 
that 95 percent of the deaf and hard of hearing community prefers open 
movie captioning to the use of captioning devices.
    The commenters proposing an open-movie-captioning requirement 
ultimately disagreed

[[Page 1096]]

with the Department's interpretation of the legislative history as 
indicating congressional intent that the ADA did not require the 
provision of open movie captions at movie theaters. One commenter 
reasoned that because modern open movie captioning is significantly 
different from the open movie captioning available in 1990, the 
legislative history on this point represents a latent ambiguity. 
Therefore, in this commenter's view, the Department is not bound by the 
legislative history concerning open movie captioning and is free to 
require it. Other commenters, however, agreed with the Department's 
statement in the NPRM and argued that because the legislative history 
states that open movie captioning is not required as a means of 
compliance with the ADA, the rule should not mandate any conditions 
concerning open-captioned showings.
    In response to the Department's questions concerning the parameters 
of the option to provide open movie captioning rather than closed movie 
captioning, several commenters suggested that the Department define what 
constitutes a ``timely request'' when a movie patron requests open movie 
captioning. These commenters provided a variety of suggestions, which 
ranged from the specific (e.g., 1 hour or 1 day before the showing) to 
the ambiguous (e.g., it should be reasonably easy).
    Other comments also addressed whether the Department adequately 
addressed new technology. One commenter agreed that the ``different 
technology'' language encompassed any future technology, but further 
suggested that the effectiveness of new technologies should be judged 
from the baseline of ``as effective as captioning and/or audio 
description devices.'' Other commenters disagreed and criticized the 
rule for not addressing other currently available technologies, such as 
hearing loop systems, InvisivisionTM glasses, or smart phone 
applications.
    After considering all of the comments, the Department has decided to 
retain the option to comply with the captioning and audio description 
requirements of this rule through the use of any other technology that 
is or becomes available to provide effective communication to patrons 
with hearing and vision disabilities, including open movie captioning. 
The Department has clarified, however, that in those circumstances where 
a public accommodation chooses to use open movie captioning at all 
showings of all movies available with captioning or at all times it 
receives a request to turn on open movie captions prior to the start of 
the movie, it is not also required to comply with the specific 
requirement to obtain captioning devices. However, if a public 
accommodation only makes open movie captioning available to patrons who 
are deaf or hard of hearing at some showings of movies available with 
captioning, it will still have to comply with the requirements to 
provide captioning devices because it must provide effective 
communication at all showings of all movies available with captioning.
    The Department has made other changes to the structure and language 
of this provision in response to comments and to better preserve the 
intent and longevity of this paragraph. The final rule now reads 
``through any technology,'' instead of ``through use of different 
technology.'' Although the Department declines to endorse specific 
technologies, the Department believes that the revised language better 
articulates the purpose of this paragraph to encompass current and 
future technologies that may serve individuals with hearing and vision 
disabilities. The requirement that public accommodations provide 
auxiliary aids and services to ensure communication as effective as that 
provided to movie patrons without disabilities remains unchanged as that 
is the standard for effective communication required by Sec. 36.303(c). 
See 28 CFR part 36, app. C (explaining that public accommodations must 
provide appropriate auxiliary aids and services ``to ensure that 
communication with persons with disabilities is as effective as 
communication with others'').
    The Department maintains its view that Congress did not intend the 
ADA to require movie theaters to provide open movie captioning. Although 
the technology to provide open movie captioning has changed and enables 
movie theaters to provide the service more easily, open movie captioning 
as it exists today remains visible to all movie patrons and has not 
changed in this respect. As a result, the Department's position remains 
consistent with the legislative history on this point, and the final 
rule retains the language (with some minor edits) in proposed 
Sec. 36.303(g)(2)(ii), which provided that ``[o]pen movie captioning at 
some or all showings of movies is never required as a means of 
compliance with this section, even if it is an undue burden for a 
theater to exhibit movies with closed movie captioning in an 
auditorium.'' In the final rule, however, the Department has moved this 
language to new Sec. 36.303(g)(10).
    The revised provision addressing other technologies, renumbered in 
the final rule as Sec. 36.303(g)(6), enables a public accommodation to 
meet its obligation to provide captioning and audio description through 
alternative technologies that provide effective communication for movie 
patrons with hearing and vision disabilities. Section 36.303(g)(6) 
further provides that a public accommodation may use open movie 
captioning as an alternative to complying with the captioning device 
scoping requirements of this rule by providing open movie captioning at 
all

[[Page 1097]]

showings, or whenever requested by or for an individual who is deaf or 
hard of hearing.

Section 36.303(g)(7)  Compliance Date for Providing Captioning and Audio 
                               Description

    In the NPRM, the Department proposed at Sec. 36.303(g)(4)(i) that 
all movie theaters with auditoriums displaying digital movies must 
comply with the requirements of the rule within 6 months of the 
publication date of the final rule. The Department also proposed to give 
movie theaters that converted their auditoriums with analog projection 
systems to digital projection systems after the publication date of the 
rule an additional 6 months from the date of conversion to comply with 
the rule's requirements. Although the Department expressed the belief 
that 6 months was sufficient time for movie theaters to order and 
install the necessary equipment, train employees on how to use the 
equipment and assist patrons in using it, and notify patrons of the 
availability of these services, the Department requested public comment 
on the reasonableness of a 6-month compliance date.
    The Department received many comments both against and in favor of 
the proposed 6-month compliance date. A minority of comments from a few 
disability advocacy groups and a few private citizens supported the 
proposed 6-month compliance date. These commenters asserted that because 
most movie theaters had already committed to providing captioning and 
audio description to their patrons by the end of 2014, the 6-month 
compliance date was, in their view, reasonable.
    The vast majority of commenters, however, asserted that 6 months was 
not enough time for the remaining movie theaters to comply with the 
requirements of this rule. These comments raised concerns about 
manufacturers' ability to sustain the sudden, increased demand that the 
scoping requirements would likely create for captioning and audio 
description devices. Industry commenters stated that movie theaters 
already experience considerable delays between order date and delivery 
date and that, with increased demand and a limited supply, the prices of 
these devices would likely increase, especially for lower volume 
purchasers. Industry commenters further advised the Department that a 
trained technician must install the captioning and audio description 
equipment and that their experience indicates that there is a waiting 
period for such services. Commenters also expressed concern that the 
compliance date proposed in the NPRM was drastically different from the 
phased compliance date proposed in the ANPRM and that the Department's 
rationale for the change was insufficient.
    Finally, some commenters expressed concern that small movie theaters 
in particular would have difficulty complying with the requirements of 
the rule within the proposed 6-month compliance date. Commenters advised 
that small movie theaters would need additional time to raise the 
necessary funds or adjust their budgets in order to purchase the 
equipment.
    Based on these concerns, commenters offered a variety of alternative 
compliance dates. The Joint Comment suggested that the Department 
require movie theaters to issue purchase orders for the equipment within 
6 months of the final rule's publication, but require fully functional 
and operational devices and trained staff either within 2 years of the 
final rule's publication or 6 months of system delivery, whichever came 
first. Other commenters suggested compliance dates ranging from 1 year 
to 4 years. One major movie theater chain in particular recommended an 
18-month compliance date, stating that this is the amount of time that 
it currently takes to order and install the necessary equipment. Some 
commenters suggested a sliding compliance schedule based on a movie 
theater's gross revenue or a movie theater's size, and others suggested 
a phased compliance date similar to the schedule articulated in the 
ANPRM.
    In consideration of these comments and the Department's independent 
research, the Department agrees that 6 months may be an insufficient 
amount of time for movie theaters to comply with the requirements of 
paragraph (g) of this section, and the Department instead will require 
compliance beginning 18 months from the date of publication of the final 
rule. The Department believes that an 18-month compliance period 
sufficiently accounts for potential delays that may result from 
manufacturer backlogs, installation waitlists, and other circumstances 
outside a movie theater's control. This date also gives small movie 
theaters that are financially impacted as a result of the unrelated 
costs of digital conversion a sufficient amount of time to plan and 
budget accordingly. The Department declines to include a requirement 
that movie theaters issue purchase orders for the equipment within 6 
months of the final rule's publication because such a requirement is 
unenforceable without imposing recordkeeping and reporting requirements.
    The final rule continues to provide additional time for movie 
theaters converting their auditoriums from analog projection systems to 
digital projection systems after the publication date of the final rule. 
Once the installation of a digital projection system is complete, 
meaning that the auditorium has installed the equipment needed to 
exhibit a digital movie, the movie theater has at least an additional 6 
months to ensure compliance with the requirements of the rule and 
provide closed movie captioning and audio description when showing 
digital movies in that auditorium. Renumbered

[[Page 1098]]

Sec. 36.303(g)(7)(ii) states that ``[i]f a public accommodation converts 
a movie theater auditorium from an analog projection system to a system 
that allows it to exhibit digital movies after December 2, 2016, then 
that auditorium must comply with the requirements in paragraph (g) of 
this section by December 2, 2018, or within 6 months of that 
auditorium's complete installation of a digital projection system, 
whichever is later.'' The Department believes that this approach will 
provide movie theaters in the process of converting to digital 
projection after the publication date of the rule a sufficient amount of 
time to acquire the necessary equipment to provide captioning and audio 
description.

                      Section 36.303(g)(8)  Notice

    The Department believes that it is essential that movie theaters 
provide adequate notice to patrons of the availability of captioned and 
audio-described movies. In the NPRM, the Department proposed at 
Sec. 36.303(g)(5) that movie theaters provide information regarding the 
availability of captioning and audio description for each movie in 
communications and advertisements intended to inform potential patrons 
of movie showings and times and provided by the theaters through Web 
sites, posters, marquees, newspapers, telephone, and other forms of 
communication.
    Commenters on the NPRM unanimously supported the inclusion of some 
form of a notice requirement in the final rule but differed on the scope 
of that requirement. Some commenters supported requiring notice in all 
places where a captioned or audio-described movie is advertised, and 
another commenter asked the Department to include as many forms of 
communication as possible in the language of the final rule, including 
mobile phone applications. These commenters reasoned that individuals 
who are deaf or hard of hearing, or blind or have low vision, should be 
able to find this information easily. Several other commenters, however, 
asked the Department to limit the notice requirement to the box office, 
ticketing locations, and the movie theater's Web site. Although such 
commenters raised concerns about the high cost associated with a 
requirement that covers all communications and advertisements, they 
offered no other rationale for why they were proposing a limited 
requirement.
    In addition to the scope of the requirement, commenters also 
addressed the form of the notice required. One commenter requested that 
the Department require a uniform notice by all movie theaters, and 
another commenter suggested that the Department require movie theaters 
to include within the notice the universal symbols for captioning and 
audio description as well as the type of device available.
    Other commenters pointed to industry realities in order to highlight 
their concerns with the proposed provision. Some commenters expressed 
concern that movie theaters would be liable for a third party's failure 
to include information about captioning and audio description 
availability in their communications although movie theaters lack 
control over these communications. Commenters also advised the 
Department that there may be circumstances where compliance with the 
notice requirement would be difficult for some types of media. These 
commenters contend, for example, that movie theaters often book a film 
without knowing whether it is captioned or audio-described and that 
print deadlines may materialize before that information is available.
    After considering these comments and the information available to 
the Department, the Department has revised its proposed notice language. 
The Department agrees that notice may not be necessary on all forms of 
communications and advertisements but disagrees that the notice 
obligation should be limited only to the box office, ticketing 
locations, and the movie theater's Web site. For example, telephone 
recordings serve an especially important medium of communication for 
individuals who are blind or have low vision and who may not utilize 
Web-based or print media to access information concerning movie 
showings. Similarly, newspapers serve an especially important medium of 
communication for individuals who may not use Web-based media generally. 
Moreover, according to the Department's research, movie theaters utilize 
proprietary mobile phone applications to inform potential patrons of 
movie showings and times, and some already advertise the availability of 
captioning and audio description devices on these applications.\2\ 
Therefore, the Department has decided to require movie theaters to 
provide notice on communications

[[Page 1099]]

and advertisements provided at or on any of the following: The box 
office and other ticketing locations, Web sites, mobile apps, 
newspapers, and the telephone.
---------------------------------------------------------------------------

    \2\ The Department's research indicates that the following movie 
theater companies operate mobile phone applications and advertise the 
availability of captioning and audio description on these platforms: 
Regal Entertainment Group, AMC Theatres, Cineplex Entertainment, and 
Harkins Theatres. See, e.g., American Multi-Cinema, Inc., AMC Theatres 
(Version 5.2.2, 2016) (mobile application software), available at 
https://itunes.apple.com/us/app/amc-theatres/id509199715?ls=1&mt=8 (last 
visited Sept. 12, 2016); Regal Cinemas, Inc., Regal--Movie Tickets and 
Showtimes for Regal Cinemas, United Artists and Edwards Theatres 
(Version 3.4.2, 2016) (mobile application software), available at 
https://itunes.apple.com/us/app/regal-cinemas/id502912815?mt=8 (last 
visited Sept. 12, 2016).
---------------------------------------------------------------------------

    The Department declines to require a specific form of notice to 
describe the availability of captioning or audio description. The 
Department notes that movie theaters already appear to be using a 
relatively uniform method of advising the public about the availability 
of captioning and audio description. A review of Web sites and newspaper 
advertising indicates that movie theaters routinely use ``CC'' and 
``OC'' to indicate the availability of closed and open movie captioning 
and ``AD'' or ``DV'' to indicate the availability of audio description.
    As the Department specifically noted in the NPRM and makes clear in 
the final rule, the rule does not impose obligations on independent 
third parties that publish information about movies, and these third 
parties will not face liability under the ADA if they fail to include 
information about the availability of captioning and audio description 
at movie theaters.
    Renumbered Sec. 36.303(g)(8) of the final rule requires that 
whenever a public accommodation provides captioning and audio 
description in a movie theater auditorium exhibiting digital movies on 
or after January 17, 2017, its notices of movie showings and times, 
provided at the box office and other ticketing locations, on Web sites 
and mobile apps, in newspapers, and over the telephone, must inform 
potential patrons of the movies that are being shown with captioning and 
audio description. The final rule further provides that this obligation 
does not extend to third parties that provide information about movie 
theater showings and times, as long as the third party is not under the 
control of the public accommodation.
    This provision applies to movie theaters once they provide 
captioning and audio description for digital movies on or after the 
effective date of the rule, January 17, 2017. Thus, movie theaters that 
already show digital movies with closed movie captions and audio 
description must comply with this provision as soon as the rule takes 
effect.

             Section 36.303(g)(9)  Operational Requirements

    In response to the ANPRM, the Department received a significant 
number of comments from individuals with disabilities and groups 
representing persons who are deaf or hard of hearing and who are blind 
or have low vision strongly encouraging the Department to include a 
requirement that movie theater staff know how to operate captioning and 
audio description equipment and be able to communicate with patrons 
about the use of individual devices. Having considered those comments, 
the Department included in the NPRM proposed Sec. 36.303(g)(6), which 
required movie theaters to ensure that at least one individual was on 
location at each facility and available to assist patrons whenever 
showing a captioned or audio-described movie. The proposed 
Sec. 36.303(g)(6) further required that such individual be able to 
operate and locate all of the necessary equipment and be able to 
communicate effectively with individuals with hearing and vision 
disabilities about the uses of, and potential problems with, the 
equipment.
    All of the comments on the NPRM that addressed this proposed 
language acknowledged that staff training regarding the operation of 
equipment is vital to the proper functioning of the rule. A number of 
commenters stated that on numerous occasions when they attempted to go 
to a movie advertised as having captioning or audio description, there 
was no staff available who knew where the captioning devices were kept 
or how to turn on the captioning or audio description for the movie. 
Many of these commenters indicated that they were unable to experience 
the movie fully because of the lack of trained personnel, even if the 
auditorium was properly equipped and the movie was actually available 
with captioning or audio description.
    A handful of commenters requested that the Department expand its 
proposed operational requirement, emphasizing concerns about movie 
theater staff's current knowledge concerning the operation of available 
equipment. One commenter encouraged the Department to specifically 
require all movie theater personnel to be properly and uniformly trained 
in providing such services, and other commenters suggested that all 
movie theater personnel be trained as to the availability of these 
services. Other comments encouraged the Department to enumerate specific 
requirements to ensure that movie theater staff is capable of operating 
the captioning and audio description equipment, including a requirement 
that management document employee training and a requirement that 
employees receive periodic refresher courses.
    A few commenters questioned the need for the proposed language in 
Sec. 36.303(g)(6)(iii), which required movie theaters to ``[c]ommunicate 
effectively with individuals who are deaf or hard of hearing and blind 
or have low vision regarding the uses of, and potential problems with, 
the equipment for such captioning or audio description.'' One commenter 
asserted that an ``effective communication'' requirement in the proposed 
paragraph (g)(6)(iii) was superfluous given the overarching requirements 
in Sec. 36.303(c). Other commenters supported the proposed language, 
stating that movie theater staff, including managers, often are not 
knowledgeable on how to properly communicate

[[Page 1100]]

with individuals who are deaf, hard of hearing, blind, or have low 
vision. A State government also pointed out that in Camarillo v. Carrols 
Corp., 518 F.3d 153, 157 (2d Cir. 2008) (per curiam), the Second Circuit 
held that a public accommodation's failure to provide employee training 
on effective communication with individuals with disabilities can 
constitute a violation of title III, specifically 42 U.S.C. 
12182(b)(2)(A)(iii).
    The final rule retains the operational requirements proposed in the 
NPRM in renumbered Sec. 36.303(g)(9) and adds the requirement that if a 
movie theater is relying on open movie captioning to meet the 
requirements of paragraph (g)(3), it must also ensure that there is an 
employee available at the theater who knows how to turn on the captions. 
The Department declines to add a specific requirement that all personnel 
be trained, as it believes that it is sufficient if a movie theater has 
at least one knowledgeable employee on location at all times to ensure 
that the service is available and provided without interruption. While 
the Department agrees that it would be a good idea for movie theaters to 
implement reasonable staff training programs and periodic refresher 
courses, the Department declines to take these recommendations and has 
not included in the final rule specific logistical requirements 
concerning movie theater staff training.
    The Department has decided to retain in the final rule the language 
in proposed Sec. 36.303(g)(6)(iii) requiring movie theater staff to 
effectively communicate with individuals who are deaf or hard of 
hearing, or blind or have low vision, regarding the uses of, and 
potential problems with, the captioning and audio description devices. 
The Department notes, however, that communicating effectively with 
patrons about the availability of captioning at a movie theater would 
not require a movie theater to hire a sign language interpreter. 
Communication with a person who is deaf or hard of hearing about the 
availability of these services or how to use the equipment involves a 
short and relatively simple exchange and therefore can easily be 
provided through signage, instructional guides, or written notes.
    Final Sec. 36.303(g)(9) requires that whenever a public 
accommodation provides captioning and audio description in a movie 
theater auditorium exhibiting digital movies on or after January 17, 
2017, at least one theater employee must be available to assist patrons 
seeking or using the captioning or audio description equipment. The 
employee must be able to quickly locate and activate the necessary 
equipment; operate and address problems with the equipment prior to and 
during the movie; turn on the open movie captions if the movie theater 
is relying on open movie captions to meet its effective communication 
requirements; and communicate effectively with individuals with 
disabilities about how to use, operate, and resolve problems with the 
equipment.
    This provision applies to movie theaters once they provide 
captioning and audio description for digital movies on or after the 
effective date of the rule, January 17, 2017. Thus, movie theaters that 
already show digital movies with closed movie captions and audio 
description must comply with this provision as soon as the rule takes 
effect.

                          Section 36.303(g)(10)

    Section 36.303(g)(10) in the final rule provides that ``[t]his 
section does not require the use of open movie captioning as a means of 
compliance with paragraph (g), even if providing closed movie captioning 
for digital movies would be an undue burden.'' The NPRM proposed similar 
language at Sec. 36.303(g)(2)(ii). See discussion of comments on final 
Sec. 36.303(g)(6), supra.

[AG Order 3779-2016, 81 FR 87379, Dec. 2, 2016]



 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).

[[Page 1101]]


    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.
    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;

[[Page 1102]]

    (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 
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

[[Page 1103]]

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 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

[[Page 1104]]

    (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.



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

[[Page 1105]]

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:
    (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

[[Page 1106]]

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 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

[[Page 1107]]

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_PARTNERSHIPS WITH FAITH-BASED AND OTHER NEIGHBORHOOD 
ORGANIZATIONS--Table of Contents



Sec.
38.1  Purpose.
38.2  Applicability and scope.
38.3  Definitions.
38.4  Policy.
38.5  Responsibilities.
38.6  Procedures.
38.7  Assurances.
38.8  Enforcement.

Appendix A to Part 38--Written Notice of Beneficiary Protections
Appendix B to Part 38--Beneficiary Referral Request

    Authority: 28 U.S.C. 509; 5 U.S.C. 301; E.O. 13279, 67 FR 77141, 3 
CFR, 2002 Comp., p. 258, Dec. 12. 2002; 18 U.S.C. 4001, 4042, 5040; 42 
U.S.C. 14045b; 21 U.S.C. 871; 25 U.S.C. 3681; Pub. L. 107-273, 116 Stat. 
1758, Nov. 2, 2002; Pub. L. 109-162, 119 Stat. 2960, Jan. 6, 2006; 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; E.O. 
13559, 75 FR 71319, 3 CFR, 2010 Comp., p. 273, Nov. 17, 2010.

    Source: AG Order No. 3649-2016, 81 FR 19418, Apr. 4, 2016, unless 
otherwise noted.



Sec. 38.1  Purpose.

    The purpose of this part is to implement Executive Order 13279 and 
Executive Order 13559.



Sec. 38.2  Applicability and scope.

    (a) A faith-based or religious organization that applies for, or 
participates in, a social service program supported with Federal 
financial assistance may retain its independence and may continue to 
carry out its mission, including the definition, development, practice, 
and expression of its religious beliefs, provided that it does not use 
direct Federal financial assistance, whether received through a prime 
award or sub-award, to support or engage in any explicitly religious 
activities, including activities that involve overt religious content 
such as worship, religious instruction, or proselytization.
    (b) The use of indirect Federal financial assistance is not subject 
to this restriction.
    (c) Nothing in this part restricts the Department's authority under 
applicable Federal law to fund activities, such

[[Page 1108]]

as the provision of chaplaincy services, that can be directly funded by 
the Government consistent with the Establishment Clause.



Sec. 38.3  Definitions.

    As used in this part:
    (a)(1) ``Direct Federal financial assistance'' or ``Federal 
financial assistance provided directly'' refers to situations where the 
Government or an intermediary (under this part) selects the provider and 
either purchases services from that provider (e.g., via a contract) or 
awards funds to that provider to carry out a service (e.g., via a grant 
or cooperative agreement). In general, and except as provided in 
paragraph (a)(2) of this section, Federal financial assistance shall be 
treated as direct, unless it meets the definition of ``indirect Federal 
financial assistance'' or ``Federal financial assistance provided 
indirectly.''
    (2) Recipients of sub-grants that receive Federal financial 
assistance through State administering agencies or State-administered 
programs are recipients of ``direct Federal financial assistance'' (or 
recipients of ``Federal financial assistance provided directly'').
    (b) ``Indirect Federal financial assistance'' or ``Federal financial 
assistance provided indirectly'' refers to situations where the choice 
of the service provider is placed in the hands of the beneficiary, and 
the cost of that service is paid through a voucher, certificate, or 
other similar means of government-funded payment. Federal financial 
assistance provided to an organization is considered ``indirect'' when
    (1) The government program through which the beneficiary receives 
the voucher, certificate, or other similar means of government-funded 
payment is neutral toward religion;
    (2) The organization receives the assistance as a result of a 
decision of the beneficiary, not a decision of the Government; and
    (3) The beneficiary has at least one adequate secular option for the 
use of the voucher, certificate, or other similar means of government-
funded payment.
    (c)(1) ``Intermediary'' or ``pass-through entity'' means an entity, 
including a nonprofit or nongovernmental organization, acting under a 
contract, grant, or other agreement with the Federal Government or with 
a State or local government, such as a State administering agency, that 
accepts Federal financial assistance as a primary recipient or grantee 
and distributes that assistance to other organizations that, in turn, 
provide government-funded social services.
    (2) When an intermediary, such as a State administering agency, 
distributes Federal financial assistance to other organizations, it 
replaces the Department as the awarding entity. The intermediary remains 
accountable for the Federal financial assistance it disburses and, 
accordingly, must ensure that any providers to which it disburses 
Federal financial assistance also comply with this part.
    (d) ``Department program'' refers to a grant, contract, or 
cooperative agreement funded by a discretionary, formula, or block grant 
program administered by or from the Department.
    (e) ``Grantee'' includes a recipient of a grant, a signatory to a 
cooperative agreement, or a contracting party.
    (f) The ``Office for Civil Rights'' refers to the Office for Civil 
Rights in the Department's Office of Justice Programs.



Sec. 38.4  Policy.

    (a) Grants (formula and discretionary), contracts, and cooperative 
agreements. Faith-based or 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, or lack thereof.
    (b) Political or religious affiliation. Decisions about awards of 
Federal financial assistance must be free from political interference or 
even the appearance of such interference and must be made on the basis 
of merit, not on the basis of religion, religious belief, or lack 
thereof.

[[Page 1109]]



Sec. 38.5  Responsibilities.

    (a) Organizations that receive direct financial assistance from the 
Department may not engage in explicitly religious activities, including 
activities that involve overt religious content 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 explicitly religious 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.
    (b) A faith-based or religious organization that participates in the 
Department-funded programs or services shall 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 explicitly religious 
activities, including activities that involve overt religious content 
such as worship, religious instruction, or proselytization. Among other 
things, a faith-based or religious organization that receives financial 
assistance from the Department may use space in its facilities without 
removing religious art, icons, messages, scriptures, or symbols. In 
addition, a faith-based or 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 mission statements and other 
governing documents.
    (c) Any organization that participates in programs funded by Federal 
financial assistance from the Department shall not, in providing 
services, discriminate against a program beneficiary or prospective 
program beneficiary on the basis of religion, a religious belief, a 
refusal to hold a religious belief, or a refusal to attend or 
participate in a religious practice. However, an organization that 
participates in a program funded by indirect financial assistance need 
not modify its program activities to accommodate a beneficiary who 
chooses to expend the indirect aid on the organization's program.
    (d) No grant document, agreement, covenant, memorandum of 
understanding, policy, or regulation that the Department or a State or 
local government uses in administering financial assistance from the 
Department shall require only faith-based or religious organizations to 
provide assurances that they will not use monies or property for 
explicitly religious activities. All organizations, including religious 
ones, that participate in Department programs 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 explicitly 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 faith-based or 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.
    (e) Exemption from Title VII employment discrimination requirements. 
A faith-based or 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(a), is not forfeited when the organization receives direct or 
indirect Federal 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

[[Page 1110]]

Department program office to determine the scope of any applicable 
requirements.
    (f) If an intermediary, acting under a contract, grant, or other 
agreement with the Federal Government or with a State or local 
government that is administering a program supported by Federal 
financial assistance, is given the authority under the contract, grant, 
or agreement to select organizations to provide services funded by the 
Federal Government, the intermediary must ensure the compliance of the 
recipient of a contract, grant, or agreement with the provisions of 
Executive Order 13279, as amended by Executive Order 13559, and any 
implementing rules or guidance. If the intermediary is a nongovernmental 
organization, it retains all other rights of a nongovernmental 
organization under the program's statutory and regulatory provisions.
    (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 sections of the solicitations. In addition, any 
solicitation that requires an organization to maintain tax-exempt status 
shall 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 (g)(1) through (g)(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) Grantees should consult with the appropriate Department program 
office to determine the applicability of this part in foreign countries 
or sovereign lands.



Sec. 38.6  Procedures.

    (a) 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.
    (b) To the extent otherwise permitted by Federal law, the 
restrictions on explicitly religious activities set forth in this 
section do not apply to indirect Federal financial assistance.
    (c) Beneficiary protections: written notice. (1) Faith-based or 
religious organizations providing social services to beneficiaries under 
a program supported by direct Federal financial assistance from the 
Department must give written notice to beneficiaries and prospective 
beneficiaries of certain protections. Such notice must be given in a 
manner prescribed by the Office for Civil Rights. This notice must state 
the following:
    (i) The organization may not discriminate against beneficiaries or 
prospective beneficiaries on the basis of religion, a religious belief, 
a refusal to hold a religious belief, or a refusal to

[[Page 1111]]

attend or participate in a religious practice;
    (ii) The organization may not require beneficiaries or prospective 
beneficiaries to attend or participate in any explicitly religious 
activities that are offered by the organization, and any participation 
by beneficiaries in such activities must be purely voluntary;
    (iii) The organization must separate in time or location any 
privately funded explicitly religious activities from activities 
supported by direct Federal financial assistance;
    (iv) If a beneficiary or prospective beneficiary objects to the 
religious character of the organization, the organization will undertake 
reasonable efforts to identify and refer the beneficiary or prospective 
beneficiary to an alternative provider to which the beneficiary or 
prospective beneficiary has no objection; and
    (v) Beneficiaries or prospective beneficiaries may report an 
organization's violation of these protections, including any denials of 
services or benefits by an organization, by contacting or filing a 
written complaint with the Office for Civil Rights or the intermediary 
that awarded funds to the organization.
    (2) This written notice must be given to prospective beneficiaries 
prior to the time they enroll in the program or receive services from 
the program. When the nature of the service provided or exigent 
circumstances make it impracticable to provide such written notice in 
advance of the actual service, organizations must advise beneficiaries 
of their protections at the earliest available opportunity.
    (3) The notice that a faith-based or religious organization may use 
to notify beneficiaries or prospective beneficiaries of their 
protections under paragraph (g)(1) of this section is specified in 
appendix A to this part.
    (d) Beneficiary protections: referral requirements. (1) If a 
beneficiary or prospective beneficiary of a social service program 
supported by direct Federal financial assistance from the Department 
objects to the religious character of an organization that provides 
services under the program, that organization must promptly undertake 
reasonable efforts to identify and refer the beneficiary or prospective 
beneficiary to an alternative provider to which the beneficiary or 
prospective beneficiary has no objection based on the organization's 
religious character. See appendix B to this part.
    (2) An organization may refer a beneficiary or prospective 
beneficiary to another faith-based or religious organization that 
provides comparable services, if the beneficiary or prospective 
beneficiary has no objection to that provider based on the 
organization's religious character. But if the beneficiary or 
prospective beneficiary requests a secular provider, and a secular 
provider is available, then a referral must be made to that provider.
    (3) Except for services provided by telephone, Internet, or similar 
means, the referral must be to an alternative provider that is in 
reasonable geographic proximity to the organization making the referral 
and that offers services that are similar in substance and quality to 
those offered by the organization. The alternative provider also must 
have the capacity to accept additional clients.
    (4) When the organization makes a referral to an alternative 
provider, the organization shall maintain a record of that referral for 
review by the awarding entity. When the organization determines that it 
is unable to identify an alternative provider, the organization shall 
promptly notify and maintain a record for review by the awarding entity. 
If the organization is unable to identify an alternative provider, the 
awarding entity shall determine whether there is any other suitable 
alternative provider to which the beneficiary may be referred. An 
intermediary that receives a request for assistance in identifying an 
alternative provider may request assistance from the Department.



Sec. 38.7  Assurances.

    (a) Every application submitted to the Department for direct Federal 
financial assistance subject to this part must contain, as a condition 
of its approval and the extension of any such assistance, or be 
accompanied by, an assurance or statement that the program is or will be 
conducted in compliance with this part.

[[Page 1112]]

    (b) Every intermediary must provide for such methods of 
administration as are required by the Office for Civil Rights to give 
reasonable assurance that the intermediary will comply with this part 
and effectively monitor the actions of its recipients.



Sec. 38.8  Enforcement.

    (a) The Office for Civil Rights is responsible for reviewing the 
practices of recipients of Federal financial assistance to determine 
whether they are in compliance with this part.
    (b) The Office for Civil Rights is responsible for investigating any 
allegations of noncompliance with this part.
    (c) Recipients of Federal financial assistance determined to be in 
violation of any provisions of this part are subject to the enforcement 
procedures and sanctions, up to and including suspension and termination 
of funds, authorized by applicable laws.
    (d) An allegation of any violation or discrimination by an 
organization, based on this regulation, may be filed with the Office for 
Civil Rights or the intermediary that awarded the funds to the 
organization.



  Sec. Appendix A to Part 38--Written Notice of Beneficiary Protections

    Name of Organization:
    Name of Program:
    Contact Information for Program Staff (name, phone number, and email 
address, if appropriate):
    Because this program is supported in whole or in part by financial 
assistance from the Federal Government, we are required to let you 
knowthat--
      We may not discriminate against you on the basis of 
religion, a religious belief, a refusal to hold a religious belief, or a 
refusal to attend or participate in a religious practice;
      We may not require you to attend or participate in any 
explicitly religious activities that we offer, and your participation in 
these activities must be purely voluntary;
      We must separate in time or location any privately funded 
explicitly religious activities from activities supported with direct 
Federal financial assistance;
      If you object to the religious character of our 
organization, we must make reasonable efforts to identify and refer you 
to an alternative provider to which you have no objection; and
      You may report violations of these protections to the U.S. 
Department of Justice, Office of Justice Programs, Office for Civil 
Rights or to [name of intermediary that awarded funds to the 
organization].
    We must give you this written notice before you enroll in our 
program or receive services from the program.



        Sec. Appendix B to Part 38--Beneficiary Referral Request

    If you object to receiving services from us based on the religious 
character of our organization, please complete this form and return it 
to the program contact identified above. If you object, we will make 
reasonable efforts to refer you to another service provider. We cannot 
guarantee, however, that in every instance, an alternative provider will 
be available. With your consent, we will follow up with you or the 
organization to which you were referred to determine whether you 
contacted that organization.
    Please check if applicable:
( ) I want to be referred to another service provider.
    If you checked above that you wish to be referred to another service 
provider, please check one of the following:
( ) Please follow up with me or the service provider to which I was 
          referred.
    Name:
    Best way to reach me (phone/address/email):
( ) Please do not follow up.
--End of Form--



PART 39_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF JUSTICE--
Table of Contents



Sec.
39.101  Purpose.
39.102  Application.
39.103  Definitions.
39.104-39.109  [Reserved]
39.110  Self-evaluation.
39.111  Notice.
39.112-39.129  [Reserved]
39.130  General prohibitions against discrimination.
39.131-39.139  [Reserved]
39.140  Employment.
39.141-39.148  [Reserved]
39.149  Program accessibility: Discrimination prohibited.
39.150  Program accessibility: Existing facilities.
39.151  Program accessibility: New construction and alterations.
39.152-39.159  [Reserved]
39.160  Communications.
39.161-39.169  [Reserved]
39.170  Compliance procedures.

    Authority: 29 U.S.C. 794.

[[Page 1113]]


    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 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

[[Page 1114]]

life activities only as a result of the attitudes of others toward such 
impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Official or Responsible Official means the Director of Equal 
Employment Opportunity for the Department of Justice or his or her 
designee.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    Respondent means the organizational unit in which a complainant 
alleges that discrimination occurred.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.



Secs. 39.104-39.109  [Reserved]



Sec. 39.110  Self-evaluation.

    (a) The agency shall, by October 11, 1985, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until October 11, 1987, maintain on file and 
make available for public inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 39.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the program or activities conducted by the agency, and make such 
information available to them in such manner as the Attorney General 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Secs. 39.112-39.129  [Reserved]



Sec. 39.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same

[[Page 1115]]

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.



Secs. 39.131-39.139  [Reserved]



Sec. 39.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Secs. 39.141-39.148  [Reserved]



Sec. 39.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 39.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.

[[Page 1116]]



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;
    (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

[[Page 1117]]

behalf of, or for the use of the agency shall be designed, constructed, 
or altered so as to be readily accessible to and usable by handicapped 
persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Secs. 39.152-39.159  [Reserved]



Sec. 39.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 39.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the Attorney General or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Secs. 39.161-39.169  [Reserved]



Sec. 39.170  Compliance procedures.

    (a) Applicability. Except as provided in paragraph (b) of this 
section, this section applies to all allegations of discrimination on 
the basis of handicap in programs or activities conducted by the agency.
    (b) Employment complaints. The agency shall process complaints 
alleging violations of section 504 with respect to employment according 
to the procedures established by the Equal Employment Opportunity 
Commission in 29 CFR part 1613 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) Responsible Official. The Responsible Official shall coordinate 
implementation of this section.
    (d) Filing a complaint--(1) Who may file. (i) Any person who 
believes that he or she has been subjected to discrimination prohibited 
by this part may by him or herself or by his or her authorized 
representative file a complaint with the Official. Any person who 
believes that any specific class of persons has been subjected to 
discrimination prohibited by this part and who is a member of that class 
or the authorized

[[Page 1118]]

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.
    (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

[[Page 1119]]

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 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

[[Page 1120]]

    (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 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

[[Page 1121]]

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.


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:


[[Page 1122]]



    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.

    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).


[[Page 1123]]



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).

    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.

[[Page 1124]]


    In Davis, the Court ruled that a hearing-impaired applicant to a 
nursing school was not a ``qualified handicapped person'' because her 
hearing impairment would prevent her from participating in the clinical 
training portion of the program. The Court found that, if the program 
were modified so as to enable the respondent to participate (by 
exempting her from the clinical training requirements), ``she would not 
receive even a rough equivalent of the training a nursing program 
normally gives.'' 442 U.S. at 410. It also found that ``the purpose of 
[the] program was to train persons who could serve the nursing 
profession in all customary ways,'' id. at 413, and that the respondent 
would be unable, because of her hearing impairment, to perform some 
functions expected of a registered nurse. It therefore concluded that 
the school was not required by section 504 to make such modifications 
that would result in ``a fundamental alteration in the nature of the 
program.'' Id. at 410.

    The Department incorporated the Court's language in the definition 
of ``qualified handicapped person'' in order to make clear that such a 
person must be able to participate in the program offered by the agency. 
The agency is required to make modifications in order to enable a 
handicapped applicant to participate, but is not required to offer a 
program of a fundamentally different nature. The test is whether, with 
appropriate modifications, the applicant can achieve the purpose of the 
program offered; not whether the applicant could benefit or obtain 
results from some other program that the agency does not offer. Although 
the revised definition allows exclusion of some handicapped people from 
some programs, it requires that a handicapped person who is capable of 
achieving the purpose of the program must be accommodated, provided that 
the modifications do not fundamentally alter the nature of the program.

    Two hundred and forty-four commenters objected to this revised 
definition for a variety of reasons. Several commenters stated that the 
Department incorrectly used Davis as the justification for explaining 
the differences between the federally assisted and the federally 
conducted regulations because the Supreme Court upheld the validity of 
the existing regulations in Consolidated Rail Corp. v. Darrone, 104 S. 
Ct. 1248 (1984). This view misunderstands the Court's actions in 
Darrone. In that case the Court ruled on a series of issues, the most 
important of which was under what circumstances section 504 applied to 
employment discrimination by recipients. The Court did not concern 
itself either directly or indirectly with the definition of ``qualified 
handicapped person'' or whether section 504 included limitations based 
on ``undue financial and administrative burdens.''

    Many commenters stated that the proposal would change the definition 
of qualified handicapped person for employment. ``Qualified handicapped 
person'' is defined for purposes of employment in 29 CFR 1613.702(f), 
which is made applicable to this part by Sec. 39.140. Nothing in this 
part changes existing regulations applicable to employment.

    Many commenters assumed that the definition would have the effect of 
placing on the handicapped person the burden of proving that he or she 
is qualified. The definition has been revised to make it clear that the 
agency has the burden of demonstrating that a proposed modification 
would constitute a fundamental alteration in the nature of its program 
or activity. Furthermore, in demonstrating that a modification would 
result in such an alteration, the agency must follow the procedures 
established in Secs. 39.150(a)(2) and 39.160(d), which are discussed 
below, for demonstrating that an action would result in undue financial 
and administrative burdens. That is, the decision must be made by the 
agency head or his or her designee in writing after consideration of all 
resources available for the program or activity and must be accompanied 
by an explanation of the reasons for the decision. If the agency head 
determines that an action would result in a fundamental alteration, the 
agency must consider options that would enable the handicapped person to 
achieve the purpose of the program but would not result in such an 
alteration.

    Some commenters said that the definition of ``qualified handicapped 
person'' places handicapped persons in a ``Catch-22'' situation: because 
only qualified handicapped persons are protected by the statute, a 
determination that a person is not qualified would make enforcement 
remedies unavailable to that person. This concern is misplaced. If the 
Department determined that a handicapped person was not ``qualified,'' 
the person could use the procedures established by Sec. 39.170 to 
challenge that determination, just as he or she could challenge any 
other decision by the agency that he or she believed to be 
discriminatory.

    Many commenters argued that the definition of ``qualified 
handicapped person'' confused what should be two separate inquiries: 
whether a person meets essential eligibility requirements and, if so, 
whether accommodation is required. They argued that the reference to 
``fundamental alteration'' in the definition focuses attention on 
accommodations rather than on a handicapped person's abilities. As 
another commenter noted, however, the Supreme Court in Davis developed 
the ``fundamental alteration'' language in a decision that was 
determining the nature and scope of what constitutes a qualified

[[Page 1125]]

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 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

[[Page 1126]]


    (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.

    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

[[Page 1127]]

(Secs. 39.149-39.151) and communications (Sec. 39.160) are specific 
applications of this principle.

    Despite the mandate of paragraph (d) that the agency administer its 
programs and activities in the most integrated setting appropriate to 
the needs of qualified handicapped persons, subparagraph (b)(1)(iv), in 
conjunction with paragraph (d), permits the agency to develop separate 
or different aids, benefits, or services when necessary to provide 
handicapped persons with an equal opportunity to participate in or 
benefit from the agency's programs or activities. Subparagraph 
(b)(1)(iv) requires that different or separate aids, benefits, or 
services be provided only when necessary to ensure that the aids, 
benefits, or services are as effective as those provided to others. Even 
when separate or different aids, benefits, or services would be more 
effective, subparagraph (b)(2) provides that a qualified handicapped 
person still has the right to choose to participate in the program that 
is not designed to accommodate handicapped persons.

    Subparagraph (b)(1)(v) prohibits the agency from denying a qualified 
handicapped person the opportunity to participate as a member of a 
planning or advisory board.

    Subparagraph (b)(1)(vi) prohibits the agency from limiting a 
qualified handicapped person in the enjoyment of any right, privilege, 
advantage, or opportunity enjoyed by others receiving any aid, benefit, 
or service.

    Subparagraph (b)(3) prohibits the agency from utilizing criteria or 
methods of administration that deny handicapped persons access to the 
agency's programs or activities. The phrase ``criteria or methods of 
administration'' refers to official written agency policies and to the 
actual practices of the agency. This subparagraph prohibits both 
blatantly exclusionary policies or practices and nonessential policies 
and practices that are neutral on their face, but deny handicapped 
persons an effective opportunity to participate.

    Subparagraph (b)(4) specifically applies the prohibition enunciated 
in Sec. 39.130(b)(3) to the process of selecting sites for construction 
of new facilities or existing facilities to be used by the agency. 
Subparagraph (b)(4) does not apply to construction of additional 
buildings at an existing site.

    Subparagraph (b)(5) prohibits the agency, in the selection of 
procurement contractors, from using criteria that subject qualified 
handicapped persons to discrimination on the basis of handicap.

    Subparagraph (b)(6) prohibits the agency from discriminating against 
qualified handicapped persons on the basis of handicap in the granting 
of licenses or certification. A person is a ``qualified handicapped 
person'' with respect to licensing or certification, if he or she can 
meet the essential eligibility requirements for receiving the license or 
certification (see Sec. 39.103).

    In addition, the agency may not establish requirements for the 
programs or activities of licensees or certified entities that subject 
qualified handicapped persons to discrimination on the basis of 
handicap. For example, the agency must comply with this requirement when 
establishing safety standards for the operations of licensees. In that 
case the agency must ensure that standards that it promulgates do not 
discriminate in an impermissible manner against the employment of 
qualified handicapped persons.

    Subparagraph (b)(6) does not extend section 504 directly to the 
programs or activities of licensees or certified entities themselves. 
The programs or activities of Federal licensees or certified entities 
are not themselves federally conducted programs or activities nor are 
they programs or activities receiving Federal financial assistance 
merely by virtue of the Federal license or certificate. However, as 
noted above, section 504 may affect the content of the rules established 
by the agency for the operation of the program or activity of the 
licensee or certified entity, and thereby indirectly affect limited 
aspects of its operations.

    Twenty-three commenters argued that the regulation should extend to 
the activities of licensees or certified entities, citing Community 
Television of Southern California v. Gottfried, 103 S. Ct. 885 (1983). 
In that case, the Court held that section 504 as applied to federally 
assisted programs did not require the Federal Communications Commission 
to prohibit discrimination on the basis of handicap by licensed 
broadcasters, but that ``the policies underlying the Communications 
Act'' might authorize the Commission to issue a regulation governing 
such discrimination. The Court did not, however, indicate that section 
504 itself could serve as the source of such regulatory authority.

    The Court has held that ``the use of the words `public interest' in 
a regulatory statute is not a broad license to promote the general 
public welfare. Rather the words take meaning from the purposes of the 
regulatory legislation.'' National Association for the Advancement of 
Colored People v. Federal Power Commission, 425 U.S. 662, 669 (1976). In 
our view, section 504 does not of itself extend an agency's regulatory 
authority to the activities of licensees or certified entities. Where an 
agency has existing regulatory authority that is broad enough to enable 
it to establish a nondiscrimination requirement for its licensees or 
certified entities, section 504 may support the exercise of that 
authority. Because the Department of Justice has no such underlying 
authority, it cannot prohibit discrimination by licensees.

    Twenty-two commenters objected to the omission of a paragraph from 
the regulations

[[Page 1128]]

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


    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

[[Page 1129]]

to make each of its existing facilities accessible (Sec. 39.150(a)(1)). 
However, Sec. 39.150, unlike 28 CFR 41.56-41.57, places explicit limits 
on the agency's obligation to ensure program accessibility 
(Sec. 39.150(a)(2)). This provision provoked 959 comments, the largest 
number received on any single issue. Most commenters sought the deletion 
of the ``undue financial and administrative burdens'' language from the 
regulation. On the basis of preliminary comments on this paragraph, the 
Department published clarifying language in its Supplemental Notice. The 
final version includes that clarification.

    The ``undue financial and administrative burdens'' language (found 
at Secs. 39.150(a)(2) and 39.160(d)) is based on the Supreme Court's 
Davis holding that section 504 does not require program modifications 
that result in a fundamental alteration in the nature of a program, and 
on the Court's statement that section 504 does not require modifications 
that would result in ``undue financial and administrative burdens.'' 442 
U.S. at 412. Since Davis, circuit courts have applied this limitation on 
a showing that only one of the two ``undue burdens'' would be created as 
a result of the modification sought to be imposed under section 504. 
See, e.g., Dopico v. Goldschmidt, supra; American Public Transit 
Association v. Lewis, supra (APTA). In APTA the United States Court of 
Appeals for the District of Columbia Circuit applied the Davis language 
and invalidated the section 504 regulations of the Department of 
Transportation (DOT). The court in APTA noted ``that at some point a 
transit system's refusal to take modest, affirmative steps to 
accommodate handicapped persons might well violate section 504. But 
DOT's rules do not mandate only modest expenditures. The regulations 
require extensive modifications of existing systems and impose extremely 
heavy financial burdens on local transit authorities.'' 655 F.2d at 
1278.

    The inclusion of subparagraph (a)(2) is an effort to conform the 
agency's regulation implementing section 504 to the Supreme Court's 
interpretation of the statute in Davis as well as to the decisions of 
lower courts following the Davis opinion. This subparagraph 
acknowledges, in light of recent case law, that, in some situations, 
certain accommodations for a handicapped person may so alter an agency's 
program or activity, or entail such extensive costs and administrative 
burdens that the refusal to undertake the accommodations is not 
discriminatory. The failure to include such a provision could lead to 
judicial invalidation of the regulation or reversal of a particular 
enforcement action taken pursuant to the regulation.

    Many commenters argued that the Supreme Court's decision in Davis 
did not require inclusion of an undue burdens defense in this 
regulation. These commenters asserted that the holding in Davis was that 
the plaintiff was not a qualified handicapped person and that the 
subsequent reference to ``undue financial and administrative burdens'' 
was mere dicta. These commenters overlook the interpretations of Davis 
provided by the Federal circuit court cases mentioned above. The APTA 
and Dopico decisions make it clear that financial burdens can limit the 
obligation to comply with section 504. See also New Mexico Association 
for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir. 1982).

    Many commenters argued that inclusion of the undue burdens defense 
was inconsistent with the position taken by Vice President Bush in his 
letter of March 21, 1983, in which he announced the Administration's 
decision not to revise the coordination regulation for federally 
assisted programs. The decision to include the undue burdens defense 
represents no contradiction with the position taken by Vice President 
Bush on the guidelines for federally assisted programs. In his letter 
the Vice President stated that ``extensive change of the existing 504 
coordination regulations was not required, and that with respect to 
those few areas where clarification might be desirable, the courts are 
currently providing useful guidance and can be expected to continue to 
do so in the future.'' One element of that ``useful guidance'' obviously 
comes from interpretations of the Davis decision by the lower Federal 
courts.

    The Department has carefully considered the comments on the process 
that the Department should follow in determining whether a program 
modification would result in undue financial and administrative burdens. 
The Department intends to be guided by six principles in its application 
of the ``fundamental alteration'' and ``undue financial and 
administrative burdens'' language.

    First, because of the extensive resources and capabilities that 
could properly be drawn upon for section 504 purposes by a large Federal 
agency like the Department of Justice, the Department explicitly 
acknowledges that, in most cases, making a Department program accessible 
will likely not result in undue burdens. Second, the burden of proving 
that the accommodation request will result in a fundamental alteration 
or undue burdens has been placed squarely on the Department of Justice, 
not on the handicapped person. Third, in determining whether financial 
and administrative burdens are undue, the Department is to consider all 
Department resources available for use in the funding and operation of 
the conducted program. Fourth, the ``fundamental alteration''/``undue 
burdens'' decision is to be made by the Attorney General or his designee 
and must be accompanied by a written statement of reasons for reaching 
such a conclusion. Fifth, if a disabled person disagrees with the

[[Page 1130]]

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 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

[[Page 1131]]

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 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.

[[Page 1132]]


    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 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,

[[Page 1133]]

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 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

[[Page 1134]]

after receipt of the letter, the letter will constitute the final 
decision of the agency (Sec. 39.170(i)(4)).

    The Department's final rule provides an opportunity for a hearing 
before an administrative law judge (ALJ). The ALJ would make a 
recommended decision to the CAO, who would make the final agency 
decision. The purpose of the hearing is to provide a forum in which the 
complainant or respondent can have an opportunity to be heard, confront 
witnesses, and present evidence so that an administrative law judge can 
issue a recommended decision that is well-reasoned and justified on the 
basis of the evidence presented.

    The opportunity for a hearing before an ALJ assures more 
impartiality and the appearance of more impartiality than a decision 
made by one agency official concerning other officials of the same 
agency. The Department expects that agency decisions based on a hearing 
record would more likely survive later judicial review.

    Under the regulation, another person or organization would be 
allowed to participate as a third party or amicus curiae if the ALJ 
determines that the petitioner has a legitimate interest in the 
proceedings, that participation will not duly delay the outcome, and 
that petitioner's participation may contribute materially to the 
disposition of the proceedings.

    The Department received comments on the proposed opportunity for a 
hearing before an administrative law judge. Some commenters were 
primarily concerned that by invoking a hearing before the ALJ with the 
procedural safeguards adopted from the Administrative Procedure Act 
(APA) (5 U.S.C. 554-557), the complainant would lose the right to a de 
novo review of the agency's final decision, because the APA allows a 
Federal court only to determine if the agency's final decisions are 
``arbitrary and capricious'' (5 U.S.C. 706(2)(A)). It is beyond our 
jurisdiction to specify that a de novo review is available to complaints 
seeking judicial review of final agency decisions. This issue is for the 
courts to decide. That is also true for the issue of the availability of 
a private right of action, either without invoking our compliance 
procedures or after the issuance of letters of findings.

    Given the inherent conflicts of interest in situations where 
complaints allege discrimination on the part of the Department, it is 
critically important to ensure that a complaint be reviewed in a fair, 
independent process. The availability of a hearing before an independent 
ALJ would provide the appearance as well as the actuality of an 
impartial compliance mechanism. The Department has therefore included 
the provision for a hearing in the final regulation.

    One comment requested the addition of a provision whereby the 
Department would award attorneys fees to complainants. Another comment 
suggested that the Equal Access to Justice Act (5 U.S.C. 504) might 
provide for the award of fees. Nothing contained in title V of the 
Rehabilitation Act provides for the agency award of attorneys fees in 
administrative proceedings other than those involving Federal 
employment. Nor does the EAJA and the Department's implementing 
regulations at 28 CFR part 24 provide for such awards in hearings 
conducted under Sec. 39.170(k). We have therefore included no attorneys 
fee provision in the current regulations.

    Under paragraph (1), the CAO renders a final agency decision after 
appeal without a hearing or after a hearing. The CAO directs appropriate 
remedial action if discrimination is found. The CAO's decision will 
involve reviewing the entire file, including the investigation report, 
letter of findings, and, if a hearing was held, the hearing record and 
recommended decision of the administrative law judge. The decision shall 
be made within 60 days of receipt of the complaint file or the hearing 
record.

    One commenter objected to the requirement in subparagraph (l)(1) 
that the CAO explain specifically a decision to reject or modify the 
ALJ's proposed findings, arguing that it would inappropriately limit the 
CAO's consideration of the issues. We have adopted the suggestion and 
eliminated the requirement.

    In response to recommendations from the Department's CAO and the 
Drug Enforcement Administration's ALJ, some changes have been made in 
the compliance procedures. Among the changes are a new requirement that 
the ALJ provide findings to all parties, not just the CAO, an added 
provision for filing exceptions to an ALJ's recommended decision, a 
delineation of the authorities of the ALJ, and a clarification of the 
responsibility for supervising compliance with the final agency decision 
between the Responsible Official and the CAO.

    The Department also received some comments on the appropriateness of 
providing for an appeal by either the complainant or respondent. Some 
commenters objected to 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.

[[Page 1135]]



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, 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.

[[Page 1136]]



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 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,

[[Page 1137]]

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.
    (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.

[[Page 1138]]

    (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]



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]

[[Page 1139]]



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 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

[[Page 1140]]

the applicant is located of the certification, suspension of 
certification, withdrawal of certification and recertification of the 
applicant's grievance procedure. The Attorney General shall also notify 
the court of the certification status of any grievance procedure at the 
request of the court or any party in an action by an adult inmate 
pursuant to 42 U.S.C. 1983.



Sec. 40.22  Significance of certification.

    Certification of a grievance procedure by the Attorney General shall 
signify only that on the basis of the information submitted, the 
Attorney General believes the grievance procedure is in substantial 
compliance with the minimum standards or is otherwise fair and 
effective. Certification shall not indicate approval of the use or 
application of the grievance procedure in a particular case.

[Order No. 1955-95, 60 FR 13904, Mar. 15, 1995]



PART 41_IMPLEMENTATION OF EXECUTIVE ORDER 12250, NONDISCRIMINATION
ON THE BASIS OF HANDICAP IN FEDERALLY ASSISTED PROGRAMS--
Table of Contents



                Subpart A_Federal Agency Responsibilities

Sec.
41.1  Purpose.
41.2  Application.
41.3  Definitions.
41.4  Issuance of agency regulations.
41.5  Enforcement.
41.6  Interagency cooperation.
41.7  Coordination with sections 502 and 503.

     Subpart B_Standards for Determining Who Are Handicapped Persons

41.31  Handicapped person.
41.32  Qualified handicapped person.

      Subpart C_Guidelines for Determining Discriminatory Practices

                                 General

41.51  General prohibitions against discrimination.

                               Employment

41.52  General prohibitions against employment discrimination.
41.53  Reasonable accommodation.
41.54  Employment criteria.
41.55  Preemployment inquiries.

                          Program Accessibility

41.56  General requirement concerning program accessibility.
41.57  Existing facilities.
41.58  New construction.

Appendix A to Part 41--Leadership and Coordination of Nondiscrimination 
          Laws

    Authority: Executive Order 12250, 45 FR 72995; sec. 504, 
Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 
794); sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L. 93-
516, 88 Stat. 1619 (29 U.S.C. 706).

    Source: 43 FR 2132, Jan. 13, 1978, unless otherwise noted. 
Redesignated at 46 FR 40686, 40687, Aug. 11, 1981.

    Effective Date Note: At 46 FR 40687, Aug. 11, 1981, the application 
of part 41 with respect to mass transportation was suspended until 
further notice.



                Subpart A_Federal Agency Responsibilities



Sec. 41.1  Purpose.

    The purpose of this part is to implement Executive Order 12250, 
which requires the Department of Justice to coordinate the 
implementation of section 504 of the Rehabilitation Act of 1973.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.2  Application.

    This part applies to each Federal department and agency that is 
empowered to extend Federal financial assistance.



Sec. 41.3  Definitions.

    As used in this regulation, the term:
    (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,

[[Page 1141]]

institution, organization, or other entity, or any person to which 
Federal financial assistance is extended directly or through another 
recipient, including any successor, assignee, or transferee of a 
recipient, but excluding the ultimate beneficiary of the assistance.
    (e) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (f) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.4  Issuance of agency regulations.

    (a) Each agency shall issue, after notice and opportunity for 
comment, a regulation to implement section 504 with respect to the 
programs and activities to which it provides assistance. The regulation 
shall be consistent with this part.
    (b) Each agency shall issue a notice of proposed rulemaking no later 
than 90 days after the effective date of this part. Each agency shall 
issue a final regulation no later than 135 days after the end of the 
period for comment on its proposed regulation: Provided, That the agency 
shall submit its proposed final regulation to the Assistant Attorney 
General, Civil Rights Division, Department of Justice, for review at 
least 45 days before it is to be issued.
    (c) Each such agency regulation shall:
    (1) Define appropriate terms, consistent with the definitions set 
forth in Sec. 41.3 and with the standards for determining who are 
handicapped persons set forth in subpart B of this part; and
    (2) Prohibit discriminatory practices against qualified handicapped 
persons in employment and in the provision of aid, benefits, or 
services, consistent with the guidelines set forth in subpart C of this 
part.

The regulation shall include, where appropriate, specific provisions 
adapted to the particular programs and activities receiving financial 
assistance from the agency.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]



Sec. 41.5  Enforcement.

    (a) Each agency shall establish a system for the enforcement of 
section 504 and its implementing regulation with respect to the programs 
and activities to which it provides assistance. The system shall 
include:
    (1) The enforcement and hearing procedures that the agency has 
adopted for the enforcement of title VI of the Civil Rights Act of 1964, 
and
    (2) A requirement that recipients sign assurances of compliance with 
section 504.
    (b) Each agency regulation shall also include requirements that 
recipients:
    (1) Notify employees and beneficiaries of their rights under section 
504,
    (2) Conduct a self-evaluation of their compliance with section 504, 
with the assistance of interested persons, including handicapped persons 
or organizations representing handicapped persons, and
    (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

[[Page 1142]]

    (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 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.

[[Page 1143]]



      Subpart C_Guidelines for Determining Discriminatory Practices

                                 General



Sec. 41.51  General prohibitions against discrimination.

    (a) No qualified handicapped person, shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity that receives or benefits from federal financial assistance.
    (b)(1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of handicap,
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program 
with respect to handicapped persons, or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (4) A recipient may not, in determining the site or location of a 
facility, make selections:
    (i) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives or benefits 
from federal financial assistance or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by federal statute or executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by federal statute or executive order to 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.

[[Page 1144]]

                               Employment



Sec. 41.52  General prohibitions against employment discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment under any program or 
activity that receives or benefits from federal financial assistance.
    (b) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (c) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including social or recreational 
programs; and
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeship programs.



Sec. 41.53  Reasonable accommodation.

    A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.



Sec. 41.54  Employment criteria.

    A recipient may not use employment tests or criteria that 
discriminate against handicapped persons and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.



Sec. 41.55  Preemployment inquiries.

    A recipient may not conduct a preemployment medical examination or 
make a preemployment inquiry as to whether an applicant is a handicapped 
person or as to the nature or severity of a handicap except under the 
circumstances described in 28 CFR 42.513.

[43 FR 2132, Jan. 13, 1978. Redesignated and amended at 46 FR 40686, 
40687, Aug. 11, 1981]

                          Program Accessibility



Sec. 41.56  General requirement concerning program accessibility.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the 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

[[Page 1145]]

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 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.

[[Page 1146]]

    1-202. In furtherance of the Attorney General's responsibility for 
the coordination of the implementation and enforcement of the 
nondiscrimination provisions of laws covered by this Order, the Attorney 
General shall review the existing and proposed rules, regulations, and 
orders of general applicability of the Executive agencies in order to 
identify those which are inadequate, unclear or unnecessarily 
inconsistent.
    1-203. The Attorney General shall develop standards and procedures 
for taking enforcement actions and for conducting investigations and 
compliance reviews.
    1-204. The Attorney General shall issue guidelines for establishing 
reasonable time limits on efforts to secure voluntary compliance, on the 
initiation of sanctions, and for referral to the Department of Justice 
for enforcement where there is noncompliance.
    1-205. The Attorney General shall establish and implement a schedule 
for the review of the agencies' regulations which implement the various 
nondiscrimination laws covered by this Order.
    1-206. The Attorney General shall establish guidelines and standards 
for the development of consistent and effective recordkeeping and 
reporting requirements by Executive agencies; for the sharing and 
exchange by agencies of compliance records, findings, and supporting 
documentation; for the development of comprehensive employee training 
programs; for the development of effective information programs; and for 
the development of cooperative programs with State and local agencies, 
including sharing of information, deferring of enforcement activities, 
and providing technical assistance.
    1-207. The Attorney General shall initiate cooperative programs 
between and among agencies, including the development of sample 
memoranda of understanding, designed to improve the coordination of the 
laws covered by this Order.

    1-3. Implementation by the Attorney General.

    1-301. In consultation with the affected agencies, the Attorney 
General shall promptly prepare a plan for the implementation of this 
Order. This plan shall be submitted to the Director of the Office of 
Management and Budget.
    1-302. The Attorney General shall periodically evaluate the 
implementation of the nondiscrimination provisions of the laws covered 
by this Order, and advise the heads of the agencies concerned on the 
results of such evaluations as to recommendations for needed improvement 
in implementation or enforcement.
    1-303. The Attorney General shall carry out his functions under this 
Order, including the issuance of such regulations as he deems necessary, 
in consultation with affected agencies.
    1-304. The Attorney General shall annually report to the President 
through the Director of the Office of Management and Budget on the 
progress in achieving the purposes of this Order. This report shall 
include any recommendations for changes in the implementation or 
enforcement of the nondiscrimination provisions of the laws covered by 
this Order.
    1-305. The Attorney General shall chair the Interagency Coordinating 
Council established by section 507 of the Rehabilitation Act of 1973, as 
amended (29 U.S.C. 794c).

    1-4. Agency Implementation.

    1-401. Each Executive agency shall cooperate with the Attorney 
General in the performance of the Attorney General's functions under 
this Order and shall, unless prohibited by law, furnish such reports and 
information as the Attorney General may request.
    1-402. Each Executive agency responsible for implementing a 
nondiscrimination provision of a law covered by this Order shall issue 
appropriate implementing directives (whether in the nature of 
regulations or policy guidance). To the extent permitted by law, they 
shall be consistent with the requirements prescribed by the Attorney 
General pursuant to this Order and shall be subject to the approval of 
the Attorney General, who may require that some or all of them be 
submitted for approval before taking effect.
    1-403. Within 60 days after a date set by the Attorney General, 
Executive agencies shall submit to the Attorney General their plans for 
implementing their responsibilities under this Order.

    1-5. General Provisions.

    1-501. Executive Order No. 11764 is revoked. The present regulations 
of the Attorney General relating to the coordination of enforcement of 
title VI of the Civil Rights Act of 1964 shall continue in effect until 
revoked or modified (28 CFR 42.401 to 42.415).
    1-502. Executive Order No. 11914 is revoked. The present regulations 
of the Secretary of Health and Human Services relating to the 
coordination of the implementation of section 504 of the Rehabilitation 
Act of 1973, as 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


[[Page 1147]]


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 of Part 42--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 of Part 42--Commentary

        Subpart E_Equal Employment Opportunity Program Guidelines

42.301  Purpose.
42.302  Application.
42.303  Evaluation of employment opportunities.
42.304  Written equal employment opportunity program.
42.305  Recordkeeping and certification.
42.306  Guidelines.
42.307  Obligations of recipients.
42.308  Noncompliance.

Subpart F_Coordination of Enforcement of Non-discrimination in Federally 
                            Assisted Programs

42.401  Purpose and application.
42.402  Definitions.
42.403  Agency regulations.
42.404  Guidelines.
42.405  Public dissemination of title VI information.
42.406  Data and information collection.
42.407  Procedures to determine compliance.
42.408  Complaint procedures.
42.409  Employment practices.
42.410  Continuing State programs.
42.411  Methods of resolving noncompliance.
42.412  Coordination.
42.413  Interagency cooperation and delegations.
42.414  Federal agency staff.
42.415  Federal agency title VI enforcement plan.

  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.

[[Page 1148]]

                               Procedures

42.530  Procedures.

                               Definitions

42.540  Definitions.

Appendix A to Subpart G of Part 42--Federal Financial Assistance 
          Administered by the Department of Justice to Which This 
          Subpart Applies
Appendix B to Subpart G of Part 42 [Reserved]
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 [Note]
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) [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



 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]

[[Page 1149]]



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 to subpart C of part 42 appear 
by Order No. 2679-2003, 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, 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

[[Page 1150]]

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.
    (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.

[[Page 1151]]

    (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 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.

[[Page 1152]]

    (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 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

[[Page 1153]]

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 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

[[Page 1154]]

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 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

[[Page 1155]]

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 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

[[Page 1156]]

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.
    (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

[[Page 1157]]

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 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

[[Page 1158]]

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]



 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.

[[Page 1159]]

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 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

[[Page 1160]]

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.
    (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;

[[Page 1161]]

    (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 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

[[Page 1162]]

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.
    (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

[[Page 1163]]

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).
    (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

[[Page 1164]]

    (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 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.

[[Page 1165]]

    (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. 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

[[Page 1166]]

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 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.

[[Page 1167]]



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.



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.

[[Page 1168]]

    (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.
    ``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

[[Page 1169]]

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 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

[[Page 1170]]

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 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

[[Page 1171]]

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 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).

[[Page 1172]]

    (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 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,

[[Page 1173]]

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).
    (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

[[Page 1174]]

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.)



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

[[Page 1175]]

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.



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.

[[Page 1176]]

    (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 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

[[Page 1177]]

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 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 
assistance

[[Page 1178]]

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 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

[[Page 1179]]

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.



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

[[Page 1180]]

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.

    Source: 45 FR 37622, June 3, 1980, unless otherwise noted.

    Editorial Note: Nomenclature changes to subpart G of part 42 appear 
by Order No. 2679-2003, 68 FR 51364, 51365, 51366, Aug. 26, 2003.

[[Page 1181]]

                           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 Federal financial 
assistance after the effective date of this subpart is prohibited from 
discriminating on the basis of handicap.

[[Page 1182]]

    (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.
    (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

[[Page 1183]]

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 distribution of 
memoranda or other written communications.
    (2) Recruitment materials or publications containing general 
information

[[Page 1184]]

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 of equipment or devices (e.g., telecommunication or other 
telephone devices), the provisions of readers or qualified interpreters, 
and other similar actions.

[[Page 1185]]

    (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:
    (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.

[[Page 1186]]

    (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
    (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

[[Page 1187]]

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 No. 1249-88, 53 FR 3206, 
Feb. 4, 1988]

                               Procedures



Sec. 42.530  Procedures.

    (a) The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 (28 CFR 42.106-42.110) apply to this subpart except 
that the provision contained in Secs. 42.110(e) and 42.108(c)(3) which 
requires the Attorney General's approval before the imposition of any 
sanction against a recipient does not apply to programs 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 2132, January 13, 1978) implementing 
Executive Order 11914 (41 FR 17871, April 28, 1976) provided notice that 
the challenged policy or practice was unlawful.

[[Page 1188]]

                               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 government, 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 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.,

[[Page 1189]]

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.

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

[[Page 1190]]

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 Secs. 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 Secs. 42.205 and 
42.206 of this part.



 Subpart H_Procedures for Complaints of Employment Discrimination Filed 
           Against Recipients of Federal Financial Assistance

    Authority: E.O. 12250, 45 FR 72995, 3 CFR, 1980 Comp., p. 298; E.O. 
12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 206.

    Source: Order No. 992-83, 48 FR 3577, Jan. 25, 1983, unless 
otherwise noted.



Sec. 42.601  Purpose and application.

    The purpose of this regulation is implement procedures for 
processing and resolving complaints of employment discrimination filed 
against recipients of Federal financial assistance subject to title VI 
of the Civil Rights Act of 1964, title IX of the Education Amendments of 
1972, the State and Local Fiscal Assistance Act of 1972, as amended, and 
provisions similar to title VI and title IX in Federal grant statutes. 
Enforcement of such provisions in Federal grant statutes is covered by 
this regulation to the extent they relate to prohibiting employment 
discrimination on the ground of race, color, national origin, religion 
or sex in programs receiving Federal financial assistance of the type 
subject to title VI or title IX. This regulation does not, however, 
apply to the Omnibus Crime Control and Safe Streets Act of 1968, as 
amended, the Juvenile Justice and Delinquency Prevention Act, as 
amended, the Comprehensive Employment Training Act of 1973, as amended, 
or Executive Order 11246.



Sec. 42.602  Exchange of information.

    EEOC and agencies shall share any information relating to the 
employment policies and practices of recipients of federal financial 
assistance that may assist each office in carrying out its 
responsibilities. Such information shall include, but not necessarily be 
limited to, affirmative action programs, annual employment reports, 
complaints, investigative files, conciliation or compliance agreements, 
and compliance review reports and files.



Sec. 42.603  Confidentiality.

    When an agency receives information obtained by EEOC, the agency 
shall observe the confidentiality requirements of sections 706(b) and 
709(e) of title VII as would EEOC, except in cases where the agency 
receives the same information from a source independent of EEOC or has 
referred a joint complaint to EEOC under this regulation. In such cases, 
the agency may use independent source information or information 
obtained by EEOC under the agency's investigative authority in a 
subsequent title VI, title IX or revenue sharing act enforcement 
proceeding. Agency questions concerning confidentiality shall be 
directed to the Associate Legal Counsel for Legal Services, Office of 
Legal Counsel of EEOC.

[[Page 1191]]



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, 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

[[Page 1192]]

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 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

[[Page 1193]]

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.



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

[[Page 1194]]

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.

                           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.

[[Page 1195]]



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
    (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.

[[Page 1196]]

    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 No. 
2679-2003, 68 FR 51366, Aug. 26, 2003]



Secs. 42.703-42.709  [Reserved]

              Standards for Determining Age Discrimination



Sec. 42.710  General prohibition.

    (a) Subject to the exceptions discussed in Secs. 42.711-42.713, no 
person in the United States shall, on the basis of age, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination in any program or activity to which this subpart applies. 
This prohibition applies to actions taken by a recipient, directly or 
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.
    (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

[[Page 1197]]

(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.



Secs. 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.



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.



Secs. 42.726-42.729  [Reserved]

                          Compliance Procedures



Sec. 42.730  Compliance reviews.

    The Department may conduct a pre-award or post-award compliance 
review of an applicant or a recipient to determine compliance with this 
subpart. When a compliance review indicates

[[Page 1198]]

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 
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.

[[Page 1199]]

    (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 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.

[[Page 1200]]



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.



Secs. 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 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,

[[Page 1201]]

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 1203]]



                              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 1205]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2017)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        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 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        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 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      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)

[[Page 1206]]

    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      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)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         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)
       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)

[[Page 1207]]

      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)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        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)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         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)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      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)

[[Page 1208]]

     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Partys 10000--10049)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and 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)

[[Page 1209]]

        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)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)

[[Page 1210]]

         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 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--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)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)

[[Page 1211]]

        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        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)

[[Page 1212]]

       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. 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  U.S. 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)

[[Page 1213]]

         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, 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)
         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  Millennium 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)

[[Page 1214]]

       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 1215]]

                           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--End)

           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)
       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)

[[Page 1216]]

        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  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)

[[Page 1217]]

      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)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      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)
        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)

[[Page 1218]]

        IV  Office of Career, Technical and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  [Reserved]
       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)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

[[Page 1219]]

                       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)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            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)
   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)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  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)

[[Page 1220]]

       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--599)
         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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)

[[Page 1221]]

        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         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  Administration for Children and Families, 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)
        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)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)

[[Page 1222]]

         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  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 (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)

[[Page 1223]]

        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 (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [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)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 1225]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2017)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, 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
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII

[[Page 1226]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
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
Career, Technical and Adult Education, Office of  34, IV
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, 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    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense Contract Audit Agency                     32, I

[[Page 1227]]

Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  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
  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
Denali Commission                                 45, IX
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical and Adult Education, Office   34, IV
       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
  Career, Technical, and Adult Education, Office  34, IV
       of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 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                             2, IX; 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
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 1228]]

  National Drug Control Policy, Office of         2, XXXVI; 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                       5, XXXVII; 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                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 1229]]

Forest Service                                    36, II
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
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
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, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  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                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  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
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI

[[Page 1230]]

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, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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, XXVIII; 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
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  2, XXIX; 5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI

[[Page 1231]]

  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, VII
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 Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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   2, XXII; 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                    5, C; 34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 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 Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III

[[Page 1232]]

National Railroad Passenger Corporation (AMTRAK)  49, VII
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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
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                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 5, IV; 45, 
                                                  VIII
  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
Privacy and Civil Liberties Oversight Board       6, X
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
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV

[[Page 1233]]

Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 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 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
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; 47, IV; 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
  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                               2, X;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                   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
  Financial Crimes Enforcement Network            31, X
  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
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
   Commission
[[Page 1234]]

Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1235]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2012 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2012

28 CFR
                                                                   77 FR
                                                                    Page
Chapter I
0.89a  (a) removed; (b) and (c) redesignated as new (a) and (b); 
        new (a) and (b) amended....................................26183
0.130  (b) redesignated as (b)(1); (b)(2) added....................51699
0.132  (a) removed; (b) and (c) redesignated as new (a) and (b); 
        new (a) and (b) amended....................................26183
0.172  Revised.....................................................26183
8  Revised.........................................................56101
9  Revised.........................................................56108
16.96  (v) and (w) revised.........................................61275
16.134  Added......................................................23117
25.52  Amended.....................................................18916
25.53  (f)(2) amended..............................................18916
35.150  Regulation at 75 FR 56180 compliance date delayed in part 
                                                                   16163
    (b)(4) added...................................................30179
36.304  Regulation at 75 FR 56254 compliance date delayed in part 
                                                                   16163
    (d) Appendix revised; (g)(5) added.............................30179

                                  2013

28 CFR
                                                                   78 FR
                                                                    Page
Chapter I
0.114  (a)(3) amended..............................................59819
16.71  (c) revised; (d) amended; (e)(7) removed; (e)(8) 
        redesignated as (e)(7).....................................69754
16.91  (u) and (v) removed.........................................69754
16.97  (a)(4) through (7), (j) and (k) revised.....................11576
16.98  Heading, (c) and (d) introductory text; (i) and (j) added 
                                                                   14672
16.135  Added......................................................69754
    (c) introductory text and (1) through (10) revised.............77586
26.20--26.23 (Subpart B)  Added....................................58183
32.3  Amended......................................................29234
32.43  (e) removed.................................................29234
32.44  (a) revised.................................................29234

                                  2014

28 CFR
                                                                   79 FR
                                                                    Page
Chapter I
0.35  Amended......................................................54188
0.36  Amended......................................................54188
0.130  (b)(2) amended..............................................12062
2.40  Revised......................................................51257
2.85  Revised......................................................51258
2.204  Revised.....................................................51258
2.220  Revised.....................................................51260
25.2  Amended......................................................69051
25.6  (j) revised..................................................69051
25.9  (b)(1)(i) revised............................................69051
32.3  Amended; eff. 7-23-14........................................35492
36.504  (a)(3)(i) and (ii) revised.................................17436

[[Page 1236]]

                                  2015

28 CFR
                                                                   80 FR
                                                                    Page
Chapter I
0.122  (c) added....................................................1006
0.130  (b)(2) amended...............................................9989
0.160  (a), (c) introductory text and (2) revised..................30618
0.162  Amended.....................................................30618
0.168  (a) amended; (d) introductory text and (1) revised..........30618
0.169  (b) amended.................................................30619
0.160--0.172 (Subpart Y)  Appendix amended.........................31998
2.66  (d) added....................................................52984
2.80  (p) added....................................................63116
16  Authority citation revised..............................18106, 34051
16.1--16.11 (Subpart A)  Revised...................................18106
16.81  (g) and (h) removed.........................................34051
16.136  Added......................................................34051
16  Appendix I revised.............................................18113

                                  2016

28 CFR
                                                                   81 FR
                                                                    Page
Chapter I
0.1  Amended.......................................................43066
0.33 (Subpart F-1)  Added..........................................43066
0.53  Revised......................................................91789
0.136  Removed.....................................................72693
2.74  (c) revised..................................................13975
2.94  Revised......................................................13976
2.207  Revised.....................................................13976
11  Authority citation revised.....................................43943
11.1  Amended......................................................43943
11.2  Heading revised; amended.....................................43943
11.3  Amended......................................................43944
11.4  (a) and (b)(3)(i) amended....................................43944
11.10--11.13 (Subpart C)  Heading revised..........................43944
11.10  Revised.....................................................43944
11.11  (a) and (b) revised; (e) added..............................43944
11.12  Heading, (a), (b)(2), (3), (c) and (f) revised; (b)(4) 
        removed; (d)(5) and (6) amended............................43944
11.13  Added.......................................................43944
11.21 (Subpart D)  Added...........................................43944
20.25  Amended; eff. 8-1-16........................................42499
22.29  Amended; eff. 8-1-16........................................42499
35  Authority citation revised.....................................53223
35.101  Revised....................................................53223
35.104  Amended....................................................53223
35.108  Added......................................................53223
35.130  (b)(7) revised; (i) added..................................53225
35  Appendix C added...............................................53225
36  Authority citation revised..............................53240, 87378
36.101  Revised....................................................53240
36.104  Amended....................................................53240
36.105  Added......................................................53240
36.201  (c) added..................................................53243
36.302  (g) added..................................................53243
36.303  (g) redesignated as (h); new (g) added.....................87378
36.504  (a)(3)(i) and (ii) amended; eff. 8-1-16....................42499
36  Appendix E added...............................................53243
    Appendix F added...............................................87379
38  Revised........................................................19418

                                  2017

   (Regulations published from January 1, 2017, through July 1, 2017)

28 CFR
                                                                   82 FR
                                                                    Page
Chapter I
0.64-1  Amended....................................................10547
16  Authority citation revised.......................................727
16.1  (a) amended; interim...........................................727
16.2  Amended; interim...............................................727
16.4  (d) introductory text amended; interim.........................727
16.5  (c) amended; interim...........................................727
16.6  (c) amended; (e)(5) added......................................727
16.8  (a) amended; (d) redesignated as (e); new (d) added............728
16.10  (b)(4), Example 3, (d)(2) and (k) revised; (b)(6) amended 
                                                                     728
31  Authority citation revised......................................4792
    Regulation at 82 FR 4792 eff. date delayed to 3-21-17...........8894
31.303  (e)(2), (3)(i), (f)(4)(vi), (5)(i)(D), (iii)(C), (D) and 
        (iv)(F) through (I) amended; (f)(5) introductory text and 
        (6) revised.................................................4792
    Regulation at 82 FR 4792 eff. date delayed to 3-21-17...........8894
    (f)(5) correctly amended.......................................29734
31.304  (q) added...................................................4793
    Regulation at 82 FR 4793 eff. date delayed to 3-21-17...........8894


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