[Federal Register Volume 61, Number 114 (Wednesday, June 12, 1996)]
[Proposed Rules]
[Pages 29716-29719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14721]
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DEPARTMENT OF JUSTICE
28 CFR Part 74
[AG Order No. 2033-96]
RIN 1190-AA42
Redress Provisions for Persons of Japanese Ancestry: Guidelines
for Individuals Who Relocated to Japan as Minors During World War II
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice (``Department'') hereby proposes a
change to the regulations governing redress provisions for persons of
Japanese ancestry. This change will amend the standards of the Civil
Liberties Act of 1988 to make eligible for payments of $20,000 those
persons who are otherwise eligible for redress under these regulations,
but who involuntarily relocated during World War II to a country with
which the United States was at war. In practice, this amendment will
make potentially eligible those persons who were evacuated, relocated,
or interned by the United States Government; who, as minors, relocated
to Japan during World War II, and otherwise were unemancipated and
lacked the legal capacity to leave the custody and control of their
parents (or legal guardians) who chose to relocate to Japan during the
war; and who did not enter active military service on behalf of the
Japanese Government or another enemy government during the statutorily-
defined war period.
DATES: Comments must be submitted on or before July 12, 1996.
ADDRESSES: Comments may be mailed to the Office of Redress
Administration, PO Box 66260, Washington, DC 20035-6260.
FOR FURTHER INFORMATION CONTACT:
Tink D. Cooper or Emlei Kuboyama, Office of Redress Administration,
Civil Rights Division, U.S. Department of Justice, PO Box 66260,
Washington, DC 20035-6260; (202) 219-6900 (voice) or (202) 219-4710
(TDD). These are not toll-free numbers.
SUPPLEMENTARY INFORMATION:
I. Background
The Civil Liberties Act of 1988, Pub. L. No. 100-383 (codified at
50 U.S.C. app. 1989 et seq., as amended) (``the Act''), enacted into
law the recommendations of the Commission on Wartime Relocation and
Internment of Civilians (``Commission'') established by Congress in
1980. See Commission on Wartime Relocation and Internment of Civilians
Act, Pub. L. No. 96-317 (1980). This bipartisan commission was
established: (1) To review the facts and circumstances surrounding
Executive Order 9066, issued February 19, 1942, and the impact of that
Executive Order on American citizens and permanent resident aliens of
Japanese ancestry; (2) to review directives of United States military
forces requiring the relocation and, in some cases, detention in
internment camps of these American citizens and permanent resident
aliens; and (3) to recommend appropriate remedies. The Commission
submitted to Congress in February 1983 a unanimous report, Personal
Justice Denied, which extensively reviewed the history and
circumstances of the decisions to exclude, remove, and then to detain
Japanese Americans and Japanese resident aliens from the West Coast, as
well as the treatment of Aleuts during World War II. Redress Provisions
for Persons of Japanese Ancestry, 54 FR 34,157 (1989). The final part
of the Commission's report, Personal Justice Denied Part 2:
Recommendations, concluded that these events were influenced by racial
prejudice, war hysteria, and a failure of political leadership, and
recommended remedial action to be taken by Congress and the President.
Id.
On August 10, 1988, President Ronald Reagan signed the Act into
law. The purposes of the Act were to acknowledge and apologize for the
fundamental injustice of the evacuation, relocation, and internment of
Japanese Americans and permanent resident aliens of Japanese ancestry,
to make restitution, and to fund a public education program to prevent
the recurrence of any similar event in the future. 50 U.S.C. app. 1989-
1989a.
Section 105 of the Act makes the Attorney General responsible for
identifying, locating, an authorizing payment of redress to eligible
individuals. Id. 1989b-4. The Attorney General delegated the
responsibilities and duties assigned to her to the Assistant Attorney
General for Civil Rights, who, in keeping with precedent, has
designated ORA in the Civil Rights Division to carry out the execution
of the responsibilities and duties under the Act. The regulations
governing the eligibility and restitution were drafted by ORA and
published under the authority of the Justice Department in 1989. 54 FR
34,157 (1989) (final rule) (codified at 28 CFR part 74).
ORA is charged with the responsibility of identifying and locating
persons eligible for redress under the Act. To date, restitution has
been paid to a total of 79,911 Japanese Americans and permanent
resident aliens of Japanese ancestry.
Section 108 of the Act articulates the standards for redress
eligibility. 50 U.S.C. app. 1989b-7(2). Among those excluded from
eligibility under that section are those ``who, during the period
beginning on December 7, 1941, and ending on September 2, 1945,
relocated to a country while the United States was at war with that
country * * *.'' Id. As part of a citizen exchange program during World
War II, the United States returned formerly interned persons of
Japanese ancestry to Japan on two occasions. On June 18, 1942,
approximately 1,083 persons of Japanese ancestry returned to Japan
aboard the M.S. Gripsholm, and on September 2, 1943, the Gripsholm
returned another 1,340 persons of Japanese ancestry to Japan. A number
of these persons asserted claims for redress based on their evacuation
and internment by the United States Government prior to their return to
Japan. However, based on section 108 of the Act and 28 CFR 74.4, ORA
found them ineligible for redress. 54 FR 34,162 (1989). In all, 175
persons who returned to Japan aboard the Gripsholm claimed compensation
under the Act; approximately 124 of these claimants were persons who
were under the age of 21 upon their departure from the United States.
ORA's denial of redress to these claimants was upheld during the
administrative appeal process set forth in 28 CFR 74.17. 54 FR 34,164-
65 (1989).
It is helpful to describe the circumstances of these individuals.
The West Coast voluntary evacuation period began with the issuance of
Proclamation No. 1, on March 2, 1942, and ended with the issuance of
Proclamation No. 4, effective on March 29, 1942. After this date,
persons of Japanese ancestry were prohibited from leaving the West
Coast because the Government was preparing to forcibly relocate and
intern them later. Over 120,000 Japanese Americans were eventually
interned. Of these 120,000, approximately 124 were minor children whose
parents decided to depart the United States for Japan during the war on
one of the M.S.
[[Page 29717]]
Gripsholm sailings prior to September 2, 1945. The majority of the
passengers on the first sailing were Japanese diplomats, while many of
the passengers on the second sailing were American citizens or
permanent resident aliens. Also aboard were some Japanese nationals who
had left Japan to live and work in the United States and who, by law,
were ineligible to apply for United States citizenship. Many of these
individuals returned to Japan with their American-born children.
These American children persevered through an arduous period during
which they were forcibly evacuated from their homes on the West Coast
and interned with their parents. The minors were unable legally to
return to their homes in the prohibited military zones on the West
Coast and were required to travel to Japan with their parents on a long
and difficult journey.
The loyalty of most of these American children, however, apparently
never waned. According to ORA research, the vast majority of them did
not enter into the active military service on behalf of an enemy
government during World War II. Furthermore, almost all returned to the
United States after the war. Out of the approximately 124 minors who
have filed for redress, and who relocated to Japan with their parents
during World War II, 108 subsequently returned to the United States,
while only 16 remained in Japan.
II. Revised Interpretation
Following publication of the draft regulations in 1989, the
Department received 61 comments concerning the eligibility of persons
who, as minors, returned to Japan aboard the Gripsholm. Based on the
comments received at that time, however, it found no reason to
differentiate between adults who returned to Japan during World War II
and minors. As a result, in the preamble of the final regulation, the
Department stated that ``the exclusionary language of the Act would
preclude from eligibility the minors, as well as adults, who were
relocated to Japan during [the relevant] time period.'' 54 FR 34,160
(1989).
The Department, based on an argument not previously presented, now
proposes to revise its interpretation regarding the eligibility of
persons who relocated to Japan during World War II. Specifically, it
proposes to revise its determination of eligibility with regard to
persons who were under the age of 21 and not emancipated as of their
dates of departures from the United States, who did not participate in
the active military service on behalf of an enemy government during
World War II, and who are otherwise eligible for redress under these
regulations.
In proposing this revision, the Department is operating within the
established framework of Chevron v. N.R.D.C., 467 U.S. 837, 842-43.
Under Chevron, an agency must give effect to the unambiguously
expressed intent of Congress when interpreting a statute. However,
where an act is silent or ambiguous with respect to a specific issue,
Congress has assigned to the agency the responsibility to elucidate a
specific provision of the statute by regulation. Id. at 843-44. For the
reasons set forth below, the Department believes that the proscription
of section 108 is ambiguous with respect to its coverage of the class
of individuals described above, and that the proposed revision is a
reasonable interpretation of the statute.
As enacted, section 108 expressly excludes from eligibility ``any
individual who, during the period beginning on December 7, 1941, and
ending on September 2, 1945, relocated to (another) country while the
United States was at war with that country.'' 50 U.S.C. app. 1989b-7
(emphasis added). This language does not specifically resolve whether
the exclusion applies to individuals who relocated involuntarily.
This issue is suggested on the face of the statute when it is read
as a whole because, while the statute uses the active voice in section
108's exclusion clause, the eligibility clauses of the statute use the
passive voice. For example, section 108 begins by defining an
``eligible individual'' as a person of Japanese ancestry ``who, during
the evacuation, relocation and internment period--* * * was confined,
held in custody, relocated, or otherwise deprived of liberty or
property as a result of * * * (various Executive Orders and Acts).'' 50
U.S.C. app. 1989b-7(2) (emphasis added). Title II of the Act, which
provides reparations to Aleuts evacuated from their home islands during
World War II, similarly defines an eligible Aleut as a person ``who, as
a civilian, was relocated by authority of the United States from his or
her home village * * * to an internment camp * * *.'' 50 U.S.C. app.
1989c-1(5) (emphasis added). The contrasting use of the active voice in
the exclusion clause suggests the possibility that section 108 might be
read to exclude only those individuals who voluntarily relocated to an
enemy country during the war.
This possibility is consistent with judicial decisions. The United
States Courts of Appeals for the District of Columbia and the Ninth
Circuits have deemed the use of the active as opposed to the passive
voice relevant for purposes of statutory interpretation. Dickson v.
Office of Personnel Mgmt., 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated
use of passive voice in phrase defining liability is significant and
allows suit against Office of Personnel Management whenever an adverse
determination ``is made,'' even if by another agency); United States v.
Arrellano, 812 F.2d 1209, 1212 (9th Cir. 1987) (clause of statute
defining criminal intent phrased in active voice applies to conduct of
the accused, while second clause phrased in passive voice applies only
to the conduct of others). Thus, the statutory language creates an
ambiguity as to whether eligibility decisions should distinguish
between voluntary relocatees and involuntary relocatees. For the
reasons that follow, we believe the better interpretation is to exclude
only individuals who relocated voluntarily.
The Act's legislative history provides very little significant
insight into congressional intent regarding the eligibility of
involuntary relocatees. As originally introduced, neither the House nor
the Senate bill included a relocation exclusion provision in the
section defining eligible individuals. Entering conference, the House
version of the Act contained the exclusion, while the Senate version
contained no such provision. The conferees agreed to adopt the House
provision, which excluded ``those individuals who, during the period
from December 7, 1941, through September 2, 1945, relocated to a
country at war with the United States.'' H.R. Conf. Rep. No. 785, 100th
Cong., 2d Sess. 22 (1988). There is no additional discussion of the
relocation exclusion in the conference report.
A discussion of whether individuals who returned to Japan should be
included in the definition of ``eligible individuals'' is contained in
a witness statement submitted to the House and Senate subcommittees
considering the legislation. In testimony opposing the enactment of the
bill, the Assistant Attorney General for the Civil Division, Richard K.
Willard, noted that as then written (without the relocation exclusion),
the breadth of the definition would cover any individual who had been
subject to exclusion, relocation, or internment, including persons
living outside the United States. In the Department's view, this
overlooked the fact that at least several hundred of the detainees were
``fanatical pro-Japanese, * * * and (had) voluntarily sought
repatriation to Japan after the end of the war.'' The Department
believed that allowing these disloyal individuals to receive the
benefit of the legislation
[[Page 29718]]
would be unfair to the United States and to loyal persons of Japanese
descent. To Accept the Findings and to Implement the Recommendations of
the Commission on Wartime Relocation and Internment of Civilians:
Hearing on S. 1009 Before the Subcomm. on Federal Services, Post
Office, and Civil Service of the Senate Comm. on Governmental Affairs,
100th. Cong., 1st Sess. 281, 296 (1987) (Hearings). This statement,
however, does not reveal or suggest an opinion that the bill ought to
exclude from redress persons who involuntarily relocated to an enemy
country.
In sum, the Department believes that section 108's exclusion of
persons who relocated to an enemy country during World War II is
susceptible to the interpretation that it does not apply to persons who
relocated involuntarily, that so interpreting the statute gives effect
to the principles Congress meant to embody in the exclusionary
provision, and that this interpretation is otherwise a reasonable
construction of the statute.
The Department further notes that the determination of whether a
person relocated voluntarily to an enemy country during World War II is
extraordinarily difficult to determine at this late date, over half a
century since the period during which the actions that are relevant to
a determination about the state of mind of individual relocatees took
place. Under these circumstances, the Department has discretion to
structure the process for determining redress eligibility in a manner
that avoids the inherent inaccuracy of any attempt to engage in a case-
by-case inquiry into the subjective factor of state of mind, as well as
the potential administrative burdens associated with case-by-case
inquiry, by articulating some reasonable objective criteria to guide
the process.
To that end, the Department proposes two bright line rules to
administer section 108's exclusion provision. First, any person who was
21 years of age or older, or otherwise emancipated by petition of the
court or by marriage, as of the date of his or her departure from the
United States, shall be irrebuttably presumed to have relocated
voluntarily, and will be ineligible for redress under the Act. Second,
any person who served in the Japanese military, or the military of
another enemy country, during the statutorily-defined war period shall
be irrebuttably presumed to have relocated voluntarily and, therefore,
will be ineligible for redress. All otherwise eligible persons falling
outside these categories, that is, persons who were minors and not
otherwise emancipated as of the dates of their departures from the
United States and who did not serve in the Japanese military or the
military of another enemy government during the statutorily-defined war
period, shall be considered involuntary relocatees and therefore
eligible for redress under the Act.
The Supreme Court has affirmed the ability of agencies to employ
generally applicable rules as an alternative to case-by-case
adjudication. See e.g., American Hospital Ass'n v. NLRB, 499 U.S. 606,
611 (1991) (``[Prior decisions of this Court] confirm that, even if a
statutory scheme requires individualized determinations, the decision-
maker has the authority to rely on rulemaking to resolve certain issues
of general applicability unless Congress clearly expresses an intent to
withhold that authority.''). In particular, the Court has noted that
the Congress is free to use prophylactic rules despite their ``inherent
imprecision'' when it wishes to avoid ``the expense and other
difficulties of individual determinations.'' Weinberger v., Salfi, 422
U.S. 749, 777 (1975).
The Department believes that under American Hospital Ass'n and
other authorities agencies enjoy a similar latitude to that enunciated
in Weinberger. As in Weinberger, justifying the use of such bright-line
rules does not require determining whether the rules ``precisely
filter() out those, and only those, who are in the factual position
which generated the congressional concern * * * (n) or * * * whether
(they) filter( ) out a substantial part of the class which caused the *
* * concern, or whether (they) filter() out more members of the class
than nonmembers.'' Id. Rather, the question is whether the Department
could ``rationally have concluded both that * * * particular (rules)
would protect against (the abuse Congress sought to avoid), and that
the expense and other difficulties of individualized determinations
justified (their) inherent imprecision.'' Id. For the reasons that
follow, the proposed rules satisfy this standard.
As stated above, the Department proposes to apply an irrebuttable
presumption that persons who were 21 years of age or older, or
otherwise emancipated by petition of the court or by marriage, as of
the dates of their departures from the United States, were voluntary
relocatees. The Department proposes to apply this irrebuttable
presumption because adult relocatees were more likely than minor
relocatees to have been able to assent freely to their return to Japan.
The age of 21 as of the date of departure was chosen because, during
the period covered by the Act's relocation exclusion, the legal age of
majority in most states was 21.
Noting the dearth of legislative history pertaining to the Act's
exclusion clause, the United States Court of Federal Claims stated in
Suzuki v. United States, 29 Fed. Cl. 688 (1993), that Congress may have
enacted the exclusion clause in an effort to deny benefits to
individuals who had either been disloyal to the United States or ``who,
despite possible continued loyalty to the United States, had aided an
enemy country during war.'' Id. at 695. Nothing in the Department's
revised interpretation of section 108 is inconsistent with this
observation, since both of the possible purposes cited by the court
assume volition on the part of the relocatee to leave the Untied States
and relocate to Japan. If, by contrast, an individual relocatee was not
free to assent to his or her relocation on account of his or her
minority status, it is reasonable for the Department to conclude that
such individual was not the type of person against whom Congress
intended to apply section 108's exclusion provision. By itself, the
relocation of minors during World War II does not raise doubts or
inferences concerning disloyalty. In fact, most American-born minor
relocatees returned to the United States following the war.
Examples of distinctions in the treatment of minors and adults
abound in our law. See Thompson v. Oklahoma, 487 U.S. 815, 823 (1988)
(plurality opinion). Accordingly, it is reasonable for the Department
to apply such a distinction in determining whether individuals who
related to Japan during the statutorily-defined war period did so
voluntarily.
The Department also proposes to apply an irrebuttable presumption
that individuals who served in the military of an enemy government
during the statutorily-defined war period relocated voluntarily because
the Department believes that evidence that an individual entered into
the active military service on behalf of an enemy government following
his or her departure from the United States is a strong indication that
the individual relocated voluntarily. In view of that reasonable belief
and the fact that it is difficult at this time to determine with
complete certainty the motivations of individuals who joined the active
military service against the United States during World War II, and in
light of the increased administrative burdens associated with
individualized efforts to ascertain the 50-year-old motivations of such
individuals, the Department believes it is appropriate to interpret the
[[Page 29719]]
fact that an individual served in the military of an enemy government
following his or her relocation as evidence that the individual
relocated voluntarily.
The Department will thus require individuals who apply for redress
under the Act and who relocated to Japan during the statutorily-defined
war period to provide information as to their ages and emancipation
status upon their dates of departure from the United states to relocate
to Japan, and to state whether or not they participated in the active
military service on behalf of an enemy government, including the
Japanese Government, during World War II. If such individuals state
that they were 21 years of age or older, or emancipated minors, as of
the dates of their departures, they will be deemed ineligible for
redress under the Act. Similarly, if such individuals state that they
participated in the active military service on behalf of an enemy
government during World War II, they also will be deemed ineligible. In
contrast, otherwise eligible relocatees who were under the age of 21
and not otherwise emancipated upon the dates of their departures from
the United States, and who did not serve in the military on behalf of
an enemy government during World War II, will be eligible for redress
under the Act.
III. Regulatory Impact Analysis
The Office of Management and Budget has determined that this
proposed rule is a significant regulatory action under Executive Order
No. 12866 and, accordingly, this proposed rule has been reviewed and
approved by the Office of Management and Budget. Information collection
associated with this regulation has been approved by the Office of
Management and Budget, OMB No. 1190-0010. Comments about this
collection can be filed with the Clearance Officer, Office of Redress
Administration, PO Box 66260, Washington, DC 20035-6260, and the Desk
Officer, Office of Information and Regulatory Affairs, Office of
Management and Budget, New Executive Office building, Washington, DC
20503.
List of Subjects in 28 CFR Part 74
Administrative practice and procedure, Aliens, Archives and
records, Citizenship and naturalization, Civil rights, Indemnity
payments, Minority groups, Nationality, War claims.
For the reasons set forth in the preamble and by the authority
vested in me, including 28 U.S.C. 509 and 510, chapter I of title 28,
part 74, of the Code of Federal Regulations is proposed to be amended
as follows:
PART 74--CIVIL LIBERTIES ACT REDRESS PROVISION
1. The authority citation for Part 74 continues to read as follows:
Authority: 50 U.S.C. app. 1989b.
2. In subpart B, Sec. 74.4 is revised to read as follows:
Subpart B--Standards of Eligibility
Sec. 74.4 Individuals excluded from compensation pursuant to section
108(B) of the Act.
(a) The Term ``eligible individual'' does not include any
individual who, during the period beginning on December 7, 1941, and
ending on September 2, 1945, relocated to a country while the United
States was at war with that country.
(b) Nothing in paragraph (a) of this section is meant to exclude
from eligibility any person who, during the period beginning on
December 7, 1941, and ending on September 2, 1945, relocated to a
country while the United States was at war with that country, and who
had not yet reached the age of 21 and was not emancipated as of the
date of departure from the United States, provided that such person is
otherwise eligible for redress under these regulations and the
following standards:
(1) Persons who were 21 years of age or older, or emancipated
minors, on the date they departed the United States for Japan are
subject to an irrebuttable presumption that they relocated to Japan
voluntarily and will be ineligible.
(2) Persons who served in the active military service on behalf of
the Government of Japan or an enemy government during the period
beginning on December 7, 1941 and ending on September 2, 1945, are
subject to an irrebuttable presumption that they departed the United
States voluntarily for Japan. If such individuals served in the active
military service of an enemy country, they must inform the Office of
such service and, as a result, will be ineligible.
Dated: June 5, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-14721 Filed 6-11-96; 8:45 am]
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