[Title 28 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2000 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
28
Part 43 to end
Revised as of July 1, 2000
Judicial Administration
Containing a Codification of documents of general
applicability and future effect
As of July 1, 2000
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
As a Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 28:
Chapter I--Department of Justice (Continued) 3
Chapter III--Federal Prison Industries, Inc.,
Department of Justice 399
Chapter V--Bureau of Prisons, Department of Justice 421
Chapter VI--Offices of Independent Counsel,
Department of Justice 589
Chapter VII--Office of Independent Counsel 597
Finding Aids:
Table of CFR Titles and Chapters........................ 623
Alphabetical List of Agencies Appearing in the CFR...... 641
List of CFR Sections Affected........................... 651
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 28 CFR 43.1 refers
to title 28, part 43,
section 1.
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[[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
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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
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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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.
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Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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[[Page vii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2000.
[[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, 2000.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of
Federal Regulations is published under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 28--JUDICIAL ADMINISTRATION
(This book contains part 43 to End)
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Part
chapter i--Department of Justice (Continued)................ 43
chapter iii--Federal Prison Industries, Inc., Department of
Justice................................................... 301
chapter v--Bureau of Prisons, Department of Justice......... 500
chapter vi--Offices of Independent Counsel, Department of
Justice................................................... 600
chapter vii--Office of Independent Counsel.................. 700
[[Page 3]]
CHAPTER I--DEPARTMENT OF JUSTICE
(Continued)
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Part Page
43 Recovery of cost of hospital and medical
care and treatment furnished by the
United States........................... 5
44 Unfair immigration-related employment
practices............................... 6
45 Employee responsibilities................... 10
46 Protection of human subjects................ 13
47 Right to Financial Privacy Act.............. 24
48 Newspaper Preservation Act.................. 25
49 Antitrust Civil Process Act................. 30
50 Statements of policy........................ 31
51 Procedures for the administration of section
5 of the Voting Rights Act of 1965, as
amended................................. 76
52 Proceedings before U.S. magistrate judges... 96
55 Implementation of the provisions of the
Voting Rights Act regarding language
minority groups......................... 98
56 International Energy Program................ 110
57 Investigation of discrimination in the
supply of petroleum to the Armed Forces. 112
58 Regulations relating to the Bankruptcy
Reform Acts of 1978 and 1994............ 113
59 Guidelines on methods of obtaining
documentary materials held by third
parties................................. 121
60 Authorization of Federal law enforcement
officers to request the issuance of a
search warrant.......................... 125
61 Procedures for implementing the National
Environmental Policy Act................ 127
63 Floodplain management and wetland protection
procedures.............................. 134
64 Designation of officers and employees of the
United States for coverage under section
1114 of title 18 of the U.S. Code....... 140
65 Emergency Federal law enforcement assistance 141
66 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 148
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67 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 175
68 Rules of practice and procedure for
administrative hearings before
administrative law judges in cases
involving allegations of unlawful
employment of aliens, unfair
immigration-related employment
practices, and document fraud........... 194
69 New restrictions on lobbying................ 223
70 Uniform administrative requirements for
grants and agreements (including
subawards) with institutions of higher
education, hospitals and other non-
profit organizations.................... 235
71 Implementation of the provisions of the
Program Fraud Civil Remedies Act of 1986 260
73 Notifications to the Attorney General by
agents of foreign governments........... 277
74 Civil Liberties Act redress provision....... 279
75 Child Protection Restoration and Penalties
Enhancement Act of 1990; record-keeping
provisions.............................. 291
76 Rules of procedure for assessment of civil
penalties for possession of certain
controlled substances................... 293
77 Ethical standards for attorneys for the
government.............................. 308
79 Claims under the Radiation Exposure
Compensation Act........................ 311
80 Foreign Corrupt Practices Act opinion
procedure............................... 354
81 Child abuse reporting designations and
procedures.............................. 357
85 Civil monetary penalties inflation
adjustment.............................. 358
90 Violence against women...................... 359
91 Grants for correctional facilities.......... 376
92 Office of Community Oriented Policing
Services (COPS)......................... 382
93 Provisions implementing the Violent Crime
Control and Law Enforcement Act of 1994. 388
100 Cost recovery regulations, Communications
Assistance for Law Enforcement Act of
1994.................................... 390
Cross References: Customs Service, Department of the Treasury: See
Customs Duties, 19 CFR chapter I.
Internal Revenue Service, Department of the Treasury: See Internal
Revenue, 26 CFR chapter I.
Employees' Benefits: See title 20.
Federal Trade Commission: See Commercial Practices, 16 CFR chapter I.
Note: Other regulations issued by the Department of Justice appear in
title 4; title 8; title 21; title 45; title 48.
Supplemental Publications: The official opinions of the Attorneys
General of the United States. (Op. A. G.) Irregular, 1789--;
Washington, v. 1--, 1852--.
[[Page 5]]
PART 43--RECOVERY OF COST OF HOSPITAL AND MEDICAL CARE AND TREATMENT FURNISHED BY THE UNITED STATES--Table of Contents
Sec.
43.1 Administrative determination and assertion of claims.
43.2 Obligations of persons receiving care and treatment.
43.3 Settlement and waiver of claims.
43.4 Annual reports.
Authority: Sec. 2, 76 Stat. 593; 42 U.S.C. 2651-2653; E.O. 11060, 3
CFR, 1959-1963 Comp., p. 651.
Editorial Note: For establishment and determination of certain rates
for use in connection with recovery from tortiously liable third
persons, see notice documents published by the Office of Management and
Budget each year in the Federal Register.
Sec. 43.1 Administrative determination and assertion of claims.
(a) The head of a Department or Agency of the United States
responsible for the furnishing of hospital, medical, surgical or dental
care and treatment (including prostheses and medical appliances), or his
designee, shall determine whether such hospital, medical, surgical or
dental care and treatment was or will be furnished for an injury or
disease caused under circumstances entitling the United States to
recovery under the Act of September 25, 1962 (Pub. L. 87-693); and, if
it is so determined, shall, subject to the provisions of Sec. 43.3,
assert a claim against such third person for the reasonable value of
such care and treatment. The Department of Justice, or a Department or
Agency responsible for the furnishing of such care and treatment may
request any other Department or Agency to investigate, determine, or
assert a claim under the regulations in this part.
(b) Each Department or Agency is authorized to implement the
regulations in this part to give full force and effect thereto.
(c) The provisions of the regulations in this part shall not apply
with respect to hospital, medical, surgical, or dental care and
treatment (including prostheses and medical appliances) furnished by the
Veterans Administration to an eligible veteran for a service-connected
disability under the provisions of chapter 17 of title 38 of the U.S.
Code.
[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]
Sec. 43.2 Obligations of persons receiving care and treatment.
(a) In the discretion of the Department or Agency concerned, any
person furnished care and treatment under circumstances in which the
regulations in this part may be applicable, his guardian, personal
representative, estate, dependents or survivors may be required:
(1) To assign in writing to the United States his claim or cause of
action against the third person to the extent of the reasonable value of
the care and treatment furnished or to be furnished, or any portion
thereof;
(2) To furnish such information as may be requested concerning the
circumstances giving rise to the injury or disease for which care and
treatment is being given and concerning any action instituted or to be
instituted by or against a third person;
(3) To notify the Department or Agency concerned of a settlement
with, or an offer of settlement from, a third person; and
(4) To cooperate in the prosecution of all claims and actions by the
United States against such third person.
(b) [Reserved]
[Order No. 289-62, 27 FR 11317, Nov. 16, 1962, as amended by Order No.
896-80, 45 FR 39841, June 12, 1980]
Sec. 43.3 Settlement and waiver of claims.
(a) The head of the Department or Agency of the United States
asserting such claim, or his or her designee, may:
(1) Accept the full amount of a claim and execute a release
therefor;
(2) Compromise or settle and execute a release of any claim, not in
excess of $100,000, which the United States has for the reasonable value
of such care and treatment; or
(3) Waive and in this connection release any claim, not in excess of
$100,000, in whole or in part, either for the convenience of the
Government, or if the head of the Department or Agency, or his or her
designee, determines that collection would result in undue hardship upon
the person who suffered
[[Page 6]]
the injury or disease resulting in the care and treatment described in
Sec. 43.1.
(b) Claims in excess of $100,000 may be compromised, settled,
waived, and released only with the prior approval of the Department of
Justice.
(c) The authority granted in this section shall not be exercised in
any case in which:
(1) The claim of the United States for such care and treatment has
been referred to the Department of Justice; or
(2) A suit by the third party has been instituted against the United
States or the individual who received or is receiving the care and
treatment described in Sec. 43.1 and the suit arises out of the
occurrence which gave rise to the third-party claim of the United
States.
(d) The Departments and Agencies concerned shall consult the
Department of Justice in all cases involving:
(1) Unusual circumstances;
(2) A new point of law which may serve as a precedent; or
(3) A policy question where there is or may be a difference of views
between any of such Departments and Agencies.
[Order No. 1594-92, 57 FR 27356, June 19, 1992]
Sec. 43.4 Annual reports.
The head of each Department or Agency concerned, or his designee,
shall report annually to the Attorney General, by March 1, commencing in
1964, the number and dollar amount of claims asserted against, and the
number and dollar amount of recoveries from third persons.
[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]
PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES--Table of Contents
Subpart A--General
Sec.
44.100 Purpose.
44.101 Definitions.
Subpart B--Prohibited Practices
44.200 Unfair immigration-related employment practices.
Subpart C--Enforcement Procedures
44.300 Filing a charge.
44.301 Acceptance of charge.
44.302 Investigation.
44.303 Determination.
44.304 Special Counsel acting on own initiative.
44.305 Regional offices.
Authority: 8 U.S.C. 1324b, 8 U.S.C. 1103(a).
Source: Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, unless
otherwise noted.
Subpart A--General
Sec. 44.100 Purpose.
The purpose of this part is to effectuate section 102 of the
Immigration Reform and Control Act of 1986, which prohibits certain
unfair immigration-related employment practices.
Sec. 44.101 Definitions.
(a) Charge means a written statement under oath or affirmation
that--
(1) Identifies the charging party's name, address, and telephone
number;
(2) Identifies the injured party's name, address, and telephone
number, if the charging party is not the injured party;
(3) Identifies the name and address of the person or entity against
whom the charge is being made;
(4) Includes a statement sufficient to describe the circumstances,
place, and date of an alleged unfair immigration-related employment
practice;
(5) Indicates whether the basis of the alleged unfair immigration-
related employment practice is discrimination based on national origin,
citizenship status, or both; or intimidation or retaliation, or
documentation abuses;
(6) Indicates whether the injured party is a U.S. citizen, U.S.
national, or alien authorized to work in the United States;
(7) Indicates, if the injured party is an alien authorized to work,
whether the injured party--
(i) Has been--
(A) Lawfully admitted for permanent residence;
(B) Granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C.
1255a(a)(1);
(C) Admitted as a refugee under 8 U.S.C. 1157; or
(D) Granted asylum under 8 U.S.C. 1158; and
[[Page 7]]
(ii) Has applied for naturalization (and if so, indicates the date
of the application);
(8) Identifies, if the injured party is an alien authorized to work,
the injured party's alien registration number and date of birth.
(9) Indicates, if possible, the number of persons employed on the
date of the alleged discrimination by the person or entity against whom
the charge is being made;
(10) Is signed by the charging party and, if the charging party is
neither the injured party nor an officer of the Immigration and
Naturalization Service, indicates that the charging party has the
authorization of the injured party to file the charge.
(11) Indicates whether a charge based on the same set of facts has
been filed with the Equal Employment Opportunity Commission, and if so,
the specific office, and contact person (if known); and
(12) Authorizes the Special Counsel to reveal the identity of the
injured or charging party when necessary to carry out the purposes of
this part.
(b) Charging party means--
(1) An individual who files a charge with the Special Counsel that
alleges that he or she has been adversely affected directly by an unfair
immigration-related employment practice;
(2) An individual or private organization who is authorized by an
individual to file a charge with the Special Counsel that alleges that
the individual has been adversely affected directly by an unfair
immigration-related employment practice; or
(3) An officer of the Immigration and Naturalization Service who
files a charge with the Special Counsel that alleges that an unfair
immigration-related employment practice has occurred.
(c) Protected individual means an individual who--
(1) Is a citizen or national of the United States; or
(2) Is an alien who is lawfully admitted for permanent residence, is
granted the status of an alien lawfully admitted for temporary residence
under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1), is
admitted as a refugee under 8 U.S.C. 1157, or is granted asylum under 8
U.S.C. 1158. The status of an alien whose application for temporary
resident status under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C.
1255a(a)(1) is approved shall be adjusted to that of a lawful temporary
resident as of the date indicated on the application fee receipt issued
at the Immigration and Naturalization Service Legalization Office. As
used in this definition, the term ``protected individual'' does not
include an alien who--
(i) Fails to apply for naturalization within six months of the date
the alien first becomes eligible (by virtue of period of lawful
permanent residence) to apply for naturalization or, if later, by May 6,
1987; or
(ii) Has applied on a timely basis, but has not been naturalized as
a citizen within two years after the date of the application, unless the
alien can establish that he or she is actively pursuing naturalization,
except that time consumed in the Immigration and Naturalization
Service's processing of the application shall not be counted toward the
two-year period.
(d) Complaint means a written submission filed with an
administrative law judge by the Special Counsel or the charging party,
other than an officer of the Immigration and Naturalization Service,
that is based on the same charge filed with the Special Counsel.
(e) Injured party means a person who claims to have been adversely
affected directly by an unfair immigration-related employment practice
or, in the case of a charge filed by an officer of the Immigration and
Naturalization Service or by a charging party other than the injured
party, is alleged to be so affected.
(f) Respondent means a person or entity against whom a charge of an
unfair immigration-related employment practice has been filed.
(g) Special Counsel means the Special Counsel for Immigration-
Related Unfair Employment Practices appointed by the President under
section 102 of the Immigration Reform and Control Act of 1986, or his or
her designee.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR 59948,
Nov. 12, 1993]
[[Page 8]]
Subpart B-Prohibited Practices
Sec. 44.200 Unfair immigration-related employment practices.
(a)(1) General. It is unfair immigration-related employment practice
for a person or other entity to knowingly and intentionally discriminate
or to engage in a pattern or practice of knowing and intentional
discrimination against any individual (other than an unauthorized alien)
with respect to the hiring, or recruitment or referral for a fee, of the
individual for employment or the discharging of the individual from
employment--
(i) Because of such individual's national origin; or
(ii) In the case of a protected individual, as defined in
Sec. 44.101(c), because of such individual's citizenship status.
(2) Intimidation or retaliation. It is an unfair immigration-related
employment practice for a person or other entity to intimidate,
threaten, coerce, or retaliate against any individual for the purpose of
interfering with any right or privilege secured under 8 U.S.C. 1324b or
because the individual intends to file or has filed a charge or a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under that section.
(3) Documentation abuses. A person's or other entity's request, for
purposes of satisfying the requirements of 8 U.S.C. 1324a(b), for more
or different documents than are required under such section or refusing
to honor documents tendered that on their face reasonably appear to be
genuine and to relate to the individual shall be treated as an unfair
immigration-related employment practice relating to the hiring of
individuals.
(b) Exceptions. (1) Paragraph (a) of this section shall not apply
to--
(i) A person or other entity that employs three or fewer employees;
(ii) Discrimination because of an individual's national origin if
the discrimination with respect to that person or entity and that
individual is covered under 42 U.S.C. 2000e-2; or
(iii) Discrimination because of citizenship which--
(A) Is otherwise required in order to comply with law, regulation,
or Executive Order; or
(B) Is required by Federal, State, or local government contract; or
(C) Which the Attorney General determines to be essential for an
employer to do business with an agency or department of the Federal,
State, or local government.
(2) Notwithstanding any other provision of this part, it is not an
unfair immigration-related employment practice for a person or other
entity to prefer to hire, recruit or refer for a fee an individual who
is a citizen or national of the United States over another individual
who is an alien if the two individuals are equally qualified.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR 59948,
Nov. 12, 1993]
Subpart C--Enforcement Procedures
Sec. 44.300 Filing a charge.
(a) Who may file. (1) Any individual who believes that he or she has
been adversely affected directly by an unfair immigration-related
employment practice, or any individual or private organization
authorized to act on such person's behalf, may file a charge with the
Special Counsel.
(2) Any officer of the Immigration and Naturalization Service who
believes that an unfair immigration-related employment practice has
occurred or is occurring may file a charge with the Special Counsel.
(b) When to file. Charges shall be filed within 180 days of the
alleged occurrence of an unfair immigration-related employment practice.
For purposes of determining when a charge is timely under this
paragraph, a charge mailed to the Special Counsel shall be deemed filed
on the date it is postmarked.
(c) How to file. Charges may be:
(1) Mailed to: Office of Special Counsel for Immigration-Related
Unfair Employment Practices, P.O. Box 27728, Washington, DC 20038-7728
or
(2) Delivered to the Office of Special Counsel at 1425 New York
Avenue NW., suite 9000, Washington, DC 20005.
[[Page 9]]
(d) No overlap with EEOC complaints. No charge may be filed
respecting an unfair immigration-related employment practice described
in Sec. 44.200(a)(1) if a charge with respect to that practice based on
the same set of facts has been filed with the Equal Employment
Opportunity Commission under title VII of the Civil Rights Act of 1964,
unless the charge is dismissed as being outside the scope of such title.
No charge respecting an employment practice may be filed with the Equal
Employment Opportunity Commission under such title if a charge with
respect to such practice based on the same set of facts has been filed
under this section, unless the charge is dismissed by the Special
Counsel as being outside the scope of this part.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1807-93, 58 FR 59948, Nov. 12, 1993]
Sec. 44.301 Acceptance of charge.
(a) The Special Counsel shall notify the charging party of receipt
of a charge as defined in Sec. 44.101(a) or receipt of a submission
deemed to be a charge under paragraph (c)(2) of this section.
(b) The notice to the charging party shall specify the date on which
the charge was received, state that the charging party, other than an
officer of the Immigration and Naturalization Service, may file a
complaint before an administrative law judge if the Special Counsel does
not do so within 120 days of receipt of the charge, and state the last
date on which such a complaint may be filed.
(c)(1) Subject to paragraph (c)(2) of this section, if a charging
party's submission is inadequate to constitute a charge as defined in
Sec. 44.101(a), the Special Counsel shall notify the charging party that
specified additional information is needed. As of the date that adequate
information is received in writing by the Special Counsel, the charging
party's submission shall be deemed a filed charge and the Special
Counsel shall issue the notices required by paragraphs (b) and (e) of
this section.
(2) In the Special Counsel's discretion, the Special Counsel may
deem a submission to be a filed charge as of the date of its receipt
even though it is inadequate to constitute a charge as defined in
Sec. 44.101(a). The Special Counsel may then obtain the additional
information specified in Sec. 44.101(a) in the course of investigating
the charge.
(d)(1) If the Special Counsel receives a charge after 180 days of
the alleged occurrence of an unfair immigration-related employment
practice, the Special Counsel shall dismiss the charge with prejudice.
(2) Inadequate submissions that are later deemed charges under
paragraph (c)(1) of this section are timely filed as long as--
(i) The original submission is filed within 180 days of the alleged
occurrence of an unfair immigration-related employment practice; and
(ii) Any additional information requested by the Special Counsel
pursuant to paragraph (c)(1) of this section is provided in writing to
the Special Counsel within the 180-day period or within 45 days of the
date on which the charging party received the Special Counsel's
notification pursuant to paragraph (c) of this section, whichever is
later.
(e) The Special Counsel shall serve notice of the charge on the
respondent by certified mail within 10 days of receipt of the charge.
The notice shall include the date, place, and circumstances of the
alleged unfair immigration-related employment practice.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 57 FR 40249, Aug. 14, 1991; 57 FR 30397, July 9, 1992]
Sec. 44.302 Investigation.
(a) The Special Counsel may propound interrogatories, requests for
production of documents, and requests for admissions.
(b) The Special Counsel shall have reasonable access to examine the
evidence of any person or entity being investigated. The respondent
shall permit access by the Special Counsel during normal business hours
to such of its books, records, accounts, and other sources of
information, as the Special Counsel may deem pertinent to ascertain
compliance with this part.
[[Page 10]]
Sec. 44.303 Determination.
(a) Within 120 days of the receipt of a charge, the Special Counsel
shall undertake an investigation of the charge and determine whether a
complaint with respect to the charge will be brought before an
administrative law judge specially designated by the Attorney General to
hear cases under section 102 of the Act.
(b) When the Special Counsel decides not to file a complaint with
respect to such charge before an administrative jaw judge within the
120-day period, or at the end of the 120-day period, the Special Counsel
shall issue letters of determination by certified mail which notify the
charging party and the respondent of the Special Counsel's determination
not to file a complaint.
(c) When the charging party receives a letter of determination
issued pursuant to Sec. 44.303(b), indicating that the Special Counsel
will not file a complaint with respect to such charge, the charging
party, other than an officer of the Immigration and Naturalization
Service, may bring his or her complaint directly before an
administrative law judge within 90 days after his or her receipt of the
Special Counsel's letter of determination. The charging party's
complaint must be filed with an administrative law judge pursuant to the
regulations issued by the Office of the Chief Administrative Hearing
Officer codified at 28 CFR 68.1.
(d) The Special Counsel's failure to file a complaint with respect
to such charge, before an administrative law judge within 120 days shall
not affect the right of the Special Counsel to continue to investigate
the charge or to bring a complaint before an administrative law judge
during the additional 90-day period as defined by paragraph (c) of this
section.
(e) The Special Counsel may seek to intervene at any time in any
proceeding brought by a charging party before an administrative law
judge.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 56 FR 40249, Aug. 14, 1991]
Sec. 44.304 Special Counsel acting on own initiative.
(a) The Special Counsel may, on his or her own initiative, conduct
investigations respecting unfair immigration-related employment
practices when there is reason to believe that a person or entity has
engaged or is engaging in such practices.
(b) The Special Counsel may file a complaint with an administrative
law judge where there is reasonable cause to believe that an unfair
immigration-related employment practice has occurred within 180 days
from the date of the filing of the complaint.
Sec. 44.305 Regional offices.
The Special Counsel, in consultation with the Attorney General,
shall establish such regional offices as may be necessary to carry out
his or her duties.
PART 45--EMPLOYEE RESPONSIBILITIES--Table of Contents
Sec.
45.1 Cross-reference to ethical standards and financial disclosure
regulations.
45.2 Disqualification arising from personal or political relationship.
45.3 Disciplinary proceedings under 18 U.S.C. 207(j).
45.4 Personal use of Government property.
Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 207; 28 U.S.C. 503, 528;
DOJ Order 1735.1.
Sec. 45.1 Cross-reference to ethical standards and financial disclosure regulations.
Employees of the Department of Justice are subject to the executive
branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the
Department of Justice regulations at 5 CFR part 3801 which supplement
the executive branch-wide standards, the executive branch-wide financial
disclosure regulations at 5 CFR part 2634 and the executive branch-wide
employee responsibilities and conduct regulations at 5 CFR part 735.
[61 FR 59815, Nov. 25, 1996]
Sec. 45.2 Disqualification arising from personal or political relationship.
(a) Unless authorized under paragraph (b) of this section, no
employee shall participate in a criminal investigation or prosecution if
he has a personal or political relationship with:
[[Page 11]]
(1) Any person or organization substantially involved in the conduct
that is the subject of the investigation or prosecution; or
(2) Any person or organization which he knows has a specific and
substantial interest that would be directly affected by the outcome of
the investigation or prosecution.
(b) An employee assigned to or otherwise participating in a criminal
investigation or prosecution who believes that his participation may be
prohibited by paragraph (a) of this section shall report the matter and
all attendant facts and circumstances to his supervisor at the level of
section chief or the equivalent or higher. If the supervisor determines
that a personal or political relationship exists between the employee
and a person or organization described in paragraph (a) of this section,
he shall relieve the employee from participation unless he determines
further, in writing, after full consideration of all the facts and
circumstances, that:
(1) The relationship will not have the effect of rendering the
employee's service less than fully impartial and professional; and
(2) The employee's participation would not create an appearance of a
conflict of interest likely to affect the public perception of the
integrity of the investigation or prosecution.
(c) For the purposes of this section:
(1) Political relationship means a close identification with an
elected official, a candidate (whether or not successful) for elective,
public office, a political party, or a campaign organization, arising
from service as a principal adviser thereto or a principal official
thereof; and
(2) Personal relationship means a close and substantial connection
of the type normally viewed as likely to induce partiality. An employee
is presumed to have a personal relationship with his father, mother,
brother, sister, child and spouse. Whether relationships (including
friendships) of an employee to other persons or organizations are
``personal'' must be judged on an individual basis with due regard given
to the subjective opinion of the employee.
(d) This section pertains to agency management and is not intended
to create rights enforceable by private individuals or organizations.
[Order No. 993-83, 48 FR 2319, Jan. 19, 1983. Redesignated at 61 FR
59815, Nov. 25, 1996]
Sec. 45.3 Disciplinary proceedings under 18 U.S.C. 207(j).
(a) Upon a determination by the Assistant Attorney General in charge
of the Criminal Division (Assistant Attorney General), after
investigation, that there is reasonable cause to believe that a former
officer or employee, including a former special Government employee, of
the Department of Justice (former departmental employee) has violated 18
U.S.C. 207 (a), (b) or (c), the Assistant Attorney General shall cause a
copy of written charges of the violation(s) to be served upon such
individual, either personally or by registered mail. The charges shall
be accompanied by a notice to the former departmental employee to show
cause within a specified time of not less than 30 days after receipt of
the notice why he or she should not be prohibited from engaging in
representational activities in relation to matters pending in the
Department of Justice, as authorized by 18 U.S.C. 207(j), or subjected
to other appropriate disciplinary action under that statute. The notice
to show cause shall include:
(1) A statement of allegations, and their basis, sufficiently
detailed to enable the former departmental employee to prepare an
adequate defense,
(2) Notification of the right to a hearing, and
(3) An explanation of the method by which a hearing may be
requested.
(b) If a former departmental employee who submits an answer to the
notice to show cause does not request a hearing or if the Assistant
Attorney General does not receive an answer within five days after the
expiration of the time prescribed by the notice, the Assistant Attorney
General shall forward the record, including the report(s) of
investigation, to the Attorney General. In the case of a failure to
answer, such failure shall constitute a waiver of defense.
(c) Upon receipt of a former departmental employee's request for a
hearing, the Assistant Attorney General shall notify him or her of the
time and
[[Page 12]]
place thereof, giving due regard both to such person's need for an
adequate period to prepare a suitable defense and an expeditious
resolution of allegations that may be damaging to his or her reputation.
(d) The presiding officer at the hearing and any related proceedings
shall be a federal administrative law judge or other federal official
with comparable duties. He shall insure that the former departmental
employee has, among others, the rights:
(1) To self-representation or representation by counsel,
(2) To introduce and examine witnesses and submit physical evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To a transcript or recording of the proceedings, upon request.
(e) The Assistant Attorney General shall designate one or more
officers or employees of the Department of Justice to present the
evidence against the former departmental employee and perform other
functions incident to the proceedings.
(f) A decision adverse to the former departmental employee must be
sustained by substantial evidence that he violated 18 U.S.C. 207 (a),
(b) or (c).
(g) The presiding officer shall issue an initial decision based
exclusively on the transcript of testimony and exhibits, together with
all papers and requests filed in the proceeding, and shall set forth in
the decision findings and conclusions, supported by reasons, on the
material issues of fact and law presented on the record.
(h) Within 30 days after issuance of the initial decision, either
party may appeal to the Attorney General, who in that event shall issue
the final decision based on the record of the proceedings or those
portions thereof cited by the parties to limit the issues. If the final
decision modifies or reverses the initial decision, the Attorney General
shall specify the findings of fact and conclusions of law that vary from
those of the presiding officer.
(i) If a former departmental employee fails to appeal from an
adverse initial decision within the prescribed period of time, the
presiding officer shall forward the record of the proceedings to the
Attorney General.
(j) In the case of a former departmental employee who filed an
answer to the notice to show cause but did not request a hearing, the
Attorney General shall make the final decision on the record submitted
to him by the Assistant Attorney General pursuant to subsection (b) of
this section.
(k) The Attorney General, in a case where:
(1) The defense has been waived,
(2) The former departmental employee has failed to appeal from an
adverse initial decision, or
(3) The Attorney General has issued a final decision that the former
departmental employee violated 18 U.S.C. 207 (a), (b) or (c),
may issue an order:
(i) Prohibiting the former departmental employee from making, on
behalf of any other person (except the United States), any informal or
formal appearance before, or, with the intent to influence, any oral or
written communication to, the Department of Justice on a pending matter
of business for a period not to exceed five years, or
(ii) Prescribing other appropriate disciplinary action.
(l) An order issued under either paragraph (k)(3) (i) or (ii) of
this section may be supplemented by a directive to officers and
employees of the Department of Justice not to engage in conduct in
relation to the former departmental employee that would contravene such
order.
[Order No. 889-80, 45 FR 31717, May 14, 1980. Redesignated at 61 FR
59815, Nov. 25, 1996, and further redesignated at 62 FR 23943, May 2,
1997]
Sec. 45.4 Personal use of Government property.
(a) Employees may use Government property only for official business
or as authorized by the Government. See 5 CFR 2635.101(b)(9),
2635.704(a). The following uses of Government office and library
equipment and facilities are hereby authorized:
(1) Personal uses that involve only negligible expense (such as
electricity, ink, small amounts of paper, and ordinary wear and tear);
and
[[Page 13]]
(2) Limited personal telephone/fax calls to locations within the
office's commuting area, or that are charged to non-Government accounts.
(b) The foregoing authorization does not override any statutes,
rules, or regulations governing the use of specific types of Government
property (e.g. internal Departmental policies governing the use of
electronic mail; and 41 CFR (FPMR) 101-35.201, governing the authorized
use of long-distance telephone services), and may be revoked or limited
at any time by any supervisor or component for any business reason.
(c) In using Government property, employees should be mindful of
their responsibility to protect and conserve such property and to use
official time in an honest effort to perform official duties. See 5 CFR
2635.101(b)(9), 2635.704(a), 2635.705(a).
[62 FR 23943, May 2, 1997]
PART 46--PROTECTION OF HUMAN SUBJECTS--Table of Contents
Sec.
46.101 To what does this policy apply?
46.102 Definitions.
46.103 Assuring compliance with this policy--research conducted or
supported by any Federal Department or Agency.
46.104-46.106 [Reserved]
46.107 IRB Membership.
46.108 IRB functions and operations.
46.109 IRB review of research.
46.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in
approved research.
46.111 Criteria for IRB approval of research.
46.112 Review by institution.
46.113 Suspension or termination of IRB approval of research.
46.114 Cooperative research.
46.115 IRB records.
46.116 General requirements for informed consent.
46.117 Documentation of informed consent.
46.118 Applications and proposals lacking definite plans for
involvement of human subjects.
46.119 Research undertaken without the intention of involving human
subjects.
46.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department
or Agency.
46.121 [Reserved]
46.122 Use of Federal funds.
46.123 Early termination of research support: Evaluation of
applications and proposals.
46.124 Conditions.
Authority: 5 U.S.C. 301; 28 U.S.C. 509-510; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012, 28020, June 18, 1991, unless otherwise noted.
Sec. 46.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by federal
civilian employees or military personnel, except that each department or
agency head may adopt such procedural modifications as may be
appropriate from an administrative standpoint. It also includes research
conducted, supported, or otherwise subject to regulation by the federal
government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in Sec. 46.102(e),
must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in
Sec. 46.102(e) must be reviewed and approved, in compliance with
Sec. 46.101, Sec. 46.102, and Sec. 46.107 through Sec. 46.117 of this
policy, by an institutional review board (IRB) that operates in
accordance with the pertinent requirements of this policy.
(b) Unless otherwise required by department or agency heads,
research activities in which the only involvement of human subjects will
be in one or more of the following categories are exempt from this
policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison
[[Page 14]]
among instructional techniques, curricula, or classroom management
methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and
(ii) Any disclosure of the human subjects' responses outside the
research could reasonably place the subjects at risk of criminal or
civil liability or be damaging to the subjects' financial standing,
employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or
(ii) Federal statute(s) require(s) without exception that the
confidentiality of the personally identifiable information will be
maintained throughout the research and thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs;
(ii) Procedures for obtaining benefits or services under those
programs;
(iii) Possible changes in or alternatives to those programs or
procedures; or
(iv) Possible changes in methods or levels of payment for benefits
or services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies,
(i) If wholesome foods without additives are consumed or
(ii) If a food is consumed that contains a food ingredient at or
below the level and for a use found to be safe, or agricultural chemical
or environmental contaminant at or below the level found to be safe, by
the Food and Drug Administration or approved by the Environmental
Protection Agency or the Food Safety and Inspection Service of the U.S.
Department of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations
which may otherwise be applicable and which provide additional
protections to human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these circumstances, if a
department or
[[Page 15]]
agency head determines that the procedures prescribed by the institution
afford protections that are at least equivalent to those provided in
this policy, the department or agency head may approve the substitution
of the foreign procedures in lieu of the procedural requirements
provided in this policy. Except when otherwise required by statute,
Executive Order, or the department or agency head, notices of these
actions as they occur will be published in the Federal Register or will
be otherwise published as provided in department or agency procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures.\1\
---------------------------------------------------------------------------
\1\ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991]
Sec. 46.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or
judicial or other body authorized under applicable law to consent on
behalf of a prospective subject to the subject's participation in the
procedure(s) involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs may
include research activities.
(e) Research subject to regulation, and similar terms are intended
to encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. Private information includes information about
behavior that occurs in a
[[Page 16]]
context in which an individual can reasonably expect that no observation
or recording is taking place, and information which has been provided
for specific purposes by an individual and which the individual can
reasonably expect will not be made public (for example, a medical
record). Private information must be individually identifiable (i.e.,
the identity of the subject is or may readily be ascertained by the
investigator or associated with the information) in order for obtaining
the information to constitute research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the
research has been reviewed and may be conducted at an institution within
the constraints set forth by the IRB and by other institutional and
federal requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
Sec. 46.103 Assuring compliance with this policy--research conducted or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(b) Departments and agencies will conduct or support research
covered by this policy only if the institution has an assurance approved
as provided in this section, and only if the institution has certified
to the department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of this
policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under Sec. 46.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any employment
or other relationship between each member and the institution; for
example: full-time employee, part-time
[[Page 17]]
employee, member of governing panel or board, stockholder, paid or
unpaid consultant. Changes in IRB membership shall be reported to the
department or agency head, unless in accord with Sec. 46.103(a) of this
policy, the existence of an HHS-approved assurance is accepted. In this
case, change in IRB membership shall be reported to the Office for
Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
Sec. 46.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by Sec. 46.103 of this Policy has been reviewed and
approved by the IRB. Such certification must be submitted with the
application or proposal or by such later date as may be prescribed by
the department or agency to which the application or proposal is
submitted. Under no condition shall research covered by Sec. 46.103 of
the Policy be supported prior to receipt of the certification that the
research has been reviewed and approved by the IRB. Institutions without
an approved assurance covering the research shall certify within 30 days
after receipt of a request for such a certification from the department
or agency, that the application or proposal has been approved by the
IRB. If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under control number
9999-0020)
[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991]
Secs. 46.104-46.106 [Reserved]
Sec. 46.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review
[[Page 18]]
of research activities commonly conducted by the institution. The IRB
shall be sufficiently qualified through the experience and expertise of
its members, and the diversity of the members, including consideration
of race, gender, and cultural backgrounds and sensitivity to such issues
as community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no
IRB consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary
concerns are in scientific areas and at least one member whose primary
concerns are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with
competence in special areas to assist in the review of issues which
require expertise beyond or in addition to that available on the IRB.
These individuals may not vote with the IRB.
Sec. 46.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
Sec. 46.103(b)(4) and, to the extent required by, Sec. 46.103(b)(5).
(b) Except when an expedited review procedure is used (see
Sec. 46.110), review proposed research at convened meetings at which a
majority of the members of the IRB are present, including at least one
member whose primary concerns are in nonscientific areas. In order for
the research to be approved, it shall receive the approval of a majority
of those members present at the meeting.
Sec. 46.109 IRB review of research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with Sec. 46.116. The IRB may
require that information, in addition to that specifically mentioned in
Sec. 46.116, be given to the subjects when in the IRB's judgment the
information would meaningfully add to the protection of the rights and
welfare of subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with Sec. 46.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it shall
include in its written notification a statement of the reasons for its
decision and give the investigator an opportunity to respond in person
or in writing.
[[Page 19]]
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.110 Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.
(a) The Secretary, HHS, has established, and published as a Notice
in the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list will
be amended, as appropriate after consultation with other departments and
agencies, through periodic republication by the Secretary, HHS, in the
Federal Register. A copy of the list is available from the Office for
Protection from Research Risks, National Institutes of Health, HHS,
Bethesda, Maryland 20892.
(b) An IRB may use the expedited review procedure to review either
or both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in Sec. 46.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
Sec. 46.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB
shall determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by Sec. 46.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by Sec. 46.117.
[[Page 20]]
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
Sec. 46.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
Sec. 46.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head, an
institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
Sec. 46.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving research;
and a written summary of the discussion of controverted issues and their
resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is
Sec. 46.103(b)(3).
(6) Written procedures for the IRB in the same detail as described
in Sec. 46.103(b)(4) and Sec. 46.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by Sec. 46.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of the research. All
records shall be accessible for inspection and copying by authorized
representatives of the department or agency at reasonable times and in a
reasonable manner.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or
[[Page 21]]
the subject's legally authorized representative. An investigator shall
seek such consent only under circumstances that provide the prospective
subject or the representative sufficient opportunity to consider whether
or not to participate and that minimize the possibility of coercion or
undue influence. The information that is given to the subject or the
representative shall be in language understandable to the subject or the
representative. No informed consent, whether oral or written, may
include any exculpatory language through which the subject or the
representative is made to waive or appear to waive any of the subject's
legal rights, or releases or appears to release the investigator, the
sponsor, the institution or its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's
participation may be terminated by the investigator without regard to
the subject's consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4) The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include,
or which alters, some or all of the elements of informed consent set
forth above, or waive the requirement to obtain informed consent
provided the IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or
subject to the approval of state or local government officials and is
designed to study, evaluate, or otherwise examine:
(i) Public benefit of service programs;
(ii) Procedures for obtaining benefits or services under those
programs;
[[Page 22]]
(iii) Possible changes in or alternatives to those programs or
procedures; or
(iv) Possible changes in methods or levels of payment for benefits
or services under those programs; and
(2) The research could not practicably be carried out without the
waiver or alteration.
(d) An IRB may approve a consent procedure which does not include,
or which alters, some or all of the elements of informed consent set
forth in this section, or waive the requirements to obtain informed
consent provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights
and welfare of the subjects;
(3) The research could not practicably be carried out without the
waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with
additional pertinent information after participation.
(e) The informed consent requirements in this policy are not
intended to preempt any applicable federal, state, or local laws which
require additional information to be disclosed in order for informed
consent to be legally effective.
(f) Nothing in this policy is intended to limit the authority of a
physician to provide emergency medical care, to the extent the physician
is permitted to do so under applicable federal, state, or local law.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of
informed consent required by Sec. 46.116. This form may be read to the
subject or the subject's legally authorized representative, but in any
event, the investigator shall give either the subject or the
representative adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by Sec. 46.116 have been presented orally
to the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain
a signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each subject will be asked
whether the subject wants documentation linking the subject with the
research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to
subjects and involves no procedures for which written consent is
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB may
require the investigator to provide subjects with a written statement
regarding the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.118 Applications and proposals lacking definite plans for involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or
[[Page 23]]
agencies with the knowledge that subjects may be involved within the
period of support, but definite plans would not normally be set forth in
the application or proposal. These include activities such as
institutional type grants when selection of specific projects is the
institution's responsibility; research training grants in which the
activities involving subjects remain to be selected; and projects in
which human subjects' involvement will depend upon completion of
instruments, prior animal studies, or purification of compounds. These
applications need not be reviewed by an IRB before an award may be made.
However, except for research exempted or waived under Sec. 46.101 (b) or
(i), no human subjects may be involved in any project supported by these
awards until the project has been reviewed and approved by the IRB, as
provided in this policy, and certification submitted, by the
institution, to the department or agency.
Sec. 46.119 Research undertaken without the intention of involving human subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
Sec. 46.120 Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.
(a) The department or agency head will evaluate all applications and
proposals involving human subjects submitted to the department or agency
through such officers and employees of the department or agency and such
experts and consultants as the department or agency head determines to
be appropriate. This evaluation will take into consideration the risks
to the subjects, the adequacy of protection against these risks, the
potential benefits of the research to the subjects and others, and the
importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head
may approve or disapprove the application or proposal, or enter into
negotiations to develop an approvable one.
[56 FR 28012, 28020, June 18, 1991, as amended at 61 FR 33658, June 28,
1996]
Sec. 46.121 [Reserved]
Sec. 46.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
Sec. 46.123 Early termination of research support: Evaluation of applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications
or proposals covered by this policy the department or agency head may
take into account, in addition to all other eligibility requirements and
program criteria, factors such as whether the applicant has been subject
to a termination or suspension under paragraph (a) of this section and
whether the applicant or the person or persons who would direct or has
have directed the scientific and technical aspects of an activity has
have, in the judgment of the department or agency head, materially
failed to discharge responsibility for the protection of the rights and
welfare of human subjects (whether or not the research was subject to
federal regulation).
Sec. 46.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment
[[Page 24]]
of the department or agency head additional conditions are necessary for
the protection of human subjects.
PART 47--RIGHT TO FINANCIAL PRIVACY ACT--Table of Contents
Sec.
47.1 Definitions.
47.2 Purpose.
47.3 Authorization.
47.4 Written request.
47.5 Certification.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; section 1108 of the
Right to Financial Privacy Act of 1978, 12 U.S.C. 3408.
Source: Order No. 822-79, 44 FR 14554, Mar. 13, 1979, unless
otherwise noted.
Sec. 47.1 Definitions.
The terms used in this part shall have the same meaning as similar
terms used in the Right to Financial Privacy Act of 1978. Departmental
unit means any office, division, board, bureau, or other component of
the Department of Justice which is authorized to conduct law enforcement
inquiries. Act means the Right to Financial Privacy Act of 1978.
Sec. 47.2 Purpose.
The purpose of these regulations is to authorize Departmental units
to request financial records from a financial institution pursuant to
the formal written request procedure authorized by section 1108 of the
Act, and to set forth the conditions under which such requests may be
made.
Sec. 47.3 Authorization.
Departmental units are authorized to request financial records of
any customer from a financial institution pursuant to a formal written
request under the Act only if:
(a) No administrative summons or subpoena authority reasonably
appears to be available to the Departmental unit to obtain financial
records for the purpose for which the records are sought;
(b) There is reason to believe that the records sought are relevant
to a legitimate law enforcement inquiry and will further that inquiry;
(c) The request is issued by a supervisory official of a rank
designated by the head of the requesting Departmental unit. The
officials so designated shall not delegate this authority to others;
(d) The request adheres to the requirements set forth in Sec. 47.4;
and
(e) The notice requirements set forth in section 1108(4) of the Act,
or the requirements pertaining to delay of notice in section 1109 of the
Act, are satisfied, except in situations (e.g., section 1113(g)) where
no notice is required.
Sec. 47.4 Written request.
(a) The formal written request shall be in the form of a letter or
memorandum to an appropriate official of the financial institution from
which financial records are requested. The request shall be signed by
the issuing official, and shall set forth that official's name, title,
business address and business phone number. The request shall also
contain the following:
(1) The identity of the customer or customers to whom the records
pertain;
(2) A reasonable description of the records sought; and
(3) Such additional information as may be appropriate--e.g., the
date on which the opportunity for the customer to challenge the formal
written request will expire, the date on which the requesting
Departmental unit expects to present a certificate of compliance with
the applicable provisions of the Act, the name and title of the
individual (if known) to whom disclosure is to be made.
(b) In cases where customer notice is delayed by court order, a copy
of the court order shall be attached to the formal written request.
Sec. 47.5 Certification.
Prior to obtaining the requested records pursuant to a formal
written request, an official of a rank designated by the head of the
requesting Departmental unit shall certify in writing to the financial
institution that the Departmental unit has complied with the applicable
provisions of the Act.
[[Page 25]]
PART 48--NEWSPAPER PRESERVATION ACT--Table of Contents
Sec.
48.1 Purpose.
48.2 Definitions.
48.3 Procedure for filing all documents.
48.4 Application for approval of joint newspaper operating arrangement
entered into after July 24, 1970.
48.5 Requests that information not be made public.
48.6 Public notice.
48.7 Report of the Assistant Attorney General in Charge of the
Antitrust Division.
48.8 Written comments and requests for a hearing.
48.9 Extensions of time.
48.10 Hearings.
48.11 Intervention in hearings.
48.12 Ex parte communications.
48.13 Record for decision.
48.14 Decision by the Attorney General.
48.15 Temporary approval.
48.16 Procedure for filing of terms of a renewal or amendment to an
existing joint newspaper operating arrangement.
Authority: 28 U.S.C. 509, 510; (5 U.S.C. 301); Newspaper
Preservation Act, 84 Stat. 466 (15 U.S.C. 1801 et seq.).
Source: Order No. 558-73, 39 FR 7, Jan. 2, 1974, unless otherwise
noted.
Sec. 48.1 Purpose.
These regulations set forth the procedure by which application may
be made to the Attorney General for his approval of joint newspaper
operating arrangements entered into after July 24, 1970, and for the
filing with the Department of Justice of the terms of a renewal or
amendment of existing joint newspaper operating arrangements, as
required by the Newspaper Preservation Act, Pub. L. 91-353, 84 Stat.
466, 15 U.S.C. 1801 et seq. The Newspaper Preservation Act does not
require that all joint newspaper operating arrangements obtain the prior
written consent of the Attorney General. The Act and these regulations
provide a method for newspapers to obtain the benefit of a limited
exemption from the antitrust laws if they desire to do so. Joint
newspaper operating arrangements that are put into effect without the
prior written consent of the Attorney General remain fully subject to
the antitrust laws.
Sec. 48.2 Definitions.
(a) The term Attorney General means the Attorney General of the
United States or his delegate, other than the Assistant Attorney General
in charge of the Antitrust Division or other employee in the Antitrust
Division.
(b) The term Assistant Attorney General in charge of the Antitrust
Division means the Assistant Attorney General in charge of the Antitrust
Division or his delegate.
(c) The term Assistant Attorney General for Administration means the
Assistant Attorney General for Administration or his delegate.
(d) The term existing arrangement means any joint newspaper
operating arrangement entered into before July 24, 1970.
(e) The term joint newspaper operating arrangement means any
contract, agreement, joint venture (whether or not incorporated), or
other arrangement entered into between two or more newspaper owners for
the publication of two or more newspaper publications, pursuant to which
joint or common production facilities are established or operated and
joint or unified action is taken or agreed to be taken with respect to
any of the following: Printing; time, method, and field of publication;
allocation of production facilities; distribution; advertising
solicitation; circulation solicitation; business department;
establishment of advertising rates; establishment of circulation rates
and revenue distribution: Provided, That there is no merger,
combination, or amalgamation of editorial or reportorial staffs, and
that editorial policies be independently determined.
(f) The term newspaper means a publication produced on newsprint
paper which is published in one or more issues weekly (including as one
publication any daily newspaper and any Sunday newspaper published by
the same owner in the same city, community, or metropolitan area), and
in which a substantial portion of the content is devoted to the
dissemination of news and editorial opinion.
(g) The term party means any individual, and any partnership,
corporation, association, or other legal entity.
[[Page 26]]
(h) The term person means any individual, and any partnership,
corporation, association, or other legal entity.
Sec. 48.3 Procedure for filing all documents.
All filings required by these regulations shall be accomplished by:
(a) Mailing or delivering five copies of each document (two copies
in the case of documents filed by the Assistant Attorney General in
charge of the Antitrust Division) to the Assistant Attorney General for
Administration, Department of Justice, Washington, DC 20530. He shall
place one copy in a numbered public docket; one copy in a duplicate of
this file for the use of officials with decisional responsibility; and
(except in the case of documents filed by the Assistant Attorney General
in charge of the Antitrust Division) shall forward three copies to the
Assistant Attorney General in charge of the Antitrust Division; except
that documents subject to nondisclosure orders under Sec. 48.5 shall be
held under seal and disclosed only in accordance with the provisions of
that section; and
(b) Mailing or delivering one copy of each document filed after a
hearing has been ordered to each party to the proceedings, along with
the name and address of the party filing the document or its counsel,
and filing in the manner provided in paragraph (a) of this section a
certificate that service has been made in accordance herewith.
Sec. 48.4 Application for approval of joint newspaper operating arrangement entered into after July 24, 1970.
(a) Persons desiring to obtain the approval of the Attorney General
of a joint newspaper operating arrangement after July 24, 1970, shall
file an application in writing setting forth a short, plain statement of
the reasons why the applicants believe that approval should be granted.
(b) With the request, the applicants shall also file copies of the
following:
(1) The proposed joint newspaper operating agreement;
(2) Any prior, existing or proposed agreement between any of the
newspapers involved, or a statement of any such agreements as have not
been reduced to writing;
(3) With respect to each newspaper, for the 5-year period prior to
the date of the application,
(i) Annual statements of profit and loss;
(ii) Annual statements of assets and liabilities;
(iii) Reports of the Audit Bureau of Circulation, or statements
containing equivalent information;
(iv) Annual advertising lineage records;
(v) Rate cards;
(4) If any amount stated in paragraph (b)(3)(i) or (ii) of this
section represents an allocation of revenues, expenses, assets or
liabilities between the newspaper and any parent, subsidiary, division
or affiliate, the financial statements shall be accompanied by a full
explanation of the method by which each such amount has been allocated.
(5) If any of the newspapers involved purchased or sold goods or
services from or to any parent, subsidiary, division or affiliate at any
time during the five years preceding the date of application, a
statement shall be submitted identifying such products or services, the
entity from which they were purchased or to which they were sold, and
the amount paid for each product or service during each of the five
years.
(6) Any other information which the applicants believe relevant to
their request for approval.
(c) A copy of the application and supporting data shall be open to
public inspection during normal business hours at the main office of
each of the newspapers involved in the arrangement, except to the extent
permitted by nondisclosure orders under Sec. 48.5; except that materials
for which nondisclosure has been requested under Sec. 48.5 need not be
made available for inspection before the request has been decided.
Sec. 48.5 Requests that information not be made public.
(a) Any applicant may file a request that commercial or financial
data required to be filed and made public under these regulations, which
is privileged and confidential within the meaning of 5 U.S.C. 552(b), be
withheld from public disclosure. Each such request shall be accompanied
by a statement of the reasons why nondisclosure
[[Page 27]]
is required. The request shall be determined by the Attorney General who
shall consider the extent to which (1) disclosure may cause substantial
harm to the applicant submitting the information, and (2) nondisclosure
may impair the ability of persons who may be adversely affected by the
proposed arrangement to present their views in proceedings under these
regulations. Information relevant to the financial conditions of the
newspaper or newspapers represented to be failing ordinarily shall not
be ordered withheld from public disclosure.
(b) Upon ordering that any documents be withheld from public
disclosure, the Attorney General shall file a statement setting forth
the subject matter of the documents withheld. Any person desiring to
inspect the documents may file a request for inspection, identifying
with as much particularity as possible the materials to be inspected and
setting forth the reasons for inspection and the facts in support
thereof. The request for disclosure shall be considered by the Attorney
General, who shall give the applicant that submitted the documents an
opportunity to be heard in opposition to disclosure. Orders granting
inspection shall specify the terms and conditions thereof, including
restrictions on disclosure to third parties.
(c) Documents ordered withheld from public disclosure shall be made
available to the Assistant Attorney General in charge of the Antitrust
Division. If a hearing is held, the documents may be offered as evidence
by any party to whom they have been disclosed. The administrative law
judge may restrict further disclosure as he deems appropriate, taking
into account the considerations set forth in paragraph (a) of this
section.
(d) Requests for access to materials within the scope of this
section that may be filed after the conclusion of proceedings under
these regulations shall be processed in accordance with the Department's
regulations under 5 U.S.C. 552 (part 16 of this chapter).
Sec. 48.6 Public notice.
(a) Upon the filing of the documents required by Sec. 48.4, the
applicants shall file, and publish on the front pages of each of the
newspapers for which application is made, daily and Sunday (if a Sunday
edition is published) for a period of one week:
(1) Notice that a request for approval of a joint newspaper
operating arrangement has been filed with the Attorney General;
(2) Notice that copies of the proposed arrangement, as well as all
other documents submitted pursuant to Sec. 48.4, are available for
public inspection at the Department of Justice and at the main offices
of the newspapers involved; and
(3) Notice that any person may file written comments or a request
for a hearing with the Department of Justice, in accordance with the
requirements of Sec. 48.3.
(b) Upon the filing of the notice required in paragraph (a) of this
section, the Assistant Attorney General for Administration shall cause
notice to be published in the Federal Register, and shall cause to be
issued a press release setting forth the information contained therein.
(c) If a hearing is scheduled pursuant to Sec. 48.10, the applicants
shall publish the time, date, place and purpose of such hearing on their
respective front pages at least three times within the 2-week period
after the hearing has been scheduled (two times if the applicants are
weekly newspapers), and for the 3 days preceding such hearing (one day
during the week preceding the hearing if the applicants are weekly
newspapers).
(d) The applicants shall file copies of each day's newspaper in
which the notice required in paragraph (a) or (c) of this section has
appeared.
Sec. 48.7 Report of the Assistant Attorney General in Charge of the Antitrust Division.
(a) The Assistant Attorney General in charge of the Antitrust
Division shall, not later than 30 days from the publication in the
Federal Register of the notice required by Sec. 48.6, submit to the
Attorney General a report on any application filed pursuant to
Sec. 48.4. In preparing such report he may require submission by the
applicants of any further information which may be relevant to a
determination of whether
[[Page 28]]
approval of the proposed arrangement is warranted under the Act.
(b) In his report he may state (1) that the proposed arrangement
should be approved or disapproved without a hearing; or (2) that a
hearing should be held to resolve material issues of fact.
(c) The report shall be filed, and a copy shall be sent to the
applicants. Upon the filing of the report, the Assistant Attorney
General for Administration shall cause to be issued a press release
setting forth the substance thereof.
(d) Any person may, within 30 days after filing of the report, file
a reply to the report for the consideration of the Attorney General.
Sec. 48.8 Written comments and requests for a hearing.
(a) Any person who believes that the Attorney General should or
should not approve a proposed arrangement, may at any time after filing
of the application until 30 days after publication in the Federal
Register of the notice required in Sec. 48.6,
(1) File written comments stating the reasons why approval should or
should not be granted, and/or
(2) File a request that a hearing be held on the application. A
request for a hearing shall set forth the issues of fact to be
determined and the reasons that a hearing is required to determine them.
(b) Any person may within 30 days after the filing of any comment or
request pursuant to paragraph (a) of this section, file a reply for the
consideration of the Attorney General.
(c) After the expiration of the time for filing of replies in
accordance with Sec. 48.7 and this section the Attorney General shall
either approve or deny approval of the arrangement, in accordance with
Sec. 48.14, or shall order that a hearing be held.
Sec. 48.9 Extensions of time.
Any of the time periods established by these Regulations may be
extended for good cause, upon timely application to the Attorney
General, or to the administrative law judge if one has been appointed.
Sec. 48.10 Hearings.
(a) Upon the issuance by the Attorney General of an order for a
hearing, the Assistant Attorney General for Administration shall appoint
an administrative law judge in accordance with section 11 of the
Administrative Procedure Act, 5 U.S.C. 3105. The administrative law
judge shall:
(1) Set a date, time and place for the hearing convenient for all
parties involved. The date set shall be as soon as practicable, allowing
time for publication of the notice required in Sec. 48.6 and for a
reasonable period of discovery as provided in this section. In setting a
place for the hearing, preference shall be given to the community in
which the applicants' newspapers operate.
(2) Mail notice of the hearing to the parties, to each person who
filed written comments or a request for a hearing, and to any other
person he believes may have an interest in the proceeding.
(3) Permit discovery by any party, as provided in the Federal Rules
of Civil Procedure; except that he may place such limits as he deems
reasonable on the time and manner of taking discovery in order to avoid
unnecessary delays in the proceedings.
(4) Conduct a hearing in accordance with section 7 of the
Administrative Procedure Act, 5 U.S.C. 556. At such hearing, the burden
of proving that the proposed arrangement meets the requirements of the
Newspaper Preservation Act will be on the proponents of the arrangement.
The rules of evidence which govern civil proceedings in matters not
involving trial by jury in the courts of the United States shall apply,
but these rules may be relaxed if the ends of justice will be better
served in so doing: Provided, that the introduction of irrelevant,
immaterial, or unduly repetitious evidence is avoided. Only parties to
the proceedings may present evidence, or cross-examine witnesses.
(b) The applicants and the Assistant Attorney General in charge of
the Antitrust Division shall be parties in any hearing held hereunder.
Other persons may intervene as parties as provided in Sec. 48.11.
(c) The Assistant Attorney General for Administration shall procure
the
[[Page 29]]
services of a stenographic reporter. One copy of the transcript produced
shall be placed in the public docket. Additional copies may be purchased
from the reporter or, if the arrangement with the reporter permits, from
the Department of Justice at its cost.
(d) Following the hearing the administrative law judge shall render
to the Attorney General his recommendation that the proposed arrangement
be approved or denied approval in accordance with the standards of the
Act. The recommendation shall be in writing, shall be based solely on
the hearing record, and shall include a statement of the administrative
law judge's findings and conclusions, and the reasons or basis therefor,
on all material issues of fact, law or discretion presented on the
record. Copies of the recommendation shall be filed and sent to each
party.
(e) Within 30 days of the date the administrative law judge files
his recommendation, any party may file written exceptions to the
recommendation for consideration by the Attorney General. Parties shall
then have a further 15 days in which to file responses to any such
exceptions.
Sec. 48.11 Intervention in hearings.
(a) Any person may intervene as a party in a hearing held under
these regulations if (1) he has an interest which may be affected by the
Attorney General's decision, and (2) it appears that his interest may
not be adequately represented by existing parties.
(b) Application for intervention shall be made by filing in
accordance with Sec. 48.3(a) and (b), within 20 days after a hearing has
been ordered, a statement of the nature of the applicant's interest, the
way in which it may be affected, the facts and reasons in support
thereof and the reasons why the applicant's interest may not be
adequately represented by existing parties.
(c) Existing parties may file a statement in opposition to or in
support of an application to intervene within 10 days of the filing of
the application.
(d) Applications for intervention shall be decided by the Attorney
General.
(e) Intervenors shall have the same rights as existing parties in
connection with any hearing held under these regulations.
Sec. 48.12 Ex parte communications.
No person shall communicate on any matter related to these
proceedings with the administrative law judge, the Attorney General or
anyone having decisional responsibility, except as provided in these
regulations.
Sec. 48.13 Record for decision.
(a) The record on which the Attorney General shall base his decision
in the event a hearing is not held shall be comprised of all material
filed in accordance with these regulations, including any material that
has been ordered withheld from public disclosure.
(b) If a hearing is held, the record on which the Attorney General
shall base his decision shall consist exclusively of the hearing record,
the examiner's recommendation and any exceptions and responses filed
with respect thereto.
Sec. 48.14 Decision by the Attorney General.
(a) The Attorney General shall decide, on the basis of the record as
constituted in accordance with Sec. 48.13, whether approval is warranted
under the Act. In rendering his decision, the Attorney General shall
file therewith a statement of his findings and conclusions and the
reasons therefor, or where a hearing has been held, he may adopt the
findings and conclusions of the administrative law judge.
(b) Approval of a proposed arrangement by the Attorney General shall
not become effective until the tenth day after the filing of the
Attorney General's decision as provided in this section.
Sec. 48.15 Temporary approval.
(a) If the Attorney General concludes that one or more of the
newspapers involved would otherwise fail before the procedures under
these regulations can be completed, he may grant temporary approval of
whatever form of joint or unified action would be lawful under the Act
if performed as part of an approved joint newspaper operating
arrangement, and that he concludes is:
[[Page 30]]
(1) Essential to the survival of the newspaper or newspapers; and (2)
most likely capable of being terminated without impairment to the
ability of both newspapers to resume independent operation should final
approval eventually be denied.
(b) Upon the filing of a request for temporary approval, the
applicants shall publish notice of such application on the front pages
of their respective newspapers for a period of three consecutive days in
the case of daily newspapers or in the next issue in the case of weekly
newspapers. The notice shall state:
(1) That a request for temporary approval of a joint operating
arrangement or other joint or unified action has been made to the
Attorney General; and
(2) That anyone wishing to protest the application for temporary
approval may do so by delivering a statement of protest or telephoning
his views to an employee of the Department of Justice, whose name,
address and telephone number shall be designated by the Department upon
receipt of the application for temporary approval, and that such
protests must be received by the Department within five days of the
first publication of notice in accordance with paragraph (a) of this
section.
(c) The notice required by this section shall be in addition to the
notice required by Sec. 48.6.
(d) Such temporary approval may be granted without hearing at any
time following the expiration of the period provided for protests, but
shall create no presumption that final approval will be granted.
Sec. 48.16 Procedure for filing of terms of a renewal or amendment to an existing joint newspaper operating arrangement.
Within 30 days after a renewal of or an amendment to the terms of an
existing arrangement, the parties to said renewal or amendment shall
file five copies of the agreement of renewal or amendment. In the case
of an amendment, the parties shall also file copies of the amended
portion of the original agreement.
[Order No. 558-73, 39 FR 7, Jan. 2, 1974, as amended by Order No. 568-
74, 39 FR 18646, May 29, 1974]
PART 49--ANTITRUST CIVIL PROCESS ACT--Table of Contents
Sec.
49.1 Purpose.
49.2 Duties of custodian.
49.3 Examination of the material.
49.4 Deputy custodians.
Authority: 15 U.S.C. 1313.
Source: At 60 FR 44277, Aug. 25, 1995, unless otherwise noted.
Sec. 49.1 Purpose.
The regulations in this part are issued in compliance with the
requirements imposed by the provisions of section 4(c) of the Antitrust
Civil Process Act, as amended (15 U.S.C. 1313(c)). The terms used in
this part shall be deemed to have the same meaning as similar terms used
in that Act.
Sec. 49.2 Duties of custodian.
(a) Upon taking physical possession of documentary material, answers
to interrogatories, or transcripts of oral testimony delivered pursuant
to a civil investigative demand issued under section 3(a) of the Act,
the antitrust document custodian designated pursuant to section 4(a) of
the Act (subject to the general supervision of the Assistant Attorney
General in charge of the Antitrust Division), shall, unless otherwise
directed by a court of competent jurisdiction, select, from time to
time, from among such documentary material, answers to interrogatories
or transcripts of oral testimony, the documentary material, answers to
interrogatories or transcripts of oral testimony the copying of which
the custodian deems necessary or appropriate for the official use of the
Department of Justice, and shall determine, from time to time, the
number of copies of any such documentary material, answers to
interrogatories or transcripts of oral testimony that are to be
reproduced pursuant to the Act.
[[Page 31]]
(b) Copies of documentary material, answers to interrogatories, or
transcripts of oral testimony in the physical possession of the
custodian pursuant to a civil investigative demand may be reproduced by
or under the authority of any officer, employee, or agent of the
Department of Justice designated by the custodian. Documentary material
for which a civil investigative demand has been issued but which is
still in the physical possession of the person upon whom the demand has
been served may, by agreement between such person and the custodian, be
reproduced by such person, in which case the custodian may require that
the copies so produced be duly certified as true copies of the original
of the material involved.
[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]
Sec. 49.3 Examination of the material.
Documentary material, answers to interrogatories, or transcripts of
oral testimony produced pursuant to the Act, while in the custody of the
custodian, shall be for the official use of officers, employees, and
agents of the Department of Justice in accordance with the Act. Upon
reasonable notice to the custodian--
(a) Such documentary material or answers to interrogatories shall be
made available for examination by the person who produced such
documentary material or answers to interrogatories, or by any duly
authorized representative of such person; and
(b) Such transcripts of oral testimony shall be made available for
examination by the person who produced such testimony, or by such
person's counsel, during regular office hours established for the
Department of Justice. Examination of such documentary material, answers
to interrogatories, or transcripts of oral testimony at other times may
be authorized by the Assistant Attorney General or the custodian.
[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]
Sec. 49.4 Deputy custodians.
Deputy custodians may perform such of the duties assigned to the
custodian as may be authorized or required by the Assistant Attorney
General.
PART 50--STATEMENTS OF POLICY--Table of Contents
Sec.
50.2 Release of information by personnel of the Department of Justice
relating to criminal and civil proceedings.
50.3 Guidelines for the enforcement of title VI, Civil Rights Act of
1964.
50.5 Notification of Consular Officers upon the arrest of foreign
nationals.
50.6 Antitrust Division business review procedure.
50.7 Consent judgments in actions to enjoin discharges of pollutants.
50.8 [Reserved]
50.9 Policy with regard to open judicial proceedings.
50.10 Policy with regard to the issuance of subpoenas to members of the
news media, subpoenas for telephone toll records of members of
the news media, and the interrogation, indictment, or arrest
of, members of the news media.
50.12 Exchange of FBI identification records.
50.14 Guidelines on employee selection procedures.
50.15 Representation of Federal officials and employees by Department
of Justice attorneys or by private counsel furnished by the
Department in civil, criminal, and congressional proceedings
in which Federal employees are sued, subpoenaed, or charged in
their individual capacities.
50.16 Representation of Federal employees by private counsel at Federal
expense.
50.17 Ex parte communications in informal rulemaking proceedings.
50.18 [Reserved]
50.19 Procedures to be followed by government attorneys prior to filing
recusal or disqualification motions.
50.20 Participation by the United States in court-annexed arbitration.
50.21 Procedures governing the destruction of contraband drug evidence
in the custody of Federal law enforcement authorities.
50.22 Young American Medals Program.
50.23 Policy against entering into final settlement agreements or
consent decree that are subject to confidentiality provisions
and against seeking or concurring in the sealing of such
documents.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1921 et
seq., 1973c.
[[Page 32]]
Sec. 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings.
(a) General. (1) The availability to news media of information in
criminal and civil cases is a matter which has become increasingly a
subject of concern in the administration of justice. The purpose of this
statement is to formulate specific guidelines for the release of such
information by personnel of the Department of Justice.
(2) While the release of information for the purpose of influencing
a trial is, of course, always improper, there are valid reasons for
making available to the public information about the administration of
the law. The task of striking a fair balance between the protection of
individuals accused of crime or involved in civil proceedings with the
Government and public understandings of the problems of controlling
crime and administering government depends largely on the exercise of
sound judgment by those responsible for administering the law and by
representatives of the press and other media.
(3) Inasmuch as the Department of Justice has generally fulfilled
its responsibilities with awareness and understanding of the competing
needs in this area, this statement, to a considerable extent, reflects
and formalizes the standards to which representatives of the Department
have adhered in the past. Nonetheless, it will be helpful in ensuring
uniformity of practice to set forth the following guidelines for all
personnel of the Department of Justice.
(4) Because of the difficulty and importance of the questions they
raise, it is felt that some portions of the matters covered by this
statement, such as the authorization to make available Federal
conviction records and a description of items seized at the time of
arrest, should be the subject of continuing review and consideration by
the Department on the basis of experience and suggestions from those
within and outside the Department.
(b) Guidelines to criminal actions. (1) These guidelines shall apply
to the release of information to news media from the time a person is
the subject of a criminal investigation until any proceeding resulting
from such an investigation has been terminated by trial or otherwise.
(2) At no time shall personnel of the Department of Justice furnish
any statement or information for the purpose of influencing the outcome
of a defendant's trial, nor shall personnel of the Department furnish
any statement or information, which could reasonably be expected to be
disseminated by means of public communication, if such a statement or
information may reasonably be expected to influence the outcome of a
pending or future trial.
(3) Personnel of the Department of Justice, subject to specific
limitations imposed by law or court rule or order, may make public the
following information:
(i) The defendant's name, age, residence, employment, marital
status, and similar background information.
(ii) The substance or text of the charge, such as a complaint,
indictment, or information.
(iii) The identity of the investigating and/or arresting agency and
the length or scope of an investigation.
(iv) The circumstances immediately surrounding an arrest, including
the time and place of arrest, resistance, pursuit, possession and use of
weapons, and a description of physical items seized at the time of
arrest.
Disclosures should include only incontrovertible, factual matters, and
should not include subjective observations. In addition, where
background information or information relating to the circumstances of
an arrest or investigation would be highly prejudicial or where the
release thereof would serve no law enforcement function, such
information should not be made public.
(4) Personnel of the Department shall not disseminate any
information concerning a defendant's prior criminal record.
(5) Because of the particular danger of prejudice resulting from
statements in the period approaching and during trial, they ought
strenuously to be avoided during that period. Any such statement or
release shall be made only on the infrequent occasion when circumstances
absolutely demand a
[[Page 33]]
disclosure of information and shall include only information which is
clearly not prejudicial.
(6) The release of certain types of information generally tends to
create dangers of prejudice without serving a significant law
enforcement function. Therefore, personnel of the Department should
refrain from making available the following:
(i) Observations about a defendant's character.
(ii) Statements, admissions, confessions, or alibis attributable to
a defendant, or the refusal or failure of the accused to make a
statement.
(iii) Reference to investigative procedures such as fingerprints,
polygraph examinations, ballistic tests, or laboratory tests, or to the
refusal by the defendant to submit to such tests or examinations.
(iv) Statements concerning the identity, testimony, or credibility
of prospective witnesses.
(v) Statements concerning evidence or argument in the case, whether
or not it is anticipated that such evidence or argument will be used at
trial.
(vi) Any opinion as to the accused's guilt, or the possibility of a
plea of guilty to the offense charged, or the possibility of a plea to a
lesser offense.
(7) Personnel of the Department of Justice should take no action to
encourage or assist news media in photographing or televising a
defendant or accused person being held or transported in Federal
custody. Departmental representatives should not make available
photographs of a defendant unless a law enforcement function is served
thereby.
(8) This statement of policy is not intended to restrict the release
of information concerning a defendant who is a fugitive from justice.
(9) Since the purpose of this statement is to set forth generally
applicable guidelines, there will, of course, be situations in which it
will limit the release of information which would not be prejudicial
under the particular circumstances. If a representative of the
Department believes that in the interest of the fair administration of
justice and the law enforcement process information beyond these
guidelines should be released, in a particular case, he shall request
the permission of the Attorney General or the Deputy Attorney General to
do so.
(c) Guidelines to civil actions. Personnel of the Department of
Justice associated with a civil action shall not during its
investigation or litigation make or participate in making an
extrajudicial statement, other than a quotation from or reference to
public records, which a reasonable person would expect to be
disseminated by means of public communication if there is a reasonable
likelihood that such dissemination will interfere with a fair trial and
which relates to:
(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal records of a party,
witness, or prospective witness.
(3) The performance or results of any examinations or tests or the
refusal or failure of a party to submit to such.
(4) An opinion as to the merits of the claims or defenses of a
party, except as required by law or administrative rule.
(5) Any other matter reasonably likely to interfere with a fair
trial of the action.
[Order No. 469-71, 36 FR 21028, Nov. 3, 1971, as amended by Order No.
602-75, 40 FR 22119, May 20, 1975]
Sec. 50.3 Guidelines for the enforcement of title VI, Civil Rights Act of 1964.
(a) Where the heads of agencies having responsibilities under title
VI of the Civil Rights Act of 1964 conclude there is noncompliance with
regulations issued under that title, several alternative courses of
action are open. In each case, the objective should be to secure prompt
and full compliance so that needed Federal assistance may commence or
continue.
(b) Primary responsibility for prompt and vigorous enforcement of
title VI rests with the head of each department and agency administering
programs of Federal financial assistance. Title VI itself and relevant
Presidential directives preserve in each agency the authority and the
duty to select, from among the available sanctions, the methods best
designed to secure compliance in individual cases. The decision to
terminate or refuse assistance
[[Page 34]]
is to be made by the agency head or his designated representative.
(c) This statement is intended to provide procedural guidance to the
responsible department and agency officials in exercising their
statutory discretion and in selecting, for each noncompliance situation,
a course of action that fully conforms to the letter and spirit of
section 602 of the Act and to the implementing regulations promulgated
thereunder.
I. Alternative Courses of Action
a. ultimate sanctions
The ultimate sanctions under title VI are the refusal to grant an
application for assistance and the termination of assistance being
rendered. Before these sanctions may be invoked, the Act requires
completion of the procedures called for by section 602. That section
require the department or agency concerned (1) to determine that
compliance cannot be secured by voluntary means, (2) to consider
alternative courses of action consistent with achievement of the
objectives of the statutes authorizing the particular financial
assistance, (3) to afford the applicant an opportunity for a hearing,
and (4) to complete the other procedural steps outlined in section 602,
including notification to the appropriate committees of the Congress.
In some instances, as outlined below, it is legally permissible
temporarily to defer action on an application for assistance, pending
initiation and completion of section 602 procedures--including attempts
to secure voluntary compliance with title VI. Normally, this course of
action is appropriate only with respect to applications for
noncontinuing assistance or initial applications for programs of
continuing assistance. It is not available where Federal financial
assistance is due and payable pursuant to a previously approved
application.
Whenever action upon an application is deferred pending the outcome
of a hearing and subsequent section 602 procedures, the efforts to
secure voluntary compliance and the hearing and such subsequent
procedures, if found necessary, should be conducted without delay and
completed as soon as possible.
b. available alternatives
1. Court Enforcement
Compliance with the nondiscrimination mandate of title VI may often
be obtained more promptly by appropriate court action than by hearings
and termination of assistance. Possibilities of judicial enforcement
include (1) a suit to obtain specific enforcement of assurances,
covenants running with federally provided property, statements or
compliance or desegregation plans filed pursuant to agency regulations,
(2) a suit to enforce compliance with other titles of the 1964 Act,
other Civil Rights Acts, or constitutional or statutory provisions
requiring nondiscrimination, and (3) initiation of, or intervention or
other participation in, a suit for other relief designed to secure
compliance.
The possibility of court enforcement should not be rejected without
consulting the Department of Justice. Once litigation has been begun,
the affected agency should consult with the Department of Justice before
taking any further action with respect to the noncomplying party.
2. Administrative Action
A number of effective alternative courses not involving litigation
may also be available in many cases. These possibilities include (1)
consulting with or seeking assistance from other Federal agencies (such
as the Contract Compliance Division of the Department of Labor) having
authority to enforce nondiscrimination requirements; (2) consulting with
or seeking assistance from State or local agencies having such
authority; (3) bypassing a recalcitrant central agency applicant in
order to obtain assurances from, or to grant assistance to complying
local agencies; and (4) bypassing all recalcitrant non-Federal agencies
and providing assistance directly to the complying ultimate
beneficiaries. The possibility of utilizing such administrative
alternatives should be considered at all stages of enforcement and used
as appropriate or feasible.
c. inducing voluntary compliance
Title VI requires that a concerted effort be made to persuade any
noncomplying applicant or recipient voluntarily to comply with title VI.
Efforts to secure voluntary compliance should be undertaken at the
outset in every noncompliance situation and should be pursued through
each stage of enforcement action. Similarly, where an applicant fails to
file an adequate assurance or apparently breaches its terms, notice
should be promptly given of the nature of the noncompliance problem and
of the possible consequences thereof, and an immediate effort made to
secure voluntary compliance.
II. Procedures
a. new applications
The following procedures are designed to apply in cases of
noncompliance involving applications for one-time or noncontinuing
assistance and initial applications for new or existing programs of
continuing assistance.
1. Where the Requisite Assurance Has Not Been Filed or is Inadequate on
its Face.
Where the assurance, statement of compliance or plan of
desegregation required by
[[Page 35]]
agency regulations has not been filed or where, in the judgment of the
head of the agency in question, the filed assurance fails on its face to
satisfy the regulations, the agency head should defer action on the
application pending prompt initiation and completion of section 602
procedures. The applicant should be notified immediately and attempts
made to secure voluntary compliance. If such efforts fail, the applicant
should promptly be offered a hearing for the purpose of determining
whether an adequate assurance has in fact been filed.
If it is found that an adequate assurance has not been filed, and if
administrative alternatives are ineffective or inappropriate, and court
enforcement is not feasible, section 602 procedures may be completed and
assistance finally refused.
2. Where it Appears that the Field Assurance Is Untrue or Is Not Being
Honored.
Where an otherwise adequate assurance, statement of compliance, or
plan has been filed in connection with an application for assistance,
but prior to completion of action on the application the head of the
agency in question has reasonable grounds, based on a substantiated
complaint, the agency's own investigation, or otherwise, to believe that
the representations as to compliance are in some material respect untrue
or are not being honored, the agency head may defer action on the
application pending prompt initiation and completion of section 602
procedures. The applicant should be notified immediately and attempts
made to secure voluntary compliance. If such efforts fail and court
enforcement is determined to be ineffective or inadequate, a hearing
should be promptly initiated to determine whether, in fact, there is
noncompliance.
If noncompliance is found, and if administrative alternatives are
ineffective or inappropriate and court enforcement is still not
feasible, section 602 procedures may be completed and assistance finally
refused.
The above-described deferral and related compliance procedures would
normally be appropriate in cases of an application for noncontinuing
assistance. In the case of an initial application for a new or existing
program of continuing assistance, deferral would often be less
appropriate because of the opportunity to secure full compliance during
the life of the assistance program. In those cases in which the agency
does not defer action on the application, the applicant should be given
prompt notice of the asserted noncompliance; funds should be paid out
for short periods only, with no long-term commitment of assistance
given; and the applicant advised that acceptance of the funds carries an
enforceable obligation of nondiscrimination and the risk of invocation
of severe sanctions, if noncompliance in fact is found.
b. requests for continuation or renewal of assistance
The following procedures are designed to apply in cases of
noncompliance involving all submissions seeking continuation or renewal
under programs of continuing assistance.
In cases in which commitments for Federal financial assistance have
been made prior to the effective date of title VI regulations and funds
have not been fully disbursed, or in which there is provision for future
periodic payments to continue the program or activity for which a
present recipient has previously applied and qualified, or in which
assistance is given without formal application pursuant to statutory
direction or authorization, the responsible agency may nonetheless
require an assurance, statement of compliance, or plan in connection
with disbursement or further funds. However, once a particular program
grant or loan has been made or an application for a certain type of
assistance for a specific or indefinite period has been approved, no
funds due and payable pursuant to that grant, loan, or application, may
normally be deferred or withheld without first completing the procedures
prescribed in section 602.
Accordingly, where the assurance, statement of compliance, or plan
required by agency regulations has not been filed or where, in the
judgment of the head of the agency in question, the filed assurance
fails on its face to satisfy the regulations, or there is reasonable
cause to believe it untrue or not being honored, the agency head should,
if efforts to secure voluntary compliance are unsuccessful, promptly
institute a hearing to determine whether an adequate assurance has in
fact been filed, or whether, in fact, there is noncompliance, as the
case may be. There should ordinarily be no deferral of action on the
submission or withholding of funds in this class of cases, although the
limitation of the payout of funds to short periods may appropriately be
ordered. If noncompliance is found, and if administrative alternatives
are ineffective or inappropriate and court enforcement is not feasible,
section 602 procedures may be completed and assistance terminated.
c. short-term programs
Special procedures may sometimes be required where there is
noncompliance with title VI regulations in connection with a program of
such short total duration that all assistance funds will have to be paid
out before the agency's usual administrative procedures can be completed
and where deferral in accordance with these guidelines would be
tantamount to a final refusal to grant assistance.
In such a case, the agency head may, although otherwise following
these guidelines,
[[Page 36]]
suspend normal agency procedures and institute expedited administrative
proceedings to determine whether the regulations have been violated. He
should simultaneously refer the matter to the Department of Justice for
consideration of possible court enforcement, including interim
injunctive relief. Deferral of action on an application is appropriate,
in accordance with these guidelines, for a reasonable period of time,
provided such action is consistent with achievement of the objectives of
the statute authorizing the financial assistance in connection with the
action taken. As in other cases, where noncompliance is found in the
hearing proceeding, and if administrative alternatives are ineffective
or inappropriate and court enforcement is not feasible, section 602
procedures may be completed and assistance finally refused.
III. Procedures in Cases of Subgrantees
In situations in which applications for Federal assistance are
approved by some agency other than the Federal granting agency, the same
rules and procedures would apply. Thus, the Federal Agency should
instruct the approving agency--typically a State agency--to defer
approval or refuse to grant funds, in individual cases in which such
action would be taken by the original granting agency itself under the
above procedures. Provision should be made for appropriate notice of
such action to the Federal agency which retains responsibility for
compliance with section 602 procedures.
IV. Exceptional Circumstances
The Attorney General should be consulted in individual cases in
which the head of an agency believes that the objectives of title VI
will be best achieved by proceeding other than as provided in these
guidelines.
V. Coordination
While primary responsibility for enforcement of title VI rests
directly with the head of each agency, in order to assure coordination
of title VI enforcement and consistency among agencies, the Department
of Justice should be notified in advance of applications on which action
is to be deferred, hearings to be scheduled, and refusals and
terminations of assistance or other enforcement actions or procedures to
be undertaken. The Department also should be kept advised of the
progress and results of hearings and other enforcement actions.
[31 FR 5292, Apr. 2, 1966]
Sec. 50.5 Notification of Consular Officers upon the arrest of foreign nationals.
(a) This statement is designed to establish a uniform procedure for
consular notification where nationals of foreign countries are arrested
by officers of this Department on charges of criminal violations. It
conforms to practice under international law and in particular
implements obligations undertaken by the United States pursuant to
treaties with respect to the arrest and detention of foreign nationals.
Some of the treaties obligate the United States to notify the consular
officer only upon the demand or request of the arrested foreign
national. On the other hand, some of the treaties require notifying the
consul of the arrest of a foreign national whether or not the arrested
person requests such notification.
(1) In every case in which a foreign national is arrested the
arresting officer shall inform the foreign national that his consul will
be advised of his arrest unless he does not wish such notification to be
given. If the foreign national does not wish to have his consul
notified, the arresting officer shall also inform him that in the event
there is a treaty in force between the United States and his country
which requires such notification, his consul must be notified regardless
of his wishes and, if such is the case, he will be advised of such
notification by the U.S. Attorney.
(2) In all cases (including those where the foreign national has
stated that he does not wish his consul to be notified) the local office
of the Federal Bureau of Investigation or the local Marshal's office, as
the case may be, shall inform the nearest U.S. Attorney of the arrest
and of the arrested person's wishes regarding consular notification.
(3) The U.S. Attorney shall then notify the appropriate consul
except where he has been informed that the foreign national does not
desire such notification to be made. However, if there is a treaty
provision in effect which requires notification of consul, without
reference to a demand or request of the arrested national, the consul
shall be notified even if the arrested person has asked that he not be
notified. In such case, the U.S. Attorney shall advise the foreign
national that his consul has been notified and inform him that
notification was necessary because of the treaty obligation.
[[Page 37]]
(b) The procedure prescribed by this statement shall not apply to
cases involving arrests made by the Immigration and Naturalization
Service in administrative expulsion or exclusion proceedings, since that
Service has heretofore established procedures for the direct
notification of the appropriate consular officer upon such arrest. With
respect to arrests made by the Service for violations of the criminal
provisions of the immigration laws, the U.S. Marshal, upon delivery of
the foreign national into his custody, shall be responsible for
informing the U.S. Attorney of the arrest in accordance with numbered
paragraph 2 of this statement.
[Order No. 375-67, 32 FR 1040, Jan. 28, 1967]
Sec. 50.6 Antitrust Division business review procedure.
Although the Department of Justice is not authorized to give
advisory opinions to private parties, for several decades the Antitrust
Division has been willing in certain circumstances to review proposed
business conduct and state its enforcement intentions. This originated
with a ``railroad release'' procedure under which the Division would
forego the initiation of criminal antitrust proceedings. The procedure
was subsequently expanded to encompass a ``merger clearance'' procedure
under which the Division would state its present enforcement intention
with respect to a merger or acquisition; and the Department issued a
written statement entitled ``Business Review Procedure.'' That statement
has been revised several times.
1. A request for a business review letter must be submitted in
writing to the Assistant Attorney General, Antitrust Division,
Department of Justice, Washington, DC 20530.
2. The Division will consider only requests with respect to proposed
business conduct, which may involve either domestic or foreign commerce.
3. The Division may, in its discretion, refuse to consider a
request.
4. A business review letter shall have no application to any party
which does not join in the request therefor.
5. The requesting parties are under an affirmative obligation to
make full and true disclosure with respect to the business conduct for
which review is requested. Each request must be accompanied by all
relevant data including background information, complete copies of all
operative documents and detailed statements of all collateral oral
understandings, if any. All parties requesting the review letter must
provide the Division with whatever additional information or documents
the Division may thereafter request in order to review the matter. Such
additional information, if furnished orally, shall be promptly confirmed
in writing. In connection with any request for review the Division will
also conduct whatever independent investigation it believes is
appropriate.
6. No oral clearance, release or other statement purporting to bind
the enforcement discretion of the Division may be given. The requesting
party may rely upon only a written business review letter signed by the
Assistant Attorney General in charge of the Antitrust Division or his
delegate.
7. (a) If the business conduct for which review is requested is
subject to approval by a regulatory agency, a review request may be
considered before agency approval has been obtained only where it
appears that exceptional and unnecessary burdens might otherwise be
imposed on the party or parties requesting review, or where the agency
specifically requests that a party or parties request review. However,
any business review letter issued in these as in any other circumstances
will state only the Department's present enforcement intentions under
the antitrust laws. It shall in no way be taken to indicate the
Department's views on the legal or factual issues that may be raised
before the regulatory agency, or in an appeal from the regulatory
agency's decision. In particular, the issuance of such a letter is not
to be represented to mean that the Division believes that there are no
anticompetitive consequences warranting agency consideration.
(b) The submission of a request for a business review, or its
pendency, shall in no way alter any responsibility of any party to
comply with the Premerger Notification provisions of the Antitrust
Improvements Act of 1976, 15 U.S.C. 18A, and the regulations promulgated
thereunder, 16 CFR, part 801.
8. After review of a request submitted hereunder the Division may:
state its present enforcement intention with respect to the proposed
business conduct; decline to pass on the request; or take such other
position or action as it considers appropriate.
9. A business review letter states only the enforcement intention of
the Division as of the date of the letter, and the Division remains
completely free to bring whatever action or proceeding it subsequently
comes to believe is required by the public interest. As to a stated
present intention not to bring an action, however, the Division has
never exercised its right to bring a criminal action
[[Page 38]]
where there has been full and true disclosure at the time of presenting
the request.
10. (a) Simultaneously upon notifying the requesting party of and
Division action described in paragraph 8, the business review request,
and the Division's letter in response shall be indexed and placed in a
file available to the public upon request.
(b) On that date or within thirty days after the date upon which the
Division takes any action as described in paragraph 8, the information
supplied to support the business review request and any other
information supplied by the requesting party in connection with the
transaction that is the subject of the business review request, shall be
indexed and placed in a file with the request and the Division's letter,
available to the public upon request. This file shall remain open for
one year, after which time it shall be closed and the documents either
returned to the requesting party or otherwise disposed of, at the
discretion of the Antitrust Division.
(c) Prior to the time the information described in subparagraphs (a)
and (b) is indexed and made publicly available in accordance with the
terms of that subparagraph, the requesting party may ask the Division to
delay making public some or all of such information. However the
requesting party must: (1) Specify precisely the documents or parts
thereof that he asks not be made public; (2) state the minimum period of
time during which nondisclosure is considered necessary; and (3) justify
the request for non-disclosure, both as to content and time, by showing
good cause therefor, including a showing that disclosure would have a
detrimental effect upon the requesting party's operations or
relationships with actual or potential customers, employees, suppliers
(including suppliers of credit), stockholders, or competitors. The
Department of Justice, in its discretion, shall make the final
determination as to whether good cause for non-disclosure has been
shown.
(d) Nothing contained in subparagraphs (a), (b) and (c) shall limit
the Division's right, in its discretion, to issue a press release
describing generally the identity of the requesting party or parties and
the nature of action taken by the Division upon the request.
(e) This paragraph reflects a policy determination by the Justice
Department and is subject to any limitations on public disclosure
arising from statutory restrictions, Executive Order, or the national
interest.
11. Any requesting party may withdraw a request for review at any
time. The Division remains free, however, to submit such comments to
such requesting party as it deems appropriate. Failure to take action
after receipt of documents or information whether submitted pursuant to
this procedure or otherwise, does not in any way limit or stop the
Division from taking such action at such time thereafter as it deems
appropriate. The Division reserves the right to retain documents
submitted to it under this procedure or otherwise and to use them for
all governmental purposes.
[42 FR 11831, Mar. 1, 1977]
Sec. 50.7 Consent judgments in actions to enjoin discharges of pollutants.
(a) It is hereby established as the policy of the Department of
Justice to consent to a proposed judgment in an action to enjoin
discharges of pollutants into the environment only after or on condition
that an opportunity is afforded persons (natural or corporate) who are
not named as parties to the action to comment on the proposed judgment
prior to its entry by the court.
(b) To effectuate this policy, each proposed judgment which is
within the scope of paragraph (a) of this section shall be lodged with
the court as early as feasible but at least 30 days before the judgment
is entered by the court. Prior to entry of the judgment, or some earlier
specified date, the Department of Justice will receive and consider, and
file with the court, any written comments, views or allegations relating
to the proposed judgment. The Department shall reserve the right (1) to
withdraw or withhold its consent to the proposed judgment if the
comments, views and allegations concerning the judgment disclose facts
or considerations which indicate that the proposed judgment is
inappropriate, improper or inadequate and (2) to oppose an attempt by
any person to intervene in the action.
(c) The Assistant Attorney General in charge of the Land and Natural
Resources Division may establish procedures for implementing this
policy. Where it is clear that the public interest in the policy hereby
established is not compromised, the Assistant Attorney General may
permit an exception to this policy in a specific case where
extraordinary circumstances require a period shorter than 30 days or a
procedure other than stated herein.
[Order No. 529-73, 38 FR 19029, July 17, 1973]
[[Page 39]]
Sec. 50.8 [Reserved]
Sec. 50.9 Policy with regard to open judicial proceedings.
Because of the vital public interest in open judicial proceedings,
the Government has a general overriding affirmative duty to oppose their
closure. There is, moreover, a strong presumption against closing
proceedings or portions thereof, and the Department of Justice foresees
very few cases in which closure would be warranted. The Government
should take a position on any motion to close a judicial proceeding, and
should ordinarily oppose closure; it should move for or consent to
closed proceedings only when closure is plainly essential to the
interests of justice. In furtherance of the Department's concern for the
right of the public to attend judicial proceedings and the Department's
obligation to the fair administration of justice, the following
guidelines shall be adhered to by all attorneys for the United States.
(a) These guidelines apply to all federal trials, pre- and post-
trial evidentiary proceedings, arraignments, bond hearings, plea
proceedings, sentencing proceedings, or portions thereof, except as
indicated in paragraph (e) of this section.
(b) A Government attorney has a compelling duty to protect the
societal interest in open proceedings.
(c) A Government attorney shall not move for or consent to closure
of a proceeding covered by these guidelines unless:
(1) No reasonable alternative exists for protecting the interests at
stake;
(2) Closure is clearly likely to prevent the harm sought to be
avoided;
(3) The degree of closure is minimized to the greatest extent
possible;
(4) The public is given adequate notice of the proposed closure;
and, in addition, the motion for closure is made on the record, except
where the disclosure of the details of the motion papers would clearly
defeat the reason for closure specified under paragraph (c)(6) of this
section;
(5) Transcripts of the closed proceedings will be unsealed as soon
as the interests requiring closure no longer obtain; and
(6) Failure to close the proceedings will produce;
(i) A substantial likelihood of denial of the right of any person to
a fair trial; or
(ii) A substantial likelihood of imminent danger to the safety of
parties, witnesses, or other persons; or
(iii) A substantial likelihood that ongoing investigations will be
seriously jeopardized.
(d) A government attorney shall not move for or consent to the
closure of any proceeding, civil or criminal, except with the express
authorization of:
(1) The Deputy Attorney General, or,
(2) The Associate Attorney General, if the Division seeking
authorization is under the supervision of the Associate Attorney
General.
(e) These guidelines do not apply to:
(1) The closure of part of a judicial proceeding where necessary to
protect national security information or classified documents; or
(2) In camera inspection, consideration or sealing of documents,
including documents provided to the Government under a promise of
confidentiality, where permitted by statute, rule of evidence or
privilege; or
(3) Grand jury proceedings or proceedings ancillary thereto; or
(4) Conferences traditionally held at the bench or in chambers
during the course of an open proceeding; or
(5) The closure of judicial proceedings pursuant to 18 U.S.C. 3509
(d) and (e) for the protection of child victims or child witnesses.
(f) Because of the vital public interest in open judicial
proceedings, the records of any proceeding closed pursuant to this
section, and still sealed 60 days after termination of the proceeding,
shall be reviewed to determine if the reasons for closure are still
applicable. If they are not, an appropriate motion will be made to have
the records unsealed. If the reasons for closure are still applicable
after 60 days, this review is to be repeated every 60 days until such
time as the records are unsealed. Compliance with this section will be
monitored by the Criminal Division.
(g) The principles set forth in this section are intended to provide
guidance to attorneys for the Government
[[Page 40]]
and are not intended to create or recognize any legally enforceable
right in any person.
[Order No. 914-80, 45 FR 69214, Oct. 20, 1980, as amended by Order No.
1031-83, 48 FR 49509, Oct. 26, 1983; Order No. 1115-85, 50 FR 51677,
Dec. 19, 1985; Order No. 1507-91, 56 FR 32327, July 16, 1991]
Sec. 50.10 Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and
the interrogation, indictment, or arrest of, members of the
news media.
Because freedom of the press can be no broader than the freedom of
reporters to investigate and report the news, the prosecutorial power of
the government should not be used in such a way that it impairs a
reporter's responsibility to cover as broadly as possible controversial
public issues. This policy statement is thus intended to provide
protection for the news media from forms of compulsory process, whether
civil or criminal, which might impair the news gathering function. In
balancing the concern that the Department of Justice has for the work of
the news media and the Department's obligation to the fair
administration of justice, the following guidelines shall be adhered to
by all members of the Department in all cases:
(a) In determining whether to request issuance of a subpoena to a
member of the news media, or for telephone toll records of any member of
the news media, the approach in every case must be to strike the proper
balance between the public's interest in the free dissemination of ideas
and information and the public's interest in effective law enforcement
and the fair administration of justice.
(b) All reasonable attempts should be made to obtain information
from alternative sources before considering issuing a subpoena to a
member of the news media, and similarly all reasonable alternative
investigative steps should be taken before considering issuing a
subpoena for telephone toll records of any member of the news media.
(c) Negotiations with the media shall be pursued in all cases in
which a subpoena to a member of the news media is contemplated. These
negotiations should attempt to accommodate the interests of the trial or
grand jury with the interests of the media. Where the nature of the
investigation permits, the government should make clear what its needs
are in a particular case as well as its willingness to respond to
particular problems of the media.
(d) Negotiations with the affected member of the news media shall be
pursued in all cases in which a subpoena for the telephone toll records
of any member of the news media is contemplated where the responsible
Assistant Attorney General determines that such negotiations would not
pose a substantial threat to the integrity of the investigation in
connection with which the records are sought. Such determination shall
be reviewed by the Attorney General when considering a subpoena
authorized under paragraph (e) of this section.
(e) No subpoena may be issued to any member of the news media or for
the telephone toll records of any member of the news media without the
express authorization of the Attorney General: Provided, That, if a
member of the news media with whom negotiations are conducted under
paragraph (c) of this section expressly agrees to provide the material
sought, and if that material has already been published or broadcast,
the United States Attorney or the responsible Assistant Attorney
General, after having been personally satisfied that the requirements of
this section have been met, may authorize issuance of the subpoena and
shall thereafter submit to the Office of Public Affairs a report
detailing the circumstances surrounding the issuance of the subpoena.
(f) In requesting the Attorney General's authorization for a
subpoena to a member of the news media, the following principles will
apply:
(1) In criminal cases, there should be reasonable grounds to
believe, based on information obtained from nonmedia sources, that a
crime has occurred, and
[[Page 41]]
that the information sought is essential to a successful investigation--
particularly with reference to directly establishing guilt or innocence.
The subpoena should not be used to obtain peripheral, nonessential, or
speculative information.
(2) In civil cases there should be reasonable grounds, based on
nonmedia sources, to believe that the information sought is essential to
the successful completion of the litigation in a case of substantial
inportance. The subpoena should not be used to obtain peripheral,
nonessential, or speculative information.
(3) The government should have unsuccessfully attempted to obtain
the information from alternative nonmedia sources.
(4) The use of subpoenas to members of the news media should, except
under exigent circumstances, be limited to the verification of published
information and to such surrounding circumstances as relate to the
accuracy of the published information.
(5) Even subpoena authorization requests for publicly disclosed
information should be treated with care to avoid claims of harassment.
(6) Subpoenas should, wherever possible, be directed at material
information regarding a limited subject matter, should cover a
reasonably limited period of time, and should avoid requiring production
of a large volume of unpublished material. They should give reasonable
and timely notice of the demand for documents.
(g) In requesting the Attorney General's authorization for a
subpoena for the telephone toll records of members of the news media,
the following principles will apply:
(1) There should be reasonable ground to believe that a crime has
been committed and that the information sought is essential to the
successful investigation of that crime. The subpoena should be as
narrowly drawn as possible; it should be directed at relevant
information regarding a limited subject matter and should cover a
reasonably limited time period. In addition, prior to seeking the
Attorney General's authorization, the government should have pursued all
reasonable alternative investigation steps as required by paragraph (b)
of this section.
(2) When there have been negotiations with a member of the news
media whose telephone toll records are to be subpoenaed, the member
shall be given reasonable and timely notice of the determination of the
Attorney General to authorize the subpoena and that the government
intends to issue it.
(3) When the telephone toll records of a member of the news media
have been subpoenaed without the notice provided for in paragraph (e)(2)
of this section, notification of the subpoena shall be given the member
of the news media as soon thereafter as it is determined that such
notification will no longer pose a clear and substantial threat to the
integrity of the investigation. In any event, such notification shall
occur within 45 days of any return made pursuant to the subpoena, except
that the responsible Assistant Attorney General may authorize delay of
notification for no more than an additional 45 days.
(4) Any information obtained as a result of a subpoena issued for
telephone toll records shall be closely held so as to prevent disclosure
of the information to unauthorized persons or for improper purposes.
(h) No member of the Department shall subject a member of the news
media to questioning as to any offense which he is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of a news story, or while engaged in the performance of
his official duties as a member of the news media, without the express
authority of the Attorney General: Provided, however, That where exigent
circumstances preclude prior approval, the requirements of paragraph (l)
of this section shall be observed.
(i) A member of the Department shall secure the express authority of
the Attorney General before a warrant for an arrest is sought, and
whenever possible before an arrest not requiring a warrant, of a member
of the news media for any offense which he is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of a news story, or while engaged in the performance of
his official duties as a member of the news media.
[[Page 42]]
(j) No member of the Department shall present information to a grand
jury seeking a bill of indictment, or file an information, against a
member of the news media for any offense which he is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of a news story, or while engaged in the performance of
his official duties as a member of the news media, without the express
authority of the Attorney General.
(k) In requesting the Attorney General's authorization to question,
to arrest or to seek an arrest warrant for, or to present information to
a grand jury seeking a bill of indictment or to file an information
against, a member of the news media for an offense which he is suspected
of having committed during the course of, or arising out of, the
coverage or investigation of a news story, or committed while engaged in
the performance of his official duties as a member of the news media, a
member of the Department shall state all facts necessary for
determination of the issues by the Attorney General. A copy of the
request shall be sent to the Director of Public Affairs.
(l) When an arrest or questioning of a member of the news media is
necessary before prior authorization of the Attorney General can be
obtained, notification of the arrest or questioning, the circumstances
demonstrating that an exception to the requirement of prior
authorization existed, and a statement containing the information that
would have been given in requesting prior authorization, shall be
communicated immediately to the Attorney General and to the Director of
Public Affairs.
(m) In light of the intent of this section to protect freedom of the
press, news gathering functions, and news media sources, this policy
statement does not apply to demands for purely commercial or financial
information unrelated to the news gathering function.
(n) Failure to obtain the prior approval of the Attorney General may
constitute grounds for an administrative reprimand or other appropriate
disciplinary action. The principles set forth in this section are not
intended to create or recognize any legally enforceable right in any
person.
[Order No. 916-80, 45 FR 76436, Nov. 19, 1980]
Sec. 50.12 Exchange of FBI identification records.
(a) The Federal Bureau of Investigation, hereinafter referred to as
the FBI, is authorized to expend funds for the exchange of
identification records with officials of federally chartered or insured
banking institutions to promote or maintain the security of those
institutions and, if authorized by state statute and approved by the
Director of the FBI, acting on behalf of the Attorney General, with
officials of state and local governments for purposes of employment and
licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115.
Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C.
2169, respectively, such records can be exchanged with certain segments
of the securities industry, with registered futures associations, and
with nuclear power plants. The records also may be exchanged in other
instances as authorized by federal law.
(b) The FBI Director is authorized by 28 CFR 0.85(j) to approve
procedures relating to the exchange of identification records. Under
this authority, effective September 6, 1990, the FBI Criminal Justice
Information Services (CJIS) Division has made all data on identification
records available for such purposes. Records obtained under this
authority may be used solely for the purpose requested and cannot be
disseminated outside the receiving departments, related agencies, or
other authorized entities. Officials at the governmental institutions
and other entities authorized to submit fingerprints and receive FBI
identification records under this authority must notify the individuals
fingerprinted that the fingerprints will be used to check the criminal
history records of the FBI. The officials making the determination of
suitability for licensing or employment shall provide the applicants the
opportunity to complete, or challenge the accuracy of, the information
contained in the FBI identification record. These officials also must
advise the applicants that procedures for obtaining a change,
correction, or updating of an
[[Page 43]]
FBI identification record are set forth in 28 CFR 16.34. Officials
making such determinations should not deny the license or employment
based on information in the record until the applicant has been afforded
a reasonable time to correct or complete the record, or has declined to
do so. A statement incorporating these use-and-challenge requirements
will be placed on all records disseminated under this program. This
policy is intended to ensure that all relevant criminal record
information is made available to provide for the public safety and,
further, to protect the interests of the prospective employee/licensee
who may be affected by the information or lack of information in an
identification record.
[Order No. 2258-99, 64 FR 52229, Sept. 28, 1999]
Sec. 50.14 Guidelines on employee selection procedures.
The guidelines set forth below are intended as a statement of policy
of the Department of Justice and will be applied by the Department in
exercising its responsibilities under Federal law relating to equal
employment opportunity.
Uniform Guidelines on Employee Selection Procedures (1978)
Note: These guidelines are issued jointly by four agencies. Separate
official adoptions follow the guidelines in this part IV as follows:
Civil Service Commission, Department of Justice, Equal Employment
Opportunity Commission, Department of Labor.
For official citation see section 18 of these guidelines.
Table of Contents
general principles
1. Statement of Purpose
A. Need for Uniformity--Issuing Agencies
B. Purpose of Guidelines
C. Relation to Prior Guidelines
2. Scope
A. Application of Guidelines
B. Employment Decisions
C. Selection Procedures
D. Limitations
E. Indian Preference Not Affected
3. Discrimination Defined: Relationship Between Use of Selection
Procedures and Discrimination
A. Procedure Having Adverse Impact Constitutes Discrimination Unless
Justified
B. Consideration of Suitable Alternative Selection Procedures
4. Information on Impact
A. Records Concerning Impact
B. Applicable Race, Sex and Ethnic Groups For Record Keeping
C. Evaluation of Selection Rates. The ``Bottom Line''
D. Adverse Impact And The ``Four-Fifths Rule''
E. Consideration of User's Equal Employment Opportunity Posture
5. General Standards for Validity Studies
A. Acceptable types of Validity Studies
B. Criterion-Related, Content, and Construct Validity
C. Guidelines Are Consistent with Professional Standards
D. Need For Documentation of Validity
E. Accuracy and Standardization
F. Caution Against Selection on Basis of Knowledges, Skills or Abilities
Learned in Brief Orientation Period
G. Method of Use of Selection Procedures
H. Cutoff Scores
I. Use of Selection Procedures for Higher Level Jobs
J. Interim Use of Selection Procedures
K. Review of Validity Studies for Currency
6. Use of Selection Procedures Which Have Not Been Validated
A. Use of Alternate Selection Procedures to Eliminate Adverse Impact
B. Where Validity Studies Cannot or Need Not Be Performed
(1) Where Informal or Unscored Procedures Are Used
(2) Where Formal And Scored Procedures Are Used
7. Use of Other Validity Studies
A. Validity Studies not Conducted by the User
B. Use of Criterion-Related Validity Evidence from Other Sources
(1) Validity Evidence
(2) Job Similarity
(3) Fairness Evidence
C. Validity Evidence from Multi-Unit Study
D. Other Significant Variables
8. Cooperative Studies
A. Encouragement of Cooperative Studies
B. Standards for Use of Cooperative Studies
9. No Assumption of Validity
A. Unacceptable Substitutes for Evidence of Validity
B. Encouragement of Professional Supervision
10. Employment Agencies and Employment Services
A. Where Selection Procedures Are Devised by Agency
B. Where Selection Procedures Are Devised Elsewhere
11. Disparate Treatment
12. Retesting of Applicants
13. Affirmative Action
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A. Affirmative Action Obligations
B. Encouragement of Voluntary Affirmative Action Programs
technical standards
14. Technical Standards for Validity Studies
A. Validity Studies Should be Based on Review of Information about the
Job
B. Technical Standards for Criterion-Related Validity Studies
(1) Technical Feasibility
(2) Analysis of the Job
(3) Criterion Measures
(4) Representativeness of the Sample
(5) Statistical Relationships
(6) Operational Use of Selection Procedures
(7) Over-Statement of Validity Findings
(8) Fairness
(a) Unfairness Defined
(b) Investigation of Fairness
(c) General Considerations in Fairness Investigations
(d) When Unfairness Is Shown
(e) Technical Feasibility of Fairness Studies
(f) Continued Use of Selection Procedures When Fairness Studies not
Feasible
C. Technical Standards for Content Validity Studies
(1) Appropriateness of Content Validity Studies
(2) Job Analysis for Content Validity
(3) Development of Selection Procedure
(4) Standards For Demonstrating Content Validity
(5) Reliability
(6) Prior Training or Experience
(7) Training Success
(8) Operational Use
(9) Ranking Based on Content Validity Studies
D. Technical Standards For Construct Validity Studies
(1) Appropriateness of Construct Validity Studies
(2) Job Analysis For Construct Validity Studies
(3) Relationship to the Job
(4) Use of Construct Validity Study Without New Criterion-Related
Evidence
(a) Standards for Use
(b) Determination of Common Work Behaviors
documentation of impact and validity evidence
15. Documentation of Impact and Validity Evidence
A. Required Information
(1) Simplified Recordkeeping for Users With Less Than 100 Employees
(2) Information on Impact
(a) Collection of Information on Impact
(b) When Adverse Impact Has Been Eliminated in The Total Selection
Process
(c) When Data Insufficient to Determine Impact
(3) Documentation of Validity Evidence
(a) Type of Evidence
(b) Form of Report
(c) Completeness
B. Criterion-Related Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Job Analysis or Review of Job Information
(4) Job Titles and Codes
(5) Criterion Measures
(6) Sample Description
(7) Description of Selection Procedure
(8) Techniques and Results
(9) Alternative Procedures Investigated
(10) Uses and Applications
(11) Source Data
(12) Contact Person
(13) Accuracy and Completeness
C. Content Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Job Analysis--Content of the Job
(4) Selection Procedure and its Content
(5) Relationship Between Selection Procedure and the Job
(6) Alternative Procedures Investigated
(7) Uses and Applications
(8) Contact Person
(9) Accuracy and Completeness
D. Construct Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Construct Definition
(4) Job Analysis
(5) Job Titles and Codes
(6) Selection Procedure
(7) Relationship to Job Performance
(8) Alternative Procedures Investigated
(9) Uses and Applications
(10) Accuracy and Completeness
(11) Source Data
(12) Contact Person
E. Evidence of Validity from Other Studies
(1) Evidence from Criterion-Related Validity Studies
(a) Job Information
(b) Relevance of Criteria
(c) Other Variables
(d) Use of the Selection Procedure
(e) Bibliography
(2) Evidence from Content Validity Studies
(3) Evidence from Construct Validity Studies
F. Evidence of Validity from Cooperative Studies
G. Selection for Higher Level Jobs
H. Interim Use of Selection Procedures
[[Page 45]]
definitions
16. Definitions
appendix
17. Policy Statement on Affirmative Action (see Section 13B)
18. Citations
General Principles
Section 1. Statement of purpose-- A. Need for uniformity--Issuing
agencies. The Federal government's need for a uniform set of principles
on the question of the use of tests and other selection procedures has
long been recognized. The Equal Employment Opportunity Commission, the
Civil Service Commission, the Department of Labor, and the Department of
Justice jointly have adopted these uniform guidelines to meet that need,
and to apply the same principles to the Federal Government as are
applied to other employers.
B. Purpose of guidelines. These guidelines incorporate a single set
of principles which are designed to assist employers, labor
organizations, employment agencies, and licensing and certification
boards to comply with requirements of Federal law prohibiting employment
practices which discriminate on grounds of race, color, religion, sex,
and national origin. They are designed to provide a framework for
determining the proper use of tests and other selection procedures.
These guidelines do not require a user to conduct validity studies of
selection procedures where no adverse impact results. However, all users
are encouraged to use selection procedures which are valid, especially
users operating under merit principles.
C. Relation to prior guidelines. These guidelines are based upon and
supersede previously issued guidelines on employee selection procedures.
These guidelines have been built upon court decisions, the previously
issued guidelines of the agencies, and the practical experience of the
agencies, as well as the standards of the psychological profession.
These guidelines are intended to be consistent with existing law.
Sec. 2. Scope-- A. Application of guidelines. These guidelines will
be applied by the Equal Employment Opportunity Commission in the
enforcement of title VII of the Civil Rights Act of 1964, as amended by
the Equal Employment Opportunity Act of 1972 (hereinafter ``Title
VII''); by the Department of Labor, and the contract compliance agencies
until the transfer of authority contemplated by the President's
Reorganization Plan No. 1 of 1978, in the administration and enforcement
of Executive Order 11246, as amended by Executive Order 11375
(hereinafter ``Executive Order 11246''); by the Civil Service Commission
and other Federal agencies subject to section 717 of title VII; by the
Civil Service Commission in exercising its responsibilities toward State
and local governments under section 208(b)(1) of the Intergovernmental-
Personnel Act; by the Department of Justice in exercising its
responsibilities under Federal law; by the Office of Revenue Sharing of
the Department of the Treasury under the State and Local Fiscal
Assistance Act of 1972, as amended; and by any other Federal agency
which adopts them.
B. Employment decisions. These guidelines apply to tests and other
selection procedures which are used as a basis for any employment
decision. Employment decisions include but are not limited to hiring,
promotion, demotion, membership (for example, in a labor organization),
referral, retention, and licensing and certification, to the extent that
licensing and certification may be covered by Federal equal employment
opportunity law. Other selection decisions, such as selection for
training or transfer, may also be considered employment decisions if
they lead to any of the decisions listed above.
C. Selection procedures. These guidelines apply only to selection
procedures which are used as a basis for making employment decisions.
For example, the use of recruiting procedures designed to attract
members of a particular race, sex, or ethnic group, which were
previously denied employment opportunities or which are currently
underutilized, may be necessary to bring an employer into compliance
with Federal law, and is frequently an essential element of any
effective affirmative action program; but recruitment practices are not
considered by these guidelines to be selection procedures. Similarly,
these guidelines do not pertain to the question of the lawfulness of a
seniority system within the meaning of section 703(h), Executive Order
11246 or other provisions of Federal law or regulation, except to the
extent that such systems utilize selection procedures to determine
qualifications or abilities to perform the job. Nothing in these
guidelines is intended or should be interpreted as discouraging the use
of a selection procedure for the purpose of determining qualifications
or for the purpose of selection on the basis of relative qualifications,
if the selection procedure had been validated in accord with these
guidelines for each such purpose for which it is to be used.
D. Limitations. These guidelines apply only to persons subject to
title VII, Executive Order 11246, or other equal employment opportunity
requirements of Federal law. These guidelines do not apply to
responsibilities under the Age Discrimination in Employment Act of 1967,
as amended, not to discriminate on the basis of age, or under sections
501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate
on the basis of handicap.
[[Page 46]]
E. Indian preference not affected. These guidelines do not restrict
any obligation imposed or right granted by Federal law to users to
extend a preference in employment to Indians living on or near an Indian
reservation in connection with employment opportunities on or near an
Indian reservation.
Sec. 3. Discrimination defined: Relationship between use of
selection procedures and discrimination-- A. Procedure having adverse
impact constitutes discrimination unless justified. The use of any
selection procedure which has an adverse impact on the hiring,
promotion, or other employment or membership opportunities of members of
any race, sex, or ethnic group will be considered to be discriminatory
and inconsistent with these guidelines, unless the procedure has been
validated in accordance with these guidelines, or the provisions of
section 6 below are satisfied.
B. Consideration of suitable alternative selection procedures. Where
two or more selection procedures are available which serve the user's
legitimate interest in efficient and trustworthy workmanship, and which
are substantially equally valid for a given purpose, the user should use
the procedure which has been demonstrated to have the lesser adverse
impact. Accordingly, whenever a validity study is called for by these
guidelines, the user should include, as a part of the validity study, an
investigation of suitable alternative selection procedures and suitable
alternative methods of using the selection procedure which have as
little adverse impact as possible, to determine the appropriateness of
using or validating them in accord with these guidelines. If a user has
made a reasonable effort to become aware of such alternative procedures
and validity has been demonstrated in accord with these guidelines, the
use of the test or other selection procedure may continue until such
time as it should reasonably be reviewed for currency. Whenever the user
is shown an alternative selection procedure with evidence of less
adverse impact and substantial evidence of validity for the same job in
similar circumstances, the user should investigate it to determine the
appropriateness of using or validating it in accord with these
guidelines. This subsection is not intended to preclude the combination
of procedures into a significantly more valid procedure, if the use of
such a combination has been shown to be in compliance with the
guidelines.
Sec. 4. Information on impact-- A. Records concerning impact. Each
user should maintain and have available for inspection records or other
information which will disclose the impact which its tests and other
selection procedures have upon employment opportunities of persons by
identifiable race, sex, or ethnic group as set forth in paragraph B
below in order to determine compliance with these guidelines. Where
there are large numbers of applicants and procedures are administered
frequently, such information may be retained on a sample basis, provided
that the sample is appropriate in terms of the applicant population and
adequate in size.
B. Applicable race, sex, and ethnic groups for recordkeeping. The
records called for by this section are to be maintained by sex, and the
following races and ethnic groups: Blacks (Negroes), American Indians
(including Alaskan Natives), Asians (including Pacific Islanders),
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish origin or culture regardless of race),
whites (Caucasians) other than Hispanic, and totals. The race, sex, and
ethnic classifications called for by this section are consistent with
the Equal Employment Opportunity Standard Form 100, Employer Information
Report EEO-1 series of reports. The user should adopt safeguards to
insure that the records required by this paragraph are used for
appropriate purposes such as determining adverse impact, or (where
required) for developing and monitoring affirmative action programs, and
that such records are not used improperly. See sections 4E and 17(4),
below.
C. Evaluation of selection rates. The ``bottom line.'' If the
information called for by sections 4A and B above shows that the total
selection process for a job has an adverse impact, the individual
components of the selection process should be evaluated for adverse
impact. If this information shows that the total selection process does
not have an adverse impact, the Federal enforcement agencies, in the
exercise of their administrative and prosecutorial discretion, in usual
circumstances, will not expect a user to evaluate the individual
components for adverse impact, or to validate such individual
components, and will not take enforcement action based upon adverse
impact of any component of that process, including the separate parts of
a multipart selection procedure or any separate procedure that is used
as an alternative method of selection. However, in the following
circumstances the Federal enforcement agencies will expect a user to
evaluate the individual components for adverse impact and may, where
appropriate, take enforcement action with respect to the individual
components: (1) Where the selection procedure is a significant factor in
the continuation of patterns of assignments of incumbent employees
caused by prior discriminatory employment practices, (2) where the
weight of court decisions or administrative interpretations hold that a
specific procedure (such as height or weight requirements or no-arrest
records) is not job related in the same or similar circumstances. In
unusual circumstances, other than those listed in (1) and (2) above, the
Federal enforcement agencies may request a user to evaluate the
individual components for adverse impact
[[Page 47]]
and may, where appropriate, take enforcement action with respect to the
individual component.
D. Adverse impact and the ``four-fifths rule.'' A selection rate for
any race, sex, or ethnic group which is less than four-fifths (\4/5\)
(or eighty percent) of the rate for the group with the highest rate will
generally be regarded by the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths rate will generally not
be regarded by Federal enforcement agencies as evidence of adverse
impact. Smaller differences in selection rate may nevertheless
constitute adverse impact, where they are significant in both
statistical and practical terms or where a user's actions have
discouraged applicants disproportionately on grounds of race, sex, or
ethnic group. Greater differences in selection rate may not constitute
adverse impact where the differences are based on small numbers and are
not statistically significant, or where special recruiting or other
programs cause the pool of minority or female candidates to be atypical
of the normal pool of applicants from that group. Where the user's
evidence concerning the impact of a selection procedure indicates
adverse impact but is based upon numbers which are too small to be
reliable, evidence concerning the impact of the procedure over a longer
period of time and/or evidence concerning the impact which the selection
procedure had when used in the same manner in similar circumstances
elsewhere may be considered in determining adverse impact. Where the
user has not maintained data on adverse impact as required by the
documentation section of applicable guidelines, the Federal enforcement
agencies may draw an inference of adverse impact of the selection
process from the failure of the user to maintain such data, if the user
has an underutilization of a group in the job category, as compared to
the group's representation in the relevant labor market or, in the case
of jobs filled from within, the applicable work force.
E. Consideration of user's equal employment opportunity posture. In
carrying out their obligations, the Federal enforcement agencies will
consider the general posture of the user with respect to equal
employment opportunity for the job or group of jobs in question. Where a
user has adopted an affirmative action program, the Federal enforcement
agencies will consider the provisions of that program, including the
goals and timetables which the user has adopted and the progress which
the user has made in carrying out that program and in meeting the goals
and timetables. While such affirmative action programs may in design and
execution be race, color, sex, or ethnic conscious, selection procedures
under such programs should be based upon the ability or relative ability
to do the work.
Sec. 5. General standards for validity studies-- A. Acceptable types
of validity studies. For the purposes of satisfying these guidelines,
users may rely upon criterion-related validity studies, content validity
studies or construct validity studies, in accordance with the standards
set forth in the technical standards of these guidelines, section 14
below. New strategies for showing the validity of selection procedures
will be evaluated as they become accepted by the psychological
profession.
B. Criterion-related, content, and construct validity. Evidence of
the validity of a test or other selection procedure by a criterion-
related validity study should consist of empirical data demonstrating
that the selection procedure is predictive of or significantly
correlated with important elements of job performance. See section 14B
below. Evidence of the validity of a test or other selection procedure
by a content validity study should consist of data showing that the
content of the selection procedure is representative of important
aspects of performance on the job for which the candidates are to be
evaluated. See section 14C below. Evidence of the validity of a test or
other selection procedure through a construct validity study should
consist of data showing that the procedure measures the degree to which
candidates have identifiable characteristics which have been determined
to be important in successful performance in the job for which the
candidates are to be evaluated. See section 14D below.
C. Guidelines are consistent with professional standards. The
provisions of these guidelines relating to validation of selection
procedures are intended to be consistent with generally accepted
professional standards for evaluating standardized tests and other
selection procedures, such as those described in the Standards for
Educational and Psychological Tests prepared by a joint committee of the
American Psychological Association, the American Educational Research
Association, and the National Council on Measurement in Education
(American Psychological Association, Washington, DC, 1974) (hereinafter
``A.P.A. Standards'') and standard textbooks and journals in the field
of personnel selection.
D. Need for documentation of validity. For any selection procedure
which is part of a selection process which has an adverse impact and
which selection procedure has an adverse impact, each user should
maintain and have available such documentation as is described in
section 15 below.
E. Accuracy and standardization. Validity studies should be carried
out under conditions which assure insofar as possible the adequacy and
accuracy of the research and the report. Selection procedures should be
administered and scored under standardized conditions.
[[Page 48]]
F. Caution against selection on basis of knowledges, skills, or
ability learned in brief orientation period. In general, users should
avoid making employment decisions on the basis of measures of
knowledges, skills, or abilities which are normally learned in a brief
orientation period, and which have an adverse impact.
G. Method of use of selection procedures. The evidence of both the
validity and utility of a selection procedure should support the method
the user chooses for operational use of the procedure, if that method of
use has a greater adverse impact than another method of use. Evidence
which may be sufficient to support the use of a selection procedure on a
pass/fail (screening) basis may be insufficient to support the use of
the same procedure on a ranking basis under these guidelines. Thus, if a
user decides to use a selection procedure on a ranking basis, and that
method of use has a greater adverse impact than use on an appropriate
pass/fail basis (see section 5H below), the user should have sufficient
evidence of validity and utility to support the use on a ranking basis.
See sections 3B, 14B (5) and (6), and 14C (8) and (9).
H. Cutoff scores. Where cutoff scores are used, they should normally
be set so as to be reasonable and consistent with normal expectations of
acceptable proficiency within the work force. Where applicants are
ranked on the basis of properly validated selection procedures and those
applicants scoring below a higher cutoff score than appropriate in light
of such expectations have little or no chance of being selected for
employment, the higher cutoff score may be appropriate, but the degree
of adverse impact should be considered.
I. Use of selection procedures for higher level jobs. If job
progression structures are so established that employees will probably,
within a reasonable period of time and in a majority of cases, progress
to a higher level, it may be considered that the applicants are being
evaluated for a job or jobs at the higher level. However, where job
progression is not so nearly automatic, or the time span is such that
higher level jobs or employees' potential may be expected to change in
significant ways, it should be considered that applicants are being
evaluated for a job at or near the entry level. A ``reasonable period of
time'' will vary for different jobs and employment situations but will
seldom be more than 5 years. Use of selection procedures to evaluate
applicants for a higher level job would not be appropriate:
(1) If the majority of those remaining employed do not progress to
the higher level job;
(2) If there is a reason to doubt that the higher level job will
continue to require essentially similar skills during the progression
period; or
(3) If the selection procedures measure knowledges, skills, or
abilities required for advancement which would be expected to develop
principally from the training or experience on the job.
J. Interim use of selection procedures. Users may continue the use
of a selection procedure which is not at the moment fully supported by
the required evidence of validity, provided: (1) The user has available
substantial evidence of validity, and (2) the user has in progress, when
technically feasible, a study which is designed to produce the
additional evidence required by these guidelines within a reasonable
time. If such a study is not technically feasible, see section 6B. If
the study does not demonstrate validity, this provision of these
guidelines for interim use shall not constitute a defense in any action,
nor shall it relieve the user of any obligations arising under Federal
law.
K. Review of validity studies for currency. Whenever validity has
been shown in accord with these guidelines for the use of a particular
selection procedure for a job or group of jobs, additional studies need
not be performed until such time as the validity study is subject to
review as provided in section 3B above. There are no absolutes in the
area of determining the currency of a validity study. All circumstances
concerning the study, including the validation strategy used, and
changes in the relevant labor market and the job should be considered in
the determination of when a validity study is outdated.
Sec. 6. Use of selection procedures which have not been validated--
A. Use of alternate selection procedures to eliminate adverse impact. A
user may choose to utilize alternative selection procedures in order to
eliminate adverse impact or as part of an affirmative action program.
See section 13 below. Such alternative procedures should eliminate the
adverse impact in the total selection process, should be lawful and
should be as job related as possible.
B. Where validity studies cannot or need not be performed. There are
circumstances in which a user cannot or need not utilize the validation
techniques contemplated by these guidelines. In such circumstances, the
user should utilize selection procedures which are as job related as
possible and which will minimize or eliminate adverse impact, as set
forth below.
(1) Where informal or unscored procedures are used. When an informal
or unscored selection procedure which has an adverse impact is utilized,
the user should eliminate the adverse impact, or modify the procedure to
one which is a formal, scored or quantified measure or combination of
measures and then validate the procedure in accord with these
guidelines, or otherwise justify continued use of the procedure in
accord with Federal law.
[[Page 49]]
(2) Where formal and scored procedures are used. When a formal and
scored selection procedure is used which has an adverse impact, the
validation techniques contemplated by these guidelines usually should be
followed if technically feasible. Where the user cannot or need not
follow the validation techniques anticipated by these guidelines, the
user should either modify the procedure to eliminate adverse impact or
otherwise justify continued use of the procedure in accord with Federal
law.
Sec. 7. Use of other validity studies-- A. Validity studies not
conducted by the user. Users may, under certain circumstances, support
the use of selection procedures by validity studies conducted by other
users or conducted by test publishers or distributors and described in
test manuals. While publishers of selection procedures have a
professional obligation to provide evidence of validity which meets
generally accepted professional standards (see section 5C above), users
are cautioned that they are responsible for compliance with these
guidelines. Accordingly, users seeking to obtain selection procedures
from publishers and distributors should be careful to determine that, in
the event the user becomes subject to the validity requirements of these
guidelines, the necessary information to support validity has been
determined and will be made available to the user.
B. Use of criterion-related validity evidence from other sources.
Criterion-related validity studies conducted by one test user, or
described in test manuals and the professional literature, will be
considered acceptable for use by another user when the following
requirements are met:
(1) Validity evidence. Evidence from the available studies meeting
the standards of section 14B below clearly demonstrates that the
selection procedure is valid;
(2) Job similarity. The incumbents in the user's job and the
incumbents in the job or group of jobs on which the validity study was
conducted perform substantially the same major work behaviors, as shown
by appropriate job analyses both on the job or group of jobs on which
the validity study was performed and on the job for which the selection
procedure is to be used; and
(3) Fairness evidence. The studies include a study of test fairness
for each race, sex, and ethnic group which constitutes a significant
factor in the borrowing user's relevant labor market for the job or jobs
in question. If the studies under consideration satisfy (1) and (2)
above but do not contain an investigation of test fairness, and it is
not technically feasible for the borrowing user to conduct an internal
study of test fairness, the borrowing user may utilize the study until
studies conducted elsewhere meeting the requirements of these guidelines
show test unfairness, or until such time as it becomes technically
feasible to conduct an internal study of test fairness and the results
of that study can be acted upon. Users obtaining selection procedures
from publishers should consider, as one factor in the decision to
purchase a particular selection procedure, the availability of evidence
concerning test fairness.
C. Validity evidence from multiunit study. if validity evidence from
a study covering more than one unit within an organization statisfies
the requirements of section 14B below, evidence of validity specific to
each unit will not be required unless there are variables which are
likely to affect validity significantly.
D. Other significant variables. If there are variables in the other
studies which are likely to affect validity significantly, the user may
not rely upon such studies, but will be expected either to conduct an
internal validity study or to comply with section 6 above.
Sec. 8. Cooperative studies-- A. Encouragement of cooperative
studies. The agencies issuing these guidelines encourage employers,
labor organizations, and employment agencies to cooperate in research,
development, search for lawful alternatives, and validity studies in
order to achieve procedures which are consistent with these guidelines.
B. Standards for use of cooperative studies. If validity evidence
from a cooperative study satisfies the requirements of section 14 below,
evidence of validity specific to each user will not be required unless
there are variables in the user's situation which are likely to affect
validity significantly.
Sec. 9. No assumption of validity-- A. Unacceptable substitutes for
evidence of validity. Under no circumstances will the general reputation
of a test or other selection procedures, its author or its publisher, or
casual reports of it's validity be accepted in lieu of evidence of
validity. Specifically ruled out are: Assumptions of validity based on a
procedure's name or descriptive labels; all forms of promotional
literature; data bearing on the frequency of a procedure's usage;
testimonial statements and credentials of sellers, users, or
consultants; and other nonempirical or anecdotal accounts of selection
practices or selection outcomes.
B. Encouragement of professional supervision. Professional
supervision of selection activities is encouraged but is not a
substitute for documented evidence of validity. The enforcement agencies
will take into account the fact that a thorough job analysis was
conducted and that careful development and use of a selection procedure
in accordance with professional standards enhance the probability that
the selection procedure is valid for the job.
Sec. 10. Employment agencies and employment services-- A. Where
selection procedures are devised by agency. An employment agency,
including private employment agencies and State employment agencies,
which
[[Page 50]]
agrees to a request by an employer or labor organization to device and
utilize a selection procedure should follow the standards in these
guidelines for determining adverse impact. If adverse impact exists the
agency should comply with these guidelines. An employment agency is not
relieved of its obligation herein because the user did not request such
validation or has requested the use of some lesser standard of
validation than is provided in these guidelines. The use of an
employment agency does not relieve an employer or labor organization or
other user of its responsibilities under Federal law to provide equal
employment opportunity or its obligations as a user under these
guidelines.
B. Where selection procedures are devised elsewhere. Where an
employment agency or service is requested to administer a selection
procedure which has been devised elsewhere and to make referrals
pursuant to the results, the employment agency or service should
maintain and have available evidence of the impact of the selection and
referral procedures which it administers. If adverse impact results the
agency or service should comply with these guidelines. If the agency or
service seeks to comply with these guidelines by reliance upon validity
studies or other data in the possession of the employer, it should
obtain and have available such information.
Sec. 11. Disparate treatment. The principles of disparate or unequal
treatment must be distinguished from the concepts of validation. A
selection procedure--even though validated against job performance in
accordance with these guidelines--cannot be imposed upon members of a
race, sex, or ethnic group where other employees, applicants, or members
have not been subjected to that standard. Disparate treatment occurs
where members of a race, sex, or ethnic group have been denied the same
employment, promotion, membership, or other employment opportunities as
have been available to other employees or applicants. Those employees or
applicants who have been denied equal treatment, because of prior
discriminatory practices or policies, must at least be afforded the same
opportunities as had existed for other employees or applicants during
the period of discrimination. Thus, the persons who were in the class of
persons discriminated against during the period the user followed the
discriminatory practices should be allowed the opportunity to qualify
under less stringent selection procedures previously followed, unless
the user demonstrates that the increased standards are required by
business necessity. This section does not prohibit a user who has not
previously followed merit standards from adopting merit standards which
are in compliance with these guidelines; nor does it preclude a user who
has previously used invalid or unvalidated selection procedures from
developing and using procedures which are in accord with these
guidelines.
Sec. 12. Retesting of applicants. Users should provide a reasonable
opportunity for retesting and reconsideration. Where examinations are
administered periodically with public notice, such reasonable
opportunity exists, unless persons who have previously been tested are
precluded from retesting. The user may however take reasonable steps to
preserve the security of its procedures.
Sec. 13. Affirmative action-- A. Affirmative action obligations. The
use of selection procedures which have been validated pursuant to these
guidelines does not relieve users of any obligations they may have to
undertake affirmative action to assure equal employment opportunity.
Nothing in these guidelines is intended to preclude the use of lawful
selection procedures which assist in remedying the effects of prior
discriminatory practices, or the achievement of affirmative action
objectives.
B. Encouragement of voluntary affirmative action programs. These
guidelines are also intended to encourage the adoption and
implementation of voluntary affirmative action programs by users who
have no obligation under Federal law to adopt them; but are not intended
to impose any new obligations in that regard. The agencies issuing and
endorsing these guidelines endorse for all private employers and
reaffirm for all governmental employers the Equal Employment Opportunity
Coordinating Council's ``Policy Statement on Affirmative Action Programs
for State and Local Government Agencies'' (41 FR 38814, September 13,
1976). That policy statement is attached hereto as appendix, section 17.
Technical Standards
Sec. 14. Technical standards for validity studies. The following
minimum standards, as applicable, should be met in conducting a validity
study. Nothing in these guidelines is intended to preclude the
development and use of other professionally acceptable techniques with
respect to validation of selection procedures. Where it is not
technically feasible for a user to conduct a validity study, the user
has the obligation otherwise to comply with these guidelines. See
sections 6 and 7 above.
A. Validity studies should be based on review of information about
the job. Any validity study should be based upon a review of information
about the job for which the selection procedure is to be used. The
review should include a job analysis except as provided in section
14B(3) below with respect to criterion-related validity. Any method of
job analysis may be used if it provides the information required for the
specific validation strategy used.
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B. Technical standards for criterion-related validity studies--(1)
Technical feasibility. Users choosing to validate a selection procedure
by a criterion-related validity strategy should determine whether it is
technically feasible (as defined in section 16) to conduct such a study
in the particular employment context. The determination of the number of
persons necessary to permit the conduct of a meaningful criterion-
related study should be made by the user on the basis of all relevant
information concerning the selection procedure, the potential sample and
the employment situation. Where appropriate, jobs with substantially the
same major work behaviors may be grouped together for validity studies,
in order to obtain an adequate sample. These guidelines do not require a
user to hire or promote persons for the purpose of making it possible to
conduct a criterion-related study.
(2) Analysis of the job. There should be a review of job information
to determine measures of work behavior(s) or performance that are
relevant to the job or group of jobs in question. These measures or
criteria are relevant to the extent that they represent critical or
important job duties, work behaviors or work outcomes as developed from
the review of job information. The possibility of bias should be
considered both in selection of the criterion measures and their
application. In view of the possibility of bias in subjective
evaluations, supervisory rating techniques and instructions to raters
should be carefully developed. All criterion measures and the methods
for gathering data need to be examined for freedom from factors which
would unfairly alter scores of members of any group. The relevance of
criteria and their freedom from bias are of particular concern when
there are significant differences in measures of job performance for
different groups.
(3) Criterion measures. Proper safeguards should be taken to insure
that scores on selection procedures do not enter into any judgments of
employee adequacy that are to be used as criterion measures. Whatever
criteria are used should represent important or critical work
behavior(s) or work outcomes. Certain criteria may be used without a
full job analysis if the user can show the importance of the criteria to
the particular employment context. These criteria include but are not
limited to production rate, error rate, tardiness, absenteeism, and
length of service. A standardized rating of overall work performance may
be used where a study of the job shows that it is an appropriate
criterion. Where performance in training is used as a criterion, success
in training should be properly measured and the relevance of the
training should be shown either through a comparsion of the content of
the training program with the critical or important work behavior(s) of
the job(s), or through a demonstration of the relationship between
measures of performance in training and measures of job performance.
Measures of relative success in training include but are not limited to
instructor evaluations, performance samples, or tests. Criterion
measures consisting of paper and pencil tests will be closely reviewed
for job relevance.
(4) Representativeness of the sample. Whether the study is
predictive or concurrent, the sample subjects should insofar as feasible
be representative of the candidates normally available in the relevant
labor market for the job or group of jobs in question, and should
insofar as feasible include the races, sexes, and ethnic groups normally
available in the relevant job market. In determining the
representativeness of the sample in a concurrent validity study, the
user should take into account the extent to which the specific
knowledges or skills which are the primary focus of the test are those
which employees learn on the job.
Where samples are combined or compared, attention should be given to
see that such samples are comparable in terms of the actual job they
perform, the length of time on the job where time on the job is likely
to affect performance, and other relevant factors likely to affect
validity differences; or that these factors are included in the design
of the study and their effects identified.
(5) Statistical relationships. The degree of relationship between
selection procedure scores and criterion measures should be examined and
computed, using professionally acceptable statistical procedures.
Generally, a selection procedure is considered related to the criterion,
for the purposes of these guidelines, when the relationship between
performance on the procedure and performance on the criterion measure is
statistically significant at the 0.05 level of significance, which means
that it is sufficiently high as to have a probability of no more than
one (1) in twenty (20) to have occurred by chance. Absence of a
statistically significant relationship between a selection procedure and
job performance should not necessarily discourage other investigations
of the validity of that selection procedure.
(6) Operational use of selection procedures. Users should evaluate
each selection procedure to assure that it is appropriate for
operational use, including establishment of cutoff scores or rank
ordering. Generally, if other factors reman the same, the greater the
magnitude of the relationship (e.g., correlation coefficent) between
performance on a selection procedure and one or more criteria of
performance on the job, and the greater the importance and number of
aspects of job performance covered by the criteria, the more likely it
is that the procedure will be appropriate for use. Reliance upon a
selection procedure which is significantly related to a criterion
measure, but which is based upon a study involving a large
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number of subjects and has a low correlation coefficient will be subject
to close review if it has a large adverse impact. Sole reliance upon a
single selection instrument which is related to only one of many job
duties or aspects of job performance will also be subject to close
review. The appropriateness of a selection procedure is best evaluated
in each particular situation and there are no minimum correlation
coefficients applicable to all employment situations. In determining
whether a selection procedure is appropriate for operational use the
following considerations should also be taken into account: The degree
of adverse impact of the procedure, the availability of other selection
procedures of greater or substantially equal validity.
(7) Overstatement of validity findings. Users should avoid reliance
upon techniques which tend to overestimate validity findings as a result
of capitalization on chance unless an appropriate safeguard is taken.
Reliance upon a few selection procedures or criteria of successful job
performance when many selection procedures or criteria of performance
have been studied, or the use of optimal statistical weights for
selection procedures computed in one sample, are techniques which tend
to inflate validity estimates as a result of chance. Use of a large
sample is one safeguard: Cross-validation is another.
(8) Fairness. This section generally calls for studies of unfairness
where technically feasible. The concept of fairness or unfairness of
selection procedures is a developing concept. In addition, fairness
studies generally require substantial numbers of employees in the job or
group of jobs being studied. For these reasons, the Federal enforcement
agencies recognize that the obligation to conduct studies of fairness
imposed by the guidelines generally will be upon users or groups of
users with a large number of persons in a a job class, or test
developers; and that small users utilizing their own selection
procedures will generally not be obligated to conduct such studies
because it will be technically infeasible for them to do so.
(a) Unfairness defined. When members of one race, sex, or ethnic
group characteristically obtain lower scores on a selection procedure
than members of another group, and the differences in scores are not
reflected in differences in a measure of job performance, use of the
selection procedure may unfairly deny opportunities to members of the
group that obtains the lower scores.
(b) Investigation of fairness. Where a selection procedure results
in an adverse impact on a race, sex, or ethnic group identified in
accordance with the classifications set forth in section 4 above and
that group is a significant factor in the relevant labor market, the
user generally should investigate the possible existence of unfairness
for that group if it is technically feasible to do so. The greater the
severity of the adverse impact on a group, the greater the need to
investigate the possible existence of unfairness. Where the weight of
evidence from other studies shows that the selection procedure predicts
fairly for the group in question and for the same or similar jobs, such
evidence may be relied on in connection with the selection procedure at
issue.
(c) General considerations in fairness investigations. Users
conducting a study of fairness should review the A.P.A. Standards
regarding investigation of possible bias in testing. An investigation of
fairness of a selection procedure depends on both evidence of validity
and the manner in which the selection procedure is to be used in a
particular employment context. Fairness of a selection procedure cannot
necessarily be specified in advance without investigating these factors.
Investigation of fairness of a selection procedure in samples where the
range of scores on selection procedures or criterion measures is
severely restricted for any subgroup sample (as compared to other
subgroup samples) may produce misleading evidence of unfairness. That
factor should accordingly be taken into account in conducting such
studies and before reliance is placed on the results.
(d) When unfairness is shown. If unfairness is demonstrated through
a showing that members of a particular group perform better or poorer on
the job than their scores on the selection procedure would indicate
through comparison with how members of other groups perform, the user
may either revise or replace the selection instrument in accordance with
these guidelines, or may continue to use the selection instrument
operationally with appropriate revisions in its use to assure
compatibility between the probability of successful job performance and
the probability of being selected.
(e) Technical feasibility of fairness studies. In addition to the
general conditions needed for technical feasibility for the conduct of a
criterion-related study (see section 16, below) an investigation of
fairness requires the following:
(i) An adequate sample of persons in each group available for the
study to achieve findings of statistical significance. Guidelines do not
require a user to hire or promote persons on the basis of group
classifications for the purpose of making it possible to conduct a study
of fairness; but the user has the obligation otherwise to comply with
these guidelines.
(ii) The samples for each group should be comparable in terms of the
actual job they perform, length of time on the job where time on the job
is likely to affect performance, and other relevant factors likely to
affect validity differences; or such factors should be included in the
design of the study and their effects identified.
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(f) Continued use of selection procedures when fairness studies not
feasible. If a study of fairness should otherwise be performed, but is
not technically feasible, a selection procedure may be used which has
otherwise met the validity standards of these guidelines, unless the
technical infeasibility resulted from discriminatory employment
practices which are demonstrated by facts other than past failure to
conform with requirements for validation of selection procedures.
However, when it becomes technically feasible for the user to perform a
study of fairness and such a study is otherwise called for, the user
should conduct the study of fairness.
C. Technical standards for content validity studies--(1)
Appropriateness of content validity studies. Users choosing to validate
a selection procedure by a content validity strategy should determine
whether it is appropriate to conduct such a study in the particular
employment context. A selection procedure can be supported by a content
validity strategy to the extent that it is a representative sample of
the content of the job. Selection procedures which purport to measure
knowledges, skills, or abilities may in certain circumstances be
justified by content validity, although they may not be representative
samples, if the knowledge, skill, or ability measured by the selection
procedure can be operationally defined as provided in section 14C(4)
below, and if that knowledge, skill, or ability is a necessary
prerequisite to successful job performance.
A selection procedure based upon inferences about mental processes
cannot be supported solely or primarily on the basis of content
validity. Thus, a content strategy is not appropriate for demonstrating
the validity of selection procedures which purport to measure traits or
constructs, such as intelligence, aptitude, personality, commonsense,
judgment, leadership, and spatial ability. Content validity is also not
an appropriate strategy when the selection procedure involves
knowledges, skills, or abilities which an employee will be expected to
learn on the job.
(2) Job analysis for content validity. There should be a job
analysis which includes an analysis of the important work behavior(s)
required for successful performance and their relative importance and,
if the behavior results in work product(s), an analysis of the work
product(s). Any job analysis should focus on the work behavior(s) and
the tasks associated with them. If work behavior(s) are not observable,
the job analysis should identify and analyze those aspects of the
behavior(s) that can be observed and the observed work products. The
work behavior(s) selected for measurement should be critical work
behavior(s) and/or important work behavior(s) constituting most of the
job.
(3) Development of selection procedures. A selection procedure
designed to measure the work behavior may be developed specifically from
the job and job analysis in question, or may have been previously
developed by the user, or by other users or by a test publisher.
(4) Standards for demonstrating content validity. To demonstrate the
content validity of a selection procedure, a user should show that the
behavior(s) demonstrated in the selection procedure are a representative
sample of the behavior(s) of the job in question or that the selection
procedure provides a representative sample of the work product of the
job. In the case of a selection procedure measuring a knowledge, skill,
or ability, the knowledge, skill, or ability being measured should be
operationally defined. In the case of a selection procedure measuring a
knowledge, the knowledge being measured should be operationally defined
as that body of learned information which is used in and is a necessary
prerequisite for observable aspects of work behavior of the job. In the
case of skills or abilities, the skill or ability being measured should
be operationally defined in terms of observable aspects of work behavior
of the job. For any selection procedure measuring a knowledge, skill, or
ability the user should show that (a) the selection procedure measures
and is a representative sample of that knowledge, skill, or ability; and
(b) that knowledge, skill, or ability is used in and is a necessary
prerequisite to performance of critical or important work behavior(s).
In addition, to be content valid, a selection procedure measuring a
skill or ability should either closely approximate an observable work
behavior, or its product should closely approximate an observable work
product. If a test purports to sample a work behavior or to provide a
sample of a work product, the manner and setting of the selection
procedure and its level and complexity should closely approximate the
work situation. The closer the content and the context of the selection
procedure are to work samples or work behaviors, the stronger is the
basis for showing content validity. As the content of the selection
procedure less resembles a work behavior, or the setting and manner of
the administration of the selection procedure less resemble the work
situation, or the result less resembles a work product, the less likely
the selection procedure is to be content valid, and the greater the need
for other evidence of validity.
(5) Reliability. The reliability of selection procedures justified
on the basis of content validity should be a matter of concern to the
user. Whenever it is feasible, appropriate statistical estimates should
be made of the reliability of the selection procedure.
(6) Prior training or experience. A requirement for or evaluation of
specific prior training or experience based on content validity,
including a specification of level or amount of training or experience,
should be
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justified on the basis of the relationship between the content of the
training or experience and the content of the job for which the training
or experience is to be required or evaluated. The critical consideration
is the resemblance between the specific behaviors, products, knowledges,
skills, or abilities in the experience or training and the specific
behaviors, products, knowledges, skills, or abilities required on the
job, whether or not there is close resemblance between the experience or
training as a whole and the job as a whole.
(7) Content validity of training success. Where a measure of success
in a training program is used as a selection procedure and the content
of a training program is justified on the basis of content validity, the
use should be justified on the relationship between the content of the
training program and the content of the job.
(8) Operational use. A selection procedure which is supported on the
basis of content validity may be used for a job if it represents a
critical work behavior (i.e., a behavior which is necessary for
performance of the job) or work behaviors which constitute most of the
important parts of the job.
(9) Ranking based on content validity studies. If a user can show,
by a job analysis or otherwise, that a higher score on a content valid
selection procedure is likely to result in better job performance, the
results may be used to rank persons who score above minimum levels.
Where a selection procedure supported solely or primarily by content
validity is used to rank job candidates, the selection procedure should
measure those aspects of performance which differentiate among levels of
job performance.
D. Technical standards for construct validity studies--(1)
Appropriateness of construct validity studies. Construct validity is a
more complex strategy than either criterion-related or content validity.
Construct validation is a relatively new and developing procedure in the
employment field, and there is at present a lack of substantial
literature extending the concept to employment practices. The user
should be aware that the effort to obtain sufficient empirical support
for construct validity is both an extensive and arduous effort involving
a series of research studies, which include criterion related validity
studies and which may include content validity studies. Users choosing
to justify use of a selection procedure by this strategy should
therefore take particular care to assure that the validity study meets
the standards set forth below.
(2) Job analysis for construct validity studies. There should be a
job analysis. This job analysis should show the work behavior(s)
required for successful performance of the job, or the groups of jobs
being studied, the critical or important work behavior(s) in the job or
group of jobs being studied, and an identification of the construct(s)
believed to underlie successful performance of these critical or
important work behaviors in the job or jobs in question. Each construct
should be named and defined, so as to distinguish it from other
constructs. If a group of jobs is being studied the jobs should have in
common one or more critical or important work behaviors at a comparable
level of complexity.
(3) Relationship to the job. A selection procedure should then be
identified or developed which measures the construct identified in
accord with paragraph (2) above. The user should show by empirical
evidence that the selection procedure is validly related to the
construct and that the construct is validly related to the performance
of critical or important work behavior(s). The relationship between the
construct as measured by the selection procedure and the related work
behavior(s) should be supported by empirical evidence from one or more
criterion-related studies involving the job or jobs in question which
satisfy the provisions of section 14B above.
(4) Use of construct validity study without new criterion-related
evidence--(a) Standards for use. Until such time as professional
literature provides more guidance on the use of construct validity in
employment situations, the Federal agencies will accept a claim of
construct validity without a criterion-related study which satisfies
section 14B above only when the selection procedure has been used
elsewhere in a situation in which a criterion-related study has been
conducted and the use of a criterion-related validity study in this
context meets the standards for transportability of criterion-related
validity studies as set forth above in section 7. However, if a study
pertains to a number of jobs having common critical or important work
behaviors at a comparable level of complexity, and the evidence
satisfies paragraphs 14B (2) and (3) above for those jobs with
criterion-related validity evidence for those jobs, the selection
procedure may be used for all the jobs to which the study pertains. If
construct validity is to be generalized to other jobs or groups of jobs
not in the group studied, the Federal enforcement agencies will expect
at a minimum additional empirical research evidence meeting the
standards of paragraphs section 14B (2) and (3) above for the additional
jobs or groups of jobs.
(b) Determination of common work behaviors. In determining whether
two or more jobs have one or more work behavior(s) in common, the user
should compare the observed work behavior(s) in each of the jobs and
should compare the observed work product(s) in each of the jobs. If
neither the observed work behavior(s) in each of the jobs nor the
observed work product(s) in each of the jobs
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are the same, the Federal enforcement agencies will presume that the
work behavior(s) in each job are different. If the work behaviors are
not observable, then evidence of similarity of work products and any
other relevant research evidence will be considered in determining
whether the work behavior(s) in the two jobs are the same.
Documentation of Impact and Validity Evidence
Sec. 15. Documentation of impact and validity evidence-- A. Required
information. Users of selection procedures other than those users
complying with section 15A(1) below should maintain and have available
for each job information on adverse impact of the selection process for
that job and, where it is determined a selection process has an adverse
impact, evidence of validity as set forth below.
(1) Simplified recordkeeping for users with less than 100 employees.
In order to minimize recordkeeping burdens on employers who employ one
hundred (100) or fewer employees, and other users not required to file
EEO-1, et seq., reports, such users may satisfy the requirements of this
section 15 if they maintain and have available records showing, for each
year:
(a) The number of persons hired, promoted, and terminated for each
job, by sex, and where appropriate by race and national origin;
(b) The number of applicants for hire and promotion by sex and where
appropriate by race and national origin; and
(c) The selection procedures utilized (either standardized or not
standardized).
These records should be maintained for each race or national origin
group (see section 4 above) constituting more than two percent (2%) of
the labor force in the relevant labor area. However, it is not necessary
to maintain records by race and/or national origin (see section 4 above)
if one race or national origin group in the relevant labor area
constitutes more than ninety-eight percent (98%) of the labor force in
the area. If the user has reason to believe that a selection procedure
has an adverse impact, the user should maintain any available evidence
of validity for that procedure (see sections 7A and 8).
(2) Information on impact--(a) Collection of information on impact.
Users of selection procedures other than those complying with section
15A(1) above should maintain and have available for each job records or
other information showing whether the total selection process for that
job has an adverse impact on any of the groups for which records are
called for by sections 4B above. Adverse impact determinations should be
made at least annually for each such group which constitutes at least 2
percent of the labor force in the relevant labor area or 2 percent of
the applicable workforce. Where a total selection process for a job has
an adverse impact, the user should maintain and have available records
or other information showing which components have an adverse impact.
Where the total selection process for a job does not have an adverse
impact, information need not be maintained for individual components
except in circumstances set forth in subsection 15A(2)(b) below. If the
determination of adverse impact is made using a procedure other than the
``four-fifths rule,'' as defined in the first sentence of section 4D
above, a justification, consistent with section 4D above, for the
procedure used to determine adverse impact should be available.
(b) When adverse impact has been eliminated in the total selection
process. Whenever the total selection process for a particular job has
had an adverse impact, as defined in section 4 above, in any year, but
no longer has an adverse impact, the user should maintain and have
available the information on individual components of the selection
process required in the preceding paragraph for the period in which
there was adverse impact. In addition, the user should continue to
collect such information for at least two (2) years after the adverse
impact has been eliminated.
(c) When data insufficient to determine impact. Where there has been
an insufficient number of selections to determine whether there is an
adverse impact of the total selection process for a particular job, the
user should continue to collect, maintain and have available the
information on individual components of the selection process required
in section 15(A)(2)(a) above until the information is sufficient to
determine that the overall selection process does not have an adverse
impact as defined in section 4 above, or until the job has changed
substantially.
(3) Documentation of validity evidence--(a) Types of evidence. Where
a total selection process has an adverse impact (see section 4 above)
the user should maintain and have available for each component of that
process which has an adverse impact, one or more of the following types
of documentation evidence:
(i) Documentation evidence showing criterion-related validity of the
selection procedure (see section 15B, below).
(ii) Documentation evidence showing content validity of the
selection procedure (see section 15C, below).
(iii) Documentation evidence showing construct validity of the
selection procedure (see section 15D, below).
(iv) Documentation evidence from other studies showing validity of
the selection procedure in the user's facility (see section 15E, below).
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(v) Documentation evidence showing why a validity study cannot or
need not be performed and why continued use of the procedure is
consistent with Federal law.
(b) Form of report. This evidence should be compiled in a reasonably
complete and organized manner to permit direct evaluation of the
validity of the selection procedure. Previously written employer or
consultant reports of validity, or reports describing validity studies
completed before the issuance of these guidelines are acceptable if they
are complete in regard to the documentation requirements contained in
this section, or if they satisfied requirements of guidelines which were
in effect when the validity study was completed. If they are not
complete, the required additional documentation should be appended. If
necessary information is not available the report of the validity study
may still be used as documentation, but its adequacy will be evaluated
in terms of compliance with the requirements of these guidelines.
(c) Completeness. In the event that evidence of validity is reviewed
by an enforcement agency, the validation reports completed after the
effective date of these guidelines are expected to contain the
information set forth below. Evidence denoted by use of the word
``(Essential)'' is considered critical. If information denoted essential
is not included, the report will be considered incomplete unless the
user affirmatively demonstrates either its unavailability due to
circumstances beyond the user's control or special circumstances of the
user's study which make the information irrelevant. Evidence not so
denoted is desirable but its absence will not be a basis for considering
a report incomplete. The user should maintain and have available the
information called for under the heading ``Source Data'' in sections
15B(11) and 15D(11). While it is a necessary part of the study, it need
not be submitted with the report. All statistical results should be
organized and presented in tabular or graphic form to the extent
feasible.
B. Criterion-related validity studies. Reports of criterion-related
validity for a selection procedure should include the following
information:
(1) User(s), location(s), and date(s) of study. Dates and
location(s) of the job analysis or review of job information, the
date(s) and location(s) of the administration of the selection
procedures and collection of criterion data, and the time between
collection of data on selection procedures and criterion measures should
be provided (Essential). If the study was conducted at several
locations, the address of each location, including city and State,
should be shown.
(2) Problem and setting. An explicit definition of the purpose(s) of
the study and the circumstances in which the study was conducted should
be provided. A description of existing selection procedures and cutoff
scores, if any, should be provided.
(3) Job analysis or review of job information. A description of the
procedure used to analyze the job or group of jobs, or to review the job
information should be provided (Essential). Where a review of job
information results in criteria which may be used without a full job
analysis (see section 14B(3)), the basis for the selection of these
criteria should be reported (Essential). Where a job analysis is
required a complete description of the work behavior(s) or work
outcome(s), and measures of their criticality or importance should be
provided (Essential). The report should describe the basis on which the
behavior(s) or outcome(s) were determined to be critical or important,
such as the proportion of time spent on the respective behaviors, their
level of difficulty, their frequency of performance, the consequences of
error, or other appropriate factors (Essential). Where two or more jobs
are grouped for a validity study, the information called for in this
subsection should be provided for each of the jobs, and the
justification for the grouping (see section 14B(1)) should be provided
(Essential).
(4) Job titles and codes. It is desirable to provide the user's job
title(s) for the job(s) in question and the corresponding job title(s)
and code(s) from U.S. Employment Service's Dictionary of Occupational
Titles.
(5) Criterion measures. The bases for the selection of the criterion
measures should be provided, together with references to the evidence
considered in making the selection of criterion measures (essential). A
full description of all criteria on which data were collected and means
by which they were observed, recorded, evaluated, and quantified, should
be provided (essential). If rating techniques are used as criterion
measures, the appraisal form(s) and instructions to the rater(s) should
be included as part of the validation evidence, or should be explicitly
described and available (essential). All steps taken to insure that
criterion measures are free from factors which would unfairly alter the
scores of members of any group should be described (essential).
(6) Sample description. A description of how the research sample was
identified and selected should be included (essential). The race, sex,
and ethnic composition of the sample, including those groups set forth
in section 4A above, should be described (essential). This description
should include the size of each subgroup (essential). A description of
how the research sample compares with the relevant labor market or work
force, the method by which the relevant labor market or work force was
defined, and a discussion of the likely effects on validity of
differences between the sample and the relevant labor
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market or work force, are also desirable. Descriptions of educational
levels, length of service, and age are also desirable.
(7) Description of selection procedures. Any measure, combination of
measures, or procedure studied should be completely and explicitly
described or attached (essential). If commercially available selection
procedures are studied, they should be described by title, form, and
publisher (essential). Reports of reliability estimates and how they
were established are desirable.
(8) Techniques and results. Methods used in analyzing data should be
described (essential). Measures of central tendency (e.g., means) and
measures of dispersion (e.g., standard deviations and ranges) for all
selection procedures and all criteria should be reported for each race,
sex, and ethnic group which constitutes a significant factor in the
relevant labor market (essential). The magnitude and direction of all
relationships between selection procedures and criterion measures
investigated should be reported for each relevant race, sex, and ethnic
group and for the total group (essential). Where groups are too small to
obtain reliable evidence of the magnitude of the relationship, need not
be reported separately. Statements regarding the statistical
significance of results should be made (essential). Any statistical
adjustments, such as for less then perfect reliability or for
restriction of score range in the selection procedure or criterion
should be described and explained; and uncorrected correlation
coefficients should also be shown (essential). Where the statistical
technique categorizes continuous data, such as biserial correlation and
the phi coefficient, the categories and the bases on which they were
determined should be described and explained (essential). Studies of
test fairness should be included where called for by the requirements of
section 14B(8) (essential). These studies should include the rationale
by which a selection procedure was determined to be fair to the group(s)
in question. Where test fairness or unfairness has been demonstrated on
the basis of other studies, a bibliography of the relevant studies
should be included (essential). If the bibliography includes unpublished
studies, copies of these studies, or adequate abstracts or summaries,
should be attached (essential). Where revisions have been made in a
selection procedure to assure compatability between successful job
performance and the probability of being selected, the studies
underlying such revisions should be included (essential). All
statistical results should be organized and presented by relevant race,
sex, and ethnic group (essential).
(9) Alternative procedures investigated. The selection procedures
investigated and available evidence of their impact should be identified
(essential). The scope, method, and findings of the investigation, and
the conclusions reached in light of the findings, should be fully
described (essential).
(10) Uses and applications. The methods considered for use of the
selection procedure (e.g., as a screening device with a cutoff score,
for grouping or ranking, or combined with other procedures in a battery)
and available evidence of their impact should be described (essential).
This description should include the rationale for choosing the method
for operational use, and the evidence of the validity and utility of the
procedure as it is to be used (essential). The purpose for which the
procedure is to be used (e.g., hiring, transfer, promotion) should be
described (essential). If weights are assigned to different parts of the
selection procedure, these weights and the validity of the weighted
composite should be reported (essential). If the selection procedure is
used with a cutoff score, the user should describe the way in which
normal expectations of proficiency within the work force were determined
and the way in which the cutoff score was determined (essential).
(11) Source data. Each user should maintain records showing all
pertinent information about individual sample members and raters where
they are used, in studies involving the validation of selection
procedures. These records should be made available upon request of a
compliance agency. In the case of individual sample members these data
should include scores on the selection procedure(s), scores on criterion
measures, age, sex, race, or ethnic group status, and experience on the
specific job on which the validation study was conducted, and may also
include such things as education, training, and prior job experience,
but should not include names and social security numbers. Records should
be maintained which show the ratings given to each sample member by each
rater.
(12) Contact person. The name, mailing address, and telephone number
of the person who may be contacted for further information about the
validity study should be provided (essential).
(13) Accuracy and completeness. The report should describe the steps
taken to assure the accuracy and completeness of the collection,
analysis, and report of data and results.
C. Content validity studies. Reports of content validity for a
selection procedure should include the following information:
(1) User(s), location(s) and date(s) of study. Dates and location(s)
of the job analysis should be shown (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of
the study and the circumstances in which the study was conducted should
be provided. A description of existing selection procedures and cutoff
scores, if any, should be provided.
(3) Job analysis--Content of the job. A description of the method
used to analyze the job should be provided (essential). The work
[[Page 58]]
behavior(s), the associated tasks, and, if the behavior results in a
work product, the work products should be completely described
(essential). Measures of criticality and/or importance of the work
behavior(s) and the method of determining these measures should be
provided (essential). Where the job analysis also identified the
knowledges, skills, and abilities used in work behavior(s), an
operational definition for each knowledge in terms of a body of learned
information and for each skill and ability in terms of observable
behaviors and outcomes, and the relationship between each knowledge,
skill, or ability and each work behavior, as well as the method used to
determine this relationship, should be provided (essential). The work
situation should be described, including the setting in which work
behavior(s) are performed, and where appropriate, the manner in which
knowledges, skills, or abilities are used, and the complexity and
difficulty of the knowledge, skill, or ability as used in the work
behavior(s).
(4) Selection procedure and its content. Selection procedures,
including those constructed by or for the user, specific training
requirements, composites of selection procedures, and any other
procedure supported by content validity, should be completely and
explicitly described or attached (essential). If commercially available
selection procedures are used, they should be described by title, form,
and publisher (essential). The behaviors measured or sampled by the
selection procedure should be explicitly described (essential). Where
the selection procedure purports to measure a knowledge, skill, or
ability, evidence that the selection procedure measures and is a
representative sample of the knowledge, skill, or ability should be
provided (essential).
(5) Relationship between the selection procedure and the job. The
evidence demonstrating that the selection procedure is a representative
work sample, a representative sample of the work behavior(s), or a
representative sample of a knowledge, skill, or ability as used as a
part of a work behavior and necessary for that behavior should be
provided (essential). The user should identify the work behavior(s)
which each item or part of the selection procedure is intended to sample
or measure (essential). Where the selection procedure purports to sample
a work behavior or to provide a sample of a work product, a comparison
should be provided of the manner, setting, and the level of complexity
of the selection procedure with those of the work situation (essential).
If any steps were taken to reduce adverse impact on a race, sex, or
ethnic group in the content of the procedure or in its administration,
these steps should be described. Establishment of time limits, if any,
and how these limits are related to the speed with which duties must be
performed on the job, should be explained. Measures of central tend-
ency (e.g., means) and measures of dispersion (e.g., standard
deviations) and estimates of realibility should be reported for all
selection procedures if available. Such reports should be made for
relevant race, sex, and ethnic subgroups, at least on a statistically
reliable sample basis.
(6) Alternative procedures investigated. The alternative selection
procedures investigated and available evidence of their impact should be
identified (essential). The scope, method, and findings of the
investigation, and the conclusions reached in light of the findings,
should be fully described (essential).
(7) Uses and applications. The methods considered for use of the
selection procedure (e.g., as a screening device with a cutoff score,
for grouping or ranking, or combined with other procedures in a battery)
and available evidence of their impact should be described (essential).
This description should include the rationale for choosing the method
for operational use, and the evidence of the validity and utility of the
procedure as it is to be used (essential). The purpose for which the
procedure is to be used (e.g., hiring, transfer, promotion) should be
described (essential). If the selection procedure is used with a cutoff
score, the user should describe the way in which normal expectations of
proficiency within the work force were determined and the way in which
the cutoff score was determined (essential). In addition, if the
selection procedure is to be used for ranking, the user should specify
the evidence showing that a higher score on the selection procedure is
likely to result in better job performance.
(8) Contact person. The name, mailing address, and telephone number
of the person who may be contacted for further information about the
validity study should be provided (essential).
(9) Accuracy and completeness. The report should describe the steps
taken to assure the accuracy and completeness of the collection,
analysis, and report of data and results.
D. Construct validity studies. Reports of construct validity for a
selection procedure should include the following information:
(1) User(s), location(s), and date(s) of study. Date(s) and
location(s) of the job analysis and the gathering of other evidence
called for by these guidelines should be provided (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of
the study and the circumstances in which the study was conducted should
be provided. A description of existing selection procedures and cutoff
scores, if any, should be provided.
(3) Construct definition. A clear definition of the construct(s)
which are believed to underlie successful performance of the critical or
[[Page 59]]
important work behavior(s) should be provided (essential). This
definition should include the levels of construct performance relevant
to the job(s) for which the selection procedure is to be used
(essential). There should be a summary of the position of the construct
in the psychological literature, or in the absence of such a position, a
description of the way in which the definition and measurement of the
construct was developed and the psychological theory underlying it
(essential). Any quantitative data which identify or define the job
constructs, such as factor analyses, should be provided (essential).
(4) Job analysis. A description of the method used to analyze the
job should be provided (essential). A complete description of the work
behavior(s) and, to the extent appropriate, work outcomes and measures
of their criticality and/or importance should be provided (essential).
The report should also describe the basis on which the behavior(s) or
outcomes were determined to be important, such as their level of
difficulty, their frequency of performance, the consequences of error or
other appropriate factors (essential). Where jobs are grouped or
compared for the purposes of generalizing validity evidence, the work
behavior(s) and work product(s) for each of the jobs should be
described, and conclusions concerning the similarity of the jobs in
terms of observable work behaviors or work products should be made
(essential).
(5) Job titles and codes. It is desirable to provide the selection
procedure user's job title(s) for the job(s) in question and the
corresponding job title(s) and code(s) from the United States Employment
Service's dictionary of occupational titles.
(6) Selection procedure. The selection procedure used as a measure
of the construct should be completely and explicitly described or
attached (essential). If commercially available selection procedures are
used, they should be identified by title, form and publisher
(essential). The research evidence of the relationship between the
selection procedure and the construct, such as factor structure, should
be included (essential). Measures of central tendency, variability and
reliability of the selection procedure should be provided (essential).
Whenever feasible, these measures should be provided separately for each
relevant race, sex and ethnic group.
(7) Relationship to job performance. The criterion-related
study(ies) and other empirical evidence of the relationship between the
construct measured by the selection procedure and the related work
behavior(s) for the job or jobs in question should be provided
(essential). Documentation of the criterion-related study(ies) should
satisfy the provisions of section 15B above or section 15E(1) below,
except for studies conducted prior to the effective date of these
guidelines (essential). Where a study pertains to a group of jobs, and,
on the basis of the study, validity is asserted for a job in the group,
the observed work behaviors and the observed work products for each of
the jobs should be described (essential). Any other evidence used in
determining whether the work behavior(s) in each of the jobs is the same
should be fully described (essential).
(8) Alternative procedures investigated. The alternative selection
procedures investigated and available evidence of their impact should be
identified (essential). The scope, method, and findings of the
investigation, and the conclusions reached in light of the findings
should be fully described (essential).
(9) Uses and applications. The methods considered for use of the
selection procedure (e.g., as a screening device with a cutoff score,
for grouping or ranking, or combined with other procedures in a battery)
and available evidence of their impact should be described (essential).
This description should include the rationale for choosing the method
for operational use, and the evidence of the validity and utility of the
procedure as it is to be used (essential). The purpose for which the
procedure is to be used (e.g., hiring, transfer, promotion) should be
described (essential). If weights are assigned to different parts of the
selection procedure, these weights and the validity of the weighted
composite should be reported (essential). If the selection procedure is
used with a cutoff score, the user should describe the way in which
normal expectations of proficiency within the work force were determined
and the way in which the cutoff score was determined (essential).
(10) Accuracy and completeness. The report should describe the steps
taken to assure the accuracy and completeness of the collection,
analysis, and report of data and results.
(11) Source data. Each user should maintain records showing all
pertinent information relating to its study of construct validity.
(12) Contact person. The name, mailing address, and telephone number
of the individual who may be contacted for further information about the
validity study should be provided (essential).
E. Evidence of validity from other studies. When validity of a
selection procedure is supported by studies not done by the user, the
evidence from the original study or studies should be compiled in a
manner similar to that required in the appropriate section of this
section 15 above. In addition, the following evidence should be
supplied:
(1) Evidence from criterion-related validity studies--a. Job
information. A description of the important job behavior(s) of the
user's job and the basis on which the behaviors were determined to be
important should be provided (essential). A full description of the
basis for determining that these important work behaviors are the same
as those of the
[[Page 60]]
job in the original study (or studies) should be provided (essential).
b. Relevance of criteria. A full description of the basis on which
the criteria used in the original studies are determined to be relevant
for the user should be provided (essential).
c. Other variables. The similarity of important applicant pool or
sample characteristics reported in the original studies to those of the
user should be described (essential). A description of the comparison
between the race, sex and ethnic composition of the user's relevant
labor market and the sample in the original validity studies should be
provided (essential).
d. Use of the selection procedure. A full description should be
provided showing that the use to be made of the selection procedure is
consistent with the findings of the original validity studies
(essential).
e. Bibliography. A bibliography of reports of validity of the
selection procedure for the job or jobs in question should be provided
(essential). Where any of the studies included an investigation of test
fairness, the results of this investigation should be provided
(essential). Copies of reports published in journals that are not
commonly available should be described in detail or attached
(essential). Where a user is relying upon unpublished studies, a
reasonable effort should be made to obtain these studies. If these
unpublished studies are the sole source of validity evidence they should
be described in detail or attached (essential). If these studies are not
available, the name and address of the source, an adequate abstract or
summary of the validity study and data, and a contact person in the
source organization should be provided (essential).
(2) Evidence from content validity studies. See section 14C(3) and
section 15C above.
(3) Evidence from construct validity studies. See sections 14D(2)
and 15D above.
F. Evidence of validity from cooperative studies. Where a selection
procedure has been validated through a cooperative study, evidence that
the study satisfies the requirements of sections 7, 8 and 15E should be
provided (essential).
G. Selection for higher level job. If a selection procedure is used
to evaluate candidates for jobs at a higher level than those for which
they will initially be employed, the validity evidence should satisfy
the documentation provisions of this section 15 for the higher level job
or jobs, and in addition, the user should provide: (1) A description of
the job progression structure, formal or informal; (2) the data showing
how many employees progress to the higher level job and the length of
time needed to make this progression; and (3) an identification of any
anticipated changes in the higher level job. In addition, if the test
measures a knowledge, skill or ability, the user should provide evidence
that the knowledge, skill or ability is required for the higher level
job and the basis for the conclusion that the knowledge, skill or
ability is not expected to develop from the training or experience on
the job.
H. Interim use of selection procedures. If a selection procedure is
being used on an interim basis because the procedure is not fully
supported by the required evidence of validity, the user should maintain
and have available (1) substantial evidence of validity for the
procedure, and (2) a report showing the date on which the study to
gather the additional evidence commenced, the estimated completion date
of the study, and a description of the data to be collected (essential).
Definitions
Sec. 16. Definitions. The following definitions shall apply
throughout these guidelines:
A. Ability. A present competence to perform an observable behavior
or a behavior which results in an observable product.
B. Adverse impact. A substantially different rate of selection in
hiring, promotion, or other employment decision which works to the
disadvantage of members of a race, sex, or ethnic group. See section 4
of these guidelines.
C. Compliance with these guidelines. Use of a selection procedure is
in compliance with these guidelines if such use has been validated in
accord with these guidelines (as defined below), or if such use does not
result in adverse impact on any race, sex, or ethnic group (see section
4, above), or, in unusual circumstances, if use of the procedure is
otherwise justified in accord with Federal law. See section 6B, above.
D. Content validity. Demonstrated by data showing that the content
of a selection procedure is representative of important aspects of
performance on the job. See section 5B and section 14C.
E. Construct validity. Demonstrated by data showing that the
selection procedure measures the degree to which candidates have
identifiable characteristics which have been determined to be important
for successful job performance. See section 5B and section 14D.
F. Criterion-related validity. Demonstrated by empirical data
showing that the selection procedure is predictive of or significantly
correlated with important elements of work behavior. See sections 5B and
14B.
G. Employer. Any employer subject to the provisions of the Civil
Rights Act of 1964, as amended, including State or local governments and
any Federal agency subject to the provisions of section 717 of the Civil
Rights Act of 1964, as amended, and any Federal
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contractor or subcontractor or federally assisted construction
contractor or subcontactor covered by Executive Order 11246, as amended.
H. Employment agency. Any employment agency subject to the
provisions of the Civil Rights Act of 1964, as amended.
I. Enforcement action. For the purposes of section 4 a proceeding by
a Federal enforcement agency such as a lawsuit or an administrative
proceeding leading to debarment from or withholding, suspension, or
termination of Federal Government contracts or the suspension or
withholding of Federal Government funds; but not a finding of reasonable
cause or a concil- ation process or the issuance of right to sue letters
under title VII or under Executive Order 11246 where such finding,
conciliation, or issuance of notice of right to sue is based upon an
individual complaint.
J. Enforcement agency. Any agency of the executive branch of the
Federal Government which adopts these guidelines for purposes of the
enforcement of the equal employment opportunity laws or which has
responsibility for securing compliance with them.
K. Job analysis. A detailed statement of work behaviors and other
information relevant to the job.
L. Job description. A general statement of job duties and
responsibilities.
M. Knowledge. A body of information applied directly to the
performance of a function.
N. Labor organization. Any labor organization subject to the
provisions of the Civil Rights Act of 1964, as amended, and any
committee subject thereto controlling apprenticeship or other training.
O. Observable. Able to be seen, heard, or otherwise perceived by a
person other than the person performing the action.
P. Race, sex, or ethnic group. Any group of persons identifiable on
the grounds of race, color, religion, sex, or national origin.
Q. Selection procedure. Any measure, combination of measures, or
procedure used as a basis for any employment decision. Selection
procedures include the full range of assessment techniques from
traditional paper and pencil tests, performance tests, training
programs, or probationary periods and physical, educational, and work
experience requirements through informal or casual interviews and
unscored application forms.
R. Selection rate. The proportion of applicants or candidates who
are hired, promoted, or otherwise selected.
S. Should. The term ``should'' as used in these guidelines is
intended to connote action which is necessary to achieve compliance with
the guidelines, while recognizing that there are circumstances where
alternative courses of action are open to users.
T. Skill. A present, observable competence to perform a learned
psychomoter act.
U. Technical feasibility. The exist- ence of conditions permitting
the conduct of meaningful criterion-related validity studies. These
conditions include: (1) An adequate sample of persons available for the
study to achieve findings of statistical significance; (2) having or
being able to obtain a sufficient range of scores on the selection
procedure and job performance measures to produce validity results which
can be expected to be representative of the results if the ranges
normally expected were utilized; and (3) having or being able to devise
unbiased, reliable and relevant measures of job performance or other
criteria of employee adequacy. See section 14B(2). With respect to
investigation of possible unfairness, the same considerations are
applicable to each group for which the study is made. See section
14B(8).
V. Unfairness of selection procedure. A condition in which members
of one race, sex, or ethnic group characteristically obtain lower scores
on a selection procedure than members of another group, and the
differences are not reflected in differences in measures of job
performance. See section 14B(7).
W. User. Any employer, labor organization, employment agency, or
licensing or certification board, to the extent it may be covered by
Federal equal employment opportunity law, which uses a selection
procedure as a basis for any employment decision. Whenever an employer,
labor organization, or employment agency is required by law to restrict
recruitment for any occupation to those applicants who have met
licensing or certification requirements, the licensing or certifying
authority to the extent it may be covered by Federal equal employment
opportunity law will be considered the user with respect to those
licensing or certification requirements. Whenever a State employment
agency or service does no more than administer or monitor a procedure as
permitted by Department of Labor regulations, and does so without making
referrals or taking any other action on the basis of the results, the
State employment agency will not be deemed to be a user.
X. Validated in accord with these guidelines or properly validated.
A demonstration that one or more validity study or studies meeting the
standards of these guidelines has been conducted, including
investigation and, where appropriate, use of suitable alternative
selection procedures as contemplated by section 3B, and has produced
evidence of validity sufficient to warrant use of the procedure for the
intended purpose under the standards of these guidelines.
Y. Work behavior. An activity performed to achieve the objectives of
the job. Work behaviors involve observable (physical) components and
unobservable (mental) components. A work behavior consists of the
performance of one or more tasks. Knowledges,
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skills, and abilities are not behaviors, although they may be applied in
work behaviors.
Appendix
17. Policy statement on affirmative action (see section 13B). The
Equal Employment Opportunity Coordinating Council was established by act
of Congress in 1972, and charged with responsibility for developing and
implementing agreements and policies designed, among other things, to
eliminate conflict and inconsistency among the agencies of the Federal
Government responsible for administering Federal law prohibiting
discrimination on grounds of race, color, sex, religion, and national
origin. This statement is issued as an initial response to the requests
of a number of State and local officials for clarification of the
Government's policies concerning the role of affirmative action in the
overall equal employment opportunity program. While the Coordinating
Council's adoption of this statement expresses only the views of the
signatory agencies concerning this important subject, the principles set
forth below should serve as policy guidance for other Federal agencies
as well.
(1) Equal employment opportunity is the law of the land. In the
public sector of our society this means that all persons, regardless of
race, color, religion, sex, or national origin shall have equal access
to positions in the public service limited only by their ability to do
the job. There is ample evidence in all sectors of our society that such
equal access frequently has been denied to members of certain groups
because of their sex, racial, or ethnic characteristics. The remedy for
such past and present discrimination is twofold.
On the one hand, vigorous enforcement of the laws against
discrimination is essential. But equally, and perhaps even more
important are affirmative, voluntary efforts on the part of public
employers to assure that positions in the public service are genuinely
and equally accessible to qualified persons, without regard to their
sex, racial, or ethnic characteristics. Without such efforts equal
employment opportunity is no more than a wish. The importance of
voluntary affirmative action on the part of employers is underscored by
title VII of the Civil Rights Act of 1964, Executive Order 11246, and
related laws and regulations--all of which emphasize voluntary action to
achieve equal employment opportunity.
As with most management objectives, a systematic plan based on sound
organizational analysis and problem identification is crucial to the
accomplishment of affirmative action objectives. For this reason, the
Council urges all State and local governments to develop and implement
results oriented affirmative action plans which deal with the problems
so identified.
The following paragraphs are intended to assist State and local
governments by illustrating the kinds of analyses and activities which
may be appropriate for a public employer's voluntary affirmative action
plan. This statement does not address remedies imposed after a finding
of unlawful discrimination.
(2) Voluntary affirmative action to assure equal employment
opportunity is appropriate at any stage of the employment process. The
first step in the construction of any affirmative action plan should be
an analysis of the employer's work force to determine whether
percentages of sex, race, or ethnic groups in individual job
classifications are substantially similar to the percentages of those
groups available in the relevant job market who possess the basic job-
related qualifications.
When substantial disparities are found through such analyses, each
element of the overall selection process should be examined to determine
which elements operate to exclude persons on the basis of sex, race, or
ethnic group. Such elements include, but are not limited to,
recruitment, testing, ranking certification, interview, recommendations
for selection, hiring, promotion, etc. The examination of each element
of the selection process should at a minimum include a determination of
its validity in predicting job performance.
(3) When an employer has reason to believe that its selection
procedures have the exclusionary effect described in paragraph 2 above,
it should initiate affirmative steps to remedy the situation. Such
steps, which in design and execution may be race, color, sex, or ethnic
``conscious,'' include, but are not limited to, the following:
(a) The establishment of a long-term goal, and short-range, interim
goals and timetables for the specific job classifications, all of which
should take into account the availability of basically qualified persons
in the relevant job market;
(b) A recruitment program designed to attract qualified members of
the group in question;
(c) A systematic effort to organize work and redesign jobs in ways
that provide opportunities for persons lacking ``journeyman'' level
knowledge or skills to enter and, with appropriate training, to progress
in a career field;
(d) Revamping selection instruments or procedures which have not yet
been validated in order to reduce or eliminate exclusionary effects on
particular groups in particular job classifications;
(e) The initiation of measures designed to assure that members of
the affected group
[[Page 63]]
who are qualified to perform the job are included within the pool of
persons from which the selecting official makes the selection;
(f) A systematic effort to provide career advancement training, both
classroom and on-the-job, to employees locked into dead end jobs; and
(g) The establishment of a system for regularly monitoring the
effectiveness of the particular affirmative action program, and
procedures for making timely adjustments in this program where
effectiveness is not demonstrated.
(4) The goal of any affirmative action plan should be achievement of
genuine equal employment opportunity for all qualified persons.
Selection under such plans should be based upon the ability of the
applicant(s) to do the work. Such plans should not require the selection
of the unqualified, or the unneeded, nor should they require the
selection of persons on the basis of race, color, sex, religion, or
national origin. Moreover, while the Council believes that this
statement should serve to assist State and local employers, as well as
Federal agencies, it recognizes that affirmative action cannot be viewed
as a standardized program which must be accomplished in the same way at
all times in all places.
Accordingly, the Council has not attempted to set forth here either
the minimum or maximum voluntary steps that employers may take to deal
with their respective situations. Rather, the Council recognizes that
under applicable authorities, State and local employers have flexibility
to formulate affirmative action plans that are best suited to their
particular situations. In this manner, the Council believes that
affirmative action programs will best serve the goal of equal employment
opportunity.
Respectfully submitted,
Harold R. Tyler, Jr.,
Deputy Attorney General and Chairman of the Equal Employment
Coordinating Council.
Michael H. Moskow,
Under Secretary of Labor.
Ethel Bent Walsh,
Acting Chairman, Equal Employment Opportunity Commission.
Robert E. Hampton,
Chairman, Civil Service Commission.
Arthur E. Flemming,
Chairman, Commission on Civil Rights.
Because of its equal employment opportunity responsibilities under
the State and Local Government Fiscal Assistance Act of 1972 (the
revenue sharing act), the Department of Treasury was invited to
participate in the formulation of this policy statement; and it concurs
and joins in the adoption of this policy statement.
Done this 26th day of August 1976.
Richard Albrecht,
General Counsel, Department of the Treasury.
Section 18. Citations. The official title of these guidelines is
``Uniform Guidelines on Employee Selection Procedures (1978)''. The
Uniform Guidelines on Employee Selection Procedures (1978) are intended
to establish a uniform Federal position in the area of prohibiting
discrimination in employment practices on grounds of race, color,
religion, sex, or national origin. These guidelines have been adopted by
the Equal Employment Opportunity Commission, the Department of Labor,
the Department of Justice, and the Civil Service Commission.
The official citation is:
``Section ----, Uniform Guidelines on Employee Selection Procedure
(1978); 43 FR ---- (August 25, 1978).''
The short form citation is:
``Section ----, U.G.E.S.P. (1978); 43 FR ---- (August 25, 1978).''
When the guidelines are cited in connection with the activities of
one of the issuing agencies, a specific citation to the regulations of
that agency can be added at the end of the above citation. The specific
additional citations are as follows:
Equal Employment Opportunity Commission
29 CFR Part 1607
Department of Labor
Office of Federal Contract Compliance Programs
41 CFR Part 60-3
Department of Justice
28 CFR 50.14
Civil Service Commission
5 CFR 300.103(c)
Normally when citing these guidelines, the section number
immediately preceding the title of the guidelines will be from these
guidelines series 1-18. If a section number from the codification for an
individual agency is needed it can also be added at the end of the
agency citation. For example, section 6A of these guidelines could be
cited for EEOC as follows: ``Section 6A, Uniform Guidelines on Employee
Selection Procedures (1978); 43 FR ----, (August 25, 1978); 29 CFR part
1607, section 6A.''
Eleanor Holmes Norton,
Chair, Equal Employment Opportunity Commission.
Alan K. Campbell,
Chairman, Civil Service Commission.
Ray Marshall,
Secretary of Labor.
Griffin B. Bell,
Attorney General.
[Order No. 668-76, 41 FR 51735, Nov. 23, 1976, as amended at 43 FR
38295, Aug. 25, 1978]
[[Page 64]]
Sec. 50.15 Representation of Federal officials and employees by Department of Justice attorneys or by private counsel furnished by the Department in civil,
criminal, and congressional proceedings in which Federal
employees are sued, subpoenaed, or charged in their individual
capacities.
(a) Under the procedures set forth below, a federal employee (hereby
defined to include present and former Federal officials and employees)
may be provided representation in civil, criminal and Congressional
proceedings in which he is sued, subpoenaed, or charged in his
individual capacity, not covered by Sec. 15.1 of this chapter, when the
actions for which representation is requested reasonably appear to have
been performed within the scope of the employee's employment and the
Attorney General or his designee determines that providing
representation would otherwise be in the interest of the United States.
No special form of request for representation is required when it is
clear from the proceedings in a case that the employee is being sued
solely in his official capacity and only equitable relief is sought.
(See USAM 4-13.000)
(1) When an employee believes he is entitled to representation by
the Department of Justice in a proceeding, he must submit forthwith a
written request for that representation, together with all process and
pleadings served upon him, to his immediate supervisor or whomever is
designated by the head of his department or agency. Unless the
employee's employing federal agency concludes that representation is
clearly unwarranted, it shall submit, in a timely manner, to the Civil
Division or other appropriate litigating division (Antitrust, Civil
Rights, Criminal, Land and Natural Resources or the Tax Division), a
statement containing its findings as to whether the employee was acting
within the scope of his employment and its recommendation for or against
providing representation. The statement should be accompanied by all
available factual information. In emergency situations the litigating
division may initiate conditional representation after a telephone
request from the appropriate official of the employing agency. In such
cases, the written request and appropriate documentation must be
subsequently provided.
(2) Upon receipt of the individual's request for counsel, the
litigating division shall determine whether the employee's actions
reasonably appear to have been performed within the scope of his
employment and whether providing representation would be in the interest
of the United States. In circumstances where considerations of
professional ethics prohibit direct review of the facts by attorneys of
the litigating division (e.g. because of the possible existence of
inter-defendant conflicts) the litigating division may delegate the
fact-finding aspects of this function to other components of the
Department or to a private attorney at federal expenses.
(3) Attorneys employed by any component of the Department of Justice
who participate in any process utilized for the purpose of determining
whether the Department should provide representation to a federal
employee, undertake a full and traditional attorney-client relationship
with the employee with respect to application of the attorney-client
privilege. If representation is authorized, Justice Department attorneys
who represent an employee under this section also undertake a full and
traditional attorney-client relationship with the employee with respect
to the attorney-client privilege. Any adverse information communicated
by the client-employee to an attorney during the course of such
attorney-client relationship shall not be disclosed to anyone, either
inside or outside the Department, other than attorneys responsible for
representation of the employee, unless such disclosure is authorized by
the employee. Such adverse information shall continue to be fully
protected whether or not representation is provided, and even though
representation may be denied or discontinued. The extent, if any, to
which attorneys employed by an agency other than the Department of
Justice undertake a full and traditional attorney-client relationship
with the employee with respect to the attorney-client privilege, either
for purposes of determining whether representation should be provided or
to assist Justice
[[Page 65]]
Department attorneys in representing the employee, shall be determined
by the agency employing the attorneys.
(4) Representation generally is not available in federal criminal
proceedings. Representation may be provided to a federal employee in
connection with a federal criminal proceeding only where the Attorney
General or his designee determines that representation is in the
interest of the United States and subject to applicable limitations of
Sec. 50.16. In determining whether representation in a federal criminal
proceeding is in the interest of the United States, the Attorney General
or his designee shall consider, among other factors, the relevance of
any non-prosecutorial interests of the United States, the importance of
the interests implicated, the Department's ability to protect those
interests through other means, and the likelihood of a conflict of
interest between the Department's prosecutorial and representational
responsibilities. If representation is authorized, the Attorney General
or his designee also may determine whether representation by Department
attorneys, retention of private counsel at federal expense, or
reimbursement to the employee of private counsel fees is most
appropriate under the circumstances.
(5) Where representation is sought for proceedings other than
federal criminal proceedings, but there appears to exist the possibility
of a federal criminal investigation or indictment relating to the same
subject matter, the litigating division shall contact a designated
official in the Criminal, Civil Rights or Tax Division or other
prosecutive authority within the Department (hereinafter ``prosecuting
division'') to determine whether the employee is either a subject of a
federal criminal investigation or a defendant in a federal criminal
case. An employee is the subject of an investigation if, in addition to
being circumstantially implicated by having the appropriate
responsibilities at the appropriate time, there is some evidence of his
specific participation in a crime.
(6) If a prosecuting division of the Department indicates that the
employee is not the subject of a criminal investigation concerning the
act or acts for which he seeks representation, then representation may
be provided if otherwise permissible under the provisions of this
section. Similarly, if the prosecuting division indicates that there is
an ongoing investigation, but into a matter unrelated to that for which
representation has been requested, then representation may be provided.
(7) If the prosecuting division indicates that the employee is the
subject of a federal criminal investigation concerning the act or acts
for which he seeks representation, the litigating division shall inform
the employee that no representation by Justice Department attorneys will
be provided in that federal criminal proceeding or in any related civil,
congressional, or state criminal proceeding. In such a case, however,
the litigating division, in its discretion, may provide a private
attorney to the employee at federal expense under the procedures of
Sec. 50.16, or provide reimbursement to employees for private attorney
fees incurred in connection with such related civil, congressional, or
state criminal proceeding, provided no decision has been made to seek an
indictment or file an information against the employee.
(8) In any case where it is determined that Department of Justice
attorneys will represent a federal employee, the employee must be
notified of his right to retain private counsel at his own expense. If
he elects representation by Department of Justice attorneys, the
employee and his agency shall be promptly informed:
(i) That in actions where the United States, any agency, or any
officer thereof in his official capacity is also named as a defendant,
the Department of Justice is required by law to represent the United
States and/or such agency or officer and will assert all appropriate
legal positions and defenses on behalf of such agency, officer and/or
the United States;
(ii) That the Department of Justice will not assert any legal
position or defense on behalf of any employee sued in his individual
capacity which is deemed not to be in the interest of the United States;
(iii) Where appropriate, that neither the Department of Justice nor
any
[[Page 66]]
agency of the U.S. Government is obligated to pay or to indemnify the
defendant employee for any judgment for money damages which may be
rendered against such employee; but that, where authorized, the employee
may apply for such indemnification from his employing agency upon the
entry of an adverse verdict, judgment, or other monetary award;
(iv) That any appeal by Department of Justice attorneys from an
adverse ruling or judgment against the employee may only be taken upon
the discretionary approval of the Solicitor General, but the employee-
defendant may pursue an appeal at his own expense whenever the Solicitor
General declines to authorize an appeal and private counsel is not
provided at federal expense under the procedures of Sec. 50.16; and
(v) That while no conflict appears to exist at the time
representation is tendered which would preclude making all arguments
necessary to the adequate defense of the employee, if such conflict
should arise in the future the employee will be promptly advised and
steps will be taken to resolve the conflict as indicated by paragraph
(a) (6), (9) and (10) of this section, and by Sec. 50.16.
(9) If a determination not to provide representation is made, the
litigating division shall inform the agency and/or the employee of the
determination.
(10) If conflicts exist between the legal and factual positions of
various employees in the same case which make it inappropriate for a
single attorney to represent them all, the employees may be separated
into as many compatible groups as is necessary to resolve the conflict
problem and each group may be provided with separate representation.
Circumstances may make it advisable that private representation be
provided to all conflicting groups and that direct Justice Department
representation be withheld so as not to prejudice particular defendants.
In such situations, the procedures of Sec. 50.16 will apply.
(11) Whenever the Solicitor General declines to authorize further
appellate review or the Department attorney assigned to represent an
employee becomes aware that the representation of the employee could
involve the assertion of a position that conflicts with the interests of
the United States, the attorney shall fully advise the employee of the
decision not to appeal or the nature, extent, and potential consequences
of the conflict. The attorney shall also determine, after consultation
with his supervisor (and, if appropriate, with the litigating division)
whether the assertion of the position or appellate review is necessary
to the adequate representation of the employee and
(i) If it is determined that the assertion of the position or appeal
is not necessary to the adequate representation of the employee, and if
the employee knowingly agrees to forego appeal or to waive the assertion
of that position, governmental representation may be provided or
continued; or
(ii) If the employee does not consent to forego appeal or waive the
assertion of the position, or if it is determined that an appeal or
assertion of the position is necessary to the adequate representation of
the employee, a Justice Department lawyer may not provide or continue to
provide the representation; and
(iii) In appropriate cases arising under paragraph (a)(10)(ii) of
this section, a private attorney may be provided at federal expense
under the procedures of Sec. 50.16.
(12) Once undertaken, representation of a federal employee under
this subsection will continue until either all appropriate proceedings,
including applicable appellate procedures approved by the Solicitor
General, have ended, or until any of the bases for declining or
withdrawing from representation set forth in this section is found to
exist, including without limitation the basis that representation is not
in the interest of the United States. If representation is discontinued
for any reason, the representing Department attorney on the case will
seek to withdraw but will take all reasonable steps to avoid prejudice
to the employee.
(b) Representation is not available to a federal employee whenever:
(1) The conduct with regard to which the employee desires
representation does not reasonably appear to have been performed within
the scope of his
[[Page 67]]
employment with the federal government;
(2) It is otherwise determined by the Department that it is not in
the interest of the United States to provide representation to the
employee.
(c)(1) The Department of Justice may indemnify the defendant
Department of Justice employee for any verdict, judgment, or other
monetary award which is rendered against such employee, provided that
the conduct giving rise to the verdict, judgment, or award was taken
within the scope of employment and that such indemnification is in the
interest of the United States, as determined by the Attorney General or
his designee.
(2) The Department of Justice may settle or compromise a personal
damages claim against a Department of Justice employee by the payment of
available funds, at any time, provided the alleged conduct giving rise
to the personal damages claim was taken within the scope of employment
and that such settlement or compromise is in the interest of the United
States, as determined by the Attorney General or his designee.
(3) Absent exceptional circumstances as determined by the Attorney
General or his designee, the Department will not entertain a request
either to agree to indemnify or to settle a personal damages claim
before entry of an adverse verdict, judgment, or award.
(4) The Department of Justice employee may request indemnification
to satisfy a verdict, judgment, or award entered against the employee.
The employee shall submit a written request, with appropriate
documentation including copies of the verdict, judgment, award, or
settlement proposal if on appeal, to the head of his employing
component, who shall thereupon submit to the appropriate Assistant
Attorney General, in a timely manner, a recommended disposition of the
request. Where appropriate, the Assistant Attorney General shall seek
the views of the U.S. Attorney; in all such cases the Civil Division
shall be consulted. The Assistant Attorney General shall forward the
request, the employing component's recommendation, and the Assistant
Attorney General's recommendation to the Attorney General for decision.
(5) Any payment under this section either to indemnify a Department
of Justice employee or to settle a personal damages claim shall be
contingent upon the availability of appropriated funds of the employing
component of the Department of Justice.
[Order No. 970-82, 47 FR 8172, Feb. 25, 1982, as amended at Order No.
1139-86, 51 FR 27022, July 29, 1986; Order No. 1409-90, 55 FR 13130,
Apr. 9, 1990]
Sec. 50.16 Representation of Federal employees by private counsel at Federal expense.
(a) Representation by private counsel at federal expense or
reimbursement of private counsel fees is subject to the availability of
funds and may be provided to a federal employee only in the instances
described in Sec. 50.15(a) (4), (7), (10), and (11), and in appropriate
circumstances, for the purposes set forth in Sec. 50.15(a)(2).
(b) To ensure uniformity in retention and reimbursement procedures
among the litigating divisions, the Civil Division shall be responsible
for establishing procedures for the retention of private counsel and the
reimbursement to an employee of private counsel fees, including the
setting of fee schedules. In all instances where a litigating division
decides to retain private counsel or to provide reimbursement of private
counsel fees under this section, the Civil Division shall be consulted
before the retention or reimbursement is undertaken.
(c) Where private counsel is provided, the following procedures
shall apply:
(1) While the Department of Justice will generally defer to the
employee's choice of counsel, the Department must approve in advance any
private counsel to be retained under this section. Where national
security interests may be involved, the Department of Justice will
consult with the agency employing the federal defendant seeking
representation.
(2) Federal payments to private counsel for an employee will cease
if the private counsel violates any of the terms of the retention
agreement or the Department of Justice.
[[Page 68]]
(i) Decides to seek an indictment of, or to file an information
against, that employee on a federal criminal charge relating to the
conduct concerning which representation was undertaken;
(ii) Determines that the employee's actions do not reasonably appear
to have been performed within the scope of his employment;
(iii) Resolves any conflict described herein and tenders
representation by Department of Justice attorneys;
(iv) Determines that continued representation is not in the interest
of the United States;
(v) Terminates the retainer with the concurrence of the employee-
client for any reason.
(d) Where reimbursement is provided for private counsel fees
incurred by employees, the following limitations shall apply:
(1) Reimbursement shall be limited to fees incurred for legal work
that is determined to be in the interest of the United States.
Reimbursement is not available for legal work that advances only the
individual interests of the employee.
(2) Reimbursement shall not be provided if at any time the Attorney
General or his designee determines that the employee's actions do not
reasonably appear to have been performed within the scope of his
employment or that representation is no longer in the interest of the
United States.
(3) Reimbursement shall not be provided for fees incurred during any
period of time for which representation by Department of Justice
attorneys was tendered.
(4) Reimbursement shall not be provided if the United States decides
to seek an indictment of or to file an information against the employee
seeking reimbursement, on a criminal charge relating to the conduct
concerning which representation was undertaken.
[Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by Order No.
1409-90, 55 FR 13130, Apr. 9, 1990]
Sec. 50.17 Ex parte communications in informal rulemaking proceedings.
In rulemaking proceedings subject only to the procedural
requirements of 5 U.S.C. 553:
(a) A general prohibition applicable to all offices, boards, bureaus
and divisions of the Department of Justice against the receipt of
private, ex parte oral or written communications is undesirable, because
it would deprive the Department of the flexibility needed to fashion
rulemaking procedures appropriate to the issues involved, and would
introduce a degree of formality that would, at least in most instances,
result in procedures that are unduly complicated, slow, and expensive,
and, at the same time, perhaps not conducive to developing all relevant
information.
(b) All written communications from outside the Department addressed
to the merits of a proposed rule, received after notice of proposed
informal rulemaking and in its course by the Department, its offices,
boards, and bureaus, and divisions or their personnel participating in
the decision, should be placed promptly in a file available for public
inspection.
(c) All oral communications from outside the Department of
significant information or argument respecting the merits of a proposed
rule, received after notice of proposed informal rulemaking and in its
course by the Department, its offices, boards, bureaus, and divisions or
their personnel participating in the decision, should be summarized in
writing and placed promptly in a file available for public inspection.
(d) The Department may properly withhold from the public files
information exempt from disclosure under 5 U.S.C. 552.
(e) The Department may conclude that restrictions on ex parte
communications in particular rulemaking proceedings are necessitated by
considerations of fairness or for other reasons.
[Order No. 801-78, 43 FR 43297, Sept. 25, 1978, as amended at Order No.
1409-90, 55 FR 13130, April 9, 1990]
Sec. 50.18 [Reserved]
Sec. 50.19 Procedures to be followed by government attorneys prior to filing recusal or disqualification motions.
The determination to seek for any reason the disqualification or
recusal
[[Page 69]]
of a justice, judge, or magistrate is a most significant and sensitive
decision. This is particularly true for government attorneys, who should
be guided by uniform procedures in obtaining the requisite authorization
for such a motion. This statement is designed to establish a uniform
procedure.
(a) No motion to recuse or disqualify a justice, judge, or
magistrate (see, e.g., 28 U.S.C. 144, 455) shall be made or supported by
any Department of Justice attorney, U.S. Attorney (including Assistant
U.S. Attorneys) or agency counsel conducting litigation pursuant to
agreement with or authority delegated by the Attorney General, without
the prior written approval of the Assistant Attorney General having
ultimate supervisory power over the action in which recusal or
disqualification is being considered.
(b) Prior to seeking such approval, Justice Department lawyer(s)
handling the litigation shall timely seek the recommendations of the
U.S. Attorney for the district in which the matter is pending, and the
views of the client agencies, if any. Similarly, if agency attorneys are
primarily handling any such suit, they shall seek the recommendations of
the U.S. Attorney and provide them to the Department of Justice with the
request for approval. In actions where the United States Attorneys are
primarily handling the litigation in question, they shall seek the
recommendation of the client agencies, if any, for submission to the
Assistant Attorney General.
(c) In the event that the conduct and pace of the litigation does
not allow sufficient time to seek the prior written approval by the
Assistant Attorney General, prior oral authorization shall be sought and
a written record fully reflecting that authorization shall be
subsequently prepared and submitted to the Assistant Attorney General.
(d) Assistant Attorneys General may delegate the authority to
approve or deny requests made pursuant to this section, but only to
Deputy Assistant Attorneys General or an equivalent position.
(e) This policy statement does not create or enlarge any legal
obligations upon the Department of Justice in civil or criminal
litigation, and it is not intended to create any private rights
enforceable by private parties in litigation with the United States.
[Order No. 977-82, 47 FR 22094, May 21, 1982]
Sec. 50.20 Participation by the United States in court-annexed arbitration.
(a) Considerations affecting participation in arbitration. (1) The
Department recognizes and supports the general goals of court-annexed
arbitrations, which are to reduce the time and expenses required to
dispose of civil litigation. Experimentations with such procedures in
appropriate cases can offer both the courts and litigants an opportunity
to determine the effectiveness of arbitration as an alternative to
traditional civil litigation.
(2) An arbitration system, however, is best suited for the
resolution of relatively simple factual issues, not for trying cases
that may involve complex issues of liability or other unsettled legal
questions. To expand an arbitration system beyond the types of cases for
which it is best suited and most competent would risk not only a
decrease in the quality of justice available to the parties but
unnecessarily higher costs as well.
(3) In particular, litigation involving the United States raises
special concerns with respect to court-annexed arbitration programs. A
mandatory arbitration program potentially implicates the principles of
separation of powers, sovereign immunity, and the Attorney General's
control over the process of settling litigation.
(b) General rule consenting to arbitration consistent with the
department's regulations. (1) Subject to the considerations set forth in
the following paragraphs and the restrictions set forth in paragraphs
(c) and (d), in a case assigned to arbitration or mediation under a
local district court rule, the Department of Justice agrees to
participate in the arbitration process under the local rule. The
attorney for the government responsible for the case should take any
appropriate steps in conducting the case to protect the interests of the
United States.
(2) Based upon its experience under arbitration programs to date,
and the
[[Page 70]]
purposes and limitations of court-annexed arbitration, the Department
generally endorses inclusion in a district's court-annexed arbitration
program of civil actions--
(i) In which the United States or a Department, agency, or official
of the United States is a party, and which seek only money damages in an
amount not in excess of $100,000, exclusive of interest and costs; and
(ii) Which are brought (A) under the Federal Tort Claims Act, 28
U.S.C. 1346(b), 2671 et seq., or (B) under the Longshoreman's and Harbor
Worker's Compensation Act, 33 U.S.C. 905, or (C) under the Miller Act,
40 U.S.C. 270(b).
(3) In any other case in which settlement authority has been
delegated to the U.S. Attorney under the regulations of the Department
and the directives of the applicable litigation division and none of the
exceptions to such delegation apply, the U.S. Attorney for the district,
if he concludes that a settlement of the case upon the terms of the
arbitration award would be appropriate, may proceed to settle the case
accordingly.
(4) Cases other than those described in paragraph (2) that are not
within the delegated settlement authority of the U.S. Attorney for the
district ordinarily are not appropriate for an arbitration process
because the Department generally will not be able to act favorably or
negatively in a short period of time upon a settlement of the case in
accordance with the arbitration award. Therefore, this will result in a
demand for trial de novo in a substantial proportion of such cases to
preserve the interests of the United States.
(5) The Department recommends that any district court's arbitration
rule include a provision exempting any case from arbitration, sua sponte
or on motion of a party, in which the objectives of arbitration would
not appear to be realized, because the case involves complex or novel
legal issues, or because legal issues predominate over factual issues,
or for other good cause.
(c) Objection to the imposition of penalties or sanctions against
the United States for demanding trial de novo. (1) Under the principle
of sovereign immunity, the United States cannot be held liable for costs
or sanctions in litigation in the absence of a statutory provision
waiving its immunity. In view of the statutory limitations on the costs
payable by the United States (28 U.S.C. 2412(a), 2412(b), and 1920), the
Department does not consent to provisions in any district's arbitration
program providing for the United States or the Department, agency, or
official named as a party to the action to pay any sanction for
demanding a trial de novo--either as a deposit in advance or as a
penalty imposed after the fact--which is based on the arbitrators' fees,
the opposing party's attorneys' fees, or any other costs not authorized
by statute to be awarded against the United States. This objection
applies whether the penalty or sanction is required to be paid to the
opposing party, to the clerk of the court, or to the Treasury of the
United States.
(2) In any case involving the United States that is designated for
arbitration under a program pursuant to which such a penalty or sanction
might be imposed against the United States, its officers or agents, the
attorney for the government is instructed to take appropriate steps, by
motion, notice of objection, or otherwise, to apprise the court of the
objection of the United States to the imposition of such a penalty or
sanction.
(3) Should such a penalty or sanction actually be required of or
imposed on the United States, its officers or agents, the attorney for
the government is instructed to:
(i) Advise the appropriate Assistant Attorney General of this
development promptly in writing;
(ii) Seek appropriate relief from the district court; and
(iii) If necessary, seek authority for filing an appeal or petition
for mandamus.
The Solicitor General, the Assistant Attorneys General, and the U.S.
Attorneys are instructed to take all appropriate steps to resist the
imposition of such penalties or sanctions against the United States.
(d) Additional restrictions. (1) The Assistant Attorneys General,
the U.S. Attorneys, and their delegates, have no authority to settle or
compromise the interests of the United States in a case
[[Page 71]]
pursuant to an arbitration process in any respect that is inconsistent
with the limitations upon the delegation of settlement authority under
the Department's regulations and the directives of the litigation
divisions. See 28 CFR part 0, subpart Y and appendix to subpart Y. The
attorney for the government shall demand trial de novo in any case in
which:
(i) Settlement of the case on the basis of the amount awarded would
not be in the best interests of the United States;
(ii) Approval of a proposed settlement under the Department's
regulations in accordance with the arbitration award cannot be obtained
within the period allowed by the local rule for rejection of the award;
or
(iii) The client agency opposes settlement of the case upon the
terms of the settlement award, unless the appropriate official of the
Department approves a settlement of the case in accordance with the
delegation of settlement authority under the Department's regulations.
(2) Cases sounding in tort and arising under the Constitution of the
United States or under a common law theory filed against an employee of
the United States in his personal capacity for actions within the scope
of his employment which are alleged to have caused injury or loss of
property or personal injury or death are not appropriate for
arbitration.
(3) Cases for injunctive or declaratory relief are not appropriate
for arbitration.
(4) The Department reserves the right to seek any appropriate relief
to which its client is entitled, including injunctive relief or a ruling
on motions for judgment on the pleadings, for summary judgment, or for
qualified immunity, or on issues of discovery, before proceeding with
the arbitration process.
(5) In view of the provisions of the Federal Rules of Evidence with
respect to settlement negotiations, the Department objects to the
introduction of the arbitration process or the arbitration award in
evidence in any proceeding in which the award has been rejected and the
case is tried de novo.
(6) The Department's consent for participation in an arbitration
program is not a waiver of sovereign immunity or other defenses of the
United States except as expressly stated; nor is it intended to affect
jursidictional limitations (e.g., the Tucker Act).
(e) Notification of new or revised arbitration rules. The U.S.
Attorney in a district which is considering the adoption of or has
adopted a program of court-annexed arbitration including cases involving
the United States shall:
(1) Advise the district court of the provisions of this section and
the limitations on the delegation of settlement authority to the United
States Attorney pursuant to the Department's regulations and the
directives of the litigation divisions; and
(2) Forward to the Executive Office for United States Attorneys a
notice that such a program is under consideration or has been adopted,
or is being revised, together with a copy of the rules or proposed
rules, if available, and a recommendation as to whether United States
participation in the program as proposed, adopted, or revised, would be
advisable, in whole or in part.
[Order No. 1109-85, 50 FR 40524, Oct. 4, 1985]
Sec. 50.21 Procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities.
(a) General. The procedures set forth below are intended as a
statement of policy of the Department of Justice and will be applied by
the Department in exercising its responsibilities under Federal law
relating to the destruction of seized contraband drugs.
(b) Purpose. This policy implements the authority of the Attorney
General under title I, section 1006(c)(3) of the Anti-Drug Abuse Act of
1986, Public Law 99-570 which is codified at 21 U.S.C. 881(f)(2), to
direct the destruction, as necessary, of Schedule I and II contraband
substances.
(c) Policy. This regulation is intended to prevent the warehousing
of large quantities of seized contraband drugs which are unnecessary for
due process in criminal cases. Such stockpiling of contraband drugs
presents inordinate security and storage problems which create
additional economic burdens on
[[Page 72]]
limited law enforcement resources of the United States.
(d) Definitions. As used in this subpart, the following terms shall
have the meanings specified:
(1) The term Contraband drugs are those controlled substances listed
in Schedules I and II of the Controlled Substances Act seized for
violation of that Act.
(2) The term Marijuana is as defined in 21 U.S.C. 801(15) but does
not include, for the purposes of this regulation, the derivatives
hashish or hashish oil for purposes of destruction.
(3) The term Representative sample means the exemplar for testing
and a sample aggregate portion of the whole amount seized sufficient for
current criminal evidentiary practice.
(4) The term Threshold amount means:
(i) Two kilograms of a mixture or substance containing a detectable
amount of heroin;
(ii) Ten kilograms of a mixture or substance containing a detectable
amount of--
(A) Coca leaves, except coca leaves and extracts of coca leaves from
which cocaine, ecgonine, and derivatives of ecognine or their salts have
been removed;
(B) Cocaine, its salts, optical and geometric isomers, and salts of
isomers;
(C) Ecgonine, its derivatives, their salts, isomers, and salts of
isomers; or
(D) Any compound, mixture, or preparation which contains any
quantity of any of the substances referred to in paragraphs (d)(4)(ii)
(A) through (C) of this section;
(iii) Ten kilograms of a mixture or substance described in paragraph
(d)(4)(ii)(B) of this section which contains cocaine base;
(iv) Two hundred grams of phencyclidine (PCP) or two kilograms of a
mixture or substance containing a detectable amount of phencyclidine
(PCP);
(v) Twenty grams of a mixture or substance containing a detectable
amount of Lysergic Acid Diethylamide (LSD);
(vi) Eight hundred grams of a mixture or substance containing a
detectable amount of N-phenyl-N[1-(2-phenylethyl)-4-piperidiny]
propanamide (commonly known as fentanyl) or two hundred grams of a
mixture or substance containing a detectable amount of any analogue of
N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl propanamide; or
(vii) Twenty kilograms of hashish or two kilograms of hashish oil
(21 U.S.C. 841(b)(1)(D), 960(b)(4)).
In the event of any changes to section 401(b)(1) of the Controlled
Substances Act (21 U.S.C. 841(b)(1) as amended occurring after the date
of these regulations, the threshold amount of any substance therein
listed, except marijuana, shall be twice the minimum amount required for
the most severe mandatory minimum sentence.
(e) Procedures. Responsibilities of the Federal Bureau of
Investigation and Drug Enforcement Administration.
When contraband drug substances in excess of the threshold amount or in
the case of marijuana a quantity in excess of the representative sample
are seized pursuant to a criminal investigation and retained in the
custody of the Federal Bureau of Investigation or Drug Enforcement
Administration, the Agency having custody shall:
(1) Immediately notify the appropriate U.S. Attorney, Assistant U.S.
Attorney, or the responsible state/local prosecutor that the amount of
seized contraband drug exceeding the threshold amount and its packaging,
will be destroyed after sixty days from the date notice is provided of
the seizures, unless the agency providing notice is requested in writing
by the authority receiving notice not to destroy the excess contraband
drug; and
(2) Assure that appropriate tests of samples of the drug are
conducted to determined the chemical nature of the contraband substance
and its weight sufficient to serve as evidence before the trial courts
of that jurisdiction; and
(3) Photographically depict, and if requested by the appropriate
prosecutorial authority, videotape, the contraband drugs as originally
packaged or an appropriate display of the seized contraband drugs so as
to create evidentiary exhibits for use at trial; and
(4) Isolate and retain the appropriate threshold amounts of
contraband drug evidence when an amount greater than
[[Page 73]]
the appropriate threshold amount has been seized, or when less than the
appropriate threshold amounts of contraband drugs have been seized, the
entire amount of the seizure, with the exception of marijuana, for which
a representative sample shall be retained; and
(5) Maintain the retained portions of the contraband drugs until the
evidence is no longer required for legal proceedings, at which time it
may be destroyed, first having obtained consent of the U.S. Attorney, an
Assistant U.S. Attorney, or the responsible state/local prosecutor;
(6) Notify the appropriate U.S. Attorney, Assistant U.S. Attorney,
or the responsible state/local prosecutor to obtain consent to destroy
the retained amount or representative sample whenever th e related
suspect(s) has been a fugitive from justice for a period of five years.
An exemplar sufficent for testing will be retained consistent with this
section.
(f) Procedures. Responsibilities of the U.S. Attorney or the
District Attorney (or equivalent state/local prosecutorial authority).
When so notified by the Federal Bureau of Investigation or the Drug
Enforcement Administration of an intent to destroy excess contraband
drugs, the U.S. Attorney or the District Attorney (or equivalent) may:
(1) Agree to the destruction of the contraband drug evidence in
excess of the threshold amount, or for marijuana in excess of the
representative sample, prior to the normal sixty-day period. The U.S.
Attorney, or the District Attorney (or equivalent) may delegate to his/
her assistants authority to enter into such agreement; or
(2) Request an exception to the destruction policy in writing to the
Special Agent in Charge of the responsible division prior to the end of
the sixty-day period when retaining only the threshold amount or
representative sample will significantly affect any legal proceedings;
and
(3) In the event of a denial of the request may appeal the denial to
the Assistant Attorney General, Criminal Division. Such authority may
not be redelegated. An appeal shall stay the destruction until the
appeal is complete.
(g) Supplementary regulations. The Federal Bureau of Investigation
and the Drug Enforcement Administration are authorized to issue
regulations and establish procedures consistent with this section.
[Order No. 1256-88, 53 FR 8453, Mar. 15, 1988]
Sec. 50.22 Young American Medals Program.
(a) Scope. There are hereby established two medals, one to be known
as the Young American Medal for Bravery and the other to be known as the
Young American Medal for Service.
(b) Young American Medal for Bravery. (1)(i) The Young American
Medal for Bravery may be awarded to a person--
(A) Who during a given calendar year has exhibited exceptional
courage, attended by extraordinary decisiveness, presence of mind, and
unusual swiftness of action, regardless of his or her own personal
safety, in an effort to save or in saving the life of any person or
persons in actual imminent danger;
(B) Who was eighteen years of age or younger at the time of the
occurrence; and
(C) Who habitually resides in the United States (including its
territories and possessions), but need not be a citizen thereof.
(ii) These conditions must be met at the time of the event.
(2) The act of bravery must have been public in nature and must have
been acknowledged by the Governor, Chief Executive Officer of a State,
county, municipality, or other political subdivision, or by a civic,
educational, or religious institution, group, or society.
(3) No more than two such medals may be awarded in any one calendar
year.
(c) Young American Medal for Service. (1) The Young American Medal
for Service may be awarded to any citizen of the United States eighteen
years of age or younger at the time of the occurrence, who has achieved
outstanding or unusual recognition for character and service during a
given calendar year.
(2) Character attained and service accomplished by a candidate for
this medal must have been such as to make
[[Page 74]]
his or her achievement worthy of public report. The outstanding and
unusual recognition of the candidate's character and service must have
been public in nature and must have been acknowledged by the Governor,
Chief Executive Officer of a State, county, municipality, or other
political subdivision, or by a civic, educational, or religious
institution, group, or society.
(3) The recognition of the character and service upon which the
award of the Medal for Service is based must have been accorded
separately and apart from the Young American Medals program and must not
have been accorded for the specific and announced purpose of rendering a
candidate eligible, or of adding to a candidate's qualifications, for
the award of the Young American Medal for Service.
(4) No more than two such medals may be awarded in any one calendar
year.
(d) Eligibility. (1) The act or acts of bravery and the recognition
for character and service that make a candidate eligible for the
respective medals must have occurred during the calendar year for which
the award is made.
(2) A candidate may be eligible for both medals in the same year.
Moreover, the receipt of either medal in any year will not affect a
candidate's eligibility for the award of either or both of the medals in
a succeeding year.
(3) Acts of bravery performed and recognition of character and
service achieved by persons serving in the Armed Forces, which arise
from or out of military duties, shall not make a candidate eligible for
either of the medals, provided, however, that a person serving in the
Armed Forces shall be eligible to receive either or both of the medals
if the act of bravery performed or the recognition for character and
service achieved is on account of acts and service performed or rendered
outside of and apart from military duties.
(e) Request for information. (1) A recommendation in favor of a
candidate for the award of a Young American Medal for Bravery or for
Service must be accompanied by:
(i) A full and complete statement of the candidate's act or acts of
bravery or recognized character and service (including the times and
places) that supports qualification of the candidate to receive the
appropriate medal;
(ii) Statements by witnesses or persons having personal knowledge of
the facts surrounding the candidate's act or acts of bravery or
recognized character and service, as required by the respective medals;
(iii) A certified copy of the candidate's birth certificate, or, if
no birth certificate is available, other authentic evidence of the date
and place of the candidate's birth; and
(iv) A biographical sketch of the candidate, including information
as to his or her citizenship or habitual residence, as may be required
by the respective medals.
(f) Procedure. (1)(i) All recommendations and accompanying documents
and papers should be submitted to the Governor or Chief Executive
Officer of the State, territory, or possession of the United States
where the candidate's act or acts of bravery or recognized character and
service were demonstrated. In the case of the District of Columbia, the
recommendations should be submitted to the Mayor of the District of
Columbia.
(ii) If the act or acts of bravery or recognized character and
service did not occur within the boundaries of any State, territory, or
possession of the United States, the papers should be submitted to the
Governor or Chief Executive Officer of the territory or other possession
of the United States wherein the candidate habitually maintains his or
her residence.
(2) The Governor or Chief Executive Officer, after considering the
various recommendations received after the close of the pertinent
calendar year, may nominate therefrom no more than two candidates for
the Young American Medal for Bravery and no more than two candidates for
the Young American Medal for Service. Nominated individuals should have,
in the opinion of the appropriate official, shown by the facts and
circumstances to be the most worthy and qualified candidates from the
jurisdiction to receive consideration for awards of the above-named
medals.
[[Page 75]]
(3) Nominations of candidates for either medal must be submitted no
later than 120 days after notification that the Department of Justice is
seeking nominations under this program for a specific calendar year.
Each nomination must contain the necessary documentation establishing
eligibility, must be submitted by the Governor or Chief Executive
Officer, together with any comments, and should be submitted to the
address published in the notice.
(4) Nominations of candidates for medals will be considered only
when received from the Governor or Chief Executive Officer of a State,
territory, or possession of the United States.
(5) The Young American Medals Committee will select, from
nominations properly submitted, those candidates who are shown by the
facts and circumstances to be eligible for the award of the medals. The
Committee shall make recommendations to the Attorney General based on
its evaluation of the nominees. Upon consideration of these
recommendations, the Attorney General may select up to the maximum
allowable recipients for each medal for the calendar year.
(g) Presentation. (1) The Young American Medal for Bravery and the
Young American Medal for Service will be presented personally by the
President of the United States to the candidates selected. These medals
will be presented in the name of the President and the Congress of the
United States. Presentation ceremonies shall be held at such times and
places selected by the President in consultation with the Attorney
General.
(2) The Young American Medals Committee will officially designate
two adults (preferably the parents of the candidate) to accompany each
candidate selected to the presentation ceremonies. The candidates and
persons designated to accompany them will be furnished transportation
and other appropriate allowances.
(3) There shall be presented to each recipient an appropriate
Certificate of Commendation stating the circumstances under which the
act of bravery was performed or describing the outstanding recognition
for character and service, as appropriate for the medal awarded. The
Certificate will bear the signature of the President of the United
States and the Attorney General of the United States.
(4) There also shall be presented to each recipient of a medal, a
miniature replica of the medal awarded in the form of a lapel pin.
(h) Posthumous awards. In cases where a medal is awarded
posthumously, the Young American Medals Committee will designate the
father or mother of the deceased or other suitable person to receive the
medal on behalf of the deceased. The decision of the Young American
Medals Committee in designating the person to receive the posthumously
awarded medal, on behalf of the deceased, shall be final.
(i) Young American Medals Committee. The Young American Medals
Committee shall be represented by the following:
(1) Director of the FBI, Chairman;
(2) Administrator of the Drug Enforcement Administration, Member;
(3) Director of the U.S. Marshals Service, Member; and
(4) Assistant Attorney General, Office of Justice Programs, Member
and Executive Secretary.
(Authority: The United States Department of Justice is authorized under
42 U.S.C. 1921 et seq. to promulgate rules and regulations establishing
medals, one for bravery and one for service. This authority was enacted
by chapter 520 of Pub. L. 81-638 (August 3, 1950).)
[61 FR 49260, Sept. 19, 1996]
Sec. 50.23 Policy against entering into final settlement agreements or consent decree that are subject to confidentiality provisions and against seeking or
concurring in the sealing of such documents.
(a) It is the policy of the Department of Justice that, in any civil
matter in which the Department is representing the interests of the
United States or its agencies, it will not enter into final settlement
agreements or consent decrees that are subject to confidentiality
provisions, nor will it seek or concur in the sealing of such documents.
This policy flows from the principle of openness in government and is
[[Page 76]]
consistent with the Department's policies regarding openness in judicial
proceedings (see 28 CFR 50.9) and the Freedom of Information Act (see
Memorandum for Heads of Departments and Agencies from the Attorney
General Re: The Freedom of Information Act (Oct. 4, 1993)).
(b) There may be rare circumstances that warrant an exception to
this general rule. In determining whether an exception is appropriate,
any such circumstances must be considered in the context of the public's
strong interest in knowing about the conduct of its Government and
expenditure of its resources. The existence of such circumstances must
be documented as part of the approval process, and any confidentiality
provision must be drawn as narrowly as possible. Non-delegable approval
authority to determine that an exception justifies use of a
confidentiality provision in, or seeking or concurring in the sealing
of, a final settlement or consent decree resides with the relevant
Assistant Attorney General or United States Attorney, unless authority
to approve the settlement itself lies with a more senior Department
official, in which case the more senior official will have such approval
authority.
(c) Regardless of whether particular information is subject to a
confidentiality provision or to seal, statutes and regulations may
prohibit its disclosure from Department of Justice files. Thus, before
releasing any information, Department attorneys should consult all
appropriate statutes and regulations (e.g., 5 U.S.C. 552a (Privacy Act);
50 U.S.C. 403-3(c)(6) (concerning intelligence sources and methods), and
Execution Order 12958 (concerning national security information). In
particular, in matters involving individuals, the Privacy Act regulates
disclosure of settlement agreements that have not been made part of the
court record.
(d) The principles set forth in this section are intended to provide
guidance to attorneys for the Government and are not intended to create
or recognize any legally enforceable right in any person.
[Order No. 2270-99, 64 FR 59122, Nov. 2, 1999]
PART 51--PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED--Table of Contents
Subpart A--General Provisions
Sec.
51.1 Purpose.
51.2 Definitions.
51.3 Delegation of authority.
51.4 Date used to determine coverage; list of covered jurisdictions.
51.5 Termination of coverage (bailout).
51.6 Political subunits.
51.7 Political parties.
51.8 Section 3 coverage.
51.9 Computation of time.
51.10 Requirement of action for declaratory judgment or submission to
the Attorney General.
51.11 Right to bring suit.
51.12 Scope of requirement.
51.13 Examples of changes.
51.14 Recurrent practices.
51.15 Enabling legislation and contingent or nonuniform requirements.
51.16 Distinction between changes in procedure and changes in
substance.
51.17 Special elections.
51.18 Court-ordered changes.
51.19 Request for notification concerning voting litigation.
Subpart B--Procedures for Submission to the Attorney General
51.20 Form of submissions.
51.21 Time of submissions.
51.22 Premature submissions.
51.23 Party and jurisdiction responsible for making submissions.
51.24 Address for submissions.
51.25 Withdrawal of submissions.
Subpart C--Contents of Submissions
51.26 General.
51.27 Required contents.
51.28 Supplemental contents.
Subpart D--Communications From Individuals and Groups
51.29 Communications concerning voting changes.
51.30 Action on communications from individuals or groups.
51.31 Communications concerning voting suits.
51.32 Establishment and maintenance of registry of interested
individuals and groups.
[[Page 77]]
Subpart E--Processing of Submissions
51.33 Notice to registrants concerning submissions.
51.34 Expedited consideration.
51.35 Disposition of inappropriate submissions.
51.36 Release of information concerning submissions.
51.37 Obtaining information from the submitting authority.
51.38 Obtaining information from others.
51.39 Supplementary submissions.
51.40 Failure to complete submissions.
51.41 Notification of decision not to object.
51.42 Failure of the Attorney General to respond.
51.43 Reexamination of decision not to object.
51.44 Notification of decision to object.
51.45 Request for reconsideration.
51.46 Reconsideration of objection at the instance of the Attorney
General.
51.47 Conference.
51.48 Decision after reconsideration.
51.49 Absence of judicial review.
51.50 Records concerning submissions.
Subpart F--Determinations by the Attorney General
51.51 Purpose of the subpart.
51.52 Basic standard.
51.53 Information considered.
51.54 Discriminatory effect.
51.55 Consistency with constitutional and statutory requirements.
51.56 Guidance from the courts.
51.57 Relevant factors.
51.58 Representation.
51.59 Redistrictings.
51.60 Changes in electoral systems.
51.61 Annexations.
Subpart G--Sanctions
51.62 Enforcement by the Attorney General.
51.63 Enforcement by private parties.
51.64 Bar to termination of coverage (bailout).
Subpart H--Petition To Change Procedures
51.65 Who may petition.
51.66 Form of petition.
51.67 Disposition of petition.
Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the
Voting Rights Act, as Amended
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1973c.
Source: 52 FR 490, Jan. 6, 1987, unless otherwise noted.
Subpart A--General Provisions
Sec. 51.1 Purpose.
(a) Section 5 of the Voting Rights Act of 1965, as amended, 42
U.S.C. 1973c, prohibits the enforcement in any jurisdiction covered by
section 4(b) of the Act, 42 U.S.C. 1973b(b), of any voting qualification
or prerequisite to voting, or standard, practice, or procedure with
respect to voting different from that in force or effect on the date
used to determine coverage, until either:
(1) A declaratory judgment is obtained from the U.S. District Court
for the District of Columbia that such qualification, prerequisite,
standard, practice, or procedure does not have the purpose and will not
have the effect of denying or abridging the right to vote on account of
race, color, or membership in a language minority group, or
(2) It has been submitted to the Attorney General and the Attorney
General has interposed no objection within a 60-day period following
submission.
(b) In order to make clear the responsibilities of the Attorney
General under section 5 and the interpretation of the Attorney General
of the responsibility imposed on others under this section, the
procedures in this part have been established to govern the
administration of section 5.
Sec. 51.2 Definitions.
As used in this part--
Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by
the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act,
84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400,
and the Voting Rights Act Amendments of 1982, 96 Stat. 131, 42 U.S.C.
1973 et seq. Section numbers, such as ``section 14(c)(3),'' refer to
sections of the Act.
Attorney General means the Attorney General of the United States or
the delegate of the Attorney General.
Change affecting voting means any voting qualification, prerequisite
to voting, or standard, practice, or procedure with respect to voting
different from that in force or effect on the date
[[Page 78]]
used to determine coverage under section 4(b) and includes, inter alia,
the examples given in Sec. 51.13.
Covered jurisdiction is used to refer to a State, where the
determination referred to in Sec. 51.4 has been made on a statewide
basis, and to a political subdivision, where the determination has not
been made on a statewide basis.
Language minorities or language minority group is used, as defined
in the Act, to refer to persons who are American Indian, Asian American,
Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)).
See 28 CFR part 55, Interpretative Guidelines: Implementation of the
Provisions of the Voting Rights Act Regarding Language Minority Groups.
Political subdivision is used, as defined in the Act, to refer to
``any county or parish, except that where registration for voting is not
conducted under the supervision of a county or parish, the term shall
include any other subdivision of a State which conducts registration for
voting.'' (Section 14(c)(2)).
Preclearance is used to refer to the obtaining of the declaratory
judgment described in section 5, to the failure of the Attorney General
to interpose an objection pursuant to section 5, or to the withdrawal of
an objection by the Attorney General pursuant to Sec. 51.48(b).
Submission is used to refer to the written presentation to the
Attorney General by an appropriate official of any change affecting
voting.
Submitting authority means the jurisdiction on whose behalf a
submission is made.
Vote and voting are used, as defined in the Act, to include ``all
action necessary to make a vote effective in any primary, special, or
general election, including, but not limited to, registration, listing
pursuant to this Act, or other action required by law prerequisite to
voting, casting a ballot, and having such ballot counted properly and
included in the appropriate totals of votes cast with respect to
candidates for public or party office and propositions for which votes
are received in an election.'' (Section 14(c)(1)).
Sec. 51.3 Delegation of authority.
The responsibility and authority for determinations under section 5
have been delegated by the Attorney General to the Assistant Attorney
General, Civil Rights Division. With the exception of objections and
decisions following the reconsideration of objections, the Chief of the
Voting Section is authorized to act on behalf of the Assistant Attorney
General.
Sec. 51.4 Date used to determine coverage; list of covered jurisdictions.
(a) The requirement of section 5 takes effect upon publication in
the Federal Register of the requisite determinations of the Director of
the Census and the Attorney General under section 4(b). These
determinations are not reviewable in any court. (Section 4(b)).
(b) Section 5 requires the preclearance of changes affecting voting
made since the date used for the determination of coverage. For each
covered jurisdiction that date is one of the following: November 1,
1964; November 1, 1968; or November 1, 1972.
(c) The appendix to this part contains a list of covered
jurisdictions, together with the applicable date used to determine
coverage and the Federal Register citation for the determination of
coverage.
Sec. 51.5 Termination of coverage (bailout).
A covered jurisdiction or a political subdivision of a covered State
may terminate the application of section 5 (or bail out) by obtaining
the declaratory judgment described in section 4(a) of the Act.
Sec. 51.6 Political subunits.
All political subunits within a covered jurisdiction (e.g.,
counties, cities, school districts) are subject to the requirement of
section 5.
Sec. 51.7 Political parties.
Certain activities of political parties are subject to the
preclearance requirement of section 5. A change affecting voting
effected by a political party is subject to the preclearance
requirement:
[[Page 79]]
(a) If the change relates to a public electoral function of the
party and
(b) If the party is acting under authority explicitly or implicitly
granted by a covered jurisdiction or political subunit subject to the
preclearance requirement of section 5.
For example, changes with respect to the recruitment of party members,
the conduct of political campaigns, and the drafting of party platforms
are not subject to the preclearance requirement. Changes with respect to
the conduct of primary elections at which party nominees, delegates to
party conventions, or party officials are chosen are subject to the
preclearance requirement of section 5. Where appropriate the term
``jurisdiction'' (but not ``covered jurisdiction'') includes political
parties.
Sec. 51.8 Section 3 coverage.
Under section 3(c) of the Act, a court in voting rights litigation
can order as relief that a jurisdiction not subject to the preclearance
requirement of section 5 preclear its voting changes by submitting them
either to the court or to the Attorney General. Where a jurisdiction is
required under section 3(c) to preclear its voting changes, and it
elects to submit the proposed changes to the Attorney General for
preclearance, the procedures in this part will apply.
Sec. 51.9 Computation of time.
(a) The Attorney General shall have 60 days in which to interpose an
objection to a submitted change affecting voting.
(b) Except as specified in Secs. 51.37, 51.39, and 51.42 the 60-day
period shall commence upon receipt by the Department of Justice of a
submission.
(c) The 60-day period shall mean 60 calendar days, with the day of
receipt of the submission not counted. If the final day of the period
should fall on a Saturday, Sunday, any day designated as a holiday by
the President or Congress of the United States, or any other day that is
not a day of regular business for the Department of Justice, the
Attorney General shall have until the close of the next full business
day in which to interpose an objection. The date of the Attorney
General's response shall be the date on which it is mailed to the
submitting authority.
Sec. 51.10 Requirement of action for declaratory judgment or submission to the Attorney General.
Section 5 requires that, prior to enforcement of any change
affecting voting, the jurisdiction that has enacted or seeks to
administer the change must either:
(a) Obtain a judicial determination from the U.S. District Court for
the District of Columbia that denial or abridgment of the right to vote
on account of race, color, or membership in a language minority group is
not the purpose and will not be the effect of the change or
(b) Make to the Attorney General a proper submission of the change
to which no objection is interposed.
It is unlawful to enforce a change affecting voting without obtaining
preclearance under section 5. The obligation to obtain such preclearance
is not relieved by unlawful enforcement.
[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]
Sec. 51.11 Right to bring suit.
Submission to the Attorney General does not affect the right of the
submitting authority to bring an action in the U.S. District Court for
the District of Columbia for a declaratory judgment that the change
affecting voting does not have the prohibited discriminatory purpose or
effect.
Sec. 51.12 Scope of requirement.
Any change affecting voting, even though it appears to be minor or
indirect, returns to a prior practice or procedure, ostensibly expands
voting rights, or is designed to remove the elements that caused
objection by the Attorney General to a prior submitted change, must meet
the section 5 preclearance requirement.
Sec. 51.13 Examples of changes.
Changes affecting voting include, but are not limited to, the
following examples:
(a) Any change in qualifications or eligibility for voting.
(b) Any change concerning registration, balloting, and the counting
of
[[Page 80]]
votes and any change concerning publicity for or assistance in
registration or voting.
(c) Any change with respect to the use of a language other than
English in any aspect of the electoral process.
(d) Any change in the boundaries of voting precincts or in the
location of polling places.
(e) Any change in the constituency of an official or the boundaries
of a voting unit (e.g., through redistricting, annexation, deannexation,
incorporation, reapportionment, changing to at-large elections from
district elections, or changing to district elections from at-large
elections).
(f) Any change in the method of determining the outcome of an
election (e.g., by requiring a majority vote for election or the use of
a designated post or place system).
(g) Any change affecting the eligibility of persons to become or
remain candidates, to obtain a position on the ballot in primary or
general elections, or to become or remain holders of elective offices.
(h) Any change in the eligibility and qualification procedures for
independent candidates.
(i) Any change in the term of an elective office or an elected
official or in the offices that are elective (e.g., by shortening the
term of an office, changing from election to appointment or staggering
the terms of offices).
(j) Any change affecting the necessity of or methods for offering
issues and propositions for approval by referendum.
(k) Any change affecting the right or ability of persons to
participate in political campaigns which is effected by a jurisdiction
subject to the requirement of section 5.
Sec. 51.14 Recurrent practices.
Where a jurisdiction implements a practice or procedure periodically
or upon certain established contingencies, a change occurs:
(a) The first time such a practice or procedure is implemented by
the jurisdiction,
(b) When the manner in which such a practice or procedure is
implemented by the jurisdiction is changed, or
(c) When the rules for determining when such a practice or procedure
will be implemented are changed.
The failure of the Attorney General to object to a recurrent practice or
procedure constitutes preclearance of the future use of the practice or
procedure if its recurrent nature is clearly stated or described in the
submission or is expressly recognized in the final response of the
Attorney General on the merits of the submission.
Sec. 51.15 Enabling legislation and contingent or nonuniform requirements.
(a) With respect to legislation (1) that enables or permits the
State or its political subunits to institute a voting change or (2) that
requires or enables the State or its political sub-units to institute a
voting change upon some future event or if they satisfy certain
criteria, the failure of the Attorney General to interpose an objection
does not exempt from the preclearance requirement the implementation of
the particular voting change that is enabled, permitted, or required,
unless that implementation is explicitly included and described in the
submission of such parent legislation.
(b) For example, such legislation includes--
(1) Legislation authorizing counties, cities, school districts, or
agencies or officials of the State to institute any of the changes
described in Sec. 51.13,
(2) Legislation requiring a political subunit that chooses a certain
form of government to follow specified election procedures,
(3) Legislation requiring or authorizing political subunits of a
certain size or a certain location to institute specified changes,
(4) Legislation requiring a political subunit to follow certain
practices or procedures unless the subunit's charter or ordinances
specify to the contrary.
Sec. 51.16 Distinction between changes in procedure and changes in substance.
The failure of the Attorney General to interpose an objection to a
procedure for instituting a change affecting voting does not exempt the
substantive
[[Page 81]]
change from the preclearance requirement. For example, if the procedure
for the approval of an annexation is changed from city council approval
to approval in a referendum, the preclearance of the new procedure does
not exempt an annexation accomplished under the new procedure from the
preclearance requirement.
Sec. 51.17 Special elections.
(a) The conduct of a special election (e.g., an election to fill a
vacancy; an initiative, referendum, or recall election; or a bond issue
election) is subject to the preclearance requirement to the extent that
the jurisdiction makes changes in the practices or procedures to be
followed.
(b) Any discretionary setting of the date for a special election or
scheduling of events leading up to or following a special election is
subject to the preclearance requirement.
(c) A jurisdiction conducting a referendum election to ratify a
change in a practice or procedure that affects voting may submit the
change to be voted on at the same time that it submits any changes
involved in the conduct of the referendum election. A jurisdiction
wishing to receive preclearance for the change to be ratified should
state clearly that such preclearance is being requested. See Sec. 51.22
of this part.
Sec. 51.18 Court-ordered changes.
(a) In general. Changes affecting voting that are ordered by a
Federal court are subject to the preclearance requirement of section 5
to the extent that they reflect the policy choices of the submitting
authority.
(b) Subsequent changes. Where a court-ordered change is not itself
subject to the preclearance requirement, subsequent changes necessitated
by the court order but decided upon by the jurisdiction remain subject
to preclearance. For example, voting precinct and polling place changes
made necessary by a court-ordered redistricting plan are subject to
section 5 review.
(c) In emergencies. A Federal court's authorization of the emergency
interim use without preclearance of a voting change does not exempt from
section 5 review any use of the practice not explicitly authorized by
the court.
Sec. 51.19 Request for notification concerning voting litigation.
A jurisdiction subject to the preclearance requirement of section 5
that becomes involved in any litigation concerning voting is requested
promptly to notify the Chief, Voting Section, Civil Rights Division,
Department of Justice, P.O. Box 66128, Washington, DC 20035-6128. Such
notification will not be considered a submission under section 5.
[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,
Sept. 3, 1987]
Subpart B--Procedures for Submission to the Attorney General
Sec. 51.20 Form of submissions.
(a) Submissions may be made in letter or any other written form.
(b) The Attorney General will accept certain machine readable data
in the following forms of magnetic media: 3\1/2\" 1.4 megabyte MS-DOS
formatted diskettes; 5 \1/4\" 1.2 megabyte MS-DOS formatted floppy
disks; nine-track tape (1600/6250 BPI). Unless requested by the Attorney
General, data provided on magnetic media need not be provided in hard
copy.
(c) All magnetic media shall be clearly labelled with the following
information:
(1) Submitting authority.
(2) Name, address, title, and telephone number of contact person.
(3) Date of submission cover letter.
(4) Statement identifying the voting change(s) involved in the
submission.
The label shall be affixed to each magnetic medium, and the information
included on the label shall also be contained in a documentation file on
the magnetic medium. If the information identified above is provided as
a disk operating system (DOS) file, it shall be formatted in a standard
American Standard Code for Information Interchange (ASCII) character
code, with a line feed or carriage return control character starting in
position 80. If the information identified above is provided other than
as DOS files, it shall
[[Page 82]]
be formatted as ASCII text (or Extended Binary Coded Decimal Interchange
Code (EBCDIC) if IBM standard labels are used), 80 byte fixed record
length, blocked in a multiple of 80 with a blocksize no larger than 32
kilobytes, and with no carriage return or line feed.
(d) Each magnetic medium (floppy disk or tape) provided must be
accompanied by a printed description of its contents, including an
identification by name and/or location of each data file that is
contained on the medium, a detailed record layout for each such file, a
record count for each such file, and a full description of the magnetic
medium format.
(e) All data files shall be provided in a fixed record-length format
using alphanumeric ASCII values. The first 50 records of each such file
shall be printed on hard copy and shall be attached to the printed
description of the file. Proprietary and/or commercial software system
data files (e.g. SAS, SPSS, dBase, Lotus 1-2-3) and data files
containing compressed data or binary data fields will not be accepted.
Nine-track tapes shall be clearly marked with printed labels to indicate
their density, and manner of labelling (ANSI, IBM, or unlabelled). The
printed label shall also include the record count, the record length,
the blocksize, the dataset name (DSN) if it is a labelled tape, and the
file number of each file on the tape.
[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836,
Oct. 16, 1991]
Sec. 51.21 Time of submissions.
Changes affecting voting should be submitted as soon as possible
after they become final.
Sec. 51.22 Premature submissions.
The Attorney General will not consider on the merits:
(a) Any proposal for a change affecting voting submitted prior to
final enactment or administrative decision or
(b) Any proposed change which has a direct bearing on another change
affecting voting which has not received section 5 preclearance.
However, with respect to a change for which approval by referendum, a
State or Federal court or a Federal agency is required, the Attorney
General may make a determination concerning the change prior to such
approval if the change is not subject to alteration in the final
approving action and if all other action necessary for approval has been
taken.
Sec. 51.23 Party and jurisdiction responsible for making submissions.
(a) Changes affecting voting shall be submitted by the chief legal
officer or other appropriate official of the submitting authority or by
any other authorized person on behalf of the submitting authority. When
one or more counties or other political subunits within a State will be
affected, the State may make a submission on their behalf. Where a State
is covered as a whole, State legislation (except legislation of local
applicability) or other changes undertaken or required by the State
shall be submitted by the State.
(b) A change effected by a political party (see Sec. 51.7) may be
submitted by an appropriate official of the political party.
Sec. 51.24 Address for submissions.
(a) Delivery by U.S. Postal Service. Submissions sent to the
Attorney General via the U.S. Postal Service shall be addressed to the
Chief, Voting Section, Civil Rights Division, Department of Justice,
P.O. Box 66128, Washington, DC 20035-6128.
(b) Delivery by other means. Submissions sent to the Attorney
General by carriers other than the U.S. Postal Service should be
addressed or may be delivered to the Chief, Voting Section, Civil Rights
Division, Department of Justice, 320 First Street, NW., room 818A,
Washington, DC 20001.
(c) Special marking. The envelope and first page of the submission
shall be clearly marked: Submission under section 5 of the Voting Rights
Act.
[Order 1214-87, 52 FR 33409, Sept. 3, 1987, as amended by Order No.
1793-93, 58 FR 51225, Oct. 1, 1993]
Sec. 51.25 Withdrawal of submissions.
(a) A jurisdiction may withdraw a submission at any time prior to a
final decision by the Attorney General. Notice of the withdrawal of a
submission
[[Page 83]]
must be made in writing, addressed to the Chief, Voting Section, as
specified in Sec. 51.24 of this part. The submission shall be deemed
withdrawn upon receipt of the notice.
(b) Notice of withdrawals will be given to interested parties
registered under Sec. 51.32.
[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,
Sept. 3, 1987]
Subpart C--Contents of Submissions
Sec. 51.26 General.
(a) The source of any information contained in a submission should
be identified.
(b) Where an estimate is provided in lieu of more reliable
statistics, the submission should identify the name, position, and
qualifications of the person responsible for the estimate and should
briefly describe the basis for the estimate.
(c) Submissions should be no longer than is necessary for the
presentation of the appropriate information and materials.
(d) The Attorney General will not accept for review any submission
that fails to describe the subject change in sufficient particularity to
satisfy the minimum requirements of Sec. 51.27(c).
(e) A submitting authority that desires the Attorney General to
consider any information supplied as part of an earlier submission may
incorporate such information by reference by stating the date and
subject matter of the earlier submission and identifying the relevant
information.
(f) Where information requested by this subpart is relevant but not
known or available, or is not applicable, the submission should so
state.
(g) The following Office of Management and Budget control number
under the Paperwork Reduction Act applies to the collection of
information requirements contained in these Procedures: OMB No. 1190-
0001 (expires February 28, 1994). See 5 CFR 1320.13.
[52 FR 490, Jan. 6, 1987, as amended by Order No. 1284-88, 53 FR 25327,
July 6, 1988; Order No. 1498-91, 56 FR 26032, June 6, 1991]
Sec. 51.27 Required contents.
Each submission should contain the following information or
documents to enable the Attorney General to make the required
determination pursuant to section 5 with respect to the submitted change
affecting voting:
(a) A copy of any ordinance, enactment, order, or regulation
embodying a change affecting voting.
(b) A copy of any ordinance, enactment, order, or regulation
embodying the voting practice that is proposed to be repealed, amended,
or otherwise changed.
(c) If the change affecting voting either is not readily apparent on
the face of the documents provided under paragraphs (a) and (b) of this
section or is not embodied in a document, a clear statement of the
change explaining the difference between the submitted change and the
prior law or practice, or explanatory materials adequate to disclose to
the Attorney General the difference between the prior and proposed
situation with respect to voting.
(d) The name, title, address, and telephone number of the person
making the submission.
(e) The name of the submitting authority and the name of the
jurisdiction responsible for the change, if different.
(f) If the submission is not from a State or county, the name of the
county and State in which the submitting authority is located.
(g) Identification of the person or body responsible for making the
change and the mode of decision (e.g., act of State legislature,
ordinance of city council, administrative decision by registrar).
(h) A statement identifying the statutory or other authority under
which the jurisdiction undertakes the change and a description of the
procedures the jurisdiction was required to follow in deciding to
undertake the change.
(i) The date of adoption of the change affecting voting.
(j) The date on which the change is to take effect.
(k) A statement that the change has not yet been enforced or
administered, or an explanation of why such a statement cannot be made.
[[Page 84]]
(l) Where the change will affect less than the entire jurisdiction,
an explanation of the scope of the change.
(m) A statement of the reasons for the change.
(n) A statement of the anticipated effect of the change on members
of racial or language minority groups.
(o) A statement identifying any past or pending litigation
concerning the change or related voting practices.
(p) A statement that the prior practice has been precleared (with
the date) or is not subject to the preclearance requirement and a
statement that the procedure for the adoption of the change has been
precleared (with the date) or is not subject to the preclearance
requirement, or an explanation of why such statements cannot be made.
(q) For redistrictings and annexations: the items listed under
Sec. 51.28 (a)(1) and (b)(1); for annexations only: the items listed
under Sec. 51.28(c)(3).
(r) Other information that the Attorney General determines is
required for an evaluation of the purpose or effect of the change. Such
information may include items listed in Sec. 51.28 and is most likely to
be needed with respect to redistrictings, annexations, and other complex
changes. In the interest of time such information should be furnished
with the initial submission relating to voting changes of this type.
When such information is required, but not provided, the Attorney
General shall notify the submitting authority in the manner provided in
Sec. 51.37.
Sec. 51.28 Supplemental contents.
Review by the Attorney General will be facilitated if the following
information, where pertinent, is provided in addition to that required
by Sec. 51.27.
(a) Demographic information. (1) Total and voting age population of
the affected area before and after the change, by race and language
group. If such information is contained in publications of the U.S.
Bureau of the Census, reference to the appropriate volume and table is
sufficient.
(2) The number of registered voters for the affected area by voting
precinct before and after the change, by race and language group.
(3) Any estimates of population, by race and language group, made in
connection with the adoption of the change.
(4) Demographic data provided on magnetic media shall be based upon
the Bureau of the Census Public Law 94-171 file unique block identity
code of state, county, tract, and block.
(5) Demographic data on magnetic media that are provided in
conjunction with a redistricting shall be contained in a table of
equivalencies giving the census block to district assignments in the
following format:
(i) Each census block record (including those with zero population)
will be followed by one or more additional fields indicating the
district assignment for the census block in one or more plans.
(ii) All district assignments in the plan fields shall be right
justified and blank filled if the assignment is less than four
characters.
(iii) The file structure shall be as follows:
------------------------------------------------------------------------
PL 94-171
Field reference name Length Data type
------------------------------------------------------------------------
State......................... STATEFP........ 2 Numeric.
County........................ CNTY........... 3 Numeric.
Tract......................... TRACT/BNA...... 6 Alpha/
Numeric.
Block......................... BLCK........... 4 Alpha/
Numeric.
Plan 1 District............... User supplied.. 4 Alpha/
Numeric.
Plan 2 District............... User supplied.. 4 Alpha/
Numeric.
Plan 3 District, etc.......... ............... ........ .............
Plan n District............... User supplied.. 4 Alpha/
Numeric.
------------------------------------------------------------------------
(iv) State and county shall be identified using the Federal
Information Processing Standards (FIPS-55) code.
(v) Census tracts shall be left justified, and census blocks shall
be left justified and blank filled if less than four characters.
(vi) Unused plan fields shall be blank filled.
(vii) In addition to the information identified in Sec. 51.20 (c)
through (e), the documentation file accompanying the block level
equivalency file shall contain the following information:
(A) The file structure.
(B) The total number of plans.
[[Page 85]]
(C) For each plan field, an identification of the plan (e.g., state
senate, congressional, county board, city council, school board) and its
status or nature (e.g., plan currently in effect, adopted plan,
alternative plan and sponsors).
(D) The number of districts in each plan field.
(E) Whether the plan field contains a complete or partial plan.
(F) Any additional information the jurisdiction deems relevant such
as bill number, date of adoption, etc., and a listing of any
modifications the submitting authority has made that alter the structure
of the TIGER/line geographic file.
(b) Maps. Where any change is made that revises the constituency
that elects any office or affects the boundaries of any geographic unit
or units defined or employed for voting purposes (e.g., redistricting,
annexation, change from district to at-large elections) or that changes
voting precinct boundaries, polling place locations, or voter
registration sites, maps in duplicate of the area to be affected,
containing the following information:
(1) The prior and new boundaries of the voting unit or units.
(2) The prior and new boundaries of voting precincts.
(3) The location of racial and language minority groups.
(4) Any natural boundaries or geographical features that influenced
the selection of boundaries of the prior or new units.
(5) The location of prior and new polling places.
(6) The location of prior and new voter registration sites.
(c) Annexations. For annexations, in addition to that information
specified elsewhere, the following information:
(1) The present and expected future use of the annexed land (e.g.,
garden apartments, industrial park).
(2) An estimate of the expected population, by race and language
group, when anticipated development, if any, is completed.
(3) A statement that all prior annexations subject to the
preclearance requirement have been submitted for review, or a statement
that identifies all annexations subject to the preclearance requirement
that have not been submitted for review. See Sec. 51.61(b).
(d) Election returns. Where a change may affect the electoral
influence of a racial or language minority group, returns of primary and
general elections conducted by or in the jurisdiction, containing the
following information:
(1) The name of each candidate.
(2) The race or language group of each candidate, if known.
(3) The position sought by each candidate.
(4) The number of votes received by each candidate, by voting
precinct.
(5) The outcome of each contest.
(6) The number of registered voters, by race and language group, for
each voting precinct for which election returns are furnished.
Information with respect to elections held during the last ten years
will normally be sufficient.
(7) Election related data containing any of the information
described above that are provided on magnetic media shall conform to the
requirements of Sec. 51.20 (b) through (e). Election related data that
cannot be accurately presented in terms of census blocks may be
identified by county and by precinct.
(e) Language usage. Where a change is made affecting the use of the
language of a language minority group in the electoral process,
information that will enable the Attorney General to determine whether
the change is consistent with the minority language requirements of the
Act. The Attorney General's interpretation of the minority language
requirements of the Act is contained in Interpretative Guidelines:
Implementation of the Provisions of the Voting Rights Act Regarding
Language Minority Groups, 28 CFR part 55.
(f) Publicity and participation. For submissions involving
controversial or potentially controversial changes, evidence of public
notice, of the opportunity for the public to be heard, and of the
opportunity for interested parties to participate in the decision to
adopt the proposed change and an account of the extent to which such
participation, especially by minority group members, in fact took place.
Examples of materials demonstrating public notice or participation
include:
[[Page 86]]
(1) Copies of newspaper articles discussing the proposed change.
(2) Copies of public notices that describe the proposed change and
invite public comment or participation in hearings and statements
regarding where such public notices appeared (e.g., newspaper, radio, or
television, posted in public buildings, sent to identified individuals
or groups).
(3) Minutes or accounts of public hearings concerning the proposed
change.
(4) Statements, speeches, and other public communications concerning
the proposed change.
(5) Copies of comments from the general public.
(6) Excerpts from legislative journals containing discussion of a
submitted enactment, or other materials revealing its legislative
purpose.
(g) Availability of the submission. (1) Copies of public notices
that announce the submission to the Attorney General, inform the public
that a complete duplicate copy of the submission is available for public
inspection (e.g., at the county courthouse) and invite comments for the
consideration of the Attorney General and statements regarding where
such public notices appeared.
(2) Information demonstrating that the submitting authority, where a
submission contains magnetic media, made the magnetic media available to
be copied or, if so requested, made a hard copy of the data contained on
the magnetic media available to be copied.
(h) Minority group contacts. For submissions from jurisdictions
having a significant minority population, the names, addresses,
telephone numbers, and organizational affiliation (if any) of racial or
language minority group members residing in the jurisdiction who can be
expected to be familiar with the proposed change or who have been active
in the political process.
[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836,
Oct. 16, 1991]
Subpart D--Communications From Individuals and Groups
Sec. 51.29 Communications concerning voting changes.
Any individual or group may send to the Attorney General information
concerning a change affecting voting in a jurisdiction to which section
5 applies.
(a) Communications may be in the form of a letter stating the name,
address, and telephone number of the individual or group, describing the
alleged change affecting voting and setting forth evidence regarding
whether the change has or does not have a discriminatory purpose or
effect, or simply bringing to the attention of the Attorney General the
fact that a voting change has occurred.
(b) The communications should be mailed to the Chief, Voting
Section, Civil Rights Division, Department of Justice, P.O. Box 66128,
Washington, DC 20035-6128. The envelope and first page should be marked:
Comment under section 5 of the Voting Rights Act.
(c) Comments by individuals or groups concerning any change
affecting voting may be sent at any time; however, individuals and
groups are encouraged to comment as soon as they learn of the change.
(d) Department of Justice officials and employees shall comply with
the request of any individual that his or her identity not be disclosed
to any person outside the Department, to the extent permitted by the
Freedom of Information Act, 5 U.S.C. 552. In addition, whenever it
appears to the Attorney General that disclosure of the identity of an
individual who provided information regarding a change affecting voting
``would constitute a clearly unwarranted invasion of personal privacy''
under 5 U.S.C. 552(b)(6), the identity of the individual shall not be
disclosed to any person outside the Department.
(e) When an individual or group desires the Attorney General to
consider
[[Page 87]]
information that was supplied in connection with an earlier submission,
it is not necessary to resubmit the information but merely to identify
the earlier submission and the relevant information.
[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,
Sept. 3, 1987]
Sec. 51.30 Action on communications from individuals or groups.
(a) If there has already been a submission received of the change
affecting voting brought to the attention of the Attorney General by an
individual or group, any evidence from the individual or group shall be
considered along with the materials submitted and materials resulting
from any investigation.
(b) If such a submission has not been received, the Attorney General
shall advise the appropriate jurisdiction of the requirement of section
5 with respect to the change in question.
Sec. 51.31 Communications concerning voting suits.
Individuals and groups are urged to notify the Chief, Voting
Section, Civil Rights Division, of litigation concerning voting in
jurisdictions subject to the requirement of section 5.
Sec. 51.32 Establishment and maintenance of registry of interested individuals and groups.
The Attorney General shall establish and maintain a Registry of
Interested Individuals and Groups, which shall contain the name and
address of any individual or group that wishes to receive notice of
section 5 submissions. Information relating to this registry and to the
requirements of the Privacy Act of 1974, 5 U.S.C. 552a et seq., is
contained in JUSTICE/CRT-004. 48 FR 5334 (Feb. 4, 1983).
Subpart E--Processing of Submissions
Sec. 51.33 Notice to registrants concerning submissions.
Weekly notice of submissions that have been received will be given
to the individuals and groups who have registered for this purpose under
Sec. 51.32. Such notice will also be given when section 5 declaratory
judgment actions are filed or decided.
Sec. 51.34 Expedited consideration.
(a) When a submitting authority is required under State law or local
ordinance or otherwise finds it necessary to implement a change within
the 60-day period following submission, it may request that the
submission be given expedited consideration. The submission should
explain why such consideration is needed and provide the date by which a
determination is required.
(b) Jurisdictions should endeavor to plan for changes in advance so
that expedited consideration will not be required and should not
routinely request such consideration. When a submitting authority
demonstrates good cause for expedited consideration the Attorney General
will attempt to make a decision by the date requested. However, the
Attorney General cannot guarantee that such consideration can be given.
(c) Notice of the request for expedited consideration will be given
to interested parties registered under Sec. 51.32.
Sec. 51.35 Disposition of inappropriate submissions.
The Attorney General will make no response on the merits with
respect to an inappropriate submission but will notify the submitting
authority of the inappropriateness of the submission. Such notification
will be made as promptly as possible and no later than the 60th day
following receipt and will include an explanation of the
inappropriateness of the submission. Inappropriate submissions include
the submission of changes that do not affect voting (see, e.g.,
Sec. 51.13), the submission of standards, practices, or procedures that
have not been changed (see, e.g., Secs. 51.4, 51.14), the submission of
changes that affect voting but are not subject to the requirement of
section 5 (see, e.g., Sec. 51.18), premature submissions (see
Secs. 51.22, 51.61(b)), submissions by jurisdictions not subject to the
preclearance requirement (see Secs. 51.4, 51.5), and deficient
submissions (see Sec. 51.26(d)).
[[Page 88]]
Sec. 51.36 Release of information concerning submissions.
The Attorney General shall have the discretion to call to the
attention of the submitting authority or any interested individual or
group information or comments related to a submission.
Sec. 51.37 Obtaining information from the submitting authority.
(a) If a submission does not satisfy the requirements of Sec. 51.27,
the Attorney General may request from the submitting authority any
omitted information considered necessary for the evaluation of the
submission. The request shall be made by letter and shall be made within
the 60-day period and as promptly as possible after receipt of the
original submission. See also Sec. 51.26(d).
(b) A copy of the request shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
(c) The Attorney General shall notify the submitting authority that
a new 60-day period in which the Attorney General may interpose an
objection shall commence upon the receipt of a response from the
submitting authority that provides the information requested or states
that the information is unavailable. The Attorney General can request
further information within the new 60-day period, but such a further
request shall not suspend the running of the 60-day period, nor shall
the receipt of a response to such a request operate to begin a new 60-
day period.
(d) The receipt of a response from the submitting authority that
neither provides the information requested nor states that such
information is unavailable shall not commence a new 60-day period. It is
the practice of the Attorney General to notify the submitting authority
that its response is inadequate and to provide such notification as soon
as possible after the receipt of the inadequate response.
(e) If, after a request for further information is made pursuant to
this section, the information requested becomes available to the
Attorney General from a source other than the submitting authority, the
Attorney General shall promptly notify the submitting authority by
letter, and the 60-day period will commence upon the date of such
notification.
(f) Notice of the request for and receipt of further information
will be given to interested parties registered under Sec. 51.32.
Sec. 51.38 Obtaining information from others.
(a) The Attorney General may at any time request relevant
information from governmental jurisdictions and from interested groups
and individuals and may conduct any investigation or other inquiry that
is deemed appropriate in making a determination.
(b) If a submission does not contain evidence of adequate notice to
the public, and the Attorney General believes that such notice is
essential to a determination, steps will be taken by the Attorney
General to provide public notice sufficent to invite interested or
affected persons to provide evidence as to the presence or absence of a
discriminatory purpose or effect. The submitting authority shall be
advised when any such steps are taken.
Sec. 51.39 Supplementary submissions.
(a) When a submitting authority provides documents and written
information materially supplementing a submission (or a request for
reconsideration of an objection) for evaluation as if part of its
original submission, or, before the expiration of the 60-day period,
makes a second submission such that the two submissions cannot be
independently considered, the 60-day period for the original submission
will be calculated from the receipt of the supplementary information or
from the second submission.
(b) The Attorney General will notify the submitting authority when
the 60-day period for a submission is recalculated from the receipt of
supplementary information or from the receipt of a second related
submission.
(c) Notice of the receipt of supplementary information will be given
to interested parties registered under Sec. 51.32.
[[Page 89]]
Sec. 51.40 Failure to complete submissions.
If after 60 days the submitting authority has not provided further
information in response to a request made pursuant to Sec. 51.37(a), the
Attorney General, absent extenuating circumstances and consistent with
the burden of proof under section 5 described in Sec. 51.52 (a) and (c),
may object to the change, giving notice as specified in Sec. 51.44.
Sec. 51.41 Notification of decision not to object.
(a) The Attorney General shall within the 60-day period allowed
notify the submitting authority of a decision to interpose no objection
to a submitted change affecting voting.
(b) The notification shall state that the failure of the Attorney
General to object does not bar subsequent litigation to enjoin the
enforcement of the change.
(c) A copy of the notification shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
Sec. 51.42 Failure of the Attorney General to respond.
It is the practice and intention of the Attorney General to respond
to each submission within the 60-day period. However, the failure of the
Attorney General to make a written response within the 60-day period
constitutes preclearance of the submitted change, provided the
submission is addressed as specified in Sec. 51.24 and is appropriate
for a response on the merits as described in Sec. 51.35.
Sec. 51.43 Reexamination of decision not to object.
After notification to the submitting authority of a decision to
interpose no objection to a submitted change affecting voting has been
given, the Attorney General may reexamine the submission if, prior to
the expiration of the 60-day period, information indicating the
possibility of the prohibited discriminatory purpose or effect is
received. In this event, the Attorney General may interpose an objection
provisionally and advise the submitting authority that examination of
the change in light of the newly raised issues will continue and that a
final decision will be rendered as soon as possible.
Sec. 51.44 Notification of decision to object.
(a) The Attorney General shall within the 60-day period allowed
notify the submitting authority of a decision to interpose an objection.
The reasons for the decision shall be stated.
(b) The submitting authority shall be advised that the Attorney
General will reconsider an objection upon a request by the submitting
authority.
(c) The submitting authority shall be advised further that
notwithstanding the objecton it may institute an action in the U.S.
District Court for the District of Columbia for a declaratory judgment
that the change objected to by the Attorney General does not have the
prohibited discriminatory purpose or effect.
(d) A copy of the notification shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
(e) Notice of the decision to interpose an objection will be given
to interested parties registered under Sec. 51.32.
Sec. 51.45 Request for reconsideration.
(a) The submitting authority may at any time request the Attorney
General to reconsider an objection.
(b) Requests may be in letter or any other written form and should
contain relevant information or legal argument.
(c) Notice of the request will be given to any party who commented
on the submission or requested notice of the Attorney General's action
thereon and to interested parties registered under Sec. 51.32. In
appropriate cases the Attorney General may request the submitting
authority to give local public notice of the request.
Sec. 51.46 Reconsideration of objection at the instance of the Attorney General.
(a) Where there appears to have been a substantial change in
operative fact or relevant law, an objection may be
[[Page 90]]
reconsidered, if it is deemed appropriate, at the instance of the
Attorney General.
(b) Notice of such a decision to reconsider shall be given to the
submitting authority, to any party who commented on the submission or
requested notice of the Attorney General's action thereon, and to
interested parties registered under Sec. 51.32, and the Attorney General
shall decide whether to withdraw or to continue the objection only after
such persons have had a reasonable opportunity to comment.
Sec. 51.47 Conference.
(a) A submitting authority that has requested reconsideration of an
objection pursuant to Sec. 51.45 may request a conference to produce
information or legal argument in support of reconsideration.
(b) Such a conference shall be held at a location determined by the
Attorney General and shall be conducted in an informal manner.
(c) When a submitting authority requests such a conference,
individuals or groups that commented on the change prior to the Attorney
General's objection or that seek to participate in response to any
notice of a request for reconsideration shall be notified and given the
opportunity to confer.
(d) The Attorney General shall have the discretion to hold separate
meetings to confer with the submitting authority and other interested
groups or individuals.
(e) Such conferences will be open to the public or to the press only
at the discretion of the Attorney General and with the agreement of the
participating parties.
Sec. 51.48 Decision after reconsideration.
(a) The Attorney General shall within the 60-day period following
the receipt of a reconsideration request or following notice given under
Sec. 51.46(b) notify the submitting authority of the decision to
continue or withdraw the objection, provided that the Attorney General
shall have at least 15 days following any conference that is held in
which to decide. (See also Sec. 51.39(a).) The reasons for the decision
shall be stated.
(b) The objection shall be withdrawn if the Attorney General is
satisfied that the change does not have the purpose and will not have
the effect of discriminating on account of race, color, or membership in
a language minority group.
(c) If the objection is not withdrawn, the submitting authority
shall be advised that notwithstanding the objection it may institute an
action in the U.S. District Court for the District of Columbia for a
declaratory judgment that the change objected to by the Attorney General
does not have the prohibited purpose or effect.
(d) An objection remains in effect until either it is withdrawn by
the Attorney General or a declaratory judgment with respect to the
change in question is entered by the U.S. District Court for the
District of Columbia.
(e) A copy of the notification shall be sent to any party who has
commented on the submission or reconsideration or has requested notice
of the Attorney General's action thereon.
(f) Notice of the decision after reconsideration will be given to
interested parties registered under Sec. 51.32.
Sec. 51.49 Absence of judicial review.
The decision of the Attorney General not to object to a submitted
change or to withdraw an objection is not reviewable. The preclearance
by the Attorney General of a voting change does not constitute the
certification that the voting change satisfies any other requirement of
the law beyond that of section 5, and, as stated in section 5,
``(n)either an affirmative indication by the Attorney General that no
objection will be made, nor the Attorney General's failure to object,
nor a declaratory judgment entered under this section shall bar a
subsequent action to enjoin enforcement of such qualification,
prerequisite, standard, practice, or procedure.''
Sec. 51.50 Records concerning submissions.
(a) Section 5 files: The Attorney General shall maintain a section 5
file for each submission, containing the submission, related written
materials, correspondence, memoranda, investigative reports, data
provided on magnetic
[[Page 91]]
media, notations concerning conferences with the submitting authority or
any interested individual or group, and copies of letters from the
Attorney General concerning the submission.
(b) Objection files: Brief summaries regarding each submission and
the general findings of the Department of Justice investigation and
decision concerning it will be prepared when a decision to interpose,
continue, or withdraw an objection is made. Files of these summaries,
arranged by jurisdiction and by the date upon which such decision is
made, will be maintained.
(c) Computer file: Records of all submissions and of their
dispositions by the Attorney General shall be electronically stored and
periodically retrieved in the form of computer printouts.
(d) The contents of the files in paper or microfiche form described
in paragraphs (a) through (c) of this section shall be available for
inspection and copying by the public during normal business hours at the
Voting Section, Civil Rights Division, Department of Justice,
Washington, DC. Those who desire to inspect information that has been
provided on magnetic media will be provided a copy of that information
in the same form as it was received. Materials that are exempt from
inspection under the Freedom of Information Act, 5 U.S.C. 552(b), may be
withheld at the discretion of the Attorney Gereral. Communications from
individuals who have requested confidentiality or with respect to whom
the Attorney General has determined that confidentiality is appropriate
under Sec. 51.29(d) shall be available only as provided by
Sec. 51.29(d). Applicable fees, if any, for the copying of the contents
of these files are contained in the Department of Justice regulations
implementing the Freedom of Information Act, 28 CFR 16.10.
[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987, as amended by Order
No. 1536-91, 56 FR 51837, Oct. 16, 1991]
Subpart F--Determinations by the Attorney General
Sec. 51.51 Purpose of the subpart.
The purpose of this subpart is to inform submitting authorities and
other interested parties of the factors that the Attorney General
considers relevant and of the standards by which the Attorney General
will be guided in making substantive determinations under section 5 and
in defending section 5 declaratory judgment actions.
Sec. 51.52 Basic standard.
(a) Surrogate for the court. Section 5 provides for submission of a
voting change to the Attorney General as an alternative to the seeking
of a declaratory judgment from the U.S. District Court for the District
of Columbia. Therefore, the Attorney General shall make the same
determination that would be made by the court in an action for a
declaratory judgment under section 5: Whether the submitted change has
the purpose or will have the effect of denying or abridging the right to
vote on account of race, color, or membership in a language minority
group. The burden of proof is on a submitting authority when it submits
a change to the Attorney General for preclearance, as it would be if the
proposed change were the subject of a declaratory judgment action in the
U.S. District Court for the District of Columbia. See South Carolina v.
Katzenbach, 383 U.S. 301, 328, 335 (1966).
(b) No objection. If the Attorney General determines that the
submitted change does not have the prohibited purpose or effect, no
objection shall be interposed to the change.
(c) Objection. An objection shall be interposed to a submitted
change if the Attorney General is unable to determine that the change is
free of discriminatory purpose and effect. This includes those
situations where the evidence as to the purpose or effect of the change
is conflicting and the Attorney General is unable to determine that the
change is free of discriminatory purpose and effect.
Sec. 51.53 Information considered.
The Attorney General shall base a determination on a review of
material presented by the submitting authority, relevant information
provided by individuals or groups, and the results of any investigation
conducted by the Department of Justice.
[[Page 92]]
Sec. 51.54 Discriminatory effect.
(a) Retrogression. A change affecting voting is considered to have a
discriminatory effect under section 5 if it will lead to a retrogression
in the position of members of a racial or language minority group (i.e.,
will make members of such a group worse off than they had been before
the change) with respect to their opportunity to exercise the electoral
franchise effectively. See Beer v. United States, 425 U.S. 130, 140-42
(1976).
(b) Benchmark. (1) In determining whether a submitted change is
retrogressive the Attorney General will normally compare the submitted
change to the voting practice or procedure in effect at the time of the
submission. If the existing practice or procedure upon submission was
not in effect on the jurisdiction's applicable date for coverage
(specified in the appendix) and is not otherwise legally enforceable
under section 5, it cannot serve as a benchmark, and, except as provided
in paragraph (b)(4) of this section, the comparison shall be with the
last legally enforceable practice or procedure used by the jurisdiction.
(2) The Attorney General will make the comparison based on the
conditions existing at the time of the submission.
(3) The implementation and use of an unprecleared voting change
subject to section 5 review under Sec. 51.18(a) does not operate to make
that unprecleared change a benchmark for any subsequent change submitted
by the jurisdiction. See Sec. 51.18(c).
(4) Where at the time of submission of a change for section 5 review
there exists no other lawful practice or procedure for use as a
benchmark (e.g., where a newly incorporated college district selects a
method of election) the Attorney General's preclearance determination
will necessarily center on whether the submitted change was designed or
adopted for the purpose of discriminating against members of racial or
language minority groups.
Sec. 51.55 Consistency with constitutional and statutory requirements.
(a) Consideration in general. In making a determination the Attorney
General will consider whether the change is free of discriminatory
purpose and retrogressive effect in light of, and with particular
attention being given to, the requirements of the 14th, 15th, and 24th
amendments to the Constitution, 42 U.S.C. 1971(a) and (b), sections 2,
4(a), 4(f)(2), 4(f)(4), 201, 203(c), and 208 of the Act, and other
constitutional and statutory provisions designed to safeguard the right
to vote from denial or abridgment on account of race, color, or
membership in a language minority group.
(b) Section 2. Preclearance under section 5 of a voting change will
not preclude any legal action under section 2 by the Attorney General if
implementation of the change demonstrates that such action is
appropriate.
[52 FR 490, Jan. 6, 1987, as amended at 63 FR 24109, May 1, 1998]
Sec. 51.56 Guidance from the courts.
In making determinations the Attorney General will be guided by the
relevant decisions of the Supreme Court of the United States and of
other Federal courts.
Sec. 51.57 Relevant factors.
Among the factors the Attorney General will consider in making
determinations with respect to the submitted changes affecting voting
are the following:
(a) The extent to which a reasonable and legitimate justification
for the change exists.
(b) The extent to which the jurisdiction followed objective
guidelines and fair and conventional procedures in adopting the change.
(c) The extent to which the jurisdiction afforded members of racial
and language minority groups an opportunity to participate in the
decision to make the change.
(d) The extent to which the jurisdiction took the concerns of
members of racial and language minority groups into account in making
the change.
Sec. 51.58 Representation.
(a) Introduction. This section and the sections that follow set
forth factors--in addition to those set forth above--that the Attorney
General considers in reviewing redistrictings (see Sec. 51.59), changes
in electoral systems (see Sec. 51.60), and annexations (see Sec. 51.61).
[[Page 93]]
(b) Background factors. In making determinations with respect to
these changes involving voting practices and procedures, the Attorney
General will consider as important background information the following
factors:
(1) The extent to which minorities have been denied an equal
opportunity to participate meaningfully in the political process in the
jurisdiction.
(2) The extent to which minorities have been denied an equal
opportunity to influence elections and the decisionmaking of elected
officials in the jurisdiction.
(3) The extent to which voting in the jurisdiction is racially
polarized and political activities are racially segregated.
(4) The extent to which the voter registration and election
participation of minority voters have been adversely affected by present
or past discrimination.
Sec. 51.59 Redistrictings.
In determining whether a submitted redistricting plan has the
prohibited purpose or effect the Attorney General, in addition to the
factors described above, will consider the following factors (among
others):
(a) The extent to which malapportioned districts deny or abridge the
right to vote of minority citizens.
(b) The extent to which minority voting strength is reduced by the
proposed redistricting.
(c) The extent to which minority concentrations are fragmented among
different districts.
(d) The extent to which minorities are overconcentrated in one or
more districts.
(e) The extent to which available alternative plans satisfying the
jurisdiction's legitimate governmental interests were considered.
(f) The extent to which the plan departs from objective
redistricting criteria set by the submitting jurisdiction, ignores other
relevant factors such as compactness and contiguity, or displays a
configuration that inexplicably disregards available natural or
artificial boundaries.
(g) The extent to which the plan is inconsistent with the
jurisdiction's stated redistricting standards.
Sec. 51.60 Changes in electoral systems.
In making determinations with respect to changes in electoral
systems (e.g., changes to or from the use of at-large elections, changes
in the size of elected bodies) the Attorney General, in addition to the
factors described above, will consider the following factors (among
others):
(a) The extent to which minority voting strength is reduced by the
proposed change.
(b) The extent to which minority concentrations are submerged into
larger electoral units.
(c) The extent to which available alternative systems satisfying the
jurisdiction's legitimate governmental interests were considered.
Sec. 51.61 Annexations.
(a) Coverage. Annexations, even of uninhabited land, are subject to
section 5 preclearance to the extent that they alter or are calculated
to alter the composition of a jurisdiction's electorate. In analyzing
annexations under section 5, the Attorney General only considers the
purpose and effect of the annexation as it pertains to voting.
(b) Section 5 review. It is the practice of the Attorney General to
review all of a jurisdiction's unprecleared annexations together. See
City of Pleasant Grove v. United States, C.A. No. 80-2589 (D.D.C. Oct.
7, 1981).
(c) Relevant factors. In making determinations with respect to
annexations, the Attorney General, in addition to the factors described
above, will consider the following factors (among others):
(1) The extent to which a jurisdiction's annexations reflect the
purpose or have the effect of excluding minorities while including other
similarly situated persons.
(2) The extent to which the annexations reduce a jurisdiction's
minority population percentage, either at the time of the submission or,
in view of the intended use, for the reasonably foreseeable future.
(3) Whether the electoral system to be used in the jurisdiction
fails fairly
[[Page 94]]
to reflect minority voting strength as it exists in the post-annexation
jurisdiction. See City of Richmond v. United States, 422 U.S. 358, 367-
72 (1975).
[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]
Subpart G--Sanctions
Sec. 51.62 Enforcement by the Attorney General.
(a) The Attorney General is authorized to bring civil actions for
appropriate relief against violations of the Act's provisions, including
section 5. See section 12(d).
(b) Certain violations of section 5 may be subject to criminal
sanctions. See section 12(a) and (c).
Sec. 51.63 Enforcement by private parties.
Private parties have standing to enforce section 5.
Sec. 51.64 Bar to termination of coverage (bailout).
(a) Section 4(a) of the Act sets out the requirements for the
termination of coverage (bailout) under section 5. See Sec. 51.5. Among
the requirements for bailout is compliance with section 5, as described
in section 4(a), during the ten years preceding the filing of the
bailout action and during its pendency.
(b) In defending bailout actions, the Attorney General will not
consider as a bar to bailout under section 4(a)(1)(E) a section 5
objection to a submitted voting standard, practice, or procedure if the
objection was subsequently withdrawn on the basis of a determination by
the Attorney General that it had originally been interposed as a result
of the Attorney General's misinterpretation of fact or mistake in the
law, or if the unmodified voting standard, practice, or procedure that
was the subject of the objection received section 5 preclearance by
means of a declaratory judgment from the U.S. District Court for the
District of Columbia.
(c) Notice will be given to interested parties registered under
Sec. 51.32 when bailout actions are filed or decided.
Subpart H--Petition To Change Procedures
Sec. 51.65 Who may petition.
Any jurisdiction or interested individual or group may petition to
have these procedural guidelines amended.
Sec. 51.66 Form of petition.
A petition under this subpart may be made by informal letter and
shall state the name, address, and telephone number of the petitioner,
the change requested, and the reasons for the change.
Sec. 51.67 Disposition of petition.
The Attorney General shall promptly consider and dispose of a
petition under this subpart and give notice of the disposition,
accompanied by a simple statement of the reasons, to the petitioner.
Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the
Voting Rights Act, as Amended
The preclearance requirement of section 5 of the Voting Rights Act,
as amended, applies in the following jurisdictions. The applicable date
is the date that was used to determine coverage and the date after which
changes affecting voting are subject to the preclearance requirement.
Some jurisdictions, for example, Yuba County, California, are
included more than once because they have been determined on more than
one occasion to be covered under section 4(b).
----------------------------------------------------------------------------------------------------------------
Federal Register citation
Jurisdiction Applicable Date -------------------------------------------------
Volume and page Date
----------------------------------------------------------------------------------------------------------------
Alabama.............................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Alaska............................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Arizona.............................. Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
California:
Kings County....................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23. 1975.
Merced County...................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Monterey County.................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Yuba County........................ Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Yuba County........................ Nov. 1, 1972........... 41 FR 784.............. Jan. 5, 1976.
[[Page 95]]
Florida:
Collier County..................... Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Hardee County...................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Hendry County...................... Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Hillsborough County................ Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Monroe County...................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Georgia.............................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Louisiana............................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Michigan:
Allegan County:
Clyde Township................... Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Saginaw County:
Buena Vista Township............. Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Mississippi.......................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
New Hampshire:
Cheshire County:
Rindge Town...................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Coos County:
Millsfield Township.............. Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Pinkhams Grant................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Stewartstown Town................ Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Stratford Town................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Grafton County:
Benton Town...................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Hillsborough County:
Antrim Town...................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Merrimack County:
Boscawen Town.................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Rockingham County:
Newington Town................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Sullivan County:
Unity Town....................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
New York:
Bronx County....................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Bronx County....................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Kings County....................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Kings County....................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
New York County.................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
North Carolina:
Anson County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Beaufort County.................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Bertie County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Bladen County...................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Camden County...................... Nov. 1, 1964........... 31 FR 3317............. Mar. 2, 1966.
Caswell County..................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Chowan County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Cleveland County................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Craven County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Cumberland County.................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Edgecombe County................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Franklin County.................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Gaston County...................... Nov. 1, 1964........... 31 FR 5081............. Mar, 29, 1966.
Gates County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Granville County................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Greene County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Guilford County.................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Halifax County..................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Harnett County..................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Hertford County.................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Hoke County........................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Jackson County..................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Lee County......................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Lenoir County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Martin County...................... Nov. 1, 1964........... 31 FR 19............... Jan. 4, 1966.
Nash County........................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Northampton County................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Onslow County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Pasquotank County.................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Perquimans County.................. Nov. 1, 1964........... 31 FR 3317............. Mar. 2, 1966.
Person County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Pitt County........................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Robeson County..................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
[[Page 96]]
Rockingham County.................. Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Scotland County.................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Union County....................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Vance County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Washington County.................. Nov. 1, 1964........... 31 FR 19............... Jan. 4, 1966.
Wayne County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Wilson County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
South Carolina....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
South Dakota:
Shannon County..................... Nov. 1, 1972........... 41 FR 784.............. Jan. 5, 1976.
Todd County........................ Nov. 1, 1972........... 41 FR 784.............. Jan. 5, 1976.
Texas................................ Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Virginia............................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Federal Register citation
Jurisdiction Applicable date -------------------------------------------------
Volume and page Date
----------------------------------------------------------------------------------------------------------------
Arizona:
Apache County...................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Apache County...................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975
Cochise County..................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Coconino County.................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Coconino County.................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Mohave County...................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Navajo County...................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Navajo County...................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Pima County........................ Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Pinal County....................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Pinal County....................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Santa Cruz County.................. Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Yuma County........................ Nov. 1, 1964........... 31 FR 982.............. Jan. 25, 1966.
----------------------------------------------------------------------------------------------------------------
PART 52--PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES--Table of Contents
Sec.
52.01 Civil proceedings: Special master, pretrial, trial, appeal.
52.02 Criminal proceedings: Pretrial, trial.
Sec. 52.01 Civil proceedings: Special master, pretrial, trial, appeal.
(a) Sections 636 (b) and (c) of title 28 of the United States Code
govern pretrial and case-dispositive civil jurisdiction of magistrate
judges, as well as service by magistrate judges as special masters.
(b) It is the policy of the Department of Justice to encourage the
use of magistrate judges, as set forth in this paragraph, to assist the
district courts in resolving civil disputes. In conformity with this
policy, the attorney for the government is encouraged to accede to a
referral of an entire civil action for disposition by a magistrate
judge, or to consent to designation of a magistrate judge as special
master, if the attorney, with the concurrence of his or her supervisor,
determines that such a referral or designation is in the interest of the
United States. In making this determination, the attorney shall consider
all relevant factors, including--
(1) The complexity of the matter, including involvement of
significant rights of large numbers of persons;
(2) The relief sought;
(3) The amount in controversy;
(4) The novelty, importance, and nature of the issues raised;
(5) The likelihood that referral to or designation of the magistrate
judge will expedite resolution of the litigation;
(6) The experience and qualifications of the magistrate judge; and
(7) The possibility of the magistrate judge's actual or apparent
bias or conflict of interest.
[[Page 97]]
(c)(1) In determining whether to consent to having an appeal taken
to the district court rather than to the court of appeals, the attorney
for the government should consider all relevant factors including--
(i) The amount in controversy;
(ii) The importance of the questions of law involved;
(iii) The desirability of expeditious review of the magistrate
judge's judgment.
(2) In making a determination under paragraph (c)(1) of this section
the attorney shall, except in those cases in which delegation authority
has been exercised under 28 CFR 0.168, consult with the Assistant
Attorney General having supervisory authority over the subject matter.
[Order No. 2012-96, 61 FR 8473, Mar. 5, 1996]
Sec. 52.02 Criminal proceedings: Pretrial, trial.
(a) A judge of the district court, without the parties' consent, may
designate a magistrate judge to hear and determine criminal pretrial
matters pending before the court, except for two named classes of
motions; as to the latter, the magistrate judge may conduct a hearing
and recommend a decision to the judge. 28 U.S.C. 636(b)(1) (A), (B).
(b) When specially designated by the court to exercise such
jurisdiction, a magistrate judge may try, and impose sentence for, any
misdemeanor if he has properly and fully advised the defendant that he
has a right to elect ``trial, judgment, and sentencing by a judge of the
district court and * * * may have a right to trial by jury before a
district judge or magistrate judge,'' and has obtained the defendant's
written consent to be tried by the magistrate judge. 18 U.S.C. 3401 (a),
(b). The court may order that proceedings be conducted before a district
judge rather than a magistrate judge upon its own motion or, for good
cause shown upon petition by the attorney for the government. The
petition should note ``the novelty, importance, or complexity of the
case, or other pertinent factors * * *''. 18 U.S.C. 3401(f).
(1) If the attorney for the government determines that the public
interest is better served by trial before a district judge, the attorney
may petition the district court for such an order after consulting with
the appropriate Assistant Attorney General as provided in paragraph
(b)(2) of this section. In making this determination, the attorney shall
consider all relevant factors including--
(i) The novelty of the case with respect to the facts, the statute
being enforced, and the application of the statute to the facts;
(ii) The importance of the case in light of the nature and
seriousness of the offense charged;
(iii) The defendant's history of criminal activity, the potential
penalty upon conviction, and the purposes to be served by prosecution,
including punishment, deterrence, rehabilitation, and incapacitation;
(iv) The factual and legal complexity of the case and the amount and
nature of the evidence to be presented;
(v) The desirability of prompt disposition of the case; and
(vi) The experience and qualifications of the magistrate judge, and
the possibility of the magistrate judge's actual or apparent bias or
conflict of interest.
(2) The attorney for the government shall consult with the Assistant
Attorney General having supervisory authority over the subject matter in
determining whether to petition for trial before a district judge in a
case involving a violation of 2 U.S.C. 192, 441j(a); 18 U.S.C. 210, 211,
242, 245, 594, 597, 599, 600, 601, 1304, 1504, 1508, 1509, 2234, 2235,
2236; or 42 U.S.C. 3631.
(3) In a case in which the government petitions for trial before a
district judge, the attorney for the government shall forward a copy of
the petition to the Assistant Attorney General having supervisory
authority over the subject matter and, if the petition is denied, shall
promptly notify the Assistant Attorney General.
(5 U.S.C. 301, 18 U.S.C. 3401(f))
[Order No. 903-80, 45 FR 50564, July 30, 1980, as amended by Order No.
2012-96, 61 FR 8473, Mar. 5, 1996]
[[Page 98]]
PART 55--IMPLEMENTATION OF THE PROVISIONS OF THE VOTING RIGHTS ACT REGARDING LANGUAGE MINORITY GROUPS--Table of Contents
Subpart A--General Provisions
Sec.
55.1 Definitions.
55.2 Purpose; standards for measuring compliance.
55.3 Statutory requirements.
Subpart B--Nature of Coverage
55.4 Effective date; list of covered jurisdictions.
55.5 Coverage under section 4(f)(4).
55.6 Coverage under section 203(c).
55.7 Termination of coverage.
55.8 Relationship between section 4(f)(4) and section 203(c).
55.9 Coverage of political units within a county.
55.10 Types of elections covered.
Subpart C--Determining the Exact Language
55.11 General.
55.12 Language used for written material.
55.13 Language used for oral assistance and publicity.
Subpart D--Minority Language Materials and Assistance
55.14 General.
55.15 Affected activities.
55.16 Standards and proof of compliance.
55.17 Targeting.
55.18 Provision of minority language materials and assistance.
55.19 Written materials.
55.20 Oral assistance and publicity.
55.21 Record keeping.
Subpart E--Preclearance
55.22 Requirements of section 5 of the Act.
Subpart F--Sanctions
55.23 Enforcement by the Attorney General.
Subpart G--Comment on This Part
55.24 Procedure.
Appendix to Part 55--Jurisdictions Covered Under Sections 4(f)(4) and
203(c) of the Voting Rights Act of 1965, as Amended
Authority 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1973b,
1973j(d), 1973aa-la, 1973aa-2.
Source: Order No. 655-76, 41 FR 29998, July 20, 1976, unless
otherwise noted.
Subpart A--General Provisions
Sec. 55.1 Definitions.
As used in this part--
Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by
the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act,
84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400,
the Voting Rights Act Amendments of 1982, 96 Stat. 131, and the Voting
Rights Language Assistance Act of 1992, Public Law 102-344, 106 Stat.
921, 42 U.S.C. 1973 et seq. Section numbers, such as ``section
14(c)(3),'' refer to sections of the Act.
Attorney General means the Attorney General of the United States.
Language minorities or language minority group is used, as defined
in the Act, to refer to persons who are American Indian, Asian American,
Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)).
Political subdivision is used, as defined in the Act, to refer to
``any county or parish, except that where registration for voting is not
conducted under the supervision of a county or parish, the term shall
include any other subdivision of a State which conducts registration for
voting.'' (Section 14(c)(2)).
[Order 1246-87, 53 FR 735, Jan. 12, 1988, as amended by Order No. 1752-
93, 58 FR 35372, July 1, 1993]
Sec. 55.2 Purpose; standards for measuring compliance.
(a) The purpose of this part is to set forth the Attorney General's
interpretation of the provisions of the Voting Rights Act which require
certain States and political subdivisions to conduct elections in the
language of certain ``language minority groups'' in addition to English.
(b) In the Attorney General's view the objective of the Act's
provisions is to enable members of applicable language minority groups
to participate effectively in the electoral process. This part
establishes two basic standards by which the Attorney General will
measure compliance:
(1) That materials and assistance should be provided in a way
designed to allow members of applicable language
[[Page 99]]
minority groups to be effectively informed of and participate
effectively in voting-connected activities; and
(2) That an affected jurisdiction should take all reasonable steps
to achieve that goal.
(c) The determination of what is required for compliance with
section 4(f)(4) and section 203(c) is the responsibility of the affected
jurisdiction. These guidelines should not be used as a substitute for
analysis and decision by the affected jurisdiction.
(d) Jurisdictions covered under section 4(f)(4) of the Act are
subject to the preclearance requirements of section 5. See part 51 of
this chapter. Such jurisdictions have the burden of establishing to the
satisfaction of the Attorney General or to the U.S. District Court for
the District of Columbia that changes made in their election laws and
procedures in order to comply with the requirements of section 4(f)(4)
are not discriminatory under the terms of section 5. However, section 5
expressly provides that the failure of the Attorney General to object
does not bar any subsequent judicial action to enjoin the enforcement of
the changes.
(e) Jurisdictions covered solely under section 203(c) of the Act are
not subject to the preclearance requirements of section 5, nor is there
a Federal apparatus available for preclearance of section 203(c)
compliance activities. The Attorney General will not preclear
jurisdictions' proposals for compliance with section 203(c).
(f) Consideration by the Attorney General of a jurisdiction's
compliance with the requirements of section 4(f)(4) occurs in the review
pursuant to section 5 of the Act of changes with respect to voting, in
the consideration of the need for litigation to enforce the requirements
of section 4(f)(4), and in the defense of suits for termination of
coverage under section 4(f)(4). Consideration by the Attorney General of
a jurisdiction's compliance with the requirements of section 203(c)
occurs in the consideration of the need for litigation to enforce the
requirements of section 203(c).
(g) In enforcing the Act--through the section 5 preclearance review
process, through litigation, and through defense of suits for
termination of coverage under section 4(f)(4)--the Attorney General will
follow the general policies set forth in this part.
(h) This part is not intended to preclude affected jurisdictions
from taking additional steps to further the policy of the Act. By virtue
of the Supremacy Clause of Art. VI of the Constitution, the provisions
of the Act override any inconsistent State law.
[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87,
53 FR 736, Jan. 12, 1988]
Sec. 55.3 Statutory requirements.
The Act's requirements concerning the conduct of elections in
languages in addition to English are contained in section 4(f)(4) and
section 203(c). These sections state that whenever a jurisdiction
subject to their terms ``provides any registration or voting notices,
forms, instructions, assistance, or other materials or information
relating to the electoral process, including ballots, it shall provide
them in the language of the applicable language minority group as well
as in * * * English. * * *''
Subpart B--Nature of Coverage
Sec. 55.4 Effective date; list of covered jurisdictions.
(a) The minority language provisions of the Voting Rights Act were
added by the Voting Rights Act Amendments of 1975.
(1) The requirements of section 4(f)(4) take effect upon publication
in the Federal Register of the requisite determinations of the Director
of the Census and the Attorney General. Such determinations are not
reviewable in any court.
(2) The requirements of section 203(c) take effect upon publication
in the Federal Register of the requisite determinations of the Director
of the Census. Such determinations are not reviewable in any court.
(b) Jurisdictions determined to be covered under section 4(f)(4) or
section 203(c) are listed, together with the language minority group
with respect to which coverage was determined, in the appendix to this
part. Any additional
[[Page 100]]
determinations of coverage under either section 4(f)(4) or section
203(c) will be published in the Federal Register.
[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87,
53 FR 736, Jan. 12, 1988]
Sec. 55.5 Coverage under section 4(f)(4).
(a) Coverage formula. Section 4(f)(4) applies to any State or
political subdivision in which
(1) Over five percent of the voting-age citizens were, on November
1, 1972, members of a single language minority group,
(2) Registration and election materials were provided only in
English on November 1, 1972, and
(3) Fewer than 50 percent of the voting-age citizens were registered
to vote or voted in the 1972 Presidential election.
All three conditions must be satisfied before coverage exists under
section 4(f)(4). \1\
---------------------------------------------------------------------------
\1\Coverage is based on sections 4(b) (third sentence), 4(c), and
4(f)(3).
---------------------------------------------------------------------------
(b) Coverage may be determined with regard to section 4(f)(4) on a
statewide or political subdivision basis.
(1) Whenever the determination is made that the bilingual
requirements of section 4(f)(4) are applicable to an entire State, these
requirements apply to each of the State's political subdivisions as well
as to the State. In other words, each political subdivision within a
covered State is subject to the same requirements as the State.
(2) Where an entire State is not covered under section 4(f)(4),
individual political subdivisions may be covered.
Sec. 55.6 Coverage under section 203(c).
(a) Coverage formula. There are four ways in which a political
subdivision can become subject to section 203(c).\2\
---------------------------------------------------------------------------
\2\ The criteria for coverage are contained in section 203(b).
---------------------------------------------------------------------------
(1) Political subdivision approach. A political subdivision is
covered if--
(i) More than 5 percent of its voting age citizens are members of a
single language minority group and are limited-English proficient; and
(ii) The illiteracy rate of such language minority citizens in the
political subdivision is higher than the national illiteracy rate.
(2) State approach. A political subdivision is covered if--
(i) It is located in a state in which more than 5 percent of the
voting age citizens are members of a single language minority and are
limited-English proficient;
(ii) The illiteracy rate of such language minority citizens in the
state is higher than the national illiteracy rate; and
(iii) Five percent or more of the voting age citizens of the
political subdivision are members of such language minority group and
are limited-English proficient.
(3) Numerical approach. A political subdivision is covered if--
(i) More than 10,000 of its voting age citizens are members of a
single language minority group and are limited-English proficient; and
(ii) The illiteracy rate of such language minority citizens in the
political subdivision is higher than the national illiteracy rate.
(4) Indian reservation approach. A political subdivision is covered
if there is located within its borders all or any part of an Indian
reservation--
(i) In which more than 5 percent of the voting age American Indian
or Alaska Native citizens are members of a single language minority
group and are limited-English proficient; and
(ii) The illiteracy rate of such language minority citizens is
higher than the national illiteracy rate.
(b) Definitions. For the purpose of determinations of coverage under
section 203(c), limited-English proficient means unable to speak or
understand English adequately enough to participate in the electoral
process; Indian reservation means any area that is an American Indian or
Alaska Native area, as defined by the Census Bureau for the purposes of
the 1990 decennial census; and illiteracy means the failure to complete
the fifth primary grade.
(c) Determinations. Determinations of coverage under section 203(c)
are made with regard to specific language groups of the language
minorities listed in section 203(e).
[Order No. 1752-93, 58 FR 35372, July 1, 1993]
[[Page 101]]
Sec. 55.7 Termination of coverage.
(a) Section 4(f)(4). A covered State, a political subdivision of a
covered State, or a separately covered political subdivision may
terminate the application of section 4(f)(4) by obtaining the
declaratory judgment described in section 4(a) of the Act.
(b) Section 203(c). The requirements of section 203(c) apply until
August 6, 2007. A covered jurisdiction may terminate such coverage
earlier if it can prove in a declaratory judgment action in a United
States district court, that the illiteracy rate of the applicable
language minority group is equal to or less than the national illiteracy
rate.
[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87,
53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373, July 1, 1993]
Sec. 55.8 Relationship between section 4(f)(4) and section 203(c).
(a) The statutory requirements of section 4(f)(4) and section 203(c)
regarding minority language material and assistance are essentially
identical.
(b) Jurisdictions subject to the requirements of section 4(f)(4)--
but not jurisdictions subject only to the requirements of section
203(c)--are also subject to the Act's special provisions, such as
section 5 (regarding preclearance of changes in voting laws) and section
6 (regarding Federal examiners). \3\ See part 51 of this chapter.
---------------------------------------------------------------------------
\3\ In addition, a jurisdiction covered under section 203(c) but not
under section 4(f)(4) is subject to the Act's special provisions if it
was covered under section 4(b) prior to the 1975 Amendments to the Act.
---------------------------------------------------------------------------
(c) Although the coverage formulas applicable to section 4(f)(4) and
section 203(c) are different, a political subdivision may be included
within both of the coverage formulas. Under these circumstances, a
judgment terminating coverage of the jurisdiction under one provision
would not have the effect of terminating coverage under the other
provision.
Sec. 55.9 Coverage of political units within a county.
Where a political subdivision (e.g., a county) is determined to be
subject to section 4(f)(4) or section 203(c), all political units that
hold elections within that political subdivision (e.g., cities, school
districts) are subject to the same requirements as the political
subdivision.
Sec. 55.10 Types of elections covered.
(a) General. The language provisions of the Act apply to
registration for and voting in any type of election, whether it is a
primary, general or special election. Section 14(c)(1). This includes
elections of officers as well as elections regarding such matters as
bond issues, constitutional amendments and referendums. Federal, State
and local elections are covered as are elections of special districts,
such as school districts and water districts.
(b) Elections for statewide office. If an election conducted by a
county relates to Federal or State offices or issues as well as county
offices or issues, a county subject to the bilingual requirements must
insure compliance with those requirements with respect to all aspects of
the election, i.e., the minority language material and assistance must
deal with the Federal and State offices or issues as well as county
offices or issues.
(c) Multi-county districts. Regarding elections for an office
representing more than one county, e.g., State legislative districts and
special districts that include portions of two or more counties, the
bilingual requirements are applicable on a county-by-county basis. Thus,
minority language material and assistance need not be provided by the
government in counties not subject to the bilingual requirements of the
Act.
Subpart C--Determining the Exact Language
Sec. 55.11 General.
The requirements of section 4(f)(4) or section 203(c) apply with
respect to the languages of language minority groups. The applicable
groups are indicated in the determinations of the Attorney General or
the Director of the Census. This subpart relates to the view of the
Attorney General concerning the determination by covered jurisdictions
of precisely the language to be employed. In enforcing the Act, the
Attorney
[[Page 102]]
General will consider whether the languages, forms of languages, or
dialects chosen by covered jurisdictions for use in the electoral
process enable members of applicable language minority groups to
participate effectively in the electoral process. It is the
responsibility of covered jurisdictions to determine what languages,
forms of languages, or dialects will be effective. For those
jurisdictions covered under section 203(c), the coverage determination
(indicated in the appendix) specifies the particular language for which
the jurisdiction was covered and which thus, under section 203(c), is
required to be used.
[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87,
53 FR 736, Jan. 12, 1988]
Sec. 55.12 Language used for written material.
(a) Language minority groups having more than one language. Some
language minority groups, for example, Filipino Americans, have more
than one language other than English. A jurisdiction required to provide
election materials in the language of such a group need not provide
materials in more than one language other than English. The Attorney
General will consider whether the language that is used for election
materials is the one most widely used by the jurisdiction's voting-age
citizens who are members of the language minority group.
(b) Languages with more than one written form. Some languages, for
example, Japanese, have more than one written form. A jurisdiction
required to provide election materials in such a language need not
provide more than one version. The Attorney General will consider
whether the particular version of the language that is used for election
materials is the one most widely used by the jurisdiction's voting-age
citizens who are members of the language minority group.
(c) Unwritten languages. Many of the languages used by language
minority groups, for example, by some American Indians and Alaskan
Natives, are unwritten. With respect to any such language, only oral
assistance and publicity are required. Even though a written form for a
language may exist, a language may be considered unwritten if it is not
commonly used in a written form. It is the responsibility of the covered
jurisdiction to determine whether a language should be considered
written or unwritten.
Sec. 55.13 Language used for oral assistance and publicity.
(a) Languages with more than one dialect. Some languages, for
example, Chinese, have several dialects. Where a jurisdiction is
obligated to provide oral assistance in such a language, the
jurisdiction's obligation is to ascertain the dialects that are commonly
used by members of the applicable language minority group in the
jurisdiction and to provide oral assistance in such dialects. (See
Sec. 55.20.)
(b) Language minority groups having more than one language. In some
jurisdictions members of an applicable language minority group speak
more than one language other than English. Where a jurisdiction is
obligated to provide oral assistance in the language of such a group,
the jurisdiction's obligation is to ascertain the languages that are
commonly used by members of that group in the jurisdiction and to
provide oral assistance in such languages. (See Sec. 55.20)
[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87,
53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373, July 1, 1993]
Subpart D--Minority Language Materials and Assistance
Sec. 55.14 General.
(a) This subpart sets forth the views of the Attorney General with
respect to the requirements of section 4(f)(4) and section 203(c)
concerning the provision of minority language materials and assistance
and some of the factors that the Attorney General will consider in
carrying out his responsibilities to enforce section 4(f)(4) and section
203(c). Through the use of his authority under section 5 and his
authority to bring suits to enforce section 4(f)(4) and section 203(c),
the Attorney General will seek to prevent or remedy discrimination
against members of language minority groups based on the failure to use
the applicable minority
[[Page 103]]
language in the electoral process. The Attorney General also has the
responsibility to defend against suits brought for the termination of
coverage under section 4(f)(4) and section 203(c).
(b) In discharging these responsibilities the Attorney General will
respond to complaints received, conduct on his own initiative inquiries
and surveys concerning compliance, and undertake other enforcement
activities.
(c) It is the responsibility of the jurisdiction to determine what
actions by it are required for compliance with the requirements of
section 4(f)(4) and section 203(c) and to carry out these actions.
Sec. 55.15 Affected activities.
The requirements of sections 4(f)(4) and 203(c) apply with regard to
the provision of ``any registration or voting notices, forms,
instructions, assistance, or other materials or information relating to
the electoral process, including ballots.'' The basic purpose of these
requirements is to allow members of applicable language minority groups
to be effectively informed of and participate effectively in voting-
connected activities. Accordingly, the quoted language should be broadly
construed to apply to all stages of the electoral process, from voter
registration through activities related to conducting elections,
including, for example the issuance, at any time during the year, of
notifications, announcements, or other informational materials
concerning the opportunity to register, the deadline for voter
registration, the time, places and subject matters of elections, and the
absentee voting process.
Sec. 55.16 Standards and proof of compliance.
Compliance with the requirements of section 4(f)(4) and section
203(c) is best measured by results. A jurisdiction is more likely to
achieve compliance with these requirements if it has worked with the
cooperation of and to the satisfaction of organizations representing
members of the applicable language minority group. In planning its
compliance with section 4(f)(4) or section 203(c), a jurisdiction may,
where alternative methods of compliance are available, use less costly
methods if they are equivalent to more costly methods in their
effectiveness.
Sec. 55.17 Targeting.
The term ``targeting'' is commonly used in discussions of the
requirements of section 4(f)(4) and section 203(c). ``Targeting'' refers
to a system in which the minority language materials or assistance
required by the Act are provided to fewer than all persons or registered
voters. It is the view of the Attorney General that a targeting system
will normally fulfill the Act's minority language requirements if it is
designed and implemented in such a way that language minority group
members who need minority language materials and assistance receive
them.
[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No.
1752-93, 58 FR 35373, July 1, 1993]
Sec. 55.18 Provision of minority language materials and assistance.
(a) Materials provided by mail. If materials provided by mail (or by
some comparable form of distribution) generally to residents or
registered voters are not all provided in the applicable minority
language, the Attorney General will consider whether an effective
targeting system has been developed. For example, a separate mailing of
materials in the minority language to persons who are likely to need
them or to residents of neighborhoods in which such a need is likely to
exist, supplemented by a notice of the availability of minority language
materials in the general mailing (in English and in the applicable
minority language) and by other publicity regarding the availability of
such materials may be sufficient.
(b) Public notices. The Attorney General will consider whether
public notices and announcements of electoral activities are handled in
a manner that provides members of the applicable language minority group
an effective opportunity to be informed about electoral activities.
(c) Registration. The Attorney General will consider whether the
registration system is conducted in such a way that members of the
applicable language minority group have an effective
[[Page 104]]
opportunity to register. One method of accomplishing this is to provide,
in the applicable minority language, all notices, forms and other
materials provided to potential registrants and to have only bilingual
persons as registrars. Effective results may also be obtained, for
example, through the use of deputy registrars who are members of the
applicable language minority group and the use of decentralized places
of registration, with minority language materials available at places
where persons who need them are most likely to come to register.
(d) Polling place activities. The Attorney General will consider
whether polling place activities are conducted in such a way that
members of the applicable language minority group have an effective
opportunity to vote. One method of accomplishing this is to provide all
notices, instructions, ballots, and other pertinent materials and oral
assistance in the applicable minority language. If very few of the
registered voters scheduled to vote at a particular polling place need
minority language materials or assistance, the Attorney General will
consider whether an alternative system enabling those few to cast
effective ballots is available.
(e) Publicity. The Attorney General will consider whether a covered
jurisdiction has taken appropriate steps to publicize the availability
of materials and assistance in the minority language. Such steps may
include the display of appropriate notices, in the minority language, at
voter registration offices, polling places, etc., the making of
announcements over minority language radio or television stations, the
publication of notices in minority language newspapers, and direct
contact with language minority group organizations.
[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No.
733-77, 42 FR 35970, July 13, 1977]
Sec. 55.19 Written materials.
(a) Types of materials. It is the obligation of the jurisdiction to
decide what materials must be provided in a minority language. A
jurisdiction required to provide minority language materials is only
required to publish in the language of the applicable language minority
group materials distributed to or provided for the use of the electorate
generally. Such materials include, for example, ballots, sample ballots,
informational materials, and petitions.
(b) Accuracy, completeness. It is essential that material provided
in the language of a language minority group be clear, complete and
accurate. In examining whether a jurisdiction has achieved compliance
with this requirement, the Attorney General will consider whether the
jurisdiction has consulted with members of the applicable language
minority group with respect to the translation of materials.
(c) Ballots. The Attorney General will consider whether a
jurisdiction provides the English and minority language versions on the
same document. Lack of such bilingual preparation of ballots may give
rise to the possibility, or to the appearance, that the secrecy of the
ballot will be lost if a separate minority language ballot or voting
machine is used.
(d) Voting machines. Where voting machines that cannot mechanically
accommodate a ballot in English and in the applicable minority language
are used, the Attorney General will consider whether the jurisdiction
provides sample ballots for use in the polling booths. Where such sample
ballots are used the Attorney General will consider whether they contain
a complete and accurate translation of the English ballots, and whether
they contain or are accompanied by instructions in the minority language
explaining the operation of the voting machine. The Attorney General
will also consider whether the sample ballots are displayed so that they
are clearly visible and at the same level as the machine ballot on the
inside of the polling booth, whether the sample ballots are identical in
layout to the machine ballots, and whether their size and typeface are
the same as that appearing on the machine ballots. Where space
limitations preclude affixing the translated sample ballots to the
inside of polling booths, the Attorney General will consider whether
language minority group voters are allowed to take the sample ballots
into the voting booths.
[[Page 105]]
Sec. 55.20 Oral assistance and publicity.
(a) General. Announcements, publicity, and assistance should be
given in oral form to the extent needed to enable members of the
applicable language minority group to participate effectively in the
electoral process.
(b) Assistance. The Attorney General will consider whether a
jurisdiction has given sufficient attention to the needs of language
minority group members who cannot effectively read either English or the
applicable minority language and to the needs of members of language
minority groups whose languages are unwritten.
(c) Helpers. With respect to the conduct of elections, the
jurisdiction will need to determine the number of helpers (i.e., persons
to provide oral assistance in the minority language) that must be
provided. In evaluating the provision of assistance, the Attorney
General will consider such facts as the number of a precinct's
registered voters who are members of the applicable language minority
group, the number of such persons who are not proficient in English, and
the ability of a voter to be assisted by a person of his or her own
choice. The basic standard is one of effectiveness.
[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No.
1752-93, 58 FR 35373, July 1, 1993]
Sec. 55.21 Record keeping.
The Attorney General's implementation of the Act's provisions
concernng language minority groups would be facilitated if each covered
jurisdiction would maintain such records and data as will document its
actions under those provisions, including, for example, records on such
matters as alternatives considered prior to taking such actions, and the
reasons for choosing the actions finally taken.
Subpart E--Preclearance
Sec. 55.22 Requirements of section 5 of the Act.
For many jurisdictions, changes in voting laws and practices will be
necessary in order to comply with section 4(f)(4) or section 203(c). If
a jurisdiction is subject to the preclearance requirements of section 5
(see Sec. 55.8(b)), such changes must either be submitted to the
Attorney General or be made the subject of a declaratory judgment action
in the U.S. District Court for the District of Columbia. Procedures for
the administration of section 5 are set forth in part 51 of this
chapter.
Subpart F--Sanctions
Sec. 55.23 Enforcement by the Attorney General.
(a) The Attorney General is authorized to bring civil actions for
appropriate relief against violations of the Act's provisions, including
section 4 and section 203. See sections 12(d) and 204.
(b) Also, certain violations may be subject to criminal sanctions.
See sections 11(a)-(c) and 205.
Subpart G--Comment on This Part
Sec. 55.24 Procedure.
These guidelines may be modified from time to time on the basis of
experience under the Act and comments received from interested parties.
The Attorney General therefore invites public comments and suggestions
on these guidelines. Any party who wishes to make such suggestions or
comments may do so by sending them to: Assistant Attorney General, Civil
Rights Division, Department of Justice, Washington, DC 20530.
Appendix to Part 55--Jurisdictions Covered Under Sections
4(f)(4) and 203(c) of the Voting Rights Act of 1965, as
Amended
[Applicable language minority group(s)]
------------------------------------------------------------------------
Coverage under sec. Coverage under sec.
Jurisdiction 4(f)(4) \1\ 203(c) \2\
------------------------------------------------------------------------
Alaska: Alaskan Natives ....................
(statewide).
Aleutians East Borough.. .................... Alaskan Natives
(Eskimo).
Aleutians West Census .................... Alaskan Natives
Area. (Aleut).
Bethel Census Area...... .................... American Indian
(Athapascan,
Tanaina), Alaskan
Natives (Eskimo).
[[Page 106]]
Bristol Bay Borough..... .................... Alaskan Natives
(Eskimo).
Dillingham Census Area.. .................... Alaskan Natives
(Eskimo).
Kenai Peninsula Borough. .................... Alaskan Natives
(Eskimo).
Kodiak Island Borough... .................... Alaskan Natives
(Aleut, Eskimo).
Lake and Peninsula .................... American Indian
Borough. (Athapascan),
Alaskan Natives
(Aleut, Eskimo).
Nome Census Area........ .................... Alaskan Natives
(Eskimo).
North Slope Borough..... .................... Alaskan Natives
(Eskimo).
Northwest Arctic Borough .................... Alaskan Natives
(Eskimo).
Skagway-Yakutat-Angoon .................... American Indian
Census Area. (Tlinglit).
Southeast Fairbanks .................... American Indian
Census Area. (Athapascan).
Valdez-Cordova Census .................... American Indian
Area. (Athapascan).
Wade Hampton Census Area .................... Alaskan Natives
(Eskimo).
Yukon-Koyukuk Census .................... American Indian
Area. (Athapascan,
Kuchin), Alaskan
Natives (Eskimo).
Arizona: Spanish heritage ....................
(statewide).
Apache County........... American Indian..... American Indian
(Apache, Navajo,
Zuni).
Coconino County......... American Indian..... American Indian
(Havasupai, Hopi,
Navajo).
Gila County............. .................... American Indian
(Apache).
Graham County........... .................... American Indian
(Apache).
Greenlee County......... .................... Spanish heritage.
Maricopa County......... .................... American Indian
(Pima, Yavapai),
Spanish heritage.
Navajo County........... American Indian..... American Indian
(Apache, Hopi,
Navajo).
Pima County............. .................... American Indian
(Pima), Spanish
heritage.
Pinal County............ American Indian..... American Indian
(Apache, Pima).
Santa Cruz County....... .................... Spanish heritage.
Yuma County............. .................... American Indian
(Delta River Yuma,
Yuma), Spanish
heritage.
California: ....................
Alameda County.......... .................... Asian American
(Chinese), Spanish
heritage.
Colusa County........... .................... American Indian
(Wintun).
Fresno County........... .................... Spanish heritage.
Imperial County......... .................... Spanish heritage.
Inyo County............. .................... American Indian
(Spanish).
Kern County............. .................... Spanish heritage.
Kings County............ Spanish heritage.... Spanish heritage.
Lake County............. .................... American Indian
(Spanish).
Los Angeles County...... .................... Asian American
(Chinese, Filipino,
Japanese,
Vietnamese),
Spanish heritage.
Merced County........... Spanish heritage.... ....................
Monterey County......... .................... Spanish heritage.
Orange County........... .................... Asian American
(Vietnamese),
Spanish heritage.
Riverside County........ .................... Spanish heritage.
San Benito County....... .................... Spanish heritage
San Bernardino County... .................... Spanish heritage.
San Diego County........ .................... Spanish heritage.
San Francisco County.... .................... Asian American
(Chinese).
Santa Clara County...... .................... Spanish heritage.
Tulare County........... .................... Spanish heritage.
Ventura County.......... .................... Spanish heritage.
Yuba County............. Spanish heritage.... ....................
Colorado:
Alamosa County.......... .................... Spanish heritage.
Archuleta County........ .................... Spanish heritage.
Bent County............. .................... Spanish heritage.
Conejos County.......... .................... Spanish heritage.
Costilla County......... .................... Spanish heritage.
La Plata County......... .................... American Indian
(Ute).
Las Animas County....... .................... Spanish heritage.
Montezuma County........ .................... American Indian
(Ute).
Otero County............ .................... Spanish heritage.
Rio Grande County....... .................... Spanish heritage.
Saguache County......... .................... Spanish heritage.
Connecticut:
Fairfield County: .................... Spanish heritage.
Bridgeport Town.
Hartford County:
Hartford Town......... .................... Spanish heritage.
[[Page 107]]
New Britain Town...... .................... Spanish heritage.
Windham County: Windham .................... Spanish heritage.
Town.
Florida:
Broward County.......... .................... American Indian
(Mikasuki,
Muskogee), Spanish
heritage.
Collier County.......... Spanish heritage.... American Indian
(Mikasuki).
Dade County............. .................... American Indian
(Mikasuki), Spanish
heritage.
Glades County........... .................... American Indian
(Muskogee).
Hardee County........... Spanish heritage.... Spanish heritage.
Hendry County........... Spanish heritage.... American Indian
(Mikasuki,
Muskogee).
Hillsborough County..... Spanish heritage.... Spanish heritage.
Orange County........... .................... Spanish heritage.
Monroe County........... Spanish heritage.... ....................
Hawaii:
Honolulu County......... .................... Asian American
(Filipino,
Japanese).
Kauai County............ .................... Asian American
(Filipino).
Maui County............. .................... Asian American
(Filipino).
Idaho:
Bannock County.......... .................... American Indian
(Shoshoni).
Bingham County.......... .................... American Indian
(Shoshoni).
Owyhee County........... .................... American Indian
(Shoshoni).
Power County............ .................... American Indian
(Shoshoni).
Illinois: Cook County....... .................... Spanish heritage.
Iowa: Tama County........... .................... American Indian
(Fox).
Louisiana: Avoyelles Parish. .................... American Indian
(French).
Massachusetts:
Essex County: Lawrence .................... Spanish heritage.
City.
Hampden County:
Holyoke City.......... .................... Spanish heritage.
Springfield City...... .................... Spanish heritage.
Suffolk County:
Boston City........... .................... Spanish heritage.
Chelsea City.......... .................... Spanish heritage.
Michigan:
Allegan County: Clyde Spanish heritage.... Spanish heritage.
Township.
Oceana County: Colfax .................... Spanish heritage.
Township.
Saginaw County:
Buena Vista Township.. Spanish heritage.... ....................
Zilwaukee Township.... .................... Spanish heritage.
Mississippi:
Jones County............ .................... American Indian
(Choctaw).
Kemper County........... .................... American Indian
(Choctaw).
Leake County............ .................... American Indian
(Choctaw).
Neshoba County.......... .................... American Indian
(Choctaw).
Newton County........... .................... American Indian
(Choctaw).
Winston County.......... .................... American Indian
(Choctaw).
Nevada:
Elko County............. .................... American Indian
(Shoshoni).
Humboldt County......... .................... American Indian
(Paiute).
New Jersey:
Essex County............ .................... Spanish heritage.
Hudson County........... .................... Spanish heritage.
Middlesex County........ .................... Spanish heritage.
Passaic County.......... .................... Spanish heritage.
Union County............ .................... Spanish heritage.
New Mexico:
Bernalillo County....... .................... American Indian
(Keres, Navajo,
Tiwa), Spanish
heritage.
Chaves County........... .................... Spanish heritage.
Cibola County........... .................... American Indian
(Keres, Navajo,
Zuni), Spanish
heritage.
Colfax County........... .................... Spanish heritage.
Dona Anna County........ .................... Spanish heritage.
Eddy County............. .................... Spanish heritage.
Grant County............ .................... Spanish heritage.
Guadalupe County........ .................... Spanish heritage.
Harding County.......... .................... Spanish heritage.
Hidalgo County.......... .................... Spanish heritage.
Lea County.............. .................... Spanish heritage.
Luna County............. .................... Spanish heritage.
McKinley County......... .................... American Indian
(Navajo, Zuni).
[[Page 108]]
Mora County............. .................... Spanish heritage.
Quay County............. .................... Spanish heritage.
Rio Arriba County....... .................... American Indian
(Jicarilla,
Navajo), Spanish
heritage.
Roosevelt County........ .................... Spanish heritage.
San Juan County......... .................... American Indian
(Navajo).
San Miguel County....... .................... Spanish heritage.
Sandoval County......... .................... American Indian
(Jicarilla, Keres,
Navajo, Towa).
Santa Fe County......... .................... Spanish heritage.
Socorro County.......... .................... American Indian
(Navajo), Spanish
heritage.
Taos County............. .................... American Indian
(Tiwa), Spanish
heritage.
Torrance County......... .................... Spanish heritage.
Union County............ .................... Spanish heritage.
Valencia County......... .................... American Indian
(Keres, Tiwa),
Spanish heritage.
New York:
Bronx County............ Spanish heritage.... Spanish heritage.
Franklin County......... .................... American Indian
(Mohawk).
Kings County............ Spanish heritage.... Asian American
(Chinese), Spanish
heritage.
New York County......... .................... Asian American
(Chinese), Spanish
heritage.
Queens County........... .................... Asian American
(Chinese), Spanish
heritage.
Suffolk County.......... .................... Spanish heritage.
Westchester County...... .................... Spanish heritage.
North Carolina: Jackson American Indian..... ....................
County.
North Dakota:
Benson County........... .................... American Indian
(Dakota).
Eddy County............. .................... American Indian
(Dakota).
Ramsey County........... .................... American Indian
(Dakota).
Oklahoma: Adair County...... .................... American Indian
(Cherokee).
Oregon: Malheur County...... .................... American Indian
(Paiute).
Pennsylvania: Philadelphia .................... Spanish heritage.
County.
Rhode Island:
Providence County: .................... Spanish heritage.
Central Falls City.
South Dakota:
Dewey County............ .................... American Indian
(Dakota).
Gregory County.......... .................... American Indian
(Dakota).
Lyman County............ .................... American Indian
(Dakota).
Mellette County......... .................... American Indian
(Dakota).
Shannon County.......... American Indian..... ....................
Todd County............. American Indian.... American Indian
(Dakota).
Tripp County............ .................... American Indian
(Dakota).
Ziebach County.......... .................... American Indian
(Dakota).
Texas....................... Spanish heritage ....................
(statewide).
Andrews County.......... .................... Spanish heritage.
Atascosa County......... .................... Spanish heritage.
Bailey County........... .................... Spanish heritage.
Bee County.............. .................... Spanish heritage.
Bexar County............ .................... Spanish heritage.
Brewster County......... .................... Spanish heritage.
Brooks County........... .................... Spanish heritage.
Caldwell County......... .................... Spanish heritage.
Calhoun County.......... .................... Spanish heritage.
Cameron County.......... .................... Spanish heritage.
Castro County........... .................... Spanish heritage.
Cochran County.......... .................... Spanish heritage.
Comal County............ .................... Spanish heritage.
Concho County........... .................... Spanish heritage.
Crockett County......... .................... Spanish heritage.
Crosby County........... .................... Spanish heritage.
Culberson County........ .................... Spanish heritage.
Dallas County........... .................... Spanish heritage.
Dawson County........... .................... Spanish heritage.
Deaf Smith County....... .................... Spanish heritage.
Dewitt County........... .................... Spanish heritage.
Dickens County.......... .................... Spanish heritage.
Dimmit County........... .................... Spanish heritage.
[[Page 109]]
Duval County............ .................... Spanish heritage.
Ector County............ .................... Spanish heritage.
Edwards County.......... .................... Spanish heritage.
El Paso County.......... .................... American Indian
(Spanish), Spanish
heritage.
Floyd County............ .................... Spanish heritage.
Frio County............. .................... Spanish heritage.
Gaines County........... .................... Spanish heritage.
Garza County............ .................... Spanish heritage.
Glasscock County........ .................... Spanish heritage.
Goliad County........... .................... Spanish heritage.
Gonzales County......... .................... Spanish heritage.
Guadalupe County........ .................... Spanish heritage.
Hale County............. .................... Spanish heritage.
Harris County........... .................... Spanish heritage.
Hays County............. .................... Spanish heritage.
Hidalgo County.......... .................... Spanish heritage.
Hockley County.......... .................... Spanish heritage.
Howard County........... .................... Spanish heritage.
Hudspeth County......... .................... Spanish heritage.
Irion County............ .................... Spanish heritage.
Jeff Davis County....... .................... Spanish heritage.
Jim Hogg County......... .................... Spanish heritage.
Jim Wells County........ .................... Spanish heritage.
Karnes County........... .................... Spanish heritage.
Kenedy County........... .................... Spanish heritage.
Kent County............. .................... Spanish heritage.
Kinney County........... .................... Spanish heritage.
Kleberg County.......... .................... Spanish heritage.
La Salle County......... .................... Spanish heritage.
Lamb County............. .................... Spanish heritage.
Live Oak County......... .................... Spanish heritage.
Lubbock County.......... .................... Spanish heritage.
Lynn County............. .................... Spanish heritage.
Martin County........... .................... Spanish heritage.
Maverick County......... .................... Spanish heritage.
McCulloch County........ .................... Spanish heritage.
McMullen County......... .................... Spanish heritage.
Medina County........... .................... Spanish heritage.
Menard County........... .................... Spanish heritage.
Midland County.......... .................... Spanish heritage.
Mitchell County......... .................... Spanish heritage.
Moore County............ .................... Spanish heritage.
Nolan County............ .................... Spanish heritage.
Nueces County........... .................... Spanish heritage.
Parmer County........... .................... Spanish heritage.
Pecos County............ .................... Spanish heritage.
Polk County............. .................... American Indian
(Alabama).
Presidio County......... .................... Spanish heritage.
Reagan County........... .................... Spanish heritage.
Reeves County........... .................... Spanish heritage.
Refugio County.......... .................... Spanish heritage.
Runnels County.......... .................... Spanish heritage.
San Patricio County..... .................... Spanish heritage.
Schleicher County....... .................... Spanish heritage.
Scurry County........... .................... Spanish heritage.
Starr County............ .................... Spanish heritage.
Sutton County........... .................... Spanish heritage.
Swisher County.......... .................... Spanish heritage.
Tarrant County.......... .................... Spanish heritage.
Terrell County.......... .................... Spanish heritage.
Terry County............ .................... Spanish heritage.
Tom Green County........ .................... Spanish heritage.
Travis County........... .................... Spanish heritage.
Upton County............ .................... Spanish heritage.
Uvalde County........... .................... Spanish heritage.
Val Verde County........ .................... Spanish heritage.
Victoria County......... .................... Spanish heritage.
Ward County............. .................... Spanish heritage.
Webb County............. .................... Spanish heritage.
Wharton County.......... .................... Spanish heritage.
Willacy County.......... .................... Spanish heritage.
[[Page 110]]
Wilson County........... .................... Spanish heritage.
Winkler County.......... .................... Spanish heritage.
Yoakum County........... .................... Spanish heritage.
Zapata County........... .................... Spanish heritage.
Zavala County........... .................... Spanish heritage.
Utah: San Juan County....... .................... American Indian
(Navajo, Ute).
Wisconsin:
Clark County: Curtiss .................... Spanish heritage.
Village.
------------------------------------------------------------------------
\1\ Coverage determinations were published at 40 FR 43746 (Sept. 23,
1975), 40 FR 49422 (Oct. 22, 1975), 41 FR 784 (Jan. 5, 1976)
(corrected at 41 FR 1503 (Jan. 8, 1976)), and 41 FR 34329 (Aug. 13,
1976). Covered counties in Colorado, New Mexico, and Oklahoma have
bailed out pursuant to section 4(a). See Sec. 55.7(a) of this part.
\2\ Coverage determinations were published at 57 FR 43213 (Sept. 18,
1992).
[Order No. 1752-93, 58 FR 35373, July 1, 1993; 58 FR 36516, July 7,
1993]
PART 56--INTERNATIONAL ENERGY PROGRAM--Table of Contents
Sec.
56.1 Purpose and scope.
56.2 Maintenance of records with respect to meetings held to develop
voluntary agreements or plans of action pursuant to the
Agreement on an International Energy Program.
56.3 Maintenance of records with respect to meetings held to develop
and carry out voluntary agreements or plans of action pursuant
to the Agreement on an International Energy Program.
Authority: Energy Policy and Conservation Act, Pub. L. 94-163, 89
Stat. 871 (42 U.S.C. 6201).
Source: 49 FR 33998, Aug. 28, 1984, unless otherwise noted.
Sec. 56.1 Purpose and scope.
These regulations are promulgated pursuant to section 252(e)(2) of
the Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6272(e)(2).
They are being issued by the Assistant Attorney General in charge of the
Antitrust Division to whom the Attorney General has delegated his
authority under this section of EPCA. The requirements of this part do
not apply to activities other than those for which section 252 of EPCA
makes available a defense to actions brought under the Federal antitrust
laws.
Sec. 56.2 Maintenance of records with respect to meetings held to develop voluntary agreements or plans of action pursuant to the Agreement on an International
Energy Program.
(a) The Administrator of the Department of Energy shall keep a
verbatim transcript of any meeting held pursuant to this subpart.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this
section, potential participants shall keep a full and complete record of
any communications (other than in a meeting held pursuant to this
subpart) between or among themselves for the purpose of developing a
voluntary agreement under this part. When two or more potential
participants are involved in such a communication, they may agree among
themselves who shall keep such record. Such record shall include the
names of the parties to the communication and the organizations, if any,
which they represent; the date of the communication; the means of
communication; and a description of the communication in sufficient
detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited
to, telex, telegraphic, telecopied, microfilmed and computer printout
material), and where such communication demonstrates on its face that
the originator or some other source furnished a copy of the
communication to the Office of International Affairs, Department of
Energy with the notation ``Voluntary Agreement'' marked on the
[[Page 111]]
first page of the document, no participant need record such a
communication or send a further copy to the Department of Energy. The
Department of Energy may, upon written notice to potential participants,
from time to time, or with reference to particular types of documents,
require deposit with other offices or officials of the Department of
Energy. Where such communication demonstrates that it was sent to the
Office of International Affairs, Department of Energy with the notation
``Voluntary Agreement'' marked on the first page of the document, or
such other offices or officials in the Department of Energy has
designated pursuant to this section it shall satisfy paragraph (c) of
this section, for the purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural,
administrative or ministerial (for example, if it involves the location
of a record, the place of a meeting, travel arrangements, or similar
matters,) only a brief notation of the date, time, persons involved and
description of the communication need be recorded.
(4) To the extent that any communication involves matters which
recapitulate matters already contained in a full and complete record,
the substance of such matters shall be identified, but need not be
recorded in detail, provided that reference is made to the record and
the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all
records and transcripts prepared pursuant to paragraphs (a) and (b) of
this section, shall be deposited within fifteen (15) days after the
close of the month of their preparation together with any agreement
resulting therefrom, with the Department of Energy, and shall be
available to the Department of Justice, the Federal Trade Commission,
and the Department of State. Such records and transcripts shall be
available for public inspection and copying at the Department of Energy.
Any person depositing material with the Department of Energy pursuant to
this section shall indicate with particularity what portions, if any,
the person believes are subject to disclosure to the public pursuant to
5 U.S.C. 552 and the reasons for such belief.
(Approved by the Office of Management and Budget under control number
1105-0029)
Sec. 56.3 Maintenance of records with respect to meetings held to develop and carry out voluntary agreements or plans of action pursuant to the Agreement on an
International Energy Program.
(a) The Administrator of the Department of Energy or his delegate
shall keep a verbatim transcript of any meeting held pursuant to this
subpart except where:
(1) Due to considerations of time or other overriding circumstances,
the keeping of a verbatim transcript is not practicable, or
(2) Principal participants in the meeting are representatives of
foreign governments.
If any such record other than a verbatim transcript, is kept by a
designee who is not a full-time Federal employee, that record shall be
submitted to the full-time Federal employee in attendance at the meeting
who shall review the record, promptly make any changes he deems
necessary to make the record full and complete, and shall notify the
designee of such changes.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this
section, participants shall keep a full and complete record of any
communication (other than in a meeting held pursuant to this subpart)
between or among themselves or with any other member of a petroleum
industry group created by the International Energy Agency (IEA), or
subgroup thereof for the purpose of carrying out a voluntary agreement
or developing or carrying out a plan of action under this subpart,
except that where there are several communications within the same day
involving the same participants, they may keep a cumulative record for
the day. The parties to a communication may agree among themselves who
shall keep such record. Such record shall include the names of the
parties to the communication and the organizations, if any, which they
represent; the date of communication; the means of communication, and a
description of the
[[Page 112]]
communication in sufficient detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited
to, telex, telegraphic, telecopied, microfilmed and computer printout
material), and where such communication demonstrates on its face that
the originator or some other source furnished a copy of the
communication to the Office of International Affairs, Department of
Energy with the notation ``Voluntary Agreement'' on the first page of
the document, no participants need record such a communication or send a
further copy to the Department of Energy. The Department of Energy may,
upon written notice to participants, from time to time, or with
reference to particular types of documents, require deposit with other
offices or officials of the Department of Energy. Where such
communication demonstrates that it was sent to the Office of
International Affairs, Department of Energy with the notation
``Voluntary Agreement'' on the first page of the document, or such other
offices or officials as the Department of Energy has designated pursuant
to this section, it shall satisfy paragraph (c) of this section, for the
purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural,
administrative or ministerial (for example, if it involves the location
of a record, the place of a meeting, travel arrangements, or similar
matters) only a brief notation of the date, time, persons involved and
description of the communication need be recorded; except that during an
IEA emergency allocation exercise or an allocation systems test such a
non-substantive communication between members of the Industry Supply
Advisory Group which occur within IEA headquarters need not be recorded.
(4) To the extent that any communication involves matters which
recapitulate matters already contained in a full and complete record,
the substance of such matters shall be identified, but need not be
recorded in detail, provided that reference is made to the record and
the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all
records and transcripts prepared pursuant to paragraphs (a) and (b) of
this section, shall be deposited within seven (7) days after the close
of the week (ending Saturday) of their preparation during an
international energy supply emergency or a test of the IEA emergency
allocation system, and within fifteen (15) days after the close of the
month of their preparation during periods of non-emergency, together
with any agreement resulting therefrom, with the Department of Energy
and shall be available to the Department of Justice, the Federal Trade
Commission, and the Department of State. Such records and transcripts
shall be available for public inspection and copying to the extent set
forth in 5 U.S.C. 552. Any person depositing materials pursuant to this
section shall indicate with particularity what portions, if any, the
person believes are not subject to disclosure to the public pursuant to
5 U.S.C. 552 and the reasons for such belief.
(d) During international oil allocation under chapter III and IV of
the IEP or during an IEA allocation systems test, the Department of
Justice may issue such additional guidelines amplifying the requirements
of these regulations as the Department of Justice determines to be
necessary and appropriate.
(Approved by the Office of Management and Budget under control number
1105-0029)
PART 57--INVESTIGATION OF DISCRIMINATION IN THE SUPPLY OF PETROLEUM TO THE ARMED FORCES--Table of Contents
Sec.
57.1 Responsibility for the conduct of litigation.
57.2 Responsibility for the conduct of investigations.
57.3 Scope and purpose of investigation; other sources of information.
57.4 Expiration date.
Authority: Sec. 816(b)(2), Pub. L. 94-106; 89 Stat. 531.
Source: Order No. 644-76, 41 FR 12302, Mar. 25, 1976, unless
otherwise noted.
[[Page 113]]
Sec. 57.1 Responsibility for the conduct of litigation.
(a) In accord with 28 CFR 0.45(h), civil litigation under sec. 816
of the Department of Defense Appropriation Authorization Act, 1976, 10
U.S.C.A. 2304 note (hereafter the ``Act''), shall be conducted under the
supervision of the Assistant Attorney General in charge of the Civil
Division.
(b) In accord with 28 CFR 0.55(a), prosecution, under section 816(f)
of the Act, of criminal violations shall be conducted under the
supervision of the Assistant Attorney General in charge of the Criminal
Division.
Sec. 57.2 Responsibility for the conduct of investigations.
(a) When an instance of alleged ``discrimination'' in violation of
section 816(b)(1) of the Act is referred to the Department of Justice by
the Department of Defense, the matter shall be assigned initially to the
Civil Division.
(b)(1) If the information provided by the Department of Defense
indicates that a non-criminal violation may have occurred and further
investigation is warranted, such investigation shall be conducted under
the supervision of the Assistant Attorney General in charge of the Civil
Division.
(2) If the information provided by the Department of Defense
indicates that a criminal violation under section 816(f) of the Act may
have occurred, the Civil Division shall refer the matter to the Criminal
Division. If it is determined that further investigation of a possible
criminal violation is warranted, such investigation shall be conducted
under the supervision of the Assistant Attorney General in charge of the
Criminal Division.
(3) If a referral from the Department of Defense is such that both
civil and criminal proceedings may be warranted, responsibility for any
further investigation may be determined by the Deputy Attorney General.
Sec. 57.3 Scope and purpose of investigation; other sources of information.
(a) The authority granted the Attorney General by section 816(d)(1)
of the Act (e.g., authority to inspect books and records) shall not be
utilized until an appropriate official has defined, in an appropriate
internal memorandum, the scope and purpose of the particular
investigation.
(b) There shall be no use, with respect to particular information,
of the authority granted by section 816(d)(1) of the Act until an
appropriate official has determined that the information in question is
not available to the Department of Justice from any other Federal agency
or other responsible agency (e.g., a State agency).
(c) For purposes of this section, ``appropriate official'' means the
Assistant Attorney General in charge of the division conducting the
investigation, or his delegate.
Sec. 57.4 Expiration date.
This part shall remain in effect until expiration, pursuant to
section 816(h) of the Act, of the Attorney General's authority under
section 816 of the Act.
PART 58--REGULATIONS RELATING TO THE BANKRUPTCY REFORM ACTS OF 1978 AND 1994--Table of Contents
Sec.
58.1 Authorization to establish panels of private trustees.
58.2 Authorization to appoint standing trustees.
58.3 Qualification for membership on panels of private trustees.
58.4 Qualifications for appointment as standing trustee and fiduciary
standards.
58.5 Non-discrimination in appointment.
58.6 Procedures for suspension and removal of panel trustees and
standing trustees.
Appendix A to Part 58--Guidelines for Reviewing Applications for
Compensation and Reimbursement of Expenses Filed Under 11
U.S.C. 330
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 586.
Source: Order No. 921-80, 45 FR 82631, Dec. 16, 1980, unless
otherwise noted.
Sec. 58.1 Authorization to establish panels of private trustees.
(a) Each U.S. Trustee is authorized to establish a panel of private
trustees (the ``panel'') pursuant to 28 U.S.C. 586(a)(1).
(b) Each U.S. Trustee is authorized, with the approval of the
Director, Executive Office for United States Trustees (the ``Director'')
to increase or decrease the total membership of the
[[Page 114]]
panel. In addition, each U.S. Trustee, with the approval of the
Director, is authorized to institute a system of rotation of membership
or the like to achieve diversity of experience, geographical
distribution or other characteristics among the persons on the panel.
[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended at 62 FR
30183, June 2, 1997]
Sec. 58.2 Authorization to appoint standing trustees.
Each U.S. Trustee is authorized, subject to the approval of the
Deputy Attorney General, or his delegate, to appoint and remove one or
more standing trustees to serve in cases under chapters 12 and 13 of
title 11, U.S. Code.
[Order No. 51 FR 44288, Dec. 9, 1986]
Sec. 58.3 Qualification for membership on panels of private trustees.
(a) To be eligible for appointment to the panel and to retain
eligibility therefor, an individual must possess the qualifications
described in paragraph (b) of this section in addition to any other
statutory qualifications. A corporation or partnership may qualify as an
entity for appointment to the private panel. However, each person who,
in the opinion of the U.S. Trustee or of the Director, performs duties
as trustee on behalf of a corporation or partnership must individually
meet the standards described in paragraph (b) of this section, except
that each U.S. Trustee, with the approval of the Director, shall have
the discretion to waive the applicability of paragraph (b)(6) of this
section as to any individual in a non-supervisory position. No
professional corporation, partnership, or similar entity organized for
the practice of law or accounting shall be eligible to serve on the
panel.
(b) The qualifications for membership on the panel are as follows:
(1) Possess integrity and good moral character.
(2) Be physically and mentally able to satisfactorily perform a
trustee's duties.
(3) Be courteous and accessible to all parties with reasonable
inquiries or comments about a case for which such individual is serving
as private trustee.
(4) Be free of prejudices against any individual, entity, or group
of individuals or entities which would interfere with unbiased
performance of a trustee's duties.
(5) Not be related by affinity or consanguinity within the degree of
first cousin to any employee of the Executive Office for United States
Trustees of the Department of Justice, or to any employee of the office
of the U.S. Trustee for the district in which he or she is applying.
(6)(i) Be a member in good standing of the bar of the highest court
of a state or of the District of Columbia; or
(ii) Be a certified public accountant; or
(iii) Hold a bachelor's degree from a full four-year course of study
(or the equivalent) of an accredited college or university (accredited
as described in part II, section III of Handbook X118 promulgated by the
U.S. Office of Personnel Management) with a major in a business-related
field of study or at least 20 semester-hours of business-related
courses; or hold a master's or doctoral degree in a business-related
field of study from a college or university of the type described above;
or
(iv) Be a senior law student or candidate for a master's degree in
business administration recommended by the relevant law school or
business school dean and working under the direct supervision of:
(A) A member of a law school faculty; or
(B) A member of the panel of private trustees; or
(C) A member of a program established by the local bar association
to provide clinical experience to students; or
(v) Have equivalent experience as deemed acceptable by the U.S.
Trustee.
(7) Be willing to provide reports as required by the U.S. Trustee.
(8) Have submitted an application under oath, in the form prescribed
by the Director, to the U.S. Trustee for the District in which
appointment is sought: Provided, That this provision may be waived by
the U.S. Trustee on approval of the Director.
[[Page 115]]
Sec. 58.4 Qualifications for appointment as standing trustee and fiduciary standards.
(a) As used in this section--
(1) The term standing trustee means an individual appointed pursuant
to 28 U.S.C. 586(b).
(2) The term relative means an individual who is related to the
standing trustee as father, mother, son, daughter, brother, sister,
uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law,
mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-
law, stepfather, stepmother, stepson, stepdaughter, stepbrother,
stepsister, half brother, half sister, or an individual whose close
association to the standing trustee is the equivalent of a spousal
relationship.
(3) The term financial or ownership interest excludes ownership of
stock in a publicly-traded company if the ownership interest in not
controlling.
(4) The word region means the geographical area defined in 28 U.S.C.
581.
(b) To be eligible for appointment as a standing trustee, an
individual must have the qualifications for membership on a private
panel of trustees set forth in Secs. 58.3 (b)(1)-(4), (6)-(8). An
individual need not be an attorney to be eligible for appointment as a
standing trustee. A corporation or partnership may be appointed as
standing trustee only with the approval of the Director.
(c) The United States Trustee shall not appoint as a standing
trustee any individuals who, at the time of appointment, is:
(1) A relative of another standing trustee in the region in which
the standing trustee is to be appointed;
(2) A relative of a standing trustee (in the region in which the
standing trustee is to be appointed), who, within the preceding one-year
period, died, resigned, or was removed as a standing trustee from a
case;
(3) A relative of a bankruptcy judge or a clerk of the bankruptcy
court in the region in which the standing trustee is to be appointed;
(4) An employee of the Department of Justice within the preceding
one-year period; or
(5) A relative of a United States Trustee or an Assistant United
States Trustee, a relative of an employee in any of the offices of the
United States Trustee in the region in which the standing trustee is to
be appointed, or a relative of an employee in the Executive Office for
United States Trustees.
(d) A standing trustee must, at a minimum, adhere to the following
fiduciary standards:
(1) Employment of relatives. (i) A standing trustee shall not employ
a relative of the standing trustee.
(ii) A standing trustee shall also not employ a relative of the
United States Trustee or of an Assistant United States Trustee in the
region in which the trustee has been appointed or a relative of a
bankruptcy court judge or of the clerk of the bankruptcy court in the
judicial district in which the trustee has been appointed.
(iii)(A) Paragraphs (d)(1) (i) and (ii) of this section shall not
apply to a spouse of a standing trustee who was employed by the standing
trustee as of August 1, 1995.
(B) For all other relatives employed by a standing trustee as of
August 1, 1995, paragraphs (d)(1) (i) and (ii) of this section shall be
fully implemented by October 1, 1998, unless specifically provided
below:
(1) The United States Trustee shall have the discretion to grant a
written waiver for a period of time not to exceed 2 years upon a written
showing by the standing trustee of compelling circumstances that make
the continued employment of a relative necessary for a standing
trustee's performance of his or her duties and written evidence that the
salary to be paid is at or below market rate.
(2) Additional waivers, not to exceed a period of two years each,
may be granted under paragraph (d)(1)(iii)(B)(1) of this section
provided the standing trustee makes a similar written showing within 90
days prior to the expiration of a present waiver and the United States
Trustee determines that the circumstances for waiver are met.
(3) No waivers will be granted for a relative of the United States
Trustee or of an Assistant United States Trustee.
(2) Related party transactions. (i) A standing trustee shall not
direct debtors or creditors of a bankruptcy case administered by the
standing trustee
[[Page 116]]
to an individual or entity that provides products or services, such as
insurance or financial counseling, if a standing trustee is a relative
of that individual or if the standing trustee or relative has a
financial or ownership interest in the entity.
(ii) A standing trustee shall not, on behalf of the trust, contract
or allocate expenses with himself or herself, with a relative, or with
any entity in which the standing trustee or a relative of the standing
trustee has a financial or ownership interest if the costs are to be
paid as an expense out of the fiduciary expense fund.
(iii)(A) The United States Trustee may grant a waiver from
compliance with paragraph (d)(2)(ii) of this section for up to three
years following the appointment of a standing trustee if the newly-
appointed standing trustee can demonstrate in writing that a waiver is
necessary and the cost is at or below market.
(B) The United States Trustee may grant a provisional waiver from
compliance with the allocation prohibition contained in paragraph
(d)(2)(ii) of this section if one of the following conditions is
present:
(1) A standing trustee has insufficient receipts to earn maximum
annual compensation as determined by the Director during any one of the
last three fiscal years and provides the United States Trustee with an
appraisal or other written evidence that the allocation is necessary and
the allocated cost is at or below market rate for that good or service,
or
(2) A chapter 13 standing trustee also serves as a trustee in
chapter 12 cases and provides the United States Trustee with an
appraisal or other written evidence that the allocation is necessary and
the allocated cost is at or below market rate for that good or service.
(C) Except as otherwise provided in this paragraph, a standing
trustee may seek a reasonable extension of time from the United States
Trustee to comply with paragraph (d)(2)(ii) of this section. To obtain
an extension, a standing trustee must demonstrate by an appraisal or
other written evidence, satisfactory to the United States Trustee, that
the expense is necessary and at or below market rate. In no event shall
an extension be granted for the use and occupation of real estate beyond
October 1, 2005. For personal property and personal service contracts,
no extension shall be granted beyond October 1, 1998.
(3) Employment of other standing trustees. A standing trustee shall
not employ or contract with another standing trustee to provide personal
services for compensation payable from the fiduciary expense fund. This
section does not prohibit the standing trustee from reimbursing the
actual, necessary expenses incurred by another standing trustee who
provides necessary assistance to the standing trustee provided that the
reimbursement has been pre-approved by the United States Trustee.
(e) Paragraph (d) of this section is effective July 2, 1997. As to
those standing trustees who are appointed as of July 2, 1997, paragraph
(d) will be applicable on the first day of their next fiscal year (i.e.,
October 1, 1997, for chapter 13 trustees and January 1, 1998, for
chapter 12 trustees).
[62 FR 30183, June 2, 1997]
Sec. 58.5 Non-discrimination in appointment.
The U.S. Trustees shall not discriminate on the basis of race,
color, religion, sex, national origin or age in appointments to the
private panel of trustees or of standing trustees and in this regard
shall assure equal opportunity for all appointees and applicants for
appointment to the private panel of trustees or as standing trustee.
Each U.S. Trustee shall be guided by the policies and requirements of
Executive Order 11478 of August 8, 1969, relating to equal employment
opportunity in the Federal Government, section 717 of the Civil Rights
Act of 1964, as amended (42 U.S.C. 2000e-16), section 15 of the Age
Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a),
and the regulations of the Office of Personnel Management relating to
equal employment opportunity (5 CFR part 713).
[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended by Order No.
960-81, 46 FR 52360, Oct. 27, 1981]
[[Page 117]]
Sec. 58.6 Procedures for suspension and removal of panel trustees and standing trustees.
(a) A United States Trustee shall notify a panel trustee or a
standing trustee in writing of any decision to suspend or terminate the
assignment of cases to the trustee including, where applicable, any
decision not to renew the trustee's term appointment. The notice shall
state the reason(s) for the decision and should refer to, or be
accompanied by copies of, pertinent materials upon which the United
States Trustee has relied and any prior communications in which the
United States Trustee has advised the trustee of the potential action.
The notice shall be sent to the office of the trustee by overnight
courier, for delivery the next business day. The reasons may include,
but are in no way limited to:
(1) Failure to safeguard or to account for estate funds and assets;
(2) Failure to perform duties in a timely and consistently
satisfactory manner;
(3) Failure to comply with the provisions of the Code, the
Bankruptcy Rules, and local rules of court;
(4) Failure to cooperate and to comply with orders, instructions and
policies of the court, the bankruptcy clerk or the United States
Trustee;
(5) Substandard performance of general duties and case management in
comparison to other members of the chapter 7 panel or other standing
trustees;
(6) Failure to display proper temperament in dealing with judges,
clerks, attorneys, creditors, debtors, the United States Trustee and the
general public;
(7) Failure to adequately monitor the work of professionals or
others employed by the trustee to assist in the administration of cases;
(8) Failure to file timely, accurate reports, including interim
reports, final reports, and final accounts;
(9) Failure to meet the eligibility requirements of 11 U.S.C. 321 or
the qualifications set forth in 28 CFR 58.3 and 58.4 and in 11 U.S.C.
322;
(10) Failure to attend in person or appropriately conduct the 11
U.S.C. 341(a) meeting of creditors;
(11) Action by or pending before a court or state licensing agency
which calls the trustee's competence, financial responsibility or
trustworthiness into question;
(12) Routine inability to accept assigned cases due to conflicts of
interest or to the trustee's unwillingness or incapacity to serve;
(13) Change in the composition of the chapter 7 panel pursuant to a
system established by the United States Trustee under 28 CFR 58.1;
(14) A determination by the United States Trustee that the interests
of efficient case administration or a decline in the number of cases
warrant a reduction in the number of panel trustees or standing
trustees.
(b) The notice shall advise the trustee that the decision is final
and unreviewable unless the trustee requests in writing a review by the
Director, Executive Office for United States Trustees, no later than 20
calendar days from the date of issuance of the United States Trustee's
notice (``request for review''). In order to be timely, a request for
review must be received by the Office of the Director no later than 20
calendar days from the date of the United States Trustee's notice to the
trustee.
(c) A decision by a United States Trustee to suspend or terminate
the assignment of cases to a trustee shall take effect upon the
expiration of a trustee's time to seek review from the Director or, if
the trustee timely seeks such review, upon the issuance of a final
written decision by the Director.
(d) Notwithstanding paragraph (c) of this section, a United States
Trustee's decision to suspend or terminate the assignment of cases to a
trustee may include, or may later by supplemented by an interim
directive, by which the United States trustee may immediately
discontinue assigning cases to a trustee during the review period. A
United States Trustee may issue such an interim directive if the United
States Trustee specifically finds that:
(1) A continued assignment of cases to the trustee places the safety
of estate assets at risk ;
(2) The trustee appears to be ineligible to serve under applicable
law, rule, or regulation;
[[Page 118]]
(3) The trustee has engaged in conduct that appears to be dishonest,
deceitful, fraudulent, or criminal in nature; or
(4) The trustee appears to have engaged in other gross misconduct
that is unbefitting his or her position as trustee or violates the
trustee's duties.
(e) If the United States Trustee issues an interim directive, the
trustee may seek a stay of the interim directive from the Director if
the trustee has timely filed a request for review under paragraph (b) of
this section.
(f) The trustee's written request for review shall fully describe
why the trustee disagrees with the United States Trustee's decision, and
shall be accompanied by all documents and materials that the trustee
wants the Director to consider in reviewing the decision. The trustee
shall send a copy of the request for review, and the accompanying
documents and materials, to the United States Trustee by overnight
courier, for delivery the next business day. The trustee may request
that specific documents in the possession of the United States Trustee
be transmitted to the Director for inclusion in the record.
(g) The United States Trustee shall have 15 calendar days from the
date of the trustee's request for review to submit to the Director a
written response regarding the matters raised in the trustee's request
for review. The United States Trustee shall provide a copy of this
response to the trustee. Both copes shall be sent by overnight courier,
for delivery the next business day.
(h) The Director may seek additional information from any party in
the manner and to the extent the Director deems appropriate.
(i) Unless the trustee and the United States Trustee agree to a
longer period of time, the Director shall issue a written decision no
later than 30 calendar days from the receipt of the United States
Trustee's response to the trustee's request for review. That decision
shall determine whether the United States Trustee's decision is
supported by the record and the action is an appropriate exercise of the
United States Trustee's discretion, and shall adopt, modify or reject
the United States Trustee's decision to suspend or terminate the
assignment of future cases to the trustee. The Director's decision shall
constitute final agency action.
(j) In reaching a determination, the Director may specify a person
to act as a reviewing official. The reviewing official shall not be a
person who was involved in the United States Trustee's decision or a
Program employee who is located within the region of the United States
Trustee who made the decision. The reviewing official's duties shall be
specified by the Director on a case by case basis, and may include
reviewing the record, obtaining additional information from the
participants, providing the Director with written recommendations, or
such other duties as the Director shall prescribe in a particular case.
(k) This rule does not authorize a trustee to seek review of any
decision to increase the size of the chapter 7 panel or to appoint
additional standing trustees in the district or region.
(l) A trustee who files a request for review shall bear his or her
own costs and expenses, including counsel fees.
[62 FR 51750, Oct. 2, 1997]
Appendix A to Part 58--Guidelines for Reviewing Applications for
Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330
(a) General Information. (1) The Bankruptcy Reform Act of 1994
amended the responsibilities of the United States Trustees under 28
U.S.C. 586(a)(3)(A) to provide that, whenever they deem appropriate,
United States Trustees will review applications for compensation and
reimbursement of expenses under section 330 of the Bankruptcy Code, 11
U.S.C. 101, et seq. (``Code''), in accordance with procedural guidelines
(``Guidelines'') adopted by the Executive Office for United States
Trustees (``Executive Office''). The following Guidelines have been
adopted by the Executive Office and are to be uniformly applied by the
United States Trustees except when circumstances warrant different
treatment.
(2) The United States Trustees shall use these Guidelines in all
cases commenced on or after October 22, 1994.
(3) The Guidelines are not intended to supersede local rules of
court, but should be read as complementing the procedures set forth in
local rules.
(4) Nothing in the Guidelines should be construed:
[[Page 119]]
(i) To limit the United States Trustee's discretion to request
additional information necessary for the review of a particular
application or type of application or to refer any information provided
to the United States Trustee to any investigatory or prosecutorial
authority of the United States or a state;
(ii) To limit the United States Trustee's discretion to determine
whether to file comments or objections to applications; or
(iii) To create any private right of action on the part of any
person enforceable in litigation with the United States Trustee or the
United States.
(5) Recognizing that the final authority to award compensation and
reimbursement under section 330 of the Code is vested in the Court, the
Guidelines focus on the disclosure of information relevant to a proper
award under the law. In evaluating fees for professional services, it is
relevant to consider various factors including the following: the time
spent; the rates charged; whether the services were necessary to the
administration of, or beneficial towards the completion of, the case at
the time they were rendered; whether services were performed within a
reasonable time commensurate with the complexity, importance, and nature
of the problem, issue, or task addressed; and whether compensation is
reasonable based on the customary compensation charged by comparably
skilled practitioners in non-bankruptcy cases. The Guidelines thus
reflect standards and procedures articulated in section 330 of the Code
and Rule 2016 of the Federal Rules of Bankruptcy Procedure for awarding
compensation to trustees and to professionals employed under section 327
or 1103. Applications that contain the information requested in these
Guidelines will facilitate review by the Court, the parties, and the
United States Trustee.
(6) Fee applications submitted by trustees are subject to the same
standard of review as are applications of other professionals and will
be evaluated according to the principles articulated in these
Guidelines. Each United States Trustee should establish whether and to
what extent trustees can deviate from the format specified in these
Guidelines without substantially affecting the ability of the United
States Trustee to review and comment on their fee applications in a
manner consistent with the requirements of the law.
(b) Contents of Applications for Compensation and Reimbursement of
Expenses. All applications should include sufficient detail to
demonstrate compliance with the standards set forth in 11 U.S.C.
Sec. 330. The fee application should also contain sufficient information
about the case and the applicant so that the Court, the creditors, and
the United States Trustee can review it without searching for relevant
information in other documents. The following will facilitate review of
the application.
(1) Information about the Applicant and the Application. The
following information should be provided in every fee application:
(i) Date the bankruptcy petition was filed, date of the order
approving employment, identity of the party represented, date services
commenced, and whether the applicant is seeking compensation under a
provision of the Bankruptcy Code other than section 330.
(ii) Terms and conditions of employment and compensation, source of
compensation, existence and terms controlling use of a retainer, and any
budgetary or other limitations on fees.
(iii) Names and hourly rates of all applicant's professionals and
paraprofessionals who billed time, explanation of any changes in hourly
rates from those previously charged, and statement of whether the
compensation is based on the customary compensation charged by
comparably skilled practitioners in cases other than cases under title
11.
(iv) Whether the application is interim or final, and the dates of
previous orders on interim compensation or reimbursement of expenses
along with the amounts requested and the amounts allowed or disallowed,
amounts of all previous payments, and amount of any allowed fees and
expenses remaining unpaid.
(v) Whether the person on whose behalf the applicant is employed has
been given the opportunity to review the application and whether that
person has approved the requested amount.
(vi) When an application is filed less than 120 days after the order
for relief or after a prior application to the Court, the date and terms
of the order allowing leave to file at shortened intervals.
(vii) Time period of the services or expenses covered by the
application.
(2) Case Status. The following information should be provided to the
extent that it is known to or can be reasonably ascertained by the
applicant:
(i) In a chapter 7 case, a summary of the administration of the case
including all moneys received and disbursed in the case, when the case
is expected to close, and, if applicant is seeking an interim award,
whether it is feasible to make an interim distribution to creditors
without prejudicing the rights of any creditor holding a claim of equal
or higher priority.
(ii) In a chapter 11 case, whether a plan and disclosure statement
have been filed and, if not yet filed, when the plan and disclosure
statement are expected to be filed; whether all quarterly fees have been
paid to the United States Trustee; and whether all monthly operating
reports have been filed.
(iii) In every case, the amount of cash on hand or on deposit, the
amount and nature of accrued unpaid administrative expenses, and
[[Page 120]]
the amount of unencumbered funds in the estate.
(iv) Any material changes in the status of the case that occur after
the filing of the fee application should be raised, orally or in
writing, at the hearing on the application or, if a hearing is not
required, prior to the expiration of the time period for objection.
(3) Summary Sheet. All applications should contain a summary or
cover sheet that provides a synopsis of the following information:
(i) Total compensation and expenses requested and any amount(s)
previously requested;
(ii) Total compensation and expenses previously awarded by the
court;
(iii) Name and applicable billing rate for each person who billed
time during the period, and date of bar admission for each attorney;
(iv) Total hours billed and total amount of billing for each person
who billed time during billing period; and
(v) Computation of blended hourly rate for persons who billed time
during period, excluding paralegal or other paraprofessional time.
(4) Project Billing Format. (i) To facilitate effective review of
the application, all time and service entries should be arranged by
project categories. The project categories set forth in exhibit A should
be used to the extent applicable. A separate project category should be
used for administrative matters and, if payment is requested, for fee
application preparation.
(ii) The United States Trustee has discretion to determine that the
project billing format is not necessary in a particular case or in a
particular class of cases. Applicants should be encouraged to consult
with the United States Trustee if there is a question as to the need for
project billing in any particular case.
(iii) Each project category should contain a narrative summary of
the following information:
(A) a description of the project, its necessity and benefit to the
estate, and the status of the project including all pending litigation
for which compensation and reimbursement are requested;
(B) identification of each person providing services on the project;
and
(C) a statement of the number of hours spent and the amount of
compensation requested for each professional and paraprofessional on the
project.
(iv) Time and service entries are to be reported in chronological
order under the appropriate project category.
(v) Time entries should be kept contemporaneously with the services
rendered in time periods of tenths of an hour. Services should be noted
in detail and not combined or ``lumped'' together, with each service
showing a separate time entry; however, tasks performed in a project
which total a de minimis amount of time can be combined or lumped
together if they do not exceed .5 hours on a daily aggregate. Time
entries for telephone calls, letters, and other communications should
give sufficient detail to identify the parties to and the nature of the
communication. Time entries for court hearings and conferences should
identify the subject of the hearing or conference. If more than one
professional from the applicant firm attends a hearing or conference,
the applicant should explain the need for multiple attendees.
(5) Reimbursement for Actual, Necessary Expenses. Any expense for
which reimbursement is sought must be actual and necessary and supported
by documentation as appropriate. Factors relevant to a determination
that the expense is proper include the following:
(i) Whether the expense is reasonable and economical. For example,
first class and other luxurious travel mode or accommodations will
normally be objectionable.
(ii) Whether the requested expenses are customarily charged to non-
bankruptcy clients of the applicant.
(iii) Whether applicant has provided a detailed itemization of all
expenses including the date incurred, description of expense (e.g., type
of travel, type of fare, rate, destination), method of computation, and,
where relevant, name of the person incurring the expense and purpose of
the expense. Itemized expenses should be identified by their nature
(e.g., long distance telephone, copy costs, messengers, computer
research, airline travel, etc,) and by the month incurred. Unusual items
require more detailed explanations and should be allocated, where
practicable, to specific projects.
(iv) Whether applicant has prorated expenses where appropriate
between the estate and other cases (e.g., travel expenses applicable to
more than one case) and has adequately explained the basis for any such
proration.
(v) Whether expenses incurred by the applicant to third parties are
limited to the actual amounts billed to, or paid by, the applicant on
behalf of the estate.
(vi) Whether applicant can demonstrate that the amount requested for
expenses incurred in-house reflect the actual cost of such expenses to
the applicant. The United States Trustee may establish an objection
ceiling for any in-house expenses that are routinely incurred and for
which the actual cost cannot easily be determined by most professionals
(e.g., photocopies, facsimile charges, and mileage).
[[Page 121]]
(vii) Whether the expenses appear to be in the nature
nonreimbursable overhead. Overhead consists of all continuous
administrative or general costs incident to the operation of the
applicant's office and not particularly attributable to an individual
client or case. Overhead includes, but is not limited to, word
processing, proofreading, secretarial and other clerical services, rent,
utilities, office equipment and furnishings, insurance, taxes, local
telephones and monthly car phone charges, lighting, heating and cooling,
and library and publication charges.
(viii) Whether applicant has adhered to allowable rates for expenses
as fixed by local rule or order of the Court.
Exhibit A--Project Categories
Here is a list of suggested project categories for use in most
bankruptcy cases. Only one category should be used for a given activity.
Professionals should make their best effort to be consistent in their
use of categories, whether within a particular firm or by different
firms working on the same case. It would be appropriate for all
professionals to discuss the categories in advance and agree generally
on how activities will be categorized. This list is not exclusive. The
application may contain additional categories as the case requires. They
are generally more applicable to attorneys in chapter 7 and chapter 11,
but may be used by all professionals as appropriate.
Asset Analysis and Recovery: Identification and review of potential
assets including causes of action and non-litigation recoveries.
Asset Disposition: Sales, leases (Sec. 365 matters), abandonment and
related transaction work.
Business Operations: Issues related to debtor-in-possession
operating in chapter 11 such as employee, vendor, tenant issues and
other similar problems.
Case Administration: Coordination and compliance activities,
including preparation of statement of financial affairs; schedules; list
of contracts; United States Trustee interim statements and operating
reports; contacts with the United States Trustee; general creditor
inquiries.
Claims Administration and Objections: Specific claim inquiries; bar
date motions; analyses, objections and allowances of claims.
Employee Benefits/Pensions: Review issues such as severance,
retention, 401K coverage and continuance of pension plan.
Fee/Employment Applicants: Preparation of employment and fee
applications for self or others; motions to establish interim
procedures.
Fee/Employment Objections: Review of and objections to the
employment and fee applications of others.
Financing: Matters under Secs. 361, 363 and 364 including cash
collateral and secured claims; loan document analysis.
Litigation: There should be a separate category established for each
matter (e.g., XYZ Litigation).
Meetings of Creditors: Preparing for and attending the conference of
creditors, the Sec. 341(a) meeting and other creditors' committee
meetings.
Plan and Disclosure Statement: Formulation, presentation and
confirmation; compliance with the plan confirmation order, related
orders and rules; disbursement and case closing activities, except those
related to the allowance and objections to allowance of claims.
Relief From Stay Proceedings: Matters relating to termination or
continuation of automatic stay under Sec. 362.
The following categories are generally more applicable to
accountants and financial advisors, but may be used by all professionals
as appropriate.
Accounting/Auditing: Activities related to maintaining and auditing
books of account, preparation of financial statements and account
analysis.
Business Analysis: Preparation and review of company business plan;
development and review of strategies; preparation and review of cash
flow forecasts and feasibility studies.
Corporate Finance: Review financial aspects of potential mergers,
acquisitions and disposition of company or subsidiaries.
Data Analysis: Management information systems review, installation
and analysis, construction, maintenance and reporting of significant
case financial data, lease rejection, claims, etc.
Litigation Consulting: Providing consulting and expert witness
services relating to various bankruptcy matters such as insolvency,
feasibility, avoiding actions, forensic accounting, etc.
Reconstruction Accounting: Reconstructing books and records from
past transactions and bringing accounting current.
Tax Issues: Analysis of tax issues and preparation of state and
federal tax returns.
Valuation: Appraise or review appraisals of assets.
[61 FR 24890, May 17, 1996]
PART 59--GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS HELD BY THIRD PARTIES--Table of Contents
Sec.
59.1 Introduction.
59.2 Definitions.
59.3 Applicability.
59.4 Procedures.
59.5 Functions and authorities of the Deputy Assistant Attorneys
General.
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59.6 Sanctions.
Authority: Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C.
2000aa-11).
Source: Order No. 942-81, 46 FR 22364, Apr. 17, 1981, unless
otherwise noted.
Sec. 59.1 Introduction.
(a) A search for documentary materials necessarily involves
intrusions into personal privacy. First, the privacy of a person's home
or office may be breached. Second, the execution of such a search may
require examination of private papers within the scope of the search
warrant, but not themselves subject to seizure. In addition, where such
a search involves intrusions into professional, confidential
relationships, the privacy interests of other persons are also
implicated.
(b) It is the responsibility of federal officers and employees to
recognize the importance of these personal privacy interests, and to
protect against unnecessary intrusions. Generally, when documentary
materials are held by a disinterested third party, a subpoena,
administrative summons, or governmental request will be an effective
alternative to the use of a search warrant and will be considerably less
intrusive. The purpose of the guidelines set forth in this part is to
assure that federal officers and employees do not use search and seizure
to obtain documentary materials in the possession of disinterested third
parties unless reliance on alternative means would substantially
jeopardize their availability (e.g., by creating a risk of destruction,
etc.) or usefulness (e.g., by detrimentally delaying the investigation,
destroying a chain of custody, etc.). Therefore, the guidelines in this
part establish certain criteria and procedural requirements which must
be met before a search warrant may be used to obtain documentary
materials held by disinterested third parties. The guidelines in this
part are not intended to inhibit the use of less intrusive means of
obtaining documentary materials such as the use of a subpoena, summons,
or formal or informal request.
Sec. 59.2 Definitions.
As used in this part--
(a) The term attorney for the government shall have the same meaning
as is given that term in Rule 54(c) of the Federal Rules of Criminal
Procedure;
(b) The term disinterested third party means a person or
organization not reasonably believed to be--
(1) A suspect in the criminal offense to which the materials sought
under these guidelines relate; or
(2) Related by blood or marriage to such a suspect;
(c) The term documentary materials means any materials upon which
information is recorded, and includes, but is not limited to, written or
printed materials, photographs, films or negatives, audio or video
tapes, or materials upon which information is electronically or
magnetically recorded, but does not include materials which constitute
contraband, the fruits or instrumentalities of a crime, or things
otherwise criminally possessed;
(d) The term law enforcement officer shall have the same meaning as
the term ``federal law enforcement officer'' as defined in Rule 41(h) of
the Federal Rules of Criminal Procedure; and
(e) The term supervisory official of the Department of Justice means
the supervising attorney for the section, office, or branch within the
Department of Justice which is responsible for the investigation or
prosecution of the offense at issue, or any of his superiors.
Sec. 59.3 Applicability.
(a) The guidelines set forth in this part apply, pursuant to section
201 of the Privacy Protection Act of 1980 (Sec. 201, Pub. L. 96-440, 94
Stat. 1879, (42 U.S.C. 2000aa-11)), to the procedures used by any
federal officer or employee, in connection with the investigation or
prosecution of a criminal offense, to obtain documentary materials in
the private possession of a disinterested third party.
(b) The guidelines set forth in this part do not apply to:
(1) Audits, examinations, or regulatory, compliance, or
administrative inspections or searches pursuant to federal statute or
the terms of a federal contract;
(2) The conduct of foreign intelligence or counterintelligence
activities by a government authority pursuant to otherwise applicable
law;
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(3) The conduct, pursuant to otherwise applicable law, of searches
and seizures at the borders of, or at international points of entry
into, the United States in order to enforce the customs laws of the
United States;
(4) Governmental access to documentary materials for which valid
consent has been obtained; or
(5) Methods of obtaining documentary materials whose location is
known but which have been abandoned or which cannot be obtained through
subpoena or request because they are in the possession of a person whose
identity is unknown and cannot with reasonable effort be ascertained.
(c) The use of search and seizure to obtain documentary materials
which are believed to be possessed for the purpose of disseminating to
the public a book, newspaper, broadcast, or other form of public
communication is subject to title I of the Privacy Protection Act of
1980 (Sec. 101, et seq., Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C.
2000aa, et seq.)), which strictly prohibits the use of search and
seizure to obtain such materials except under specified circumstances.
(d) These guidelines are not intended to supersede any other
statutory, regulatory, or policy limitations on access to, or the use or
disclosure of particular types of documentary materials, including, but
not limited to, the provisions of the Right to Financial Privacy Act of
1978 (12 U.S.C. 3401, et seq.), the Drug Abuse Office and Treatment Act
of 1972, as amended (21 U.S.C. 1101, et seq.), and the Comprehensive
Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation
Act of 1970, as amended (42 U.S.C. 4541, et seq.).
Sec. 59.4 Procedures.