June 23, 2006 28 Part 43 to End Revised as of July 1, 2006 Judicial Administration Containing a codification of documents of general applicability andfuture effect As of July 1, 2006 With Ancillaries

Published by

Office of the Federal Register

National Archives and Records

Administration

 A Special Edition of the Federal Register U.S. GOVERNMENT OFFICIAL EDITION NOTICE Legal Status and Use of Seals and Logos e:\seals\archives.ai

The seal of the National Archives and Records Administration (NARA)authenticates the Code of Federal Regulations (CFR) as the official codificationof Federal regulations established under the Federal Register Act. Under theprovisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of theFederal Register, shall be judicially noticed. The CFR is prima facie evidenceof the original documents published in the Federal Register (44 U.S.C. 1510).

It is prohibited to use NARA's official seal and the stylized Code of FederalRegulations logo on any republication of this material without the express,written permission of the Archivist of the United States or the Archivist'sdesignee. Any person using NARA's official seals and logos in a mannerinconsistent with the provisions of 36 CFR part 1200 is subject to the penaltiesspecified in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix

This is the Official U.S. Government edition of this publication and isherein identified to certify its authenticity. Use of the 0-16 ISBN prefixis for U.S. Government Printing Office Official Editions only. TheSuperintendent of Documents of the U.S. Government Printing Office requests thatany reprinted edition clearly be labeled as a copy of the authentic work with anew ISBN.

e:\seals\gpologo.eps

U . S . G O V E R N M E N T P R I N T I N G O F F I C E

U.S. Superintendent of Documents • Washington, DC 20402-0001

http://bookstore.gpo.gov

Phone: toll-free (866) 512-1800; DC area (202) 512-1800

 Table of Contents Page Explanation v Title 28: Chapter I—Department of Justice (Continued) 3 Chapter III—Federal Prison Industries, Inc., Department ofJustice 501 Chapter V—Bureau of Prisons, Department of Justice 523 Chapter VI—Offices of Independent Counsel, Department of Justice 693 Chapter VII—Office of Independent Counsel 701 Chapter VIII—Court Services and Offender Supervision Agency forthe District of Columbia 725 Chapter IX—National Crime Prevention and Privacy Compact Council 763 Chapter XI—Department of Justice and Department of State 775 Finding Aids: Material Approved for Incorporation by Reference 785 Table of CFR Titles and Chapters 787 Alphabetical List of Agencies Appearing in the CFR 805 List of CFR Sections Affected 815

Cite this Code:CFR

To cite the regulations in this volume use title, part and sectionnumber. Thus, 28 CFR 43.1 refers to title 28, part 43, section1. Explanation

The Code of Federal Regulations is a codification of the general andpermanent rules published in the Federal Register by the Executive departmentsand agencies of the Federal Government. The Code is divided into 50 titles whichrepresent broad areas subject to Federal regulation. Each title is divided intochapters which usually bear the name of the issuing agency. Each chapter isfurther subdivided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year andissued on a quarterly basis approximately as follows:

Title 1 through Title 16

as of January 1

Title 17 through Title 27

as of April 1

Title 28 through Title 41

as of July 1

Title 42 through Title 50

as of October 1

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

LEGAL STATUS

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

 HOW TO USE THE CODE OF FEDERAL REGULATIONS

The Code of Federal Regulations is kept up to date by the individual issuesof the Federal Register. These two publications must be used together todetermine the latest version of any given rule.

To determine whether a Code volume has been amended since its revision date(in this case, July 1, 2006), consult the “List of CFR Sections Affected(LSA),” which is issued monthly, and the “Cumulative List of PartsAffected,” which appears in the Reader Aids section of the daily FederalRegister. These two lists will identify the Federal Register page number of thelatest amendment of any given rule.

 EFFECTIVE AND EXPIRATION DATES

Each volume of the Code contains amendments published in the Federal Registersince the last revision of that volume of the Code. Source citations for theregulations are referred to by volume number and page number of the FederalRegister and date of publication. Publication dates and effective dates areusually not the same and care must be exercised by the user in determining theactual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effectivedate. In those instances where a regulation published in the Federal Registerstates a date certain for expiration, an appropriate note will be insertedfollowing the text.

 OMB CONTROL NUMBERS

The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federalagencies to display an OMB control number with their information collectionrequest. Many agencies have begun publishing numerous OMB control numbers asamendments to existing regulations in the CFR. These OMB numbers are placed asclose as possible to the applicable recordkeeping or reporting requirements.

 OBSOLETE PROVISIONS

Provisions that become obsolete before the revision date stated on the coverof each volume are not carried. Code users may find the text of provisions ineffect on a given date in the past by using the appropriate numerical list ofsections affected. For the period before January 1, 2001, consult either theList of CFR Sections Affected, 1949-1963, 1964-1972,1973-1985, or 1986-2000, published in 11 separate volumes. For theperiod beginning January 1, 2001, a “List of CFR Sections Affected”is published at the end of each CFR volume.

 INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by referencewas established by statute and allows Federal agencies to meet the requirementto publish regulations in the Federal Register by referring to materials alreadypublished elsewhere. For an incorporation to be valid, the Director of theFederal Register must approve it. The legal effect of incorporation by referenceis that the material is treated as if it were published in full in the FederalRegister (5 U.S.C. 552(a)). This material, like any other properly issuedregulation, has the force of law.

What is a proper incorporation by reference? The Director ofthe Federal Register will approve an incorporation by reference only when therequirements of 1 CFR part 51 are met. Some of the elements on which approval isbased are:

(a) The incorporation will substantially reduce the volume of materialpublished in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary toafford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication inaccordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed inthe Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found?If you have any problem locating or obtaining a copy of material listed in theFinding Aids of this volume as an approved incorporation by reference, pleasecontact the agency that issued the regulation containing that incorporation. If,after contacting the agency, you find the material is not available, pleasenotify the Director of the Federal Register, National Archives and RecordsAdministration, Washington DC 20408, or call 202-741-6010.

 CFR INDEXES AND TABULAR GUIDES

A subject index to the Code of Federal Regulations is contained in a separatevolume, revised annually as of January 1, entitled CFR Index andFinding Aids. This volume contains the Parallel Table of StatutoryAuthorities and Agency Rules (Table I). A list of CFR titles, chapters, andparts and an alphabetical list of agencies publishing in the CFR are alsoincluded in this volume.

An index to the text of “Title 3—The President” is carriedwithin that volume.

The Federal Register Index is issued monthly in cumulative form. This indexis based on a consolidation of the “Contents” entries in the dailyFederal Register.

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

 REPUBLICATION OF MATERIAL

There are no restrictions on the republication of textual material appearingin the Code of Federal Regulations.

 INQUIRIES

For a legal interpretation or explanation of any regulation in this volume,contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.

For inquiries concerning CFR reference assistance, call 202-741-6000 or writeto the Director, Office of the Federal Register, National Archives and RecordsAdministration, Washington, DC 20408 or e-mail fedreg.info@nara.gov.

 SALES

The Government Printing Office (GPO) processes all sales and distribution ofthe CFR. For payment by credit card, call toll-free, 866-512-1800 or DC area,202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2250, 24hours a day. For payment by check, write to the Superintendent of Documents,Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO CustomerService call 202-512-1803.

 ELECTRONIC SERVICES

The full text of the Code of Federal Regulations, the LSA (List of CFRSections Affected), The United States Government Manual, the Federal Register,Public Laws, Public Papers, Weekly Compilation of Presidential Documents and thePrivacy Act Compilation are available in electronic format at www.gpoaccess.gov/nara (“GPO Access”). For moreinformation, contact Electronic Information Dissemination Services, U.S.Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, gpoaccess@gpo.gov.

The Office of the Federal Register also offers a free service on the NationalArchives and Records Administration's (NARA) World Wide Web site for public lawnumbers, Federal Register finding aids, and related information. Connect toNARA's web site at www.archives.gov/federal-register. The NARAsite also contains links to GPO Access.

 Raymond A. Mosley, Director, Office of the Federal Register. July 1, 2006. THIS TITLE

Title 28—Judicial Administration is composed of twovolumes. The parts in these volumes are arranged in the following order: parts0-42 and part 43 to end. The contents of these volumes represent allcurrent regulations codified by the Department of Justice, the Federal PrisonIndustries, Inc., the Bureau of Prisons, Department of Justice, the Offices ofIndependent Counsel, Department of Justice, and the Office of IndependentCounsel under this title of the CFR as of July 1, 2006.

For this volume, Carol A. Conroy was Chief Editor. The Code of FederalRegulations publication program is under the direction of Frances D. McDonald,assisted by Alomha S. Morris.

 <LRH>28 CFR Ch. I (7-1-06 Edition)</LRH> <RRH>Department of Justice</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 28—Judicial Administration</HD> <P>(This book contains part 43 to End)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter i</E>—Department of Justice (Continued)</SUBJECT> <PG>43</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter iii</E>—Federal Prison Industries, Inc.,Department of Justice</SUBJECT> <PG>301</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter v</E>—Bureau of Prisons, Department of Justice</SUBJECT> <PG>500</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter vi</E>—Offices of Independent Counsel,Department of Justice</SUBJECT> <PG>600</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter vii</E>—Office of Independent Counsel</SUBJECT> <PG>700</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter viii</E>—Court Services and OffenderSupervision Agency for the District of Columbia</SUBJECT> <PG>800</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter ix</E>—National Crime Prevention and PrivacyCompact Council</SUBJECT> <PG>901</PG> </CHAPTI> <CHAPTI> <SUBJECT> <E T="04">chapter xi</E>—Department of Justice and Department ofState</SUBJECT> <PG>1100</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER I—DEPARTMENT OF JUSTICE (CONTINUED)</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>43</PT> <SUBJECT>Recovery of cost of hospital and medical care and treatment furnishedby the United States</SUBJECT> <PG>7</PG> <PT>44</PT> <SUBJECT>Unfair immigration-related employment practices</SUBJECT> <PG>8</PG> <PT>45</PT> <SUBJECT>Employee responsibilities</SUBJECT> <PG>12</PG> <PT>46</PT> <SUBJECT>Protection of human subjects</SUBJECT> <PG>16</PG> <PT>47</PT> <SUBJECT>Right to Financial Privacy Act</SUBJECT> <PG>27</PG> <PT>48</PT> <SUBJECT>Newspaper Preservation Act</SUBJECT> <PG>28</PG> <PT>49</PT> <SUBJECT>Antitrust Civil Process Act</SUBJECT> <PG>34</PG> <PT>50</PT> <SUBJECT>Statements of policy</SUBJECT> <PG>35</PG> <PT>51</PT> <SUBJECT>Procedures for the administration of section 5 of the Voting Rights Actof 1965, as amended</SUBJECT> <PG>81</PG> <PT>52</PT> <SUBJECT>Proceedings before U.S. magistrate judges</SUBJECT> <PG>101</PG> <PT>54</PT> <SUBJECT>Nondiscrimination on the basis of sex in education programs oractivities receiving federal financial assistance</SUBJECT> <PG>103</PG> <PT>55</PT> <SUBJECT>Implementation of the provisions of the Voting Rights Act regardinglanguage minority groups</SUBJECT> <PG>119</PG> <PT>56</PT> <SUBJECT>International Energy Program</SUBJECT> <PG>132</PG> <PT>57</PT> <SUBJECT>Investigation of discrimination in the supply of petroleum to the ArmedForces</SUBJECT> <PG>134</PG> <PT>58</PT> <SUBJECT>Regulations relating to the Bankruptcy Reform Acts of 1978 and 1994</SUBJECT> <PG>135</PG> <PT>59</PT> <SUBJECT>Guidelines on methods of obtaining documentary materials held by thirdparties</SUBJECT> <PG>143</PG> <PT>60</PT> <SUBJECT>Authorization of Federal law enforcement officers to request theissuance of a search warrant</SUBJECT> <PG>147</PG> <PT>61</PT> <SUBJECT>Procedures for implementing the National Environmental Policy Act</SUBJECT> <PG>149</PG> <PT>63</PT> <SUBJECT>Floodplain management and wetland protection procedures</SUBJECT> <PG>156</PG> <PT>64</PT> <SUBJECT>Designation of officers and employees of the United States for coverageunder section 1114 of title 18 of the U.S. Code</SUBJECT> <PG>161</PG> <PT>65</PT> <SUBJECT>Emergency Federal law enforcement assistance</SUBJECT> <PG>163<PRTPAGE P="4"/> </PG> <PT>66</PT> <SUBJECT>Uniform administrative requirements for grants and cooperativeagreements to State and local governments</SUBJECT> <PG>172</PG> <PT>67</PT> <SUBJECT>Government-wide debarment and suspension (nonprocurement) </SUBJECT> <PG>199</PG> <PT>68</PT> <SUBJECT>Rules of practice and procedure for administrative hearings beforeadministrative law judges in cases involving allegations of unlawful employmentof aliens, unfair immigration-related employment practices, and document fraud</SUBJECT> <PG>222</PG> <PT>69</PT> <SUBJECT>New restrictions on lobbying</SUBJECT> <PG>251</PG> <PT>70</PT> <SUBJECT>Uniform administrative requirements for grants and agreements(including subawards) with institutions of higher education, hospitals and othernon-profit organizations</SUBJECT> <PG>262</PG> <PT>71</PT> <SUBJECT>Implementation of the provisions of the Program Fraud Civil RemediesAct of 1986</SUBJECT> <PG>287</PG> <PT>73</PT> <SUBJECT>Notifications to the Attorney General by agents of foreign governments</SUBJECT> <PG>304</PG> <PT>74</PT> <SUBJECT>Civil Liberties Act redress provision</SUBJECT> <PG>306</PG> <PT>75</PT> <SUBJECT>Child Protection Restoration and Penalties Enhancement Act of 1990 andPROTECT Act; Recordkeeping and Record Inspection Provisions</SUBJECT> <PG>318</PG> <PT>76</PT> <SUBJECT>Rules of procedure for assessment of civil penalties for possession ofcertain controlled substances</SUBJECT> <PG>323</PG> <PT>77</PT> <SUBJECT>Ethical standards for attorneys for the government</SUBJECT> <PG>338</PG> <PT>79</PT> <SUBJECT>Claims under the Radiation Exposure Compensation Act</SUBJECT> <PG>341</PG> <PT>80</PT> <SUBJECT>Foreign Corrupt Practices Act opinion procedure</SUBJECT> <PG>414</PG> <PT>81</PT> <SUBJECT>Child abuse and child pornography reporting designations andprocedures</SUBJECT> <PG>416</PG> <PT>83</PT> <SUBJECT>Government-wide requirements for drug-free workplace (Grants)</SUBJECT> <PG>418</PG> <PT>85</PT> <SUBJECT>Civil monetary penalties inflation adjustment</SUBJECT> <PG>423</PG> <PT>90</PT> <SUBJECT>Violence against women</SUBJECT> <PG>425</PG> <PT>91</PT> <SUBJECT>Grants for correctional facilities</SUBJECT> <PG>442</PG> <PT>92</PT> <SUBJECT>Office of Community Oriented Policing Services (COPS)</SUBJECT> <PG>458</PG> <PT>93</PT> <SUBJECT>Provisions implementing the Violent Crime Control and Law EnforcementAct of 1994</SUBJECT> <PG>464</PG> <PT>97</PT> <SUBJECT>Standards for private entities providing prisoner or detainee services</SUBJECT> <PG>466</PG> <PT>100</PT> <SUBJECT>Cost recovery regulations, Communications Assistance for LawEnforcement Act of 1994</SUBJECT> <PG>469</PG> <PT>104</PT> <SUBJECT>September 11th Victim Compensation Fund of 2001</SUBJECT> <PG>478<PRTPAGE P="5"/> </PG> <PT>105</PT> <SUBJECT>Criminal history background checks</SUBJECT> <PG>489</PG> <PT>200</PT> <SUBJECT>Alien terrorist removal procedures</SUBJECT> <PG>499</PG> </CHAPTI> <SUPPLPUB> <HD SOURCE="HED">Supplementary Publications:</HD> <P> <E T="03">The official opinions ofthe Attorneys General of the United States. (Op. A. G.) Irregular, 1789—;Washington, v. 1—, 1852—.</E> </P> </SUPPLPUB> </TOC> <PART> <PRTPAGE P="7"/> <EAR>Pt. 43</EAR> <HD SOURCE="HED">PART 43—RECOVERY OF COST OF HOSPITAL AND MEDICALCARE AND TREATMENT FURNISHED BY THE UNITED STATES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>43.1</SECTNO> <SUBJECT>Administrative determination and assertion of claims.</SUBJECT> <SECTNO>43.2</SECTNO> <SUBJECT>Obligations of persons receiving care and treatment.</SUBJECT> <SECTNO>43.3</SECTNO> <SUBJECT>Settlement and waiver of claims.</SUBJECT> <SECTNO>43.4</SECTNO> <SUBJECT>Annual reports.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 2, 76 Stat. 593; 42 U.S.C. 2651-2653; E.O.11060, 3 CFR, 1959-1963 Comp., p. 651.</P> </AUTH> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For establishment and determination of certainrates for use in connection with recovery from tortiously liable third persons,see notice documents published by the Office of Management and Budget each yearin the <E T="04">Federal Register.</E> </P> </EDNOTE> <SECTION> <SECTNO>§ 43.1</SECTNO> <SUBJECT>Administrative determination and assertion of claims.</SUBJECT> <P>(a) The head of a Department or Agency of the United States responsible forthe furnishing of hospital, medical, surgical or dental care and treatment(including prostheses and medical appliances), or his designee, shall determinewhether such hospital, medical, surgical or dental care and treatment was orwill be furnished for an injury or disease caused under circumstances entitlingthe 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§ 43.3, assert a claim against such third person for the reasonablevalue of such care and treatment. The Department of Justice, or a Department orAgency responsible for the furnishing of such care and treatment may request anyother Department or Agency to investigate, determine, or assert a claim underthe regulations in this part.</P> <P>(b) Each Department or Agency is authorized to implement the regulations inthis part to give full force and effect thereto.</P> <P>(c) The provisions of the regulations in this part shall not apply withrespect to hospital, medical, surgical, or dental care and treatment (includingprostheses and medical appliances) furnished by the Veterans Administration toan eligible veteran for a service-connected disability under the provisions ofchapter 17 of title 38 of the U.S. Code.</P> <CITA>[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 43.2</SECTNO> <SUBJECT>Obligations of persons receiving care and treatment.</SUBJECT> <P>(a) In the discretion of the Department or Agency concerned, any personfurnished care and treatment under circumstances in which the regulations inthis part may be applicable, his guardian, personal representative, estate,dependents or survivors may be required:</P> <P>(1) To assign in writing to the United States his claim or cause of actionagainst the third person to the extent of the reasonable value of the care andtreatment furnished or to be furnished, or any portion thereof;</P> <P>(2) To furnish such information as may be requested concerning thecircumstances giving rise to the injury or disease for which care and treatmentis being given and concerning any action instituted or to be instituted by oragainst a third person;</P> <P>(3) To notify the Department or Agency concerned of a settlement with, or anoffer of settlement from, a third person; and</P> <P>(4) To cooperate in the prosecution of all claims and actions by the UnitedStates against such third person.</P> <P>(b) [Reserved]</P> <CITA>[Order No. 289-62, 27 FR 11317, Nov. 16, 1962, as amended by OrderNo. 896-80, 45 FR 39841, June 12, 1980] </CITA> </SECTION> <SECTION> <SECTNO>§ 43.3</SECTNO> <SUBJECT>Settlement and waiver of claims.</SUBJECT> <P>(a) The head of the Department or Agency of the United States asserting suchclaim, or his or her designee, may:</P> <P>(1) Accept the full amount of a claim and execute a release therefor;</P> <P>(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 andtreatment; or</P> <P>(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, orif the head of the Department or Agency, or his or her designee, determines thatcollection would result in undue hardship upon the person who suffered <PRTPAGE P="8"/>theinjury or disease resulting in the care and treatment described in§ 43.1.</P> <P>(b) Claims in excess of $100,000 may be compromised, settled, waived, andreleased only with the prior approval of the Department of Justice.</P> <P>(c) The authority granted in this section shall not be exercised in any casein which:</P> <P>(1) The claim of the United States for such care and treatment has beenreferred to the Department of Justice; or</P> <P>(2) A suit by the third party has been instituted against the United Statesor the individual who received or is receiving the care and treatment describedin § 43.1 and the suit arises out of the occurrence which gave riseto the third-party claim of the United States.</P> <P>(d) The Departments and Agencies concerned shall consult the Department ofJustice in all cases involving:</P> <P>(1) Unusual circumstances;</P> <P>(2) A new point of law which may serve as a precedent; or</P> <P>(3) A policy question where there is or may be a difference of views betweenany of such Departments and Agencies.</P> <CITA>[Order No. 1594-92, 57 FR 27356, June 19, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 43.4</SECTNO> <SUBJECT>Annual reports.</SUBJECT> <P>The head of each Department or Agency concerned, or his designee, shallreport annually to the Attorney General, by March 1, commencing in 1964, thenumber and dollar amount of claims asserted against, and the number and dollaramount of recoveries from third persons.</P> <CITA>[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 44</EAR> <HD SOURCE="HED">PART 44—UNFAIR IMMIGRATION-RELATED EMPLOYMENTPRACTICES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>44.100</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>44.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Prohibited Practices</HD> <SECTNO>44.200</SECTNO> <SUBJECT>Unfair immigration-related employment practices.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Enforcement Procedures</HD> <SECTNO>44.300</SECTNO> <SUBJECT>Filing a charge.</SUBJECT> <SECTNO>44.301</SECTNO> <SUBJECT>Acceptance of charge.</SUBJECT> <SECTNO>44.302</SECTNO> <SUBJECT>Investigation.</SUBJECT> <SECTNO>44.303</SECTNO> <SUBJECT>Determination.</SUBJECT> <SECTNO>44.304</SECTNO> <SUBJECT>Special Counsel acting on own initiative.</SUBJECT> <SECTNO>44.305</SECTNO> <SUBJECT>Regional offices.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>8 U.S.C. 1324b, 8 U.S.C. 1103(a).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 1225-87, 52 FR 37409, Oct. 6, 1987,unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 44.100</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part is to effectuate section 102 of the ImmigrationReform and Control Act of 1986, which prohibits certain unfair immigration-related employment practices.</P> </SECTION> <SECTION> <SECTNO>§ 44.101</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Charge</E> means a written statement under oath or affirmationthat—</P> <P>(1) Identifies the charging party's name, address, and telephone number;</P> <P>(2) Identifies the injured party's name, address, and telephone number, ifthe charging party is not the injured party;</P> <P>(3) Identifies the name and address of the person or entity against whom thecharge is being made;</P> <P>(4) Includes a statement sufficient to describe the circumstances, place, anddate of an alleged unfair immigration-related employment practice;</P> <P>(5) Indicates whether the basis of the alleged unfair immigration-relatedemployment practice is discrimination based on national origin, citizenshipstatus, or both; or intimidation or retaliation, or documentation abuses;</P> <P>(6) Indicates whether the injured party is a U.S. citizen, U.S. national, oralien authorized to work in the United States;</P> <P>(7) Indicates, if the injured party is an alien authorized to work, whetherthe injured party—</P> <P>(i) Has been—</P> <P>(A) Lawfully admitted for permanent residence;</P> <P>(B) Granted the status of an alien lawfully admitted for temporary residenceunder 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1);</P> <P>(C) Admitted as a refugee under 8 U.S.C. 1157; or</P> <P>(D) Granted asylum under 8 U.S.C. 1158; and<PRTPAGE P="9"/> </P> <P>(ii) Has applied for naturalization (and if so, indicates the date of theapplication);</P> <P>(8) Identifies, if the injured party is an alien authorized to work, theinjured party's alien registration number and date of birth.</P> <P>(9) Indicates, if possible, the number of persons employed on the date of thealleged discrimination by the person or entity against whom the charge is beingmade;</P> <P>(10) Is signed by the charging party and, if the charging party is neitherthe injured party nor an officer of the Immigration and Naturalization Service,indicates that the charging party has the authorization of the injured party tofile the charge.</P> <P>(11) Indicates whether a charge based on the same set of facts has been filedwith the Equal Employment Opportunity Commission, and if so, the specificoffice, and contact person (if known); and</P> <P>(12) Authorizes the Special Counsel to reveal the identity of the injured orcharging party when necessary to carry out the purposes of this part.</P> <P>(b) <E T="03">Charging party</E> means—</P> <P>(1) An individual who files a charge with the Special Counsel that allegesthat he or she has been adversely affected directly by an unfair immigration-related employment practice;</P> <P>(2) An individual or private organization who is authorized by an individualto file a charge with the Special Counsel that alleges that the individual hasbeen adversely affected directly by an unfair immigration-related employmentpractice; or</P> <P>(3) An officer of the Immigration and Naturalization Service who files acharge with the Special Counsel that alleges that an unfair immigration-relatedemployment practice has occurred.</P> <P>(c) <E T="03">Protected individual</E> means an individual who—</P> <P>(1) Is a citizen or national of the United States; or</P> <P>(2) Is an alien who is lawfully admitted for permanent residence, is grantedthe 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 refugeeunder 8 U.S.C. 1157, or is granted asylum under 8 U.S.C. 1158. The status of analien whose application for temporary resident status under 8 U.S.C. 1160(a), 8U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1) is approved shall be adjusted to that ofa lawful temporary resident as of the date indicated on the application feereceipt issued at the Immigration and Naturalization Service LegalizationOffice. As used in this definition, the term “protected individual”does not include an alien who—</P> <P>(i) Fails to apply for naturalization within six months of the date the alienfirst becomes eligible (by virtue of period of lawful permanent residence) toapply for naturalization or, if later, by May 6, 1987; or</P> <P>(ii) Has applied on a timely basis, but has not been naturalized as a citizenwithin two years after the date of the application, unless the alien canestablish that he or she is actively pursuing naturalization, except that timeconsumed in the Immigration and Naturalization Service's processing of theapplication shall not be counted toward the two-year period.</P> <P>(d) <E T="03">Complaint</E> means a written submission filed with anadministrative law judge by the Special Counsel or the charging party, otherthan an officer of the Immigration and Naturalization Service, that is based onthe same charge filed with the Special Counsel.</P> <P>(e) <E T="03">Injured party</E> means a person who claims to have beenadversely affected directly by an unfair immigration-related employment practiceor, in the case of a charge filed by an officer of the Immigration andNaturalization Service or by a charging party other than the injured party, isalleged to be so affected.</P> <P>(f) <E T="03">Respondent</E> means a person or entity against whom a chargeof an unfair immigration-related employment practice has been filed.</P> <P>(g) <E T="03">Special Counsel</E> means the Special Counsel for Immigration-Related Unfair Employment Practices appointed by the President under section 102of the Immigration Reform and Control Act of 1986, or his or her designee.</P> <CITA>[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by OrderNo. 1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR59948, Nov. 12, 1993]</CITA> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="10"/> <HD SOURCE="HED">Subpart B—Prohibited Practices</HD> <SECTION> <SECTNO>§ 44.200</SECTNO> <SUBJECT>Unfair immigration-related employment practices.</SUBJECT> <P>(a)(1) <E T="03">General.</E> It is unfair immigration-related employmentpractice for a person or other entity to knowingly and intentionallydiscriminate or to engage in a pattern or practice of knowing and intentionaldiscrimination against any individual (other than an unauthorized alien) withrespect to the hiring, or recruitment or referral for a fee, of the individualfor employment or the discharging of the individual from employment—</P> <P>(i) Because of such individual's national origin; or</P> <P>(ii) In the case of a protected individual, as defined in§ 44.101(c), because of such individual's citizenship status.</P> <P>(2) <E T="03">Intimidation or retaliation.</E> 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 ofinterfering with any right or privilege secured under 8 U.S.C. 1324b or becausethe individual intends to file or has filed a charge or a complaint, testified,assisted, or participated in any manner in an investigation, proceeding, orhearing under that section.</P> <P>(3) <E T="03">Documentation abuses.</E> A person's or other entity's request,for purposes of satisfying the requirements of 8 U.S.C. 1324a(b), for more ordifferent documents than are required under such section or refusing to honordocuments tendered that on their face reasonably appear to be genuine and torelate to the individual shall be treated as an unfair immigration-relatedemployment practice relating to the hiring of individuals.</P> <P>(b) <E T="03">Exceptions.</E> (1) Paragraph (a) of this section shall notapply to—</P> <P>(i) A person or other entity that employs three or fewer employees;</P> <P>(ii) Discrimination because of an individual's national origin if thediscrimination with respect to that person or entity and that individual iscovered under 42 U.S.C. 2000e-2; or</P> <P>(iii) Discrimination because of citizenship which—</P> <P>(A) Is otherwise required in order to comply with law, regulation, orExecutive Order; or</P> <P>(B) Is required by Federal, State, or local government contract; or</P> <P>(C) Which the Attorney General determines to be essential for an employer todo business with an agency or department of the Federal, State, or localgovernment.</P> <P>(2) Notwithstanding any other provision of this part, it is not an unfairimmigration-related employment practice for a person or other entity to preferto hire, recruit or refer for a fee an individual who is a citizen or nationalof the United States over another individual who is an alien if the twoindividuals are equally qualified.</P> <CITA>[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by OrderNo. 1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR59948, Nov. 12, 1993]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Enforcement Procedures</HD> <SECTION> <SECTNO>§ 44.300</SECTNO> <SUBJECT>Filing a charge.</SUBJECT> <P>(a) <E T="03">Who may file.</E> (1) Any individual who believes that he orshe has been adversely affected directly by an unfair immigration-relatedemployment practice, or any individual or private organization authorized to acton such person's behalf, may file a charge with the Special Counsel.</P> <P>(2) Any officer of the Immigration and Naturalization Service who believesthat an unfair immigration-related employment practice has occurred or isoccurring may file a charge with the Special Counsel.</P> <P>(b) <E T="03">When to file.</E> Charges shall be filed within 180 days of thealleged occurrence of an unfair immigration-related employment practice. Forpurposes of determining when a charge is timely under this paragraph, a chargemailed to the Special Counsel shall be deemed filed on the date it ispostmarked.</P> <P>(c) <E T="03">How to file.</E> Charges may be:</P> <P>(1) Mailed to: Office of Special Counsel for Immigration-Related UnfairEmployment Practices, P.O. Box 27728, Washington, DC 20038-7728 or</P> <P>(2) Delivered to the Office of Special Counsel at 1425 New York Avenue NW.,suite 9000, Washington, DC 20005.<PRTPAGE P="11"/> </P> <P>(d) <E T="03">No overlap with EEOC complaints.</E> No charge may be filedrespecting an unfair immigration-related employment practice described in§ 44.200(a)(1) if a charge with respect to that practice based on thesame set of facts has been filed with the Equal Employment OpportunityCommission under title VII of the Civil Rights Act of 1964, unless the charge isdismissed as being outside the scope of such title. No charge respecting anemployment practice may be filed with the Equal Employment OpportunityCommission under such title if a charge with respect to such practice based onthe same set of facts has been filed under this section, unless the charge isdismissed by the Special Counsel as being outside the scope of this part.</P> <CITA>[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by OrderNo. 1807-93, 58 FR 59948, Nov. 12, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 44.301</SECTNO> <SUBJECT>Acceptance of charge.</SUBJECT> <P>(a) The Special Counsel shall notify the charging party of receipt of acharge as defined in § 44.101(a) or receipt of a submission deemed tobe a charge under paragraph (c)(2) of this section.</P> <P>(b) The notice to the charging party shall specify the date on which thecharge was received, state that the charging party, other than an officer of theImmigration and Naturalization Service, may file a complaint before anadministrative law judge if the Special Counsel does not do so within 120 daysof receipt of the charge, and state the last date on which such a complaint maybe filed.</P> <P>(c)(1) Subject to paragraph (c)(2) of this section, if a charging party'ssubmission is inadequate to constitute a charge as defined in§ 44.101(a), the Special Counsel shall notify the charging party thatspecified additional information is needed. As of the date that adequateinformation is received in writing by the Special Counsel, the charging party'ssubmission shall be deemed a filed charge and the Special Counsel shall issuethe notices required by paragraphs (b) and (e) of this section.</P> <P>(2) In the Special Counsel's discretion, the Special Counsel may deem asubmission to be a filed charge as of the date of its receipt even though it isinadequate to constitute a charge as defined in § 44.101(a). TheSpecial Counsel may then obtain the additional information specified in§44.101(a) in the course of investigating the charge.</P> <P>(d)(1) If the Special Counsel receives a charge after 180 days of the allegedoccurrence of an unfair immigration-related employment practice, the SpecialCounsel shall dismiss the charge with prejudice.</P> <P>(2) Inadequate submissions that are later deemed charges under paragraph(c)(1) of this section are timely filed as long as—</P> <P>(i) The original submission is filed within 180 days of the allegedoccurrence of an unfair immigration-related employment practice; and</P> <P>(ii) Any additional information requested by the Special Counsel pursuant toparagraph (c)(1) of this section is provided in writing to the Special Counselwithin the 180-day period or within 45 days of the date on which the chargingparty received the Special Counsel's notification pursuant to paragraph (c) ofthis section, whichever is later.</P> <P>(e) The Special Counsel shall serve notice of the charge on the respondent bycertified mail within 10 days of receipt of the charge. The notice shall includethe date, place, and circumstances of the alleged unfair immigration-relatedemployment practice.</P> <CITA>[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by OrderNo. 1520-91, 57 FR 40249, Aug. 14, 1991; 57 FR 30397, July 9, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 44.302</SECTNO> <SUBJECT>Investigation.</SUBJECT> <P>(a) The Special Counsel may propound interrogatories, requests for productionof documents, and requests for admissions.</P> <P>(b) The Special Counsel shall have reasonable access to examine the evidenceof any person or entity being investigated. The respondent shall permit accessby the Special Counsel during normal business hours to such of its books,records, accounts, and other sources of information, as the Special Counsel maydeem pertinent to ascertain compliance with this part.</P> </SECTION> <SECTION> <PRTPAGE P="12"/> <SECTNO>§ 44.303</SECTNO> <SUBJECT>Determination.</SUBJECT> <P>(a) Within 120 days of the receipt of a charge, the Special Counsel shallundertake an investigation of the charge and determine whether a complaint withrespect to the charge will be brought before an administrative law judgespecially designated by the Attorney General to hear cases under section 102 ofthe Act.</P> <P>(b) When the Special Counsel decides not to file a complaint with respect tosuch charge before an administrative jaw judge within the 120-day period, or atthe end of the 120-day period, the Special Counsel shall issue letters ofdetermination by certified mail which notify the charging party and therespondent of the Special Counsel's determination not to file a complaint.</P> <P>(c) When the charging party receives a letter of determination issuedpursuant to § 44.303(b), indicating that the Special Counsel will notfile a complaint with respect to such charge, the charging party, other than anofficer of the Immigration and Naturalization Service, may bring his or hercomplaint directly before an administrative law judge within 90 days after hisor her receipt of the Special Counsel's letter of determination. The chargingparty's complaint must be filed with an administrative law judge pursuant to theregulations issued by the Office of the Chief Administrative Hearing Officercodified at 28 CFR 68.1.</P> <P>(d) The Special Counsel's failure to file a complaint with respect to suchcharge, before an administrative law judge within 120 days shall not affect theright of the Special Counsel to continue to investigate the charge or to bring acomplaint before an administrative law judge during the additional 90-day periodas defined by paragraph (c) of this section.</P> <P>(e) The Special Counsel may seek to intervene at any time in any proceedingbrought by a charging party before an administrative law judge.</P> <CITA>[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by OrderNo. 1520-91, 56 FR 40249, Aug. 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 44.304</SECTNO> <SUBJECT>Special Counsel acting on own initiative.</SUBJECT> <P>(a) The Special Counsel may, on his or her own initiative, conductinvestigations respecting unfair immigration-related employment practices whenthere is reason to believe that a person or entity has engaged or is engaging insuch practices.</P> <P>(b) The Special Counsel may file a complaint with an administrative law judgewhere there is reasonable cause to believe that an unfair immigration-relatedemployment practice has occurred within 180 days from the date of the filing ofthe complaint.</P> </SECTION> <SECTION> <SECTNO>§ 44.305</SECTNO> <SUBJECT>Regional offices.</SUBJECT> <P>The Special Counsel, in consultation with the Attorney General, shallestablish such regional offices as may be necessary to carry out his or herduties.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 45</EAR> <HD SOURCE="HED">PART 45—EMPLOYEE RESPONSIBILITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>45.1</SECTNO> <SUBJECT>Cross-reference to ethical standards and financialdisclosure regulations.</SUBJECT> <SECTNO>45.2</SECTNO> <SUBJECT>Disqualification arising from personal or politicalrelationship.</SUBJECT> <SECTNO>45.3</SECTNO> <SUBJECT>Disciplinary proceedings under 18 U.S.C. 207(j).</SUBJECT> <SECTNO>45.4</SECTNO> <SUBJECT>Personal use of Government property.</SUBJECT> <SECTNO>45.10</SECTNO> <SUBJECT>Procedures to promote compliance with crime victims'rights obligations.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 7301; 18 U.S.C. 207, 3771; 28 U.S.C. 503,528; DOJ Order 1735.1.</P> </AUTH> <SECTION> <SECTNO>§ 45.1</SECTNO> <SUBJECT>Cross-reference to ethical standards and financial disclosureregulations.</SUBJECT> <P>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 Justiceregulations at 5 CFR part 3801 which supplement the executive branch-widestandards, the executive branch-wide financial disclosure regulations at 5 CFRpart 2634 and the executive branch-wide employee responsibilities and conductregulations at 5 CFR part 735.</P> <CITA>[61 FR 59815, Nov. 25, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 45.2</SECTNO> <SUBJECT>Disqualification arising from personal or political relationship.</SUBJECT> <P>(a) Unless authorized under paragraph (b) of this section, no employee <PRTPAGE P="13"/>shallparticipate in a criminal investigation or prosecution if he has a personal orpolitical relationship with:</P> <P>(1) Any person or organization substantially involved in the conduct that isthe subject of the investigation or prosecution; or</P> <P>(2) Any person or organization which he knows has a specific and substantialinterest that would be directly affected by the outcome of the investigation orprosecution.</P> <P>(b) An employee assigned to or otherwise participating in a criminalinvestigation or prosecution who believes that his participation may beprohibited by paragraph (a) of this section shall report the matter and allattendant facts and circumstances to his supervisor at the level of sectionchief or the equivalent or higher. If the supervisor determines that a personalor political relationship exists between the employee and a person ororganization described in paragraph (a) of this section, he shall relieve theemployee from participation unless he determines further, in writing, after fullconsideration of all the facts and circumstances, that:</P> <P>(1) The relationship will not have the effect of rendering the employee'sservice less than fully impartial and professional; and</P> <P>(2) The employee's participation would not create an appearance of a conflictof interest likely to affect the public perception of the integrity of theinvestigation or prosecution.</P> <P>(c) For the purposes of this section:</P> <P>(1) <E T="03">Political relationship</E> means a close identification with anelected official, a candidate (whether or not successful) for elective, publicoffice, a political party, or a campaign organization, arising from service as aprincipal adviser thereto or a principal official thereof; and</P> <P>(2) <E T="03">Personal relationship</E> means a close and substantialconnection of the type normally viewed as likely to induce partiality. Anemployee 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” mustbe judged on an individual basis with due regard given to the subjective opinionof the employee.</P> <P>(d) This section pertains to agency management and is not intended to createrights enforceable by private individuals or organizations.</P> <CITA>[Order No. 993-83, 48 FR 2319, Jan. 19, 1983. Redesignated at 61 FR59815, Nov. 25, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 45.3</SECTNO> <SUBJECT>Disciplinary proceedings under 18 U.S.C. 207(j).</SUBJECT> <P>(a) Upon a determination by the Assistant Attorney General in charge of theCriminal Division (Assistant Attorney General), after investigation, that thereis reasonable cause to believe that a former officer or employee, including aformer special Government employee, of the Department of Justice (formerdepartmental employee) has violated 18 U.S.C. 207 (a), (b) or (c), the AssistantAttorney General shall cause a copy of written charges of the violation(s) to beserved upon such individual, either personally or by registered mail. Thecharges shall be accompanied by a notice to the former departmental employee toshow cause within a specified time of not less than 30 days after receipt of thenotice why he or she should not be prohibited from engaging in representationalactivities in relation to matters pending in the Department of Justice, asauthorized by 18 U.S.C. 207(j), or subjected to other appropriate disciplinaryaction under that statute. The notice to show cause shall include:</P> <P>(1) A statement of allegations, and their basis, sufficiently detailed toenable the former departmental employee to prepare an adequate defense,</P> <P>(2) Notification of the right to a hearing, and</P> <P>(3) An explanation of the method by which a hearing may be requested.</P> <P>(b) If a former departmental employee who submits an answer to the notice toshow cause does not request a hearing or if the Assistant Attorney General doesnot receive an answer within five days after the expiration of the timeprescribed by the notice, the Assistant Attorney General shall forward therecord, including the report(s) of investigation, to the Attorney General. Inthe case of a failure to answer, such failure shall constitute a waiver ofdefense.<PRTPAGE P="14"/> </P> <P>(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 placethereof, giving due regard both to such person's need for an adequate period toprepare a suitable defense and an expeditious resolution of allegations that maybe damaging to his or her reputation.</P> <P>(d) The presiding officer at the hearing and any related proceedings shall bea federal administrative law judge or other federal official with comparableduties. He shall insure that the former departmental employee has, among others,the rights:</P> <P>(1) To self-representation or representation by counsel,</P> <P>(2) To introduce and examine witnesses and submit physical evidence,</P> <P>(3) To confront and cross-examine adverse witnesses,</P> <P>(4) To present oral argument, and</P> <P>(5) To a transcript or recording of the proceedings, upon request.</P> <P>(e) The Assistant Attorney General shall designate one or more officers oremployees of the Department of Justice to present the evidence against theformer departmental employee and perform other functions incident to theproceedings.</P> <P>(f) A decision adverse to the former departmental employee must be sustainedby substantial evidence that he violated 18 U.S.C. 207 (a), (b) or (c).</P> <P>(g) The presiding officer shall issue an initial decision based exclusivelyon the transcript of testimony and exhibits, together with all papers andrequests filed in the proceeding, and shall set forth in the decision findingsand conclusions, supported by reasons, on the material issues of fact and lawpresented on the record.</P> <P>(h) Within 30 days after issuance of the initial decision, either party mayappeal to the Attorney General, who in that event shall issue the final decisionbased on the record of the proceedings or those portions thereof cited by theparties to limit the issues. If the final decision modifies or reverses theinitial decision, the Attorney General shall specify the findings of fact andconclusions of law that vary from those of the presiding officer.</P> <P>(i) If a former departmental employee fails to appeal from an adverse initialdecision within the prescribed period of time, the presiding officer shallforward the record of the proceedings to the Attorney General.</P> <P>(j) In the case of a former departmental employee who filed an answer to thenotice to show cause but did not request a hearing, the Attorney General shallmake the final decision on the record submitted to him by the Assistant AttorneyGeneral pursuant to subsection (b) of this section.</P> <P>(k) The Attorney General, in a case where:</P> <P>(1) The defense has been waived,</P> <P>(2) The former departmental employee has failed to appeal from an adverseinitial decision, or</P> <P>(3) The Attorney General has issued a final decision that the formerdepartmental employee violated 18 U.S.C. 207 (a), (b) or (c),</P> <FP>may issue an order:</FP> <P>(i) Prohibiting the former departmental employee from making, on behalf ofany other person (except the United States), any informal or formal appearancebefore, 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 toexceed five years, or</P> <P>(ii) Prescribing other appropriate disciplinary action.</P> <P>(l) An order issued under either paragraph (k)(3) (i) or (ii) of this sectionmay be supplemented by a directive to officers and employees of the Departmentof Justice not to engage in conduct in relation to the former departmentalemployee that would contravene such order.</P> <CITA>[Order No. 889-80, 45 FR 31717, May 14, 1980. Redesignated at 61 FR59815, Nov. 25, 1996, and further redesignated at 62 FR 23943, May 2, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 45.4</SECTNO> <SUBJECT>Personal use of Government property.</SUBJECT> <P>(a) Employees may use Government property only for official business or asauthorized by the Government. See 5 CFR 2635.101(b)(9), 2635.704(a). Thefollowing uses of Government office and library equipment and facilities arehereby authorized:<PRTPAGE P="15"/> </P> <P>(1) Personal uses that involve only negligible expense (such as electricity,ink, small amounts of paper, and ordinary wear and tear); and</P> <P>(2) Limited personal telephone/fax calls to locations within the office'scommuting area, or that are charged to non-Government accounts.</P> <P>(b) The foregoing authorization does not override any statutes, rules, orregulations 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 telephoneservices), and may be revoked or limited at any time by any supervisor orcomponent for any business reason.</P> <P>(c) In using Government property, employees should be mindful of theirresponsibility to protect and conserve such property and to use official time inan honest effort to perform official duties. See 5 CFR 2635.101(b)(9),2635.704(a), 2635.705(a).</P> <CITA>[62 FR 23943, May 2, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 45.10</SECTNO> <SUBJECT>Procedures to promote compliance with crime victims' rightsobligations.</SUBJECT> <P>(a) <E T="03">Definitions.</E> The following definitions shall apply withrespect to this section, which implements the provisions of the Justice for AllAct that relate to protection of the rights of crime victims. <E T="03">See</E>18 U.S.C. 3771.</P> <P> <E T="03">Crime victim</E> means a person directly and proximately harmed asa result of the commission of a Federal offense or an offense in the District ofColumbia. In the case of a crime victim who is under 18 years of age,incompetent, incapacitated, or deceased, the legal guardians of the crime victimor the representatives of the crime victim's estate, family members, or anyother persons appointed as suitable by the court, may assume the crime victim'srights, but in no event shall the defendant be named as such guardian orrepresentative.</P> <P> <E T="03">Crime victims' rights</E> means those rights provided in 18 U.S.C.3771.</P> <P> <E T="03">Employee of the Department of Justice</E> means an attorney,investigator, law enforcement officer, or other personnel employed by anydivision or office of the Department of Justice whose regular course of dutiesincludes direct interaction with crime victims, not including a contractor.</P> <P> <E T="03">Office of the Department of Justice</E> means a component of theDepartment of Justice whose employees directly interact with crime victims inthe regular course of their duties.</P> <P>(b) The Attorney General shall designate an official within the ExecutiveOffice for United States Attorneys (EOUSA) to receive and investigate complaintsalleging the failure of Department of Justice employees to provide rights tocrime victims under 18 U.S.C. 3771. The official shall be called the Departmentof Justice Victims' Rights Ombudsman (VRO). The VRO shall then designate, inconsultation with each office of the Department of Justice, an official in eachoffice to serve as the initial point of contact (POC) for complainants.</P> <P>(c) <E T="03">Complaint process.</E> (1) Complaints must be submitted inwriting to the POC of the relevant office or offices of the Department ofJustice. If a complaint alleges a violation that would create a conflict ofinterest for the POC to investigate, the complaint shall be forwarded by the POCimmediately to the VRO.</P> <P>(2) Complaints shall contain, to the extent known to, or reasonably availableto, the victim, the following information:</P> <P>(i) The name and personal contact information of the crime victim whoallegedly was denied one or more crime victims' rights;</P> <P>(ii) The name and contact information of the Department of Justice employeewho is the subject of the complaint, or other identifying information if thecomplainant is not able to provide the name and contact information;</P> <P>(iii) The district court case number;</P> <P>(iv) The name of the defendant in the case;</P> <P>(v) The right or rights listed in 18 U.S.C. 3771 that the Department ofJustice employee is alleged to have violated; and</P> <P>(vi) Specific information regarding the circumstances of the allegedviolation sufficient to enable the POC to conduct an investigation, including, <PRTPAGE P="16"/>but not limited to: The date of the alleged violation; an explanation of how thealleged violation occurred; whether the complainant notified the Department ofJustice employee of the alleged violation; how and when such notification wasprovided to the Department of Justice employee; and actions taken by theDepartment of Justice employee in response to the notification.</P> <P>(3) Complaints must be submitted within 60 days of the victim's knowledge ofa violation, but not more than one year after the actual violation.</P> <P>(4)(i) In response to a complaint that provides the information requiredunder paragraph (c)(2) of this section and that contains specific and credibleinformation that demonstrates that one or more crime victims' rights listed in18 U.S.C. 3771 may have been violated by a Department of Justice employee oroffice, the POC shall investigate the allegation(s) in the complaint within areasonable period of time.</P> <P>(ii) The POC shall report the results of the investigation to the VRO.</P> <P>(5) Upon receipt of the POC's report of the investigation, the VRO shalldetermine whether to close the complaint without further action, whether furtherinvestigation is warranted, or whether action in accordance with paragraphs (d)or (e) of this section is necessary.</P> <P>(6) Where the VRO concludes that further investigation is warranted, he mayconduct such further investigation. Upon conclusion of the investigation, theVRO may close the complaint if he determines that no further action is warrantedor may take action under paragraph (d) or (e) of this section.</P> <P>(7) The VRO shall be the final arbiter of the complaint.</P> <P>(8) A complainant may not seek judicial review of the VRO's determinationregarding the complaint.</P> <P>(9) To the extent permissible in accordance with the Privacy Act and otherrelevant statutes and regulations regarding release of information by theFederal government, the VRO, in his discretion, may notify the complainant ofthe result of the investigation.</P> <P>(10) The POC and the VRO shall refer to the Office of the Inspector Generaland to the Office of Professional Responsibility any matters that fall underthose offices' respective jurisdictions that come to light in an investigation.</P> <P>(d) If the VRO finds that an employee or office of the Department of Justicehas failed to provide a victim with a right to which the victim is entitledunder 18 U.S.C. 3771, but not in a willful or wanton manner, he shall requiresuch employee or office of the Department of Justice to undergo training onvictims' rights.</P> <P>(e) <E T="03">Disciplinary procedures.</E> (1) If, based on theinvestigation, the VRO determines that a Department of Justice employee haswantonly or willfully failed to provide the complainant with a right listed in18 U.S.C. 3771, the VRO shall recommend, in conformity with laws and regulationsregarding employee discipline, a range of disciplinary sanctions to the head ofthe office of the Department of Justice in which the employee is located, or tothe official who has been designated by Department of Justice regulations andprocedures to take action on disciplinary matters for that office. The head ofthat office of the Department of Justice, or the other official designated byDepartment of Justice regulations and procedures to take action on disciplinarymatters for that office, shall be the final decision-maker regarding thedisciplinary sanction to be imposed, in accordance with applicable laws andregulations.</P> <P>(2) Disciplinary sanctions available under paragraph (e)(1) of this sectioninclude all sanctions provided under the Department of Justice Human ResourcesOrder, 1200.1.</P> <CITA>[70 FR 69653, Nov. 17, 2005]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 46</EAR> <HD SOURCE="HED">PART 46—PROTECTION OF HUMAN SUBJECTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>46.101</SECTNO> <SUBJECT>To what does this policy apply?</SUBJECT> <SECTNO>46.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>46.103</SECTNO> <SUBJECT>Assuring compliance with this policy—researchconducted or supported by any Federal Department or Agency.</SUBJECT> <SECTNO>46.104-46.106</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>46.107</SECTNO> <SUBJECT>IRB Membership.</SUBJECT> <SECTNO>46.108</SECTNO> <SUBJECT>IRB functions and operations.</SUBJECT> <SECTNO>46.109</SECTNO> <SUBJECT>IRB review of research.<PRTPAGE P="17"/> </SUBJECT> <SECTNO>46.110</SECTNO> <SUBJECT>Expedited review procedures for certain kinds of researchinvolving no more than minimal risk, and for minor changes in approved research.</SUBJECT> <SECTNO>46.111</SECTNO> <SUBJECT>Criteria for IRB approval of research.</SUBJECT> <SECTNO>46.112</SECTNO> <SUBJECT>Review by institution.</SUBJECT> <SECTNO>46.113</SECTNO> <SUBJECT>Suspension or termination of IRB approval of research.</SUBJECT> <SECTNO>46.114</SECTNO> <SUBJECT>Cooperative research.</SUBJECT> <SECTNO>46.115</SECTNO> <SUBJECT>IRB records.</SUBJECT> <SECTNO>46.116</SECTNO> <SUBJECT>General requirements for informed consent.</SUBJECT> <SECTNO>46.117</SECTNO> <SUBJECT>Documentation of informed consent.</SUBJECT> <SECTNO>46.118</SECTNO> <SUBJECT>Applications and proposals lacking definite plans forinvolvement of human subjects.</SUBJECT> <SECTNO>46.119</SECTNO> <SUBJECT>Research undertaken without the intention of involvinghuman subjects.</SUBJECT> <SECTNO>46.120</SECTNO> <SUBJECT>Evaluation and disposition of applications and proposalsfor research to be conducted or supported by a Federal Department or Agency.</SUBJECT> <SECTNO>46.121</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>46.122</SECTNO> <SUBJECT>Use of Federal funds.</SUBJECT> <SECTNO>46.123</SECTNO> <SUBJECT>Early termination of research support: Evaluation ofapplications and proposals.</SUBJECT> <SECTNO>46.124</SECTNO> <SUBJECT>Conditions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 28 U.S.C. 509-510; 42 U.S.C.300v-1(b).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 28012, 28020, June 18, 1991, unless otherwisenoted.</P> </SOURCE> <SECTION> <SECTNO>§ 46.101</SECTNO> <SUBJECT>To what does this policy apply?</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this policy appliesto all research involving human subjects conducted, supported or otherwisesubject to regulation by any federal department or agency which takesappropriate administrative action to make the policy applicable to suchresearch. This includes research conducted by federal civilian employees ormilitary personnel, except that each department or agency head may adopt suchprocedural modifications as may be appropriate from an administrativestandpoint. It also includes research conducted, supported, or otherwise subjectto regulation by the federal government outside the United States.</P> <P>(1) Research that is conducted or supported by a federal department oragency, whether or not it is regulated as defined in § 46.102(e),must comply with all sections of this policy.</P> <P>(2) Research that is neither conducted nor supported by a federal departmentor agency but is subject to regulation as defined in § 46.102(e) mustbe reviewed and approved, in compliance with § 46.101,§ 46.102, and § 46.107 through § 46.117 of thispolicy, by an institutional review board (IRB) that operates in accordance withthe pertinent requirements of this policy.</P> <P>(b) Unless otherwise required by department or agency heads, researchactivities in which the only involvement of human subjects will be in one ormore of the following categories are exempt from this policy:</P> <P>(1) Research conducted in established or commonly accepted educationalsettings, involving normal educational practices, such as (i) research onregular and special education instructional strategies, or (ii) research on theeffectiveness of or the comparison among instructional techniques, curricula, orclassroom management methods.</P> <P>(2) Research involving the use of educational tests (cognitive, diagnostic,aptitude, achievement), survey procedures, interview procedures or observationof public behavior, unless:</P> <P>(i) Information obtained is recorded in such a manner that human subjects canbe identified, directly or through identifiers linked to the subjects; and</P> <P>(ii) Any disclosure of the human subjects' responses outside the researchcould reasonably place the subjects at risk of criminal or civil liability or bedamaging to the subjects' financial standing, employability, or reputation.</P> <P>(3) Research involving the use of educational tests (cognitive, diagnostic,aptitude, achievement), survey procedures, interview procedures, or observationof public behavior that is not exempt under paragraph (b)(2) of this section,if:</P> <P>(i) The human subjects are elected or appointed public officials orcandidates for public office; or</P> <P>(ii) Federal statute(s) require(s) without exception that the confidentialityof the personally identifiable information will be maintained throughout theresearch and thereafter.</P> <P>(4) Research, involving the collection or study of existing data, documents,records, pathological specimens, or diagnostic specimens, if these sources arepublicly available or if the information is recorded by the investigator in such <PRTPAGE P="18"/>a manner that subjects cannot be identified, directly or through identifierslinked to the subjects.</P> <P>(5) Research and demonstration projects which are conducted by or subject tothe approval of department or agency heads, and which are designed to study,evaluate, or otherwise examine:</P> <P>(i) Public benefit or service programs;</P> <P>(ii) Procedures for obtaining benefits or services under those programs;</P> <P>(iii) Possible changes in or alternatives to those programs or procedures; or</P> <P>(iv) Possible changes in methods or levels of payment for benefits orservices under those programs.</P> <P>(6) Taste and food quality evaluation and consumer acceptance studies,</P> <P>(i) If wholesome foods without additives are consumed or</P> <P>(ii) If a food is consumed that contains a food ingredient at or below thelevel and for a use found to be safe, or agricultural chemical or environmentalcontaminant at or below the level found to be safe, by the Food and DrugAdministration or approved by the Environmental Protection Agency or the FoodSafety and Inspection Service of the U.S. Department of Agriculture.</P> <P>(c) Department or agency heads retain final judgment as to whether aparticular activity is covered by this policy.</P> <P>(d) Department or agency heads may require that specific research activitiesor classes of research activities conducted, supported, or otherwise subject toregulation by the department or agency but not otherwise covered by this policy,comply with some or all of the requirements of this policy.</P> <P>(e) Compliance with this policy requires compliance with pertinent federallaws or regulations which provide additional protections for human subjects.</P> <P>(f) This policy does not affect any state or local laws or regulations whichmay otherwise be applicable and which provide additional protections for humansubjects.</P> <P>(g) This policy does not affect any foreign laws or regulations which mayotherwise be applicable and which provide additional protections to humansubjects of research.</P> <P>(h) When research covered by this policy takes place in foreign countries,procedures normally followed in the foreign countries to protect human subjectsmay differ from those set forth in this policy. (An example is a foreigninstitution which complies with guidelines consistent with the World MedicalAssembly Declaration (Declaration of Helsinki amended 1989) issued either bysovereign states or by an organization whose function for the protection ofhuman research subjects is internationally recognized.) In these circumstances,if a department or agency head determines that the procedures prescribed by theinstitution afford protections that are at least equivalent to those provided inthis policy, the department or agency head may approve the substitution of theforeign procedures in lieu of the procedural requirements provided in thispolicy. Except when otherwise required by statute, Executive Order, or thedepartment or agency head, notices of these actions as they occur will bepublished in the <E T="04">Federal Register</E> or will be otherwise publishedas provided in department or agency procedures.</P> <P>(i) Unless otherwise required by law, department or agency heads may waivethe applicability of some or all of the provisions of this policy to specificresearch activities or classes of research activities otherwise covered by thispolicy. Except when otherwise required by statute or Executive Order, thedepartment or agency head shall forward advance notices of these actions to theOffice for Human Research Protections, Department of Health and Human Services(HHS), or any successor office, and shall also publish them in the <E T="04">Federal Register</E> or in such other manner as provided in department oragency procedures.<SU>1</SU> <FTREF/> </P> <FTNT> <P> <SU>1</SU> Institutions with HHS-approved assurances on file willabide by provisions of title 45 CFR part 46 subparts A-D. Some of theother Departments and Agencies have incorporated all provisions of title 45 CFRpart 46 into their policies and procedures as well. However, the exemptions at45 CFR 46.101(b) <PRTPAGE/>do not apply to research involving prisoners, subpart C. Theexemption at 45 CFR 46.101(b)(2), for research involving survey or interviewprocedures or observation of public behavior, does not apply to research withchildren, subpart D, except for research involving observations of publicbehavior when the investigator(s) do not participate in the activities beingobserved.</P> </FTNT> <CITA>[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991, asamended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <PRTPAGE P="19"/> <SECTNO>§ 46.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Department or agency head</E> means the head of any federaldepartment or agency and any other officer or employee of any department oragency to whom authority has been delegated.</P> <P>(b) <E T="03">Institution</E> means any public or private entity or agency(including federal, state, and other agencies).</P> <P>(c) <E T="03">Legally authorized representative</E> means an individual orjudicial or other body authorized under applicable law to consent on behalf of aprospective subject to the subject's participation in the procedure(s) involvedin the research.</P> <P>(d) <E T="03">Research</E> means a systematic investigation, includingresearch development, testing and evaluation, designed to develop or contributeto generalizable knowledge. Activities which meet this definition constituteresearch for purposes of this policy, whether or not they are conducted orsupported under a program which is considered research for other purposes. Forexample, some demonstration and service programs may include researchactivities.</P> <P>(e) <E T="03">Research subject to regulation,</E> and similar terms areintended to encompass those research activities for which a federal departmentor agency has specific responsibility for regulating as a research activity,(for example, Investigational New Drug requirements administered by the Food andDrug Administration). It does not include research activities which areincidentally regulated by a federal department or agency solely as part of thedepartment's or agency's broader responsibility to regulate certain types ofactivities whether research or non-research in nature (for example, Wage andHour requirements administered by the Department of Labor).</P> <P>(f) <E T="03">Human subject</E> means a living individual about whom aninvestigator (whether professional or student) conducting research obtains</P> <P>(1) Data through intervention or interaction with the individual, or</P> <P>(2) Identifiable private information.</P> <FP> <E T="03">Intervention</E> includes both physical procedures by which dataare gathered (for example, venipuncture) and manipulations of the subject or thesubject's environment that are performed for research purposes. Interactionincludes communication or interpersonal contact between investigator andsubject. <E T="03">Private information</E> includes information about behaviorthat occurs in a context in which an individual can reasonably expect that noobservation or recording is taking place, and information which has beenprovided for specific purposes by an individual and which the individual canreasonably expect will not be made public (for example, a medical record).Private information must be individually identifiable (i.e., the identity of thesubject is or may readily be ascertained by the investigator or associated withthe information) in order for obtaining the information to constitute researchinvolving human subjects.</FP> <P>(g) <E T="03">IRB</E> means an institutional review board established inaccord with and for the purposes expressed in this policy.</P> <P>(h) <E T="03">IRB approval</E> means the determination of the IRB that theresearch has been reviewed and may be conducted at an institution within theconstraints set forth by the IRB and by other institutional and federalrequirements.</P> <P>(i) <E T="03">Minimal risk</E> means that the probability and magnitude ofharm or discomfort anticipated in the research are not greater in and ofthemselves than those ordinarily encountered in daily life or during theperformance of routine physical or psychological examinations or tests.</P> <P>(j) <E T="03">Certification</E> means the official notification by theinstitution to the supporting department or agency, in accordance with therequirements of this policy, that a research project or activity involving humansubjects has been reviewed and approved by an IRB in accordance with an approvedassurance.</P> </SECTION> <SECTION> <PRTPAGE P="20"/> <SECTNO>§ 46.103</SECTNO> <SUBJECT>Assuring compliance with this policy—research conducted orsupported by any Federal Department or Agency.</SUBJECT> <P>(a) Each institution engaged in research which is covered by this policy andwhich is conducted or supported by a federal department or agency shall providewritten assurance satisfactory to the department or agency head that it willcomply with the requirements set forth in this policy. In lieu of requiringsubmission of an assurance, individual department or agency heads shall acceptthe existence of a current assurance, appropriate for the research in question,on file with the Office for Human Research Protections, HHS, or any successoroffice, and approved for federalwide use by that office. When the existence ofan HHS-approved assurance is accepted in lieu of requiring submission of anassurance, reports (except certification) required by this policy to be made todepartment and agency heads shall also be made to the Office for Human ResearchProtections, HHS, or any successor office.</P> <P>(b) Departments and agencies will conduct or support research covered by thispolicy only if the institution has an assurance approved as provided in thissection, and only if the institution has certified to the department or agencyhead that the research has been reviewed and approved by an IRB provided for inthe assurance, and will be subject to continuing review by the IRB. Assurancesapplicable to federally supported or conducted research shall at a minimuminclude:</P> <P>(1) A statement of principles governing the institution in the discharge ofits responsibilities for protecting the rights and welfare of human subjects ofresearch conducted at or sponsored by the institution, regardless of whether theresearch is subject to federal regulation. This may include an appropriateexisting code, declaration, or statement of ethical principles, or a statementformulated by the institution itself. This requirement does not preemptprovisions of this policy applicable to department- or agency-supported orregulated research and need not be applicable to any research exempted or waivedunder § 46.101 (b) or (i).</P> <P>(2) Designation of one or more IRBs established in accordance with therequirements of this policy, and for which provisions are made for meeting spaceand sufficient staff to support the IRB's review and recordkeeping duties.</P> <P>(3) A list of IRB members identified by name; earned degrees; representativecapacity; indications of experience such as board certifications, licenses,etc., sufficient to describe each member's chief anticipated contributions toIRB deliberations; and any employment or other relationship between each memberand the institution; for example: full-time employee, part-time employee, memberof governing panel or board, stockholder, paid or unpaid consultant. Changes inIRB membership shall be reported to the department or agency head, unless inaccord with § 46.103(a) of this policy, the existence of an HHS-approved assurance is accepted. In this case, change in IRB membership shall bereported to the Office for Human Research Protections, HHS, or any successoroffice.</P> <P>(4) Written procedures which the IRB will follow (i) for conducting itsinitial and continuing review of research and for reporting its findings andactions to the investigator and the institution; (ii) for determining whichprojects require review more often than annually and which projects needverification from sources other than the investigators that no material changeshave occurred since previous IRB review; and (iii) for ensuring prompt reportingto the IRB of proposed changes in a research activity, and for ensuring thatsuch changes in approved research, during the period for which IRB approval hasalready been given, may not be initiated without IRB review and approval exceptwhen necessary to eliminate apparent immediate hazards to the subject.</P> <P>(5) Written procedures for ensuring prompt reporting to the IRB, appropriateinstitutional officials, and the department or agency head of (i) anyunanticipated problems involving risks to subjects or others or any serious orcontinuing noncompliance with this <PRTPAGE P="21"/>policy or the requirements or determinationsof the IRB and (ii) any suspension or termination of IRB approval.</P> <P>(c) The assurance shall be executed by an individual authorized to act forthe institution and to assume on behalf of the institution the obligationsimposed by this policy and shall be filed in such form and manner as thedepartment or agency head prescribes.</P> <P>(d) The department or agency head will evaluate all assurances submitted inaccordance with this policy through such officers and employees of thedepartment or agency and such experts or consultants engaged for this purpose asthe department or agency head determines to be appropriate. The department oragency head's evaluation will take into consideration the adequacy of theproposed IRB in light of the anticipated scope of the institution's researchactivities and the types of subject populations likely to be involved, theappropriateness of the proposed initial and continuing review procedures inlight of the probable risks, and the size and complexity of the institution.</P> <P>(e) On the basis of this evaluation, the department or agency head mayapprove or disapprove the assurance, or enter into negotiations to develop anapprovable one. The department or agency head may limit the period during whichany particular approved assurance or class of approved assurances shall remaineffective or otherwise condition or restrict approval.</P> <P>(f) Certification is required when the research is supported by a federaldepartment or agency and not otherwise exempted or waived under§ 46.101 (b) or (i). An institution with an approved assurance shallcertify that each application or proposal for research covered by the assuranceand by § 46.103 of this Policy has been reviewed and approved by theIRB. Such certification must be submitted with the application or proposal or bysuch later date as may be prescribed by the department or agency to which theapplication or proposal is submitted. Under no condition shall research coveredby § 46.103 of the Policy be supported prior to receipt of thecertification that the research has been reviewed and approved by the IRB.Institutions without an approved assurance covering the research shall certifywithin 30 days after receipt of a request for such a certification from thedepartment or agency, that the application or proposal has been approved by theIRB. If the certification is not submitted within these time limits, theapplication or proposal may be returned to the institution.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number0990-0260)</APPRO> <CITA>[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991, asamended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§§ 46.104-46.106</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 46.107</SECTNO> <SUBJECT>IRB membership.</SUBJECT> <P>(a) Each IRB shall have at least five members, with varying backgrounds topromote complete and adequate review of research activities commonly conductedby the institution. The IRB shall be sufficiently qualified through theexperience and expertise of its members, and the diversity of the members,including consideration of race, gender, and cultural backgrounds andsensitivity to such issues as community attitudes, to promote respect for itsadvice and counsel in safeguarding the rights and welfare of human subjects. Inaddition to possessing the professional competence necessary to review specificresearch activities, the IRB shall be able to ascertain the acceptability ofproposed research in terms of institutional commitments and regulations,applicable law, and standards of professional conduct and practice. The IRBshall therefore include persons knowledgeable in these areas. If an IRBregularly reviews research that involves a vulnerable category of subjects, suchas children, prisoners, pregnant women, or handicapped or mentally disabledpersons, consideration shall be given to the inclusion of one or moreindividuals who are knowledgeable about and experienced in working with thesesubjects.</P> <P>(b) Every nondiscriminatory effort will be made to ensure that no IRBconsists entirely of men or entirely of women, including the institution'sconsideration of qualified persons of both sexes, so long as no selection ismade to the IRB on the basis of gender. No <PRTPAGE P="22"/>IRB may consist entirely of membersof one profession.</P> <P>(c) Each IRB shall include at least one member whose primary concerns are inscientific areas and at least one member whose primary concerns are innonscientific areas.</P> <P>(d) Each IRB shall include at least one member who is not otherwiseaffiliated with the institution and who is not part of the immediate family of aperson who is affiliated with the institution.</P> <P>(e) No IRB may have a member participate in the IRB's initial or continuingreview of any project in which the member has a conflicting interest, except toprovide information requested by the IRB.</P> <P>(f) An IRB may, in its discretion, invite individuals with competence inspecial areas to assist in the review of issues which require expertise beyondor in addition to that available on the IRB. These individuals may not vote withthe IRB.</P> </SECTION> <SECTION> <SECTNO>§ 46.108</SECTNO> <SUBJECT>IRB functions and operations.</SUBJECT> <P>In order to fulfill the requirements of this policy each IRB shall:</P> <P>(a) Follow written procedures in the same detail as described in§ 46.103(b)(4) and, to the extent required by,§ 46.103(b)(5).</P> <P>(b) Except when an expedited review procedure is used (see§ 46.110), review proposed research at convened meetings at which amajority of the members of the IRB are present, including at least one memberwhose primary concerns are in nonscientific areas. In order for the research tobe approved, it shall receive the approval of a majority of those memberspresent at the meeting.</P> </SECTION> <SECTION> <SECTNO>§ 46.109</SECTNO> <SUBJECT>IRB review of research.</SUBJECT> <P>(a) An IRB shall review and have authority to approve, require modificationsin (to secure approval), or disapprove all research activities covered by thispolicy.</P> <P>(b) An IRB shall require that information given to subjects as part ofinformed consent is in accordance with § 46.116. The IRB may requirethat information, in addition to that specifically mentioned in§ 46.116, be given to the subjects when in the IRB's judgment theinformation would meaningfully add to the protection of the rights and welfareof subjects.</P> <P>(c) An IRB shall require documentation of informed consent or may waivedocumentation in accordance with § 46.117.</P> <P>(d) An IRB shall notify investigators and the institution in writing of itsdecision to approve or disapprove the proposed research activity, or ofmodifications required to secure IRB approval of the research activity. If theIRB decides to disapprove a research activity, it shall include in its writtennotification a statement of the reasons for its decision and give theinvestigator an opportunity to respond in person or in writing.</P> <P>(e) An IRB shall conduct continuing review of research covered by this policyat 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 consentprocess and the research.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number0990-0260)</APPRO> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23,2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.110</SECTNO> <SUBJECT>Expedited review procedures for certain kinds of research involving nomore than minimal risk, and for minor changes in approved research.</SUBJECT> <P>(a) The Secretary, HHS, has established, and published as a Notice in the <E T="04">Federal Register,</E> a list of categories of research that may bereviewed by the IRB through an expedited review procedure. The list will beamended, as appropriate after consultation with other departments and agencies,through periodic republication by the Secretary, HHS, in the <E T="04">FederalRegister.</E> A copy of the list is available from the Office for Human ResearchProtections, HHS, or any successor office.</P> <P>(b) An IRB may use the expedited review procedure to review either or both ofthe following:</P> <P>(1) Some or all of the research appearing on the list and found by thereviewer(s) to involve no more than minimal risk,</P> <P>(2) Minor changes in previously approved research during the period (of <PRTPAGE P="23"/>oneyear or less) for which approval is authorized.</P> <FP>Under an expedited review procedure, the review may be carried out by theIRB chairperson or by one or more experienced reviewers designated by thechairperson from among members of the IRB. In reviewing the research, thereviewers may exercise all of the authorities of the IRB except that thereviewers may not disapprove the research. A research activity may bedisapproved only after review in accordance with the non-expedited procedure setforth in § 46.108(b).</FP> <P>(c) Each IRB which uses an expedited review procedure shall adopt a methodfor keeping all members advised of research proposals which have been approvedunder the procedure.</P> <P>(d) The department or agency head may restrict, suspend, terminate, or choosenot to authorize an institution's or IRB's use of the expedited reviewprocedure.</P> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23,2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.111</SECTNO> <SUBJECT>Criteria for IRB approval of research.</SUBJECT> <P>(a) In order to approve research covered by this policy the IRB shalldetermine that all of the following requirements are satisfied:</P> <P>(1) Risks to subjects are minimized: (i) By using procedures which areconsistent with sound research design and which do not unnecessarily exposesubjects to risk, and (ii) whenever appropriate, by using procedures alreadybeing performed on the subjects for diagnostic or treatment purposes.</P> <P>(2) Risks to subjects are reasonable in relation to anticipated benefits, ifany, to subjects, and the importance of the knowledge that may reasonably beexpected to result. In evaluating risks and benefits, the IRB should consideronly those risks and benefits that may result from the research (asdistinguished from risks and benefits of therapies subjects would receive evenif not participating in the research). The IRB should not consider possiblelong-range effects of applying knowledge gained in the research (for example,the possible effects of the research on public policy) as among those researchrisks that fall within the purview of its responsibility.</P> <P>(3) Selection of subjects is equitable. In making this assessment the IRBshould take into account the purposes of the research and the setting in whichthe research will be conducted and should be particularly cognizant of thespecial problems of research involving vulnerable populations, such as children,prisoners, pregnant women, mentally disabled persons, or economically oreducationally disadvantaged persons.</P> <P>(4) Informed consent will be sought from each prospective subject or thesubject's legally authorized representative, in accordance with, and to theextent required by § 46.116.</P> <P>(5) Informed consent will be appropriately documented, in accordance with,and to the extent required by § 46.117.</P> <P>(6) When appropriate, the research plan makes adequate provision formonitoring the data collected to ensure the safety of subjects.</P> <P>(7) When appropriate, there are adequate provisions to protect the privacy ofsubjects and to maintain the confidentiality of data.</P> <P>(b) When some or all of the subjects are likely to be vulnerable to coercionor undue influence, such as children, prisoners, pregnant women, mentallydisabled persons, or economically or educationally disadvantaged persons,additional safeguards have been included in the study to protect the rights andwelfare of these subjects.</P> </SECTION> <SECTION> <SECTNO>§ 46.112</SECTNO> <SUBJECT>Review by institution.</SUBJECT> <P>Research covered by this policy that has been approved by an IRB may besubject to further appropriate review and approval or disapproval by officialsof the institution. However, those officials may not approve the research if ithas not been approved by an IRB.</P> </SECTION> <SECTION> <SECTNO>§ 46.113</SECTNO> <SUBJECT>Suspension or termination of IRB approval of research.</SUBJECT> <P>An IRB shall have authority to suspend or terminate approval of research thatis not being conducted in accordance with the IRB's requirements or that hasbeen associated with unexpected serious harm to subjects. Any suspension ortermination of approval <PRTPAGE P="24"/>shall include a statement of the reasons for the IRB'saction and shall be reported promptly to the investigator, appropriateinstitutional officials, and the department or agency head.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number0990-0260)</APPRO> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23,2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.114</SECTNO> <SUBJECT>Cooperative research.</SUBJECT> <P>Cooperative research projects are those projects covered by this policy whichinvolve more than one institution. In the conduct of cooperative researchprojects, each institution is responsible for safeguarding the rights andwelfare of human subjects and for complying with this policy. With the approvalof the department or agency head, an institution participating in a cooperativeproject may enter into a joint review arrangement, rely upon the review ofanother qualified IRB, or make similar arrangements for avoiding duplication ofeffort.</P> </SECTION> <SECTION> <SECTNO>§ 46.115</SECTNO> <SUBJECT>IRB records.</SUBJECT> <P>(a) An institution, or when appropriate an IRB, shall prepare and maintainadequate documentation of IRB activities, including the following:</P> <P>(1) Copies of all research proposals reviewed, scientific evaluations, ifany, that accompany the proposals, approved sample consent documents, progressreports submitted by investigators, and reports of injuries to subjects.</P> <P>(2) Minutes of IRB meetings which shall be in sufficient detail to showattendance at the meetings; actions taken by the IRB; the vote on these actionsincluding the number of members voting for, against, and abstaining; the basisfor requiring changes in or disapproving research; and a written summary of thediscussion of controverted issues and their resolution.</P> <P>(3) Records of continuing review activities.</P> <P>(4) Copies of all correspondence between the IRB and the investigators.</P> <P>(5) A list of IRB members in the same detail as described is§ 46.103(b)(3).</P> <P>(6) Written procedures for the IRB in the same detail as described in§ 46.103(b)(4) and § 46.103(b)(5).</P> <P>(7) Statements of significant new findings provided to subjects, as requiredby § 46.116(b)(5).</P> <P>(b) The records required by this policy shall be retained for at least 3years, and records relating to research which is conducted shall be retained forat least 3 years after completion of the research. All records shall beaccessible for inspection and copying by authorized representatives of thedepartment or agency at reasonable times and in a reasonable manner.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number0990-0260)</APPRO> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23,2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.116</SECTNO> <SUBJECT>General requirements for informed consent.</SUBJECT> <P>Except as provided elsewhere in this policy, no investigator may involve ahuman being as a subject in research covered by this policy unless theinvestigator has obtained the legally effective informed consent of the subjector the subject's legally authorized representative. An investigator shall seeksuch consent only under circumstances that provide the prospective subject orthe representative sufficient opportunity to consider whether or not toparticipate and that minimize the possibility of coercion or undue influence.The information that is given to the subject or the representative shall be inlanguage understandable to the subject or the representative. No informedconsent, whether oral or written, may include any exculpatory language throughwhich the subject or the representative is made to waive or appear to waive anyof the subject's legal rights, or releases or appears to release theinvestigator, the sponsor, the institution or its agents from liability fornegligence.</P> <P>(a) Basic elements of informed consent. Except as provided in paragraph (c)or (d) of this section, in seeking informed consent the following informationshall be provided to each subject:</P> <P>(1) A statement that the study involves research, an explanation of thepurposes of the research and the expected duration of the subject'sparticipation, a description of the procedures to be followed, andidentification of <PRTPAGE P="25"/>any procedures which are experimental;</P> <P>(2) A description of any reasonably foreseeable risks or discomforts to thesubject;</P> <P>(3) A description of any benefits to the subject or to others which mayreasonably be expected from the research;</P> <P>(4) A disclosure of appropriate alternative procedures or courses oftreatment, if any, that might be advantageous to the subject;</P> <P>(5) A statement describing the extent, if any, to which confidentiality ofrecords identifying the subject will be maintained;</P> <P>(6) For research involving more than minimal risk, an explanation as towhether any compensation and an explanation as to whether any medical treatmentsare available if injury occurs and, if so, what they consist of, or wherefurther information may be obtained;</P> <P>(7) An explanation of whom to contact for answers to pertinent questionsabout the research and research subjects' rights, and whom to contact in theevent of a research-related injury to the subject; and</P> <P>(8) A statement that participation is voluntary, refusal to participate willinvolve no penalty or loss of benefits to which the subject is otherwiseentitled, and the subject may discontinue participation at any time withoutpenalty or loss of benefits to which the subject is otherwise entitled.</P> <P>(b) Additional elements of informed consent. When appropriate, one or more ofthe following elements of information shall also be provided to each subject:</P> <P>(1) A statement that the particular treatment or procedure may involve risksto the subject (or to the embryo or fetus, if the subject is or may becomepregnant) which are currently unforeseeable;</P> <P>(2) Anticipated circumstances under which the subject's participation may beterminated by the investigator without regard to the subject's consent;</P> <P>(3) Any additional costs to the subject that may result from participation inthe research;</P> <P>(4) The consequences of a subject's decision to withdraw from the researchand procedures for orderly termination of participation by the subject;</P> <P>(5) A statement that significant new findings developed during the course ofthe research which may relate to the subject's willingness to continueparticipation will be provided to the subject; and</P> <P>(6) The approximate number of subjects involved in the study.</P> <P>(c) An IRB may approve a consent procedure which does not include, or whichalters, some or all of the elements of informed consent set forth above, orwaive the requirement to obtain informed consent provided the IRB finds anddocuments that:</P> <P>(1) The research or demonstration project is to be conducted by or subject tothe approval of state or local government officials and is designed to study,evaluate, or otherwise examine:</P> <P>(i) Public benefit of service programs;</P> <P>(ii) Procedures for obtaining benefits or services under those programs;</P> <P>(iii) Possible changes in or alternatives to those programs or procedures; or</P> <P>(iv) Possible changes in methods or levels of payment for benefits orservices under those programs; and</P> <P>(2) The research could not practicably be carried out without the waiver oralteration.</P> <P>(d) An IRB may approve a consent procedure which does not include, or whichalters, some or all of the elements of informed consent set forth in thissection, or waive the requirements to obtain informed consent provided the IRBfinds and documents that:</P> <P>(1) The research involves no more than minimal risk to the subjects;</P> <P>(2) The waiver or alteration will not adversely affect the rights and welfareof the subjects;</P> <P>(3) The research could not practicably be carried out without the waiver oralteration; and</P> <P>(4) Whenever appropriate, the subjects will be provided with additionalpertinent information after participation.</P> <P>(e) The informed consent requirements in this policy are not intended topreempt any applicable federal, state, or local laws which require additionalinformation to be disclosed in <PRTPAGE P="26"/>order for informed consent to be legallyeffective.</P> <P>(f) Nothing in this policy is intended to limit the authority of a physicianto provide emergency medical care, to the extent the physician is permitted todo so under applicable federal, state, or local law.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number0990-0260)</APPRO> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23,2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.117</SECTNO> <SUBJECT>Documentation of informed consent.</SUBJECT> <P>(a) Except as provided in paragraph (c) of this section, informed consentshall be documented by the use of a written consent form approved by the IRB andsigned by the subject or the subject's legally authorized representative. A copyshall be given to the person signing the form.</P> <P>(b) Except as provided in paragraph (c) of this section, the consent form maybe either of the following:</P> <P>(1) A written consent document that embodies the elements of informed consentrequired by § 46.116. This form may be read to the subject or thesubject's legally authorized representative, but in any event, the investigatorshall give either the subject or the representative adequate opportunity to readit before it is signed; or</P> <P>(2) A short form written consent document stating that the elements ofinformed consent required by § 46.116 have been presented orally tothe subject or the subject's legally authorized representative. When this methodis used, there shall be a witness to the oral presentation. Also, the IRB shallapprove a written summary of what is to be said to the subject or therepresentative. Only the short form itself is to be signed by the subject or therepresentative. However, the witness shall sign both the short form and a copyof the summary, and the person actually obtaining consent shall sign a copy ofthe summary. A copy of the summary shall be given to the subject or therepresentative, in addition to a copy of the short form.</P> <P>(c) An IRB may waive the requirement for the investigator to obtain a signedconsent form for some or all subjects if it finds either:</P> <P>(1) That the only record linking the subject and the research would be theconsent document and the principal risk would be potential harm resulting from abreach of confidentiality. Each subject will be asked whether the subject wantsdocumentation linking the subject with the research, and the subject's wisheswill govern; or</P> <P>(2) That the research presents no more than minimal risk of harm to subjectsand involves no procedures for which written consent is normally requiredoutside of the research context.</P> <FP>In cases in which the documentation requirement is waived, the IRB mayrequire the investigator to provide subjects with a written statement regardingthe research.</FP> <APPRO>(Approved by the Office of Management and Budget under Control Number0990-0260)</APPRO> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23,2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.118</SECTNO> <SUBJECT>Applications and proposals lacking definite plans for involvement ofhuman subjects.</SUBJECT> <P>Certain types of applications for grants, cooperative agreements, orcontracts are submitted to departments or agencies with the knowledge thatsubjects may be involved within the period of support, but definite plans wouldnot normally be set forth in the application or proposal. These includeactivities such as institutional type grants when selection of specific projectsis the institution's responsibility; research training grants in which theactivities involving subjects remain to be selected; and projects in which humansubjects' involvement will depend upon completion of instruments, prior animalstudies, or purification of compounds. These applications need not be reviewedby an IRB before an award may be made. However, except for research exempted orwaived under § 46.101 (b) or (i), no human subjects may be involvedin any project supported by these awards until the project has been reviewed andapproved by the IRB, as provided in this policy, and certification submitted, bythe institution, to the department or agency.</P> </SECTION> <SECTION> <PRTPAGE P="27"/> <SECTNO>§ 46.119</SECTNO> <SUBJECT>Research undertaken without the intention of involving human subjects.</SUBJECT> <P>In the event research is undertaken without the intention of involving humansubjects, 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 thispolicy, a certification submitted, by the institution, to the department oragency, and final approval given to the proposed change by the department oragency.</P> </SECTION> <SECTION> <SECTNO>§ 46.120</SECTNO> <SUBJECT>Evaluation and disposition of applications and proposals for researchto be conducted or supported by a Federal Department or Agency.</SUBJECT> <P>(a) The department or agency head will evaluate all applications andproposals involving human subjects submitted to the department or agency throughsuch officers and employees of the department or agency and such experts andconsultants as the department or agency head determines to be appropriate. Thisevaluation will take into consideration the risks to the subjects, the adequacyof protection against these risks, the potential benefits of the research to thesubjects and others, and the importance of the knowledge gained or to be gained.</P> <P>(b) On the basis of this evaluation, the department or agency head mayapprove or disapprove the application or proposal, or enter into negotiations todevelop an approvable one.</P> <CITA>[56 FR 28012, 28020, June 18, 1991, as amended at 61 FR 33658, June 28,1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 46.121</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 46.122</SECTNO> <SUBJECT>Use of Federal funds.</SUBJECT> <P>Federal funds administered by a department or agency may not be expended forresearch involving human subjects unless the requirements of this policy havebeen satisfied.</P> </SECTION> <SECTION> <SECTNO>§ 46.123</SECTNO> <SUBJECT>Early termination of research support: Evaluation of applications andproposals.</SUBJECT> <P>(a) The department or agency head may require that department or agencysupport for any project be terminated or suspended in the manner prescribed inapplicable program requirements, when the department or agency head finds aninstitution has materially failed to comply with the terms of this policy.</P> <P>(b) In making decisions about supporting or approving applications orproposals covered by this policy the department or agency head may take intoaccount, in addition to all other eligibility requirements and program criteria,factors such as whether the applicant has been subject to a termination orsuspension under paragraph (a) of this section and whether the applicant or theperson or persons who would direct or has have directed the scientific andtechnical aspects of an activity has have, in the judgment of the department oragency head, materially failed to discharge responsibility for the protection ofthe rights and welfare of human subjects (whether or not the research wassubject to federal regulation).</P> </SECTION> <SECTION> <SECTNO>§ 46.124</SECTNO> <SUBJECT>Conditions.</SUBJECT> <P>With respect to any research project or any class of research projects thedepartment or agency head may impose additional conditions prior to or at thetime of approval when in the judgment of the department or agency headadditional conditions are necessary for the protection of human subjects.</P> </SECTION> </PART> <PART> <EAR>Pt. 47</EAR> <HD SOURCE="HED">PART 47—RIGHT TO FINANCIAL PRIVACY ACT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>47.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>47.2</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>47.3</SECTNO> <SUBJECT>Authorization.</SUBJECT> <SECTNO>47.4</SECTNO> <SUBJECT>Written request.</SUBJECT> <SECTNO>47.5</SECTNO> <SUBJECT>Certification.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 28 U.S.C. 509, 510; section 1108 of theRight to Financial Privacy Act of 1978, 12 U.S.C. 3408.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 822-79, 44 FR 14554, Mar. 13, 1979,unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 47.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The terms used in this part shall have the same meaning as similar terms usedin the Right to Financial Privacy Act of 1978. <E T="03">Departmental unit</E> <PRTPAGE P="28"/>means any office, division, board, bureau, or other component of the Departmentof Justice which is authorized to conduct law enforcement inquiries. <E T="03">Act</E> means the Right to Financial Privacy Act of 1978.</P> </SECTION> <SECTION> <SECTNO>§ 47.2</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of these regulations is to authorize Departmental units torequest financial records from a financial institution pursuant to the formalwritten request procedure authorized by section 1108 of the Act, and to setforth the conditions under which such requests may be made.</P> </SECTION> <SECTION> <SECTNO>§ 47.3</SECTNO> <SUBJECT>Authorization.</SUBJECT> <P>Departmental units are authorized to request financial records of anycustomer from a financial institution pursuant to a formal written request underthe Act only if:</P> <P>(a) No administrative summons or subpoena authority reasonably appears to beavailable to the Departmental unit to obtain financial records for the purposefor which the records are sought;</P> <P>(b) There is reason to believe that the records sought are relevant to alegitimate law enforcement inquiry and will further that inquiry;</P> <P>(c) The request is issued by a supervisory official of a rank designated bythe head of the requesting Departmental unit. The officials so designated shallnot delegate this authority to others;</P> <P>(d) The request adheres to the requirements set forth in § 47.4;and</P> <P>(e) The notice requirements set forth in section 1108(4) of the Act, or therequirements pertaining to delay of notice in section 1109 of the Act, aresatisfied, except in situations (e.g., section 1113(g)) where no notice isrequired.</P> </SECTION> <SECTION> <SECTNO>§ 47.4</SECTNO> <SUBJECT>Written request.</SUBJECT> <P>(a) The formal written request shall be in the form of a letter or memorandumto an appropriate official of the financial institution from which financialrecords are requested. The request shall be signed by the issuing official, andshall set forth that official's name, title, business address and business phonenumber. The request shall also contain the following:</P> <P>(1) The identity of the customer or customers to whom the records pertain;</P> <P>(2) A reasonable description of the records sought; and</P> <P>(3) Such additional information as may be appropriate—e.g., the date onwhich the opportunity for the customer to challenge the formal written requestwill expire, the date on which the requesting Departmental unit expects topresent 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 bemade.</P> <P>(b) In cases where customer notice is delayed by court order, a copy of thecourt order shall be attached to the formal written request.</P> </SECTION> <SECTION> <SECTNO>§ 47.5</SECTNO> <SUBJECT>Certification.</SUBJECT> <P>Prior to obtaining the requested records pursuant to a formal writtenrequest, an official of a rank designated by the head of the requestingDepartmental unit shall certify in writing to the financial institution that theDepartmental unit has complied with the applicable provisions of the Act.</P> </SECTION> </PART> <PART> <EAR>Pt. 48</EAR> <HD SOURCE="HED">PART 48—NEWSPAPER PRESERVATION ACT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>48.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>48.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>48.3</SECTNO> <SUBJECT>Procedure for filing all documents.</SUBJECT> <SECTNO>48.4</SECTNO> <SUBJECT>Application for approval of joint newspaper operatingarrangement entered into after July 24, 1970.</SUBJECT> <SECTNO>48.5</SECTNO> <SUBJECT>Requests that information not be made public.</SUBJECT> <SECTNO>48.6</SECTNO> <SUBJECT>Public notice.</SUBJECT> <SECTNO>48.7</SECTNO> <SUBJECT>Report of the Assistant Attorney General in Charge of theAntitrust Division.</SUBJECT> <SECTNO>48.8</SECTNO> <SUBJECT>Written comments and requests for a hearing.</SUBJECT> <SECTNO>48.9</SECTNO> <SUBJECT>Extensions of time.</SUBJECT> <SECTNO>48.10</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>48.11</SECTNO> <SUBJECT>Intervention in hearings.</SUBJECT> <SECTNO>48.12</SECTNO> <SUBJECT> <E T="03">Ex parte</E> communications.</SUBJECT> <SECTNO>48.13</SECTNO> <SUBJECT>Record for decision.</SUBJECT> <SECTNO>48.14</SECTNO> <SUBJECT>Decision by the Attorney General.</SUBJECT> <SECTNO>48.15</SECTNO> <SUBJECT>Temporary approval.</SUBJECT> <SECTNO>48.16</SECTNO> <SUBJECT>Procedure for filing of terms of a renewal or amendment toan existing joint newspaper operating arrangement.</SUBJECT> </CONTENTS> <AUTH> <PRTPAGE P="29"/> <HD SOURCE="HED">Authority:</HD> <P>28 U.S.C. 509, 510; (5 U.S.C. 301); NewspaperPreservation Act, 84 Stat. 466 (15 U.S.C. 1801 <E T="03">et seq</E>.).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 558-73, 39 FR 7, Jan. 2, 1974, unlessotherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 48.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>These regulations set forth the procedure by which application may be made tothe Attorney General for his approval of joint newspaper operating arrangementsentered into after July 24, 1970, and for the filing with the Department ofJustice of the terms of a renewal or amendment of existing joint newspaperoperating arrangements, as required by the Newspaper Preservation Act, Pub. L.91-353, 84 Stat. 466, 15 U.S.C. 1801 <E T="03">et seq.</E> The NewspaperPreservation Act does not require that all joint newspaper operatingarrangements obtain the prior written consent of the Attorney General. The Actand these regulations provide a method for newspapers to obtain the benefit of alimited exemption from the antitrust laws if they desire to do so. Jointnewspaper operating arrangements that are put into effect without the priorwritten consent of the Attorney General remain fully subject to the antitrustlaws.</P> </SECTION> <SECTION> <SECTNO>§ 48.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The term <E T="03">Attorney General</E> means the Attorney General of theUnited States or his delegate, other than the Assistant Attorney General incharge of the Antitrust Division or other employee in the Antitrust Division.</P> <P>(b) The term <E T="03">Assistant Attorney General in charge of the AntitrustDivision</E> means the Assistant Attorney General in charge of the AntitrustDivision or his delegate.</P> <P>(c) The term <E T="03">Assistant Attorney General for Administration</E>means the Assistant Attorney General for Administration or his delegate.</P> <P>(d) The term <E T="03">existing arrangement</E> means any joint newspaperoperating arrangement entered into before July 24, 1970.</P> <P>(e) The term <E T="03">joint newspaper operating arrangement</E> means anycontract, agreement, joint venture (whether or not incorporated), or otherarrangement entered into between two or more newspaper owners for thepublication of two or more newspaper publications, pursuant to which joint orcommon production facilities are established or operated and joint or unifiedaction is taken or agreed to be taken with respect to any of the following:Printing; time, method, and field of publication; allocation of productionfacilities; distribution; advertising solicitation; circulation solicitation;business department; establishment of advertising rates; establishment ofcirculation rates and revenue distribution: <E T="03">Provided,</E> That thereis no merger, combination, or amalgamation of editorial or reportorial staffs,and that editorial policies be independently determined.</P> <P>(f) The term <E T="03">newspaper</E> means a publication produced onnewsprint paper which is published in one or more issues weekly (including asone publication any daily newspaper and any Sunday newspaper published by thesame owner in the same city, community, or metropolitan area), and in which asubstantial portion of the content is devoted to the dissemination of news andeditorial opinion.</P> <P>(g) The term <E T="03">party</E> means any individual, and any partnership,corporation, association, or other legal entity.</P> <P>(h) The term <E T="03">person</E> means any individual, and any partnership,corporation, association, or other legal entity.</P> </SECTION> <SECTION> <SECTNO>§ 48.3</SECTNO> <SUBJECT>Procedure for filing all documents.</SUBJECT> <P>All filings required by these regulations shall be accomplished by:</P> <P>(a) Mailing or delivering five copies of each document (two copies in thecase of documents filed by the Assistant Attorney General in charge of theAntitrust Division) to the Assistant Attorney General for Administration,Department of Justice, Washington, DC 20530. He shall place one copy in anumbered public docket; one copy in a duplicate of this file for the use ofofficials with decisional responsibility; and (except in the case of documentsfiled by the Assistant Attorney General in charge of the Antitrust Division)shall forward three copies to the Assistant Attorney General in charge of theAntitrust Division; except that documents subject to nondisclosure orders under§ 48.5 shall be held under <PRTPAGE P="30"/>seal and disclosed only in accordance withthe provisions of that section; and</P> <P>(b) Mailing or delivering one copy of each document filed after a hearing hasbeen ordered to each party to the proceedings, along with the name and addressof the party filing the document or its counsel, and filing in the mannerprovided in paragraph (a) of this section a certificate that service has beenmade in accordance herewith.</P> </SECTION> <SECTION> <SECTNO>§ 48.4</SECTNO> <SUBJECT>Application for approval of joint newspaper operating arrangemententered into after July 24, 1970.</SUBJECT> <P>(a) Persons desiring to obtain the approval of the Attorney General of ajoint newspaper operating arrangement after July 24, 1970, shall file anapplication in writing setting forth a short, plain statement of the reasons whythe applicants believe that approval should be granted.</P> <P>(b) With the request, the applicants shall also file copies of the following:</P> <P>(1) The proposed joint newspaper operating agreement;</P> <P>(2) Any prior, existing or proposed agreement between any of the newspapersinvolved, or a statement of any such agreements as have not been reduced towriting;</P> <P>(3) With respect to each newspaper, for the 5-year period prior to the dateof the application,</P> <P>(i) Annual statements of profit and loss;</P> <P>(ii) Annual statements of assets and liabilities;</P> <P>(iii) Reports of the Audit Bureau of Circulation, or statements containingequivalent information;</P> <P>(iv) Annual advertising lineage records;</P> <P>(v) Rate cards;</P> <P>(4) If any amount stated in paragraph (b)(3)(i) or (ii) of this sectionrepresents an allocation of revenues, expenses, assets or liabilities betweenthe newspaper and any parent, subsidiary, division or affiliate, the financialstatements shall be accompanied by a full explanation of the method by whicheach such amount has been allocated.</P> <P>(5) If any of the newspapers involved purchased or sold goods or servicesfrom or to any parent, subsidiary, division or affiliate at any time during thefive years preceding the date of application, a statement shall be submittedidentifying such products or services, the entity from which they were purchasedor to which they were sold, and the amount paid for each product or serviceduring each of the five years.</P> <P>(6) Any other information which the applicants believe relevant to theirrequest for approval.</P> <P>(c) A copy of the application and supporting data shall be open to publicinspection during normal business hours at the main office of each of thenewspapers involved in the arrangement, except to the extent permitted bynondisclosure orders under § 48.5; except that materials for whichnondisclosure has been requested under § 48.5 need not be madeavailable for inspection before the request has been decided.</P> </SECTION> <SECTION> <SECTNO>§ 48.5</SECTNO> <SUBJECT>Requests that information not be made public.</SUBJECT> <P>(a) Any applicant may file a request that commercial or financial datarequired to be filed and made public under these regulations, which isprivileged and confidential within the meaning of 5 U.S.C. 552(b), be withheldfrom public disclosure. Each such request shall be accompanied by a statement ofthe reasons why nondisclosure is required. The request shall be determined bythe Attorney General who shall consider the extent to which (1) disclosure maycause substantial harm to the applicant submitting the information, and (2)nondisclosure may impair the ability of persons who may be adversely affected bythe proposed arrangement to present their views in proceedings under theseregulations. Information relevant to the financial conditions of the newspaperor newspapers represented to be failing ordinarily shall not be ordered withheldfrom public disclosure.</P> <P>(b) Upon ordering that any documents be withheld from public disclosure, theAttorney General shall file a statement setting forth the subject matter of thedocuments withheld. Any person desiring to inspect the documents may file arequest for inspection, identifying with as much particularity as possible thematerials to be inspected and setting forth the reasons for inspection and thefacts in support thereof. The request for disclosure <PRTPAGE P="31"/>shall be considered by theAttorney General, who shall give the applicant that submitted the documents anopportunity to be heard in opposition to disclosure. Orders granting inspectionshall specify the terms and conditions thereof, including restrictions ondisclosure to third parties.</P> <P>(c) Documents ordered withheld from public disclosure shall be made availableto the Assistant Attorney General in charge of the Antitrust Division. If ahearing is held, the documents may be offered as evidence by any party to whomthey have been disclosed. The administrative law judge may restrict furtherdisclosure as he deems appropriate, taking into account the considerations setforth in paragraph (a) of this section.</P> <P>(d) Requests for access to materials within the scope of this section thatmay be filed after the conclusion of proceedings under these regulations shallbe processed in accordance with the Department's regulations under 5 U.S.C. 552(part 16 of this chapter).</P> </SECTION> <SECTION> <SECTNO>§ 48.6</SECTNO> <SUBJECT>Public notice.</SUBJECT> <P>(a) Upon the filing of the documents required by § 48.4, theapplicants shall file, and publish on the front pages of each of the newspapersfor which application is made, daily and Sunday (if a Sunday edition ispublished) for a period of one week:</P> <P>(1) Notice that a request for approval of a joint newspaper operatingarrangement has been filed with the Attorney General;</P> <P>(2) Notice that copies of the proposed arrangement, as well as all otherdocuments submitted pursuant to § 48.4, are available for publicinspection at the Department of Justice and at the main offices of thenewspapers involved; and</P> <P>(3) Notice that any person may file written comments or a request for ahearing with the Department of Justice, in accordance with the requirements of§ 48.3.</P> <P>(b) Upon the filing of the notice required in paragraph (a) of this section,the Assistant Attorney General for Administration shall cause notice to bepublished in the <E T="04">Federal Register,</E> and shall cause to be issued apress release setting forth the information contained therein.</P> <P>(c) If a hearing is scheduled pursuant to § 48.10, the applicantsshall publish the time, date, place and purpose of such hearing on theirrespective front pages at least three times within the 2-week period after thehearing 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 thehearing if the applicants are weekly newspapers).</P> <P>(d) The applicants shall file copies of each day's newspaper in which thenotice required in paragraph (a) or (c) of this section has appeared.</P> </SECTION> <SECTION> <SECTNO>§ 48.7</SECTNO> <SUBJECT>Report of the Assistant Attorney General in Charge of the AntitrustDivision.</SUBJECT> <P>(a) The Assistant Attorney General in charge of the Antitrust Division shall,not later than 30 days from the publication in the <E T="04">FederalRegister</E> of the notice required by § 48.6, submit to the AttorneyGeneral a report on any application filed pursuant to § 48.4. Inpreparing such report he may require submission by the applicants of any furtherinformation which may be relevant to a determination of whether approval of theproposed arrangement is warranted under the Act.</P> <P>(b) In his report he may state (1) that the proposed arrangement should beapproved or disapproved without a hearing; or (2) that a hearing should be heldto resolve material issues of fact.</P> <P>(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 Administrationshall cause to be issued a press release setting forth the substance thereof.</P> <P>(d) Any person may, within 30 days after filing of the report, file a replyto the report for the consideration of the Attorney General.</P> </SECTION> <SECTION> <SECTNO>§ 48.8</SECTNO> <SUBJECT>Written comments and requests for a hearing.</SUBJECT> <P>(a) Any person who believes that the Attorney General should or should notapprove a proposed arrangement, may at any time after filing of the applicationuntil 30 days after publication in the <E T="04">Federal Register</E> of thenotice required in § 48.6,<PRTPAGE P="32"/> </P> <P>(1) File written comments stating the reasons why approval should or shouldnot be granted, and/or</P> <P>(2) File a request that a hearing be held on the application. A request for ahearing shall set forth the issues of fact to be determined and the reasons thata hearing is required to determine them.</P> <P>(b) Any person may within 30 days after the filing of any comment or requestpursuant to paragraph (a) of this section, file a reply for the consideration ofthe Attorney General.</P> <P>(c) After the expiration of the time for filing of replies in accordance with§ 48.7 and this section the Attorney General shall either approve ordeny approval of the arrangement, in accordance with § 48.14, orshall order that a hearing be held.</P> </SECTION> <SECTION> <SECTNO>§ 48.9</SECTNO> <SUBJECT>Extensions of time.</SUBJECT> <P>Any of the time periods established by these Regulations may be extended forgood cause, upon timely application to the Attorney General, or to theadministrative law judge if one has been appointed.</P> </SECTION> <SECTION> <SECTNO>§ 48.10</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) Upon the issuance by the Attorney General of an order for a hearing, theAssistant Attorney General for Administration shall appoint an administrativelaw judge in accordance with section 11 of the Administrative Procedure Act, 5U.S.C. 3105. The administrative law judge shall:</P> <P>(1) Set a date, time and place for the hearing convenient for all partiesinvolved. The date set shall be as soon as practicable, allowing time forpublication of the notice required in § 48.6 and for a reasonableperiod of discovery as provided in this section. In setting a place for thehearing, preference shall be given to the community in which the applicants'newspapers operate.</P> <P>(2) Mail notice of the hearing to the parties, to each person who filedwritten comments or a request for a hearing, and to any other person he believesmay have an interest in the proceeding.</P> <P>(3) Permit discovery by any party, as provided in the Federal Rules of CivilProcedure; except that he may place such limits as he deems reasonable on thetime and manner of taking discovery in order to avoid unnecessary delays in theproceedings.</P> <P>(4) Conduct a hearing in accordance with section 7 of the AdministrativeProcedure Act, 5 U.S.C. 556. At such hearing, the burden of proving that theproposed arrangement meets the requirements of the Newspaper Preservation Actwill be on the proponents of the arrangement. The rules of evidence which governcivil proceedings in matters not involving trial by jury in the courts of theUnited States shall apply, but these rules may be relaxed if the ends of justicewill be better served in so doing: Provided, that the introduction ofirrelevant, immaterial, or unduly repetitious evidence is avoided. Only partiesto the proceedings may present evidence, or cross-examine witnesses.</P> <P>(b) The applicants and the Assistant Attorney General in charge of theAntitrust Division shall be parties in any hearing held hereunder. Other personsmay intervene as parties as provided in § 48.11.</P> <P>(c) The Assistant Attorney General for Administration shall procure theservices of a stenographic reporter. One copy of the transcript produced shallbe placed in the public docket. Additional copies may be purchased from thereporter or, if the arrangement with the reporter permits, from the Departmentof Justice at its cost.</P> <P>(d) Following the hearing the administrative law judge shall render to theAttorney General his recommendation that the proposed arrangement be approved ordenied approval in accordance with the standards of the Act. The recommendationshall be in writing, shall be based solely on the hearing record, and shallinclude a statement of the administrative law judge's findings and conclusions,and the reasons or basis therefor, on all material issues of fact, law ordiscretion presented on the record. Copies of the recommendation shall be filedand sent to each party.</P> <P>(e) Within 30 days of the date the administrative law judge files hisrecommendation, any party may file written exceptions to the recommendation forconsideration by the Attorney General. Parties shall then have a further <PRTPAGE P="33"/>15 daysin which to file responses to any such exceptions.</P> </SECTION> <SECTION> <SECTNO>§ 48.11</SECTNO> <SUBJECT>Intervention in hearings.</SUBJECT> <P>(a) Any person may intervene as a party in a hearing held under theseregulations if (1) he has an interest which may be affected by the AttorneyGeneral's decision, and (2) it appears that his interest may not be adequatelyrepresented by existing parties.</P> <P>(b) Application for intervention shall be made by filing in accordance with§ 48.3(a) and (b), within 20 days after a hearing has been ordered, astatement of the nature of the applicant's interest, the way in which it may beaffected, the facts and reasons in support thereof and the reasons why theapplicant's interest may not be adequately represented by existing parties.</P> <P>(c) Existing parties may file a statement in opposition to or in support ofan application to intervene within 10 days of the filing of the application.</P> <P>(d) Applications for intervention shall be decided by the Attorney General.</P> <P>(e) Intervenors shall have the same rights as existing parties in connectionwith any hearing held under these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 48.12</SECTNO> <SUBJECT> <E T="7462">Ex parte</E> communications.</SUBJECT> <P>No person shall communicate on any matter related to these proceedings withthe administrative law judge, the Attorney General or anyone having decisionalresponsibility, except as provided in these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 48.13</SECTNO> <SUBJECT>Record for decision.</SUBJECT> <P>(a) The record on which the Attorney General shall base his decision in theevent a hearing is not held shall be comprised of all material filed inaccordance with these regulations, including any material that has been orderedwithheld from public disclosure.</P> <P>(b) If a hearing is held, the record on which the Attorney General shall basehis decision shall consist exclusively of the hearing record, the examiner'srecommendation and any exceptions and responses filed with respect thereto.</P> </SECTION> <SECTION> <SECTNO>§ 48.14</SECTNO> <SUBJECT>Decision by the Attorney General.</SUBJECT> <P>(a) The Attorney General shall decide, on the basis of the record asconstituted in accordance with § 48.13, whether approval is warrantedunder the Act. In rendering his decision, the Attorney General shall filetherewith 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 ofthe administrative law judge.</P> <P>(b) Approval of a proposed arrangement by the Attorney General shall notbecome effective until the tenth day after the filing of the Attorney General'sdecision as provided in this section.</P> </SECTION> <SECTION> <SECTNO>§ 48.15</SECTNO> <SUBJECT>Temporary approval.</SUBJECT> <P>(a) If the Attorney General concludes that one or more of the newspapersinvolved would otherwise fail before the procedures under these regulations canbe completed, he may grant temporary approval of whatever form of joint orunified action would be lawful under the Act if performed as part of an approvedjoint newspaper operating arrangement, and that he concludes is: (1) Essentialto the survival of the newspaper or newspapers; and (2) most likely capable ofbeing terminated without impairment to the ability of both newspapers to resumeindependent operation should final approval eventually be denied.</P> <P>(b) Upon the filing of a request for temporary approval, the applicants shallpublish notice of such application on the front pages of their respectivenewspapers for a period of three consecutive days in the case of dailynewspapers or in the next issue in the case of weekly newspapers. The noticeshall state:</P> <P>(1) That a request for temporary approval of a joint operating arrangement orother joint or unified action has been made to the Attorney General; and</P> <P>(2) That anyone wishing to protest the application for temporary approval maydo so by delivering a statement of protest or telephoning his views to anemployee of the Department of Justice, whose name, address and telephone <PRTPAGE P="34"/>numbershall be designated by the Department upon receipt of the application fortemporary approval, and that such protests must be received by the Departmentwithin five days of the first publication of notice in accordance with paragraph(a) of this section.</P> <P>(c) The notice required by this section shall be in addition to the noticerequired by § 48.6.</P> <P>(d) Such temporary approval may be granted without hearing at any timefollowing the expiration of the period provided for protests, but shall createno presumption that final approval will be granted.</P> </SECTION> <SECTION> <SECTNO>§ 48.16</SECTNO> <SUBJECT>Procedure for filing of terms of a renewal or amendment to an existingjoint newspaper operating arrangement.</SUBJECT> <P>Within 30 days after a renewal of or an amendment to the terms of an existingarrangement, the parties to said renewal or amendment shall file five copies ofthe agreement of renewal or amendment. In the case of an amendment, the partiesshall also file copies of the amended portion of the original agreement.</P> <CITA>[Order No. 558-73, 39 FR 7, Jan. 2, 1974, as amended by Order No.568-74, 39 FR 18646, May 29, 1974]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 49</EAR> <HD SOURCE="HED">PART 49—ANTITRUST CIVIL PROCESS ACT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>49.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>49.2</SECTNO> <SUBJECT>Duties of custodian.</SUBJECT> <SECTNO>49.3</SECTNO> <SUBJECT>Examination of the material.</SUBJECT> <SECTNO>49.4</SECTNO> <SUBJECT>Deputy custodians.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>15 U.S.C. 1313.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>At 60 FR 44277, Aug. 25, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 49.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The regulations in this part are issued in compliance with the requirementsimposed by the provisions of section 4(c) of the Antitrust Civil Process Act, asamended (15 U.S.C. 1313(c)). The terms used in this part shall be deemed to havethe same meaning as similar terms used in that Act.</P> </SECTION> <SECTION> <SECTNO>§ 49.2</SECTNO> <SUBJECT>Duties of custodian.</SUBJECT> <P>(a) Upon taking physical possession of documentary material, answers tointerrogatories, or transcripts of oral testimony delivered pursuant to a civilinvestigative demand issued under section 3(a) of the Act, the antitrustdocument custodian designated pursuant to section 4(a) of the Act (subject tothe general supervision of the Assistant Attorney General in charge of theAntitrust Division), shall, unless otherwise directed by a court of competentjurisdiction, select, from time to time, from among such documentary material,answers to interrogatories or transcripts of oral testimony, the documentarymaterial, answers to interrogatories or transcripts of oral testimony thecopying of which the custodian deems necessary or appropriate for the officialuse of the Department of Justice, and shall determine, from time to time, thenumber of copies of any such documentary material, answers to interrogatories ortranscripts of oral testimony that are to be reproduced pursuant to the Act.</P> <P>(b) Copies of documentary material, answers to interrogatories, ortranscripts of oral testimony in the physical possession of the custodianpursuant to a civil investigative demand may be reproduced by or under theauthority of any officer, employee, or agent of the Department of Justicedesignated by the custodian. Documentary material for which a civilinvestigative demand has been issued but which is still in the physicalpossession of the person upon whom the demand has been served may, by agreementbetween such person and the custodian, be reproduced by such person, in whichcase the custodian may require that the copies so produced be duly certified astrue copies of the original of the material involved.</P> <CITA>[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 49.3</SECTNO> <SUBJECT>Examination of the material.</SUBJECT> <P>Documentary material, answers to interrogatories, or transcripts of oraltestimony produced pursuant to the Act, while in the custody of the custodian,shall be for the official use of officers, employees, and agents of theDepartment of Justice in accordance with the Act. Upon reasonable notice to thecustodian—<PRTPAGE P="35"/> </P> <P>(a) Such documentary material or answers to interrogatories shall be madeavailable for examination by the person who produced such documentary materialor answers to interrogatories, or by any duly authorized representative of suchperson; and</P> <P>(b) Such transcripts of oral testimony shall be made available forexamination by the person who produced such testimony, or by such person'scounsel, during regular office hours established for the Department of Justice.Examination of such documentary material, answers to interrogatories, ortranscripts of oral testimony at other times may be authorized by the AssistantAttorney General or the custodian.</P> <CITA>[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 49.4</SECTNO> <SUBJECT>Deputy custodians.</SUBJECT> <P>Deputy custodians may perform such of the duties assigned to the custodian asmay be authorized or required by the Assistant Attorney General.</P> </SECTION> </PART> <PART> <EAR>Pt. 50</EAR> <HD SOURCE="HED">PART 50—STATEMENTS OF POLICY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>50.2</SECTNO> <SUBJECT>Release of information by personnel of the Department ofJustice relating to criminal and civil proceedings.</SUBJECT> <SECTNO>50.3</SECTNO> <SUBJECT>Guidelines for the enforcement of title VI, Civil RightsAct of 1964.</SUBJECT> <SECTNO>50.5</SECTNO> <SUBJECT>Notification of Consular Officers upon the arrest offoreign nationals.</SUBJECT> <SECTNO>50.6</SECTNO> <SUBJECT>Antitrust Division business review procedure.</SUBJECT> <SECTNO>50.7</SECTNO> <SUBJECT>Consent judgments in actions to enjoin discharges ofpollutants.</SUBJECT> <SECTNO>50.8</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>50.9</SECTNO> <SUBJECT>Policy with regard to open judicial proceedings.</SUBJECT> <SECTNO>50.10</SECTNO> <SUBJECT>Policy with regard to the issuance of subpoenas to membersof the news media, subpoenas for telephone toll records of members of the newsmedia, and the interrogation, indictment, or arrest of, members of the newsmedia.</SUBJECT> <SECTNO>50.12</SECTNO> <SUBJECT>Exchange of FBI identification records.</SUBJECT> <SECTNO>50.14</SECTNO> <SUBJECT>Guidelines on employee selection procedures.</SUBJECT> <SECTNO>50.15</SECTNO> <SUBJECT>Representation of Federal officials and employees byDepartment of Justice attorneys or by private counsel furnished by theDepartment in civil, criminal, and congressional proceedings in which Federalemployees are sued, subpoenaed, or charged in their individual capacities.</SUBJECT> <SECTNO>50.16</SECTNO> <SUBJECT>Representation of Federal employees by private counsel atFederal expense.</SUBJECT> <SECTNO>50.17</SECTNO> <SUBJECT> <E T="03">Ex parte</E> communications in informalrulemaking proceedings.</SUBJECT> <SECTNO>50.18</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>50.19</SECTNO> <SUBJECT>Procedures to be followed by government attorneys prior tofiling recusal or disqualification motions.</SUBJECT> <SECTNO>50.20</SECTNO> <SUBJECT>Participation by the United States in court-annexedarbitration.</SUBJECT> <SECTNO>50.21</SECTNO> <SUBJECT>Procedures governing the destruction of contraband drugevidence in the custody of Federal law enforcement authorities.</SUBJECT> <SECTNO>50.22</SECTNO> <SUBJECT>Young American Medals Program.</SUBJECT> <SECTNO>50.23</SECTNO> <SUBJECT>Policy against entering into final settlement agreementsor consent decree that are subject to confidentiality provisions and againstseeking or concurring in the sealing of such documents.</SUBJECT> <SECTNO>50.24</SECTNO> <SUBJECT>Annuity broker minimum qualifications.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1921 <E T="03">et seq.,</E> 1973c; and Public Law 107-273, 116 Stat. 1758, 1824.</P> </AUTH> <SECTION> <SECTNO>§ 50.2</SECTNO> <SUBJECT>Release of information by personnel of the Department of Justicerelating to criminal and civil proceedings.</SUBJECT> <P>(a) <E T="03">General.</E> (1) The availability to news media of informationin criminal and civil cases is a matter which has become increasingly a subjectof concern in the administration of justice. The purpose of this statement is toformulate specific guidelines for the release of such information by personnelof the Department of Justice.</P> <P>(2) While the release of information for the purpose of influencing a trialis, of course, always improper, there are valid reasons for making available tothe public information about the administration of the law. The task of strikinga fair balance between the protection of individuals accused of crime orinvolved in civil proceedings with the Government and public understandings ofthe problems of controlling crime and administering government depends largelyon the exercise of sound judgment by those responsible for administering the lawand by representatives of the press and other media.</P> <P>(3) Inasmuch as the Department of Justice has generally fulfilled itsresponsibilities with awareness and understanding of the competing needs in thisarea, this statement, to a considerable extent, reflects and formalizes <PRTPAGE P="36"/>thestandards to which representatives of the Department have adhered in the past.Nonetheless, it will be helpful in ensuring uniformity of practice to set forththe following guidelines for all personnel of the Department of Justice.</P> <P>(4) Because of the difficulty and importance of the questions they raise, itis felt that some portions of the matters covered by this statement, such as theauthorization to make available Federal conviction records and a description ofitems seized at the time of arrest, should be the subject of continuing reviewand consideration by the Department on the basis of experience and suggestionsfrom those within and outside the Department.</P> <P>(b) <E T="03">Guidelines to criminal actions.</E> (1) These guidelines shallapply to the release of information to news media from the time a person is thesubject of a criminal investigation until any proceeding resulting from such aninvestigation has been terminated by trial or otherwise.</P> <P>(2) At no time shall personnel of the Department of Justice furnish anystatement or information for the purpose of influencing the outcome of adefendant's trial, nor shall personnel of the Department furnish any statementor information, which could reasonably be expected to be disseminated by meansof public communication, if such a statement or information may reasonably beexpected to influence the outcome of a pending or future trial.</P> <P>(3) Personnel of the Department of Justice, subject to specific limitationsimposed by law or court rule or order, may make public the followinginformation:</P> <P>(i) The defendant's name, age, residence, employment, marital status, andsimilar background information.</P> <P>(ii) The substance or text of the charge, such as a complaint, indictment, orinformation.</P> <P>(iii) The identity of the investigating and/or arresting agency and thelength or scope of an investigation.</P> <P>(iv) The circumstances immediately surrounding an arrest, including the timeand place of arrest, resistance, pursuit, possession and use of weapons, and adescription of physical items seized at the time of arrest.</P> <FP>Disclosures should include only incontrovertible, factual matters, andshould not include subjective observations. In addition, where backgroundinformation or information relating to the circumstances of an arrest orinvestigation would be highly prejudicial or where the release thereof wouldserve no law enforcement function, such information should not be made public.</FP> <P>(4) Personnel of the Department shall not disseminate any informationconcerning a defendant's prior criminal record.</P> <P>(5) Because of the particular danger of prejudice resulting from statementsin the period approaching and during trial, they ought strenuously to be avoidedduring that period. Any such statement or release shall be made only on theinfrequent occasion when circumstances absolutely demand a disclosure ofinformation and shall include only information which is clearly not prejudicial.</P> <P>(6) The release of certain types of information generally tends to createdangers of prejudice without serving a significant law enforcement function.Therefore, personnel of the Department should refrain from making available thefollowing:</P> <P>(i) Observations about a defendant's character.</P> <P>(ii) Statements, admissions, confessions, or alibis attributable to adefendant, or the refusal or failure of the accused to make a statement.</P> <P>(iii) Reference to investigative procedures such as fingerprints, polygraphexaminations, ballistic tests, or laboratory tests, or to the refusal by thedefendant to submit to such tests or examinations.</P> <P>(iv) Statements concerning the identity, testimony, or credibility ofprospective witnesses.</P> <P>(v) Statements concerning evidence or argument in the case, whether or not itis anticipated that such evidence or argument will be used at trial.</P> <P>(vi) Any opinion as to the accused's guilt, or the possibility of a plea ofguilty to the offense charged, or the possibility of a plea to a lesser offense.</P> <P>(7) Personnel of the Department of Justice should take no action to encourageor assist news media in <PRTPAGE P="37"/>photographing or televising a defendant or accusedperson being held or transported in Federal custody. Departmentalrepresentatives should not make available photographs of a defendant unless alaw enforcement function is served thereby.</P> <P>(8) This statement of policy is not intended to restrict the release ofinformation concerning a defendant who is a fugitive from justice.</P> <P>(9) Since the purpose of this statement is to set forth generally applicableguidelines, there will, of course, be situations in which it will limit therelease of information which would not be prejudicial under the particularcircumstances. If a representative of the Department believes that in theinterest of the fair administration of justice and the law enforcement processinformation beyond these guidelines should be released, in a particular case, heshall request the permission of the Attorney General or the Deputy AttorneyGeneral to do so.</P> <P>(c) <E T="03">Guidelines to civil actions.</E> Personnel of the Department ofJustice associated with a civil action shall not during its investigation orlitigation make or participate in making an extrajudicial statement, other thana quotation from or reference to public records, which a reasonable person wouldexpect to be disseminated by means of public communication if there is areasonable likelihood that such dissemination will interfere with a fair trialand which relates to:</P> <P>(1) Evidence regarding the occurrence or transaction involved.</P> <P>(2) The character, credibility, or criminal records of a party, witness, orprospective witness.</P> <P>(3) The performance or results of any examinations or tests or the refusal orfailure of a party to submit to such.</P> <P>(4) An opinion as to the merits of the claims or defenses of a party, exceptas required by law or administrative rule.</P> <P>(5) Any other matter reasonably likely to interfere with a fair trial of theaction.</P> <CITA>[Order No. 469-71, 36 FR 21028, Nov. 3, 1971, as amended by OrderNo. 602-75, 40 FR 22119, May 20, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.3</SECTNO> <SUBJECT>Guidelines for the enforcement of title VI, Civil Rights Act of 1964.</SUBJECT> <P>(a) Where the heads of agencies having responsibilities under title VI of theCivil Rights Act of 1964 conclude there is noncompliance with regulations issuedunder that title, several alternative courses of action are open. In each case,the objective should be to secure prompt and full compliance so that neededFederal assistance may commence or continue.</P> <P>(b) Primary responsibility for prompt and vigorous enforcement of title VIrests with the head of each department and agency administering programs ofFederal financial assistance. Title VI itself and relevant Presidentialdirectives preserve in each agency the authority and the duty to select, fromamong the available sanctions, the methods best designed to secure compliance inindividual cases. The decision to terminate or refuse assistance is to be madeby the agency head or his designated representative.</P> <P>(c) This statement is intended to provide procedural guidance to theresponsible department and agency officials in exercising their statutorydiscretion and in selecting, for each noncompliance situation, a course ofaction that fully conforms to the letter and spirit of section 602 of the Actand to the implementing regulations promulgated thereunder.</P> <EXTRACT> <HD SOURCE="HD1">I. Alternative Courses of Action</HD> <HD SOURCE="HD1">a. ultimate sanctions</HD> <P>The ultimate sanctions under title VI are the refusal to grant an applicationfor assistance and the termination of assistance being rendered. Before thesesanctions may be invoked, the Act requires completion of the procedures calledfor by section 602. That section require the department or agency concerned (1)to determine that compliance cannot be secured by voluntary means, (2) toconsider alternative courses of action consistent with achievement of theobjectives of the statutes authorizing the particular financial assistance, (3)to afford the applicant an opportunity for a hearing, and (4) to complete theother procedural steps outlined in section 602, including notification to theappropriate committees of the Congress.</P> <P>In some instances, as outlined below, it is legally permissible temporarilyto defer action on an application for assistance, pending initiation andcompletion of section 602 procedures—including attempts to secure <PRTPAGE P="38"/>voluntary compliance with title VI. Normally, this course of action isappropriate only with respect to applications for noncontinuing assistance orinitial applications for programs of continuing assistance. It is not availablewhere Federal financial assistance is due and payable pursuant to a previouslyapproved application.</P> <P>Whenever action upon an application is deferred pending the outcome of ahearing and subsequent section 602 procedures, the efforts to secure voluntarycompliance and the hearing and such subsequent procedures, if found necessary,should be conducted without delay and completed as soon as possible.</P> <HD SOURCE="HD1">b. available alternatives</HD> <HD SOURCE="HD2">1. Court Enforcement</HD> <P>Compliance with the nondiscrimination mandate of title VI may often beobtained more promptly by appropriate court action than by hearings andtermination of assistance. Possibilities of judicial enforcement include (1) asuit to obtain specific enforcement of assurances, covenants running withfederally provided property, statements or compliance or desegregation plansfiled pursuant to agency regulations, (2) a suit to enforce compliance withother titles of the 1964 Act, other Civil Rights Acts, or constitutional orstatutory provisions requiring nondiscrimination, and (3) initiation of, orintervention or other participation in, a suit for other relief designed tosecure compliance.</P> <P>The possibility of court enforcement should not be rejected withoutconsulting the Department of Justice. Once litigation has been begun, theaffected agency should consult with the Department of Justice before taking anyfurther action with respect to the noncomplying party.</P> <HD SOURCE="HD2">2. Administrative Action</HD> <P>A number of effective alternative courses not involving litigation may alsobe available in many cases. These possibilities include (1) consulting with orseeking assistance from other Federal agencies (such as the Contract ComplianceDivision of the Department of Labor) having authority to enforcenondiscrimination requirements; (2) consulting with or seeking assistance fromState or local agencies having such authority; (3) bypassing a recalcitrantcentral agency applicant in order to obtain assurances from, or to grantassistance to complying local agencies; and (4) bypassing all recalcitrant non-Federal agencies and providing assistance directly to the complying ultimatebeneficiaries. The possibility of utilizing such administrative alternativesshould be considered at all stages of enforcement and used as appropriate orfeasible.</P> <HD SOURCE="HD1">c. inducing voluntary compliance</HD> <P>Title VI requires that a concerted effort be made to persuade anynoncomplying applicant or recipient voluntarily to comply with title VI. Effortsto secure voluntary compliance should be undertaken at the outset in everynoncompliance situation and should be pursued through each stage of enforcementaction. Similarly, where an applicant fails to file an adequate assurance orapparently breaches its terms, notice should be promptly given of the nature ofthe noncompliance problem and of the possible consequences thereof, and animmediate effort made to secure voluntary compliance.</P> <HD SOURCE="HD1">II. Procedures</HD> <HD SOURCE="HD1">a. new applications</HD> <P>The following procedures are designed to apply in cases of noncomplianceinvolving applications for one-time or noncontinuing assistance and initialapplications for new or existing programs of continuing assistance. </P> <FP SOURCE="FP-1"> <E T="03">1. Where the Requisite Assurance Has Not Been Filed or IsInadequate on Its Face.</E> </FP> <P>Where the assurance, statement of compliance or plan of desegregationrequired by agency regulations has not been filed or where, in the judgment ofthe head of the agency in question, the filed assurance fails on its face tosatisfy the regulations, the agency head should defer action on the applicationpending prompt initiation and completion of section 602 procedures. Theapplicant should be notified immediately and attempts made to secure voluntarycompliance. If such efforts fail, the applicant should promptly be offered ahearing for the purpose of determining whether an adequate assurance has in factbeen filed.</P> <P>If it is found that an adequate assurance has not been filed, and ifadministrative alternatives are ineffective or inappropriate, and courtenforcement is not feasible, section 602 procedures may be completed andassistance finally refused. </P> <FP SOURCE="FP-1"> <E T="03">2. Where it Appears that the Field Assurance Is Untrue or Is NotBeing Honored.</E> </FP> <P>Where an otherwise adequate assurance, statement of compliance, or plan hasbeen filed in connection with an application for assistance, but prior tocompletion of action on the application the head of the agency in question hasreasonable grounds, based on a substantiated complaint, the agency's owninvestigation, or otherwise, to believe that the representations as tocompliance are in some material respect untrue or are not being honored, theagency head may defer action on the application pending prompt initiation andcompletion of section 602 procedures. The applicant should be notifiedimmediately and attempts made to secure voluntary compliance. If such effortsfail and <PRTPAGE P="39"/>court enforcement is determined to be ineffective or inadequate, ahearing should be promptly initiated to determine whether, in fact, there isnoncompliance.</P> <P>If noncompliance is found, and if administrative alternatives are ineffectiveor inappropriate and court enforcement is still not feasible, section 602procedures may be completed and assistance finally refused.</P> <P>The above-described deferral and related compliance procedures would normallybe appropriate in cases of an application for noncontinuing assistance. In thecase of an initial application for a new or existing program of continuingassistance, deferral would often be less appropriate because of the opportunityto secure full compliance during the life of the assistance program. In thosecases in which the agency does not defer action on the application, theapplicant should be given prompt notice of the asserted noncompliance; fundsshould be paid out for short periods only, with no long-term commitment ofassistance given; and the applicant advised that acceptance of the funds carriesan enforceable obligation of nondiscrimination and the risk of invocation ofsevere sanctions, if noncompliance in fact is found.</P> <HD SOURCE="HD1">b. requests for continuation or renewal of assistance</HD> <P>The following procedures are designed to apply in cases of noncomplianceinvolving all submissions seeking continuation or renewal under programs ofcontinuing assistance.</P> <P>In cases in which commitments for Federal financial assistance have been madeprior to the effective date of title VI regulations and funds have not beenfully disbursed, or in which there is provision for future periodic payments tocontinue the program or activity for which a present recipient has previouslyapplied and qualified, or in which assistance is given without formalapplication pursuant to statutory direction or authorization, the responsibleagency may nonetheless require an assurance, statement of compliance, or plan inconnection with disbursement or further funds. However, once a particularprogram grant or loan has been made or an application for a certain type ofassistance for a specific or indefinite period has been approved, no funds dueand payable pursuant to that grant, loan, or application, may normally bedeferred or withheld without first completing the procedures prescribed insection 602.</P> <P>Accordingly, where the assurance, statement of compliance, or plan requiredby agency regulations has not been filed or where, in the judgment of the headof the agency in question, the filed assurance fails on its face to satisfy theregulations, or there is reasonable cause to believe it untrue or not beinghonored, the agency head should, if efforts to secure voluntary compliance areunsuccessful, promptly institute a hearing to determine whether an adequateassurance 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 thesubmission or withholding of funds in this class of cases, although thelimitation of the payout of funds to short periods may appropriately be ordered.If noncompliance is found, and if administrative alternatives are ineffective orinappropriate and court enforcement is not feasible, section 602 procedures maybe completed and assistance terminated.</P> <HD SOURCE="HD1">c. short-term programs</HD> <P>Special procedures may sometimes be required where there is noncompliancewith title VI regulations in connection with a program of such short totalduration that all assistance funds will have to be paid out before the agency'susual administrative procedures can be completed and where deferral inaccordance with these guidelines would be tantamount to a final refusal to grantassistance.</P> <P>In such a case, the agency head may, although otherwise following theseguidelines, suspend normal agency procedures and institute expeditedadministrative proceedings to determine whether the regulations have beenviolated. He should simultaneously refer the matter to the Department of Justicefor consideration of possible court enforcement, including interim injunctiverelief. Deferral of action on an application is appropriate, in accordance withthese guidelines, for a reasonable period of time, provided such action isconsistent with achievement of the objectives of the statute authorizing thefinancial assistance in connection with the action taken. As in other cases,where noncompliance is found in the hearing proceeding, and if administrativealternatives are ineffective or inappropriate and court enforcement is notfeasible, section 602 procedures may be completed and assistance finallyrefused.</P> <HD SOURCE="HD1">III. Procedures in Cases of Subgrantees</HD> <P>In situations in which applications for Federal assistance are approved bysome agency other than the Federal granting agency, the same rules andprocedures would apply. Thus, the Federal Agency should instruct the approvingagency—typically a State agency—to defer approval or refuse to grantfunds, in individual cases in which such action would be taken by the originalgranting agency itself under the above procedures. Provision should be made forappropriate notice of such action to the Federal agency which retainsresponsibility for compliance with section 602 procedures.<PRTPAGE P="40"/> </P> <HD SOURCE="HD1">IV. Exceptional Circumstances</HD> <P>The Attorney General should be consulted in individual cases in which thehead of an agency believes that the objectives of title VI will be best achievedby proceeding other than as provided in these guidelines.</P> <HD SOURCE="HD1">V. Coordination</HD> <P>While primary responsibility for enforcement of title VI rests directly withthe head of each agency, in order to assure coordination of title VI enforcementand consistency among agencies, the Department of Justice should be notified inadvance of applications on which action is to be deferred, hearings to bescheduled, and refusals and terminations of assistance or other enforcementactions or procedures to be undertaken. The Department also should be keptadvised of the progress and results of hearings and other enforcementactions.</P> </EXTRACT> <CITA>[31 FR 5292, Apr. 2, 1966]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.5</SECTNO> <SUBJECT>Notification of Consular Officers upon the arrest of foreign nationals.</SUBJECT> <P>(a) This statement is designed to establish a uniform procedure for consularnotification where nationals of foreign countries are arrested by officers ofthis Department on charges of criminal violations. It conforms to practice underinternational law and in particular implements obligations undertaken by theUnited States pursuant to treaties with respect to the arrest and detention offoreign nationals. Some of the treaties obligate the United States to notify theconsular officer only upon the demand or request of the arrested foreignnational. On the other hand, some of the treaties require notifying the consulof the arrest of a foreign national whether or not the arrested person requestssuch notification.</P> <P>(1) In every case in which a foreign national is arrested the arrestingofficer shall inform the foreign national that his consul will be advised of hisarrest unless he does not wish such notification to be given. If the foreignnational does not wish to have his consul notified, the arresting officer shallalso inform him that in the event there is a treaty in force between the UnitedStates and his country which requires such notification, his consul must benotified regardless of his wishes and, if such is the case, he will be advisedof such notification by the U.S. Attorney.</P> <P>(2) In all cases (including those where the foreign national has stated thathe does not wish his consul to be notified) the local office of the FederalBureau of Investigation or the local Marshal's office, as the case may be, shallinform the nearest U.S. Attorney of the arrest and of the arrested person'swishes regarding consular notification.</P> <P>(3) The U.S. Attorney shall then notify the appropriate consul except wherehe has been informed that the foreign national does not desire such notificationto be made. However, if there is a treaty provision in effect which requiresnotification of consul, without reference to a demand or request of the arrestednational, the consul shall be notified even if the arrested person has askedthat he not be notified. In such case, the U.S. Attorney shall advise theforeign national that his consul has been notified and inform him thatnotification was necessary because of the treaty obligation.</P> <P>(b) The procedure prescribed by this statement shall not apply to casesinvolving arrests made by the Immigration and Naturalization Service inadministrative expulsion or exclusion proceedings, since that Service hasheretofore established procedures for the direct notification of the appropriateconsular officer upon such arrest. With respect to arrests made by the Servicefor violations of the criminal provisions of the immigration laws, the U.S.Marshal, upon delivery of the foreign national into his custody, shall beresponsible for informing the U.S. Attorney of the arrest in accordance withnumbered paragraph 2 of this statement.</P> <CITA>[Order No. 375-67, 32 FR 1040, Jan. 28, 1967]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.6</SECTNO> <SUBJECT>Antitrust Division business review procedure.</SUBJECT> <P>Although the Department of Justice is not authorized to give advisoryopinions to private parties, for several decades the Antitrust Division has beenwilling in certain circumstances to review proposed business conduct and stateits enforcement intentions. This originated with a “railroadrelease” procedure under which the Division would forego the initiation ofcriminal antitrust proceedings. The procedure <PRTPAGE P="41"/>was subsequently expanded toencompass a “merger clearance” procedure under which the Divisionwould state its present enforcement intention with respect to a merger oracquisition; and the Department issued a written statement entitled“Business Review Procedure.” That statement has been revised severaltimes. </P> <EXTRACT> <P>1. A request for a business review letter must be submitted inwriting to the Assistant Attorney General, Antitrust Division, Department ofJustice, Washington, DC 20530.</P> <P>2. The Division will consider only requests with respect to proposed businessconduct, which may involve either domestic or foreign commerce.</P> <P>3. The Division may, in its discretion, refuse to consider a request.</P> <P>4. A business review letter shall have no application to any party which doesnot join in the request therefor.</P> <P>5. The requesting parties are under an affirmative obligation to make fulland true disclosure with respect to the business conduct for which review isrequested. Each request must be accompanied by all relevant data includingbackground information, complete copies of all operative documents and detailedstatements of all collateral oral understandings, if any. All parties requestingthe review letter must provide the Division with whatever additional informationor documents the Division may thereafter request in order to review the matter.Such additional information, if furnished orally, shall be promptly confirmed inwriting. In connection with any request for review the Division will alsoconduct whatever independent investigation it believes is appropriate.</P> <P>6. No oral clearance, release or other statement purporting to bind theenforcement discretion of the Division may be given. The requesting party mayrely upon only a written business review letter signed by the Assistant AttorneyGeneral in charge of the Antitrust Division or his delegate.</P> <P>7. (a) If the business conduct for which review is requested is subject toapproval by a regulatory agency, a review request may be considered beforeagency approval has been obtained only where it appears that exceptional andunnecessary burdens might otherwise be imposed on the party or partiesrequesting review, or where the agency specifically requests that a party orparties request review. However, any business review letter issued in these asin any other circumstances will state only the Department's present enforcementintentions under the antitrust laws. It shall in no way be taken to indicate theDepartment's views on the legal or factual issues that may be raised before theregulatory agency, or in an appeal from the regulatory agency's decision. Inparticular, the issuance of such a letter is not to be represented to mean thatthe Division believes that there are no anticompetitive consequences warrantingagency consideration.</P> <P>(b) The submission of a request for a business review, or its pendency, shallin no way alter any responsibility of any party to comply with the PremergerNotification provisions of the Antitrust Improvements Act of 1976, 15 U.S.C.18A, and the regulations promulgated thereunder, 16 CFR, part 801.</P> <P>8. After review of a request submitted hereunder the Division may: state itspresent enforcement intention with respect to the proposed business conduct;decline to pass on the request; or take such other position or action as itconsiders appropriate.</P> <P>9. A business review letter states only the enforcement intention of theDivision as of the date of the letter, and the Division remains completely freeto bring whatever action or proceeding it subsequently comes to believe isrequired by the public interest. As to a stated present intention not to bringan action, however, the Division has never exercised its right to bring acriminal action where there has been full and true disclosure at the time ofpresenting the request.</P> <P>10. (a) Simultaneously upon notifying the requesting party of and Divisionaction described in paragraph 8, the business review request, and the Division'sletter in response shall be indexed and placed in a file available to the publicupon request.</P> <P>(b) On that date or within thirty days after the date upon which the Divisiontakes any action as described in paragraph 8, the information supplied tosupport the business review request and any other information supplied by therequesting party in connection with the transaction that is the subject of thebusiness review request, shall be indexed and placed in a file with the requestand the Division's letter, available to the public upon request. This file shallremain open for one year, after which time it shall be closed and the documentseither returned to the requesting party or otherwise disposed of, at thediscretion of the Antitrust Division.</P> <P>(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 thatsubparagraph, the requesting party may ask the Division to delay making publicsome or all of such information. However the requesting party must: (1) Specifyprecisely the documents or parts thereof that he asks not be made public; (2)state the minimum period of time during which nondisclosure is considerednecessary; and (3) justify the request for non-disclosure, both as to contentand time, by showing good cause therefor, including a <PRTPAGE P="42"/>showing that disclosurewould have a detrimental effect upon the requesting party's operations orrelationships with actual or potential customers, employees, suppliers(including suppliers of credit), stockholders, or competitors. The Department ofJustice, in its discretion, shall make the final determination as to whethergood cause for non-disclosure has been shown.</P> <P>(d) Nothing contained in subparagraphs (a), (b) and (c) shall limit theDivision's right, in its discretion, to issue a press release describinggenerally the identity of the requesting party or parties and the nature ofaction taken by the Division upon the request.</P> <P>(e) This paragraph reflects a policy determination by the Justice Departmentand is subject to any limitations on public disclosure arising from statutoryrestrictions, Executive Order, or the national interest.</P> <P>11. Any requesting party may withdraw a request for review at any time. TheDivision remains free, however, to submit such comments to such requesting partyas it deems appropriate. Failure to take action after receipt of documents orinformation whether submitted pursuant to this procedure or otherwise, does notin any way limit or stop the Division from taking such action at such timethereafter as it deems appropriate. The Division reserves the right to retaindocuments submitted to it under this procedure or otherwise and to use them forall governmental purposes.</P> </EXTRACT> <CITA>[42 FR 11831, Mar. 1, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.7</SECTNO> <SUBJECT>Consent judgments in actions to enjoin discharges of pollutants.</SUBJECT> <P>(a) It is hereby established as the policy of the Department of Justice toconsent to a proposed judgment in an action to enjoin discharges of pollutantsinto the environment only after or on condition that an opportunity is affordedpersons (natural or corporate) who are not named as parties to the action tocomment on the proposed judgment prior to its entry by the court.</P> <P>(b) To effectuate this policy, each proposed judgment which is within thescope of paragraph (a) of this section shall be lodged with the court as earlyas 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 Departmentof Justice will receive and consider, and file with the court, any writtencomments, views or allegations relating to the proposed judgment. The Departmentshall reserve the right (1) to withdraw or withhold its consent to the proposedjudgment if the comments, views and allegations concerning the judgment disclosefacts or considerations which indicate that the proposed judgment isinappropriate, improper or inadequate and (2) to oppose an attempt by any personto intervene in the action.</P> <P>(c) The Assistant Attorney General in charge of the Land and NaturalResources Division may establish procedures for implementing this policy. Whereit is clear that the public interest in the policy hereby established is notcompromised, the Assistant Attorney General may permit an exception to thispolicy in a specific case where extraordinary circumstances require a periodshorter than 30 days or a procedure other than stated herein.</P> <CITA>[Order No. 529-73, 38 FR 19029, July 17, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.8</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 50.9</SECTNO> <SUBJECT>Policy with regard to open judicial proceedings.</SUBJECT> <P>Because of the vital public interest in open judicial proceedings, theGovernment has a general overriding affirmative duty to oppose their closure.There is, moreover, a strong presumption against closing proceedings or portionsthereof, and the Department of Justice foresees very few cases in which closurewould be warranted. The Government should take a position on any motion to closea judicial proceeding, and should ordinarily oppose closure; it should move foror consent to closed proceedings only when closure is plainly essential to theinterests of justice. In furtherance of the Department's concern for the rightof the public to attend judicial proceedings and the Department's obligation tothe fair administration of justice, the following guidelines shall be adhered toby all attorneys for the United States.</P> <P>(a) These guidelines apply to all federal trials, pre- and post-trialevidentiary proceedings, arraignments, bond hearings, plea proceedings,sentencing proceedings, or portions thereof, except as indicated in paragraph(e) of this section.</P> <P>(b) A Government attorney has a compelling duty to protect the societalinterest in open proceedings.<PRTPAGE P="43"/> </P> <P>(c) A Government attorney shall not move for or consent to closure of aproceeding covered by these guidelines unless:</P> <P>(1) No reasonable alternative exists for protecting the interests atstake;</P> <P>(2) Closure is clearly likely to prevent the harm sought to be avoided;</P> <P>(3) The degree of closure is minimized to the greatest extent possible;</P> <P>(4) The public is given adequate notice of the proposed closure; and, inaddition, the motion for closure is made on the record, except where thedisclosure of the details of the motion papers would clearly defeat the reasonfor closure specified under paragraph (c)(6) of this section;</P> <P>(5) Transcripts of the closed proceedings will be unsealed as soon asthe interests requiring closure no longer obtain; and</P> <P>(6) Failure to close the proceedings will produce;</P> <P>(i) A substantial likelihood of denial of the right of any person to afair trial; or</P> <P>(ii) A substantial likelihood of imminent danger to the safety ofparties, witnesses, or other persons; or</P> <P>(iii) A substantial likelihood that ongoing investigations will beseriously jeopardized.</P> <P>(d) A government attorney shall not move for or consent to the closure of anyproceeding, civil or criminal, except with the express authorization of:</P> <P>(1) The Deputy Attorney General, or,</P> <P>(2) The Associate Attorney General, if the Division seeking authorization isunder the supervision of the Associate Attorney General.</P> <P>(e) These guidelines do not apply to:</P> <P>(1) The closure of part of a judicial proceeding where necessary to protectnational security information or classified documents; or</P> <P>(2) <E T="03">In camera</E> inspection, consideration or sealing ofdocuments, including documents provided to the Government under a promise ofconfidentiality, where permitted by statute, rule of evidence or privilege; or</P> <P>(3) Grand jury proceedings or proceedings ancillary thereto; or</P> <P>(4) Conferences traditionally held at the bench or in chambers during thecourse of an open proceeding; or</P> <P>(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.</P> <P>(f) Because of the vital public interest in open judicial proceedings, therecords of any proceeding closed pursuant to this section, and still sealed 60days after termination of the proceeding, shall be reviewed to determine if thereasons for closure are still applicable. If they are not, an appropriate motionwill be made to have the records unsealed. If the reasons for closure are stillapplicable after 60 days, this review is to be repeated every 60 days until suchtime as the records are unsealed. Compliance with this section will be monitoredby the Criminal Division.</P> <P>(g) The principles set forth in this section are intended to provide guidanceto attorneys for the Government and are not intended to create or recognize anylegally enforceable right in any person.</P> <CITA>[Order No. 914-80, 45 FR 69214, Oct. 20, 1980, as amended by OrderNo. 1031-83, 48 FR 49509, Oct. 26, 1983; Order No. 1115-85, 50 FR51677, Dec. 19, 1985; Order No. 1507-91, 56 FR 32327, July 16, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.10</SECTNO> <SUBJECT>Policy with regard to the issuance of subpoenas to members of the newsmedia, subpoenas for telephone toll records of members of the news media, andthe interrogation, indictment, or arrest of, members of the news media.</SUBJECT> <P>Because freedom of the press can be no broader than the freedom of reportersto investigate and report the news, the prosecutorial power of the governmentshould not be used in such a way that it impairs a reporter's responsibility tocover as broadly as possible controversial public issues. This policy statementis thus intended to provide protection for the news media from forms ofcompulsory process, whether civil or criminal, which might impair the newsgathering function. In balancing the concern that the Department of Justice hasfor the work of the news media and the Department's obligation to the fairadministration of justice, the following guidelines shall be adhered to by allmembers of the Department in all cases:<PRTPAGE P="44"/> </P> <P>(a) In determining whether to request issuance of a subpoena to a member ofthe 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 thepublic's interest in the free dissemination of ideas and information and thepublic's interest in effective law enforcement and the fair administration ofjustice.</P> <P>(b) All reasonable attempts should be made to obtain information fromalternative sources before considering issuing a subpoena to a member of thenews media, and similarly all reasonable alternative investigative steps shouldbe taken before considering issuing a subpoena for telephone toll records of anymember of the news media.</P> <P>(c) Negotiations with the media shall be pursued in all cases in which asubpoena to a member of the news media is contemplated. These negotiationsshould attempt to accommodate the interests of the trial or grand jury with theinterests of the media. Where the nature of the investigation permits, thegovernment should make clear what its needs are in a particular case as well asits willingness to respond to particular problems of the media.</P> <P>(d) Negotiations with the affected member of the news media shall be pursuedin all cases in which a subpoena for the telephone toll records of any member ofthe news media is contemplated where the responsible Assistant Attorney Generaldetermines that such negotiations would not pose a substantial threat to theintegrity of the investigation in connection with which the records are sought.Such determination shall be reviewed by the Attorney General when considering asubpoena authorized under paragraph (e) of this section.</P> <P>(e) No subpoena may be issued to any member of the news media or for thetelephone toll records of any member of the news media without the expressauthorization of the Attorney General: <E T="03">Provided,</E> That, if a memberof the news media with whom negotiations are conducted under paragraph (c) ofthis section expressly agrees to provide the material sought, and if thatmaterial has already been published or broadcast, the United States Attorney orthe responsible Assistant Attorney General, after having been personallysatisfied that the requirements of this section have been met, may authorizeissuance of the subpoena and shall thereafter submit to the Office of PublicAffairs a report detailing the circumstances surrounding the issuance of thesubpoena.</P> <P>(f) In requesting the Attorney General's authorization for a subpoena to amember of the news media, the following principles will apply:</P> <P>(1) In criminal cases, there should be reasonable grounds to believe, basedon information obtained from nonmedia sources, that a crime has occurred, andthat the information sought is essential to a successfulinvestigation—particularly with reference to directly establishing guiltor innocence. The subpoena should not be used to obtain peripheral,nonessential, or speculative information.</P> <P>(2) In civil cases there should be reasonable grounds, based on nonmediasources, to believe that the information sought is essential to the successfulcompletion of the litigation in a case of substantial importance. The subpoenashould not be used to obtain peripheral, nonessential, or speculativeinformation.</P> <P>(3) The government should have unsuccessfully attempted to obtain theinformation from alternative nonmedia sources.</P> <P>(4) The use of subpoenas to members of the news media should, except underexigent circumstances, be limited to the verification of published informationand to such surrounding circumstances as relate to the accuracy of the publishedinformation.</P> <P>(5) Even subpoena authorization requests for publicly disclosed informationshould be treated with care to avoid claims of harassment.</P> <P>(6) Subpoenas should, wherever possible, be directed at material informationregarding a limited subject matter, should cover a reasonably limited period oftime, and should avoid requiring production of a large volume of unpublishedmaterial. They should give reasonable and timely notice of the demand fordocuments.<PRTPAGE P="45"/> </P> <P>(g) In requesting the Attorney General's authorization for a subpoena for thetelephone toll records of members of the news media, the following principleswill apply:</P> <P>(1) There should be reasonable ground to believe that a crime has beencommitted and that the information sought is essential to the successfulinvestigation of that crime. The subpoena should be as narrowly drawn aspossible; it should be directed at relevant information regarding a limitedsubject matter and should cover a reasonably limited time period. In addition,prior to seeking the Attorney General's authorization, the government shouldhave pursued all reasonable alternative investigation steps as required byparagraph (b) of this section.</P> <P>(2) When there have been negotiations with a member of the news media whosetelephone toll records are to be subpoenaed, the member shall be givenreasonable and timely notice of the determination of the Attorney General toauthorize the subpoena and that the government intends to issue it.</P> <P>(3) When the telephone toll records of a member of the news media have beensubpoenaed 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 soonthereafter as it is determined that such notification will no longer pose aclear and substantial threat to the integrity of the investigation. In anyevent, such notification shall occur within 45 days of any return made pursuantto the subpoena, except that the responsible Assistant Attorney General mayauthorize delay of notification for no more than an additional 45 days.</P> <P>(4) Any information obtained as a result of a subpoena issued for telephonetoll records shall be closely held so as to prevent disclosure of theinformation to unauthorized persons or for improper purposes.</P> <P>(h) No member of the Department shall subject a member of the news media toquestioning as to any offense which he is suspected of having committed in thecourse of, or arising out of, the coverage or investigation of a news story, orwhile engaged in the performance of his official duties as a member of the newsmedia, without the express authority of the Attorney General: <E T="03">Provided, however,</E> That where exigent circumstances preclude priorapproval, the requirements of paragraph (l) of this section shall be observed.</P> <P>(i) A member of the Department shall secure the express authority of theAttorney General before a warrant for an arrest is sought, and whenever possiblebefore an arrest not requiring a warrant, of a member of the news media for anyoffense which he is suspected of having committed in the course of, or arisingout of, the coverage or investigation of a news story, or while engaged in theperformance of his official duties as a member of the news media.</P> <P>(j) No member of the Department shall present information to a grand juryseeking a bill of indictment, or file an information, against a member of thenews media for any offense which he is suspected of having committed in thecourse of, or arising out of, the coverage or investigation of a news story, orwhile engaged in the performance of his official duties as a member of the newsmedia, without the express authority of the Attorney General.</P> <P>(k) In requesting the Attorney General's authorization to question, to arrestor to seek an arrest warrant for, or to present information to a grand juryseeking a bill of indictment or to file an information against, a member of thenews media for an offense which he is suspected of having committed during thecourse of, or arising out of, the coverage or investigation of a news story, orcommitted while engaged in the performance of his official duties as a member ofthe news media, a member of the Department shall state all facts necessary fordetermination of the issues by the Attorney General. A copy of the request shallbe sent to the Director of Public Affairs.</P> <P>(l) When an arrest or questioning of a member of the news media is necessarybefore prior authorization of the Attorney General can be obtained, notificationof the arrest or questioning, the circumstances demonstrating that an exceptionto the requirement of prior authorization existed, and a statement containingthe information that would <PRTPAGE P="46"/>have been given in requesting prior authorization,shall be communicated immediately to the Attorney General and to the Director ofPublic Affairs.</P> <P>(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 notapply to demands for purely commercial or financial information unrelated to thenews gathering function.</P> <P>(n) Failure to obtain the prior approval of the Attorney General mayconstitute grounds for an administrative reprimand or other appropriatedisciplinary action. The principles set forth in this section are not intendedto create or recognize any legally enforceable right in any person.</P> <CITA>[Order No. 916-80, 45 FR 76436, Nov. 19, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.12</SECTNO> <SUBJECT>Exchange of FBI identification records.</SUBJECT> <P>(a) The Federal Bureau of Investigation, hereinafter referred to as the FBI,is authorized to expend funds for the exchange of identification records withofficials of federally chartered or insured banking institutions to promote ormaintain the security of those institutions and, if authorized by state statuteand approved by the Director of the FBI, acting on behalf of the AttorneyGeneral, with officials of state and local governments for purposes ofemployment and licensing, pursuant to section 201 of Public Law 92-544, 86Stat. 1115. Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42U.S.C. 2169, respectively, such records can be exchanged with certain segmentsof the securities industry, with registered futures associations, and withnuclear power plants. The records also may be exchanged in other instances asauthorized by federal law.</P> <P>(b) The FBI Director is authorized by 28 CFR 0.85(j) to approve proceduresrelating 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 suchpurposes. Records obtained under this authority may be used solely for thepurpose requested and cannot be disseminated outside the receiving departments,related agencies, or other authorized entities. Officials at the governmentalinstitutions and other entities authorized to submit fingerprints and receiveFBI identification records under this authority must notify the individualsfingerprinted that the fingerprints will be used to check the criminal historyrecords of the FBI. The officials making the determination of suitability forlicensing or employment shall provide the applicants the opportunity tocomplete, or challenge the accuracy of, the information contained in the FBIidentification record. These officials also must advise the applicants thatprocedures for obtaining a change, correction, or updating of an FBIidentification record are set forth in 28 CFR 16.34. Officials making suchdeterminations should not deny the license or employment based on information inthe record until the applicant has been afforded a reasonable time to correct orcomplete the record, or has declined to do so. A statement incorporating theseuse-and-challenge requirements will be placed on all records disseminated underthis program. This policy is intended to ensure that all relevant criminalrecord information is made available to provide for the public safety and,further, to protect the interests of the prospective employee/licensee who maybe affected by the information or lack of information in an identificationrecord.</P> <CITA>[Order No. 2258-99, 64 FR 52229, Sept. 28, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.14</SECTNO> <SUBJECT>Guidelines on employee selection procedures.</SUBJECT> <P>The guidelines set forth below are intended as a statement of policy of theDepartment of Justice and will be applied by the Department in exercising itsresponsibilities under Federal law relating to equal employment opportunity.</P> <HD SOURCE="HD1">Uniform Guidelines on Employee Selection Procedures (1978)</HD> <NOTE> <HD SOURCE="HED">Note:</HD> <P>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 OpportunityCommission, Department of Labor.</P> <P>For official citation see section 18 of these guidelines.</P> </NOTE> <EXTRACT> <PRTPAGE P="47"/> <HD SOURCE="HD1">Table of Contents</HD> <HD SOURCE="HD1">general principles</HD> <FP SOURCE="FP-2">1. Statement of Purpose</FP> <P SOURCE="P-3">A. Need for Uniformity—Issuing Agencies</P> <P SOURCE="P-3">B. Purpose of Guidelines</P> <P SOURCE="P-3">C. Relation to Prior Guidelines</P> <FP SOURCE="FP-2">2. Scope</FP> <P SOURCE="P-3">A. Application of Guidelines</P> <P SOURCE="P-3">B. Employment Decisions</P> <P SOURCE="P-3">C. Selection Procedures</P> <P SOURCE="P-3">D. Limitations</P> <P SOURCE="P-3">E. Indian Preference Not Affected</P> <FP SOURCE="FP-2">3. Discrimination Defined: Relationship Between Use of SelectionProcedures and Discrimination</FP> <P SOURCE="P-3">A. Procedure Having Adverse Impact Constitutes Discrimination UnlessJustified</P> <P SOURCE="P-3">B. Consideration of Suitable Alternative Selection Procedures</P> <FP SOURCE="FP-2">4. Information on Impact</FP> <P SOURCE="P-3">A. Records Concerning Impact</P> <P SOURCE="P-3">B. Applicable Race, Sex and Ethnic Groups For Record Keeping</P> <P SOURCE="P-3">C. Evaluation of Selection Rates. The “Bottom Line”</P> <P SOURCE="P-3">D. Adverse Impact And The “Four-Fifths Rule”</P> <P SOURCE="P-3">E. Consideration of User's Equal Employment Opportunity Posture</P> <FP SOURCE="FP-2">5. General Standards for Validity Studies</FP> <P SOURCE="P-3">A. Acceptable types of Validity Studies</P> <P SOURCE="P-3">B. Criterion-Related, Content, and Construct Validity</P> <P SOURCE="P-3">C. Guidelines Are Consistent with Professional Standards</P> <P SOURCE="P-3">D. Need For Documentation of Validity</P> <P SOURCE="P-3">E. Accuracy and Standardization</P> <P SOURCE="P-3">F. Caution Against Selection on Basis of Knowledges, Skills or AbilitiesLearned in Brief Orientation Period</P> <P SOURCE="P-3">G. Method of Use of Selection Procedures</P> <P SOURCE="P-3">H. Cutoff Scores</P> <P SOURCE="P-3">I. Use of Selection Procedures for Higher Level Jobs</P> <P SOURCE="P-3">J. Interim Use of Selection Procedures</P> <P SOURCE="P-3">K. Review of Validity Studies for Currency</P> <FP SOURCE="FP-2">6. Use of Selection Procedures Which Have Not Been Validated</FP> <P SOURCE="P-3">A. Use of Alternate Selection Procedures to Eliminate Adverse Impact</P> <P SOURCE="P-3">B. Where Validity Studies Cannot or Need Not Be Performed</P> <P SOURCE="P1">(1) Where Informal or Unscored Procedures Are Used</P> <P SOURCE="P1">(2) Where Formal And Scored Procedures Are Used</P> <FP SOURCE="FP-2">7. Use of Other Validity Studies</FP> <P SOURCE="P-3">A. Validity Studies not Conducted by the User</P> <P SOURCE="P-3">B. Use of Criterion-Related Validity Evidence from Other Sources</P> <P SOURCE="P1">(1) Validity Evidence</P> <P SOURCE="P1">(2) Job Similarity</P> <P SOURCE="P1">(3) Fairness Evidence</P> <P SOURCE="P-3">C. Validity Evidence from Multi-Unit Study</P> <P SOURCE="P-3">D. Other Significant Variables</P> <FP SOURCE="FP-2">8. Cooperative Studies</FP> <P SOURCE="P-3">A. Encouragement of Cooperative Studies</P> <P SOURCE="P-3">B. Standards for Use of Cooperative Studies</P> <FP SOURCE="FP-2">9. No Assumption of Validity</FP> <P SOURCE="P-3">A. Unacceptable Substitutes for Evidence of Validity</P> <P SOURCE="P-3">B. Encouragement of Professional Supervision</P> <FP SOURCE="FP-2">10. Employment Agencies and Employment Services</FP> <P SOURCE="P-3">A. Where Selection Procedures Are Devised by Agency</P> <P SOURCE="P-3">B. Where Selection Procedures Are Devised Elsewhere</P> <FP SOURCE="FP-2">11. Disparate Treatment</FP> <FP SOURCE="FP-2">12. Retesting of Applicants</FP> <FP SOURCE="FP-2">13. Affirmative Action</FP> <P SOURCE="P-3">A. Affirmative Action Obligations</P> <P SOURCE="P-3">B. Encouragement of Voluntary Affirmative Action Programs</P> <HD SOURCE="HD1">technical standards</HD> <FP SOURCE="FP-2">14. Technical Standards for Validity Studies</FP> <P SOURCE="P-3">A. Validity Studies Should be Based on Review of Information about the Job</P> <P SOURCE="P-3">B. Technical Standards for Criterion-Related Validity Studies</P> <P SOURCE="P1">(1) Technical Feasibility</P> <P SOURCE="P1">(2) Analysis of the Job</P> <P SOURCE="P1">(3) Criterion Measures</P> <P SOURCE="P1">(4) Representativeness of the Sample</P> <P SOURCE="P1">(5) Statistical Relationships</P> <P SOURCE="P1">(6) Operational Use of Selection Procedures</P> <P SOURCE="P1">(7) Over-Statement of Validity Findings</P> <P SOURCE="P1">(8) Fairness</P> <P SOURCE="P2">(a) Unfairness Defined</P> <P SOURCE="P2">(b) Investigation of Fairness</P> <P SOURCE="P2">(c) General Considerations in Fairness Investigations</P> <P SOURCE="P2">(d) When Unfairness Is Shown</P> <P SOURCE="P2">(e) Technical Feasibility of Fairness Studies</P> <P SOURCE="P2">(f) Continued Use of Selection Procedures When Fairness Studies not Feasible</P> <P SOURCE="P-3">C. Technical Standards for Content Validity Studies</P> <P SOURCE="P1">(1) Appropriateness of Content Validity Studies</P> <P SOURCE="P1">(2) Job Analysis for Content Validity</P> <P SOURCE="P1">(3) Development of Selection Procedure</P> <P SOURCE="P1">(4) Standards For Demonstrating Content Validity</P> <P SOURCE="P1">(5) Reliability</P> <P SOURCE="P1">(6) Prior Training or Experience</P> <P SOURCE="P1">(7) Training Success</P> <P SOURCE="P1">(8) Operational Use</P> <P SOURCE="P1">(9) Ranking Based on Content Validity Studies</P> <P SOURCE="P-3">D. Technical Standards For Construct Validity Studies<PRTPAGE P="48"/> </P> <P SOURCE="P1">(1) Appropriateness of Construct Validity Studies</P> <P SOURCE="P1">(2) Job Analysis For Construct Validity Studies</P> <P SOURCE="P1">(3) Relationship to the Job</P> <P SOURCE="P1">(4) Use of Construct Validity Study Without New Criterion-Related Evidence</P> <P SOURCE="P2">(a) Standards for Use</P> <P SOURCE="P2">(b) Determination of Common Work Behaviors</P> <HD SOURCE="HD1">documentation of impact and validity evidence</HD> <FP SOURCE="FP-2">15. Documentation of Impact and Validity Evidence</FP> <P SOURCE="P-3">A. Required Information</P> <P SOURCE="P1">(1) Simplified Recordkeeping for Users With Less Than 100 Employees</P> <P SOURCE="P1">(2) Information on Impact</P> <P SOURCE="P2">(a) Collection of Information on Impact</P> <P SOURCE="P2">(b) When Adverse Impact Has Been Eliminated in The Total Selection Process</P> <P SOURCE="P2">(c) When Data Insufficient to Determine Impact</P> <P SOURCE="P1">(3) Documentation of Validity Evidence</P> <P SOURCE="P2">(a) Type of Evidence</P> <P SOURCE="P2">(b) Form of Report</P> <P SOURCE="P2">(c) Completeness</P> <P SOURCE="P-3">B. Criterion-Related Validity Studies</P> <P SOURCE="P1">(1) User(s), Location(s), and Date(s) of Study</P> <P SOURCE="P1">(2) Problem and Setting</P> <P SOURCE="P1">(3) Job Analysis or Review of Job Information</P> <P SOURCE="P1">(4) Job Titles and Codes</P> <P SOURCE="P1">(5) Criterion Measures</P> <P SOURCE="P1">(6) Sample Description</P> <P SOURCE="P1">(7) Description of Selection Procedure</P> <P SOURCE="P1">(8) Techniques and Results</P> <P SOURCE="P1">(9) Alternative Procedures Investigated</P> <P SOURCE="P1">(10) Uses and Applications</P> <P SOURCE="P1">(11) Source Data</P> <P SOURCE="P1">(12) Contact Person</P> <P SOURCE="P1">(13) Accuracy and Completeness</P> <P SOURCE="P-3">C. Content Validity Studies</P> <P SOURCE="P1">(1) User(s), Location(s), and Date(s) of Study</P> <P SOURCE="P1">(2) Problem and Setting</P> <P SOURCE="P1">(3) Job Analysis—Content of the Job</P> <P SOURCE="P1">(4) Selection Procedure and its Content</P> <P SOURCE="P1">(5) Relationship Between Selection Procedure and the Job</P> <P SOURCE="P1">(6) Alternative Procedures Investigated</P> <P SOURCE="P1">(7) Uses and Applications</P> <P SOURCE="P1">(8) Contact Person</P> <P SOURCE="P1">(9) Accuracy and Completeness</P> <P SOURCE="P-3">D. Construct Validity Studies</P> <P SOURCE="P1">(1) User(s), Location(s), and Date(s) of Study</P> <P SOURCE="P1">(2) Problem and Setting</P> <P SOURCE="P1">(3) Construct Definition</P> <P SOURCE="P1">(4) Job Analysis</P> <P SOURCE="P1">(5) Job Titles and Codes</P> <P SOURCE="P1">(6) Selection Procedure</P> <P SOURCE="P1">(7) Relationship to Job Performance</P> <P SOURCE="P1">(8) Alternative Procedures Investigated</P> <P SOURCE="P1">(9) Uses and Applications</P> <P SOURCE="P1">(10) Accuracy and Completeness</P> <P SOURCE="P1">(11) Source Data</P> <P SOURCE="P1">(12) Contact Person</P> <P SOURCE="P-3">E. Evidence of Validity from Other Studies</P> <P SOURCE="P1">(1) Evidence from Criterion-Related Validity Studies</P> <P SOURCE="P2">(a) Job Information</P> <P SOURCE="P2">(b) Relevance of Criteria</P> <P SOURCE="P2">(c) Other Variables</P> <P SOURCE="P2">(d) Use of the Selection Procedure</P> <P SOURCE="P2">(e) Bibliography</P> <P SOURCE="P1">(2) Evidence from Content Validity Studies</P> <P SOURCE="P1">(3) Evidence from Construct Validity Studies</P> <P SOURCE="P-3">F. Evidence of Validity from Cooperative Studies</P> <P SOURCE="P-3">G. Selection for Higher Level Jobs</P> <P SOURCE="P-3">H. Interim Use of Selection Procedures</P> <HD SOURCE="HD1">definitions</HD> <FP SOURCE="FP-2">16. Definitions</FP> <HD SOURCE="HD1">appendix</HD> <FP SOURCE="FP-2">17. Policy Statement on Affirmative Action (see Section 13B)</FP> <FP SOURCE="FP-2">18. Citations</FP> <HD SOURCE="HD1">General Principles</HD> <P> <E T="04">Section</E> 1. <E T="03">Statement of purpose</E>—A. <E T="03">Need for uniformity—Issuing agencies.</E> The Federal government'sneed for a uniform set of principles on the question of the use of tests andother selection procedures has long been recognized. The Equal EmploymentOpportunity Commission, the Civil Service Commission, the Department of Labor,and the Department of Justice jointly have adopted these uniform guidelines tomeet that need, and to apply the same principles to the Federal Government asare applied to other employers.</P> <P>B. <E T="03">Purpose of guidelines.</E> These guidelines incorporate a singleset of principles which are designed to assist employers, labor organizations,employment agencies, and licensing and certification boards to comply withrequirements of Federal law prohibiting employment practices which discriminateon grounds of race, color, religion, sex, and national origin. They are designedto provide a framework for determining the proper use of tests and otherselection procedures. These guidelines do not require a user to conduct validitystudies of selection procedures where no adverse impact results. However, allusers are encouraged to use selection procedures which are valid, especiallyusers operating under merit principles.</P> <P>C. <E T="03">Relation to prior guidelines.</E> These guidelines are basedupon and supersede previously issued guidelines on employee selectionprocedures. These guidelines have been built upon court decisions, thepreviously issued guidelines of the agencies, and the <PRTPAGE P="49"/>practical experience ofthe agencies, as well as the standards of the psychological profession. Theseguidelines are intended to be consistent with existing law.</P> <P> <E T="04">Sec.</E> 2. <E T="03">Scope</E>—A. <E T="03">Application ofguidelines.</E> These guidelines will be applied by the Equal EmploymentOpportunity Commission in the enforcement of title VII of the Civil Rights Actof 1964, as amended by the Equal Employment Opportunity Act of 1972 (hereinafter“Title VII”); by the Department of Labor, and the contractcompliance agencies until the transfer of authority contemplated by thePresident's Reorganization Plan No. 1 of 1978, in the administration andenforcement of Executive Order 11246, as amended by Executive Order 11375(hereinafter “Executive Order 11246”); by the Civil ServiceCommission and other Federal agencies subject to section 717 of title VII; bythe Civil Service Commission in exercising its responsibilities toward State andlocal governments under section 208(b)(1) of the Intergovernmental-PersonnelAct; by the Department of Justice in exercising its responsibilities underFederal law; by the Office of Revenue Sharing of the Department of the Treasuryunder the State and Local Fiscal Assistance Act of 1972, as amended; and by anyother Federal agency which adopts them.</P> <P>B. <E T="03">Employment decisions.</E> These guidelines apply to tests andother selection procedures which are used as a basis for any employmentdecision. 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 andcertification may be covered by Federal equal employment opportunity law. Otherselection decisions, such as selection for training or transfer, may also beconsidered employment decisions if they lead to any of the decisions listedabove.</P> <P>C. <E T="03">Selection procedures.</E> These guidelines apply only toselection procedures which are used as a basis for making employment decisions.For example, the use of recruiting procedures designed to attract members of aparticular race, sex, or ethnic group, which were previously denied employmentopportunities or which are currently underutilized, may be necessary to bring anemployer into compliance with Federal law, and is frequently an essentialelement of any effective affirmative action program; but recruitment practicesare not considered by these guidelines to be selection procedures. Similarly,these guidelines do not pertain to the question of the lawfulness of a senioritysystem within the meaning of section 703(h), Executive Order 11246 or otherprovisions of Federal law or regulation, except to the extent that such systemsutilize selection procedures to determine qualifications or abilities to performthe job. Nothing in these guidelines is intended or should be interpreted asdiscouraging the use of a selection procedure for the purpose of determiningqualifications or for the purpose of selection on the basis of relativequalifications, if the selection procedure had been validated in accord withthese guidelines for each such purpose for which it is to be used.</P> <P>D. <E T="03">Limitations.</E> These guidelines apply only to persons subjectto title VII, Executive Order 11246, or other equal employment opportunityrequirements of Federal law. These guidelines do not apply to responsibilitiesunder the Age Discrimination in Employment Act of 1967, as amended, not todiscriminate on the basis of age, or under sections 501, 503, and 504 of theRehabilitation Act of 1973, not to discriminate on the basis of handicap.</P> <P>E. <E T="03">Indian preference not affected.</E> These guidelines do notrestrict any obligation imposed or right granted by Federal law to users toextend a preference in employment to Indians living on or near an Indianreservation in connection with employment opportunities on or near an Indianreservation.</P> <P> <E T="04">Sec.</E> 3. <E T="03">Discrimination defined: Relationship betweenuse of selection procedures and discrimination</E>—A. <E T="03">Procedurehaving adverse impact constitutes discrimination unless justified.</E> The useof any selection procedure which has an adverse impact on the hiring, promotion,or other employment or membership opportunities of members of any race, sex, orethnic group will be considered to be discriminatory and inconsistent with theseguidelines, unless the procedure has been validated in accordance with theseguidelines, or the provisions of section 6 below are satisfied.</P> <P>B. <E T="03">Consideration of suitable alternative selection procedures.</E>Where two or more selection procedures are available which serve the user'slegitimate interest in efficient and trustworthy workmanship, and which aresubstantially equally valid for a given purpose, the user should use theprocedure which has been demonstrated to have the lesser adverse impact.Accordingly, whenever a validity study is called for by these guidelines, theuser should include, as a part of the validity study, an investigation ofsuitable alternative selection procedures and suitable alternative methods ofusing the selection procedure which have as little adverse impact as possible,to determine the appropriateness of using or validating them in accord withthese guidelines. If a user has made a reasonable effort to become aware of suchalternative procedures and validity has been demonstrated in accord with theseguidelines, the use of the test or other selection procedure may continue untilsuch time as it should reasonably be reviewed for currency. Whenever the user isshown an alternative selection procedure with evidence of less adverse impactand substantial evidence <PRTPAGE P="50"/>of validity for the same job in similar circumstances,the user should investigate it to determine the appropriateness of using orvalidating it in accord with these guidelines. This subsection is not intendedto preclude the combination of procedures into a significantly more validprocedure, if the use of such a combination has been shown to be in compliancewith the guidelines.</P> <P> <E T="04">Sec.</E> 4. <E T="03">Information on impact</E>—A. <E T="03">Records concerning impact.</E> Each user should maintain and haveavailable for inspection records or other information which will disclose theimpact which its tests and other selection procedures have upon employmentopportunities of persons by identifiable race, sex, or ethnic group as set forthin paragraph B below in order to determine compliance with these guidelines.Where there are large numbers of applicants and procedures are administeredfrequently, such information may be retained on a sample basis, provided thatthe sample is appropriate in terms of the applicant population and adequate insize.</P> <P>B. <E T="03">Applicable race, sex, and ethnic groups for recordkeeping.</E>The records called for by this section are to be maintained by sex, and thefollowing races and ethnic groups: Blacks (Negroes), American Indians (includingAlaskan Natives), Asians (including Pacific Islanders), Hispanic (includingpersons of Mexican, Puerto Rican, Cuban, Central or South American, or otherSpanish origin or culture regardless of race), whites (Caucasians) other thanHispanic, and totals. The race, sex, and ethnic classifications called for bythis section are consistent with the Equal Employment Opportunity Standard Form100, Employer Information Report EEO-1 series of reports. The user shouldadopt safeguards to insure that the records required by this paragraph are usedfor appropriate purposes such as determining adverse impact, or (where required)for developing and monitoring affirmative action programs, and that such recordsare not used improperly. See sections 4E and 17(4), below.</P> <P>C. <E T="03">Evaluation of selection rates. The “bottomline.”</E> If the information called for by sections 4A and B above showsthat the total selection process for a job has an adverse impact, the individualcomponents of the selection process should be evaluated for adverse impact. Ifthis information shows that the total selection process does not have an adverseimpact, the Federal enforcement agencies, in the exercise of theiradministrative and prosecutorial discretion, in usual circumstances, will notexpect a user to evaluate the individual components for adverse impact, or tovalidate such individual components, and will not take enforcement action basedupon adverse impact of any component of that process, including the separateparts of a multipart selection procedure or any separate procedure that is usedas an alternative method of selection. However, in the following circumstancesthe Federal enforcement agencies will expect a user to evaluate the individualcomponents for adverse impact and may, where appropriate, take enforcementaction with respect to the individual components: (1) Where the selectionprocedure is a significant factor in the continuation of patterns of assignmentsof incumbent employees caused by prior discriminatory employment practices, (2)where the weight of court decisions or administrative interpretations hold thata specific procedure (such as height or weight requirements or no-arrestrecords) is not job related in the same or similar circumstances. In unusualcircumstances, other than those listed in (1) and (2) above, the Federalenforcement agencies may request a user to evaluate the individual componentsfor adverse impact and may, where appropriate, take enforcement action withrespect to the individual component.</P> <P>D. <E T="03">Adverse impact and the “four-fifths rule.”</E> Aselection rate for any race, sex, or ethnic group which is less than four-fifths(<FR>4/5</FR>) (or eighty percent) of the rate for the group with the highestrate will generally be regarded by the Federal enforcement agencies as evidenceof adverse impact, while a greater than four-fifths rate will generally not beregarded by Federal enforcement agencies as evidence of adverse impact. Smallerdifferences in selection rate may nevertheless constitute adverse impact, wherethey are significant in both statistical and practical terms or where a user'sactions have discouraged applicants disproportionately on grounds of race, sex,or ethnic group. Greater differences in selection rate may not constituteadverse impact where the differences are based on small numbers and are notstatistically significant, or where special recruiting or other programs causethe pool of minority or female candidates to be atypical of the normal pool ofapplicants from that group. Where the user's evidence concerning the impact of aselection procedure indicates adverse impact but is based upon numbers which aretoo small to be reliable, evidence concerning the impact of the procedure over alonger period of time and/or evidence concerning the impact which the selectionprocedure had when used in the same manner in similar circumstances elsewheremay be considered in determining adverse impact. Where the user has notmaintained data on adverse impact as required by the documentation section ofapplicable guidelines, the Federal enforcement agencies may draw an inference ofadverse impact of the selection process from the failure of the user to maintainsuch 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, inthe case of jobs filled from within, the applicable work force.<PRTPAGE P="51"/> </P> <P>E. <E T="03">Consideration of user's equal employment opportunityposture.</E> In carrying out their obligations, the Federal enforcement agencieswill consider the general posture of the user with respect to equal employmentopportunity for the job or group of jobs in question. Where a user has adoptedan affirmative action program, the Federal enforcement agencies will considerthe provisions of that program, including the goals and timetables which theuser has adopted and the progress which the user has made in carrying out thatprogram and in meeting the goals and timetables. While such affirmative actionprograms may in design and execution be race, color, sex, or ethnic conscious,selection procedures under such programs should be based upon the ability orrelative ability to do the work.</P> <P> <E T="04">Sec.</E> 5. <E T="03">General standards for validitystudies</E>—A. <E T="03">Acceptable types of validity studies.</E> For thepurposes of satisfying these guidelines, users may rely upon criterion-relatedvalidity studies, content validity studies or construct validity studies, inaccordance with the standards set forth in the technical standards of theseguidelines, section 14 below. New strategies for showing the validity ofselection procedures will be evaluated as they become accepted by thepsychological profession.</P> <P>B. <E T="03">Criterion-related, content, and construct validity.</E> Evidenceof the validity of a test or other selection procedure by a criterion-relatedvalidity study should consist of empirical data demonstrating that the selectionprocedure is predictive of or significantly correlated with important elementsof job performance. See section 14B below. Evidence of the validity of a test orother selection procedure by a content validity study should consist of datashowing that the content of the selection procedure is representative ofimportant aspects of performance on the job for which the candidates are to beevaluated. See section 14C below. Evidence of the validity of a test or otherselection procedure through a construct validity study should consist of datashowing that the procedure measures the degree to which candidates haveidentifiable characteristics which have been determined to be important insuccessful performance in the job for which the candidates are to be evaluated.See section 14D below.</P> <P>C. <E T="03">Guidelines are consistent with professional standards.</E> Theprovisions of these guidelines relating to validation of selection proceduresare intended to be consistent with generally accepted professional standards forevaluating standardized tests and other selection procedures, such as thosedescribed in the Standards for Educational and Psychological Tests prepared by ajoint committee of the American Psychological Association, the AmericanEducational Research Association, and the National Council on Measurement inEducation (American Psychological Association, Washington, DC, 1974)(hereinafter “A.P.A. Standards”) and standard textbooks and journalsin the field of personnel selection.</P> <P>D. <E T="03">Need for documentation of validity.</E> For any selectionprocedure which is part of a selection process which has an adverse impact andwhich selection procedure has an adverse impact, each user should maintain andhave available such documentation as is described in section 15 below.</P> <P>E. <E T="03">Accuracy and standardization.</E> Validity studies should becarried out under conditions which assure insofar as possible the adequacy andaccuracy of the research and the report. Selection procedures should beadministered and scored under standardized conditions.</P> <P>F. <E T="03">Caution against selection on basis of knowledges, skills, orability learned in brief orientation period.</E> In general, users should avoidmaking employment decisions on the basis of measures of knowledges, skills, orabilities which are normally learned in a brief orientation period, and whichhave an adverse impact.</P> <P>G. <E T="03">Method of use of selection procedures.</E> The evidence of boththe validity and utility of a selection procedure should support the method theuser chooses for operational use of the procedure, if that method of use has agreater adverse impact than another method of use. Evidence which may besufficient to support the use of a selection procedure on a pass/fail(screening) basis may be insufficient to support the use of the same procedureon a ranking basis under these guidelines. Thus, if a user decides to use aselection procedure on a ranking basis, and that method of use has a greateradverse impact than use on an appropriate pass/fail basis (see section 5Hbelow), the user should have sufficient evidence of validity and utility tosupport the use on a ranking basis. See sections 3B, 14B (5) and (6), and 14C(8) and (9).</P> <P>H. <E T="03">Cutoff scores.</E> Where cutoff scores are used, they shouldnormally be set so as to be reasonable and consistent with normal expectationsof acceptable proficiency within the work force. Where applicants are ranked onthe basis of properly validated selection procedures and those applicantsscoring below a higher cutoff score than appropriate in light of suchexpectations have little or no chance of being selected for employment, thehigher cutoff score may be appropriate, but the degree of adverse impact shouldbe considered.</P> <P>I. <E T="03">Use of selection procedures for higher level jobs.</E> If jobprogression structures are so established that employees will probably, within areasonable period of time and in a majority of cases, progress to a higherlevel, it may be considered that the applicants are being evaluated for a job orjobs at the higher level. However, where job progression is <PRTPAGE P="52"/>not so nearlyautomatic, or the time span is such that higher level jobs or employees'potential may be expected to change in significant ways, it should be consideredthat applicants are being evaluated for a job at or near the entry level. A“reasonable period of time” will vary for different jobs andemployment situations but will seldom be more than 5 years. Use of selectionprocedures to evaluate applicants for a higher level job would not beappropriate:</P> <P>(1) If the majority of those remaining employed do not progress to the higherlevel job;</P> <P>(2) If there is a reason to doubt that the higher level job will continue torequire essentially similar skills during the progression period; or</P> <P>(3) If the selection procedures measure knowledges, skills, or abilitiesrequired for advancement which would be expected to develop principally from thetraining or experience on the job.</P> <P>J. <E T="03">Interim use of selection procedures.</E> Users may continue theuse of a selection procedure which is not at the moment fully supported by therequired evidence of validity, provided: (1) The user has available substantialevidence of validity, and (2) the user has in progress, when technicallyfeasible, a study which is designed to produce the additional evidence requiredby these guidelines within a reasonable time. If such a study is not technicallyfeasible, see section 6B. If the study does not demonstrate validity, thisprovision of these guidelines for interim use shall not constitute a defense inany action, nor shall it relieve the user of any obligations arising underFederal law.</P> <P>K. <E T="03">Review of validity studies for currency.</E> Whenever validityhas been shown in accord with these guidelines for the use of a particularselection procedure for a job or group of jobs, additional studies need not beperformed until such time as the validity study is subject to review as providedin section 3B above. There are no absolutes in the area of determining thecurrency of a validity study. All circumstances concerning the study, includingthe validation strategy used, and changes in the relevant labor market and thejob should be considered in the determination of when a validity study isoutdated.</P> <P> <E T="04">Sec.</E> 6. <E T="03">Use of selection procedures which have notbeen validated</E>—A. <E T="03">Use of alternate selection procedures toeliminate adverse impact.</E> A user may choose to utilize alternative selectionprocedures in order to eliminate adverse impact or as part of an affirmativeaction program. See section 13 below. Such alternative procedures shouldeliminate the adverse impact in the total selection process, should be lawfuland should be as job related as possible.</P> <P>B. <E T="03">Where validity studies cannot or need not be performed.</E>There are circumstances in which a user cannot or need not utilize thevalidation techniques contemplated by these guidelines. In such circumstances,the user should utilize selection procedures which are as job related aspossible and which will minimize or eliminate adverse impact, as set forthbelow.</P> <P>(1) <E T="03">Where informal or unscored procedures are used.</E> When aninformal or unscored selection procedure which has an adverse impact isutilized, the user should eliminate the adverse impact, or modify the procedureto one which is a formal, scored or quantified measure or combination ofmeasures and then validate the procedure in accord with these guidelines, orotherwise justify continued use of the procedure in accord with Federal law.</P> <P>(2) <E T="03">Where formal and scored procedures are used.</E> When a formaland scored selection procedure is used which has an adverse impact, thevalidation techniques contemplated by these guidelines usually should befollowed if technically feasible. Where the user cannot or need not follow thevalidation techniques anticipated by these guidelines, the user should eithermodify the procedure to eliminate adverse impact or otherwise justify continueduse of the procedure in accord with Federal law.</P> <P> <E T="04">Sec.</E> 7. <E T="03">Use of other validity studies</E>—A. <E T="03">Validity studies not conducted by the user.</E> Users may, under certaincircumstances, support the use of selection procedures by validity studiesconducted by other users or conducted by test publishers or distributors anddescribed in test manuals. While publishers of selection procedures have aprofessional obligation to provide evidence of validity which meets generallyaccepted professional standards (see section 5C above), users are cautioned thatthey are responsible for compliance with these guidelines. Accordingly, usersseeking to obtain selection procedures from publishers and distributors shouldbe careful to determine that, in the event the user becomes subject to thevalidity requirements of these guidelines, the necessary information to supportvalidity has been determined and will be made available to the user.</P> <P>B. <E T="03">Use of criterion-related validity evidence from othersources.</E> Criterion-related validity studies conducted by one test user, ordescribed in test manuals and the professional literature, will be consideredacceptable for use by another user when the following requirements are met:</P> <P>(1) <E T="03">Validity evidence.</E> Evidence from the available studiesmeeting the standards of section 14B below clearly demonstrates that theselection procedure is valid;</P> <P>(2) <E T="03">Job similarity.</E> The incumbents in the user's job and theincumbents in the job or group of jobs on which the validity study was conductedperform substantially the same major work behaviors, as shown by appropriate jobanalyses both on the job or <PRTPAGE P="53"/>group of jobs on which the validity study wasperformed and on the job for which the selection procedure is to be used; and</P> <P>(3) <E T="03">Fairness evidence.</E> The studies include a study of testfairness for each race, sex, and ethnic group which constitutes a significantfactor in the borrowing user's relevant labor market for the job or jobs inquestion. If the studies under consideration satisfy (1) and (2) above but donot contain an investigation of test fairness, and it is not technicallyfeasible for the borrowing user to conduct an internal study of test fairness,the borrowing user may utilize the study until studies conducted elsewheremeeting the requirements of these guidelines show test unfairness, or until suchtime as it becomes technically feasible to conduct an internal study of testfairness and the results of that study can be acted upon. Users obtainingselection procedures from publishers should consider, as one factor in thedecision to purchase a particular selection procedure, the availability ofevidence concerning test fairness.</P> <P>C. <E T="03">Validity evidence from multiunit study.</E> if validity evidencefrom a study covering more than one unit within an organization satisfies therequirements of section 14B below, evidence of validity specific to each unitwill not be required unless there are variables which are likely to affectvalidity significantly.</P> <P>D. <E T="03">Other significant variables.</E> If there are variables in theother studies which are likely to affect validity significantly, the user maynot rely upon such studies, but will be expected either to conduct an internalvalidity study or to comply with section 6 above.</P> <P> <E T="04">Sec.</E> 8. <E T="03">Cooperative studies</E>—A. <E T="03">Encouragement of cooperative studies.</E> The agencies issuing theseguidelines encourage employers, labor organizations, and employment agencies tocooperate in research, development, search for lawful alternatives, and validitystudies in order to achieve procedures which are consistent with theseguidelines.</P> <P>B. <E T="03">Standards for use of cooperative studies.</E> If validityevidence from a cooperative study satisfies the requirements of section 14below, evidence of validity specific to each user will not be required unlessthere are variables in the user's situation which are likely to affect validitysignificantly.</P> <P> <E T="04">Sec.</E> 9. <E T="03">No assumption of validity</E>—A. <E T="03">Unacceptable substitutes for evidence of validity.</E> Under nocircumstances will the general reputation of a test or other selectionprocedures, its author or its publisher, or casual reports of it's validity beaccepted in lieu of evidence of validity. Specifically ruled out are:Assumptions of validity based on a procedure's name or descriptive labels; allforms of promotional literature; data bearing on the frequency of a procedure'susage; testimonial statements and credentials of sellers, users, or consultants;and other nonempirical or anecdotal accounts of selection practices or selectionoutcomes.</P> <P>B. <E T="03">Encouragement of professional supervision.</E> Professionalsupervision of selection activities is encouraged but is not a substitute fordocumented evidence of validity. The enforcement agencies will take into accountthe fact that a thorough job analysis was conducted and that careful developmentand use of a selection procedure in accordance with professional standardsenhance the probability that the selection procedure is valid for the job.</P> <P> <E T="04">Sec.</E> 10. <E T="03">Employment agencies and employmentservices</E>—A. <E T="03">Where selection procedures are devised byagency.</E> An employment agency, including private employment agencies andState employment agencies, which agrees to a request by an employer or labororganization to device and utilize a selection procedure should follow thestandards in these guidelines for determining adverse impact. If adverse impactexists the agency should comply with these guidelines. An employment agency isnot relieved of its obligation herein because the user did not request suchvalidation or has requested the use of some lesser standard of validation thanis provided in these guidelines. The use of an employment agency does notrelieve an employer or labor organization or other user of its responsibilitiesunder Federal law to provide equal employment opportunity or its obligations asa user under these guidelines.</P> <P>B. <E T="03">Where selection procedures are devised elsewhere.</E> Where anemployment agency or service is requested to administer a selection procedurewhich has been devised elsewhere and to make referrals pursuant to the results,the employment agency or service should maintain and have available evidence ofthe impact of the selection and referral procedures which it administers. Ifadverse impact results the agency or service should comply with theseguidelines. If the agency or service seeks to comply with these guidelines byreliance upon validity studies or other data in the possession of the employer,it should obtain and have available such information.</P> <P> <E T="04">Sec.</E> 11. <E T="03">Disparate treatment.</E> The principles ofdisparate or unequal treatment must be distinguished from the concepts ofvalidation. A selection procedure—even though validated against jobperformance in accordance with these guidelines—cannot be imposed uponmembers of a race, sex, or ethnic group where other employees, applicants, ormembers have not been subjected to that standard. Disparate treatment occurswhere members of a race, sex, or ethnic group have been denied the sameemployment, promotion, membership, or other employment opportunities as havebeen available to other employees or applicants. Those employees or <PRTPAGE P="54"/>applicantswho have been denied equal treatment, because of prior discriminatory practicesor policies, must at least be afforded the same opportunities as had existed forother employees or applicants during the period of discrimination. Thus, thepersons who were in the class of persons discriminated against during the periodthe user followed the discriminatory practices should be allowed the opportunityto qualify under less stringent selection procedures previously followed, unlessthe user demonstrates that the increased standards are required by businessnecessity. This section does not prohibit a user who has not previously followedmerit standards from adopting merit standards which are in compliance with theseguidelines; nor does it preclude a user who has previously used invalid orunvalidated selection procedures from developing and using procedures which arein accord with these guidelines.</P> <P> <E T="04">Sec.</E> 12. <E T="03">Retesting of applicants.</E> Users shouldprovide a reasonable opportunity for retesting and reconsideration. Whereexaminations are administered periodically with public notice, such reasonableopportunity exists, unless persons who have previously been tested are precludedfrom retesting. The user may however take reasonable steps to preserve thesecurity of its procedures.</P> <P> <E T="04">Sec.</E> 13. <E T="03">Affirmative action</E>—A. <E T="03">Affirmative action obligations.</E> The use of selection procedures whichhave been validated pursuant to these guidelines does not relieve users of anyobligations they may have to undertake affirmative action to assure equalemployment opportunity. Nothing in these guidelines is intended to preclude theuse of lawful selection procedures which assist in remedying the effects ofprior discriminatory practices, or the achievement of affirmative actionobjectives.</P> <P>B. <E T="03">Encouragement of voluntary affirmative action programs.</E>These guidelines are also intended to encourage the adoption and implementationof voluntary affirmative action programs by users who have no obligation underFederal law to adopt them; but are not intended to impose any new obligations inthat regard. The agencies issuing and endorsing these guidelines endorse for allprivate employers and reaffirm for all governmental employers the EqualEmployment Opportunity Coordinating Council's “Policy Statement onAffirmative Action Programs for State and Local Government Agencies” (41FR 38814, September 13, 1976). That policy statement is attached hereto asappendix, section 17.</P> </EXTRACT> <HD SOURCE="HD1">Technical Standards</HD> <EXTRACT> <P> <E T="04">Sec.</E> 14. <E T="03">Technical standards for validitystudies.</E> The following minimum standards, as applicable, should be met inconducting a validity study. Nothing in these guidelines is intended to precludethe development and use of other professionally acceptable techniques withrespect to validation of selection procedures. Where it is not technicallyfeasible for a user to conduct a validity study, the user has the obligationotherwise to comply with these guidelines. See sections 6 and 7 above.</P> <P>A. <E T="03">Validity studies should be based on review of information aboutthe job.</E> Any validity study should be based upon a review of informationabout the job for which the selection procedure is to be used. The review shouldinclude a job analysis except as provided in section 14B(3) below with respectto criterion-related validity. Any method of job analysis may be used if itprovides the information required for the specific validation strategy used.</P> <P>B. <E T="03">Technical standards for criterion-related validitystudies</E>—(1) <E T="03">Technical feasibility.</E> Users choosing tovalidate a selection procedure by a criterion-related validity strategy shoulddetermine whether it is technically feasible (as defined in section 16) toconduct such a study in the particular employment context. The determination ofthe 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 relevantinformation concerning the selection procedure, the potential sample and theemployment situation. Where appropriate, jobs with substantially the same majorwork behaviors may be grouped together for validity studies, in order to obtainan adequate sample. These guidelines do not require a user to hire or promotepersons for the purpose of making it possible to conduct a criterion-relatedstudy.</P> <P>(2) <E T="03">Analysis of the job.</E> There should be a review of jobinformation to determine measures of work behavior(s) or performance that arerelevant to the job or group of jobs in question. These measures or criteria arerelevant 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 criterionmeasures and their application. In view of the possibility of bias in subjectiveevaluations, supervisory rating techniques and instructions to raters should becarefully developed. All criterion measures and the methods for gathering dataneed to be examined for freedom from factors which would unfairly alter scoresof members of any group. The relevance of criteria and their freedom from biasare of particular concern when there are significant differences in measures ofjob performance for different groups.</P> <P>(3) <E T="03">Criterion measures.</E> Proper safeguards should be taken toinsure that scores on selection procedures do not enter into any judgments ofemployee adequacy that are to <PRTPAGE P="55"/>be used as criterion measures. Whatever criteriaare used should represent important or critical work behavior(s) or workoutcomes. Certain criteria may be used without a full job analysis if the usercan 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 overallwork performance may be used where a study of the job shows that it is anappropriate criterion. Where performance in training is used as a criterion,success in training should be properly measured and the relevance of thetraining should be shown either through a comparison of the content of thetraining program with the critical or important work behavior(s) of the job(s),or through a demonstration of the relationship between measures of performancein training and measures of job performance. Measures of relative success intraining include but are not limited to instructor evaluations, performancesamples, or tests. Criterion measures consisting of paper and pencil tests willbe closely reviewed for job relevance.</P> <P>(4) <E T="03">Representativeness of the sample.</E> Whether the study ispredictive or concurrent, the sample subjects should insofar as feasible berepresentative of the candidates normally available in the relevant labor marketfor the job or group of jobs in question, and should insofar as feasible includethe races, sexes, and ethnic groups normally available in the relevant jobmarket. In determining the representativeness of the sample in a concurrentvalidity study, the user should take into account the extent to which thespecific knowledges or skills which are the primary focus of the test are thosewhich employees learn on the job.</P> <P>Where samples are combined or compared, attention should be given to see thatsuch samples are comparable in terms of the actual job they perform, the lengthof time on the job where time on the job is likely to affect performance, andother relevant factors likely to affect validity differences; or that thesefactors are included in the design of the study and their effects identified.</P> <P>(5) <E T="03">Statistical relationships.</E> The degree of relationshipbetween selection procedure scores and criterion measures should be examined andcomputed, using professionally acceptable statistical procedures. Generally, aselection procedure is considered related to the criterion, for the purposes ofthese guidelines, when the relationship between performance on the procedure andperformance on the criterion measure is statistically significant at the 0.05level of significance, which means that it is sufficiently high as to have aprobability of no more than one (1) in twenty (20) to have occurred by chance.Absence of a statistically significant relationship between a selectionprocedure and job performance should not necessarily discourage otherinvestigations of the validity of that selection procedure.</P> <P>(6) <E T="03">Operational use of selection procedures.</E> Users shouldevaluate each selection procedure to assure that it is appropriate foroperational use, including establishment of cutoff scores or rank ordering.Generally, if other factors remain the same, the greater the magnitude of therelationship (e.g., correlation coefficient) between performance on a selectionprocedure and one or more criteria of performance on the job, and the greaterthe 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. Relianceupon a selection procedure which is significantly related to a criterionmeasure, but which is based upon a study involving a large number of subjectsand has a low correlation coefficient will be subject to close review if it hasa large adverse impact. Sole reliance upon a single selection instrument whichis related to only one of many job duties or aspects of job performance willalso be subject to close review. The appropriateness of a selection procedure isbest evaluated in each particular situation and there are no minimum correlationcoefficients applicable to all employment situations. In determining whether aselection procedure is appropriate for operational use the followingconsiderations should also be taken into account: The degree of adverse impactof the procedure, the availability of other selection procedures of greater orsubstantially equal validity.</P> <P>(7) <E T="03">Overstatement of validity findings.</E> Users should avoidreliance upon techniques which tend to overestimate validity findings as aresult of capitalization on chance unless an appropriate safeguard is taken.Reliance upon a few selection procedures or criteria of successful jobperformance when many selection procedures or criteria of performance have beenstudied, or the use of optimal statistical weights for selection procedurescomputed in one sample, are techniques which tend to inflate validity estimatesas a result of chance. Use of a large sample is one safeguard: Cross-validationis another.</P> <P>(8) <E T="03">Fairness.</E> This section generally calls for studies ofunfairness where technically feasible. The concept of fairness or unfairness ofselection procedures is a developing concept. In addition, fairness studiesgenerally require substantial numbers of employees in the job or group of jobsbeing studied. For these reasons, the Federal enforcement agencies recognizethat the obligation to conduct studies of fairness imposed by the guidelinesgenerally will be upon users or groups of users with a large number of personsin a job class, or test developers; and that small <PRTPAGE P="56"/>users utilizing their ownselection procedures will generally not be obligated to conduct such studiesbecause it will be technically infeasible for them to do so.</P> <P>(a) <E T="03">Unfairness defined.</E> When members of one race, sex, orethnic group characteristically obtain lower scores on a selection procedurethan members of another group, and the differences in scores are not reflectedin differences in a measure of job performance, use of the selection proceduremay unfairly deny opportunities to members of the group that obtains the lowerscores.</P> <P>(b) <E T="03">Investigation of fairness.</E> Where a selection procedureresults in an adverse impact on a race, sex, or ethnic group identified inaccordance with the classifications set forth in section 4 above and that groupis a significant factor in the relevant labor market, the user generally shouldinvestigate the possible existence of unfairness for that group if it istechnically feasible to do so. The greater the severity of the adverse impact ona group, the greater the need to investigate the possible existence ofunfairness. Where the weight of evidence from other studies shows that theselection procedure predicts fairly for the group in question and for the sameor similar jobs, such evidence may be relied on in connection with the selectionprocedure at issue.</P> <P>(c) <E T="03">General considerations in fairness investigations.</E> Usersconducting a study of fairness should review the A.P.A. Standards regardinginvestigation of possible bias in testing. An investigation of fairness of aselection procedure depends on both evidence of validity and the manner in whichthe selection procedure is to be used in a particular employment context.Fairness of a selection procedure cannot necessarily be specified in advancewithout investigating these factors. Investigation of fairness of a selectionprocedure in samples where the range of scores on selection procedures orcriterion measures is severely restricted for any subgroup sample (as comparedto other subgroup samples) may produce misleading evidence of unfairness. Thatfactor should accordingly be taken into account in conducting such studies andbefore reliance is placed on the results.</P> <P>(d) <E T="03">When unfairness is shown.</E> If unfairness is demonstratedthrough a showing that members of a particular group perform better or poorer onthe job than their scores on the selection procedure would indicate throughcomparison with how members of other groups perform, the user may either reviseor replace the selection instrument in accordance with these guidelines, or maycontinue to use the selection instrument operationally with appropriaterevisions in its use to assure compatibility between the probability ofsuccessful job performance and the probability of being selected.</P> <P>(e) <E T="03">Technical feasibility of fairness studies.</E> In addition tothe general conditions needed for technical feasibility for the conduct of acriterion-related study (see section 16, below) an investigation of fairnessrequires the following:</P> <P>(i) An adequate sample of persons in each group available for the study toachieve findings of statistical significance. Guidelines do not require a userto hire or promote persons on the basis of group classifications for the purposeof making it possible to conduct a study of fairness; but the user has theobligation otherwise to comply with these guidelines.</P> <P>(ii) The samples for each group should be comparable in terms of the actualjob they perform, length of time on the job where time on the job is likely toaffect performance, and other relevant factors likely to affect validitydifferences; or such factors should be included in the design of the study andtheir effects identified.</P> <P>(f) <E T="03">Continued use of selection procedures when fairness studies notfeasible.</E> If a study of fairness should otherwise be performed, but is nottechnically feasible, a selection procedure may be used which has otherwise metthe validity standards of these guidelines, unless the technical infeasibilityresulted from discriminatory employment practices which are demonstrated byfacts other than past failure to conform with requirements for validation ofselection procedures. However, when it becomes technically feasible for the userto perform a study of fairness and such a study is otherwise called for, theuser should conduct the study of fairness.</P> <P>C. <E T="03">Technical standards for content validity studies</E>—(1)<E T="03">Appropriateness of content validity studies.</E> Users choosing tovalidate a selection procedure by a content validity strategy should determinewhether it is appropriate to conduct such a study in the particular employmentcontext. A selection procedure can be supported by a content validity strategyto the extent that it is a representative sample of the content of the job.Selection procedures which purport to measure knowledges, skills, or abilitiesmay in certain circumstances be justified by content validity, although they maynot be representative samples, if the knowledge, skill, or ability measured bythe selection procedure can be operationally defined as provided in section14C(4) below, and if that knowledge, skill, or ability is a necessaryprerequisite to successful job performance.</P> <P>A selection procedure based upon inferences about mental processes cannot besupported solely or primarily on the basis of content validity. Thus, a contentstrategy is not appropriate for demonstrating the validity of selectionprocedures which purport to measure traits or constructs, such as intelligence,aptitude, personality, commonsense, judgment, leadership, and spatial ability. <PRTPAGE P="57"/>Content validity is also not an appropriate strategy when the selectionprocedure involves knowledges, skills, or abilities which an employee will beexpected to learn on the job.</P> <P>(2) <E T="03">Job analysis for content validity.</E> There should be a jobanalysis which includes an analysis of the important work behavior(s) requiredfor successful performance and their relative importance and, if the behaviorresults in work product(s), an analysis of the work product(s). Any job analysisshould focus on the work behavior(s) and the tasks associated with them. If workbehavior(s) are not observable, the job analysis should identify and analyzethose aspects of the behavior(s) that can be observed and the observed workproducts. The work behavior(s) selected for measurement should be critical workbehavior(s) and/or important work behavior(s) constituting most of the job.</P> <P>(3) <E T="03">Development of selection procedures.</E> A selection proceduredesigned to measure the work behavior may be developed specifically from the joband job analysis in question, or may have been previously developed by the user,or by other users or by a test publisher.</P> <P>(4) <E T="03">Standards for demonstrating content validity.</E> Todemonstrate the content validity of a selection procedure, a user should showthat the behavior(s) demonstrated in the selection procedure are arepresentative sample of the behavior(s) of the job in question or that theselection procedure provides a representative sample of the work product of thejob. In the case of a selection procedure measuring a knowledge, skill, orability, the knowledge, skill, or ability being measured should be operationallydefined. In the case of a selection procedure measuring a knowledge, theknowledge being measured should be operationally defined as that body of learnedinformation which is used in and is a necessary prerequisite for observableaspects of work behavior of the job. In the case of skills or abilities, theskill or ability being measured should be operationally defined in terms ofobservable aspects of work behavior of the job. For any selection proceduremeasuring a knowledge, skill, or ability the user should show that (a) theselection 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 anecessary prerequisite to performance of critical or important work behavior(s).In addition, to be content valid, a selection procedure measuring a skill orability should either closely approximate an observable work behavior, or itsproduct should closely approximate an observable work product. If a testpurports to sample a work behavior or to provide a sample of a work product, themanner and setting of the selection procedure and its level and complexityshould closely approximate the work situation. The closer the content and thecontext of the selection procedure are to work samples or work behaviors, thestronger is the basis for showing content validity. As the content of theselection procedure less resembles a work behavior, or the setting and manner ofthe administration of the selection procedure less resemble the work situation,or the result less resembles a work product, the less likely the selectionprocedure is to be content valid, and the greater the need for other evidence ofvalidity.</P> <P>(5) <E T="03">Reliability.</E> The reliability of selection proceduresjustified on the basis of content validity should be a matter of concern to theuser. Whenever it is feasible, appropriate statistical estimates should be madeof the reliability of the selection procedure.</P> <P>(6) <E T="03">Prior training or experience.</E> A requirement for orevaluation of specific prior training or experience based on content validity,including a specification of level or amount of training or experience, shouldbe justified on the basis of the relationship between the content of thetraining or experience and the content of the job for which the training orexperience is to be required or evaluated. The critical consideration is theresemblance between the specific behaviors, products, knowledges, skills, orabilities in the experience or training and the specific behaviors, products,knowledges, skills, or abilities required on the job, whether or not there isclose resemblance between the experience or training as a whole and the job as awhole.</P> <P>(7) <E T="03">Content validity of training success.</E> Where a measure ofsuccess in a training program is used as a selection procedure and the contentof a training program is justified on the basis of content validity, the useshould be justified on the relationship between the content of the trainingprogram and the content of the job.</P> <P>(8) <E T="03">Operational use.</E> A selection procedure which is supportedon the basis of content validity may be used for a job if it represents acritical work behavior (i.e., a behavior which is necessary for performance ofthe job) or work behaviors which constitute most of the important parts of thejob.</P> <P>(9) <E T="03">Ranking based on content validity studies.</E> If a user canshow, by a job analysis or otherwise, that a higher score on a content validselection procedure is likely to result in better job performance, the resultsmay be used to rank persons who score above minimum levels. Where a selectionprocedure supported solely or primarily by content validity is used to rank jobcandidates, the selection procedure should measure those aspects of performancewhich differentiate among levels of job performance.</P> <P>D. <E T="03">Technical standards for construct validity studies</E>—(1)<E T="03">Appropriateness of construct validity studies.</E> Construct validityis a more complex strategy than either criterion-related or content validity.Construct validation is a <PRTPAGE P="58"/>relatively new and developing procedure in theemployment field, and there is at present a lack of substantial literatureextending the concept to employment practices. The user should be aware that theeffort to obtain sufficient empirical support for construct validity is both anextensive and arduous effort involving a series of research studies, whichinclude criterion related validity studies and which may include contentvalidity studies. Users choosing to justify use of a selection procedure by thisstrategy should therefore take particular care to assure that the validity studymeets the standards set forth below.</P> <P>(2) <E T="03">Job analysis for construct validity studies.</E> There shouldbe a job analysis. This job analysis should show the work behavior(s) requiredfor successful performance of the job, or the groups of jobs being studied, thecritical or important work behavior(s) in the job or group of jobs beingstudied, and an identification of the construct(s) believed to underliesuccessful performance of these critical or important work behaviors in the jobor jobs in question. Each construct should be named and defined, so as todistinguish it from other constructs. If a group of jobs is being studied thejobs should have in common one or more critical or important work behaviors at acomparable level of complexity.</P> <P>(3) <E T="03">Relationship to the job.</E> A selection procedure should thenbe identified or developed which measures the construct identified in accordwith paragraph (2) above. The user should show by empirical evidence that theselection procedure is validly related to the construct and that the constructis validly related to the performance of critical or important work behavior(s).The relationship between the construct as measured by the selection procedureand the related work behavior(s) should be supported by empirical evidence fromone or more criterion-related studies involving the job or jobs in questionwhich satisfy the provisions of section 14B above.</P> <P>(4) <E T="03">Use of construct validity study without new criterion-relatedevidence</E>—(a) <E T="03">Standards for use.</E> Until such time asprofessional literature provides more guidance on the use of construct validityin employment situations, the Federal agencies will accept a claim of constructvalidity without a criterion-related study which satisfies section 14B aboveonly when the selection procedure has been used elsewhere in a situation inwhich a criterion-related study has been conducted and the use of a criterion-related validity study in this context meets the standards for transportabilityof 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 workbehaviors at a comparable level of complexity, and the evidence satisfiesparagraphs 14B (2) and (3) above for those jobs with criterion-related validityevidence for those jobs, the selection procedure may be used for all the jobs towhich the study pertains. If construct validity is to be generalized to otherjobs or groups of jobs not in the group studied, the Federal enforcementagencies will expect at a minimum additional empirical research evidence meetingthe standards of paragraphs section 14B (2) and (3) above for the additionaljobs or groups of jobs.</P> <P>(b) <E T="03">Determination of common work behaviors.</E> In determiningwhether two or more jobs have one or more work behavior(s) in common, the usershould compare the observed work behavior(s) in each of the jobs and shouldcompare the observed work product(s) in each of the jobs. If neither theobserved work behavior(s) in each of the jobs nor the observed work product(s)in each of the jobs are the same, the Federal enforcement agencies will presumethat the work behavior(s) in each job are different. If the work behaviors arenot observable, then evidence of similarity of work products and any otherrelevant research evidence will be considered in determining whether the workbehavior(s) in the two jobs are the same.</P> </EXTRACT> <HD SOURCE="HD1">Documentation of Impact and Validity Evidence</HD> <EXTRACT> <P> <E T="04">Sec.</E> 15. <E T="03">Documentation of impact andvalidity evidence</E>—A. <E T="03">Required information.</E> Users ofselection procedures other than those users complying with section 15A(1) belowshould maintain and have available for each job information on adverse impact ofthe selection process for that job and, where it is determined a selectionprocess has an adverse impact, evidence of validity as set forth below.</P> <P>(1) <E T="03">Simplified recordkeeping for users with less than 100employees.</E> In order to minimize recordkeeping burdens on employers whoemploy one hundred (100) or fewer employees, and other users not required tofile EEO-1, et seq., reports, such users may satisfy the requirements ofthis section 15 if they maintain and have available records showing, for eachyear:</P> <P>(a) The number of persons hired, promoted, and terminated for each job, bysex, and where appropriate by race and national origin;</P> <P>(b) The number of applicants for hire and promotion by sex and whereappropriate by race and national origin; and</P> <P>(c) The selection procedures utilized (either standardized or notstandardized).</P> <P>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 forcein the relevant labor area. However, it is not necessary to maintain records byrace and/or national origin (see section 4 above) if one race <PRTPAGE P="59"/>or national origingroup 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 aselection procedure has an adverse impact, the user should maintain anyavailable evidence of validity for that procedure (see sections 7A and 8).</P> <P>(2) <E T="03">Information on impact</E>—(a) <E T="03">Collection ofinformation on impact.</E> Users of selection procedures other than thosecomplying with section 15A(1) above should maintain and have available for eachjob records or other information showing whether the total selection process forthat job has an adverse impact on any of the groups for which records are calledfor by sections 4B above. Adverse impact determinations should be made at leastannually for each such group which constitutes at least 2 percent of the laborforce in the relevant labor area or 2 percent of the applicable workforce. Wherea total selection process for a job has an adverse impact, the user shouldmaintain and have available records or other information showing whichcomponents have an adverse impact. Where the total selection process for a jobdoes not have an adverse impact, information need not be maintained forindividual components except in circumstances set forth in subsection 15A(2)(b)below. If the determination of adverse impact is made using a procedure otherthan the “four-fifths rule,” as defined in the first sentence ofsection 4D above, a justification, consistent with section 4D above, for theprocedure used to determine adverse impact should be available.</P> <P>(b) <E T="03">When adverse impact has been eliminated in the total selectionprocess.</E> Whenever the total selection process for a particular job has hadan adverse impact, as defined in section 4 above, in any year, but no longer hasan adverse impact, the user should maintain and have available the informationon individual components of the selection process required in the precedingparagraph for the period in which there was adverse impact. In addition, theuser should continue to collect such information for at least two (2) yearsafter the adverse impact has been eliminated.</P> <P>(c) <E T="03">When data insufficient to determine impact.</E> Where there hasbeen an insufficient number of selections to determine whether there is anadverse impact of the total selection process for a particular job, the usershould continue to collect, maintain and have available the information onindividual components of the selection process required in section 15(A)(2)(a)above until the information is sufficient to determine that the overallselection process does not have an adverse impact as defined in section 4 above,or until the job has changed substantially.</P> <P>(3) <E T="03">Documentation of validity evidence</E>—(a) <E T="03">Types of evidence.</E> Where a total selection process has an adverseimpact (see section 4 above) the user should maintain and have available foreach component of that process which has an adverse impact, one or more of thefollowing types of documentation evidence:</P> <P>(i) Documentation evidence showing criterion-related validity of theselection procedure (see section 15B, below).</P> <P>(ii) Documentation evidence showing content validity of the selectionprocedure (see section 15C, below).</P> <P>(iii) Documentation evidence showing construct validity of the selectionprocedure (see section 15D, below).</P> <P>(iv) Documentation evidence from other studies showing validity of theselection procedure in the user's facility (see section 15E, below).</P> <P>(v) Documentation evidence showing why a validity study cannot or need not beperformed and why continued use of the procedure is consistent with Federal law.</P> <P>(b) <E T="03">Form of report.</E> This evidence should be compiled in areasonably complete and organized manner to permit direct evaluation of thevalidity of the selection procedure. Previously written employer or consultantreports of validity, or reports describing validity studies completed before theissuance of these guidelines are acceptable if they are complete in regard tothe documentation requirements contained in this section, or if they satisfiedrequirements of guidelines which were in effect when the validity study wascompleted. If they are not complete, the required additional documentationshould be appended. If necessary information is not available the report of thevalidity study may still be used as documentation, but its adequacy will beevaluated in terms of compliance with the requirements of these guidelines.</P> <P>(c) <E T="03">Completeness.</E> In the event that evidence of validity isreviewed by an enforcement agency, the validation reports completed after theeffective date of these guidelines are expected to contain the information setforth below. Evidence denoted by use of the word “(Essential)” isconsidered critical. If information denoted essential is not included, thereport will be considered incomplete unless the user affirmatively demonstrateseither its unavailability due to circumstances beyond the user's control orspecial 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 forconsidering a report incomplete. The user should maintain and have available theinformation called for under the heading “Source Data” in sections15B(11) and 15D(11). While it is a necessary part of the study, it need not besubmitted with the report. All statistical results should be organized andpresented in tabular or graphic form to the extent feasible.<PRTPAGE P="60"/> </P> <P>B. <E T="03">Criterion-related validity studies.</E> Reports of criterion-related validity for a selection procedure should include the followinginformation:</P> <P>(1) <E T="03">User(s), location(s), and date(s) of study.</E> Dates andlocation(s) of the job analysis or review of job information, the date(s) andlocation(s) of the administration of the selection procedures and collection ofcriterion data, and the time between collection of data on selection proceduresand criterion measures should be provided (Essential). If the study wasconducted at several locations, the address of each location, including city andState, should be shown.</P> <P>(2) <E T="03">Problem and setting.</E> An explicit definition of thepurpose(s) of the study and the circumstances in which the study was conductedshould be provided. A description of existing selection procedures and cutoffscores, if any, should be provided.</P> <P>(3) <E T="03">Job analysis or review of job information.</E> A description ofthe procedure used to analyze the job or group of jobs, or to review the jobinformation should be provided (Essential). Where a review of job informationresults in criteria which may be used without a full job analysis (see section14B(3)), the basis for the selection of these criteria should be reported(Essential). Where a job analysis is required a complete description of the workbehavior(s) or work outcome(s), and measures of their criticality or importanceshould be provided (Essential). The report should describe the basis on whichthe behavior(s) or outcome(s) were determined to be critical or important, suchas the proportion of time spent on the respective behaviors, their level ofdifficulty, their frequency of performance, the consequences of error, or otherappropriate factors (Essential). Where two or more jobs are grouped for avalidity study, the information called for in this subsection should be providedfor each of the jobs, and the justification for the grouping (see section14B(1)) should be provided (Essential).</P> <P>(4) <E T="03">Job titles and codes.</E> It is desirable to provide the user'sjob title(s) for the job(s) in question and the corresponding job title(s) andcode(s) from U.S. Employment Service's Dictionary of Occupational Titles.</P> <P>(5) <E T="03">Criterion measures.</E> The bases for the selection of thecriterion measures should be provided, together with references to the evidenceconsidered in making the selection of criterion measures (essential). A fulldescription of all criteria on which data were collected and means by which theywere observed, recorded, evaluated, and quantified, should be provided(essential). If rating techniques are used as criterion measures, the appraisalform(s) and instructions to the rater(s) should be included as part of thevalidation evidence, or should be explicitly described and available(essential). All steps taken to insure that criterion measures are free fromfactors which would unfairly alter the scores of members of any group should bedescribed (essential).</P> <P>(6) <E T="03">Sample description.</E> A description of how the researchsample was identified and selected should be included (essential). The race,sex, and ethnic composition of the sample, including those groups set forth insection 4A above, should be described (essential). This description shouldinclude the size of each subgroup (essential). A description of how the researchsample compares with the relevant labor market or work force, the method bywhich the relevant labor market or work force was defined, and a discussion ofthe likely effects on validity of differences between the sample and therelevant labor market or work force, are also desirable. Descriptions ofeducational levels, length of service, and age are also desirable.</P> <P>(7) <E T="03">Description of selection procedures.</E> Any measure,combination of measures, or procedure studied should be completely andexplicitly described or attached (essential). If commercially availableselection procedures are studied, they should be described by title, form, andpublisher (essential). Reports of reliability estimates and how they wereestablished are desirable.</P> <P>(8) <E T="03">Techniques and results.</E> Methods used in analyzing datashould be described (essential). Measures of central tendency (e.g., means) andmeasures of dispersion (e.g., standard deviations and ranges) for all selectionprocedures and all criteria should be reported for each race, sex, and ethnicgroup which constitutes a significant factor in the relevant labor market(essential). The magnitude and direction of all relationships between selectionprocedures and criterion measures investigated should be reported for eachrelevant race, sex, and ethnic group and for the total group (essential). Wheregroups are too small to obtain reliable evidence of the magnitude of therelationship, need not be reported separately. Statements regarding thestatistical significance of results should be made (essential). Any statisticaladjustments, such as for less then perfect reliability or for restriction ofscore range in the selection procedure or criterion should be described andexplained; and uncorrected correlation coefficients should also be shown(essential). Where the statistical technique categorizes continuous data, suchas biserial correlation and the phi coefficient, the categories and the bases onwhich they were determined should be described and explained (essential).Studies of test fairness should be included where called for by the requirementsof section 14B(8) (essential). These studies should include the rationale bywhich a selection procedure was determined to be fair to the group(s) inquestion. Where test fairness or unfairness has been demonstrated on the basisof other studies, a bibliography of the relevant studies should be <PRTPAGE P="61"/>included(essential). If the bibliography includes unpublished studies, copies of thesestudies, or adequate abstracts or summaries, should be attached (essential).Where revisions have been made in a selection procedure to assure compatabilitybetween successful job performance and the probability of being selected, thestudies underlying such revisions should be included (essential). Allstatistical results should be organized and presented by relevant race, sex, andethnic group (essential).</P> <P>(9) <E T="03">Alternative procedures investigated.</E> The selectionprocedures investigated and available evidence of their impact should beidentified (essential). The scope, method, and findings of the investigation,and the conclusions reached in light of the findings, should be fully described(essential).</P> <P>(10) <E T="03">Uses and applications.</E> The methods considered for use ofthe selection procedure (e.g., as a screening device with a cutoff score, forgrouping or ranking, or combined with other procedures in a battery) andavailable evidence of their impact should be described (essential). Thisdescription should include the rationale for choosing the method for operationaluse, and the evidence of the validity and utility of the procedure as it is tobe used (essential). The purpose for which the procedure is to be used (e.g.,hiring, transfer, promotion) should be described (essential). If weights areassigned to different parts of the selection procedure, these weights and thevalidity of the weighted composite should be reported (essential). If theselection procedure is used with a cutoff score, the user should describe theway in which normal expectations of proficiency within the work force weredetermined and the way in which the cutoff score was determined (essential).</P> <P>(11) <E T="03">Source data.</E> Each user should maintain records showing allpertinent information about individual sample members and raters where they areused, in studies involving the validation of selection procedures. These recordsshould be made available upon request of a compliance agency. In the case ofindividual sample members these data should include scores on the selectionprocedure(s), scores on criterion measures, age, sex, race, or ethnic groupstatus, and experience on the specific job on which the validation study wasconducted, and may also include such things as education, training, and priorjob experience, but should not include names and social security numbers.Records should be maintained which show the ratings given to each sample memberby each rater.</P> <P>(12) <E T="03">Contact person.</E> The name, mailing address, and telephonenumber of the person who may be contacted for further information about thevalidity study should be provided (essential).</P> <P>(13) <E T="03">Accuracy and completeness.</E> The report should describe thesteps taken to assure the accuracy and completeness of the collection, analysis,and report of data and results.</P> <P>C. <E T="03">Content validity studies.</E> Reports of content validity for aselection procedure should include the following information:</P> <P>(1) <E T="03">User(s), location(s) and date(s) of study.</E> Dates andlocation(s) of the job analysis should be shown (essential).</P> <P>(2) <E T="03">Problem and setting.</E> An explicit definition of thepurpose(s) of the study and the circumstances in which the study was conductedshould be provided. A description of existing selection procedures and cutoffscores, if any, should be provided.</P> <P>(3) <E T="03">Job analysis—Content of the job.</E> A description of themethod used to analyze the job should be provided (essential). The workbehavior(s), the associated tasks, and, if the behavior results in a workproduct, the work products should be completely described (essential). Measuresof criticality and/or importance of the work behavior(s) and the method ofdetermining these measures should be provided (essential). Where the jobanalysis also identified the knowledges, skills, and abilities used in workbehavior(s), an operational definition for each knowledge in terms of a body oflearned information and for each skill and ability in terms of observablebehaviors and outcomes, and the relationship between each knowledge, skill, orability and each work behavior, as well as the method used to determine thisrelationship, should be provided (essential). The work situation should bedescribed, including the setting in which work behavior(s) are performed, andwhere appropriate, the manner in which knowledges, skills, or abilities areused, and the complexity and difficulty of the knowledge, skill, or ability asused in the work behavior(s).</P> <P>(4) <E T="03">Selection procedure and its content.</E> Selection procedures,including those constructed by or for the user, specific training requirements,composites of selection procedures, and any other procedure supported by contentvalidity, should be completely and explicitly described or attached (essential).If commercially available selection procedures are used, they should bedescribed by title, form, and publisher (essential). The behaviors measured orsampled by the selection procedure should be explicitly described (essential).Where the selection procedure purports to measure a knowledge, skill, orability, evidence that the selection procedure measures and is a representativesample of the knowledge, skill, or ability should be provided (essential).</P> <P>(5) <E T="03">Relationship between the selection procedure and the job.</E>The evidence demonstrating that the selection procedure is a representative worksample, a representative sample of the work behavior(s), or a representativesample of a knowledge, skill, or ability as used as a part of a work behaviorand necessary for that behavior should be provided <PRTPAGE P="62"/>(essential). The user shouldidentify the work behavior(s) which each item or part of the selection procedureis intended to sample or measure (essential). Where the selection procedurepurports to sample a work behavior or to provide a sample of a work product, acomparison should be provided of the manner, setting, and the level ofcomplexity of the selection procedure with those of the work situation(essential). If any steps were taken to reduce adverse impact on a race, sex, orethnic group in the content of the procedure or in its administration, thesesteps should be described. Establishment of time limits, if any, and how theselimits 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 measuresof dispersion (e.g., standard deviations) and estimates of reliability should bereported for all selection procedures if available. Such reports should be madefor relevant race, sex, and ethnic subgroups, at least on a statisticallyreliable sample basis.</P> <P>(6) <E T="03">Alternative procedures investigated.</E> The alternativeselection procedures investigated and available evidence of their impact shouldbe identified (essential). The scope, method, and findings of the investigation,and the conclusions reached in light of the findings, should be fully described(essential).</P> <P>(7) <E T="03">Uses and applications.</E> The methods considered for use ofthe selection procedure (e.g., as a screening device with a cutoff score, forgrouping or ranking, or combined with other procedures in a battery) andavailable evidence of their impact should be described (essential). Thisdescription should include the rationale for choosing the method for operationaluse, and the evidence of the validity and utility of the procedure as it is tobe used (essential). The purpose for which the procedure is to be used (e.g.,hiring, transfer, promotion) should be described (essential). If the selectionprocedure is used with a cutoff score, the user should describe the way in whichnormal expectations of proficiency within the work force were determined and theway in which the cutoff score was determined (essential). In addition, if theselection procedure is to be used for ranking, the user should specify theevidence showing that a higher score on the selection procedure is likely toresult in better job performance.</P> <P>(8) <E T="03">Contact person.</E> The name, mailing address, and telephonenumber of the person who may be contacted for further information about thevalidity study should be provided (essential).</P> <P>(9) <E T="03">Accuracy and completeness.</E> The report should describe thesteps taken to assure the accuracy and completeness of the collection, analysis,and report of data and results.</P> <P>D. <E T="03">Construct validity studies.</E> Reports of construct validityfor a selection procedure should include the following information:</P> <P>(1) <E T="03">User(s), location(s), and date(s) of study.</E> Date(s) andlocation(s) of the job analysis and the gathering of other evidence called forby these guidelines should be provided (essential).</P> <P>(2) <E T="03">Problem and setting.</E> An explicit definition of thepurpose(s) of the study and the circumstances in which the study was conductedshould be provided. A description of existing selection procedures and cutoffscores, if any, should be provided.</P> <P>(3) <E T="03">Construct definition.</E> A clear definition of theconstruct(s) which are believed to underlie successful performance of thecritical or important work behavior(s) should be provided (essential). Thisdefinition should include the levels of construct performance relevant to thejob(s) for which the selection procedure is to be used (essential). There shouldbe 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 thedefinition and measurement of the construct was developed and the psychologicaltheory underlying it (essential). Any quantitative data which identify or definethe job constructs, such as factor analyses, should be provided (essential).</P> <P>(4) <E T="03">Job analysis.</E> A description of the method used to analyzethe job should be provided (essential). A complete description of the workbehavior(s) and, to the extent appropriate, work outcomes and measures of theircriticality and/or importance should be provided (essential). The report shouldalso describe the basis on which the behavior(s) or outcomes were determined tobe important, such as their level of difficulty, their frequency of performance,the consequences of error or other appropriate factors (essential). Where jobsare grouped or compared for the purposes of generalizing validity evidence, thework 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 observablework behaviors or work products should be made (essential).</P> <P>(5) <E T="03">Job titles and codes.</E> It is desirable to provide theselection procedure user's job title(s) for the job(s) in question and thecorresponding job title(s) and code(s) from the United States EmploymentService's dictionary of occupational titles.</P> <P>(6) <E T="03">Selection procedure.</E> The selection procedure used as ameasure of the construct should be completely and explicitly described orattached (essential). If commercially available selection procedures are used,they should be identified by title, form and publisher (essential). The researchevidence of the relationship between the selection procedure and the construct,such as <PRTPAGE P="63"/>factor structure, should be included (essential). Measures of centraltendency, variability and reliability of the selection procedure should beprovided (essential). Whenever feasible, these measures should be providedseparately for each relevant race, sex and ethnic group.</P> <P>(7) <E T="03">Relationship to job performance.</E> The criterion-relatedstudy(ies) and other empirical evidence of the relationship between theconstruct measured by the selection procedure and the related work behavior(s)for the job or jobs in question should be provided (essential). Documentation ofthe criterion-related study(ies) should satisfy the provisions of section 15Babove or section 15E(1) below, except for studies conducted prior to theeffective date of these guidelines (essential). Where a study pertains to agroup of jobs, and, on the basis of the study, validity is asserted for a job inthe group, the observed work behaviors and the observed work products for eachof the jobs should be described (essential). Any other evidence used indetermining whether the work behavior(s) in each of the jobs is the same shouldbe fully described (essential).</P> <P>(8) <E T="03">Alternative procedures investigated.</E> The alternativeselection procedures investigated and available evidence of their impact shouldbe identified (essential). The scope, method, and findings of the investigation,and the conclusions reached in light of the findings should be fully described(essential).</P> <P>(9) <E T="03">Uses and applications.</E> The methods considered for use ofthe selection procedure (e.g., as a screening device with a cutoff score, forgrouping or ranking, or combined with other procedures in a battery) andavailable evidence of their impact should be described (essential). Thisdescription should include the rationale for choosing the method for operationaluse, and the evidence of the validity and utility of the procedure as it is tobe used (essential). The purpose for which the procedure is to be used (e.g.,hiring, transfer, promotion) should be described (essential). If weights areassigned to different parts of the selection procedure, these weights and thevalidity of the weighted composite should be reported (essential). If theselection procedure is used with a cutoff score, the user should describe theway in which normal expectations of proficiency within the work force weredetermined and the way in which the cutoff score was determined (essential).</P> <P>(10) <E T="03">Accuracy and completeness.</E> The report should describe thesteps taken to assure the accuracy and completeness of the collection, analysis,and report of data and results.</P> <P>(11) <E T="03">Source data.</E> Each user should maintain records showing allpertinent information relating to its study of construct validity.</P> <P>(12) <E T="03">Contact person.</E> The name, mailing address, and telephonenumber of the individual who may be contacted for further information about thevalidity study should be provided (essential).</P> <P>E. <E T="03">Evidence of validity from other studies.</E> When validity of aselection procedure is supported by studies not done by the user, the evidencefrom the original study or studies should be compiled in a manner similar tothat required in the appropriate section of this section 15 above. In addition,the following evidence should be supplied:</P> <P>(1) <E T="03">Evidence from criterion-related validity studies</E>—a.<E T="03">Job information.</E> A description of the important job behavior(s) ofthe user's job and the basis on which the behaviors were determined to beimportant should be provided (essential). A full description of the basis fordetermining that these important work behaviors are the same as those of the jobin the original study (or studies) should be provided (essential).</P> <P>b. <E T="03">Relevance of criteria.</E> A full description of the basis onwhich the criteria used in the original studies are determined to be relevantfor the user should be provided (essential).</P> <P>c. <E T="03">Other variables.</E> The similarity of important applicant poolor sample characteristics reported in the original studies to those of the usershould be described (essential). A description of the comparison between therace, sex and ethnic composition of the user's relevant labor market and thesample in the original validity studies should be provided (essential).</P> <P>d. <E T="03">Use of the selection procedure.</E> A full description should beprovided showing that the use to be made of the selection procedure isconsistent with the findings of the original validity studies (essential).</P> <P>e. <E T="03">Bibliography.</E> A bibliography of reports of validity of theselection procedure for the job or jobs in question should be provided(essential). Where any of the studies included an investigation of testfairness, the results of this investigation should be provided (essential).Copies of reports published in journals that are not commonly available shouldbe described in detail or attached (essential). Where a user is relying uponunpublished studies, a reasonable effort should be made to obtain these studies.If these unpublished studies are the sole source of validity evidence theyshould be described in detail or attached (essential). If these studies are notavailable, the name and address of the source, an adequate abstract or summaryof the validity study and data, and a contact person in the source organizationshould be provided (essential).</P> <P>(2) <E T="03">Evidence from content validity studies.</E> See section 14C(3)and section 15C above.</P> <P>(3) <E T="03">Evidence from construct validity studies.</E> See sections14D(2) and 15D above.</P> <P>F. <E T="03">Evidence of validity from cooperative studies.</E> Where aselection procedure has been <PRTPAGE P="64"/>validated through a cooperative study, evidencethat the study satisfies the requirements of sections 7, 8 and 15E should beprovided (essential).</P> <P>G. <E T="03">Selection for higher level job.</E> If a selection procedure isused to evaluate candidates for jobs at a higher level than those for which theywill initially be employed, the validity evidence should satisfy thedocumentation provisions of this section 15 for the higher level job or jobs,and in addition, the user should provide: (1) A description of the jobprogression structure, formal or informal; (2) the data showing how manyemployees progress to the higher level job and the length of time needed to makethis progression; and (3) an identification of any anticipated changes in thehigher level job. In addition, if the test measures a knowledge, skill orability, the user should provide evidence that the knowledge, skill or abilityis required for the higher level job and the basis for the conclusion that theknowledge, skill or ability is not expected to develop from the training orexperience on the job.</P> <P>H. <E T="03">Interim use of selection procedures.</E> If a selectionprocedure is being used on an interim basis because the procedure is not fullysupported by the required evidence of validity, the user should maintain andhave available (1) substantial evidence of validity for the procedure, and (2) areport showing the date on which the study to gather the additional evidencecommenced, the estimated completion date of the study, and a description of thedata to be collected (essential).</P> </EXTRACT> <HD SOURCE="HD1">Definitions</HD> <EXTRACT> <P> <E T="04">Sec.</E> 16. <E T="03">Definitions.</E> The followingdefinitions shall apply throughout these guidelines:</P> <P>A. <E T="03">Ability.</E> A present competence to perform an observablebehavior or a behavior which results in an observable product.</P> <P>B. <E T="03">Adverse impact.</E> A substantially different rate of selectionin hiring, promotion, or other employment decision which works to thedisadvantage of members of a race, sex, or ethnic group. See section 4 of theseguidelines.</P> <P>C. <E T="03">Compliance with these guidelines.</E> Use of a selectionprocedure is in compliance with these guidelines if such use has been validatedin accord with these guidelines (as defined below), or if such use does notresult in adverse impact on any race, sex, or ethnic group (see section 4,above), or, in unusual circumstances, if use of the procedure is otherwisejustified in accord with Federal law. See section 6B, above.</P> <P>D. <E T="03">Content validity.</E> Demonstrated by data showing that thecontent of a selection procedure is representative of important aspects ofperformance on the job. See section 5B and section 14C.</P> <P>E. <E T="03">Construct validity.</E> Demonstrated by data showing that theselection procedure measures the degree to which candidates have identifiablecharacteristics which have been determined to be important for successful jobperformance. See section 5B and section 14D.</P> <P>F. <E T="03">Criterion-related validity.</E> Demonstrated by empirical datashowing that the selection procedure is predictive of or significantlycorrelated with important elements of work behavior. See sections 5B and 14B.</P> <P>G. <E T="03">Employer.</E> Any employer subject to the provisions of theCivil Rights Act of 1964, as amended, including State or local governments andany Federal agency subject to the provisions of section 717 of the Civil RightsAct of 1964, as amended, and any Federal contractor or subcontractor orfederally assisted construction contractor or subcontractor covered by ExecutiveOrder 11246, as amended.</P> <P>H. <E T="03">Employment agency.</E> Any employment agency subject to theprovisions of the Civil Rights Act of 1964, as amended.</P> <P>I. <E T="03">Enforcement action.</E> For the purposes of section 4 aproceeding by a Federal enforcement agency such as a lawsuit or anadministrative proceeding leading to debarment from or withholding, suspension,or termination of Federal Government contracts or the suspension or withholdingof 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 underExecutive Order 11246 where such finding, conciliation, or issuance of notice ofright to sue is based upon an individual complaint.</P> <P>J. <E T="03">Enforcement agency.</E> Any agency of the executive branch ofthe Federal Government which adopts these guidelines for purposes of theenforcement of the equal employment opportunity laws or which has responsibilityfor securing compliance with them.</P> <P>K. <E T="03">Job analysis.</E> A detailed statement of work behaviors andother information relevant to the job.</P> <P>L. <E T="03">Job description.</E> A general statement of job duties andresponsibilities.</P> <P>M. <E T="03">Knowledge.</E> A body of information applied directly to theperformance of a function.</P> <P>N. <E T="03">Labor organization.</E> Any labor organization subject to theprovisions of the Civil Rights Act of 1964, as amended, and any committeesubject thereto controlling apprenticeship or other training.</P> <P>O. <E T="03">Observable.</E> Able to be seen, heard, or otherwise perceivedby a person other than the person performing the action.</P> <P>P. <E T="03">Race, sex, or ethnic group.</E> Any group of personsidentifiable on the grounds of race, color, religion, sex, or national origin.</P> <P>Q. <E T="03">Selection procedure.</E> Any measure, combination of measures,or procedure used as a basis for any employment decision. Selection <PRTPAGE P="65"/>proceduresinclude the full range of assessment techniques from traditional paper andpencil tests, performance tests, training programs, or probationary periods andphysical, educational, and work experience requirements through informal orcasual interviews and unscored application forms.</P> <P>R. <E T="03">Selection rate.</E> The proportion of applicants or candidateswho are hired, promoted, or otherwise selected.</P> <P>S. <E T="03">Should.</E> The term “should” as used in theseguidelines is intended to connote action which is necessary to achievecompliance with the guidelines, while recognizing that there are circumstanceswhere alternative courses of action are open to users.</P> <P>T. <E T="03">Skill.</E> A present, observable competence to perform a learnedpsychomoter act.</P> <P>U. <E T="03">Technical feasibility.</E> The existence of conditionspermitting the conduct of meaningful criterion-related validity studies. Theseconditions include: (1) An adequate sample of persons available for the study toachieve findings of statistical significance; (2) having or being able to obtaina sufficient range of scores on the selection procedure and job performancemeasures to produce validity results which can be expected to be representativeof the results if the ranges normally expected were utilized; and (3) having orbeing able to devise unbiased, reliable and relevant measures of job performanceor other criteria of employee adequacy. See section 14B(2). With respect toinvestigation of possible unfairness, the same considerations are applicable toeach group for which the study is made. See section 14B(8).</P> <P>V. <E T="03">Unfairness of selection procedure.</E> A condition in whichmembers of one race, sex, or ethnic group characteristically obtain lower scoreson a selection procedure than members of another group, and the differences arenot reflected in differences in measures of job performance. See section 14B(7).</P> <P>W. <E T="03">User.</E> Any employer, labor organization, employment agency,or licensing or certification board, to the extent it may be covered by Federalequal employment opportunity law, which uses a selection procedure as a basisfor any employment decision. Whenever an employer, labor organization, oremployment agency is required by law to restrict recruitment for any occupationto those applicants who have met licensing or certification requirements, thelicensing or certifying authority to the extent it may be covered by Federalequal employment opportunity law will be considered the user with respect tothose licensing or certification requirements. Whenever a State employmentagency or service does no more than administer or monitor a procedure aspermitted by Department of Labor regulations, and does so without makingreferrals or taking any other action on the basis of the results, the Stateemployment agency will not be deemed to be a user.</P> <P>X. <E T="03">Validated in accord with these guidelines or properlyvalidated.</E> A demonstration that one or more validity study or studiesmeeting the standards of these guidelines has been conducted, includinginvestigation and, where appropriate, use of suitable alternative selectionprocedures as contemplated by section 3B, and has produced evidence of validitysufficient to warrant use of the procedure for the intended purpose under thestandards of these guidelines.</P> <P>Y. <E T="03">Work behavior.</E> An activity performed to achieve theobjectives of the job. Work behaviors involve observable (physical) componentsand unobservable (mental) components. A work behavior consists of theperformance of one or more tasks. Knowledges, skills, and abilities are notbehaviors, although they may be applied in work behaviors.</P> </EXTRACT> <HD SOURCE="HD1">Appendix</HD> <EXTRACT> <P>17. <E T="03">Policy statement on affirmative action</E> (seesection 13B). The Equal Employment Opportunity Coordinating Council wasestablished by act of Congress in 1972, and charged with responsibility fordeveloping and implementing agreements and policies designed, among otherthings, to eliminate conflict and inconsistency among the agencies of theFederal Government responsible for administering Federal law prohibitingdiscrimination on grounds of race, color, sex, religion, and national origin.This statement is issued as an initial response to the requests of a number ofState and local officials for clarification of the Government's policiesconcerning the role of affirmative action in the overall equal employmentopportunity program. While the Coordinating Council's adoption of this statementexpresses only the views of the signatory agencies concerning this importantsubject, the principles set forth below should serve as policy guidance forother Federal agencies as well.</P> <P>(1) Equal employment opportunity is the law of the land. In the public sectorof our society this means that all persons, regardless of race, color, religion,sex, or national origin shall have equal access to positions in the publicservice limited only by their ability to do the job. There is ample evidence inall sectors of our society that such equal access frequently has been denied tomembers of certain groups because of their sex, racial, or ethniccharacteristics. The remedy for such past and present discrimination is twofold.</P> <P>On the one hand, vigorous enforcement of the laws against discrimination isessential. But equally, and perhaps even more important are affirmative,voluntary efforts on the part of public employers to assure that positions inthe public service are genuinely and equally accessible to qualified persons,without regard to their sex, racial, or ethnic <PRTPAGE P="66"/>characteristics. Without suchefforts equal employment opportunity is no more than a wish. The importance ofvoluntary affirmative action on the part of employers is underscored by titleVII of the Civil Rights Act of 1964, Executive Order 11246, and related laws andregulations—all of which emphasize voluntary action to achieve equalemployment opportunity.</P> <P>As with most management objectives, a systematic plan based on soundorganizational analysis and problem identification is crucial to theaccomplishment of affirmative action objectives. For this reason, the Councilurges all State and local governments to develop and implement results orientedaffirmative action plans which deal with the problems so identified.</P> <P>The following paragraphs are intended to assist State and local governmentsby illustrating the kinds of analyses and activities which may be appropriatefor a public employer's voluntary affirmative action plan. This statement doesnot address remedies imposed after a finding of unlawful discrimination.</P> <P>(2) Voluntary affirmative action to assure equal employment opportunity isappropriate at any stage of the employment process. The first step in theconstruction of any affirmative action plan should be an analysis of theemployer's work force to determine whether percentages of sex, race, or ethnicgroups in individual job classifications are substantially similar to thepercentages of those groups available in the relevant job market who possess thebasic job-related qualifications.</P> <P>When substantial disparities are found through such analyses, each element ofthe overall selection process should be examined to determine which elementsoperate to exclude persons on the basis of sex, race, or ethnic group. Suchelements include, but are not limited to, recruitment, testing, rankingcertification, interview, recommendations for selection, hiring, promotion, etc.The examination of each element of the selection process should at a minimuminclude a determination of its validity in predicting job performance.</P> <P>(3) When an employer has reason to believe that its selection procedures havethe exclusionary effect described in paragraph 2 above, it should initiateaffirmative steps to remedy the situation. Such steps, which in design andexecution may be race, color, sex, or ethnic “conscious,” include,but are not limited to, the following:</P> <P>(a) The establishment of a long-term goal, and short-range, interim goals andtimetables for the specific job classifications, all of which should take intoaccount the availability of basically qualified persons in the relevant jobmarket;</P> <P>(b) A recruitment program designed to attract qualified members of the groupin question;</P> <P>(c) A systematic effort to organize work and redesign jobs in ways thatprovide opportunities for persons lacking “journeyman” levelknowledge or skills to enter and, with appropriate training, to progress in acareer field;</P> <P>(d) Revamping selection instruments or procedures which have not yet beenvalidated in order to reduce or eliminate exclusionary effects on particulargroups in particular job classifications;</P> <P>(e) The initiation of measures designed to assure that members of theaffected group who are qualified to perform the job are included within the poolof persons from which the selecting official makes the selection;</P> <P>(f) A systematic effort to provide career advancement training, bothclassroom and on-the-job, to employees locked into dead end jobs; and</P> <P>(g) The establishment of a system for regularly monitoring the effectivenessof the particular affirmative action program, and procedures for making timelyadjustments in this program where effectiveness is not demonstrated.</P> <P>(4) The goal of any affirmative action plan should be achievement of genuineequal employment opportunity for all qualified persons. Selection under suchplans should be based upon the ability of the applicant(s) to do the work. Suchplans should not require the selection of the unqualified, or the unneeded, norshould they require the selection of persons on the basis of race, color, sex,religion, or national origin. Moreover, while the Council believes that thisstatement should serve to assist State and local employers, as well as Federalagencies, it recognizes that affirmative action cannot be viewed as astandardized program which must be accomplished in the same way at all times inall places.</P> <P>Accordingly, the Council has not attempted to set forth here either theminimum or maximum voluntary steps that employers may take to deal with theirrespective situations. Rather, the Council recognizes that under applicableauthorities, State and local employers have flexibility to formulate affirmativeaction plans that are best suited to their particular situations. In thismanner, the Council believes that affirmative action programs will best servethe goal of equal employment opportunity.</P> <P>Respectfully submitted, </P> <P> <E T="04">Harold R. Tyler,</E> Jr.,</P> <P> <E T="03">Deputy Attorney General and Chairman of the Equal EmploymentCoordinating Council.</E> </P> <P> <E T="04">Michael H. Moskow,</E> </P> <P> <E T="03">Under Secretary of Labor.</E> </P> <P> <E T="04">Ethel Bent Walsh,</E> <PRTPAGE P="67"/> </P> <P> <E T="03">Acting Chairman, Equal Employment Opportunity Commission.</E> </P> <P> <E T="04">Robert E. Hampton,</E> </P> <P> <E T="03">Chairman, Civil Service Commission.</E> </P> <P> <E T="04">Arthur E. Flemming,</E> </P> <P> <E T="03">Chairman, Commission on Civil Rights.</E> </P> <P>Because of its equal employment opportunity responsibilities under the Stateand Local Government Fiscal Assistance Act of 1972 (the revenue sharing act),the Department of Treasury was invited to participate in the formulation of thispolicy statement; and it concurs and joins in the adoption of this policystatement. </P> <P>Done this 26th day of August 1976. </P> <P> <E T="04">Richard Albrecht,</E> </P> <P> <E T="03">General Counsel, Department of the Treasury.</E> </P> <P>Section 18. <E T="03">Citations.</E> The official title of these guidelinesis “Uniform Guidelines on Employee Selection Procedures (1978)”. TheUniform Guidelines on Employee Selection Procedures (1978) are intended toestablish a uniform Federal position in the area of prohibiting discriminationin employment practices on grounds of race, color, religion, sex, or nationalorigin. These guidelines have been adopted by the Equal Employment OpportunityCommission, the Department of Labor, the Department of Justice, and the CivilService Commission.</P> <P>The official citation is:</P> <P>“Section __, Uniform Guidelines on Employee Selection Procedure (1978);43 FR __ (August 25, 1978).”</P> <P>The short form citation is:</P> <P>“Section __, U.G.E.S.P. (1978); 43 FR __ (August 25, 1978).”</P> <P>When the guidelines are cited in connection with the activities of one of theissuing agencies, a specific citation to the regulations of that agency can beadded at the end of the above citation. The specific additional citations are asfollows: </P> <FP>Equal Employment Opportunity Commission</FP> <P>29 CFR Part 1607</P> <FP>Department of Labor</FP> <FP>Office of Federal Contract Compliance Programs</FP> <P>41 CFR Part 60-3</P> <FP>Department of Justice</FP> <P>28 CFR 50.14</P> <FP>Civil Service Commission</FP> <P>5 CFR 300.103(c) </P> <P>Normally when citing these guidelines, the section number immediatelypreceding the title of the guidelines will be from these guidelines series1-18. If a section number from the codification for an individual agencyis 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.” </P> <P> <E T="04">Eleanor Holmes Norton,</E> </P> <P> <E T="03">Chair, Equal Employment Opportunity Commission.</E> </P> <P> <E T="04">Alan K. Campbell,</E> </P> <P> <E T="03">Chairman, Civil Service Commission.</E> </P> <P> <E T="04">Ray Marshall,</E> </P> <P> <E T="03">Secretary of Labor.</E> </P> <P> <E T="04">Griffin B. Bell,</E> </P> <P> <E T="03">Attorney General.</E> </P> </EXTRACT> <CITA>[Order No. 668-76, 41 FR 51735, Nov. 23, 1976, as amended at 43 FR38295, Aug. 25, 1978]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.15</SECTNO> <SUBJECT>Representation of Federal officials and employees by Department ofJustice 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.</SUBJECT> <P>(a) Under the procedures set forth below, a federal employee (hereby definedto include present and former Federal officials and employees) may be providedrepresentation in civil, criminal and Congressional proceedings in which he issued, subpoenaed, or charged in his individual capacity, not covered by§ 15.1 of this chapter, when the actions for which representation isrequested reasonably appear to have been performed within the scope of theemployee's employment and the Attorney General or his designee determines thatproviding representation would otherwise be in the interest of the UnitedStates. No special form of request for representation is required when it isclear from the proceedings in a case that the employee is being sued solely inhis official capacity and only equitable relief is sought. (See USAM 4-13.000)</P> <P>(1) When an employee believes he is entitled to representation by theDepartment of Justice in a proceeding, he must submit forthwith a writtenrequest for that representation, together with all process and pleadings servedupon him, to his immediate supervisor or whomever is designated by the head ofhis department or agency. Unless the employee's employing federal agencyconcludes that representation is clearly unwarranted, it shall submit, in atimely manner, to the Civil Division or other appropriate litigating division(Antitrust, Civil Rights, Criminal, Land and Natural Resources or the Tax <PRTPAGE P="68"/>Division), a statement containing its findings as to whether the employee wasacting within the scope of his employment and its recommendation for or againstproviding representation. The statement should be accompanied by all availablefactual information. In emergency situations the litigating division mayinitiate conditional representation after a telephone request from theappropriate official of the employing agency. In such cases, the written requestand appropriate documentation must be subsequently provided.</P> <P>(2) Upon receipt of the individual's request for counsel, the litigatingdivision shall determine whether the employee's actions reasonably appear tohave been performed within the scope of his employment and whether providingrepresentation would be in the interest of the United States. In circumstanceswhere considerations of professional ethics prohibit direct review of the factsby attorneys of the litigating division (e.g. because of the possible existenceof inter-defendant conflicts) the litigating division may delegate the fact-finding aspects of this function to other components of the Department or to aprivate attorney at federal expenses.</P> <P>(3) Attorneys employed by any component of the Department of Justice whoparticipate in any process utilized for the purpose of determining whether theDepartment should provide representation to a federal employee, undertake a fulland traditional attorney-client relationship with the employee with respect toapplication of the attorney-client privilege. If representation is authorized,Justice Department attorneys who represent an employee under this section alsoundertake a full and traditional attorney-client relationship with the employeewith respect to the attorney-client privilege. Any adverse informationcommunicated by the client-employee to an attorney during the course of suchattorney-client relationship shall not be disclosed to anyone, either inside oroutside the Department, other than attorneys responsible for representation ofthe employee, unless such disclosure is authorized by the employee. Such adverseinformation shall continue to be fully protected whether or not representationis provided, and even though representation may be denied or discontinued. Theextent, if any, to which attorneys employed by an agency other than theDepartment of Justice undertake a full and traditional attorney-clientrelationship with the employee with respect to the attorney-client privilege,either for purposes of determining whether representation should be provided orto assist Justice Department attorneys in representing the employee, shall bedetermined by the agency employing the attorneys.</P> <P>(4) Representation generally is not available in federal criminalproceedings. Representation may be provided to a federal employee in connectionwith a federal criminal proceeding only where the Attorney General or hisdesignee determines that representation is in the interest of the United Statesand subject to applicable limitations of § 50.16. In determiningwhether representation in a federal criminal proceeding is in the interest ofthe United States, the Attorney General or his designee shall consider, amongother factors, the relevance of any non-prosecutorial interests of the UnitedStates, the importance of the interests implicated, the Department's ability toprotect those interests through other means, and the likelihood of a conflict ofinterest between the Department's prosecutorial and representationalresponsibilities. If representation is authorized, the Attorney General or hisdesignee also may determine whether representation by Department attorneys,retention of private counsel at federal expense, or reimbursement to theemployee of private counsel fees is most appropriate under the circumstances.</P> <P>(5) Where representation is sought for proceedings other than federalcriminal proceedings, but there appears to exist the possibility of a federalcriminal investigation or indictment relating to the same subject matter, thelitigating division shall contact a designated official in the Criminal, CivilRights or Tax Division or other prosecutive authority within the Department(hereinafter “prosecuting division”) to determine whether theemployee is either a subject of a federal <PRTPAGE P="69"/>criminal investigation or a defendantin a federal criminal case. An employee is the subject of an investigation if,in addition to being circumstantially implicated by having the appropriateresponsibilities at the appropriate time, there is some evidence of his specificparticipation in a crime.</P> <P>(6) If a prosecuting division of the Department indicates that the employeeis not the subject of a criminal investigation concerning the act or acts forwhich he seeks representation, then representation may be provided if otherwisepermissible under the provisions of this section. Similarly, if the prosecutingdivision indicates that there is an ongoing investigation, but into a matterunrelated to that for which representation has been requested, thenrepresentation may be provided.</P> <P>(7) If the prosecuting division indicates that the employee is the subject ofa federal criminal investigation concerning the act or acts for which he seeksrepresentation, the litigating division shall inform the employee that norepresentation by Justice Department attorneys will be provided in that federalcriminal proceeding or in any related civil, congressional, or state criminalproceeding. In such a case, however, the litigating division, in its discretion,may provide a private attorney to the employee at federal expense under theprocedures of § 50.16, or provide reimbursement to employees forprivate attorney fees incurred in connection with such related civil,congressional, or state criminal proceeding, provided no decision has been madeto seek an indictment or file an information against the employee.</P> <P>(8) In any case where it is determined that Department of Justice attorneyswill represent a federal employee, the employee must be notified of his right toretain private counsel at his own expense. If he elects representation byDepartment of Justice attorneys, the employee and his agency shall be promptlyinformed:</P> <P>(i) That in actions where the United States, any agency, or any officerthereof in his official capacity is also named as a defendant, the Department ofJustice is required by law to represent the United States and/or such agency orofficer and will assert all appropriate legal positions and defenses on behalfof such agency, officer and/or the United States;</P> <P>(ii) That the Department of Justice will not assert any legal position ordefense on behalf of any employee sued in his individual capacity which isdeemed not to be in the interest of the United States;</P> <P>(iii) Where appropriate, that neither the Department of Justice nor anyagency of the U.S. Government is obligated to pay or to indemnify the defendantemployee for any judgment for money damages which may be rendered against suchemployee; but that, where authorized, the employee may apply for suchindemnification from his employing agency upon the entry of an adverse verdict,judgment, or other monetary award;</P> <P>(iv) That any appeal by Department of Justice attorneys from an adverseruling or judgment against the employee may only be taken upon the discretionaryapproval of the Solicitor General, but the employee-defendant may pursue anappeal at his own expense whenever the Solicitor General declines to authorizean appeal and private counsel is not provided at federal expense under theprocedures of § 50.16; and</P> <P>(v) That while no conflict appears to exist at the time representation istendered which would preclude making all arguments necessary to the adequatedefense of the employee, if such conflict should arise in the future theemployee will be promptly advised and steps will be taken to resolve theconflict as indicated by paragraph (a) (6), (9) and (10) of this section, and by§ 50.16.</P> <P>(9) If a determination not to provide representation is made, the litigatingdivision shall inform the agency and/or the employee of the determination.</P> <P>(10) If conflicts exist between the legal and factual positions of variousemployees in the same case which make it inappropriate for a single attorney torepresent them all, the employees may be separated into as many compatiblegroups as is necessary to resolve the conflict problem and each group may beprovided with separate representation. Circumstances may <PRTPAGE P="70"/>make it advisable thatprivate representation be provided to all conflicting groups and that directJustice Department representation be withheld so as not to prejudice particulardefendants. In such situations, the procedures of § 50.16 will apply.</P> <P>(11) Whenever the Solicitor General declines to authorize further appellatereview or the Department attorney assigned to represent an employee becomesaware that the representation of the employee could involve the assertion of aposition that conflicts with the interests of the United States, the attorneyshall fully advise the employee of the decision not to appeal or the nature,extent, and potential consequences of the conflict. The attorney shall alsodetermine, after consultation with his supervisor (and, if appropriate, with thelitigating division) whether the assertion of the position or appellate reviewis necessary to the adequate representation of the employee and</P> <P>(i) If it is determined that the assertion of the position or appeal is notnecessary to the adequate representation of the employee, and if the employeeknowingly agrees to forego appeal or to waive the assertion of that position,governmental representation may be provided or continued; or</P> <P>(ii) If the employee does not consent to forego appeal or waive the assertionof the position, or if it is determined that an appeal or assertion of theposition is necessary to the adequate representation of the employee, a JusticeDepartment lawyer may not provide or continue to provide the representation; and</P> <P>(iii) In appropriate cases arising under paragraph (a)(10)(ii) of thissection, a private attorney may be provided at federal expense under theprocedures of § 50.16.</P> <P>(12) Once undertaken, representation of a federal employee under thissubsection will continue until either all appropriate proceedings, includingapplicable appellate procedures approved by the Solicitor General, have ended,or until any of the bases for declining or withdrawing from representation setforth in this section is found to exist, including without limitation the basisthat representation is not in the interest of the United States. Ifrepresentation is discontinued for any reason, the representing Departmentattorney on the case will seek to withdraw but will take all reasonable steps toavoid prejudice to the employee.</P> <P>(b) Representation is not available to a federal employee whenever:</P> <P>(1) The conduct with regard to which the employee desires representation doesnot reasonably appear to have been performed within the scope of his employmentwith the federal government;</P> <P>(2) It is otherwise determined by the Department that it is not in theinterest of the United States to provide representation to the employee.</P> <P>(c)(1) The Department of Justice may indemnify the defendant Department ofJustice employee for any verdict, judgment, or other monetary award which isrendered against such employee, provided that the conduct giving rise to theverdict, judgment, or award was taken within the scope of employment and thatsuch indemnification is in the interest of the United States, as determined bythe Attorney General or his designee.</P> <P>(2) The Department of Justice may settle or compromise a personal damagesclaim against a Department of Justice employee by the payment of availablefunds, at any time, provided the alleged conduct giving rise to the personaldamages claim was taken within the scope of employment and that such settlementor compromise is in the interest of the United States, as determined by theAttorney General or his designee.</P> <P>(3) Absent exceptional circumstances as determined by the Attorney General orhis designee, the Department will not entertain a request either to agree toindemnify or to settle a personal damages claim before entry of an adverseverdict, judgment, or award.</P> <P>(4) The Department of Justice employee may request indemnification to satisfya verdict, judgment, or award entered against the employee. The employee shallsubmit a written request, with appropriate documentation including copies of theverdict, judgment, award, or settlement proposal if on appeal, to the head ofhis employing <PRTPAGE P="71"/>component, who shall thereupon submit to the appropriate AssistantAttorney General, in a timely manner, a recommended disposition of the request.Where appropriate, the Assistant Attorney General shall seek the views of theU.S. Attorney; in all such cases the Civil Division shall be consulted. TheAssistant Attorney General shall forward the request, the employing component'srecommendation, and the Assistant Attorney General's recommendation to theAttorney General for decision.</P> <P>(5) Any payment under this section either to indemnify a Department ofJustice employee or to settle a personal damages claim shall be contingent uponthe availability of appropriated funds of the employing component of theDepartment of Justice.</P> <CITA>[Order No. 970-82, 47 FR 8172, Feb. 25, 1982, as amended at OrderNo. 1139-86, 51 FR 27022, July 29, 1986; Order No. 1409-90, 55 FR13130, Apr. 9, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.16</SECTNO> <SUBJECT>Representation of Federal employees by private counsel at Federalexpense.</SUBJECT> <P>(a) Representation by private counsel at federal expense or reimbursement ofprivate counsel fees is subject to the availability of funds and may be providedto a federal employee only in the instances described in § 50.15(a)(4), (7), (10), and (11), and in appropriate circumstances, for the purposes setforth in § 50.15(a)(2).</P> <P>(b) To ensure uniformity in retention and reimbursement procedures among thelitigating divisions, the Civil Division shall be responsible for establishingprocedures for the retention of private counsel and the reimbursement to anemployee of private counsel fees, including the setting of fee schedules. In allinstances where a litigating division decides to retain private counsel or toprovide reimbursement of private counsel fees under this section, the CivilDivision shall be consulted before the retention or reimbursement is undertaken.</P> <P>(c) Where private counsel is provided, the following procedures shall apply:</P> <P>(1) While the Department of Justice will generally defer to the employee'schoice of counsel, the Department must approve in advance any private counsel tobe retained under this section. Where national security interests may beinvolved, the Department of Justice will consult with the agency employing thefederal defendant seeking representation.</P> <P>(2) Federal payments to private counsel for an employee will cease if theprivate counsel violates any of the terms of the retention agreement or theDepartment of Justice.</P> <P>(i) Decides to seek an indictment of, or to file an information against, thatemployee on a federal criminal charge relating to the conduct concerning whichrepresentation was undertaken;</P> <P>(ii) Determines that the employee's actions do not reasonably appear to havebeen performed within the scope of his employment;</P> <P>(iii) Resolves any conflict described herein and tenders representation byDepartment of Justice attorneys;</P> <P>(iv) Determines that continued representation is not in the interest of theUnited States;</P> <P>(v) Terminates the retainer with the concurrence of the employee-client forany reason.</P> <P>(d) Where reimbursement is provided for private counsel fees incurred byemployees, the following limitations shall apply:</P> <P>(1) Reimbursement shall be limited to fees incurred for legal work that isdetermined to be in the interest of the United States. Reimbursement is notavailable for legal work that advances only the individual interests of theemployee.</P> <P>(2) Reimbursement shall not be provided if at any time the Attorney Generalor his designee determines that the employee's actions do not reasonably appearto have been performed within the scope of his employment or that representationis no longer in the interest of the United States.</P> <P>(3) Reimbursement shall not be provided for fees incurred during any periodof time for which representation by Department of Justice attorneys wastendered.</P> <P>(4) Reimbursement shall not be provided if the United States decides to seekan indictment of or to file an information against the employee seekingreimbursement, on a criminal <PRTPAGE P="72"/>charge relating to the conduct concerning whichrepresentation was undertaken.</P> <CITA>[Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by OrderNo. 1409-90, 55 FR 13130, Apr. 9, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.17</SECTNO> <SUBJECT> <E T="7462">Ex parte</E> communications in informal rulemakingproceedings.</SUBJECT> <P>In rulemaking proceedings subject only to the procedural requirements of 5U.S.C. 553:</P> <P>(a) A general prohibition applicable to all offices, boards, bureaus anddivisions of the Department of Justice against the receipt of private, <E T="03">ex parte</E> oral or written communications is undesirable, because itwould deprive the Department of the flexibility needed to fashion rulemakingprocedures appropriate to the issues involved, and would introduce a degree offormality that would, at least in most instances, result in procedures that areunduly complicated, slow, and expensive, and, at the same time, perhaps notconducive to developing all relevant information.</P> <P>(b) All written communications from outside the Department addressed to themerits of a proposed rule, received after notice of proposed informal rulemakingand in its course by the Department, its offices, boards, and bureaus, anddivisions or their personnel participating in the decision, should be placedpromptly in a file available for public inspection.</P> <P>(c) All oral communications from outside the Department of significantinformation or argument respecting the merits of a proposed rule, received afternotice of proposed informal rulemaking and in its course by the Department, itsoffices, boards, bureaus, and divisions or their personnel participating in thedecision, should be summarized in writing and placed promptly in a fileavailable for public inspection.</P> <P>(d) The Department may properly withhold from the public files informationexempt from disclosure under 5 U.S.C. 552.</P> <P>(e) The Department may conclude that restrictions on <E T="03">ex parte</E>communications in particular rulemaking proceedings are necessitated byconsiderations of fairness or for other reasons.</P> <CITA>[Order No. 801-78, 43 FR 43297, Sept. 25, 1978, as amended at OrderNo. 1409-90, 55 FR 13130, April 9, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.18</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 50.19</SECTNO> <SUBJECT>Procedures to be followed by government attorneys prior to filingrecusal or disqualification motions.</SUBJECT> <P>The determination to seek for any reason the disqualification or recusal of ajustice, judge, or magistrate is a most significant and sensitive decision. Thisis particularly true for government attorneys, who should be guided by uniformprocedures in obtaining the requisite authorization for such a motion. Thisstatement is designed to establish a uniform procedure.</P> <P>(a) No motion to recuse or disqualify a justice, judge, or magistrate (<E T="03">see, e.g.,</E> 28 U.S.C. 144, 455) shall be made or supported by anyDepartment of Justice attorney, U.S. Attorney (including Assistant U.S.Attorneys) or agency counsel conducting litigation pursuant to agreement with orauthority delegated by the Attorney General, without the prior written approvalof the Assistant Attorney General having ultimate supervisory power over theaction in which recusal or disqualification is being considered.</P> <P>(b) Prior to seeking such approval, Justice Department lawyer(s) handling thelitigation shall timely seek the recommendations of the U.S. Attorney for thedistrict 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 theDepartment of Justice with the request for approval. In actions where the UnitedStates Attorneys are primarily handling the litigation in question, they shallseek the recommendation of the client agencies, if any, for submission to theAssistant Attorney General.</P> <P>(c) In the event that the conduct and pace of the litigation does not allowsufficient time to seek the prior written approval by the Assistant AttorneyGeneral, prior oral authorization shall <PRTPAGE P="73"/>be sought and a written record fullyreflecting that authorization shall be subsequently prepared and submitted tothe Assistant Attorney General.</P> <P>(d) Assistant Attorneys General may delegate the authority to approve or denyrequests made pursuant to this section, but only to Deputy Assistant AttorneysGeneral or an equivalent position.</P> <P>(e) This policy statement does not create or enlarge any legal obligationsupon the Department of Justice in civil or criminal litigation, and it is notintended to create any private rights enforceable by private parties inlitigation with the United States.</P> <CITA>[Order No. 977-82, 47 FR 22094, May 21, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.20</SECTNO> <SUBJECT>Participation by the United States in court-annexed arbitration.</SUBJECT> <P>(a) <E T="03">Considerations affecting participation in arbitration.</E> (1)The Department recognizes and supports the general goals of court-annexedarbitrations, which are to reduce the time and expenses required to dispose ofcivil litigation. Experimentations with such procedures in appropriate cases canoffer both the courts and litigants an opportunity to determine theeffectiveness of arbitration as an alternative to traditional civil litigation.</P> <P>(2) An arbitration system, however, is best suited for the resolution ofrelatively simple factual issues, not for trying cases that may involve complexissues of liability or other unsettled legal questions. To expand an arbitrationsystem beyond the types of cases for which it is best suited and most competentwould risk not only a decrease in the quality of justice available to theparties but unnecessarily higher costs as well.</P> <P>(3) In particular, litigation involving the United States raises specialconcerns with respect to court-annexed arbitration programs. A mandatoryarbitration program potentially implicates the principles of separation ofpowers, sovereign immunity, and the Attorney General's control over the processof settling litigation.</P> <P>(b) <E T="03">General rule consenting to arbitration consistent with thedepartment's regulations.</E> (1) Subject to the considerations set forth in thefollowing paragraphs and the restrictions set forth in paragraphs (c) and (d),in a case assigned to arbitration or mediation under a local district courtrule, the Department of Justice agrees to participate in the arbitration processunder the local rule. The attorney for the government responsible for the caseshould take any appropriate steps in conducting the case to protect theinterests of the United States.</P> <P>(2) Based upon its experience under arbitration programs to date, and thepurposes and limitations of court-annexed arbitration, the Department generallyendorses inclusion in a district's court-annexed arbitration program of civilactions—</P> <P>(i) In which the United States or a Department, agency, or official of theUnited States is a party, and which seek only money damages in an amount not inexcess of $100,000, exclusive of interest and costs; and</P> <P>(ii) Which are brought (A) under the Federal Tort Claims Act, 28 U.S.C.1346(b), 2671 <E T="03">et seq.,</E> or (B) under the Longshoreman's and HarborWorker's Compensation Act, 33 U.S.C. 905, or (C) under the Miller Act, 40 U.S.C.270(b).</P> <P>(3) In any other case in which settlement authority has been delegated to theU.S. Attorney under the regulations of the Department and the directives of theapplicable litigation division and none of the exceptions to such delegationapply, the U.S. Attorney for the district, if he concludes that a settlement ofthe case upon the terms of the arbitration award would be appropriate, mayproceed to settle the case accordingly.</P> <P>(4) Cases other than those described in paragraph (2) that are not within thedelegated settlement authority of the U.S. Attorney for the district ordinarilyare not appropriate for an arbitration process because the Department generallywill not be able to act favorably or negatively in a short period of time upon asettlement of the case in accordance with the arbitration award. Therefore, thiswill result in a demand for trial de novo in a substantial proportion of suchcases to preserve the interests of the United States.</P> <P>(5) The Department recommends that any district court's arbitration ruleinclude a provision exempting any case <PRTPAGE P="74"/>from arbitration, sua sponte or on motionof a party, in which the objectives of arbitration would not appear to berealized, because the case involves complex or novel legal issues, or becauselegal issues predominate over factual issues, or for other good cause.</P> <P>(c) <E T="03">Objection to the imposition of penalties or sanctions againstthe United States for demanding trial de novo.</E> (1) Under the principle ofsovereign immunity, the United States cannot be held liable for costs orsanctions in litigation in the absence of a statutory provision waiving itsimmunity. In view of the statutory limitations on the costs payable by theUnited States (28 U.S.C. 2412(a), 2412(b), and 1920), the Department does notconsent to provisions in any district's arbitration program providing for theUnited States or the Department, agency, or official named as a party to theaction to pay any sanction for demanding a trial de novo—either as adeposit in advance or as a penalty imposed after the fact—which is basedon the arbitrators' fees, the opposing party's attorneys' fees, or any othercosts not authorized by statute to be awarded against the United States. Thisobjection applies whether the penalty or sanction is required to be paid to theopposing party, to the clerk of the court, or to the Treasury of the UnitedStates.</P> <P>(2) In any case involving the United States that is designated forarbitration under a program pursuant to which such a penalty or sanction mightbe imposed against the United States, its officers or agents, the attorney forthe government is instructed to take appropriate steps, by motion, notice ofobjection, or otherwise, to apprise the court of the objection of the UnitedStates to the imposition of such a penalty or sanction.</P> <P>(3) Should such a penalty or sanction actually be required of or imposed onthe United States, its officers or agents, the attorney for the government isinstructed to:</P> <P>(i) Advise the appropriate Assistant Attorney General of this developmentpromptly in writing;</P> <P>(ii) Seek appropriate relief from the district court; and</P> <P>(iii) If necessary, seek authority for filing an appeal or petition formandamus.</P> <FP>The Solicitor General, the Assistant Attorneys General, and the U.S.Attorneys are instructed to take all appropriate steps to resist the impositionof such penalties or sanctions against the United States.</FP> <P>(d) <E T="03">Additional restrictions.</E> (1) The Assistant AttorneysGeneral, the U.S. Attorneys, and their delegates, have no authority to settle orcompromise the interests of the United States in a case pursuant to anarbitration process in any respect that is inconsistent with the limitationsupon the delegation of settlement authority under the Department's regulationsand the directives of the litigation divisions. See 28 CFR part 0, subpart Y andappendix to subpart Y. The attorney for the government shall demand trial denovo in any case in which:</P> <P>(i) Settlement of the case on the basis of the amount awarded would not be inthe best interests of the United States;</P> <P>(ii) Approval of a proposed settlement under the Department's regulations inaccordance with the arbitration award cannot be obtained within the periodallowed by the local rule for rejection of the award; or</P> <P>(iii) The client agency opposes settlement of the case upon the terms of thesettlement award, unless the appropriate official of the Department approves asettlement of the case in accordance with the delegation of settlement authorityunder the Department's regulations.</P> <P>(2) Cases sounding in tort and arising under the Constitution of the UnitedStates or under a common law theory filed against an employee of the UnitedStates in his personal capacity for actions within the scope of his employmentwhich are alleged to have caused injury or loss of property or personal injuryor death are not appropriate for arbitration.</P> <P>(3) Cases for injunctive or declaratory relief are not appropriate forarbitration.</P> <P>(4) The Department reserves the right to seek any appropriate relief to whichits client is entitled, including injunctive relief or a ruling on motions <PRTPAGE P="75"/>forjudgment on the pleadings, for summary judgment, or for qualified immunity, oron issues of discovery, before proceeding with the arbitration process.</P> <P>(5) In view of the provisions of the Federal Rules of Evidence with respectto settlement negotiations, the Department objects to the introduction of thearbitration process or the arbitration award in evidence in any proceeding inwhich the award has been rejected and the case is tried de novo.</P> <P>(6) The Department's consent for participation in an arbitration program isnot a waiver of sovereign immunity or other defenses of the United States exceptas expressly stated; nor is it intended to affect jurisdictional limitations (<E T="03">e.g.,</E> the Tucker Act).</P> <P>(e) <E T="03">Notification of new or revised arbitration rules.</E> The U.S.Attorney in a district which is considering the adoption of or has adopted aprogram of court-annexed arbitration including cases involving the United Statesshall:</P> <P>(1) Advise the district court of the provisions of this section and thelimitations on the delegation of settlement authority to the United StatesAttorney pursuant to the Department's regulations and the directives of thelitigation divisions; and</P> <P>(2) Forward to the Executive Office for United States Attorneys a notice thatsuch 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 arecommendation as to whether United States participation in the program asproposed, adopted, or revised, would be advisable, in whole or in part.</P> <CITA>[Order No. 1109-85, 50 FR 40524, Oct. 4, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.21</SECTNO> <SUBJECT>Procedures governing the destruction of contraband drug evidence in thecustody of Federal law enforcement authorities.</SUBJECT> <P>(a) <E T="03">General.</E> The procedures set forth below are intended as astatement of policy of the Department of Justice and will be applied by theDepartment in exercising its responsibilities under Federal law relating to thedestruction of seized contraband drugs.</P> <P>(b) <E T="03">Purpose.</E> This policy implements the authority of theAttorney General under title I, section 1006(c)(3) of the Anti-Drug Abuse Act of1986, Public Law 99-570 which is codified at 21 U.S.C. 881(f)(2), todirect the destruction, as necessary, of Schedule I and II contrabandsubstances.</P> <P>(c) <E T="03">Policy.</E> This regulation is intended to prevent thewarehousing of large quantities of seized contraband drugs which are unnecessaryfor due process in criminal cases. Such stockpiling of contraband drugs presentsinordinate security and storage problems which create additional economicburdens on limited law enforcement resources of the United States.</P> <P>(d) <E T="03">Definitions.</E> As used in this subpart, the following termsshall have the meanings specified:</P> <P>(1) The term <E T="03">Contraband drugs</E> are those controlled substanceslisted in Schedules I and II of the Controlled Substances Act seized forviolation of that Act.</P> <P>(2) The term <E T="03">Marijuana</E> is as defined in 21 U.S.C. 801(15) butdoes not include, for the purposes of this regulation, the derivatives hashishor hashish oil for purposes of destruction.</P> <P>(3) The term <E T="03">Representative sample</E> means the exemplar fortesting and a sample aggregate portion of the whole amount seized sufficient forcurrent criminal evidentiary practice.</P> <P>(4) The term <E T="03">Threshold amount</E> means:</P> <P>(i) Two kilograms of a mixture or substance containing a detectable amount ofheroin;</P> <P>(ii) Ten kilograms of a mixture or substance containing a detectable amountof—</P> <P>(A) Coca leaves, except coca leaves and extracts of coca leaves from whichcocaine, ecgonine, and derivatives of ecognine or their salts have been removed;</P> <P>(B) Cocaine, its salts, optical and geometric isomers, and salts of isomers;</P> <P>(C) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or</P> <P>(D) Any compound, mixture, or preparation which contains any quantity of anyof the substances referred to in paragraphs (d)(4)(ii) (A) through (C) of thissection;</P> <P>(iii) Ten kilograms of a mixture or substance described in paragraph(d)(4)(ii)(B) of this section which contains cocaine base;<PRTPAGE P="76"/> </P> <P>(iv) Two hundred grams of phencyclidine (PCP) or two kilograms of a mixtureor substance containing a detectable amount of phencyclidine (PCP);</P> <P>(v) Twenty grams of a mixture or substance containing a detectable amount ofLysergic Acid Diethylamide (LSD);</P> <P>(vi) Eight hundred grams of a mixture or substance containing a detectableamount of N-phenyl-N[1-(2-phenylethyl)-4-piperidiny] propanamide (commonly knownas fentanyl) or two hundred grams of a mixture or substance containing adetectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinylpropanamide; or</P> <P>(vii) Twenty kilograms of hashish or two kilograms of hashish oil (21 U.S.C.841(b)(1)(D), 960(b)(4)).</P> <FP>In the event of any changes to section 401(b)(1) of the ControlledSubstances Act (21 U.S.C. 841(b)(1) as amended occurring after the date of theseregulations, the threshold amount of any substance therein listed, exceptmarijuana, shall be twice the minimum amount required for the most severemandatory minimum sentence.</FP> <P>(e) <E T="03">Procedures.</E> Responsibilities of the Federal Bureau ofInvestigation and Drug Enforcement Administration.</P> <FP>When contraband drug substances in excess of the threshold amount or in thecase of marijuana a quantity in excess of the representative sample are seizedpursuant to a criminal investigation and retained in the custody of the FederalBureau of Investigation or Drug Enforcement Administration, the Agency havingcustody shall:</FP> <P>(1) Immediately notify the appropriate U.S. Attorney, Assistant U.S.Attorney, or the responsible state/local prosecutor that the amount of seizedcontraband drug exceeding the threshold amount and its packaging, will bedestroyed after sixty days from the date notice is provided of the seizures,unless the agency providing notice is requested in writing by the authorityreceiving notice not to destroy the excess contraband drug; and</P> <P>(2) Assure that appropriate tests of samples of the drug are conducted todetermined the chemical nature of the contraband substance and its weightsufficient to serve as evidence before the trial courts of that jurisdiction;and</P> <P>(3) Photographically depict, and if requested by the appropriateprosecutorial authority, videotape, the contraband drugs as originally packagedor an appropriate display of the seized contraband drugs so as to createevidentiary exhibits for use at trial; and</P> <P>(4) Isolate and retain the appropriate threshold amounts of contraband drugevidence when an amount greater than the appropriate threshold amount has beenseized, or when less than the appropriate threshold amounts of contraband drugshave been seized, the entire amount of the seizure, with the exception ofmarijuana, for which a representative sample shall be retained; and</P> <P>(5) Maintain the retained portions of the contraband drugs until the evidenceis 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;</P> <P>(6) Notify the appropriate U.S. Attorney, Assistant U.S. Attorney, or theresponsible state/local prosecutor to obtain consent to destroy the retainedamount or representative sample whenever the related suspect(s) has been afugitive from justice for a period of five years. An exemplar sufficient fortesting will be retained consistent with this section.</P> <P>(f) <E T="03">Procedures.</E> Responsibilities of the U.S. Attorney or theDistrict Attorney (or equivalent state/local prosecutorial authority). When sonotified by the Federal Bureau of Investigation or the Drug EnforcementAdministration of an intent to destroy excess contraband drugs, the U.S.Attorney or the District Attorney (or equivalent) may:</P> <P>(1) Agree to the destruction of the contraband drug evidence in excess of thethreshold amount, or for marijuana in excess of the representative sample, priorto the normal sixty-day period. The U.S. Attorney, or the District Attorney (orequivalent) may delegate to his/her assistants authority to enter into suchagreement; or<PRTPAGE P="77"/> </P> <P>(2) Request an exception to the destruction policy in writing to the SpecialAgent in Charge of the responsible division prior to the end of the sixty-dayperiod when retaining only the threshold amount or representative sample willsignificantly affect any legal proceedings; and</P> <P>(3) In the event of a denial of the request may appeal the denial to theAssistant Attorney General, Criminal Division. Such authority may not beredelegated. An appeal shall stay the destruction until the appeal is complete.</P> <P>(g) <E T="03">Supplementary regulations.</E> The Federal Bureau ofInvestigation and the Drug Enforcement Administration are authorized to issueregulations and establish procedures consistent with this section.</P> <CITA>[Order No. 1256-88, 53 FR 8453, Mar. 15, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.22</SECTNO> <SUBJECT>Young American Medals Program.</SUBJECT> <P>(a) <E T="03">Scope.</E> There are hereby established two medals, one to beknown as the Young American Medal for Bravery and the other to be known as theYoung American Medal for Service.</P> <P>(b) <E T="03">Young American Medal for Bravery.</E> (1)(i) The Young AmericanMedal for Bravery may be awarded to a person—</P> <P>(A) Who during a given calendar year has exhibited exceptional courage,attended by extraordinary decisiveness, presence of mind, and unusual swiftnessof action, regardless of his or her own personal safety, in an effort to save orin saving the life of any person or persons in actual imminent danger;</P> <P>(B) Who was eighteen years of age or younger at the time of the occurrence;and</P> <P>(C) Who habitually resides in the United States (including its territoriesand possessions), but need not be a citizen thereof.</P> <P>(ii) These conditions must be met at the time of the event.</P> <P>(2) The act of bravery must have been public in nature and must have beenacknowledged by the Governor, Chief Executive Officer of a State, county,municipality, or other political subdivision, or by a civic, educational, orreligious institution, group, or society.</P> <P>(3) No more than two such medals may be awarded in any one calendar year.</P> <P>(c) <E T="03">Young American Medal for Service.</E> (1) The Young AmericanMedal for Service may be awarded to any citizen of the United States eighteenyears of age or younger at the time of the occurrence, who has achievedoutstanding or unusual recognition for character and service during a givencalendar year.</P> <P>(2) Character attained and service accomplished by a candidate for this medalmust have been such as to make his or her achievement worthy of public report.The outstanding and unusual recognition of the candidate's character and servicemust have been public in nature and must have been acknowledged by the Governor,Chief Executive Officer of a State, county, municipality, or other politicalsubdivision, or by a civic, educational, or religious institution, group, orsociety.</P> <P>(3) The recognition of the character and service upon which the award of theMedal for Service is based must have been accorded separately and apart from theYoung American Medals program and must not have been accorded for the specificand announced purpose of rendering a candidate eligible, or of adding to acandidate's qualifications, for the award of the Young American Medal forService.</P> <P>(4) No more than two such medals may be awarded in any one calendar year.</P> <P>(d) <E T="03">Eligibility.</E> (1) The act or acts of bravery and therecognition for character and service that make a candidate eligible for therespective medals must have occurred during the calendar year for which theaward is made.</P> <P>(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'seligibility for the award of either or both of the medals in a succeeding year.</P> <P>(3) Acts of bravery performed and recognition of character and serviceachieved by persons serving in the Armed Forces, which arise from or out ofmilitary duties, shall not make a candidate eligible for either of the medals,provided, however, that a person serving in the Armed Forces shall be eligibleto receive either or both of <PRTPAGE P="78"/>the medals if the act of bravery performed or therecognition for character and service achieved is on account of acts and serviceperformed or rendered outside of and apart from military duties.</P> <P>(e) <E T="03">Request for information.</E> (1) A recommendation in favor of acandidate for the award of a Young American Medal for Bravery or for Servicemust be accompanied by:</P> <P>(i) A full and complete statement of the candidate's act or acts of braveryor recognized character and service (including the times and places) thatsupports qualification of the candidate to receive the appropriate medal;</P> <P>(ii) Statements by witnesses or persons having personal knowledge of thefacts surrounding the candidate's act or acts of bravery or recognized characterand service, as required by the respective medals;</P> <P>(iii) A certified copy of the candidate's birth certificate, or, if no birthcertificate is available, other authentic evidence of the date and place of thecandidate's birth; and</P> <P>(iv) A biographical sketch of the candidate, including information as to hisor her citizenship or habitual residence, as may be required by the respectivemedals.</P> <P>(f) <E T="03">Procedure.</E> (1)(i) All recommendations and accompanyingdocuments and papers should be submitted to the Governor or Chief ExecutiveOfficer of the State, territory, or possession of the United States where thecandidate's act or acts of bravery or recognized character and service weredemonstrated. In the case of the District of Columbia, the recommendationsshould be submitted to the Mayor of the District of Columbia.</P> <P>(ii) If the act or acts of bravery or recognized character and service didnot occur within the boundaries of any State, territory, or possession of theUnited States, the papers should be submitted to the Governor or Chief ExecutiveOfficer of the territory or other possession of the United States wherein thecandidate habitually maintains his or her residence.</P> <P>(2) The Governor or Chief Executive Officer, after considering the variousrecommendations received after the close of the pertinent calendar year, maynominate therefrom no more than two candidates for the Young American Medal forBravery and no more than two candidates for the Young American Medal forService. Nominated individuals should have, in the opinion of the appropriateofficial, shown by the facts and circumstances to be the most worthy andqualified candidates from the jurisdiction to receive consideration for awardsof the above-named medals.</P> <P>(3) Nominations of candidates for either medal must be submitted no laterthan 120 days after notification that the Department of Justice is seekingnominations under this program for a specific calendar year. Each nominationmust contain the necessary documentation establishing eligibility, must besubmitted by the Governor or Chief Executive Officer, together with anycomments, and should be submitted to the address published in the notice.</P> <P>(4) Nominations of candidates for medals will be considered only whenreceived from the Governor or Chief Executive Officer of a State, territory, orpossession of the United States.</P> <P>(5) The Young American Medals Committee will select, from nominationsproperly submitted, those candidates who are shown by the facts andcircumstances to be eligible for the award of the medals. The Committee shallmake recommendations to the Attorney General based on its evaluation of thenominees. Upon consideration of these recommendations, the Attorney General mayselect up to the maximum allowable recipients for each medal for the calendaryear.</P> <P>(g) <E T="03">Presentation.</E> (1) The Young American Medal for Bravery andthe Young American Medal for Service will be presented personally by thePresident of the United States to the candidates selected. These medals will bepresented 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 thePresident in consultation with the Attorney General.</P> <P>(2) The Young American Medals Committee will officially designate two adults(preferably the parents of the <PRTPAGE P="79"/>candidate) to accompany each candidate selectedto the presentation ceremonies. The candidates and persons designated toaccompany them will be furnished transportation and other appropriateallowances.</P> <P>(3) There shall be presented to each recipient an appropriate Certificate ofCommendation stating the circumstances under which the act of bravery wasperformed or describing the outstanding recognition for character and service,as appropriate for the medal awarded. The Certificate will bear the signature ofthe President of the United States and the Attorney General of the UnitedStates.</P> <P>(4) There also shall be presented to each recipient of a medal, a miniaturereplica of the medal awarded in the form of a lapel pin.</P> <P>(h) <E T="03">Posthumous awards.</E> In cases where a medal is awardedposthumously, the Young American Medals Committee will designate the father ormother of the deceased or other suitable person to receive the medal on behalfof the deceased. The decision of the Young American Medals Committee indesignating the person to receive the posthumously awarded medal, on behalf ofthe deceased, shall be final.</P> <P>(i) <E T="03">Young American Medals Committee.</E> The Young American MedalsCommittee shall be represented by the following:</P> <P>(1) Director of the FBI, Chairman;</P> <P>(2) Administrator of the Drug Enforcement Administration, Member;</P> <P>(3) Director of the U.S. Marshals Service, Member; and</P> <P>(4) Assistant Attorney General, Office of Justice Programs, Member andExecutive Secretary.</P> <SECAUTH>(Authority: The United States Department of Justice is authorized under42 U.S.C. 1921 <E T="03">et seq.</E> to promulgate rules and regulationsestablishing medals, one for bravery and one for service. This authority wasenacted by chapter 520 of Pub. L. 81-638 (August 3, 1950).)</SECAUTH> <CITA>[61 FR 49260, Sept. 19, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.23</SECTNO> <SUBJECT>Policy against entering into final settlement agreements or consentdecree that are subject to confidentiality provisions and against seeking orconcurring in the sealing of such documents.</SUBJECT> <P>(a) It is the policy of the Department of Justice that, in any civil matterin which the Department is representing the interests of the United States orits agencies, it will not enter into final settlement agreements or consentdecrees that are subject to confidentiality provisions, nor will it seek orconcur in the sealing of such documents. This policy flows from the principle ofopenness in government and is consistent with the Department's policiesregarding openness in judicial proceedings (see 28 CFR 50.9) and the Freedom ofInformation Act (see Memorandum for Heads of Departments and Agencies from theAttorney General <E T="03">Re: The Freedom of Information Act (Oct. 4,1993))</E>.</P> <P>(b) There may be rare circumstances that warrant an exception to this generalrule. In determining whether an exception is appropriate, any such circumstancesmust be considered in the context of the public's strong interest in knowingabout the conduct of its Government and expenditure of its resources. Theexistence of such circumstances must be documented as part of the approvalprocess, and any confidentiality provision must be drawn as narrowly aspossible. Non-delegable approval authority to determine that an exceptionjustifies use of a confidentiality provision in, or seeking or concurring in thesealing of, a final settlement or consent decree resides with the relevantAssistant Attorney General or United States Attorney, unless authority toapprove the settlement itself lies with a more senior Department official, inwhich case the more senior official will have such approval authority.</P> <P>(c) Regardless of whether particular information is subject to aconfidentiality provision or to seal, statutes and regulations may prohibit itsdisclosure from Department of Justice files. Thus, before releasing anyinformation, Department attorneys should consult all appropriate statutes andregulations (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 involvingindividuals, the Privacy Act regulates disclosure of settlement agreements that <PRTPAGE P="80"/>have not been made part of the court record.</P> <P>(d) The principles set forth in this section are intended to provide guidanceto attorneys for the Government and are not intended to create or recognize anylegally enforceable right in any person.</P> <CITA>[Order No. 2270-99, 64 FR 59122, Nov. 2, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 50.24</SECTNO> <SUBJECT>Annuity broker minimum qualifications.</SUBJECT> <P>(a) <E T="03">Minimum standards.</E> The Civil Division, United StatesDepartment of Justice, shall establish a list of annuity brokers who meetminimum qualifications for providing annuity brokerage services in connectionwith structured settlements entered by the United States. Those qualificationsare as follows:</P> <P>(1) The broker must have a current license issued by at least one State, theDistrict of Columbia, or a Territory of the United States as a life insuranceagent, producer, or broker;</P> <P>(2) The broker must have a current license or appointment issued by at leastone life insurance company to sell its structured settlement annuity contractsor to act as a structured settlement consultant or broker for the company;</P> <P>(3) The broker must be currently covered by an Errors and Omissions insurancepolicy, or an equivalent form of insurance;</P> <P>(4) The broker must never have had a license to be a life insurance agent,producer, or broker revoked, rescinded, or suspended for any reason or for anyperiod of time;</P> <P>(5) The broker must not have been convicted of a felony; and</P> <P>(6) The broker must have had substantial experience in each of the past threeyears in providing structured settlement brokerage services to or on behalf ofdefendants or their counsel.</P> <P>(b) <E T="03">Procedures for inclusion on the list.</E> (1) An annuity brokerwho desires to be included on the list must submit a “Declaration”that he or she has reviewed the list of minimum qualifications set forth inparagraph (a) of this section and that he or she meets those minimumqualifications. A sample of the Declaration for annuity brokers to submit isavailable from the Civil Division's Web site (<E T="03">http://www.usdoj.gov/civil/home.html</E>) or by written request to theaddress in this section. These minimum qualifications must be continually metfor a broker who has been included on the list to remain included when the listis updated thereafter. The Declaration must be executed under penalty of perjuryin a manner specified in 28 U.S.C. 1746.</P> <P>(2) Each broker must submit a new Declaration annually to be included onupdated lists. For a broker to be included on the initial list to be establishedby May 1, 2003, the Torts Branch, Civil Division, must receive the broker'sDeclaration no later than April 24, 2003. If the broker wishes to be included onupdated lists, the Torts Branch must receive a new Declaration from the brokerbetween January 1 and April 10 of each successive calendar year. After theDeclaration is completed and signed, the original must be mailed to the UnitedStates Department of Justice, Civil Division, FTCA Staff, Post Office Box 888,Benjamin Franklin Station, Washington, DC 20044. The Department of Justice willnot accept a photocopy or facsimile of the Declaration.</P> <P>(3) A Declaration will not be accepted by the Department of Justice unless itis complete and has been signed by the individual annuity broker requestinginclusion on the list. A Declaration that is incomplete or has been altered,amended, or changed in any respect from the Declaration at the Civil Division'sWeb site will not be accepted by the Department of Justice. Such a Declarationwill be returned to the annuity broker who submitted it, and the Department ofJustice will take no further action on the request for inclusion on the listuntil the defect in the Declaration has been cured by the annuity broker.</P> <P>(4) The Department of Justice will retain a complete Declaration signed andfiled by an annuity broker requesting to be on the list. Because this rule doesnot require the submission of any additional information, the Department retainsdiscretion to dispose of additional information or documentation provided by anannuity broker.</P> <P>(5) The Department of Justice will not accept a Declaration submitted by <PRTPAGE P="81"/>anannuity company or by someone on behalf of another individual or group ofindividuals. Each individual annuity broker who desires to be included on thelist must submit his or her own Declaration.</P> <P>(6) An annuity broker whose name appears on the list incorrectly may submit awritten request that his or her name be corrected. An annuity broker whose nameappears on the list may submit a written request that his or her name be removedfrom the list.</P> <P>(7) To the extent practicable, a name correction or deletion will appear onthe next revision of the list immediately after receipt of the written requestfor a name correction or deletion. A written request for a name correction ordeletion must be mailed to the United States Department of Justice, CivilDivision, FTCA Staff, Post Office Box 888, Benjamin Franklin Station,Washington, DC 20044. Facsimiles will not be accepted.</P> <P>(8) The list of annuity brokers established pursuant to this section will beupdated periodically, but not more often than twice every calendar year,beginning in calendar year 2004.</P> <P>(c) <E T="03">Disclaimers.</E> (1) The inclusion of an annuity broker on thelist signifies only that the individual declared under penalty of perjury thathe or she meets the minimum qualifications required by the Attorney General forproviding annuity brokerage services in connection with structured settlementsentered into by the United States. Because the decision to include an individualannuity broker on the list is based solely and exclusively on the Declarationsubmitted by the annuity broker, the appearance of an annuity broker's name onthe list does not signify that the annuity broker actually meets those minimumqualifications or is otherwise competent to provide structured settlementbrokerage services to the United States. No preferential consideration will begiven to an annuity broker appearing on the list except to the extent thatUnited States Attorneys utilize the list pursuant to section 11015(b) of PublicLaw 107-273.</P> <P>(2) By submitting a Declaration to the Department of Justice, the individualannuity broker agrees that the Declaration and the list each may be made publicin its entirety, and the annuity broker expressly consents to such release anddisclosure of the Declaration and list.</P> <CITA>[Order No. 2667-2003, 68 FR 18120, Apr. 15, 2003]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 51</EAR> <HD SOURCE="HED">PART 51—PROCEDURES FOR THE ADMINISTRATION OF SECTION5 OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>51.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>51.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>51.3</SECTNO> <SUBJECT>Delegation of authority.</SUBJECT> <SECTNO>51.4</SECTNO> <SUBJECT>Date used to determine coverage; list of coveredjurisdictions.</SUBJECT> <SECTNO>51.5</SECTNO> <SUBJECT>Termination of coverage (bailout).</SUBJECT> <SECTNO>51.6</SECTNO> <SUBJECT>Political subunits.</SUBJECT> <SECTNO>51.7</SECTNO> <SUBJECT>Political parties.</SUBJECT> <SECTNO>51.8</SECTNO> <SUBJECT>Section 3 coverage.</SUBJECT> <SECTNO>51.9</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <SECTNO>51.10</SECTNO> <SUBJECT>Requirement of action for declaratory judgment orsubmission to the Attorney General.</SUBJECT> <SECTNO>51.11</SECTNO> <SUBJECT>Right to bring suit.</SUBJECT> <SECTNO>51.12</SECTNO> <SUBJECT>Scope of requirement.</SUBJECT> <SECTNO>51.13</SECTNO> <SUBJECT>Examples of changes.</SUBJECT> <SECTNO>51.14</SECTNO> <SUBJECT>Recurrent practices.</SUBJECT> <SECTNO>51.15</SECTNO> <SUBJECT>Enabling legislation and contingent or nonuniformrequirements.</SUBJECT> <SECTNO>51.16</SECTNO> <SUBJECT>Distinction between changes in procedure and changes insubstance.</SUBJECT> <SECTNO>51.17</SECTNO> <SUBJECT>Special elections.</SUBJECT> <SECTNO>51.18</SECTNO> <SUBJECT>Court-ordered changes.</SUBJECT> <SECTNO>51.19</SECTNO> <SUBJECT>Request for notification concerning voting litigation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Submission to the Attorney General</HD> <SECTNO>51.20</SECTNO> <SUBJECT>Form of submissions.</SUBJECT> <SECTNO>51.21</SECTNO> <SUBJECT>Time of submissions.</SUBJECT> <SECTNO>51.22</SECTNO> <SUBJECT>Premature submissions.</SUBJECT> <SECTNO>51.23</SECTNO> <SUBJECT>Party and jurisdiction responsible for making submissions.</SUBJECT> <SECTNO>51.24</SECTNO> <SUBJECT>Address for submissions.</SUBJECT> <SECTNO>51.25</SECTNO> <SUBJECT>Withdrawal of submissions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Contents of Submissions</HD> <SECTNO>51.26</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>51.27</SECTNO> <SUBJECT>Required contents.</SUBJECT> <SECTNO>51.28</SECTNO> <SUBJECT>Supplemental contents.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Communications From Individuals and Groups</HD> <SECTNO>51.29</SECTNO> <SUBJECT>Communications concerning voting changes.</SUBJECT> <SECTNO>51.30</SECTNO> <SUBJECT>Action on communications from individuals or groups.<PRTPAGE P="82"/> </SUBJECT> <SECTNO>51.31</SECTNO> <SUBJECT> Communications concerning voting suits.</SUBJECT> <SECTNO>51.32</SECTNO> <SUBJECT>Establishment and maintenance of registry of interestedindividuals and groups.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Processing of Submissions</HD> <SECTNO>51.33</SECTNO> <SUBJECT>Notice to registrants concerning submissions.</SUBJECT> <SECTNO>51.34</SECTNO> <SUBJECT>Expedited consideration.</SUBJECT> <SECTNO>51.35</SECTNO> <SUBJECT>Disposition of inappropriate submissions.</SUBJECT> <SECTNO>51.36</SECTNO> <SUBJECT>Release of information concerning submissions.</SUBJECT> <SECTNO>51.37</SECTNO> <SUBJECT>Obtaining information from the submitting authority.</SUBJECT> <SECTNO>51.38</SECTNO> <SUBJECT>Obtaining information from others.</SUBJECT> <SECTNO>51.39</SECTNO> <SUBJECT>Supplementary submissions.</SUBJECT> <SECTNO>51.40</SECTNO> <SUBJECT>Failure to complete submissions.</SUBJECT> <SECTNO>51.41</SECTNO> <SUBJECT>Notification of decision not to object.</SUBJECT> <SECTNO>51.42</SECTNO> <SUBJECT>Failure of the Attorney General to respond.</SUBJECT> <SECTNO>51.43</SECTNO> <SUBJECT>Reexamination of decision not to object.</SUBJECT> <SECTNO>51.44</SECTNO> <SUBJECT>Notification of decision to object.</SUBJECT> <SECTNO>51.45</SECTNO> <SUBJECT>Request for reconsideration.</SUBJECT> <SECTNO>51.46</SECTNO> <SUBJECT>Reconsideration of objection at the instance of theAttorney General.</SUBJECT> <SECTNO>51.47</SECTNO> <SUBJECT>Conference.</SUBJECT> <SECTNO>51.48</SECTNO> <SUBJECT>Decision after reconsideration.</SUBJECT> <SECTNO>51.49</SECTNO> <SUBJECT>Absence of judicial review.</SUBJECT> <SECTNO>51.50</SECTNO> <SUBJECT>Records concerning submissions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Determinations by the Attorney General</HD> <SECTNO>51.51</SECTNO> <SUBJECT>Purpose of the subpart.</SUBJECT> <SECTNO>51.52</SECTNO> <SUBJECT>Basic standard.</SUBJECT> <SECTNO>51.53</SECTNO> <SUBJECT>Information considered.</SUBJECT> <SECTNO>51.54</SECTNO> <SUBJECT>Discriminatory effect.</SUBJECT> <SECTNO>51.55</SECTNO> <SUBJECT>Consistency with constitutional and statutoryrequirements.</SUBJECT> <SECTNO>51.56</SECTNO> <SUBJECT>Guidance from the courts.</SUBJECT> <SECTNO>51.57</SECTNO> <SUBJECT>Relevant factors.</SUBJECT> <SECTNO>51.58</SECTNO> <SUBJECT>Representation.</SUBJECT> <SECTNO>51.59</SECTNO> <SUBJECT>Redistrictings.</SUBJECT> <SECTNO>51.60</SECTNO> <SUBJECT>Changes in electoral systems.</SUBJECT> <SECTNO>51.61</SECTNO> <SUBJECT>Annexations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Sanctions</HD> <SECTNO>51.62</SECTNO> <SUBJECT>Enforcement by the Attorney General.</SUBJECT> <SECTNO>51.63</SECTNO> <SUBJECT>Enforcement by private parties.</SUBJECT> <SECTNO>51.64</SECTNO> <SUBJECT>Bar to termination of coverage (bailout).</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Petition To Change Procedures</HD> <SECTNO>51.65</SECTNO> <SUBJECT>Who may petition.</SUBJECT> <SECTNO>51.66</SECTNO> <SUBJECT>Form of petition.</SUBJECT> <SECTNO>51.67</SECTNO> <SUBJECT>Disposition of petition.</SUBJECT> <APP>Appendix to Part 51—Jurisdictions Covered Under Section <E T="01">4(b)</E> of the Voting Rights Act, as Amended</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1973c.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 490, Jan. 6, 1987, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 51.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(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 theAct, 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 thatin force or effect on the date used to determine coverage, until either:</P> <P>(1) A declaratory judgment is obtained from the U.S. District Court for theDistrict of Columbia that such qualification, prerequisite, standard, practice,or procedure does not have the purpose and will not have the effect of denyingor abridging the right to vote on account of race, color, or membership in alanguage minority group, or</P> <P>(2) It has been submitted to the Attorney General and the Attorney Generalhas interposed no objection within a 60-day period following submission.</P> <P>(b) In order to make clear the responsibilities of the Attorney General undersection 5 and the interpretation of the Attorney General of the responsibilityimposed on others under this section, the procedures in this part have beenestablished to govern the administration of section 5.</P> </SECTION> <SECTION> <SECTNO>§ 51.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part—</P> <P> <E T="03">Act</E> means the Voting Rights Act of 1965, 79 Stat. 437, asamended by the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights ActAmendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act, 84Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400, and theVoting Rights Act Amendments of 1982, 96 Stat. 131, 42 U.S.C. 1973 <E T="03">etseq.</E> Section numbers, such as “section 14(c)(3),” refer tosections of the Act.</P> <P> <E T="03">Attorney General</E> means the Attorney General of the UnitedStates or the delegate of the Attorney General.</P> <P> <E T="03">Change affecting voting</E> means any voting qualification,prerequisite to <PRTPAGE P="83"/>voting, or standard, practice, or procedure with respect tovoting different from that in force or effect on the date used to determinecoverage under section 4(b) and includes, <E T="03">inter alia,</E> the examplesgiven in §51.13.</P> <P> <E T="03">Covered jurisdiction</E> is used to refer to a State, where thedetermination referred to in § 51.4 has been made on a statewidebasis, and to a political subdivision, where the determination has not been madeon a statewide basis.</P> <P> <E T="03">Language minorities</E> or <E T="03">language minority group</E> isused, as defined in the Act, to refer to persons who are American Indian, AsianAmerican, Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and203(e)). See 28 CFR part 55, Interpretative Guidelines: Implementation of theProvisions of the Voting Rights Act Regarding Language Minority Groups.</P> <P> <E T="03">Political subdivision</E> is used, as defined in the Act, to referto “any county or parish, except that where registration for voting is notconducted under the supervision of a county or parish, the term shall includeany other subdivision of a State which conducts registration for voting.”(Section 14(c)(2)).</P> <P> <E T="03">Preclearance</E> is used to refer to the obtaining of thedeclaratory judgment described in section 5, to the failure of the AttorneyGeneral to interpose an objection pursuant to section 5, or to the withdrawal ofan objection by the Attorney General pursuant to § 51.48(b).</P> <P> <E T="03">Submission</E> is used to refer to the written presentation to theAttorney General by an appropriate official of any change affecting voting.</P> <P> <E T="03">Submitting authority</E> means the jurisdiction on whose behalf asubmission is made.</P> <P> <E T="03">Vote</E> and <E T="03">voting</E> 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 tovoting, casting a ballot, and having such ballot counted properly and includedin the appropriate totals of votes cast with respect to candidates for public orparty office and propositions for which votes are received in anelection.” (Section 14(c)(1)).</P> </SECTION> <SECTION> <SECTNO>§ 51.3</SECTNO> <SUBJECT>Delegation of authority.</SUBJECT> <P>The responsibility and authority for determinations under section 5 have beendelegated by the Attorney General to the Assistant Attorney General, CivilRights Division. With the exception of objections and decisions following thereconsideration of objections, the Chief of the Voting Section is authorized toact on behalf of the Assistant Attorney General.</P> </SECTION> <SECTION> <SECTNO>§ 51.4</SECTNO> <SUBJECT>Date used to determine coverage; list of covered jurisdictions.</SUBJECT> <P>(a) The requirement of section 5 takes effect upon publication in the <E T="04">Federal Register</E> of the requisite determinations of the Director ofthe Census and the Attorney General under section 4(b). These determinations arenot reviewable in any court. (Section 4(b)).</P> <P>(b) Section 5 requires the preclearance of changes affecting voting madesince the date used for the determination of coverage. For each coveredjurisdiction that date is one of the following: November 1, 1964; November 1,1968; or November 1, 1972.</P> <P>(c) The appendix to this part contains a list of covered jurisdictions,together with the applicable date used to determine coverage and the <E T="04">Federal Register</E> citation for the determination of coverage.</P> </SECTION> <SECTION> <SECTNO>§ 51.5</SECTNO> <SUBJECT>Termination of coverage (bailout).</SUBJECT> <P>A covered jurisdiction or a political subdivision of a covered State mayterminate the application of section 5 (or bail out) by obtaining thedeclaratory judgment described in section 4(a) of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 51.6</SECTNO> <SUBJECT>Political subunits.</SUBJECT> <P>All political subunits within a covered jurisdiction (e.g., counties, cities,school districts) are subject to the requirement of section 5.</P> </SECTION> <SECTION> <SECTNO>§ 51.7</SECTNO> <SUBJECT>Political parties.</SUBJECT> <P>Certain activities of political parties are subject to the preclearancerequirement of section 5. A change affecting voting effected by a politicalparty is subject to the preclearance requirement:<PRTPAGE P="84"/> </P> <P>(a) If the change relates to a public electoral function of the party and</P> <P>(b) If the party is acting under authority explicitly or implicitly grantedby a covered jurisdiction or political subunit subject to the preclearancerequirement of section 5.</P> <FP>For example, changes with respect to the recruitment of party members, theconduct of political campaigns, and the drafting of party platforms are notsubject to the preclearance requirement. Changes with respect to the conduct ofprimary elections at which party nominees, delegates to party conventions, orparty officials are chosen are subject to the preclearance requirement ofsection 5. Where appropriate the term “jurisdiction” (but not“covered jurisdiction”) includes political parties.</FP> </SECTION> <SECTION> <SECTNO>§ 51.8</SECTNO> <SUBJECT>Section 3 coverage.</SUBJECT> <P>Under section 3(c) of the Act, a court in voting rights litigation can orderas relief that a jurisdiction not subject to the preclearance requirement ofsection 5 preclear its voting changes by submitting them either to the court orto the Attorney General. Where a jurisdiction is required under section 3(c) topreclear its voting changes, and it elects to submit the proposed changes to theAttorney General for preclearance, the procedures in this part will apply.</P> </SECTION> <SECTION> <SECTNO>§ 51.9</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <P>(a) The Attorney General shall have 60 days in which to interpose anobjection to a submitted change affecting voting.</P> <P>(b) Except as specified in §§ 51.37, 51.39, and 51.42 the 60-day period shall commence upon receipt by the Department of Justice of asubmission.</P> <P>(c) The 60-day period shall mean 60 calendar days, with the day of receipt ofthe submission not counted. If the final day of the period should fall on aSaturday, Sunday, any day designated as a holiday by the President or Congressof the United States, or any other day that is not a day of regular business forthe Department of Justice, the Attorney General shall have until the close ofthe next full business day in which to interpose an objection. The date of theAttorney General's response shall be the date on which it is mailed to thesubmitting authority.</P> </SECTION> <SECTION> <SECTNO>§ 51.10</SECTNO> <SUBJECT>Requirement of action for declaratory judgment or submission to theAttorney General.</SUBJECT> <P>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:</P> <P>(a) Obtain a judicial determination from the U.S. District Court for theDistrict of Columbia that denial or abridgment of the right to vote on accountof race, color, or membership in a language minority group is not the purposeand will not be the effect of the change or</P> <P>(b) Make to the Attorney General a proper submission of the change to whichno objection is interposed.</P> <FP>It is unlawful to enforce a change affecting voting without obtainingpreclearance under section 5. The obligation to obtain such preclearance is notrelieved by unlawful enforcement.</FP> <CITA>[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 51.11</SECTNO> <SUBJECT>Right to bring suit.</SUBJECT> <P>Submission to the Attorney General does not affect the right of thesubmitting authority to bring an action in the U.S. District Court for theDistrict of Columbia for a declaratory judgment that the change affecting votingdoes not have the prohibited discriminatory purpose or effect.</P> </SECTION> <SECTION> <SECTNO>§ 51.12</SECTNO> <SUBJECT>Scope of requirement.</SUBJECT> <P>Any change affecting voting, even though it appears to be minor or indirect,returns to a prior practice or procedure, ostensibly expands voting rights, oris designed to remove the elements that caused objection by the Attorney Generalto a prior submitted change, must meet the section 5 preclearance requirement.</P> </SECTION> <SECTION> <SECTNO>§ 51.13</SECTNO> <SUBJECT>Examples of changes.</SUBJECT> <P>Changes affecting voting include, but are not limited to, the followingexamples:</P> <P>(a) Any change in qualifications or eligibility for voting.</P> <P>(b) Any change concerning registration, balloting, and the counting of <PRTPAGE P="85"/>votesand any change concerning publicity for or assistance in registration or voting.</P> <P>(c) Any change with respect to the use of a language other than English inany aspect of the electoral process.</P> <P>(d) Any change in the boundaries of voting precincts or in the location ofpolling places.</P> <P>(e) Any change in the constituency of an official or the boundaries of avoting unit (e.g., through redistricting, annexation, deannexation,incorporation, reapportionment, changing to at-large elections from districtelections, or changing to district elections from at-large elections).</P> <P>(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 orplace system).</P> <P>(g) Any change affecting the eligibility of persons to become or remaincandidates, to obtain a position on the ballot in primary or general elections,or to become or remain holders of elective offices.</P> <P>(h) Any change in the eligibility and qualification procedures forindependent candidates.</P> <P>(i) Any change in the term of an elective office or an elected official or inthe offices that are elective (e.g., by shortening the term of an office,changing from election to appointment or staggering the terms of offices).</P> <P>(j) Any change affecting the necessity of or methods for offering issues andpropositions for approval by referendum.</P> <P>(k) Any change affecting the right or ability of persons to participate inpolitical campaigns which is effected by a jurisdiction subject to therequirement of section 5.</P> </SECTION> <SECTION> <SECTNO>§ 51.14</SECTNO> <SUBJECT>Recurrent practices.</SUBJECT> <P>Where a jurisdiction implements a practice or procedure periodically or uponcertain established contingencies, a change occurs:</P> <P>(a) The first time such a practice or procedure is implemented by thejurisdiction,</P> <P>(b) When the manner in which such a practice or procedure is implemented bythe jurisdiction is changed, or</P> <P>(c) When the rules for determining when such a practice or procedure will beimplemented are changed.</P> <FP>The failure of the Attorney General to object to a recurrent practice orprocedure constitutes preclearance of the future use of the practice orprocedure if its recurrent nature is clearly stated or described in thesubmission or is expressly recognized in the final response of the AttorneyGeneral on the merits of the submission.</FP> </SECTION> <SECTION> <SECTNO>§ 51.15</SECTNO> <SUBJECT>Enabling legislation and contingent or nonuniform requirements.</SUBJECT> <P>(a) With respect to legislation (1) that enables or permits the State or itspolitical subunits to institute a voting change or (2) that requires or enablesthe State or its political sub-units to institute a voting change upon somefuture event or if they satisfy certain criteria, the failure of the AttorneyGeneral to interpose an objection does not exempt from the preclearancerequirement the implementation of the particular voting change that is enabled,permitted, or required, unless that implementation is explicitly included anddescribed in the submission of such parent legislation.</P> <P>(b) For example, such legislation includes—</P> <P>(1) Legislation authorizing counties, cities, school districts, or agenciesor officials of the State to institute any of the changes described in§ 51.13,</P> <P>(2) Legislation requiring a political subunit that chooses a certain form ofgovernment to follow specified election procedures,</P> <P>(3) Legislation requiring or authorizing political subunits of a certain sizeor a certain location to institute specified changes,</P> <P>(4) Legislation requiring a political subunit to follow certain practices orprocedures unless the subunit's charter or ordinances specify to the contrary.</P> </SECTION> <SECTION> <SECTNO>§ 51.16</SECTNO> <SUBJECT>Distinction between changes in procedure and changes in substance.</SUBJECT> <P>The failure of the Attorney General to interpose an objection to a procedurefor instituting a change affecting voting does not exempt the substantive <PRTPAGE P="86"/>changefrom the preclearance requirement. For example, if the procedure for theapproval of an annexation is changed from city council approval to approval in areferendum, the preclearance of the new procedure does not exempt an annexationaccomplished under the new procedure from the preclearance requirement.</P> </SECTION> <SECTION> <SECTNO>§ 51.17</SECTNO> <SUBJECT>Special elections.</SUBJECT> <P>(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) issubject to the preclearance requirement to the extent that the jurisdictionmakes changes in the practices or procedures to be followed.</P> <P>(b) Any discretionary setting of the date for a special election orscheduling of events leading up to or following a special election is subject tothe preclearance requirement.</P> <P>(c) A jurisdiction conducting a referendum election to ratify a change in apractice or procedure that affects voting may submit the change to be voted onat the same time that it submits any changes involved in the conduct of thereferendum election. A jurisdiction wishing to receive preclearance for thechange to be ratified should state clearly that such preclearance is beingrequested. See § 51.22 of this part.</P> </SECTION> <SECTION> <SECTNO>§ 51.18</SECTNO> <SUBJECT>Court-ordered changes.</SUBJECT> <P>(a) <E T="03">In general.</E> Changes affecting voting that are ordered by aFederal court are subject to the preclearance requirement of section 5 to theextent that they reflect the policy choices of the submitting authority.</P> <P>(b) <E T="03">Subsequent changes.</E> Where a court-ordered change is notitself subject to the preclearance requirement, subsequent changes necessitatedby the court order but decided upon by the jurisdiction remain subject topreclearance. For example, voting precinct and polling place changes madenecessary by a court-ordered redistricting plan are subject to section 5 review.</P> <P>(c) <E T="03">In emergencies.</E> A Federal court's authorization of theemergency interim use without preclearance of a voting change does not exemptfrom section 5 review any use of the practice not explicitly authorized by thecourt.</P> </SECTION> <SECTION> <SECTNO>§ 51.19</SECTNO> <SUBJECT>Request for notification concerning voting litigation.</SUBJECT> <P>A jurisdiction subject to the preclearance requirement of section 5 thatbecomes involved in any litigation concerning voting is requested promptly tonotify the Chief, Voting Section, Civil Rights Division, Department of Justice,P.O. Box 66128, Washington, DC 20035-6128. Such notification will not beconsidered a submission under section 5.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,Sept. 3, 1987]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Procedures for Submission to the Attorney General</HD> <SECTION> <SECTNO>§ 51.20</SECTNO> <SUBJECT>Form of submissions.</SUBJECT> <P>(a) Submissions may be made in letter or any other written form.</P> <P>(b) The Attorney General will accept certain machine readable data in thefollowing forms of magnetic media: 3<FR>1/2</FR>″ 1.4 megabyte MS-DOSformatted diskettes; 5 <FR>1/4</FR>″ 1.2 megabyte MS-DOS formattedfloppy disks; nine-track tape (1600/6250 BPI). Unless requested by the AttorneyGeneral, data provided on magnetic media need not be provided in hard copy.</P> <P>(c) All magnetic media shall be clearly labeled with the followinginformation:</P> <P>(1) Submitting authority.</P> <P>(2) Name, address, title, and telephone number of contact person.</P> <P>(3) Date of submission cover letter.</P> <P>(4) Statement identifying the voting change(s) involved in the submission.</P> <FP>The label shall be affixed to each magnetic medium, and the informationincluded on the label shall also be contained in a documentation file on themagnetic medium. If the information identified above is provided as a diskoperating system (DOS) file, it shall be formatted in a standard AmericanStandard Code for Information Interchange (ASCII) character code, with a linefeed or carriage return control character starting in position 80. If theinformation identified above is provided other than as DOS files, it shall <PRTPAGE P="87"/>beformatted as ASCII text (or Extended Binary Coded Decimal Interchange Code(EBCDIC) if IBM standard labels are used), 80 byte fixed record length, blockedin a multiple of 80 with a blocksize no larger than 32 kilobytes, and with nocarriage return or line feed.</FP> <P>(d) Each magnetic medium (floppy disk or tape) provided must be accompaniedby a printed description of its contents, including an identification by nameand/or location of each data file that is contained on the medium, a detailedrecord layout for each such file, a record count for each such file, and a fulldescription of the magnetic medium format.</P> <P>(e) All data files shall be provided in a fixed record-length format usingalphanumeric ASCII values. The first 50 records of each such file shall beprinted on hard copy and shall be attached to the printed description of thefile. Proprietary and/or commercial software system data files (e.g. SAS, SPSS,dBase, Lotus 1-2-3) and data files containing compressed data orbinary data fields will not be accepted. Nine-track tapes shall be clearlymarked with printed labels to indicate their density, and manner of labeling(ANSI, IBM, or unlabelled). The printed label shall also include the recordcount, the record length, the blocksize, the dataset name (DSN) if it is alabeled tape, and the file number of each file on the tape.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR51836, Oct. 16, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 51.21</SECTNO> <SUBJECT>Time of submissions.</SUBJECT> <P>Changes affecting voting should be submitted as soon as possible after theybecome final.</P> </SECTION> <SECTION> <SECTNO>§ 51.22</SECTNO> <SUBJECT>Premature submissions.</SUBJECT> <P>The Attorney General will not consider on the merits:</P> <P>(a) Any proposal for a change affecting voting submitted prior to finalenactment or administrative decision or</P> <P>(b) Any proposed change which has a direct bearing on another changeaffecting voting which has not received section 5 preclearance.</P> <FP>However, with respect to a change for which approval by referendum, a Stateor Federal court or a Federal agency is required, the Attorney General may makea determination concerning the change prior to such approval if the change isnot subject to alteration in the final approving action and if all other actionnecessary for approval has been taken.</FP> </SECTION> <SECTION> <SECTNO>§ 51.23</SECTNO> <SUBJECT>Party and jurisdiction responsible for making submissions.</SUBJECT> <P>(a) Changes affecting voting shall be submitted by the chief legal officer orother appropriate official of the submitting authority or by any otherauthorized person on behalf of the submitting authority. When one or morecounties or other political subunits within a State will be affected, the Statemay make a submission on their behalf. Where a State is covered as a whole,State legislation (except legislation of local applicability) or other changesundertaken or required by the State shall be submitted by the State.</P> <P>(b) A change effected by a political party (see § 51.7) may besubmitted by an appropriate official of the political party.</P> </SECTION> <SECTION> <SECTNO>§ 51.24</SECTNO> <SUBJECT>Address for submissions.</SUBJECT> <P>(a) <E T="03">Delivery by U.S. Postal Service.</E> Submissions sent to theAttorney 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.</P> <P>(b) <E T="03">Delivery by other means.</E> Submissions sent to the AttorneyGeneral by carriers <E T="03">other than</E> the U.S. Postal Service should beaddressed or may be delivered to the Chief, Voting Section, Civil RightsDivision, Department of Justice, 320 First Street, NW., room 818A, Washington,DC 20001.</P> <P>(c) <E T="03">Special marking.</E> The envelope and first page of thesubmission shall be clearly marked: Submission under section 5 of the VotingRights Act.</P> <CITA>[Order 1214-87, 52 FR 33409, Sept. 3, 1987, as amended by Order No.1793-93, 58 FR 51225, Oct. 1, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 51.25</SECTNO> <SUBJECT>Withdrawal of submissions.</SUBJECT> <P>(a) A jurisdiction may withdraw a submission at any time prior to a finaldecision by the Attorney General. Notice of the withdrawal of a submission <PRTPAGE P="88"/>mustbe made in writing, addressed to the Chief, Voting Section, as specified in§ 51.24 of this part. The submission shall be deemed withdrawn uponreceipt of the notice.</P> <P>(b) Notice of withdrawals will be given to interested parties registeredunder § 51.32.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,Sept. 3, 1987]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Contents of Submissions</HD> <SECTION> <SECTNO>§ 51.26</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) The source of any information contained in a submission should beidentified.</P> <P>(b) Where an estimate is provided in lieu of more reliable statistics, thesubmission should identify the name, position, and qualifications of the personresponsible for the estimate and should briefly describe the basis for theestimate.</P> <P>(c) Submissions should be no longer than is necessary for the presentation ofthe appropriate information and materials.</P> <P>(d) The Attorney General will not accept for review any submission that failsto describe the subject change in sufficient particularity to satisfy theminimum requirements of § 51.27(c).</P> <P>(e) A submitting authority that desires the Attorney General to consider anyinformation supplied as part of an earlier submission may incorporate suchinformation by reference by stating the date and subject matter of the earliersubmission and identifying the relevant information.</P> <P>(f) Where information requested by this subpart is relevant but not known oravailable, or is not applicable, the submission should so state.</P> <P>(g) The following Office of Management and Budget control number under thePaperwork Reduction Act applies to the collection of information requirementscontained in these Procedures: OMB No. 1190-0001 (expires February 28,1994). See 5 CFR 1320.13.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended by Order No. 1284-88, 53 FR25327, July 6, 1988; Order No. 1498-91, 56 FR 26032, June 6, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 51.27</SECTNO> <SUBJECT>Required contents.</SUBJECT> <P>Each submission should contain the following information or documents toenable the Attorney General to make the required determination pursuant tosection 5 with respect to the submitted change affecting voting:</P> <P>(a) A copy of any ordinance, enactment, order, or regulation embodying achange affecting voting.</P> <P>(b) A copy of any ordinance, enactment, order, or regulation embodying thevoting practice that is proposed to be repealed, amended, or otherwise changed.</P> <P>(c) If the change affecting voting either is not readily apparent on the faceof the documents provided under paragraphs (a) and (b) of this section or is notembodied in a document, a clear statement of the change explaining thedifference between the submitted change and the prior law or practice, orexplanatory materials adequate to disclose to the Attorney General thedifference between the prior and proposed situation with respect to voting.</P> <P>(d) The name, title, address, and telephone number of the person making thesubmission.</P> <P>(e) The name of the submitting authority and the name of the jurisdictionresponsible for the change, if different.</P> <P>(f) If the submission is not from a State or county, the name of the countyand State in which the submitting authority is located.</P> <P>(g) Identification of the person or body responsible for making the changeand the mode of decision (e.g., act of State legislature, ordinance of citycouncil, administrative decision by registrar).</P> <P>(h) A statement identifying the statutory or other authority under which thejurisdiction undertakes the change and a description of the procedures thejurisdiction was required to follow in deciding to undertake the change.</P> <P>(i) The date of adoption of the change affecting voting.</P> <P>(j) The date on which the change is to take effect.</P> <P>(k) A statement that the change has not yet been enforced or administered, oran explanation of why such a statement cannot be made.<PRTPAGE P="89"/> </P> <P>(l) Where the change will affect less than the entire jurisdiction, anexplanation of the scope of the change.</P> <P>(m) A statement of the reasons for the change.</P> <P>(n) A statement of the anticipated effect of the change on members of racialor language minority groups.</P> <P>(o) A statement identifying any past or pending litigation concerning thechange or related voting practices.</P> <P>(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 theprocedure for the adoption of the change has been precleared (with the date) oris not subject to the preclearance requirement, or an explanation of why suchstatements cannot be made.</P> <P>(q) For redistrictings and annexations: the items listed under§ 51.28 (a)(1) and (b)(1); for annexations only: the items listedunder § 51.28(c)(3).</P> <P>(r) Other information that the Attorney General determines is required for anevaluation of the purpose or effect of the change. Such information may includeitems listed in § 51.28 and is most likely to be needed with respectto redistrictings, annexations, and other complex changes. In the interest oftime such information should be furnished with the initial submission relatingto voting changes of this type. When such information is required, but notprovided, the Attorney General shall notify the submitting authority in themanner provided in § 51.37.</P> </SECTION> <SECTION> <SECTNO>§ 51.28</SECTNO> <SUBJECT>Supplemental contents.</SUBJECT> <P>Review by the Attorney General will be facilitated if the followinginformation, where pertinent, is provided in addition to that required by§51.27.</P> <P>(a) <E T="03">Demographic information.</E> (1) Total and voting agepopulation of the affected area before and after the change, by race andlanguage group. If such information is contained in publications of the U.S.Bureau of the Census, reference to the appropriate volume and table issufficient.</P> <P>(2) The number of registered voters for the affected area by voting precinctbefore and after the change, by race and language group.</P> <P>(3) Any estimates of population, by race and language group, made inconnection with the adoption of the change.</P> <P>(4) Demographic data provided on magnetic media shall be based upon theBureau of the Census Public Law 94-171 file unique block identity code ofstate, county, tract, and block.</P> <P>(5) Demographic data on magnetic media that are provided in conjunction witha redistricting shall be contained in a table of equivalencies giving the censusblock to district assignments in the following format:</P> <P>(i) Each census block record (including those with zero population) will befollowed by one or more additional fields indicating the district assignment forthe census block in one or more plans.</P> <P>(ii) All district assignments in the plan fields shall be right justified andblank filled if the assignment is less than four characters.</P> <P>(iii) The file structure shall be as follows:</P> <GPOTABLE CDEF="s10,xs40,7,xs36" COLS="4" OPTS="L2,i1"> <BOXHD> <CHED H="1">Field</CHED> <CHED H="1">PL 94-171 reference name</CHED> <CHED H="1">Length</CHED> <CHED H="1">Data type</CHED> </BOXHD> <ROW> <ENT I="01">State</ENT> <ENT>STATEFP</ENT> <ENT>2</ENT> <ENT>Numeric.</ENT> </ROW> <ROW> <ENT I="01">County</ENT> <ENT>CNTY</ENT> <ENT>3</ENT> <ENT>Numeric.</ENT> </ROW> <ROW> <ENT I="01">Tract</ENT> <ENT>TRACT/BNA</ENT> <ENT>6</ENT> <ENT>Alpha/Numeric.</ENT> </ROW> <ROW> <ENT I="01">Block</ENT> <ENT>BLCK</ENT> <ENT>4</ENT> <ENT>Alpha/Numeric.</ENT> </ROW> <ROW> <ENT I="01">Plan 1 District</ENT> <ENT>User supplied</ENT> <ENT>4</ENT> <ENT>Alpha/Numeric.</ENT> </ROW> <ROW> <ENT I="01">Plan 2 District</ENT> <ENT>User supplied</ENT> <ENT>4</ENT> <ENT>Alpha/Numeric.</ENT> </ROW> <ROW> <ENT I="01">Plan 3 District, etc</ENT> <ENT/> <ENT/> <ENT/> </ROW> <ROW> <ENT I="01">Plan n District</ENT> <ENT>Usersupplied</ENT> <ENT>4</ENT> <ENT>Alpha/Numeric.</ENT> </ROW> </GPOTABLE> <P>(iv) State and county shall be identified using the Federal InformationProcessing Standards (FIPS-55) code.</P> <P>(v) Census tracts shall be left justified, and census blocks shall be leftjustified and blank filled if less than four characters.</P> <P>(vi) Unused plan fields shall be blank filled.</P> <P>(vii) In addition to the information identified in § 51.20 (c)through (e), the documentation file accompanying the block level equivalencyfile shall contain the following information:</P> <P>(A) The file structure.</P> <P>(B) The total number of plans.<PRTPAGE P="90"/> </P> <P>(C) For each plan field, an identification of the plan (e.g., state senate,congressional, county board, city council, school board) and its status ornature (e.g., plan currently in effect, adopted plan, alternative plan andsponsors).</P> <P>(D) The number of districts in each plan field.</P> <P>(E) Whether the plan field contains a complete or partial plan.</P> <P>(F) Any additional information the jurisdiction deems relevant such as billnumber, date of adoption, etc., and a listing of any modifications thesubmitting authority has made that alter the structure of the TIGER/linegeographic file.</P> <P>(b) <E T="03">Maps.</E> Where any change is made that revises theconstituency that elects any office or affects the boundaries of any geographicunit or units defined or employed for voting purposes (e.g., redistricting,annexation, change from district to at-large elections) or that changes votingprecinct boundaries, polling place locations, or voter registration sites, mapsin duplicate of the area to be affected, containing the following information:</P> <P>(1) The prior and new boundaries of the voting unit or units.</P> <P>(2) The prior and new boundaries of voting precincts.</P> <P>(3) The location of racial and language minority groups.</P> <P>(4) Any natural boundaries or geographical features that influenced theselection of boundaries of the prior or new units.</P> <P>(5) The location of prior and new polling places.</P> <P>(6) The location of prior and new voter registration sites.</P> <P>(c) <E T="03">Annexations.</E> For annexations, in addition to thatinformation specified elsewhere, the following information:</P> <P>(1) The present and expected future use of the annexed land (e.g., gardenapartments, industrial park).</P> <P>(2) An estimate of the expected population, by race and language group, whenanticipated development, if any, is completed.</P> <P>(3) A statement that all prior annexations subject to the preclearancerequirement have been submitted for review, or a statement that identifies allannexations subject to the preclearance requirement that have not been submittedfor review. See § 51.61(b).</P> <P>(d) <E T="03">Election returns.</E> Where a change may affect the electoralinfluence of a racial or language minority group, returns of primary and generalelections conducted by or in the jurisdiction, containing the followinginformation:</P> <P>(1) The name of each candidate.</P> <P>(2) The race or language group of each candidate, if known.</P> <P>(3) The position sought by each candidate.</P> <P>(4) The number of votes received by each candidate, by voting precinct.</P> <P>(5) The outcome of each contest.</P> <P>(6) The number of registered voters, by race and language group, for eachvoting precinct for which election returns are furnished. Information withrespect to elections held during the last ten years will normally be sufficient.</P> <P>(7) Election related data containing any of the information described abovethat are provided on magnetic media shall conform to the requirements of§ 51.20 (b) through (e). Election related data that cannot beaccurately presented in terms of census blocks may be identified by county andby precinct.</P> <P>(e) <E T="03">Language usage.</E> Where a change is made affecting the use ofthe language of a language minority group in the electoral process, informationthat will enable the Attorney General to determine whether the change isconsistent with the minority language requirements of the Act. The AttorneyGeneral's interpretation of the minority language requirements of the Act iscontained in Interpretative Guidelines: Implementation of the Provisions of theVoting Rights Act Regarding Language Minority Groups, 28 CFR part 55.</P> <P>(f) <E T="03">Publicity and participation.</E> For submissions involvingcontroversial or potentially controversial changes, evidence of public notice,of the opportunity for the public to be heard, and of the opportunity forinterested parties to participate in the decision to adopt the proposed changeand an account of the extent to which such participation, especially by minoritygroup members, in fact took place. Examples of materials demonstrating publicnotice or participation include:<PRTPAGE P="91"/> </P> <P>(1) Copies of newspaper articles discussing the proposed change.</P> <P>(2) Copies of public notices that describe the proposed change and invitepublic comment or participation in hearings and statements regarding where suchpublic notices appeared (e.g., newspaper, radio, or television, posted in publicbuildings, sent to identified individuals or groups).</P> <P>(3) Minutes or accounts of public hearings concerning the proposed change.</P> <P>(4) Statements, speeches, and other public communications concerning theproposed change.</P> <P>(5) Copies of comments from the general public.</P> <P>(6) Excerpts from legislative journals containing discussion of a submittedenactment, or other materials revealing its legislative purpose.</P> <P>(g) <E T="03">Availability of the submission.</E> (1) Copies of publicnotices that announce the submission to the Attorney General, inform the publicthat a complete duplicate copy of the submission is available for publicinspection (e.g., at the county courthouse) and invite comments for theconsideration of the Attorney General and statements regarding where such publicnotices appeared.</P> <P>(2) Information demonstrating that the submitting authority, where asubmission contains magnetic media, made the magnetic media available to becopied or, if so requested, made a hard copy of the data contained on themagnetic media available to be copied.</P> <P>(h) <E T="03">Minority group contacts.</E> For submissions from jurisdictionshaving a significant minority population, the names, addresses, telephonenumbers, and organizational affiliation (if any) of racial or language minoritygroup members residing in the jurisdiction who can be expected to be familiarwith the proposed change or who have been active in the political process.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR51836, Oct. 16, 1991]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Communications From Individuals and Groups</HD> <SECTION> <SECTNO>§ 51.29</SECTNO> <SUBJECT>Communications concerning voting changes.</SUBJECT> <P>Any individual or group may send to the Attorney General informationconcerning a change affecting voting in a jurisdiction to which section 5applies.</P> <P>(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 changeaffecting voting and setting forth evidence regarding whether the change has ordoes not have a discriminatory purpose or effect, or simply bringing to theattention of the Attorney General the fact that a voting change has occurred.</P> <P>(b) The communications should be mailed to the Chief, Voting Section, CivilRights Division, Department of Justice, P.O. Box 66128, Washington, DC20035-6128. The envelope and first page should be marked: Comment undersection 5 of the Voting Rights Act.</P> <P>(c) Comments by individuals or groups concerning any change affecting votingmay be sent at any time; however, individuals and groups are encouraged tocomment as soon as they learn of the change.</P> <P>(d) Department of Justice officials and employees shall comply with therequest of any individual that his or her identity not be disclosed to anyperson outside the Department, to the extent permitted by the Freedom ofInformation Act, 5 U.S.C. 552. In addition, whenever it appears to the AttorneyGeneral that disclosure of the identity of an individual who providedinformation regarding a change affecting voting “would constitute aclearly unwarranted invasion of personal privacy” under 5 U.S.C.552(b)(6), the identity of the individual shall not be disclosed to any personoutside the Department.</P> <P>(e) When an individual or group desires the Attorney General to considerinformation that was supplied in connection with an earlier submission, it isnot necessary to resubmit the information but merely to identify the earliersubmission and the relevant information.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,Sept. 3, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="92"/> <SECTNO>§ 51.30</SECTNO> <SUBJECT>Action on communications from individuals or groups.</SUBJECT> <P>(a) If there has already been a submission received of the change affectingvoting brought to the attention of the Attorney General by an individual orgroup, any evidence from the individual or group shall be considered along withthe materials submitted and materials resulting from any investigation.</P> <P>(b) If such a submission has not been received, the Attorney General shalladvise the appropriate jurisdiction of the requirement of section 5 with respectto the change in question.</P> </SECTION> <SECTION> <SECTNO>§ 51.31</SECTNO> <SUBJECT>Communications concerning voting suits.</SUBJECT> <P>Individuals and groups are urged to notify the Chief, Voting Section, CivilRights Division, of litigation concerning voting in jurisdictions subject to therequirement of section 5.</P> </SECTION> <SECTION> <SECTNO>§ 51.32</SECTNO> <SUBJECT>Establishment and maintenance of registry of interested individuals andgroups.</SUBJECT> <P>The Attorney General shall establish and maintain a Registry of InterestedIndividuals and Groups, which shall contain the name and address of anyindividual or group that wishes to receive notice of section 5 submissions.Information relating to this registry and to the requirements of the Privacy Actof 1974, 5 U.S.C. 552a <E T="03">et seq.,</E> is contained inJUSTICE/CRT-004. 48 FR 5334 (Feb. 4, 1983).</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Processing of Submissions</HD> <SECTION> <SECTNO>§ 51.33</SECTNO> <SUBJECT>Notice to registrants concerning submissions.</SUBJECT> <P>Weekly notice of submissions that have been received will be given to theindividuals and groups who have registered for this purpose under§ 51.32. Such notice will also be given when section 5 declaratoryjudgment actions are filed or decided.</P> </SECTION> <SECTION> <SECTNO>§ 51.34</SECTNO> <SUBJECT>Expedited consideration.</SUBJECT> <P>(a) When a submitting authority is required under State law or localordinance or otherwise finds it necessary to implement a change within the 60-day period following submission, it may request that the submission be givenexpedited consideration. The submission should explain why such consideration isneeded and provide the date by which a determination is required.</P> <P>(b) Jurisdictions should endeavor to plan for changes in advance so thatexpedited consideration will not be required and should not routinely requestsuch consideration. When a submitting authority demonstrates good cause forexpedited consideration the Attorney General will attempt to make a decision bythe date requested. However, the Attorney General cannot guarantee that suchconsideration can be given.</P> <P>(c) Notice of the request for expedited consideration will be given tointerested parties registered under § 51.32.</P> </SECTION> <SECTION> <SECTNO>§ 51.35</SECTNO> <SUBJECT>Disposition of inappropriate submissions.</SUBJECT> <P>The Attorney General will make no response on the merits with respect to aninappropriate submission but will notify the submitting authority of theinappropriateness of the submission. Such notification will be made as promptlyas possible and no later than the 60th day following receipt and will include anexplanation of the inappropriateness of the submission. Inappropriatesubmissions include the submission of changes that do not affect voting (see,e.g., § 51.13), the submission of standards, practices, or proceduresthat have not been changed (see, e.g., §§ 51.4, 51.14), thesubmission of changes that affect voting but are not subject to the requirementof section 5 (see, e.g., § 51.18), premature submissions (see§§ 51.22, 51.61(b)), submissions by jurisdictions not subject tothe preclearance requirement (see §§ 51.4, 51.5), and deficientsubmissions (see § 51.26(d)).</P> </SECTION> <SECTION> <SECTNO>§ 51.36</SECTNO> <SUBJECT>Release of information concerning submissions.</SUBJECT> <P>The Attorney General shall have the discretion to call to the attention ofthe submitting authority or any interested individual or group information orcomments related to a submission.</P> </SECTION> <SECTION> <PRTPAGE P="93"/> <SECTNO>§ 51.37</SECTNO> <SUBJECT>Obtaining information from the submitting authority.</SUBJECT> <P>(a) If a submission does not satisfy the requirements of § 51.27,the Attorney General may request from the submitting authority any omittedinformation considered necessary for the evaluation of the submission. Therequest shall be made by letter and shall be made within the 60-day period andas promptly as possible after receipt of the original submission. See also§ 51.26(d).</P> <P>(b) A copy of the request shall be sent to any party who has commented on thesubmission or has requested notice of the Attorney General's action thereon.</P> <P>(c) The Attorney General shall notify the submitting authority that a new 60-day period in which the Attorney General may interpose an objection shallcommence upon the receipt of a response from the submitting authority thatprovides the information requested or states that the information isunavailable. The Attorney General can request further information within the new60-day period, but such a further request shall not suspend the running of the60-day period, nor shall the receipt of a response to such a request operate tobegin a new 60-day period.</P> <P>(d) The receipt of a response from the submitting authority that neitherprovides the information requested nor states that such information isunavailable shall not commence a new 60-day period. It is the practice of theAttorney General to notify the submitting authority that its response isinadequate and to provide such notification as soon as possible after thereceipt of the inadequate response.</P> <P>(e) If, after a request for further information is made pursuant to thissection, the information requested becomes available to the Attorney Generalfrom a source other than the submitting authority, the Attorney General shallpromptly notify the submitting authority by letter, and the 60-day period willcommence upon the date of such notification.</P> <P>(f) Notice of the request for and receipt of further information will begiven to interested parties registered under § 51.32.</P> </SECTION> <SECTION> <SECTNO>§ 51.38</SECTNO> <SUBJECT>Obtaining information from others.</SUBJECT> <P>(a) The Attorney General may at any time request relevant information fromgovernmental jurisdictions and from interested groups and individuals and mayconduct any investigation or other inquiry that is deemed appropriate in makinga determination.</P> <P>(b) If a submission does not contain evidence of adequate notice to thepublic, and the Attorney General believes that such notice is essential to adetermination, steps will be taken by the Attorney General to provide publicnotice sufficient to invite interested or affected persons to provide evidenceas to the presence or absence of a discriminatory purpose or effect. Thesubmitting authority shall be advised when any such steps are taken.</P> </SECTION> <SECTION> <SECTNO>§ 51.39</SECTNO> <SUBJECT>Supplementary submissions.</SUBJECT> <P>(a) When a submitting authority provides documents and written informationmaterially supplementing a submission (or a request for reconsideration of anobjection) for evaluation as if part of its original submission, or, before theexpiration of the 60-day period, makes a second submission such that the twosubmissions cannot be independently considered, the 60-day period for theoriginal submission will be calculated from the receipt of the supplementaryinformation or from the second submission.</P> <P>(b) The Attorney General will notify the submitting authority when the 60-dayperiod for a submission is recalculated from the receipt of supplementaryinformation or from the receipt of a second related submission.</P> <P>(c) Notice of the receipt of supplementary information will be given tointerested parties registered under § 51.32.</P> </SECTION> <SECTION> <SECTNO>§ 51.40</SECTNO> <SUBJECT>Failure to complete submissions.</SUBJECT> <P>If after 60 days the submitting authority has not provided furtherinformation in response to a request made pursuant to § 51.37(a), theAttorney General, absent extenuating circumstances and consistent with theburden of proof under section 5 described in § 51.52 (a) and (c), mayobject <PRTPAGE P="94"/>to the change, giving notice as specified in § 51.44.</P> </SECTION> <SECTION> <SECTNO>§ 51.41</SECTNO> <SUBJECT>Notification of decision not to object.</SUBJECT> <P>(a) The Attorney General shall within the 60-day period allowed notify thesubmitting authority of a decision to interpose no objection to a submittedchange affecting voting.</P> <P>(b) The notification shall state that the failure of the Attorney General toobject does not bar subsequent litigation to enjoin the enforcement of thechange.</P> <P>(c) A copy of the notification shall be sent to any party who has commentedon the submission or has requested notice of the Attorney General's actionthereon.</P> </SECTION> <SECTION> <SECTNO>§ 51.42</SECTNO> <SUBJECT>Failure of the Attorney General to respond.</SUBJECT> <P>It is the practice and intention of the Attorney General to respond to eachsubmission within the 60-day period. However, the failure of the AttorneyGeneral to make a written response within the 60-day period constitutespreclearance of the submitted change, provided the submission is addressed asspecified in § 51.24 and is appropriate for a response on the meritsas described in § 51.35.</P> </SECTION> <SECTION> <SECTNO>§ 51.43</SECTNO> <SUBJECT>Reexamination of decision not to object.</SUBJECT> <P>After notification to the submitting authority of a decision to interpose noobjection to a submitted change affecting voting has been given, the AttorneyGeneral may reexamine the submission if, prior to the expiration of the 60-dayperiod, information indicating the possibility of the prohibited discriminatorypurpose or effect is received. In this event, the Attorney General may interposean objection provisionally and advise the submitting authority that examinationof the change in light of the newly raised issues will continue and that a finaldecision will be rendered as soon as possible.</P> </SECTION> <SECTION> <SECTNO>§ 51.44</SECTNO> <SUBJECT>Notification of decision to object.</SUBJECT> <P>(a) The Attorney General shall within the 60-day period allowed notify thesubmitting authority of a decision to interpose an objection. The reasons forthe decision shall be stated.</P> <P>(b) The submitting authority shall be advised that the Attorney General willreconsider an objection upon a request by the submitting authority.</P> <P>(c) The submitting authority shall be advised further that notwithstandingthe objection it may institute an action in the U.S. District Court for theDistrict of Columbia for a declaratory judgment that the change objected to bythe Attorney General does not have the prohibited discriminatory purpose oreffect.</P> <P>(d) A copy of the notification shall be sent to any party who has commentedon the submission or has requested notice of the Attorney General's actionthereon.</P> <P>(e) Notice of the decision to interpose an objection will be given tointerested parties registered under § 51.32.</P> </SECTION> <SECTION> <SECTNO>§ 51.45</SECTNO> <SUBJECT>Request for reconsideration.</SUBJECT> <P>(a) The submitting authority may at any time request the Attorney General toreconsider an objection.</P> <P>(b) Requests may be in letter or any other written form and should containrelevant information or legal argument.</P> <P>(c) Notice of the request will be given to any party who commented on thesubmission or requested notice of the Attorney General's action thereon and tointerested parties registered under § 51.32. In appropriate cases theAttorney General may request the submitting authority to give local publicnotice of the request.</P> </SECTION> <SECTION> <SECTNO>§ 51.46</SECTNO> <SUBJECT>Reconsideration of objection at the instance of the Attorney General.</SUBJECT> <P>(a) Where there appears to have been a substantial change in operative factor relevant law, an objection may be reconsidered, if it is deemed appropriate,at the instance of the Attorney General.</P> <P>(b) Notice of such a decision to reconsider shall be given to the submittingauthority, to any party who commented on the submission or requested notice ofthe Attorney General's action thereon, and to interested parties registeredunder § 51.32, and the Attorney <PRTPAGE P="95"/>General shall decide whether towithdraw or to continue the objection only after such persons have had areasonable opportunity to comment.</P> </SECTION> <SECTION> <SECTNO>§ 51.47</SECTNO> <SUBJECT>Conference.</SUBJECT> <P>(a) A submitting authority that has requested reconsideration of an objectionpursuant to § 51.45 may request a conference to produce informationor legal argument in support of reconsideration.</P> <P>(b) Such a conference shall be held at a location determined by the AttorneyGeneral and shall be conducted in an informal manner.</P> <P>(c) When a submitting authority requests such a conference, individuals orgroups that commented on the change prior to the Attorney General's objection orthat seek to participate in response to any notice of a request forreconsideration shall be notified and given the opportunity to confer.</P> <P>(d) The Attorney General shall have the discretion to hold separate meetingsto confer with the submitting authority and other interested groups orindividuals.</P> <P>(e) Such conferences will be open to the public or to the press only at thediscretion of the Attorney General and with the agreement of the participatingparties.</P> </SECTION> <SECTION> <SECTNO>§ 51.48</SECTNO> <SUBJECT>Decision after reconsideration.</SUBJECT> <P>(a) The Attorney General shall within the 60-day period following the receiptof a reconsideration request or following notice given under§ 51.46(b) notify the submitting authority of the decision tocontinue or withdraw the objection, provided that the Attorney General shallhave at least 15 days following any conference that is held in which to decide.(See also § 51.39(a).) The reasons for the decision shall be stated.</P> <P>(b) The objection shall be withdrawn if the Attorney General is satisfiedthat the change does not have the purpose and will not have the effect ofdiscriminating on account of race, color, or membership in a language minoritygroup.</P> <P>(c) If the objection is not withdrawn, the submitting authority shall beadvised that notwithstanding the objection it may institute an action in theU.S. District Court for the District of Columbia for a declaratory judgment thatthe change objected to by the Attorney General does not have the prohibitedpurpose or effect.</P> <P>(d) An objection remains in effect until either it is withdrawn by theAttorney General or a declaratory judgment with respect to the change inquestion is entered by the U.S. District Court for the District of Columbia.</P> <P>(e) A copy of the notification shall be sent to any party who has commentedon the submission or reconsideration or has requested notice of the AttorneyGeneral's action thereon.</P> <P>(f) Notice of the decision after reconsideration will be given to interestedparties registered under § 51.32.</P> </SECTION> <SECTION> <SECTNO>§ 51.49</SECTNO> <SUBJECT>Absence of judicial review.</SUBJECT> <P>The decision of the Attorney General not to object to a submitted change orto withdraw an objection is not reviewable. The preclearance by the AttorneyGeneral of a voting change does not constitute the certification that the votingchange satisfies any other requirement of the law beyond that of section 5, and,as stated in section 5, “(n)either an affirmative indication by theAttorney General that no objection will be made, nor the Attorney General'sfailure to object, nor a declaratory judgment entered under this section shallbar a subsequent action to enjoin enforcement of such qualification,prerequisite, standard, practice, or procedure.”</P> </SECTION> <SECTION> <SECTNO>§ 51.50</SECTNO> <SUBJECT>Records concerning submissions.</SUBJECT> <P>(a) Section 5 files: The Attorney General shall maintain a section 5 file foreach submission, containing the submission, related written materials,correspondence, memoranda, investigative reports, data provided on magneticmedia, notations concerning conferences with the submitting authority or anyinterested individual or group, and copies of letters from the Attorney Generalconcerning the submission.<PRTPAGE P="96"/> </P> <P>(b) Objection files: Brief summaries regarding each submission and thegeneral findings of the Department of Justice investigation and decisionconcerning it will be prepared when a decision to interpose, continue, orwithdraw an objection is made. Files of these summaries, arranged byjurisdiction and by the date upon which such decision is made, will bemaintained.</P> <P>(c) Computer file: Records of all submissions and of their dispositions bythe Attorney General shall be electronically stored and periodically retrievedin the form of computer printouts.</P> <P>(d) The contents of the files in paper or microfiche form described inparagraphs (a) through (c) of this section shall be available for inspection andcopying by the public during normal business hours at the Voting Section, CivilRights Division, Department of Justice, Washington, DC. Those who desire toinspect information that has been provided on magnetic media will be provided acopy of that information in the same form as it was received. Materials that areexempt from inspection under the Freedom of Information Act, 5 U.S.C. 552(b),may be withheld at the discretion of the Attorney General. Communications fromindividuals who have requested confidentiality or with respect to whom theAttorney General has determined that confidentiality is appropriate under§ 51.29(d) shall be available only as provided by§ 51.29(d). Applicable fees, if any, for the copying of the contentsof these files are contained in the Department of Justice regulationsimplementing the Freedom of Information Act, 28 CFR 16.10.</P> <CITA>[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987, as amended by OrderNo. 1536-91, 56 FR 51837, Oct. 16, 1991]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Determinations by the Attorney General</HD> <SECTION> <SECTNO>§ 51.51</SECTNO> <SUBJECT>Purpose of the subpart.</SUBJECT> <P>The purpose of this subpart is to inform submitting authorities and otherinterested parties of the factors that the Attorney General considers relevantand of the standards by which the Attorney General will be guided in makingsubstantive determinations under section 5 and in defending section 5declaratory judgment actions.</P> </SECTION> <SECTION> <SECTNO>§ 51.52</SECTNO> <SUBJECT>Basic standard.</SUBJECT> <P>(a) <E T="03">Surrogate for the court.</E> Section 5 provides for submissionof a voting change to the Attorney General as an alternative to the seeking of adeclaratory judgment from the U.S. District Court for the District of Columbia.Therefore, the Attorney General shall make the same determination that would bemade 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 denyingor abridging the right to vote on account of race, color, or membership in alanguage minority group. The burden of proof is on a submitting authority whenit submits a change to the Attorney General for preclearance, as it would be ifthe proposed change were the subject of a declaratory judgment action in theU.S. District Court for the District of Columbia. See <E T="03">SouthCarolina</E> v. <E T="03">Katzenbach,</E> 383 U.S. 301, 328, 335 (1966).</P> <P>(b) <E T="03">No objection.</E> If the Attorney General determines that thesubmitted change does not have the prohibited purpose or effect, no objectionshall be interposed to the change.</P> <P>(c) <E T="03">Objection.</E> An objection shall be interposed to a submittedchange if the Attorney General is unable to determine that the change is free ofdiscriminatory purpose and effect. This includes those situations where theevidence as to the purpose or effect of the change is conflicting and theAttorney General is unable to determine that the change is free ofdiscriminatory purpose and effect.</P> </SECTION> <SECTION> <SECTNO>§ 51.53</SECTNO> <SUBJECT>Information considered.</SUBJECT> <P>The Attorney General shall base a determination on a review of materialpresented by the submitting authority, relevant information provided byindividuals or groups, and the results of any investigation conducted by theDepartment of Justice.</P> </SECTION> <SECTION> <SECTNO>§ 51.54</SECTNO> <SUBJECT>Discriminatory effect.</SUBJECT> <P>(a) <E T="03">Retrogression.</E> A change affecting voting is considered tohave a discriminatory effect under section 5 if it will lead to a retrogressionin the position <PRTPAGE P="97"/>of members of a racial or language minority group (i.e., willmake members of such a group worse off than they had been before the change)with respect to their opportunity to exercise the electoral franchiseeffectively. See <E T="03">Beer</E> v. <E T="03">United States,</E> 425 U.S.130, 140-42 (1976).</P> <P>(b) <E T="03">Benchmark.</E> (1) In determining whether a submitted change isretrogressive the Attorney General will normally compare the submitted change tothe voting practice or procedure in effect at the time of the submission. If theexisting practice or procedure upon submission was not in effect on thejurisdiction's applicable date for coverage (specified in the appendix) and isnot otherwise legally enforceable under section 5, it cannot serve as abenchmark, and, except as provided in paragraph (b)(4) of this section, thecomparison shall be with the last legally enforceable practice or procedure usedby the jurisdiction.</P> <P>(2) The Attorney General will make the comparison based on the conditionsexisting at the time of the submission.</P> <P>(3) The implementation and use of an unprecleared voting change subject tosection 5 review under § 51.18(a) does not operate to make thatunprecleared change a benchmark for any subsequent change submitted by thejurisdiction. See § 51.18(c).</P> <P>(4) Where at the time of submission of a change for section 5 review thereexists no other lawful practice or procedure for use as a benchmark (e.g., wherea newly incorporated college district selects a method of election) the AttorneyGeneral's preclearance determination will necessarily center on whether thesubmitted change was designed or adopted for the purpose of discriminatingagainst members of racial or language minority groups.</P> </SECTION> <SECTION> <SECTNO>§ 51.55</SECTNO> <SUBJECT>Consistency with constitutional and statutory requirements.</SUBJECT> <P>(a) <E T="03">Consideration in general.</E> In making a determination theAttorney General will consider whether the change is free of discriminatorypurpose and retrogressive effect in light of, and with particular attentionbeing given to, the requirements of the 14th, 15th, and 24th amendments to theConstitution, 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 statutoryprovisions designed to safeguard the right to vote from denial or abridgment onaccount of race, color, or membership in a language minority group.</P> <P>(b) <E T="03">Section 2.</E> Preclearance under section 5 of a voting changewill not preclude any legal action under section 2 by the Attorney General ifimplementation of the change demonstrates that such action is appropriate.</P> <CITA>[52 FR 490, Jan. 6, 1987, as amended at 63 FR 24109, May 1, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 51.56</SECTNO> <SUBJECT>Guidance from the courts.</SUBJECT> <P>In making determinations the Attorney General will be guided by the relevantdecisions of the Supreme Court of the United States and of other Federal courts.</P> </SECTION> <SECTION> <SECTNO>§ 51.57</SECTNO> <SUBJECT>Relevant factors.</SUBJECT> <P>Among the factors the Attorney General will consider in making determinationswith respect to the submitted changes affecting voting are the following:</P> <P>(a) The extent to which a reasonable and legitimate justification for thechange exists.</P> <P>(b) The extent to which the jurisdiction followed objective guidelines andfair and conventional procedures in adopting the change.</P> <P>(c) The extent to which the jurisdiction afforded members of racial andlanguage minority groups an opportunity to participate in the decision to makethe change.</P> <P>(d) The extent to which the jurisdiction took the concerns of members ofracial and language minority groups into account in making the change.</P> </SECTION> <SECTION> <SECTNO>§ 51.58</SECTNO> <SUBJECT>Representation.</SUBJECT> <P>(a) <E T="03">Introduction.</E> This section and the sections that follow setforth factors—in addition to those set forth above—that the AttorneyGeneral considers in reviewing redistrictings (see § 51.59), changesin electoral systems (see § 51.60), and annexations (see§ 51.61).</P> <P>(b) <E T="03">Background factors.</E> In making determinations with respectto these changes involving voting practices and procedures, the Attorney Generalwill consider as important background information the following factors:<PRTPAGE P="98"/> </P> <P>(1) The extent to which minorities have been denied an equal opportunity toparticipate meaningfully in the political process in the jurisdiction.</P> <P>(2) The extent to which minorities have been denied an equal opportunity toinfluence elections and the decisionmaking of elected officials in thejurisdiction.</P> <P>(3) The extent to which voting in the jurisdiction is racially polarized andpolitical activities are racially segregated.</P> <P>(4) The extent to which the voter registration and election participation ofminority voters have been adversely affected by present or past discrimination.</P> </SECTION> <SECTION> <SECTNO>§ 51.59</SECTNO> <SUBJECT>Redistrictings.</SUBJECT> <P>In determining whether a submitted redistricting plan has the prohibitedpurpose or effect the Attorney General, in addition to the factors describedabove, will consider the following factors (among others):</P> <P>(a) The extent to which malapportioned districts deny or abridge the right tovote of minority citizens.</P> <P>(b) The extent to which minority voting strength is reduced by the proposedredistricting.</P> <P>(c) The extent to which minority concentrations are fragmented amongdifferent districts.</P> <P>(d) The extent to which minorities are overconcentrated in one or moredistricts.</P> <P>(e) The extent to which available alternative plans satisfying thejurisdiction's legitimate governmental interests were considered.</P> <P>(f) The extent to which the plan departs from objective redistrictingcriteria set by the submitting jurisdiction, ignores other relevant factors suchas compactness and contiguity, or displays a configuration that inexplicablydisregards available natural or artificial boundaries.</P> <P>(g) The extent to which the plan is inconsistent with the jurisdiction'sstated redistricting standards.</P> </SECTION> <SECTION> <SECTNO>§ 51.60</SECTNO> <SUBJECT>Changes in electoral systems.</SUBJECT> <P>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 electedbodies) the Attorney General, in addition to the factors described above, willconsider the following factors (among others):</P> <P>(a) The extent to which minority voting strength is reduced by the proposedchange.</P> <P>(b) The extent to which minority concentrations are submerged into largerelectoral units.</P> <P>(c) The extent to which available alternative systems satisfying thejurisdiction's legitimate governmental interests were considered.</P> </SECTION> <SECTION> <SECTNO>§ 51.61</SECTNO> <SUBJECT>Annexations.</SUBJECT> <P>(a) <E T="03">Coverage.</E> Annexations, even of uninhabited land, aresubject to section 5 preclearance to the extent that they alter or arecalculated to alter the composition of a jurisdiction's electorate. In analyzingannexations under section 5, the Attorney General only considers the purpose andeffect of the annexation as it pertains to voting.</P> <P>(b) <E T="03">Section 5 review.</E> It is the practice of the AttorneyGeneral to review all of a jurisdiction's unprecleared annexations together. See<E T="03">City of Pleasant Grove</E> v. <E T="03">United States,</E> C.A. No.80-2589 (D.D.C. Oct. 7, 1981).</P> <P>(c) <E T="03">Relevant factors.</E> In making determinations with respect toannexations, the Attorney General, in addition to the factors described above,will consider the following factors (among others):</P> <P>(1) The extent to which a jurisdiction's annexations reflect the purpose orhave the effect of excluding minorities while including other similarly situatedpersons.</P> <P>(2) The extent to which the annexations reduce a jurisdiction's minoritypopulation percentage, either at the time of the submission or, in view of theintended use, for the reasonably foreseeable future.</P> <P>(3) Whether the electoral system to be used in the jurisdiction fails fairlyto reflect minority voting strength as it exists in the post-annexationjurisdiction. See <E T="03">City of Richmond</E> v. <E T="03">United States,</E>422 U.S. 358, 367-72 (1975).</P> <CITA>[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]</CITA> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="99"/> <HD SOURCE="HED">Subpart G—Sanctions</HD> <SECTION> <SECTNO>§ 51.62</SECTNO> <SUBJECT>Enforcement by the Attorney General.</SUBJECT> <P>(a) The Attorney General is authorized to bring civil actions for appropriaterelief against violations of the Act's provisions, including section 5. Seesection 12(d).</P> <P>(b) Certain violations of section 5 may be subject to criminal sanctions. Seesection 12(a) and (c).</P> </SECTION> <SECTION> <SECTNO>§ 51.63</SECTNO> <SUBJECT>Enforcement by private parties.</SUBJECT> <P>Private parties have standing to enforce section 5.</P> </SECTION> <SECTION> <SECTNO>§ 51.64</SECTNO> <SUBJECT>Bar to termination of coverage (bailout).</SUBJECT> <P>(a) Section 4(a) of the Act sets out the requirements for the termination ofcoverage (bailout) under section 5. See § 51.5. Among therequirements for bailout is compliance with section 5, as described in section4(a), during the ten years preceding the filing of the bailout action and duringits pendency.</P> <P>(b) In defending bailout actions, the Attorney General will not consider as abar to bailout under section 4(a)(1)(E) a section 5 objection to a submittedvoting standard, practice, or procedure if the objection was subsequentlywithdrawn on the basis of a determination by the Attorney General that it hadoriginally been interposed as a result of the Attorney General'smisinterpretation of fact or mistake in the law, or if the unmodified votingstandard, practice, or procedure that was the subject of the objection receivedsection 5 preclearance by means of a declaratory judgment from the U.S. DistrictCourt for the District of Columbia.</P> <P>(c) Notice will be given to interested parties registered under§ 51.32 when bailout actions are filed or decided.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Petition To Change Procedures</HD> <SECTION> <SECTNO>§ 51.65</SECTNO> <SUBJECT>Who may petition.</SUBJECT> <P>Any jurisdiction or interested individual or group may petition to have theseprocedural guidelines amended.</P> </SECTION> <SECTION> <SECTNO>§ 51.66</SECTNO> <SUBJECT>Form of petition.</SUBJECT> <P>A petition under this subpart may be made by informal letter and shall statethe name, address, and telephone number of the petitioner, the change requested,and the reasons for the change.</P> </SECTION> <SECTION> <SECTNO>§ 51.67</SECTNO> <SUBJECT>Disposition of petition.</SUBJECT> <P>The Attorney General shall promptly consider and dispose of a petition underthis subpart and give notice of the disposition, accompanied by a simplestatement of the reasons, to the petitioner.</P> </SECTION> <APPENDIX> <EAR>Pt. 51, App.</EAR> <HD SOURCE="HED">Appendix to Part 51—Jurisdictions CoveredUnder Section <E T="01">4(b)</E> of the Voting Rights Act, as Amended</HD> <P>The preclearance requirement of section 5 of the Voting Rights Act, asamended, applies in the following jurisdictions. The applicable date is the datethat was used to determine coverage and the date after which changes affectingvoting are subject to the preclearance requirement.</P> <P>Some jurisdictions, for example, Yuba County, California, are included morethan once because they have been determined on more than one occasion to becovered under section 4(b).</P> <GPOTABLE CDEF="s100,xs46,xs46,xs46" COLS="4" OPTS="L2,i1"> <BOXHD> <CHED H="1">Jurisdiction</CHED> <CHED H="1">Applicable Date</CHED> <CHED H="1"> <E T="04">Federal Register</E> citation</CHED> <CHED H="2">Volume and page</CHED> <CHED H="2">Date</CHED> </BOXHD> <ROW> <ENT I="01">Alabama</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="01">Alaska</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 49422</ENT> <ENT>Oct. 22, 1975.</ENT> </ROW> <ROW> <ENT I="01">Arizona</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23, 1975.</ENT> </ROW> <ROW> <ENT I="11">California:</ENT> </ROW> <ROW> <ENT I="02">Kings County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23.1975.</ENT> </ROW> <ROW> <ENT I="02">Merced County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23,1975.</ENT> </ROW> <ROW> <ENT I="02">Monterey County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Yuba County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27, 1971.</ENT> </ROW> <ROW> <ENT I="02">Yuba County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 784</ENT> <ENT>Jan. 5, 1976.</ENT> </ROW> <ROW> <ENT I="11">Florida:</ENT> </ROW> <ROW> <ENT I="02">Collier County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 34329</ENT> <ENT>Aug. 13,1976.</ENT> </ROW> <ROW> <ENT I="02">Hardee County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23,1975.</ENT> </ROW> <ROW> <ENT I="02">Hendry County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 34329</ENT> <ENT>Aug. 13,1976.</ENT> </ROW> <ROW> <PRTPAGE P="100"/> <ENT I="02">Hillsborough County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept.23, 1975.</ENT> </ROW> <ROW> <ENT I="02">Monroe County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23,1975.</ENT> </ROW> <ROW> <ENT I="01">Georgia</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="01">Louisiana</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="22">Michigan:</ENT> </ROW> <ROW> <ENT I="12">Allegan County:</ENT> </ROW> <ROW> <ENT I="03">Clyde Township</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 34329</ENT> <ENT>Aug. 13,1976.</ENT> </ROW> <ROW> <ENT I="12">Saginaw County:</ENT> </ROW> <ROW> <ENT I="03">Buena Vista Township</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 34329</ENT> <ENT>Aug.13, 1976.</ENT> </ROW> <ROW> <ENT I="01">Mississippi</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="22">New Hampshire:</ENT> </ROW> <ROW> <ENT I="12">Cheshire County:</ENT> </ROW> <ROW> <ENT I="03">Rindge Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10, 1974.</ENT> </ROW> <ROW> <ENT I="12">Coos County:</ENT> </ROW> <ROW> <ENT I="03">Millsfield Township</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May10, 1974.</ENT> </ROW> <ROW> <ENT I="03">Pinkhams Grant</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10,1974.</ENT> </ROW> <ROW> <ENT I="03">Stewartstown Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10,1974.</ENT> </ROW> <ROW> <ENT I="03">Stratford Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10,1974.</ENT> </ROW> <ROW> <ENT I="12">Grafton County:</ENT> </ROW> <ROW> <ENT I="03">Benton Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10, 1974.</ENT> </ROW> <ROW> <ENT I="12">Hillsborough County:</ENT> </ROW> <ROW> <ENT I="03">Antrim Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10, 1974.</ENT> </ROW> <ROW> <ENT I="12">Merrimack County:</ENT> </ROW> <ROW> <ENT I="03">Boscawen Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10,1974.</ENT> </ROW> <ROW> <ENT I="12">Rockingham County:</ENT> </ROW> <ROW> <ENT I="03">Newington Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10,1974.</ENT> </ROW> <ROW> <ENT I="12">Sullivan County:</ENT> </ROW> <ROW> <ENT I="03">Unity Town</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>39 FR 16912</ENT> <ENT>May 10, 1974.</ENT> </ROW> <ROW> <ENT I="22">New York:</ENT> </ROW> <ROW> <ENT I="02">Bronx County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27, 1971.</ENT> </ROW> <ROW> <ENT I="02">Bronx County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23,1975.</ENT> </ROW> <ROW> <ENT I="02">Kings County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27, 1971.</ENT> </ROW> <ROW> <ENT I="02">Kings County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23,1975.</ENT> </ROW> <ROW> <ENT I="02">New York County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="22">North Carolina:</ENT> </ROW> <ROW> <ENT I="02">Anson County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Beaufort County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Bertie County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Bladen County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Camden County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 3317</ENT> <ENT>Mar. 2, 1966.</ENT> </ROW> <ROW> <ENT I="02">Caswell County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Chowan County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Cleveland County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Craven County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Cumberland County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Edgecombe County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Franklin County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Gaston County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar, 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Gates County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Granville County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Greene County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Guilford County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Halifax County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Harnett County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Hertford County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Hoke County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Jackson County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 49422</ENT> <ENT>Oct. 22,1975.</ENT> </ROW> <ROW> <ENT I="02">Lee County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29, 1966.</ENT> </ROW> <ROW> <ENT I="02">Lenoir County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Martin County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 19</ENT> <ENT>Jan. 4, 1966.</ENT> </ROW> <ROW> <ENT I="02">Nash County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Northampton County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Onslow County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Pasquotank County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Perquimans County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 3317</ENT> <ENT>Mar. 2,1966.</ENT> </ROW> <ROW> <ENT I="02">Person County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Pitt County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Robeson County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Rockingham County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29,1966.</ENT> </ROW> <ROW> <ENT I="02">Scotland County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="02">Union County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 5081</ENT> <ENT>Mar. 29, 1966.</ENT> </ROW> <ROW> <ENT I="02">Vance County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <PRTPAGE P="101"/> <ENT I="02">Washington County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 19</ENT> <ENT>Jan. 4,1966.</ENT> </ROW> <ROW> <ENT I="02">Wayne County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="02">Wilson County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7, 1965.</ENT> </ROW> <ROW> <ENT I="01">South Carolina</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> <ROW> <ENT I="22">South Dakota:</ENT> </ROW> <ROW> <ENT I="02">Shannon County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 784</ENT> <ENT>Jan. 5, 1976.</ENT> </ROW> <ROW> <ENT I="02">Todd County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>41 FR 784</ENT> <ENT>Jan. 5, 1976.</ENT> </ROW> <ROW> <ENT I="01">Texas</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 43746</ENT> <ENT>Sept. 23, 1975.</ENT> </ROW> <ROW> <ENT I="01">Virginia</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>30 FR 9897</ENT> <ENT>Aug. 7,1965.</ENT> </ROW> </GPOTABLE> <P>The following political subdivisions in States subject to statewide coverageare also covered individually:</P> <GPOTABLE CDEF="s100,xs46,xs46,xs46" COLS="4" OPTS="L2,i1"> <BOXHD> <CHED H="1">Jurisdiction</CHED> <CHED H="1">Applicable date</CHED> <CHED H="1"> <E T="04">Federal Register</E> citation</CHED> <CHED H="2">Volume and page</CHED> <CHED H="2">Date</CHED> </BOXHD> <ROW> <ENT I="11">Arizona:</ENT> </ROW> <ROW> <ENT I="02">Apache County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Apache County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 49422</ENT> <ENT>Oct. 22,1975</ENT> </ROW> <ROW> <ENT I="02">Cochise County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Coconino County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Coconino County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 49422</ENT> <ENT>Oct. 22,1975.</ENT> </ROW> <ROW> <ENT I="02">Mohave County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Navajo County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Navajo County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 49422</ENT> <ENT>Oct. 22,1975.</ENT> </ROW> <ROW> <ENT I="02">Pima County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27, 1971.</ENT> </ROW> <ROW> <ENT I="02">Pinal County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27, 1971.</ENT> </ROW> <ROW> <ENT I="02">Pinal County</ENT> <ENT>Nov. 1, 1972</ENT> <ENT>40 FR 49422</ENT> <ENT>Oct. 22,1975.</ENT> </ROW> <ROW> <ENT I="02">Santa Cruz County</ENT> <ENT>Nov. 1, 1968</ENT> <ENT>36 FR 5809</ENT> <ENT>Mar. 27,1971.</ENT> </ROW> <ROW> <ENT I="02">Yuma County</ENT> <ENT>Nov. 1, 1964</ENT> <ENT>31 FR 982</ENT> <ENT>Jan. 25,1966.</ENT> </ROW> </GPOTABLE> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 52</EAR> <HD SOURCE="HED">PART 52—PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>52.01</SECTNO> <SUBJECT>Civil proceedings: Special master, pretrial, trial,appeal.</SUBJECT> <SECTNO>52.02</SECTNO> <SUBJECT>Criminal proceedings: Pretrial, trial.</SUBJECT> </CONTENTS> <SECTION> <SECTNO>§ 52.01</SECTNO> <SUBJECT>Civil proceedings: Special master, pretrial, trial, appeal.</SUBJECT> <P>(a) Sections 636 (b) and (c) of title 28 of the United States Code governpretrial and case-dispositive civil jurisdiction of magistrate judges, as wellas service by magistrate judges as special masters.</P> <P>(b) It is the policy of the Department of Justice to encourage the use ofmagistrate judges, as set forth in this paragraph, to assist the district courtsin resolving civil disputes. In conformity with this policy, the attorney forthe government is encouraged to accede to a referral of an entire civil actionfor disposition by a magistrate judge, or to consent to designation of amagistrate judge as special master, if the attorney, with the concurrence of hisor her supervisor, determines that such a referral or designation is in theinterest of the United States. In making this determination, the attorney shallconsider all relevant factors, including—</P> <P>(1) The complexity of the matter, including involvement of significant rightsof large numbers of persons;</P> <P>(2) The relief sought;</P> <P>(3) The amount in controversy;</P> <P>(4) The novelty, importance, and nature of the issues raised;</P> <P>(5) The likelihood that referral to or designation of the magistrate judgewill expedite resolution of the litigation;</P> <P>(6) The experience and qualifications of the magistrate judge; and</P> <P>(7) The possibility of the magistrate judge's actual or apparent bias orconflict of interest.</P> <P>(c)(1) In determining whether to consent to having an appeal taken to the <PRTPAGE P="102"/>district court rather than to the court of appeals, the attorney for thegovernment should consider all relevant factors including—</P> <P>(i) The amount in controversy;</P> <P>(ii) The importance of the questions of law involved;</P> <P>(iii) The desirability of expeditious review of the magistrate judge'sjudgment.</P> <P>(2) In making a determination under paragraph (c)(1) of this section theattorney shall, except in those cases in which delegation authority has beenexercised under 28 CFR 0.168, consult with the Assistant Attorney General havingsupervisory authority over the subject matter.</P> <CITA>[Order No. 2012-96, 61 FR 8473, Mar. 5, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 52.02</SECTNO> <SUBJECT>Criminal proceedings: Pretrial, trial.</SUBJECT> <P>(a) A judge of the district court, without the parties' consent, maydesignate a magistrate judge to hear and determine criminal pretrial matterspending before the court, except for two named classes of motions; as to thelatter, the magistrate judge may conduct a hearing and recommend a decision tothe judge. 28 U.S.C. 636(b)(1) (A), (B).</P> <P>(b) When specially designated by the court to exercise such jurisdiction, amagistrate judge may try, and impose sentence for, any misdemeanor if he hasproperly 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 ormagistrate judge,” and has obtained the defendant's written consent to betried by the magistrate judge. 18 U.S.C. 3401 (a), (b). The court may order thatproceedings be conducted before a district judge rather than a magistrate judgeupon its own motion or, for good cause shown upon petition by the attorney forthe government. The petition should note “the novelty, importance, orcomplexity of the case, or other pertinentfactors * * * ”. 18 U.S.C. 3401(f).</P> <P>(1) If the attorney for the government determines that the public interest isbetter served by trial before a district judge, the attorney may petition thedistrict court for such an order after consulting with the appropriate AssistantAttorney General as provided in paragraph (b)(2) of this section. In making thisdetermination, the attorney shall consider all relevant factors including—</P> <P>(i) The novelty of the case with respect to the facts, the statute beingenforced, and the application of the statute to the facts;</P> <P>(ii) The importance of the case in light of the nature and seriousness of theoffense charged;</P> <P>(iii) The defendant's history of criminal activity, the potential penaltyupon conviction, and the purposes to be served by prosecution, includingpunishment, deterrence, rehabilitation, and incapacitation;</P> <P>(iv) The factual and legal complexity of the case and the amount and natureof the evidence to be presented;</P> <P>(v) The desirability of prompt disposition of the case; and</P> <P>(vi) The experience and qualifications of the magistrate judge, and thepossibility of the magistrate judge's actual or apparent bias or conflict ofinterest.</P> <P>(2) The attorney for the government shall consult with the Assistant AttorneyGeneral having supervisory authority over the subject matter in determiningwhether to petition for trial before a district judge in a case involving aviolation 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.</P> <P>(3) In a case in which the government petitions for trial before a districtjudge, the attorney for the government shall forward a copy of the petition tothe Assistant Attorney General having supervisory authority over the subjectmatter and, if the petition is denied, shall promptly notify the AssistantAttorney General.</P> <SECAUTH>(5 U.S.C. 301, 18 U.S.C. 3401(f))</SECAUTH> <CITA>[Order No. 903-80, 45 FR 50564, July 30, 1980, as amended by OrderNo. 2012-96, 61 FR 8473, Mar. 5, 1996]</CITA> </SECTION> </PART> <PART> <PRTPAGE P="103"/> <EAR>Pt. 54</EAR> <HD SOURCE="HED">PART 54—NONDISCRIMINATION ON THE BASIS OF SEX INEDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction</HD> <SECHD>Sec.</SECHD> <SECTNO>54.100</SECTNO> <SUBJECT>Purpose and effective date.</SUBJECT> <SECTNO>54.105</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>54.110</SECTNO> <SUBJECT>Remedial and affirmative action and self-evaluation.</SUBJECT> <SECTNO>54.115</SECTNO> <SUBJECT>Assurance required.</SUBJECT> <SECTNO>54.120</SECTNO> <SUBJECT>Transfers of property.</SUBJECT> <SECTNO>54.125</SECTNO> <SUBJECT>Effect of other requirements.</SUBJECT> <SECTNO>54.130</SECTNO> <SUBJECT>Effect of employment opportunities.</SUBJECT> <SECTNO>54.135</SECTNO> <SUBJECT>Designation of responsible employee and adoption ofgrievance procedures.</SUBJECT> <SECTNO>54.140</SECTNO> <SUBJECT>Dissemination of policy.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Coverage</HD> <SECTNO>54.200</SECTNO> <SUBJECT>Application.</SUBJECT> <SECTNO>54.205</SECTNO> <SUBJECT>Educational institutions and other entities controlled byreligious organizations.</SUBJECT> <SECTNO>54.210</SECTNO> <SUBJECT>Military and merchant marine educational institutions.</SUBJECT> <SECTNO>54.215</SECTNO> <SUBJECT>Membership practices of certain organizations.</SUBJECT> <SECTNO>54.220</SECTNO> <SUBJECT>Admissions.</SUBJECT> <SECTNO>54.225</SECTNO> <SUBJECT>Educational institutions eligible to submit transitionplans.</SUBJECT> <SECTNO>54.230</SECTNO> <SUBJECT>Transition plans.</SUBJECT> <SECTNO>54.235</SECTNO> <SUBJECT>Statutory amendments.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Discrimination on the Basis of Sex in Admissionand Recruitment Prohibited</HD> <SECTNO>54.300</SECTNO> <SUBJECT>Admission.</SUBJECT> <SECTNO>54.305</SECTNO> <SUBJECT>Preference in admission.</SUBJECT> <SECTNO>54.310</SECTNO> <SUBJECT>Recruitment.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Discrimination on the Basis of Sex in EducationPrograms or Activities Prohibited</HD> <SECTNO>54.400</SECTNO> <SUBJECT>Education programs or activities.</SUBJECT> <SECTNO>54.405</SECTNO> <SUBJECT>Housing.</SUBJECT> <SECTNO>54.410</SECTNO> <SUBJECT>Comparable facilities.</SUBJECT> <SECTNO>54.415</SECTNO> <SUBJECT>Access to course offerings.</SUBJECT> <SECTNO>54.420</SECTNO> <SUBJECT>Access to schools operated by LEAs.</SUBJECT> <SECTNO>54.425</SECTNO> <SUBJECT>Counseling and use of appraisal and counseling materials.</SUBJECT> <SECTNO>54.430</SECTNO> <SUBJECT>Financial assistance.</SUBJECT> <SECTNO>54.435</SECTNO> <SUBJECT>Employment assistance to students.</SUBJECT> <SECTNO>54.440</SECTNO> <SUBJECT>Health and insurance benefits and services.</SUBJECT> <SECTNO>54.445</SECTNO> <SUBJECT>Marital or parental status.</SUBJECT> <SECTNO>54.450</SECTNO> <SUBJECT>Athletics.</SUBJECT> <SECTNO>54.455</SECTNO> <SUBJECT>Textbooks and curricular material.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Discrimination on the Basis of Sex in Employmentin Education Programs or Activities Prohibited</HD> <SECTNO>54.500</SECTNO> <SUBJECT>Employment.</SUBJECT> <SECTNO>54.505</SECTNO> <SUBJECT>Employment criteria.</SUBJECT> <SECTNO>54.510</SECTNO> <SUBJECT>Recruitment.</SUBJECT> <SECTNO>54.515</SECTNO> <SUBJECT>Compensation.</SUBJECT> <SECTNO>54.520</SECTNO> <SUBJECT>Job classification and structure.</SUBJECT> <SECTNO>54.525</SECTNO> <SUBJECT>Fringe benefits.</SUBJECT> <SECTNO>54.530</SECTNO> <SUBJECT>Marital or parental status.</SUBJECT> <SECTNO>54.535</SECTNO> <SUBJECT>Effect of state or local law or other requirements.</SUBJECT> <SECTNO>54.540</SECTNO> <SUBJECT>Advertising.</SUBJECT> <SECTNO>54.545</SECTNO> <SUBJECT>Pre-employment inquiries.</SUBJECT> <SECTNO>54.550</SECTNO> <SUBJECT>Sex as a bona fide occupational qualification.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedures</HD> <SECTNO>54.600</SECTNO> <SUBJECT>Notice of covered programs.</SUBJECT> <SECTNO>54.605</SECTNO> <SUBJECT>Enforcement procedures.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 2320-2000, 65 FR 52865, 52880, Aug. 30,2000, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Introduction</HD> <SECTION> <SECTNO>§ 54.100</SECTNO> <SUBJECT>Purpose and effective date.</SUBJECT> <P>The purpose of these Title IX regulations is to effectuate Title IX of theEducation Amendments of 1972, as amended (except sections 904 and 906 of thoseAmendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which isdesigned to eliminate (with certain exceptions) discrimination on the basis ofsex in any education program or activity receiving Federal financial assistance,whether or not such program or activity is offered or sponsored by aneducational institution as defined in these Title IX regulations. The effectivedate of these Title IX regulations shall be September 29, 2000.</P> </SECTION> <SECTION> <SECTNO>§ 54.105</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in these Title IX regulations, the term:</P> <P> <E T="03">Administratively separate unit</E> means a school, department, orcollege of an educational institution (other than a local educational agency)admission to which is independent of admission to any other component of suchinstitution.</P> <P> <E T="03">Admission</E> means selection for part-time, full-time, special,associate, <PRTPAGE P="104"/>transfer, exchange, or any other enrollment, membership, ormatriculation in or at an education program or activity operated by a recipient.</P> <P> <E T="03">Applicant</E> means one who submits an application, request, orplan required to be approved by an official of the Federal agency that awardsFederal financial assistance, or by a recipient, as a condition to becoming arecipient.</P> <P> <E T="03">Designated agency official</E> means the Assistant AttorneyGeneral, Civil Rights Division.</P> <P> <E T="03">Educational institution</E> means a local educational agency (LEA)as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or secondaryschool, or an applicant or recipient that is an institution of graduate highereducation, an institution of undergraduate higher education, an institution ofprofessional education, or an institution of vocational education, as defined inthis section.</P> <P> <E T="03">Federal financial assistance</E> means any of the following, whenauthorized or extended under a law administered by the Federal agency thatawards such assistance:</P> <P>(1) A grant or loan of Federal financial assistance, including funds madeavailable for:</P> <P>(i) The acquisition, construction, renovation, restoration, or repair of abuilding or facility or any portion thereof; and</P> <P>(ii) Scholarships, loans, grants, wages, or other funds extended to anyentity for payment to or on behalf of students admitted to that entity, orextended directly to such students for payment to that entity.</P> <P>(2) A grant of Federal real or personal property or any interest therein,including surplus property, and the proceeds of the sale or transfer of suchproperty, if the Federal share of the fair market value of the property is not,upon such sale or transfer, properly accounted for to the Federal Government.</P> <P>(3) Provision of the services of Federal personnel.</P> <P>(4) Sale or lease of Federal property or any interest therein at nominalconsideration, or at consideration reduced for the purpose of assisting therecipient or in recognition of public interest to be served thereby, orpermission to use Federal property or any interest therein withoutconsideration.</P> <P>(5) Any other contract, agreement, or arrangement that has as one of itspurposes the provision of assistance to any education program or activity,except a contract of insurance or guaranty.</P> <P> <E T="03">Institution of graduate higher education</E> means an institutionthat:</P> <P>(1) Offers academic study beyond the bachelor of arts or bachelor of sciencedegree, whether or not leading to a certificate of any higher degree in theliberal arts and sciences;</P> <P>(2) Awards any degree in a professional field beyond the first professionaldegree (regardless of whether the first professional degree in such field isawarded by an institution of undergraduate higher education or professionaleducation); or</P> <P>(3) Awards no degree and offers no further academic study, but operatesordinarily for the purpose of facilitating research by persons who have receivedthe highest graduate degree in any field of study.</P> <P> <E T="03">Institution of professional education</E> means an institution(except any institution of undergraduate higher education) that offers a programof academic study that leads to a first professional degree in a field for whichthere is a national specialized accrediting agency recognized by the Secretaryof Education.</P> <P> <E T="03">Institution of undergraduate higher education</E> means:</P> <P>(1) An institution offering at least two but less than four years of college-level study beyond the high school level, leading to a diploma or an associatedegree, or wholly or principally creditable toward a baccalaureate degree; or</P> <P>(2) An institution offering academic study leading to a baccalaureate degree;or</P> <P>(3) An agency or body that certifies credentials or offers degrees, but thatmay or may not offer academic study.</P> <P> <E T="03">Institution of vocational education</E> means a school orinstitution (except an institution of professional or graduate or undergraduatehigher education) that has as its primary purpose preparation of students topursue a technical, skilled, or semiskilled occupation or trade, or to pursuestudy in a <PRTPAGE P="105"/>technical field, whether or not the school or institution offerscertificates, diplomas, or degrees and whether or not it offers full-time study.</P> <P> <E T="03">Recipient</E> means any State or political subdivision thereof, orany instrumentality of a State or political subdivision thereof, any public orprivate agency, institution, or organization, or other entity, or any person, towhom Federal financial assistance is extended directly or through anotherrecipient and that operates an education program or activity that receives suchassistance, including any subunit, successor, assignee, or transferee thereof.</P> <P> <E T="03">Student</E> means a person who has gained admission.</P> <P> <E T="03">Title IX</E> means Title IX of the Education Amendments of 1972,Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C.1681-1688) (except sections 904 and 906 thereof), as amended by section 3of Public Law 93-568, 88 Stat. 1855, by section 412 of the EducationAmendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 ofPublic Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,1685, 1686, 1687, 1688).</P> <P> <E T="03">Title IX regulations</E> means the provisions set forth at§§ 54.100 through 54.605.</P> <P> <E T="03">Transition plan</E> means a plan subject to the approval of theSecretary of Education pursuant to section 901(a)(2) of the Education Amendmentsof 1972, 20 U.S.C. 1681(a)(2), under which an educational institution operatesin making the transition from being an educational institution that admits onlystudents of one sex to being one that admits students of both sexes withoutdiscrimination.</P> </SECTION> <SECTION> <SECTNO>§ 54.110</SECTNO> <SUBJECT>Remedial and affirmative action and self-evaluation.</SUBJECT> <P>(a) <E T="03">Remedial action.</E> If the designated agency official findsthat a recipient has discriminated against persons on the basis of sex in aneducation program or activity, such recipient shall take such remedial action asthe designated agency official deems necessary to overcome the effects of suchdiscrimination.</P> <P>(b) <E T="03">Affirmative action.</E> In the absence of a finding ofdiscrimination on the basis of sex in an education program or activity, arecipient may take affirmative action consistent with law to overcome theeffects of conditions that resulted in limited participation therein by personsof a particular sex. Nothing in these Title IX regulations shall be interpretedto alter any affirmative action obligations that a recipient may have underExecutive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended byExecutive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended byExecutive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended byExecutive Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order12107, 3 CFR, 1978 Comp., p. 264.</P> <P>(c) <E T="03">Self-evaluation.</E> Each recipient education institutionshall, within one year of September 29, 2000:</P> <P>(1) Evaluate, in terms of the requirements of these Title IX regulations, itscurrent policies and practices and the effects thereof concerning admission ofstudents, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient's education programor activity;</P> <P>(2) Modify any of these policies and practices that do not or may not meetthe requirements of these Title IX regulations; and</P> <P>(3) Take appropriate remedial steps to eliminate the effects of anydiscrimination that resulted or may have resulted from adherence to thesepolicies and practices.</P> <P>(d) <E T="03">Availability of self-evaluation and related materials.</E>Recipients shall maintain on file for at least three years following completionof the evaluation required under paragraph (c) of this section, and shallprovide to the designated agency official upon request, a description of anymodifications made pursuant to paragraph (c)(2) of this section and of anyremedial steps taken pursuant to paragraph (c)(3) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 54.115</SECTNO> <SUBJECT>Assurance required.</SUBJECT> <P>(a) <E T="03">General.</E> Either at the application stage or the awardstage, Federal agencies must ensure that applications for Federal financialassistance or awards of Federal financial assistance contain, be accompanied by,or be covered by a specifically identified assurance from <PRTPAGE P="106"/>the applicant orrecipient, satisfactory to the designated agency official, that each educationprogram or activity operated by the applicant or recipient and to which theseTitle IX regulations apply will be operated in compliance with these Title IXregulations. An assurance of compliance with these Title IX regulations shallnot be satisfactory to the designated agency official if the applicant orrecipient to whom such assurance applies fails to commit itself to take whateverremedial action is necessary in accordance with § 54.110(a) toeliminate existing discrimination on the basis of sex or to eliminate theeffects of past discrimination whether occurring prior to or subsequent to thesubmission to the designated agency official of such assurance.</P> <P>(b) <E T="03">Duration of obligation.</E> (1) In the case of Federalfinancial assistance extended to provide real property or structures thereon,such assurance shall obligate the recipient or, in the case of a subsequenttransfer, the transferee, for the period during which the real property orstructures are used to provide an education program or activity.</P> <P>(2) In the case of Federal financial assistance extended to provide personalproperty, such assurance shall obligate the recipient for the period duringwhich it retains ownership or possession of the property.</P> <P>(3) In all other cases such assurance shall obligate the recipient for theperiod during which Federal financial assistance is extended.</P> <P>(c) <E T="03">Form.</E> (1) The assurances required by paragraph (a) of thissection, which may be included as part of a document that addresses otherassurances or obligations, shall include that the applicant or recipient willcomply with all applicable Federal statutes relating to nondiscrimination. Theseinclude but are not limited to: Title IX of the Education Amendments of 1972, asamended (20 U.S.C. 1681-1683, 1685-1688).</P> <P>(2) The designated agency official will specify the extent to which suchassurances will be required of the applicant's or recipient's subgrantees,contractors, subcontractors, transferees, or successors in interest.</P> </SECTION> <SECTION> <SECTNO>§ 54.120</SECTNO> <SUBJECT>Transfers of property.</SUBJECT> <P>If a recipient sells or otherwise transfers property financed in whole or inpart with Federal financial assistance to a transferee that operates anyeducation program or activity, and the Federal share of the fair market value ofthe property is not upon such sale or transfer properly accounted for to theFederal Government, both the transferor and the transferee shall be deemed to berecipients, subject to the provisions of §§ 54.205 through54.235(a).</P> </SECTION> <SECTION> <SECTNO>§ 54.125</SECTNO> <SUBJECT>Effect of other requirements.</SUBJECT> <P>(a) <E T="03">Effect of other Federal provisions.</E> The obligations imposedby these Title IX regulations are independent of, and do not alter, obligationsnot to discriminate on the basis of sex imposed by Executive Order 11246, 3 CFR,1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR,1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR,1966-1970 Comp., p. 803; as amended by Executive Order 12087, 3 CFR, 1978Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264;sections 704 and 855 of the Public Health Service Act (42 U.S.C. 295m, 298b-2);Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e <E T="03">etseq.</E>); the Equal Pay Act of 1963 (29 U.S.C. 206); and any other Act ofCongress or Federal regulation.</P> <P>(b) <E T="03">Effect of State or local law or other requirements.</E> Theobligation to comply with these Title IX regulations is not obviated oralleviated by any State or local law or other requirement that would render anyapplicant or student ineligible, or limit the eligibility of any applicant orstudent, on the basis of sex, to practice any occupation or profession.</P> <P>(c) <E T="03">Effect of rules or regulations of private organizations.</E>The obligation to comply with these Title IX regulations is not obviated oralleviated by any rule or regulation of any organization, club, athletic orother league, or association that would render any applicant or studentineligible to participate or limit the eligibility or participation of anyapplicant or student, on the basis of sex, in any education program or activityoperated by a recipient and that receives Federal financial assistance.</P> </SECTION> <SECTION> <PRTPAGE P="107"/> <SECTNO>§ 54.130</SECTNO> <SUBJECT>Effect of employment opportunities.</SUBJECT> <P>The obligation to comply with these Title IX regulations is not obviated oralleviated because employment opportunities in any occupation or profession areor may be more limited for members of one sex than for members of the other sex.</P> </SECTION> <SECTION> <SECTNO>§ 54.135</SECTNO> <SUBJECT>Designation of responsible employee and adoption of grievanceprocedures.</SUBJECT> <P>(a) <E T="03">Designation of responsible employee.</E> Each recipient shalldesignate at least one employee to coordinate its efforts to comply with andcarry out its responsibilities under these Title IX regulations, including anyinvestigation of any complaint communicated to such recipient alleging itsnoncompliance with these Title IX regulations or alleging any actions that wouldbe prohibited by these Title IX regulations. The recipient shall notify all itsstudents and employees of the name, office address, and telephone number of theemployee or employees appointed pursuant to this paragraph.</P> <P>(b) <E T="03">Complaint procedure of recipient.</E> A recipient shall adoptand publish grievance procedures providing for prompt and equitable resolutionof student and employee complaints alleging any action that would be prohibitedby these Title IX regulations.</P> </SECTION> <SECTION> <SECTNO>§ 54.140</SECTNO> <SUBJECT>Dissemination of policy.</SUBJECT> <P>(a) <E T="03">Notification of policy.</E> (1) Each recipient shall implementspecific and continuing steps to notify applicants for admission and employment,students and parents of elementary and secondary school students, employees,sources of referral of applicants for admission and employment, and all unionsor professional organizations holding collective bargaining or professionalagreements with the recipient, that it does not discriminate on the basis of sexin the educational programs or activities that it operates, and that it isrequired by Title IX and these Title IX regulations not to discriminate in sucha manner. Such notification shall contain such information, and be made in suchmanner, as the designated agency official finds necessary to apprise suchpersons of the protections against discrimination assured them by Title IX andthese Title IX regulations, but shall state at least that the requirement not todiscriminate in education programs or activities extends to employment therein,and to admission thereto unless §§ 54.300 through 54.310 do notapply to the recipient, and that inquiries concerning the application of TitleIX and these Title IX regulations to such recipient may be referred to theemployee designated pursuant to § 54.135, or to the designated agencyofficial.</P> <P>(2) Each recipient shall make the initial notification required by paragraph(a)(1) of this section within 90 days of September 29, 2000 or of the date theseTitle IX regulations first apply to such recipient, whichever comes later, whichnotification shall include publication in:</P> <P>(i) Newspapers and magazines operated by such recipient or by student,alumnae, or alumni groups for or in connection with such recipient; and</P> <P>(ii) Memoranda or other written communications distributed to every studentand employee of such recipient.</P> <P>(b) <E T="03">Publications.</E> (1) Each recipient shall prominently includea statement of the policy described in paragraph (a) of this section in eachannouncement, bulletin, catalog, or application form that it makes available toany person of a type, described in paragraph (a) of this section, or which isotherwise used in connection with the recruitment of students or employees.</P> <P>(2) A recipient shall not use or distribute a publication of the typedescribed in paragraph (b)(1) of this section that suggests, by text orillustration, that such recipient treats applicants, students, or employeesdifferently on the basis of sex except as such treatment is permitted by theseTitle IX regulations.</P> <P>(c) <E T="03">Distribution.</E> Each recipient shall distribute withoutdiscrimination on the basis of sex each publication described in paragraph(b)(1) of this section, and shall apprise each of its admission and employmentrecruitment representatives of the policy of nondiscrimination described inparagraph (a) of this section, and shall require such representatives to adhereto such policy.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="108"/> <HD SOURCE="HED">Subpart B—Coverage</HD> <SECTION> <SECTNO>§ 54.200</SECTNO> <SUBJECT>Application.</SUBJECT> <P>Except as provided in §§ 54.205 through 54.235(a), theseTitle IX regulations apply to every recipient and to each education program oractivity operated by such recipient that receives Federal financial assistance.</P> </SECTION> <SECTION> <SECTNO>§ 54.205</SECTNO> <SUBJECT>Educational institutions and other entities controlled by religiousorganizations.</SUBJECT> <P>(a) <E T="03">Exemption.</E> These Title IX regulations do not apply to anyoperation of an educational institution or other entity that is controlled by areligious organization to the extent that application of these Title IXregulations would not be consistent with the religious tenets of suchorganization.</P> <P>(b) <E T="03">Exemption claims.</E> An educational institution or otherentity that wishes to claim the exemption set forth in paragraph (a) of thissection shall do so by submitting in writing to the designated agency official astatement by the highest-ranking official of the institution, identifying theprovisions of these Title IX regulations that conflict with a specific tenet ofthe religious organization.</P> </SECTION> <SECTION> <SECTNO>§ 54.210</SECTNO> <SUBJECT>Military and merchant marine educational institutions.</SUBJECT> <P>These Title IX regulations do not apply to an educational institution whoseprimary purpose is the training of individuals for a military service of theUnited States or for the merchant marine.</P> </SECTION> <SECTION> <SECTNO>§ 54.215</SECTNO> <SUBJECT>Membership practices of certain organizations.</SUBJECT> <P>(a) <E T="03">Social fraternities and sororities.</E> These Title IXregulations do not apply to the membership practices of social fraternities andsororities that are exempt from taxation under section 501(a) of the InternalRevenue Code of 1954, 26 U.S.C. 501(a), the active membership of which consistsprimarily of students in attendance at institutions of higher education.</P> <P>(b) <E T="03">YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls.</E>These Title IX regulations do not apply to the membership practices of the YoungMen's Christian Association (YMCA), the Young Women's Christian Association(YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire Girls.</P> <P>(c) <E T="03">Voluntary youth service organizations.</E> These Title IXregulations do not apply to the membership practices of a voluntary youthservice organization that is exempt from taxation under section 501(a) of theInternal Revenue Code of 1954, 26 U.S.C. 501(a), and the membership of which hasbeen traditionally limited to members of one sex and principally to persons ofless than nineteen years of age.</P> </SECTION> <SECTION> <SECTNO>§ 54.220</SECTNO> <SUBJECT>Admissions.</SUBJECT> <P>(a) Admissions to educational institutions prior to June 24, 1973, are notcovered by these Title IX regulations.</P> <P>(b) <E T="03">Administratively separate units.</E> For the purposes only ofthis section, §§ 54.225 and 54.230, and§§ 54.300 through 54.310, each administratively separate unitshall be deemed to be an educational institution.</P> <P>(c) <E T="03">Application of §§ 54.300 through 54.310.</E>Except as provided in paragraphs (d) and (e) of this section,§§ 54.300 through 54.310 apply to each recipient. A recipient towhich §§ 54.300 through 54.310 apply shall not discriminate onthe basis of sex in admission or recruitment in violation of§§ 54.300 through 54.310.</P> <P>(d) <E T="03">Educational institutions.</E> Except as provided in paragraph(e) of this section as to recipients that are educational institutions,§§ 54.300 through 54.310 apply only to institutions ofvocational education, professional education, graduate higher education, andpublic institutions of undergraduate higher education.</P> <P>(e) <E T="03">Public institutions of undergraduate higher education.</E>§§ 54.300 through 54.310 do not apply to any public institutionof undergraduate higher education that traditionally and continually from itsestablishment has had a policy of admitting students of only one sex.</P> </SECTION> <SECTION> <SECTNO>§ 54.225</SECTNO> <SUBJECT>Educational institutions eligible to submit transition plans.</SUBJECT> <P>(a) <E T="03">Application.</E> This section applies to each educationalinstitution to which §§ 54.300 through 54.310 apply that:<PRTPAGE P="109"/> </P> <P>(1) Admitted students of only one sex as regular students as of June 23,1972; or</P> <P>(2) Admitted students of only one sex as regular students as of June 23,1965, but thereafter admitted, as regular students, students of the sex notadmitted prior to June 23, 1965.</P> <P>(b) <E T="03">Provision for transition plans.</E> An educational institutionto which this section applies shall not discriminate on the basis of sex inadmission or recruitment in violation of §§ 54.300 through54.310.</P> </SECTION> <SECTION> <SECTNO>§ 54.230</SECTNO> <SUBJECT>Transition plans.</SUBJECT> <P>(a) <E T="03">Submission of plans.</E> An institution to which§ 54.225 applies and that is composed of more than oneadministratively separate unit may submit either a single transition planapplicable to all such units, or a separate transition plan applicable to eachsuch unit.</P> <P>(b) <E T="03">Content of plans.</E> In order to be approved by the Secretaryof Education, a transition plan shall:</P> <P>(1) State the name, address, and Federal Interagency Committee on EducationCode of the educational institution submitting such plan, the administrativelyseparate units to which the plan is applicable, and the name, address, andtelephone number of the person to whom questions concerning the plan may beaddressed. The person who submits the plan shall be the chief administrator orpresident of the institution, or another individual legally authorized to bindthe institution to all actions set forth in the plan.</P> <P>(2) State whether the educational institution or administratively separateunit admits students of both sexes as regular students and, if so, when it beganto do so.</P> <P>(3) Identify and describe with respect to the educational institution oradministratively separate unit any obstacles to admitting students withoutdiscrimination on the basis of sex.</P> <P>(4) Describe in detail the steps necessary to eliminate as soon aspracticable each obstacle so identified and indicate the schedule for takingthese steps and the individual directly responsible for their implementation.</P> <P>(5) Include estimates of the number of students, by sex, expected to applyfor, be admitted to, and enter each class during the period covered by the plan.</P> <P>(c) <E T="03">Nondiscrimination.</E> No policy or practice of a recipient towhich § 54.225 applies shall result in treatment of applicants to orstudents of such recipient in violation of §§ 54.300 through54.310 unless such treatment is necessitated by an obstacle identified inparagraph (b)(3) of this section and a schedule for eliminating that obstaclehas been provided as required by paragraph (b)(4) of this section.</P> <P>(d) <E T="03">Effects of past exclusion.</E> To overcome the effects of pastexclusion of students on the basis of sex, each educational institution to which§ 54.225 applies shall include in its transition plan, and shallimplement, specific steps designed to encourage individuals of the previouslyexcluded sex to apply for admission to such institution. Such steps shallinclude instituting recruitment programs that emphasize the institution'scommitment to enrolling students of the sex previously excluded.</P> </SECTION> <SECTION> <SECTNO>§ 54.235</SECTNO> <SUBJECT>Statutory amendments.</SUBJECT> <P>(a) This section, which applies to all provisions of these Title IXregulations, addresses statutory amendments to Title IX.</P> <P>(b) These Title IX regulations shall not apply to or preclude:</P> <P>(1) Any program or activity of the American Legion undertaken in connectionwith the organization or operation of any Boys State conference, Boys Nationconference, Girls State conference, or Girls Nation conference;</P> <P>(2) Any program or activity of a secondary school or educational institutionspecifically for:</P> <P>(i) The promotion of any Boys State conference, Boys Nation conference, GirlsState conference, or Girls Nation conference; or</P> <P>(ii) The selection of students to attend any such conference;</P> <P>(3) Father-son or mother-daughter activities at an educational institution orin an education program or activity, but if such activities are provided forstudents of one sex, opportunities for reasonably comparable activities shall beprovided to students of the other sex;<PRTPAGE P="110"/> </P> <P>(4) Any scholarship or other financial assistance awarded by an institutionof higher education to an individual because such individual has received suchaward in a single-sex pageant based upon a combination of factors related to theindividual's personal appearance, poise, and talent. The pageant, however, mustcomply with other nondiscrimination provisions of Federal law.</P> <P>(c) <E T="03">Program or activity</E> or <E T="03">program</E> means:</P> <P>(1) All of the operations of any entity described in paragraphs (c)(1)(i)through (iv) of this section, any part of which is extended Federal financialassistance:</P> <P>(i)(A) A department, agency, special purpose district, or otherinstrumentality of a State or of a local government; or</P> <P>(B) The entity of such State or local government that distributes suchassistance and each such department or agency (and each other State or localgovernment entity) to which the assistance is extended, in the case ofassistance to a State or local government;</P> <P>(ii)(A) A college, university, or other postsecondary institution, or apublic system of higher education; or</P> <P>(B) A local educational agency (as defined in section 8801 of title 20),system of vocational education, or other school system;</P> <P>(iii)(A) An entire corporation, partnership, or other private organization,or an entire sole proprietorship—</P> <P>(<E T="03">1</E>) If assistance is extended to such corporation, partnership,private organization, or sole proprietorship as a whole; or</P> <P>(<E T="03">2</E>) Which is principally engaged in the business of providingeducation, health care, housing, social services, or parks and recreation; or</P> <P>(B) The entire plant or other comparable, geographically separate facility towhich Federal financial assistance is extended, in the case of any othercorporation, partnership, private organization, or sole proprietorship; or</P> <P>(iv) Any other entity that is established by two or more of the entitiesdescribed in paragraphs (c)(1)(i), (ii), or (iii) of this section.</P> <P>(2)(i) <E T="03">Program or activity</E> does not include any operation of anentity that is controlled by a religious organization if the application of 20U.S.C. 1681 to such operation would not be consistent with the religious tenetsof such organization.</P> <P>(ii) For example, all of the operations of a college, university, or otherpostsecondary institution, including but not limited to traditional educationaloperations, faculty and student housing, campus shuttle bus service, campusrestaurants, the bookstore, and other commercial activities are part of a“program or activity” subject to these Title IX regulations if thecollege, university, or other institution receives Federal financial assistance.</P> <P>(d)(1) Nothing in these Title IX regulations shall be construed to require orprohibit any person, or public or private entity, to provide or pay for anybenefit or service, including the use of facilities, related to an abortion.Medical procedures, benefits, services, and the use of facilities, necessary tosave the life of a pregnant woman or to address complications related to anabortion are not subject to this section.</P> <P>(2) Nothing in this section shall be construed to permit a penalty to beimposed on any person or individual because such person or individual is seekingor has received any benefit or service related to a legal abortion. Accordingly,subject to paragraph (d)(1) of this section, no person shall be excluded fromparticipation in, be denied the benefits of, or be subjected to discriminationunder any academic, extracurricular, research, occupational training,employment, or other educational program or activity operated by a recipientthat receives Federal financial assistance because such individual has sought orreceived, or is seeking, a legal abortion, or any benefit or service related toa legal abortion.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Discrimination on the Basis of Sex in Admissionand Recruitment Prohibited</HD> <SECTION> <SECTNO>§ 54.300</SECTNO> <SUBJECT>Admission.</SUBJECT> <P>(a) <E T="03">General.</E> No person shall, on the basis of sex, be deniedadmission, or be <PRTPAGE P="111"/>subjected to discrimination in admission, by any recipient towhich §§ 54.300 through §§ 54.310 apply, exceptas provided in §§ 54.225 and §§ 54.230.</P> <P>(b) <E T="03">Specific prohibitions.</E> (1) In determining whether a personsatisfies any policy or criterion for admission, or in making any offer ofadmission, a recipient to which §§ 54.300 through 54.310 applyshall not:</P> <P>(i) Give preference to one person over another on the basis of sex, byranking applicants separately on such basis, or otherwise;</P> <P>(ii) Apply numerical limitations upon the number or proportion of persons ofeither sex who may be admitted; or</P> <P>(iii) Otherwise treat one individual differently from another on the basis ofsex.</P> <P>(2) A recipient shall not administer or operate any test or other criterionfor admission that has a disproportionately adverse effect on persons on thebasis of sex unless the use of such test or criterion is shown to predictvalidly success in the education program or activity in question and alternativetests or criteria that do not have such a disproportionately adverse effect areshown to be unavailable.</P> <P>(c) <E T="03">Prohibitions relating to marital or parental status.</E> Indetermining whether a person satisfies any policy or criterion for admission, orin making any offer of admission, a recipient to which §§ 54.300through 54.310 apply:</P> <P>(1) Shall not apply any rule concerning the actual or potential parental,family, or marital status of a student or applicant that treats personsdifferently on the basis of sex;</P> <P>(2) Shall not discriminate against or exclude any person on the basis ofpregnancy, childbirth, termination of pregnancy, or recovery therefrom, orestablish or follow any rule or practice that so discriminates or excludes;</P> <P>(3) Subject to § 54.235(d), shall treat disabilities related topregnancy, childbirth, termination of pregnancy, or recovery therefrom in thesame manner and under the same policies as any other temporary disability orphysical condition; and</P> <P>(4) Shall not make pre-admission inquiry as to the marital status of anapplicant for admission, including whether such applicant is “Miss”or “Mrs.” A recipient may make pre-admission inquiry as to the sexof an applicant for admission, but only if such inquiry is made equally of suchapplicants of both sexes and if the results of such inquiry are not used inconnection with discrimination prohibited by these Title IX regulations.</P> </SECTION> <SECTION> <SECTNO>§ 54.305</SECTNO> <SUBJECT>Preference in admission.</SUBJECT> <P>A recipient to which §§ 54.300 through 54.310 apply shall notgive preference to applicants for admission, on the basis of attendance at anyeducational institution or other school or entity that admits as students onlyor predominantly members of one sex, if the giving of such preference has theeffect of discriminating on the basis of sex in violation of§§ 54.300 through 54.310.</P> </SECTION> <SECTION> <SECTNO>§ 54.310</SECTNO> <SUBJECT>Recruitment.</SUBJECT> <P>(a) <E T="03">Nondiscriminatory recruitment.</E> A recipient to which§§ 54.300 through 54.310 apply shall not discriminate on thebasis of sex in the recruitment and admission of students. A recipient may berequired to undertake additional recruitment efforts for one sex as remedialaction pursuant to § 54.110(a), and may choose to undertake suchefforts as affirmative action pursuant to § 54.110(b).</P> <P>(b) <E T="03">Recruitment at certain institutions.</E> A recipient to which§§ 54.300 through 54.310 apply shall not recruit primarily orexclusively at educational institutions, schools, or entities that admit asstudents only or predominantly members of one sex, if such actions have theeffect of discriminating on the basis of sex in violation of§§ 54.300 through 54.310.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Discrimination on the Basis of Sex in EducationPrograms or Activities Prohibited</HD> <SECTION> <SECTNO>§ 54.400</SECTNO> <SUBJECT>Education programs or activities.</SUBJECT> <P>(a) <E T="03">General.</E> Except as provided elsewhere in these Title IXregulations, no person shall, on the basis of sex, be excluded fromparticipation in, be denied the benefits of, or be subjected to discriminationunder any academic, extracurricular, research, occupational training, or othereducation program or activity operated by a recipient that <PRTPAGE P="112"/>receives Federalfinancial assistance. Sections 54.400 through 54.455 do not apply to actions ofa recipient in connection with admission of its students to an education programor activity of a recipient to which §§ 54.300 through 54.310 donot apply, or an entity, not a recipient, to which §§ 54.300through 54.310 would not apply if the entity were a recipient.</P> <P>(b) <E T="03">Specific prohibitions.</E> Except as provided in§§ 54.400 through 54.455, in providing any aid, benefit, orservice to a student, a recipient shall not, on the basis of sex:</P> <P>(1) Treat one person differently from another in determining whether suchperson satisfies any requirement or condition for the provision of such aid,benefit, or service;</P> <P>(2) Provide different aid, benefits, or services or provide aid, benefits, orservices in a different manner;</P> <P>(3) Deny any person any such aid, benefit, or service;</P> <P>(4) Subject any person to separate or different rules of behavior, sanctions,or other treatment;</P> <P>(5) Apply any rule concerning the domicile or residence of a student orapplicant, including eligibility for in-state fees and tuition;</P> <P>(6) Aid or perpetuate discrimination against any person by providingsignificant assistance to any agency, organization, or person that discriminateson the basis of sex in providing any aid, benefit, or service to students oremployees;</P> <P>(7) Otherwise limit any person in the enjoyment of any right, privilege,advantage, or opportunity.</P> <P>(c) <E T="03">Assistance administered by a recipient educational institutionto study at a foreign institution.</E> A recipient educational institution mayadminister or assist in the administration of scholarships, fellowships, orother awards established by foreign or domestic wills, trusts, or similar legalinstruments, or by acts of foreign governments and restricted to members of onesex, that are designed to provide opportunities to study abroad, and that areawarded to students who are already matriculating at or who are graduates of therecipient institution; <E T="03">Provided,</E> that a recipient educationalinstitution that administers or assists in the administration of suchscholarships, fellowships, or other awards that are restricted to members of onesex provides, or otherwise makes available, reasonable opportunities for similarstudies for members of the other sex. Such opportunities may be derived fromeither domestic or foreign sources.</P> <P>(d) <E T="03">Aids, benefits or services not provided by recipient.</E> (1)This paragraph (d) applies to any recipient that requires participation by anyapplicant, student, or employee in any education program or activity notoperated wholly by such recipient, or that facilitates, permits, or considerssuch participation as part of or equivalent to an education program or activityoperated by such recipient, including participation in educational consortia andcooperative employment and student-teaching assignments.</P> <P>(2) Such recipient:</P> <P>(i) Shall develop and implement a procedure designed to assure itself thatthe operator or sponsor of such other education program or activity takes noaction affecting any applicant, student, or employee of such recipient thatthese Title IX regulations would prohibit such recipient from taking; and</P> <P>(ii) Shall not facilitate, require, permit, or consider such participation ifsuch action occurs.</P> </SECTION> <SECTION> <SECTNO>§ 54.405</SECTNO> <SUBJECT>Housing.</SUBJECT> <P>(a) <E T="03">Generally.</E> A recipient shall not, on the basis of sex,apply different rules or regulations, impose different fees or requirements, oroffer different services or benefits related to housing, except as provided inthis section (including housing provided only to married students).</P> <P>(b) <E T="03">Housing provided by recipient.</E> (1) A recipient may provideseparate housing on the basis of sex.</P> <P>(2) Housing provided by a recipient to students of one sex, when compared tothat provided to students of the other sex, shall be as a whole:</P> <P>(i) Proportionate in quantity to the number of students of that sex applyingfor such housing; and</P> <P>(ii) Comparable in quality and cost to the student.<PRTPAGE P="113"/> </P> <P>(c) <E T="03">Other housing.</E> (1) A recipient shall not, on the basis ofsex, administer different policies or practices concerning occupancy by itsstudents of housing other than that provided by such recipient.</P> <P>(2)(i) A recipient which, through solicitation, listing, approval of housing,or otherwise, assists any agency, organization, or person in making housingavailable to any of its students, shall take such reasonable action as may benecessary to assure itself that such housing as is provided to students of onesex, when compared to that provided to students of the other sex, is as a whole:</P> <P>(A) Proportionate in quantity; and</P> <P>(B) Comparable in quality and cost to the student.</P> <P>(ii) A recipient may render such assistance to any agency, organization, orperson that provides all or part of such housing to students of only one sex.</P> </SECTION> <SECTION> <SECTNO>§ 54.410</SECTNO> <SUBJECT>Comparable facilities.</SUBJECT> <P>A recipient may provide separate toilet, locker room, and shower facilitieson the basis of sex, but such facilities provided for students of one sex shallbe comparable to such facilities provided for students of the other sex.</P> </SECTION> <SECTION> <SECTNO>§ 54.415</SECTNO> <SUBJECT>Access to course offerings.</SUBJECT> <P>(a) A recipient shall not provide any course or otherwise carry out any ofits education program or activity separately on the basis of sex, or require orrefuse participation therein by any of its students on such basis, includinghealth, physical education, industrial, business, vocational, technical, homeeconomics, music, and adult education courses.</P> <P>(b)(1) With respect to classes and activities in physical education at theelementary school level, the recipient shall comply fully with this section asexpeditiously as possible but in no event later than one year from September 29,2000. With respect to physical education classes and activities at the secondaryand post-secondary levels, the recipient shall comply fully with this section asexpeditiously as possible but in no event later than three years from September29, 2000.</P> <P>(2) This section does not prohibit grouping of students in physical educationclasses and activities by ability as assessed by objective standards ofindividual performance developed and applied without regard to sex.</P> <P>(3) This section does not prohibit separation of students by sex withinphysical education classes or activities during participation in wrestling,boxing, rugby, ice hockey, football, basketball, and other sports the purpose ormajor activity of which involves bodily contact.</P> <P>(4) Where use of a single standard of measuring skill or progress in aphysical education class has an adverse effect on members of one sex, therecipient shall use appropriate standards that do not have such effect.</P> <P>(5) Portions of classes in elementary and secondary schools, or portions ofeducation programs or activities, that deal exclusively with human sexuality maybe conducted in separate sessions for boys and girls.</P> <P>(6) Recipients may make requirements based on vocal range or quality that mayresult in a chorus or choruses of one or predominantly one sex.</P> </SECTION> <SECTION> <SECTNO>§ 54.420</SECTNO> <SUBJECT>Access to schools operated by LEAs.</SUBJECT> <P>A recipient that is a local educational agency shall not, on the basis ofsex, exclude any person from admission to:</P> <P>(a) Any institution of vocational education operated by such recipient; or</P> <P>(b) Any other school or educational unit operated by such recipient, unlesssuch recipient otherwise makes available to such person, pursuant to the samepolicies and criteria of admission, courses, services, and facilities comparableto each course, service, and facility offered in or through such schools.</P> </SECTION> <SECTION> <SECTNO>§ 54.425</SECTNO> <SUBJECT>Counseling and use of appraisal and counseling materials.</SUBJECT> <P>(a) <E T="03">Counseling.</E> A recipient shall not discriminate against anyperson on the basis of sex in the counseling or guidance of students orapplicants for admission.</P> <P>(b) <E T="03">Use of appraisal and counseling materials.</E> A recipient thatuses testing or <PRTPAGE P="114"/>other materials for appraising or counseling students shall notuse different materials for students on the basis of their sex or use materialsthat permit or require different treatment of students on such basis unless suchdifferent materials cover the same occupations and interest areas and the use ofsuch different materials is shown to be essential to eliminate sex bias.Recipients shall develop and use internal procedures for ensuring that suchmaterials do not discriminate on the basis of sex. Where the use of a counselingtest or other instrument results in a substantially disproportionate number ofmembers of one sex in any particular course of study or classification, therecipient shall take such action as is necessary to assure itself that suchdisproportion is not the result of discrimination in the instrument or itsapplication.</P> <P>(c) <E T="03">Disproportion in classes.</E> Where a recipient finds that aparticular class contains a substantially disproportionate number of individualsof one sex, the recipient shall take such action as is necessary to assureitself that such disproportion is not the result of discrimination on the basisof sex in counseling or appraisal materials or by counselors.</P> </SECTION> <SECTION> <SECTNO>§ 54.430</SECTNO> <SUBJECT>Financial assistance.</SUBJECT> <P>(a) <E T="03">General.</E> Except as provided in paragraphs (b) and (c) ofthis section, in providing financial assistance to any of its students, arecipient shall not:</P> <P>(1) On the basis of sex, provide different amounts or types of suchassistance, limit eligibility for such assistance that is of any particular typeor source, apply different criteria, or otherwise discriminate;</P> <P>(2) Through solicitation, listing, approval, provision of facilities, orother services, assist any foundation, trust, agency, organization, or personthat provides assistance to any of such recipient's students in a manner thatdiscriminates on the basis of sex; or</P> <P>(3) Apply any rule or assist in application of any rule concerningeligibility for such assistance that treats persons of one sex differently frompersons of the other sex with regard to marital or parental status.</P> <P>(b) <E T="03">Financial aid established by certain legal instruments.</E> (1)A recipient may administer or assist in the administration of scholarships,fellowships, or other forms of financial assistance established pursuant todomestic or foreign wills, trusts, bequests, or similar legal instruments or byacts of a foreign government that require that awards be made to members of aparticular sex specified therein; <E T="03">Provided,</E> that the overalleffect of the award of such sex-restricted scholarships, fellowships, and otherforms of financial assistance does not discriminate on the basis of sex.</P> <P>(2) To ensure nondiscriminatory awards of assistance as required in paragraph(b)(1) of this section, recipients shall develop and use procedures under which:</P> <P>(i) Students are selected for award of financial assistance on the basis ofnondiscriminatory criteria and not on the basis of availability of fundsrestricted to members of a particular sex;</P> <P>(ii) An appropriate sex-restricted scholarship, fellowship, or other form offinancial assistance is allocated to each student selected under paragraph(b)(2)(i) of this section; and</P> <P>(iii) No student is denied the award for which he or she was selected underparagraph (b)(2)(i) of this section because of the absence of a scholarship,fellowship, or other form of financial assistance designated for a member ofthat student's sex.</P> <P>(c) <E T="03">Athletic scholarships.</E> (1) To the extent that a recipientawards athletic scholarships or grants-in-aid, it must provide reasonableopportunities for such awards for members of each sex in proportion to thenumber of students of each sex participating in interscholastic orintercollegiate athletics.</P> <P>(2) A recipient may provide separate athletic scholarships or grants-in-aidfor members of each sex as part of separate athletic teams for members of eachsex to the extent consistent with this paragraph (c) and § 54.450.</P> </SECTION> <SECTION> <PRTPAGE P="115"/> <SECTNO>§ 54.435</SECTNO> <SUBJECT>Employment assistance to students.</SUBJECT> <P>(a) <E T="03">Assistance by recipient in making available outsideemployment.</E> A recipient that assists any agency, organization, or person inmaking employment available to any of its students:</P> <P>(1) Shall assure itself that such employment is made available withoutdiscrimination on the basis of sex; and</P> <P>(2) Shall not render such services to any agency, organization, or personthat discriminates on the basis of sex in its employment practices.</P> <P>(b) <E T="03">Employment of students by recipients.</E> A recipient thatemploys any of its students shall not do so in a manner that violates§§ 54.500 through 54.550.</P> </SECTION> <SECTION> <SECTNO>§ 54.440</SECTNO> <SUBJECT>Health and insurance benefits and services.</SUBJECT> <P>Subject to § 54.235(d), in providing a medical, hospital,accident, or life insurance benefit, service, policy, or plan to any of itsstudents, a recipient shall not discriminate on the basis of sex, or providesuch benefit, service, policy, or plan in a manner that would violate§§ 54.500 through 54.550 if it were provided to employees of therecipient. This section shall not prohibit a recipient from providing anybenefit or service that may be used by a different proportion of students of onesex than of the other, including family planning services. However, anyrecipient that provides full coverage health service shall provide gynecologicalcare.</P> </SECTION> <SECTION> <SECTNO>§ 54.445</SECTNO> <SUBJECT>Marital or parental status.</SUBJECT> <P>(a) <E T="03">Status generally.</E> A recipient shall not apply any ruleconcerning a student's actual or potential parental, family, or marital statusthat treats students differently on the basis of sex.</P> <P>(b) <E T="03">Pregnancy and related conditions.</E> (1) A recipient shall notdiscriminate against any student, or exclude any student from its educationprogram or activity, including any class or extracurricular activity, on thebasis of such student's pregnancy, childbirth, false pregnancy, termination ofpregnancy, or recovery therefrom, unless the student requests voluntarily toparticipate in a separate portion of the program or activity of the recipient.</P> <P>(2) A recipient may require such a student to obtain the certification of aphysician that the student is physically and emotionally able to continueparticipation as long as such a certification is required of all students forother physical or emotional conditions requiring the attention of a physician.</P> <P>(3) A recipient that operates a portion of its education program or activityseparately for pregnant students, admittance to which is completely voluntary onthe part of the student as provided in paragraph (b)(1) of this section, shallensure that the separate portion is comparable to that offered to non-pregnantstudents.</P> <P>(4) Subject to § 54.235(d), a recipient shall treat pregnancy,childbirth, false pregnancy, termination of pregnancy and recovery therefrom inthe same manner and under the same policies as any other temporary disabilitywith respect to any medical or hospital benefit, service, plan, or policy thatsuch recipient administers, operates, offers, or participates in with respect tostudents admitted to the recipient's educational program or activity.</P> <P>(5) In the case of a recipient that does not maintain a leave policy for itsstudents, or in the case of a student who does not otherwise qualify for leaveunder such a policy, a recipient shall treat pregnancy, childbirth, falsepregnancy, termination of pregnancy, and recovery therefrom as a justificationfor a leave of absence for as long a period of time as is deemed medicallynecessary by the student's physician, at the conclusion of which the studentshall be reinstated to the status that she held when the leave began.</P> </SECTION> <SECTION> <SECTNO>§ 54.450</SECTNO> <SUBJECT>Athletics.</SUBJECT> <P>(a) <E T="03">General.</E> No person shall, on the basis of sex, be excludedfrom participation in, be denied the benefits of, be treated differently fromanother person, or otherwise be discriminated against in any interscholastic,intercollegiate, club, or intramural athletics offered by a recipient, and norecipient shall provide any such athletics separately on such basis.</P> <P>(b) <E T="03">Separate teams.</E> Notwithstanding the requirements ofparagraph (a) of this section, a recipient may operate or sponsor separate teamsfor members of each sex where selection for such teams is based upon competitiveskill <PRTPAGE P="116"/>or the activity involved is a contact sport. However, where a recipientoperates or sponsors a team in a particular sport for members of one sex butoperates or sponsors no such team for members of the other sex, and athleticopportunities for members of that sex have previously been limited, members ofthe excluded sex must be allowed to try out for the team offered unless thesport involved is a contact sport. For the purposes of these Title IXregulations, contact sports include boxing, wrestling, rugby, ice hockey,football, basketball, and other sports the purpose or major activity of whichinvolves bodily contact.</P> <P>(c) <E T="03">Equal opportunity.</E> (1) A recipient that operates orsponsors interscholastic, intercollegiate, club, or intramural athletics shallprovide equal athletic opportunity for members of both sexes. In determiningwhether equal opportunities are available, the designated agency official willconsider, among other factors:</P> <P>(i) Whether the selection of sports and levels of competition effectivelyaccommodate the interests and abilities of members of both sexes;</P> <P>(ii) The provision of equipment and supplies;</P> <P>(iii) Scheduling of games and practice time;</P> <P>(iv) Travel and per diem allowance;</P> <P>(v) Opportunity to receive coaching and academic tutoring;</P> <P>(vi) Assignment and compensation of coaches and tutors;</P> <P>(vii) Provision of locker rooms, practice, and competitive facilities;</P> <P>(viii) Provision of medical and training facilities and services;</P> <P>(ix) Provision of housing and dining facilities and services;</P> <P>(x) Publicity.</P> <P>(2) For purposes of paragraph (c)(1) of this section, unequal aggregateexpenditures for members of each sex or unequal expenditures for male and femaleteams if a recipient operates or sponsors separate teams will not constitutenoncompliance with this section, but the designated agency official may considerthe failure to provide necessary funds for teams for one sex in assessingequality of opportunity for members of each sex.</P> <P>(d) <E T="03">Adjustment period.</E> A recipient that operates or sponsorsinterscholastic, intercollegiate, club, or intramural athletics at theelementary school level shall comply fully with this section as expeditiously aspossible but in no event later than one year from September 29, 2000. Arecipient that operates or sponsors interscholastic, intercollegiate, club, orintramural athletics at the secondary or postsecondary school level shall complyfully with this section as expeditiously as possible but in no event later thanthree years from September 29, 2000.</P> </SECTION> <SECTION> <SECTNO>§ 54.455</SECTNO> <SUBJECT>Textbooks and curricular material.</SUBJECT> <P>Nothing in these Title IX regulations shall be interpreted as requiring orprohibiting or abridging in any way the use of particular textbooks orcurricular materials.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Discrimination on the Basis of Sex in Employmentin Education Programs or Activities Prohibited</HD> <SECTION> <SECTNO>§ 54.500</SECTNO> <SUBJECT>Employment.</SUBJECT> <P>(a) <E T="03">General.</E> (1) No person shall, on the basis of sex, beexcluded from participation in, be denied the benefits of, or be subjected todiscrimination in employment, or recruitment, consideration, or selectiontherefor, whether full-time or part-time, under any education program oractivity operated by a recipient that receives Federal financial assistance.</P> <P>(2) A recipient shall make all employment decisions in any education programor activity operated by such recipient in a nondiscriminatory manner and shallnot limit, segregate, or classify applicants or employees in any way that couldadversely affect any applicant's or employee's employment opportunities orstatus because of sex.</P> <P>(3) A recipient shall not enter into any contractual or other relationshipwhich directly or indirectly has the effect of subjecting employees or studentsto discrimination prohibited by §§ 54.500 through 54.550,including relationships with employment and referral agencies, with laborunions, and <PRTPAGE P="117"/>with organizations providing or administering fringe benefits toemployees of the recipient.</P> <P>(4) A recipient shall not grant preferences to applicants for employment onthe basis of attendance at any educational institution or entity that admits asstudents only or predominantly members of one sex, if the giving of suchpreferences has the effect of discriminating on the basis of sex in violation ofthese Title IX regulations.</P> <P>(b) <E T="03">Application.</E> The provisions of §§ 54.500through 54.550 apply to:</P> <P>(1) Recruitment, advertising, and the process of application for employment;</P> <P>(2) Hiring, upgrading, promotion, consideration for and award of tenure,demotion, transfer, layoff, termination, application of nepotism policies, rightof return from layoff, and rehiring;</P> <P>(3) Rates of pay or any other form of compensation, and changes incompensation;</P> <P>(4) Job assignments, classifications, and structure, including positiondescriptions, lines of progression, and seniority lists;</P> <P>(5) The terms of any collective bargaining agreement;</P> <P>(6) Granting and return from leaves of absence, leave for pregnancy,childbirth, false pregnancy, termination of pregnancy, leave for persons ofeither sex to care for children or dependents, or any other leave;</P> <P>(7) Fringe benefits available by virtue of employment, whether or notadministered by the recipient;</P> <P>(8) Selection and financial support for training, including apprenticeship,professional meetings, conferences, and other related activities, selection fortuition assistance, selection for sabbaticals and leaves of absence to pursuetraining;</P> <P>(9) Employer-sponsored activities, including social or recreational programs;and</P> <P>(10) Any other term, condition, or privilege of employment.</P> </SECTION> <SECTION> <SECTNO>§ 54.505</SECTNO> <SUBJECT>Employment criteria.</SUBJECT> <P>A recipient shall not administer or operate any test or other criterion forany employment opportunity that has a disproportionately adverse effect onpersons on the basis of sex unless:</P> <P>(a) Use of such test or other criterion is shown to predict validlysuccessful performance in the position in question; and</P> <P>(b) Alternative tests or criteria for such purpose, which do not have suchdisproportionately adverse effect, are shown to be unavailable.</P> </SECTION> <SECTION> <SECTNO>§54.510</SECTNO> <SUBJECT>Recruitment.</SUBJECT> <P>(a) <E T="03">Nondiscriminatory recruitment and hiring.</E> A recipient shallnot discriminate on the basis of sex in the recruitment and hiring of employees.Where a recipient has been found to be presently discriminating on the basis ofsex in the recruitment or hiring of employees, or has been found to have sodiscriminated in the past, the recipient shall recruit members of the sex sodiscriminated against so as to overcome the effects of such past or presentdiscrimination.</P> <P>(b) <E T="03">Recruitment patterns.</E> A recipient shall not recruitprimarily or exclusively at entities that furnish as applicants only orpredominantly members of one sex if such actions have the effect ofdiscriminating on the basis of sex in violation of §§54.500 through54.550.</P> </SECTION> <SECTION> <SECTNO>§54.515</SECTNO> <SUBJECT>Compensation.</SUBJECT> <P>A recipient shall not make or enforce any policy or practice that, on thebasis of sex:</P> <P>(a) Makes distinctions in rates of pay or other compensation;</P> <P>(b) Results in the payment of wages to employees of one sex at a rate lessthan that paid to employees of the opposite sex for equal work on jobs theperformance of which requires equal skill, effort, and responsibility, and thatare performed under similar working conditions.</P> </SECTION> <SECTION> <SECTNO>§54.520</SECTNO> <SUBJECT>Job classification and structure.</SUBJECT> <P>A recipient shall not:</P> <P>(a) Classify a job as being for males or for females;</P> <P>(b) Maintain or establish separate lines of progression, seniority lists,career ladders, or tenure systems based on sex; or</P> <P>(c) Maintain or establish separate lines of progression, seniority systems,career ladders, or tenure systems for <PRTPAGE P="118"/>similar jobs, position descriptions, orjob requirements that classify persons on the basis of sex, unless sex is a bonafide occupational qualification for the positions in question as set forth in§54.550.</P> </SECTION> <SECTION> <SECTNO>§54.525</SECTNO> <SUBJECT>Fringe benefits.</SUBJECT> <P>(a) <E T="03">“Fringe benefits” defined.</E> For purposes ofthese Title IX regulations, <E T="03">fringe benefits</E> means: Any medical,hospital, accident, life insurance, or retirement benefit, service, policy orplan, any profit-sharing or bonus plan, leave, and any other benefit or serviceof employment not subject to the provision of §54.515.</P> <P>(b) <E T="03">Prohibitions.</E> A recipient shall not:</P> <P>(1) Discriminate on the basis of sex with regard to making fringe benefitsavailable to employees or make fringe benefits available to spouses, families,or dependents of employees differently upon the basis of the employee's sex;</P> <P>(2) Administer, operate, offer, or participate in a fringe benefit plan thatdoes not provide for equal periodic benefits for members of each sex and forequal contributions to the plan by such recipient for members of each sex; or</P> <P>(3) Administer, operate, offer, or participate in a pension or retirementplan that establishes different optional or compulsory retirement ages based onsex or that otherwise discriminates in benefits on the basis of sex.</P> </SECTION> <SECTION> <SECTNO>§54.530</SECTNO> <SUBJECT>Marital or parental status.</SUBJECT> <P>(a) <E T="03">General.</E> A recipient shall not apply any policy or take anyemployment action:</P> <P>(1) Concerning the potential marital, parental, or family status of anemployee or applicant for employment that treats persons differently on thebasis of sex; or</P> <P>(2) Which is based upon whether an employee or applicant for employment isthe head of household or principal wage earner in such employee's or applicant'sfamily unit.</P> <P>(b) <E T="03">Pregnancy.</E> A recipient shall not discriminate against orexclude from employment any employee or applicant for employment on the basis ofpregnancy, childbirth, false pregnancy, termination of pregnancy, or recoverytherefrom.</P> <P>(c) <E T="03">Pregnancy as a temporary disability.</E> Subject to§54.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy,termination of pregnancy, recovery therefrom, and any temporary disabilityresulting therefrom as any other temporary disability for all job-relatedpurposes, including commencement, duration, and extensions of leave, payment ofdisability income, accrual of seniority and any other benefit or service, andreinstatement, and under any fringe benefit offered to employees by virtue ofemployment.</P> <P>(d) <E T="03">Pregnancy leave.</E> In the case of a recipient that does notmaintain a leave policy for its employees, or in the case of an employee withinsufficient leave or accrued employment time to qualify for leave under such apolicy, a recipient shall treat pregnancy, childbirth, false pregnancy,termination of pregnancy, and recovery therefrom as a justification for a leaveof absence without pay for a reasonable period of time, at the conclusion ofwhich the employee shall be reinstated to the status that she held when theleave began or to a comparable position, without decrease in rate ofcompensation or loss of promotional opportunities, or any other right orprivilege of employment.</P> </SECTION> <SECTION> <SECTNO>§54.535</SECTNO> <SUBJECT>Effect of state or local law or other requirements.</SUBJECT> <P>(a) <E T="03">Prohibitory requirements.</E> The obligation to comply with§§54.500 through 54.550 is not obviated or alleviated by the existenceof any State or local law or other requirement that imposes prohibitions orlimits upon employment of members of one sex that are not imposed upon membersof the other sex.</P> <P>(b) <E T="03">Benefits.</E> A recipient that provides any compensation,service, or benefit to members of one sex pursuant to a State or local law orother requirement shall provide the same compensation, service, or benefit tomembers of the other sex.</P> </SECTION> <SECTION> <SECTNO>§54.540</SECTNO> <SUBJECT>Advertising.</SUBJECT> <P>A recipient shall not in any advertising related to employment indicatepreference, limitation, specification, or discrimination based on sex unless sexis a bona fide occupational qualification for the particular job in question.</P> </SECTION> <SECTION> <PRTPAGE P="119"/> <SECTNO>§54.545</SECTNO> <SUBJECT>Pre-employment inquiries.</SUBJECT> <P>(a) <E T="03">Marital status.</E> A recipient shall not make pre-employmentinquiry as to the marital status of an applicant for employment, includingwhether such applicant is “Miss” or “Mrs.”</P> <P>(b) <E T="03">Sex.</E> A recipient may make pre-employment inquiry as to thesex of an applicant for employment, but only if such inquiry is made equally ofsuch applicants of both sexes and if the results of such inquiry are not used inconnection with discrimination prohibited by these Title IX regulations.</P> </SECTION> <SECTION> <SECTNO>§54.550</SECTNO> <SUBJECT>Sex as a bona fide occupational qualification.</SUBJECT> <P>A recipient may take action otherwise prohibited by §§54.500through 54.550 provided it is shown that sex is a bona fide occupationalqualification for that action, such that consideration of sex with regard tosuch action is essential to successful operation of the employment functionconcerned. A recipient shall not take action pursuant to this section that isbased upon alleged comparative employment characteristics or stereotypedcharacterizations of one or the other sex, or upon preference based on sex ofthe recipient, employees, students, or other persons, but nothing contained inthis section shall prevent a recipient from considering an employee's sex inrelation to employment in a locker room or toilet facility used only by membersof one sex.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedures</HD> <SECTION> <SECTNO>§54.600</SECTNO> <SUBJECT>Notice of covered programs.</SUBJECT> <P>Within 60 days of September 29, 2000, each Federal agency that awards Federalfinancial assistance shall publish in the <E T="04">Federal Register</E> anotice of the programs covered by these Title IX regulations. Each such Federalagency shall periodically republish the notice of covered programs to reflectchanges in covered programs. Copies of this notice also shall be made availableupon request to the Federal agency's office that enforces Title IX.</P> </SECTION> <SECTION> <SECTNO>§ 54.605</SECTNO> <SUBJECT>Enforcement procedures.</SUBJECT> <P>The investigative, compliance, and enforcement procedural provisions of TitleVI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (“Title VI”)are hereby adopted and applied to these Title IX regulations. These proceduresmay be found at 28 CFR 42.106 through 42.111.</P> <CITA>[Order No. 2320-2000, 65 FR 52881, Aug. 30, 2000]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 55</EAR> <HD SOURCE="HED">PART 55—IMPLEMENTATION OF THE PROVISIONS OF THEVOTING RIGHTS ACT REGARDING LANGUAGE MINORITY GROUPS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>55.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>55.2</SECTNO> <SUBJECT>Purpose; standards for measuring compliance.</SUBJECT> <SECTNO>55.3</SECTNO> <SUBJECT>Statutory requirements.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Nature of Coverage</HD> <SECTNO>55.4</SECTNO> <SUBJECT>Effective date; list of covered jurisdictions.</SUBJECT> <SECTNO>55.5</SECTNO> <SUBJECT>Coverage under section 4(f)(4).</SUBJECT> <SECTNO>55.6</SECTNO> <SUBJECT>Coverage under section 203(c).</SUBJECT> <SECTNO>55.7</SECTNO> <SUBJECT>Termination of coverage.</SUBJECT> <SECTNO>55.8</SECTNO> <SUBJECT>Relationship between section 4(f)(4) and section 203(c).</SUBJECT> <SECTNO>55.9</SECTNO> <SUBJECT>Coverage of political units within a county.</SUBJECT> <SECTNO>55.10</SECTNO> <SUBJECT>Types of elections covered.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Determining the Exact Language</HD> <SECTNO>55.11</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>55.12</SECTNO> <SUBJECT>Language used for written material.</SUBJECT> <SECTNO>55.13</SECTNO> <SUBJECT>Language used for oral assistance and publicity.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Minority Language Materials and Assistance</HD> <SECTNO>55.14</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>55.15</SECTNO> <SUBJECT>Affected activities.</SUBJECT> <SECTNO>55.16</SECTNO> <SUBJECT>Standards and proof of compliance.</SUBJECT> <SECTNO>55.17</SECTNO> <SUBJECT>Targeting.</SUBJECT> <SECTNO>55.18</SECTNO> <SUBJECT>Provision of minority language materials and assistance.</SUBJECT> <SECTNO>55.19</SECTNO> <SUBJECT>Written materials.</SUBJECT> <SECTNO>55.20</SECTNO> <SUBJECT>Oral assistance and publicity.</SUBJECT> <SECTNO>55.21</SECTNO> <SUBJECT>Record keeping.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Preclearance</HD> <SECTNO>55.22</SECTNO> <SUBJECT>Requirements of section 5 of the Act.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Sanctions</HD> <SECTNO>55.23</SECTNO> <SUBJECT>Enforcement by the Attorney General.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Comment on This Part</HD> <SECTNO>55.24</SECTNO> <SUBJECT>Procedure.<PRTPAGE P="120"/> </SUBJECT> <APP>Appendix to Part 55—Jurisdictions Covered Under Sections <E T="01">4(f)(4)</E> and <E T="01">203(c)</E> of the Voting Rights Act of 1965, asAmended</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1973b,1973j(d), 1973aa-la, 1973aa-2.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 655-76, 41 FR 29998, July 20, 1976,unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 55.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part—</P> <P> <E T="03">Act</E> means the Voting Rights Act of 1965, 79 Stat. 437, asamended by the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights ActAmendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act, 84Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400, the VotingRights Act Amendments of 1982, 96 Stat. 131, and the Voting Rights LanguageAssistance Act of 1992, Public Law 102-344, 106 Stat. 921, 42 U.S.C. 1973<E T="03">et seq.</E> Section numbers, such as “section 14(c)(3),”refer to sections of the Act.</P> <P> <E T="03">Attorney General</E> means the Attorney General of the UnitedStates.</P> <P> <E T="03">Language minorities</E> or <E T="03">language minority group</E> isused, as defined in the Act, to refer to persons who are American Indian, AsianAmerican, Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and203(e)).</P> <P> <E T="03">Political subdivision</E> is used, as defined in the Act, to referto “any county or parish, except that where registration for voting is notconducted under the supervision of a county or parish, the term shall includeany other subdivision of a State which conducts registration for voting.”(Section 14(c)(2)).</P> <CITA>[Order 1246-87, 53 FR 735, Jan. 12, 1988, as amended by Order No.1752-93, 58 FR 35372, July 1, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.2</SECTNO> <SUBJECT>Purpose; standards for measuring compliance.</SUBJECT> <P>(a) The purpose of this part is to set forth the Attorney General'sinterpretation of the provisions of the Voting Rights Act which require certainStates and political subdivisions to conduct elections in the language ofcertain “language minority groups” in addition to English.</P> <P>(b) In the Attorney General's view the objective of the Act's provisions isto enable members of applicable language minority groups to participateeffectively in the electoral process. This part establishes two basic standardsby which the Attorney General will measure compliance:</P> <P>(1) That materials and assistance should be provided in a way designed toallow members of applicable language minority groups to be effectively informedof and participate effectively in voting-connected activities; and</P> <P>(2) That an affected jurisdiction should take all reasonable steps to achievethat goal.</P> <P>(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. Theseguidelines should not be used as a substitute for analysis and decision by theaffected jurisdiction.</P> <P>(d) Jurisdictions covered under section 4(f)(4) of the Act are subject to thepreclearance requirements of section 5. See part 51 of this chapter. Suchjurisdictions have the burden of establishing to the satisfaction of theAttorney General or to the U.S. District Court for the District of Columbia thatchanges made in their election laws and procedures in order to comply with therequirements of section 4(f)(4) are not discriminatory under the terms ofsection 5. However, section 5 expressly provides that the failure of theAttorney General to object does not bar any subsequent judicial action to enjointhe enforcement of the changes.</P> <P>(e) Jurisdictions covered solely under section 203(c) of the Act are notsubject to the preclearance requirements of section 5, nor is there a Federalapparatus available for preclearance of section 203(c) compliance activities.The Attorney General will not preclear jurisdictions' proposals for compliancewith section 203(c).</P> <P>(f) Consideration by the Attorney General of a jurisdiction's compliance withthe requirements of section 4(f)(4) occurs in the review pursuant to section 5of the Act of changes with respect to voting, in the consideration of the needfor litigation to enforce the requirements of section 4(f)(4), and in thedefense of suits for termination of coverage under section 4(f)(4).Consideration by the Attorney General of a <PRTPAGE P="121"/>jurisdiction's compliance with therequirements of section 203(c) occurs in the consideration of the need forlitigation to enforce the requirements of section 203(c).</P> <P>(g) In enforcing the Act—through the section 5 preclearance reviewprocess, through litigation, and through defense of suits for termination ofcoverage under section 4(f)(4)—the Attorney General will follow thegeneral policies set forth in this part.</P> <P>(h) This part is not intended to preclude affected jurisdictions from takingadditional steps to further the policy of the Act. By virtue of the SupremacyClause of Art. VI of the Constitution, the provisions of the Act override anyinconsistent State law.</P> <CITA>[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order1246-87, 53 FR 736, Jan. 12, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.3</SECTNO> <SUBJECT>Statutory requirements.</SUBJECT> <P>The Act's requirements concerning the conduct of elections in languages inaddition to English are contained in section 4(f)(4) and section 203(c). Thesesections 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 applicablelanguage minority group as well as in * * * English.* * *”</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Nature of Coverage</HD> <SECTION> <SECTNO>§ 55.4</SECTNO> <SUBJECT>Effective date; list of covered jurisdictions.</SUBJECT> <P>(a) The minority language provisions of the Voting Rights Act were added bythe Voting Rights Act Amendments of 1975.</P> <P>(1) The requirements of section 4(f)(4) take effect upon publication in the<E T="04">Federal Register</E> of the requisite determinations of the Directorof the Census and the Attorney General. Such determinations are not reviewablein any court.</P> <P>(2) The requirements of section 203(c) take effect upon publication in the <E T="04">Federal Register</E> of the requisite determinations of the Director ofthe Census. Such determinations are not reviewable in any court.</P> <P>(b) Jurisdictions determined to be covered under section 4(f)(4) or section203(c) are listed, together with the language minority group with respect towhich coverage was determined, in the appendix to this part. Any additionaldeterminations of coverage under either section 4(f)(4) or section 203(c) willbe published in the <E T="04">Federal Register.</E> </P> <CITA>[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order1246-87, 53 FR 736, Jan. 12, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.5</SECTNO> <SUBJECT>Coverage under section 4(f)(4).</SUBJECT> <P>(a) <E T="03">Coverage formula.</E> Section 4(f)(4) applies to any State orpolitical subdivision in which</P> <P>(1) Over five percent of the voting-age citizens were, on November 1, 1972,members of a single language minority group,</P> <P>(2) Registration and election materials were provided only in English onNovember 1, 1972, and</P> <P>(3) Fewer than 50 percent of the voting-age citizens were registered to voteor voted in the 1972 Presidential election.</P> <FP>All three conditions must be satisfied before coverage exists under section4(f)(4). <SU>1</SU> <FTREF/> </FP> <FTNT> <P> <SU>1</SU> Coverage is based on sections 4(b) (third sentence),4(c), and 4(f)(3).</P> </FTNT> <P>(b) Coverage may be determined with regard to section 4(f)(4) on a statewideor political subdivision basis.</P> <P>(1) Whenever the determination is made that the bilingual requirements ofsection 4(f)(4) are applicable to an entire State, these requirements apply toeach of the State's political subdivisions as well as to the State. In otherwords, each political subdivision within a covered State is subject to the samerequirements as the State.</P> <P>(2) Where an entire State is not covered under section 4(f)(4), individualpolitical subdivisions may be covered.</P> </SECTION> <SECTION> <SECTNO>§ 55.6</SECTNO> <SUBJECT>Coverage under section 203(c).</SUBJECT> <P>(a) <E T="03">Coverage formula.</E> There are four ways in which a politicalsubdivision can become subject to section 203(c). <SU>2</SU> <FTREF/> </P> <FTNT> <P> <SU>2</SU> The criteria for coverage are contained in section203(b).</P> </FTNT> <PRTPAGE P="122"/> <P>(1) <E T="03">Political subdivision approach.</E> A political subdivision iscovered if—</P> <P>(i) More than 5 percent of its voting age citizens are members of a singlelanguage minority group and are limited-English proficient; and</P> <P>(ii) The illiteracy rate of such language minority citizens in the politicalsubdivision is higher than the national illiteracy rate.</P> <P>(2) <E T="03">State approach.</E> A political subdivision is coveredif—</P> <P>(i) It is located in a state in which more than 5 percent of the voting agecitizens are members of a single language minority and are limited-Englishproficient;</P> <P>(ii) The illiteracy rate of such language minority citizens in the state ishigher than the national illiteracy rate; and</P> <P>(iii) Five percent or more of the voting age citizens of the politicalsubdivision are members of such language minority group and are limited-Englishproficient.</P> <P>(3) <E T="03">Numerical approach.</E> A political subdivision is coveredif—</P> <P>(i) More than 10,000 of its voting age citizens are members of a singlelanguage minority group and are limited-English proficient; and</P> <P>(ii) The illiteracy rate of such language minority citizens in the politicalsubdivision is higher than the national illiteracy rate.</P> <P>(4) <E T="03">Indian reservation approach.</E> A political subdivision iscovered if there is located within its borders all or any part of an Indianreservation—</P> <P>(i) In which more than 5 percent of the voting age American Indian or AlaskaNative citizens are members of a single language minority group and are limited-English proficient; and</P> <P>(ii) The illiteracy rate of such language minority citizens is higher thanthe national illiteracy rate.</P> <P>(b) <E T="03">Definitions.</E> For the purpose of determinations of coverageunder section 203(c), <E T="03">limited-English proficient</E> means unable tospeak or understand English adequately enough to participate in the electoralprocess; <E T="03">Indian reservation</E> means any area that is an AmericanIndian or Alaska Native area, as defined by the Census Bureau for the purposesof the 1990 decennial census; and <E T="03">illiteracy</E> means the failure tocomplete the fifth primary grade.</P> <P>(c) <E T="03">Determinations.</E> Determinations of coverage under section203(c) are made with regard to specific language groups of the languageminorities listed in section 203(e).</P> <CITA>[Order No. 1752-93, 58 FR 35372, July 1, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.7</SECTNO> <SUBJECT>Termination of coverage.</SUBJECT> <P>(a) <E T="03">Section 4(f)(4).</E> A covered State, a political subdivisionof a covered State, or a separately covered political subdivision may terminatethe application of section 4(f)(4) by obtaining the declaratory judgmentdescribed in section 4(a) of the Act.</P> <P>(b) <E T="03">Section 203(c).</E> The requirements of section 203(c) applyuntil August 6, 2007. A covered jurisdiction may terminate such coverage earlierif it can prove in a declaratory judgment action in a United States districtcourt, that the illiteracy rate of the applicable language minority group isequal to or less than the national illiteracy rate.</P> <CITA>[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order1246-87, 53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373,July 1, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.8</SECTNO> <SUBJECT>Relationship between section 4(f)(4) and section 203(c).</SUBJECT> <P>(a) The statutory requirements of section 4(f)(4) and section 203(c)regarding minority language material and assistance are essentially identical.</P> <P>(b) Jurisdictions subject to the requirements of section 4(f)(4)—butnot jurisdictions subject only to the requirements of section 203(c)—arealso subject to the Act's special provisions, such as section 5 (regardingpreclearance of changes in voting laws) and section 6 (regarding Federalexaminers). <SU>3</SU> <FTREF/> See part 51 of this chapter.</P> <FTNT> <P> <SU>3</SU> In addition, a jurisdiction covered under section203(c) but not under section 4(f)(4) is subject to the Act's special provisionsif it was covered under section 4(b) prior to the 1975 Amendments to theAct.</P> </FTNT> <P>(c) Although the coverage formulas applicable to section 4(f)(4) and section203(c) are different, a political subdivision may be included within both of thecoverage formulas. Under these circumstances, a judgment terminating coverage ofthe jurisdiction under one <PRTPAGE P="123"/>provision would not have the effect of terminatingcoverage under the other provision.</P> </SECTION> <SECTION> <SECTNO>§ 55.9</SECTNO> <SUBJECT>Coverage of political units within a county.</SUBJECT> <P>Where a political subdivision (e.g., a county) is determined to be subject tosection 4(f)(4) or section 203(c), all political units that hold electionswithin that political subdivision (e.g., cities, school districts) are subjectto the same requirements as the political subdivision.</P> </SECTION> <SECTION> <SECTNO>§ 55.10</SECTNO> <SUBJECT>Types of elections covered.</SUBJECT> <P>(a) <E T="03">General.</E> The language provisions of the Act apply toregistration for and voting in any type of election, whether it is a primary,general or special election. Section 14(c)(1). This includes elections ofofficers as well as elections regarding such matters as bond issues,constitutional amendments and referendums. Federal, State and local electionsare covered as are elections of special districts, such as school districts andwater districts.</P> <P>(b) <E T="03">Elections for statewide office.</E> If an election conducted bya county relates to Federal or State offices or issues as well as county officesor issues, a county subject to the bilingual requirements must insure compliancewith those requirements with respect to all aspects of the election, i.e., theminority language material and assistance must deal with the Federal and Stateoffices or issues as well as county offices or issues.</P> <P>(c) <E T="03">Multi-county districts.</E> Regarding elections for an officerepresenting more than one county, e.g., State legislative districts and specialdistricts that include portions of two or more counties, the bilingualrequirements are applicable on a county-by-county basis. Thus, minority languagematerial and assistance need not be provided by the government in counties notsubject to the bilingual requirements of the Act.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Determining the Exact Language</HD> <SECTION> <SECTNO>§ 55.11</SECTNO> <SUBJECT>General.</SUBJECT> <P>The requirements of section 4(f)(4) or section 203(c) apply with respect tothe languages of language minority groups. The applicable groups are indicatedin the determinations of the Attorney General or the Director of the Census.This subpart relates to the view of the Attorney General concerning thedetermination by covered jurisdictions of precisely the language to be employed.In enforcing the Act, the Attorney General will consider whether the languages,forms of languages, or dialects chosen by covered jurisdictions for use in theelectoral process enable members of applicable language minority groups toparticipate effectively in the electoral process. It is the responsibility ofcovered jurisdictions to determine what languages, forms of languages, ordialects will be effective. For those jurisdictions covered under section203(c), the coverage determination (indicated in the appendix) specifies theparticular language for which the jurisdiction was covered and which thus, undersection 203(c), is required to be used.</P> <CITA>[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order1246-87, 53 FR 736, Jan. 12, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.12</SECTNO> <SUBJECT>Language used for written material.</SUBJECT> <P>(a) <E T="03">Language minority groups having more than one language.</E>Some language minority groups, for example, Filipino Americans, have more thanone language other than English. A jurisdiction required to provide electionmaterials in the language of such a group need not provide materials in morethan one language other than English. The Attorney General will consider whetherthe language that is used for election materials is the one most widely used bythe jurisdiction's voting-age citizens who are members of the language minoritygroup.</P> <P>(b) <E T="03">Languages with more than one written form.</E> Some languages,for example, Japanese, have more than one written form. A jurisdiction requiredto provide election materials in such a language need not provide more than oneversion. The Attorney General will consider whether the particular version ofthe language that is used for election materials is the one most widely used bythe jurisdiction's voting-age <PRTPAGE P="124"/>citizens who are members of the language minoritygroup.</P> <P>(c) <E T="03">Unwritten languages.</E> Many of the languages used by languageminority groups, for example, by some American Indians and Alaskan Natives, areunwritten. With respect to any such language, only oral assistance and publicityare required. Even though a written form for a language may exist, a languagemay be considered unwritten if it is not commonly used in a written form. It isthe responsibility of the covered jurisdiction to determine whether a languageshould be considered written or unwritten.</P> </SECTION> <SECTION> <SECTNO>§ 55.13</SECTNO> <SUBJECT>Language used for oral assistance and publicity.</SUBJECT> <P>(a) <E T="03">Languages with more than one dialect.</E> Some languages, forexample, Chinese, have several dialects. Where a jurisdiction is obligated toprovide oral assistance in such a language, the jurisdiction's obligation is toascertain the dialects that are commonly used by members of the applicablelanguage minority group in the jurisdiction and to provide oral assistance insuch dialects. (See § 55.20.)</P> <P>(b) <E T="03">Language minority groups having more than one language.</E> Insome jurisdictions members of an applicable language minority group speak morethan one language other than English. Where a jurisdiction is obligated toprovide oral assistance in the language of such a group, the jurisdiction'sobligation is to ascertain the languages that are commonly used by members ofthat group in the jurisdiction and to provide oral assistance in such languages.(See § 55.20)</P> <CITA>[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order1246-87, 53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373,July 1, 1993]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Minority Language Materials and Assistance</HD> <SECTION> <SECTNO>§ 55.14</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) This subpart sets forth the views of the Attorney General with respect tothe requirements of section 4(f)(4) and section 203(c) concerning the provisionof minority language materials and assistance and some of the factors that theAttorney General will consider in carrying out his responsibilities to enforcesection 4(f)(4) and section 203(c). Through the use of his authority undersection 5 and his authority to bring suits to enforce section 4(f)(4) andsection 203(c), the Attorney General will seek to prevent or remedydiscrimination against members of language minority groups based on the failureto use the applicable minority language in the electoral process. The AttorneyGeneral also has the responsibility to defend against suits brought for thetermination of coverage under section 4(f)(4) and section 203(c).</P> <P>(b) In discharging these responsibilities the Attorney General will respondto complaints received, conduct on his own initiative inquiries and surveysconcerning compliance, and undertake other enforcement activities.</P> <P>(c) It is the responsibility of the jurisdiction to determine what actions byit are required for compliance with the requirements of section 4(f)(4) andsection 203(c) and to carry out these actions.</P> </SECTION> <SECTION> <SECTNO>§ 55.15</SECTNO> <SUBJECT>Affected activities.</SUBJECT> <P>The requirements of sections 4(f)(4) and 203(c) apply with regard to theprovision 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 allowmembers of applicable language minority groups to be effectively informed of andparticipate effectively in voting-connected activities. Accordingly, the quotedlanguage should be broadly construed to apply to all stages of the electoralprocess, from voter registration through activities related to conductingelections, including, for example the issuance, at any time during the year, ofnotifications, announcements, or other informational materials concerning theopportunity to register, the deadline for voter registration, the time, placesand subject matters of elections, and the absentee voting process.</P> </SECTION> <SECTION> <SECTNO>§ 55.16</SECTNO> <SUBJECT>Standards and proof of compliance.</SUBJECT> <P>Compliance with the requirements of section 4(f)(4) and section 203(c) isbest <PRTPAGE P="125"/>measured by results. A jurisdiction is more likely to achieve compliancewith these requirements if it has worked with the cooperation of and to thesatisfaction of organizations representing members of the applicable languageminority group. In planning its compliance with section 4(f)(4) or section203(c), a jurisdiction may, where alternative methods of compliance areavailable, use less costly methods if they are equivalent to more costly methodsin their effectiveness.</P> </SECTION> <SECTION> <SECTNO>§ 55.17</SECTNO> <SUBJECT>Targeting.</SUBJECT> <P>The term “targeting” is commonly used in discussions of therequirements of section 4(f)(4) and section 203(c). “Targeting”refers to a system in which the minority language materials or assistancerequired 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 normallyfulfill the Act's minority language requirements if it is designed andimplemented in such a way that language minority group members who need minoritylanguage materials and assistance receive them.</P> <CITA>[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by OrderNo. 1752-93, 58 FR 35373, July 1, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.18</SECTNO> <SUBJECT>Provision of minority language materials and assistance.</SUBJECT> <P>(a) <E T="03">Materials provided by mail.</E> If materials provided by mail(or by some comparable form of distribution) generally to residents orregistered voters are not all provided in the applicable minority language, theAttorney General will consider whether an effective targeting system has beendeveloped. For example, a separate mailing of materials in the minority languageto persons who are likely to need them or to residents of neighborhoods in whichsuch a need is likely to exist, supplemented by a notice of the availability ofminority language materials in the general mailing (in English and in theapplicable minority language) and by other publicity regarding the availabilityof such materials may be sufficient.</P> <P>(b) <E T="03">Public notices.</E> The Attorney General will consider whetherpublic notices and announcements of electoral activities are handled in a mannerthat provides members of the applicable language minority group an effectiveopportunity to be informed about electoral activities.</P> <P>(c) <E T="03">Registration.</E> The Attorney General will consider whetherthe registration system is conducted in such a way that members of theapplicable language minority group have an effective opportunity to register.One method of accomplishing this is to provide, in the applicable minoritylanguage, all notices, forms and other materials provided to potentialregistrants and to have only bilingual persons as registrars. Effective resultsmay also be obtained, for example, through the use of deputy registrars who aremembers of the applicable language minority group and the use of decentralizedplaces of registration, with minority language materials available at placeswhere persons who need them are most likely to come to register.</P> <P>(d) <E T="03">Polling place activities.</E> The Attorney General willconsider whether polling place activities are conducted in such a way thatmembers of the applicable language minority group have an effective opportunityto vote. One method of accomplishing this is to provide all notices,instructions, ballots, and other pertinent materials and oral assistance in theapplicable minority language. If very few of the registered voters scheduled tovote at a particular polling place need minority language materials orassistance, the Attorney General will consider whether an alternative systemenabling those few to cast effective ballots is available.</P> <P>(e) <E T="03">Publicity.</E> The Attorney General will consider whether acovered jurisdiction has taken appropriate steps to publicize the availabilityof materials and assistance in the minority language. Such steps may include thedisplay of appropriate notices, in the minority language, at voter registrationoffices, polling places, etc., the making of announcements over minoritylanguage radio or television stations, the publication of notices in minoritylanguage newspapers, and direct contact <PRTPAGE P="126"/>with language minority grouporganizations.</P> <CITA>[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by OrderNo. 733-77, 42 FR 35970, July 13, 1977]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.19</SECTNO> <SUBJECT>Written materials.</SUBJECT> <P>(a) <E T="03">Types of materials.</E> It is the obligation of thejurisdiction to decide what materials must be provided in a minority language. Ajurisdiction required to provide minority language materials is only required topublish in the language of the applicable language minority group materialsdistributed to or provided for the use of the electorate generally. Suchmaterials include, for example, ballots, sample ballots, informationalmaterials, and petitions.</P> <P>(b) <E T="03">Accuracy, completeness.</E> It is essential that materialprovided in the language of a language minority group be clear, complete andaccurate. In examining whether a jurisdiction has achieved compliance with thisrequirement, the Attorney General will consider whether the jurisdiction hasconsulted with members of the applicable language minority group with respect tothe translation of materials.</P> <P>(c) <E T="03">Ballots.</E> The Attorney General will consider whether ajurisdiction provides the English and minority language versions on the samedocument. Lack of such bilingual preparation of ballots may give rise to thepossibility, or to the appearance, that the secrecy of the ballot will be lostif a separate minority language ballot or voting machine is used.</P> <P>(d) <E T="03">Voting machines.</E> Where voting machines that cannotmechanically accommodate a ballot in English and in the applicable minoritylanguage are used, the Attorney General will consider whether the jurisdictionprovides sample ballots for use in the polling booths. Where such sample ballotsare used the Attorney General will consider whether they contain a complete andaccurate translation of the English ballots, and whether they contain or areaccompanied by instructions in the minority language explaining the operation ofthe voting machine. The Attorney General will also consider whether the sampleballots are displayed so that they are clearly visible and at the same level asthe machine ballot on the inside of the polling booth, whether the sampleballots are identical in layout to the machine ballots, and whether their sizeand typeface are the same as that appearing on the machine ballots. Where spacelimitations preclude affixing the translated sample ballots to the inside ofpolling booths, the Attorney General will consider whether language minoritygroup voters are allowed to take the sample ballots into the voting booths.</P> </SECTION> <SECTION> <SECTNO>§ 55.20</SECTNO> <SUBJECT>Oral assistance and publicity.</SUBJECT> <P>(a) <E T="03">General.</E> Announcements, publicity, and assistance should begiven in oral form to the extent needed to enable members of the applicablelanguage minority group to participate effectively in the electoral process.</P> <P>(b) <E T="03">Assistance.</E> The Attorney General will consider whether ajurisdiction has given sufficient attention to the needs of language minoritygroup members who cannot effectively read either English or the applicableminority language and to the needs of members of language minority groups whoselanguages are unwritten.</P> <P>(c) <E T="03">Helpers.</E> With respect to the conduct of elections, thejurisdiction will need to determine the number of helpers (i.e., persons toprovide oral assistance in the minority language) that must be provided. Inevaluating the provision of assistance, the Attorney General will consider suchfacts as the number of a precinct's registered voters who are members of theapplicable language minority group, the number of such persons who are notproficient in English, and the ability of a voter to be assisted by a person ofhis or her own choice. The basic standard is one of effectiveness.</P> <CITA>[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by OrderNo. 1752-93, 58 FR 35373, July 1, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 55.21</SECTNO> <SUBJECT>Record keeping.</SUBJECT> <P>The Attorney General's implementation of the Act's provisions concerninglanguage minority groups would be facilitated if each covered jurisdiction wouldmaintain such records and data as will document its actions under <PRTPAGE P="127"/>thoseprovisions, including, for example, records on such matters as alternativesconsidered prior to taking such actions, and the reasons for choosing theactions finally taken.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Preclearance</HD> <SECTION> <SECTNO>§ 55.22</SECTNO> <SUBJECT>Requirements of section 5 of the Act.</SUBJECT> <P>For many jurisdictions, changes in voting laws and practices will benecessary in order to comply with section 4(f)(4) or section 203(c). If ajurisdiction is subject to the preclearance requirements of section 5 (see§ 55.8(b)), such changes must either be submitted to the AttorneyGeneral or be made the subject of a declaratory judgment action in the U.S.District Court for the District of Columbia. Procedures for the administrationof section 5 are set forth in part 51 of this chapter.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Sanctions</HD> <SECTION> <SECTNO>§ 55.23</SECTNO> <SUBJECT>Enforcement by the Attorney General.</SUBJECT> <P>(a) The Attorney General is authorized to bring civil actions for appropriaterelief against violations of the Act's provisions, including section 4 andsection 203. See sections 12(d) and 204.</P> <P>(b) Also, certain violations may be subject to criminal sanctions. Seesections 11(a)-(c) and 205.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Comment on This Part</HD> <SECTION> <SECTNO>§ 55.24</SECTNO> <SUBJECT>Procedure.</SUBJECT> <P>These guidelines may be modified from time to time on the basis of experienceunder the Act and comments received from interested parties. The AttorneyGeneral therefore invites public comments and suggestions on these guidelines.Any party who wishes to make such suggestions or comments may do so by sendingthem to: Assistant Attorney General, Civil Rights Division, Department ofJustice, Washington, DC 20530.</P> </SECTION> <APPENDIX> <EAR>Pt. 55, App.</EAR> <HD SOURCE="HED">Appendix to Part 55—Jurisdictions CoveredUnder <E T="01">Sections 4(f)(4)</E> and <E T="01">203(c)</E> of the VotingRights Act of 1965, as Amended</HD> <GPOTABLE CDEF="s100,r100,r100" COLS="3" OPTS="L2,i1"> <TDESC>[Applicable language minority group(s)]</TDESC> <BOXHD> <CHED H="1">Jurisdiction</CHED> <CHED H="1">Coverage under sec. 4(f)(4) <SU>1</SU> </CHED> <CHED H="1">Coverage under sec. 203(c) <SU>2</SU> </CHED> </BOXHD> <ROW> <ENT I="11">Alaska:</ENT> <ENT>Alaskan Natives (statewide)</ENT> <ENT/> </ROW> <ROW> <ENT I="03">Aleutians East Borough</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Aleutians West Census Area</ENT> <ENT/> <ENT>Alaskan Natives (Aleut).</ENT> </ROW> <ROW> <ENT I="03">Bethel Census Area</ENT> <ENT/> <ENT>American Indian (Athapascan,Tanaina), Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Bristol Bay Borough</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Dillingham Census Area</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Kenai Peninsula Borough</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Kodiak Island Borough</ENT> <ENT/> <ENT>Alaskan Natives (Aleut, Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Lake and Peninsula Borough</ENT> <ENT/> <ENT>American Indian(Athapascan), Alaskan Natives (Aleut, Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Nome Census Area</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">North Slope Borough</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Northwest Arctic Borough</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Skagway-Yakutat-Angoon Census Area</ENT> <ENT/> <ENT>American Indian(Tlinglit).</ENT> </ROW> <ROW> <ENT I="03">Southeast Fairbanks Census Area</ENT> <ENT/> <ENT>American Indian(Athapascan).</ENT> </ROW> <ROW> <ENT I="03">Valdez-Cordova Census Area</ENT> <ENT/> <ENT>American Indian(Athapascan).</ENT> </ROW> <ROW> <ENT I="03">Wade Hampton Census Area</ENT> <ENT/> <ENT>Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="03">Yukon-Koyukuk Census Area</ENT> <ENT/> <ENT>American Indian (Athapascan,Kuchin), Alaskan Natives (Eskimo).</ENT> </ROW> <ROW> <ENT I="11">Arizona:</ENT> <ENT>Spanish heritage (statewide)</ENT> <ENT/> </ROW> <ROW> <ENT I="03">Apache County</ENT> <ENT>American Indian</ENT> <ENT>American Indian (Apache,Navajo, Zuni).</ENT> </ROW> <ROW> <ENT I="03">Coconino County</ENT> <ENT>American Indian</ENT> <ENT>American Indian(Havasupai, Hopi, Navajo).</ENT> </ROW> <ROW> <ENT I="03">Gila County</ENT> <ENT/> <ENT>American Indian (Apache).</ENT> </ROW> <ROW> <ENT I="03">Graham County</ENT> <ENT/> <ENT>American Indian (Apache).</ENT> </ROW> <ROW> <ENT I="03">Greenlee County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <PRTPAGE P="128"/> <ENT I="03">Maricopa County</ENT> <ENT/> <ENT>American Indian (Pima, Yavapai),Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Navajo County</ENT> <ENT>American Indian</ENT> <ENT>American Indian (Apache,Hopi, Navajo).</ENT> </ROW> <ROW> <ENT I="03">Pima County</ENT> <ENT/> <ENT>American Indian (Pima), Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Pinal County</ENT> <ENT>American Indian</ENT> <ENT>American Indian (Apache,Pima).</ENT> </ROW> <ROW> <ENT I="03">Santa Cruz County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Yuma County</ENT> <ENT/> <ENT>American Indian (Delta River Yuma, Yuma),Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">California:</ENT> <ENT O="xl"/> <ENT/> </ROW> <ROW> <ENT I="03">Alameda County</ENT> <ENT/> <ENT>Asian American (Chinese), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Colusa County</ENT> <ENT/> <ENT>American Indian (Wintun).</ENT> </ROW> <ROW> <ENT I="03">Fresno County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Imperial County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Inyo County</ENT> <ENT/> <ENT>American Indian (Spanish).</ENT> </ROW> <ROW> <ENT I="03">Kern County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Kings County</ENT> <ENT>Spanish heritage</ENT> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Lake County</ENT> <ENT/> <ENT>American Indian (Spanish).</ENT> </ROW> <ROW> <ENT I="03">Los Angeles County</ENT> <ENT/> <ENT>Asian American (Chinese, Filipino,Japanese, Vietnamese), Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Merced County</ENT> <ENT>Spanish heritage</ENT> <ENT/> </ROW> <ROW> <ENT I="03">Monterey County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Orange County</ENT> <ENT/> <ENT>Asian American (Vietnamese), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Riverside County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">San Benito County</ENT> <ENT/> <ENT>Spanish heritage</ENT> </ROW> <ROW> <ENT I="03">San Bernardino County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">San Diego County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">San Francisco County</ENT> <ENT/> <ENT>Asian American (Chinese).</ENT> </ROW> <ROW> <ENT I="03">Santa Clara County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Tulare County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Ventura County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Yuba County</ENT> <ENT>Spanish heritage</ENT> <ENT/> </ROW> <ROW> <ENT I="11">Colorado:</ENT> </ROW> <ROW> <ENT I="03">Alamosa County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Archuleta County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Bent County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Conejos County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Costilla County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">La Plata County</ENT> <ENT/> <ENT>American Indian (Ute).</ENT> </ROW> <ROW> <ENT I="03">Las Animas County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Montezuma County</ENT> <ENT/> <ENT>American Indian (Ute).</ENT> </ROW> <ROW> <ENT I="03">Otero County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Rio Grande County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Saguache County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">Connecticut:</ENT> </ROW> <ROW> <ENT I="03">Fairfield County: Bridgeport Town</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="13">Hartford County:</ENT> </ROW> <ROW> <ENT I="04">Hartford Town</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="04">New Britain Town</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Windham County: Windham Town</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">Florida:</ENT> </ROW> <ROW> <ENT I="03">Broward County</ENT> <ENT/> <ENT>American Indian (Mikasuki, Muskogee),Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Collier County</ENT> <ENT>Spanish heritage</ENT> <ENT>American Indian(Mikasuki).</ENT> </ROW> <ROW> <ENT I="03">Dade County</ENT> <ENT/> <ENT>American Indian (Mikasuki), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Glades County</ENT> <ENT/> <ENT>American Indian (Muskogee).</ENT> </ROW> <ROW> <ENT I="03">Hardee County</ENT> <ENT>Spanish heritage</ENT> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hendry County</ENT> <ENT>Spanish heritage</ENT> <ENT>American Indian(Mikasuki, Muskogee).</ENT> </ROW> <ROW> <ENT I="03">Hillsborough County</ENT> <ENT>Spanish heritage</ENT> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Orange County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Monroe County</ENT> <ENT>Spanish heritage</ENT> <ENT/> </ROW> <ROW> <ENT I="11">Hawaii:</ENT> </ROW> <ROW> <ENT I="03">Honolulu County</ENT> <ENT/> <ENT>Asian American (Filipino, Japanese).</ENT> </ROW> <ROW> <ENT I="03">Kauai County</ENT> <ENT/> <ENT>Asian American (Filipino).</ENT> </ROW> <ROW> <ENT I="03">Maui County</ENT> <ENT/> <ENT>Asian American (Filipino).</ENT> </ROW> <ROW> <ENT I="11">Idaho:</ENT> </ROW> <ROW> <ENT I="03">Bannock County</ENT> <ENT/> <ENT>American Indian (Shoshoni).</ENT> </ROW> <ROW> <ENT I="03">Bingham County</ENT> <ENT/> <ENT>American Indian (Shoshoni).</ENT> </ROW> <ROW> <ENT I="03">Owyhee County</ENT> <ENT/> <ENT>American Indian (Shoshoni).</ENT> </ROW> <ROW> <PRTPAGE P="129"/> <ENT I="03">Power County</ENT> <ENT/> <ENT>American Indian (Shoshoni).</ENT> </ROW> <ROW> <ENT I="01">Illinois: Cook County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="01">Iowa: Tama County</ENT> <ENT/> <ENT>American Indian (Fox).</ENT> </ROW> <ROW> <ENT I="01">Louisiana: Avoyelles Parish</ENT> <ENT/> <ENT>American Indian (French).</ENT> </ROW> <ROW> <ENT I="11">Massachusetts:</ENT> </ROW> <ROW> <ENT I="03">Essex County: Lawrence City</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="13">Hampden County:</ENT> </ROW> <ROW> <ENT I="04">Holyoke City</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="04">Springfield City</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="13">Suffolk County:</ENT> </ROW> <ROW> <ENT I="04">Boston City</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="04">Chelsea City</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">Michigan:</ENT> </ROW> <ROW> <ENT I="03">Allegan County: Clyde Township</ENT> <ENT>Spanish heritage</ENT> <ENT>Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Oceana County: Colfax Township</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="13">Saginaw County:</ENT> </ROW> <ROW> <ENT I="04">Buena Vista Township</ENT> <ENT>Spanish heritage</ENT> <ENT/> </ROW> <ROW> <ENT I="04">Zilwaukee Township</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">Mississippi:</ENT> </ROW> <ROW> <ENT I="03">Jones County</ENT> <ENT/> <ENT>American Indian (Choctaw).</ENT> </ROW> <ROW> <ENT I="03">Kemper County</ENT> <ENT/> <ENT>American Indian (Choctaw).</ENT> </ROW> <ROW> <ENT I="03">Leake County</ENT> <ENT/> <ENT>American Indian (Choctaw).</ENT> </ROW> <ROW> <ENT I="03">Neshoba County</ENT> <ENT/> <ENT>American Indian (Choctaw).</ENT> </ROW> <ROW> <ENT I="03">Newton County</ENT> <ENT/> <ENT>American Indian (Choctaw).</ENT> </ROW> <ROW> <ENT I="03">Winston County</ENT> <ENT/> <ENT>American Indian (Choctaw).</ENT> </ROW> <ROW> <ENT I="11">Nevada:</ENT> </ROW> <ROW> <ENT I="03">Elko County</ENT> <ENT/> <ENT>American Indian (Shoshoni).</ENT> </ROW> <ROW> <ENT I="03">Humboldt County</ENT> <ENT/> <ENT>American Indian (Paiute).</ENT> </ROW> <ROW> <ENT I="11">New Jersey:</ENT> </ROW> <ROW> <ENT I="03">Essex County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hudson County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Middlesex County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Passaic County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Union County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">New Mexico:</ENT> </ROW> <ROW> <ENT I="03">Bernalillo County</ENT> <ENT/> <ENT>American Indian (Keres, Navajo,Tiwa), Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Chaves County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Cibola County</ENT> <ENT/> <ENT>American Indian (Keres, Navajo, Zuni),Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Colfax County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Dona Anna County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Eddy County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Grant County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Guadalupe County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Harding County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hidalgo County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Lea County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Luna County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">McKinley County</ENT> <ENT/> <ENT>American Indian (Navajo, Zuni).</ENT> </ROW> <ROW> <ENT I="03">Mora County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Quay County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Rio Arriba County</ENT> <ENT/> <ENT>American Indian (Jicarilla, Navajo),Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Roosevelt County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">San Juan County</ENT> <ENT/> <ENT>American Indian (Navajo).</ENT> </ROW> <ROW> <ENT I="03">San Miguel County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Sandoval County</ENT> <ENT/> <ENT>American Indian (Jicarilla, Keres,Navajo, Towa).</ENT> </ROW> <ROW> <ENT I="03">Santa Fe County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Socorro County</ENT> <ENT/> <ENT>American Indian (Navajo), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Taos County</ENT> <ENT/> <ENT>American Indian (Tiwa), Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Torrance County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Union County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Valencia County</ENT> <ENT/> <ENT>American Indian (Keres, Tiwa), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="11">New York:</ENT> </ROW> <ROW> <ENT I="03">Bronx County</ENT> <ENT>Spanish heritage</ENT> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Franklin County</ENT> <ENT/> <ENT>American Indian (Mohawk).</ENT> </ROW> <ROW> <ENT I="03">Kings County</ENT> <ENT>Spanish heritage</ENT> <ENT>Asian American (Chinese),Spanish heritage.</ENT> </ROW> <ROW> <PRTPAGE P="130"/> <ENT I="03">New York County</ENT> <ENT/> <ENT>Asian American (Chinese), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Queens County</ENT> <ENT/> <ENT>Asian American (Chinese), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Suffolk County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Westchester County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="01">North Carolina: Jackson County</ENT> <ENT>American Indian</ENT> <ENT/> </ROW> <ROW> <ENT I="11">North Dakota:</ENT> </ROW> <ROW> <ENT I="03">Benson County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Eddy County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Ramsey County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="01">Oklahoma: Adair County</ENT> <ENT/> <ENT>American Indian (Cherokee).</ENT> </ROW> <ROW> <ENT I="01">Oregon: Malheur County</ENT> <ENT/> <ENT>American Indian (Paiute).</ENT> </ROW> <ROW> <ENT I="01">Pennsylvania: Philadelphia County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="11">Rhode Island:</ENT> </ROW> <ROW> <ENT I="03">Providence County: Central Falls City</ENT> <ENT/> <ENT>Spanishheritage.</ENT> </ROW> <ROW> <ENT I="11">South Dakota:</ENT> </ROW> <ROW> <ENT I="03">Dewey County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Gregory County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Lyman County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Mellette County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Shannon County</ENT> <ENT>American Indian</ENT> <ENT/> </ROW> <ROW> <ENT I="03">Todd County</ENT> <ENT>American Indian</ENT> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Tripp County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="03">Ziebach County</ENT> <ENT/> <ENT>American Indian (Dakota).</ENT> </ROW> <ROW> <ENT I="01">Texas</ENT> <ENT>Spanish heritage (statewide)</ENT> <ENT/> </ROW> <ROW> <ENT I="03">Andrews County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Atascosa County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Bailey County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Bee County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Bexar County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Brewster County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Brooks County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Caldwell County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Calhoun County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Cameron County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Castro County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Cochran County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Comal County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Concho County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Crockett County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Crosby County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Culberson County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Dallas County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Dawson County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Deaf Smith County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Dewitt County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Dickens County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Dimmit County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Duval County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Ector County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Edwards County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">El Paso County</ENT> <ENT/> <ENT>American Indian (Spanish), Spanishheritage.</ENT> </ROW> <ROW> <ENT I="03">Floyd County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Frio County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Gaines County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Garza County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Glasscock County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Goliad County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Gonzales County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Guadalupe County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hale County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Harris County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hays County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hidalgo County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hockley County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Howard County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Hudspeth County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Irion County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Jeff Davis County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Jim Hogg County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <PRTPAGE P="131"/> <ENT I="03">Jim Wells County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Karnes County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Kenedy County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Kent County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Kinney County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Kleberg County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">La Salle County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Lamb County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Live Oak County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Lubbock County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Lynn County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Martin County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Maverick County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">McCulloch County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">McMullen County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Medina County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Menard County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Midland County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Mitchell County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Moore County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Nolan County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Nueces County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Parmer County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Pecos County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Polk County</ENT> <ENT/> <ENT>American Indian (Alabama).</ENT> </ROW> <ROW> <ENT I="03">Presidio County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Reagan County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Reeves County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Refugio County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Runnels County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">San Patricio County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Schleicher County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Scurry County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Starr County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Sutton County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Swisher County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Tarrant County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Terrell County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Terry County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Tom Green County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Travis County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Upton County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Uvalde County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Val Verde County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Victoria County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Ward County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Webb County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Wharton County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Willacy County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Wilson County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Winkler County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Yoakum County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Zapata County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="03">Zavala County</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <ROW> <ENT I="01">Utah: San Juan County</ENT> <ENT/> <ENT>American Indian (Navajo, Ute).</ENT> </ROW> <ROW> <ENT I="11">Wisconsin:</ENT> </ROW> <ROW> <ENT I="03">Clark County: Curtiss Village</ENT> <ENT/> <ENT>Spanish heritage.</ENT> </ROW> <TNOTE> <SU>1</SU> 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 pursuantto section 4(a). See § 55.7(a) of this part.</TNOTE> <TNOTE> <SU>2</SU> Coverage determinations were published at 57 FR 43213(Sept. 18, 1992).</TNOTE> </GPOTABLE> <CITA>[Order No. 1752-93, 58 FR 35373, July 1, 1993; 58 FR 36516, July 7,1993]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <PRTPAGE P="132"/> <EAR>Pt. 56</EAR> <HD SOURCE="HED">PART 56—INTERNATIONAL ENERGY PROGRAM</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>56.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>56.2</SECTNO> <SUBJECT>Maintenance of records with respect to meetings held todevelop voluntary agreements or plans of action pursuant to the Agreement on anInternational Energy Program.</SUBJECT> <SECTNO>56.3</SECTNO> <SUBJECT>Maintenance of records with respect to meetings held todevelop and carry out voluntary agreements or plans of action pursuant to theAgreement on an International Energy Program.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Energy Policy and Conservation Act, Pub. L.94-163, 89 Stat. 871 (42 U.S.C. 6201).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>49 FR 33998, Aug. 28, 1984, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 56.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>These regulations are promulgated pursuant to section 252(e)(2) of the EnergyPolicy and Conservation Act (EPCA), 42 U.S.C. 6272(e)(2). They are being issuedby the Assistant Attorney General in charge of the Antitrust Division to whomthe Attorney General has delegated his authority under this section of EPCA. Therequirements of this part do not apply to activities other than those for whichsection 252 of EPCA makes available a defense to actions brought under theFederal antitrust laws.</P> </SECTION> <SECTION> <SECTNO>§ 56.2</SECTNO> <SUBJECT>Maintenance of records with respect to meetings held to developvoluntary agreements or plans of action pursuant to the Agreement on anInternational Energy Program.</SUBJECT> <P>(a) The Administrator of the Department of Energy shall keep a verbatimtranscript of any meeting held pursuant to this subpart.</P> <P>(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section,potential participants shall keep a full and complete record of anycommunications (other than in a meeting held pursuant to this subpart) betweenor among themselves for the purpose of developing a voluntary agreement underthis part. When two or more potential participants are involved in such acommunication, they may agree among themselves who shall keep such record. Suchrecord shall include the names of the parties to the communication and theorganizations, if any, which they represent; the date of the communication; themeans of communication; and a description of the communication in sufficientdetail to convey adequately its substance.</P> <P>(2) Where any communication is written (including, but not limited to, telex,telegraphic, telecopied, microfilmed and computer printout material), and wheresuch communication demonstrates on its face that the originator or some othersource furnished a copy of the communication to the Office of InternationalAffairs, Department of Energy with the notation “VoluntaryAgreement” marked on the first page of the document, no participant needrecord 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, requiredeposit with other offices or officials of the Department of Energy. Where suchcommunication demonstrates that it was sent to the Office of InternationalAffairs, Department of Energy with the notation “VoluntaryAgreement” marked on the first page of the document, or such other officesor officials in the Department of Energy has designated pursuant to this sectionit shall satisfy paragraph (c) of this section, for the purpose of deposit withthe Department of Energy.</P> <P>(3) To the extent that any communication is procedural, administrative orministerial (for example, if it involves the location of a record, the place ofa meeting, travel arrangements, or similar matters,) only a brief notation ofthe date, time, persons involved and description of the communication need berecorded.</P> <P>(4) To the extent that any communication involves matters which recapitulatematters already contained in a full and complete record, the substance of suchmatters shall be identified, but need not be recorded in detail, provided thatreference is made to the record and the portion thereof in which the substanceis fully set out.</P> <P>(c) Except where the Department of Energy otherwise provides, all records <PRTPAGE P="133"/>andtranscripts prepared pursuant to paragraphs (a) and (b) of this section, shallbe deposited within fifteen (15) days after the close of the month of theirpreparation together with any agreement resulting therefrom, with the Departmentof Energy, and shall be available to the Department of Justice, the FederalTrade Commission, and the Department of State. Such records and transcriptsshall be available for public inspection and copying at the Department ofEnergy. Any person depositing material with the Department of Energy pursuant tothis section shall indicate with particularity what portions, if any, the personbelieves are subject to disclosure to the public pursuant to 5 U.S.C. 552 andthe reasons for such belief.</P> <APPRO>(Approved by the Office of Management and Budget under control number1105-0029)</APPRO> </SECTION> <SECTION> <SECTNO>§ 56.3</SECTNO> <SUBJECT>Maintenance of records with respect to meetings held to develop andcarry out voluntary agreements or plans of action pursuant to the Agreement onan International Energy Program.</SUBJECT> <P>(a) The Administrator of the Department of Energy or his delegate shall keepa verbatim transcript of any meeting held pursuant to this subpart except where:</P> <P>(1) Due to considerations of time or other overriding circumstances, thekeeping of a verbatim transcript is not practicable, or</P> <P>(2) Principal participants in the meeting are representatives of foreigngovernments.</P> <FP>If any such record other than a verbatim transcript, is kept by a designeewho is not a full-time Federal employee, that record shall be submitted to thefull-time Federal employee in attendance at the meeting who shall review therecord, promptly make any changes he deems necessary to make the record full andcomplete, and shall notify the designee of such changes.</FP> <P>(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 (otherthan in a meeting held pursuant to this subpart) between or among themselves orwith any other member of a petroleum industry group created by the InternationalEnergy Agency (IEA), or subgroup thereof for the purpose of carrying out avoluntary agreement or developing or carrying out a plan of action under thissubpart, except that where there are several communications within the same dayinvolving the same participants, they may keep a cumulative record for the day.The parties to a communication may agree among themselves who shall keep suchrecord. Such record shall include the names of the parties to the communicationand the organizations, if any, which they represent; the date of communication;the means of communication, and a description of the communication in sufficientdetail to convey adequately its substance.</P> <P>(2) Where any communication is written (including, but not limited to, telex,telegraphic, telecopied, microfilmed and computer printout material), and wheresuch communication demonstrates on its face that the originator or some othersource furnished a copy of the communication to the Office of InternationalAffairs, Department of Energy with the notation “VoluntaryAgreement” on the first page of the document, no participants need recordsuch a communication or send a further copy to the Department of Energy. TheDepartment of Energy may, upon written notice to participants, from time totime, or with reference to particular types of documents, require deposit withother offices or officials of the Department of Energy. Where such communicationdemonstrates that it was sent to the Office of International Affairs, Departmentof Energy with the notation “Voluntary Agreement” on the first pageof the document, or such other offices or officials as the Department of Energyhas designated pursuant to this section, it shall satisfy paragraph (c) of thissection, for the purpose of deposit with the Department of Energy.</P> <P>(3) To the extent that any communication is procedural, administrative orministerial (for example, if it involves the location of a record, the place ofa meeting, travel arrangements, or similar matters) only a brief notation of thedate, time, persons involved and description of the communication need berecorded; except that <PRTPAGE P="134"/>during an IEA emergency allocation exercise or anallocation systems test such a non-substantive communication between members ofthe Industry Supply Advisory Group which occur within IEA headquarters need notbe recorded.</P> <P>(4) To the extent that any communication involves matters which recapitulatematters already contained in a full and complete record, the substance of suchmatters shall be identified, but need not be recorded in detail, provided thatreference is made to the record and the portion thereof in which the substanceis fully set out.</P> <P>(c) Except where the Department of Energy otherwise provides, all records andtranscripts prepared pursuant to paragraphs (a) and (b) of this section, shallbe deposited within seven (7) days after the close of the week (ending Saturday)of their preparation during an international energy supply emergency or a testof the IEA emergency allocation system, and within fifteen (15) days after theclose of the month of their preparation during periods of non-emergency,together with any agreement resulting therefrom, with the Department of Energyand shall be available to the Department of Justice, the Federal TradeCommission, and the Department of State. Such records and transcripts shall beavailable 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 indicatewith particularity what portions, if any, the person believes are not subject todisclosure to the public pursuant to 5 U.S.C. 552 and the reasons for suchbelief.</P> <P>(d) During international oil allocation under chapter III and IV of the IEPor during an IEA allocation systems test, the Department of Justice may issuesuch additional guidelines amplifying the requirements of these regulations asthe Department of Justice determines to be necessary and appropriate.</P> <APPRO>(Approved by the Office of Management and Budget under control number1105-0029)</APPRO> </SECTION> </PART> <PART> <EAR>Pt. 57</EAR> <HD SOURCE="HED">PART 57—INVESTIGATION OF DISCRIMINATION IN THESUPPLY OF PETROLEUM TO THE ARMED FORCES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>57.1</SECTNO> <SUBJECT>Responsibility for the conduct of litigation.</SUBJECT> <SECTNO>57.2</SECTNO> <SUBJECT>Responsibility for the conduct of investigations.</SUBJECT> <SECTNO>57.3</SECTNO> <SUBJECT>Scope and purpose of investigation; other sources ofinformation.</SUBJECT> <SECTNO>57.4</SECTNO> <SUBJECT>Expiration date.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 816(b)(2), Pub. L. 94-106; 89 Stat. 531.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 644-76, 41 FR 12302, Mar. 25, 1976,unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 57.1</SECTNO> <SUBJECT>Responsibility for the conduct of litigation.</SUBJECT> <P>(a) In accord with 28 CFR 0.45(h), civil litigation under sec. 816 of theDepartment of Defense Appropriation Authorization Act, 1976, 10 U.S.C.A. 2304note (hereafter the “Act”), shall be conducted under the supervisionof the Assistant Attorney General in charge of the Civil Division.</P> <P>(b) In accord with 28 CFR 0.55(a), prosecution, under section 816(f) of theAct, of criminal violations shall be conducted under the supervision of theAssistant Attorney General in charge of the Criminal Division.</P> </SECTION> <SECTION> <SECTNO>§ 57.2</SECTNO> <SUBJECT>Responsibility for the conduct of investigations.</SUBJECT> <P>(a) When an instance of alleged “discrimination” in violation ofsection 816(b)(1) of the Act is referred to the Department of Justice by theDepartment of Defense, the matter shall be assigned initially to the CivilDivision.</P> <P>(b)(1) If the information provided by the Department of Defense indicatesthat a non-criminal violation may have occurred and further investigation iswarranted, such investigation shall be conducted under the supervision of theAssistant Attorney General in charge of the Civil Division.</P> <P>(2) If the information provided by the Department of Defense indicates that acriminal violation under section 816(f) of the Act may have occurred, the CivilDivision shall refer the matter to the Criminal Division. If it is determinedthat further investigation of a possible criminal violation is warranted, such <PRTPAGE P="135"/>investigation shall be conducted under the supervision of the Assistant AttorneyGeneral in charge of the Criminal Division.</P> <P>(3) If a referral from the Department of Defense is such that both civil andcriminal proceedings may be warranted, responsibility for any furtherinvestigation may be determined by the Deputy Attorney General.</P> </SECTION> <SECTION> <SECTNO>§ 57.3</SECTNO> <SUBJECT>Scope and purpose of investigation; other sources of information.</SUBJECT> <P>(a) The authority granted the Attorney General by section 816(d)(1) of theAct (e.g., authority to inspect books and records) shall not be utilized untilan appropriate official has defined, in an appropriate internal memorandum, thescope and purpose of the particular investigation.</P> <P>(b) There shall be no use, with respect to particular information, of theauthority granted by section 816(d)(1) of the Act until an appropriate officialhas determined that the information in question is not available to theDepartment of Justice from any other Federal agency or other responsible agency(e.g., a State agency).</P> <P>(c) For purposes of this section, “appropriate official” meansthe Assistant Attorney General in charge of the division conducting theinvestigation, or his delegate.</P> </SECTION> <SECTION> <SECTNO>§ 57.4</SECTNO> <SUBJECT>Expiration date.</SUBJECT> <P>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.</P> </SECTION> </PART> <PART> <EAR>Pt. 58</EAR> <HD SOURCE="HED">PART 58—REGULATIONS RELATING TO THE BANKRUPTCYREFORM ACTS OF 1978 AND 1994</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>58.1</SECTNO> <SUBJECT>Authorization to establish panels of private trustees.</SUBJECT> <SECTNO>58.2</SECTNO> <SUBJECT>Authorization to appoint standing trustees.</SUBJECT> <SECTNO>58.3</SECTNO> <SUBJECT>Qualification for membership on panels of private trustees.</SUBJECT> <SECTNO>58.4</SECTNO> <SUBJECT>Qualifications for appointment as standing trustee andfiduciary standards.</SUBJECT> <SECTNO>58.5</SECTNO> <SUBJECT>Non-discrimination in appointment.</SUBJECT> <SECTNO>58.6</SECTNO> <SUBJECT>Procedures for suspension and removal of panel trustees andstanding trustees.</SUBJECT> <APP>Appendix A to Part 58—Guidelines for Reviewing Applications forCompensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330</APP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 28 U.S.C. 509, 510, 586.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 921-80, 45 FR 82631, Dec. 16, 1980,unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 58.1</SECTNO> <SUBJECT>Authorization to establish panels of private trustees.</SUBJECT> <P>(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).</P> <P>(b) Each U.S. Trustee is authorized, with the approval of the Director,Executive Office for United States Trustees (the “Director”) toincrease or decrease the total membership of the panel. In addition, each U.S.Trustee, with the approval of the Director, is authorized to institute a systemof rotation of membership or the like to achieve diversity of experience,geographical distribution or other characteristics among the persons on thepanel.</P> <CITA>[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended at 62 FR30183, June 2, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 58.2</SECTNO> <SUBJECT>Authorization to appoint standing trustees.</SUBJECT> <P>Each U.S. Trustee is authorized, subject to the approval of the DeputyAttorney General, or his delegate, to appoint and remove one or more standingtrustees to serve in cases under chapters 12 and 13 of title 11, U.S. Code.</P> <CITA>[Order No. 51 FR 44288, Dec. 9, 1986]</CITA> </SECTION> <SECTION> <SECTNO>§ 58.3</SECTNO> <SUBJECT>Qualification for membership on panels of private trustees.</SUBJECT> <P>(a) To be eligible for appointment to the panel and to retain eligibilitytherefor, an individual must possess the qualifications described in paragraph(b) of this section in addition to any other statutory qualifications. Acorporation or partnership may qualify as an entity for appointment to theprivate panel. However, each person who, in the opinion of the U.S. Trustee orof the Director, performs duties as trustee on behalf of a corporation orpartnership must individually meet the standards described in paragraph (b) ofthis section, except that each U.S. Trustee, with the approval of the Director,shall have the discretion to <PRTPAGE P="136"/>waive the applicability of paragraph (b)(6) of thissection as to any individual in a non-supervisory position. No professionalcorporation, partnership, or similar entity organized for the practice of law oraccounting shall be eligible to serve on the panel.</P> <P>(b) The qualifications for membership on the panel are as follows:</P> <P>(1) Possess integrity and good moral character.</P> <P>(2) Be physically and mentally able to satisfactorily perform a trustee'sduties.</P> <P>(3) Be courteous and accessible to all parties with reasonable inquiries orcomments about a case for which such individual is serving as private trustee.</P> <P>(4) Be free of prejudices against any individual, entity, or group ofindividuals or entities which would interfere with unbiased performance of atrustee's duties.</P> <P>(5) Not be related by affinity or consanguinity within the degree of firstcousin to any employee of the Executive Office for United States Trustees of theDepartment of Justice, or to any employee of the office of the U.S. Trustee forthe district in which he or she is applying.</P> <P>(6)(i) Be a member in good standing of the bar of the highest court of astate or of the District of Columbia; or</P> <P>(ii) Be a certified public accountant; or</P> <P>(iii) Hold a bachelor's degree from a full four-year course of study (or theequivalent) of an accredited college or university (accredited as described inpart II, section III of Handbook X118 promulgated by the U.S. Office ofPersonnel Management) with a major in a business-related field of study or atleast 20 semester-hours of business-related courses; or hold a master's ordoctoral degree in a business-related field of study from a college oruniversity of the type described above; or</P> <P>(iv) Be a senior law student or candidate for a master's degree in businessadministration recommended by the relevant law school or business school deanand working under the direct supervision of:</P> <P>(A) A member of a law school faculty; or</P> <P>(B) A member of the panel of private trustees; or</P> <P>(C) A member of a program established by the local bar association to provideclinical experience to students; or</P> <P>(v) Have equivalent experience as deemed acceptable by the U.S. Trustee.</P> <P>(7) Be willing to provide reports as required by the U.S. Trustee.</P> <P>(8) Have submitted an application under oath, in the form prescribed by theDirector, to the U.S. Trustee for the District in which appointment is sought:<E T="03">Provided,</E> That this provision may be waived by the U.S. Trustee onapproval of the Director.</P> </SECTION> <SECTION> <SECTNO>§ 58.4</SECTNO> <SUBJECT>Qualifications for appointment as standing trustee and fiduciarystandards.</SUBJECT> <P>(a) As used in this section—</P> <P>(1) The term <E T="03">standing trustee</E> means an individual appointedpursuant to 28 U.S.C. 586(b).</P> <P>(2) The term <E T="03">relative</E> means an individual who is related to thestanding 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 anindividual whose close association to the standing trustee is the equivalent ofa spousal relationship.</P> <P>(3) The term <E T="03">financial or ownership interest</E> excludes ownershipof stock in a publicly-traded company if the ownership interest in notcontrolling.</P> <P>(4) The word <E T="03">region</E> means the geographical area defined in 28U.S.C. 581.</P> <P>(b) To be eligible for appointment as a standing trustee, an individual musthave the qualifications for membership on a private panel of trustees set forthin §§ 58.3 (b)(1)-(4), (6)-(8). An individual neednot be an attorney to be eligible for appointment as a standing trustee. Acorporation or partnership may be appointed as standing trustee only with theapproval of the Director.</P> <P>(c) The United States Trustee shall not appoint as a standing trustee anyindividuals who, at the time of appointment, is:</P> <P>(1) A relative of another standing trustee in the region in which thestanding trustee is to be appointed;<PRTPAGE P="137"/> </P> <P>(2) A relative of a standing trustee (in the region in which the standingtrustee is to be appointed), who, within the preceding one-year period, died,resigned, or was removed as a standing trustee from a case;</P> <P>(3) A relative of a bankruptcy judge or a clerk of the bankruptcy court inthe region in which the standing trustee is to be appointed;</P> <P>(4) An employee of the Department of Justice within the preceding one-yearperiod; or</P> <P>(5) A relative of a United States Trustee or an Assistant United StatesTrustee, a relative of an employee in any of the offices of the United StatesTrustee in the region in which the standing trustee is to be appointed, or arelative of an employee in the Executive Office for United States Trustees.</P> <P>(d) A standing trustee must, at a minimum, adhere to the following fiduciarystandards:</P> <P>(1) <E T="03">Employment of relatives.</E> (i) A standing trustee shall notemploy a relative of the standing trustee.</P> <P>(ii) A standing trustee shall also not employ a relative of the United StatesTrustee or of an Assistant United States Trustee in the region in which thetrustee has been appointed or a relative of a bankruptcy court judge or of theclerk of the bankruptcy court in the judicial district in which the trustee hasbeen appointed.</P> <P>(iii)(A) Paragraphs (d)(1) (i) and (ii) of this section shall not apply to aspouse of a standing trustee who was employed by the standing trustee as ofAugust 1, 1995.</P> <P>(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 implementedby October 1, 1998, unless specifically provided below:</P> <P>(<E T="03">1</E>) The United States Trustee shall have the discretion togrant a written waiver for a period of time not to exceed 2 years upon a writtenshowing by the standing trustee of compelling circumstances that make thecontinued employment of a relative necessary for a standing trustee'sperformance of his or her duties and written evidence that the salary to be paidis at or below market rate.</P> <P>(<E T="03">2</E>) Additional waivers, not to exceed a period of two yearseach, may be granted under paragraph (d)(1)(iii)(B)(<E T="03">1</E>) of thissection provided the standing trustee makes a similar written showing within 90days prior to the expiration of a present waiver and the United States Trusteedetermines that the circumstances for waiver are met.</P> <P>(<E T="03">3</E>) No waivers will be granted for a relative of the UnitedStates Trustee or of an Assistant United States Trustee.</P> <P>(2) <E T="03">Related party transactions.</E> (i) A standing trustee shallnot direct debtors or creditors of a bankruptcy case administered by thestanding trustee to an individual or entity that provides products or services,such as insurance or financial counseling, if a standing trustee is a relativeof that individual or if the standing trustee or relative has a financial orownership interest in the entity.</P> <P>(ii) A standing trustee shall not, on behalf of the trust, contract orallocate expenses with himself or herself, with a relative, or with any entityin which the standing trustee or a relative of the standing trustee has afinancial or ownership interest if the costs are to be paid as an expense out ofthe fiduciary expense fund.</P> <P>(iii)(A) The United States Trustee may grant a waiver from compliance withparagraph (d)(2)(ii) of this section for up to three years following theappointment of a standing trustee if the newly-appointed standing trustee candemonstrate in writing that a waiver is necessary and the cost is at or belowmarket.</P> <P>(B) The United States Trustee may grant a provisional waiver from compliancewith the allocation prohibition contained in paragraph (d)(2)(ii) of thissection if one of the following conditions is present:</P> <P>(<E T="03">1</E>) A standing trustee has insufficient receipts to earnmaximum annual compensation as determined by the Director during any one of thelast three fiscal years and provides the United States Trustee with an appraisalor other written evidence that the allocation is necessary and the allocatedcost is at or below market rate for that good or service, or<PRTPAGE P="138"/> </P> <P>(<E T="03">2</E>) A chapter 13 standing trustee also serves as a trustee inchapter 12 cases and provides the United States Trustee with an appraisal orother written evidence that the allocation is necessary and the allocated costis at or below market rate for that good or service.</P> <P>(C) Except as otherwise provided in this paragraph, a standing trustee mayseek a reasonable extension of time from the United States Trustee to complywith paragraph (d)(2)(ii) of this section. To obtain an extension, a standingtrustee must demonstrate by an appraisal or other written evidence, satisfactoryto the United States Trustee, that the expense is necessary and at or belowmarket rate. In no event shall an extension be granted for the use andoccupation of real estate beyond October 1, 2005. For personal property andpersonal service contracts, no extension shall be granted beyond October 1,1998.</P> <P>(3) <E T="03">Employment of other standing trustees.</E> A standing trusteeshall not employ or contract with another standing trustee to provide personalservices for compensation payable from the fiduciary expense fund. This sectiondoes not prohibit the standing trustee from reimbursing the actual, necessaryexpenses incurred by another standing trustee who provides necessary assistanceto the standing trustee provided that the reimbursement has been pre-approved bythe United States Trustee.</P> <P>(e) Paragraph (d) of this section is effective July 2, 1997. As to thosestanding trustees who are appointed as of July 2, 1997, paragraph (d) will beapplicable 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).</P> <CITA>[62 FR 30183, June 2, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 58.5</SECTNO> <SUBJECT>Non-discrimination in appointment.</SUBJECT> <P>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 oftrustees or of standing trustees and in this regard shall assure equalopportunity for all appointees and applicants for appointment to the privatepanel of trustees or as standing trustee. Each U.S. Trustee shall be guided bythe policies and requirements of Executive Order 11478 of August 8, 1969,relating to equal employment opportunity in the Federal Government, section 717of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16), section15 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 toequal employment opportunity (5 CFR part 713).</P> <CITA>[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended by OrderNo. 960-81, 46 FR 52360, Oct. 27, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 58.6</SECTNO> <SUBJECT>Procedures for suspension and removal of panel trustees and standingtrustees.</SUBJECT> <P>(a) A United States Trustee shall notify a panel trustee or a standingtrustee in writing of any decision to suspend or terminate the assignment ofcases to the trustee including, where applicable, any decision not to renew thetrustee's term appointment. The notice shall state the reason(s) for thedecision and should refer to, or be accompanied by copies of, pertinentmaterials upon which the United States Trustee has relied and any priorcommunications in which the United States Trustee has advised the trustee of thepotential action. The notice shall be sent to the office of the trustee byovernight courier, for delivery the next business day. The reasons may include,but are in no way limited to:</P> <P>(1) Failure to safeguard or to account for estate funds and assets;</P> <P>(2) Failure to perform duties in a timely and consistently satisfactorymanner;</P> <P>(3) Failure to comply with the provisions of the Code, the Bankruptcy Rules,and local rules of court;</P> <P>(4) Failure to cooperate and to comply with orders, instructions and policiesof the court, the bankruptcy clerk or the United States Trustee;</P> <P>(5) Substandard performance of general duties and case management incomparison to other members of the chapter 7 panel or other standing trustees;</P> <P>(6) Failure to display proper temperament in dealing with judges, clerks,attorneys, creditors, debtors, the United States Trustee and the general public;<PRTPAGE P="139"/> </P> <P>(7) Failure to adequately monitor the work of professionals or othersemployed by the trustee to assist in the administration of cases;</P> <P>(8) Failure to file timely, accurate reports, including interim reports,final reports, and final accounts;</P> <P>(9) Failure to meet the eligibility requirements of 11 U.S.C. 321 or thequalifications set forth in 28 CFR 58.3 and 58.4 and in 11 U.S.C. 322;</P> <P>(10) Failure to attend in person or appropriately conduct the 11 U.S.C.341(a) meeting of creditors;</P> <P>(11) Action by or pending before a court or state licensing agency whichcalls the trustee's competence, financial responsibility or trustworthiness intoquestion;</P> <P>(12) Routine inability to accept assigned cases due to conflicts of interestor to the trustee's unwillingness or incapacity to serve;</P> <P>(13) Change in the composition of the chapter 7 panel pursuant to a systemestablished by the United States Trustee under 28 CFR 58.1;</P> <P>(14) A determination by the United States Trustee that the interests ofefficient case administration or a decline in the number of cases warrant areduction in the number of panel trustees or standing trustees.</P> <P>(b) The notice shall advise the trustee that the decision is final andunreviewable unless the trustee requests in writing a review by the Director,Executive Office for United States Trustees, no later than 20 calendar days fromthe date of issuance of the United States Trustee's notice (“request forreview”). In order to be timely, a request for review must be received bythe Office of the Director no later than 20 calendar days from the date of theUnited States Trustee's notice to the trustee.</P> <P>(c) A decision by a United States Trustee to suspend or terminate theassignment of cases to a trustee shall take effect upon the expiration of atrustee's time to seek review from the Director or, if the trustee timely seekssuch review, upon the issuance of a final written decision by the Director.</P> <P>(d) Notwithstanding paragraph (c) of this section, a United States Trustee'sdecision to suspend or terminate the assignment of cases to a trustee mayinclude, or may later by supplemented by an interim directive, by which theUnited States trustee may immediately discontinue assigning cases to a trusteeduring the review period. A United States Trustee may issue such an interimdirective if the United States Trustee specifically finds that:</P> <P>(1) A continued assignment of cases to the trustee places the safety ofestate assets at risk ;</P> <P>(2) The trustee appears to be ineligible to serve under applicable law, rule,or regulation;</P> <P>(3) The trustee has engaged in conduct that appears to be dishonest,deceitful, fraudulent, or criminal in nature; or</P> <P>(4) The trustee appears to have engaged in other gross misconduct that isunbefitting his or her position as trustee or violates the trustee's duties.</P> <P>(e) If the United States Trustee issues an interim directive, the trustee mayseek a stay of the interim directive from the Director if the trustee has timelyfiled a request for review under paragraph (b) of this section.</P> <P>(f) The trustee's written request for review shall fully describe why thetrustee disagrees with the United States Trustee's decision, and shall beaccompanied by all documents and materials that the trustee wants the Directorto consider in reviewing the decision. The trustee shall send a copy of therequest for review, and the accompanying documents and materials, to the UnitedStates Trustee by overnight courier, for delivery the next business day. Thetrustee may request that specific documents in the possession of the UnitedStates Trustee be transmitted to the Director for inclusion in the record.</P> <P>(g) The United States Trustee shall have 15 calendar days from the date ofthe trustee's request for review to submit to the Director a written responseregarding the matters raised in the trustee's request for review. The UnitedStates Trustee shall provide a copy of this response to the trustee. Both copesshall be sent by overnight courier, for delivery the next business day.</P> <P>(h) The Director may seek additional information from any party in the <PRTPAGE P="140"/>mannerand to the extent the Director deems appropriate.</P> <P>(i) Unless the trustee and the United States Trustee agree to a longer periodof time, the Director shall issue a written decision no later than 30 calendardays from the receipt of the United States Trustee's response to the trustee'srequest for review. That decision shall determine whether the United StatesTrustee's decision is supported by the record and the action is an appropriateexercise of the United States Trustee's discretion, and shall adopt, modify orreject the United States Trustee's decision to suspend or terminate theassignment of future cases to the trustee. The Director's decision shallconstitute final agency action.</P> <P>(j) In reaching a determination, the Director may specify a person to act asa reviewing official. The reviewing official shall not be a person who wasinvolved in the United States Trustee's decision or a Program employee who islocated 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 bycase basis, and may include reviewing the record, obtaining additionalinformation from the participants, providing the Director with writtenrecommendations, or such other duties as the Director shall prescribe in aparticular case.</P> <P>(k) This rule does not authorize a trustee to seek review of any decision toincrease the size of the chapter 7 panel or to appoint additional standingtrustees in the district or region.</P> <P>(l) A trustee who files a request for review shall bear his or her own costsand expenses, including counsel fees.</P> <CITA>[62 FR 51750, Oct. 2, 1997]</CITA> </SECTION> <APPENDIX> <EAR>Pt. 58, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 58—Guidelines forReviewing Applications for Compensation and Reimbursement of Expenses FiledUnder 11 U.S.C. 330</HD> <P>(a) <E T="03">General Information.</E> (1) The Bankruptcy Reform Act of 1994amended the responsibilities of the United States Trustees under 28 U.S.C.586(a)(3)(A) to provide that, whenever they deem appropriate, United StatesTrustees will review applications for compensation and reimbursement of expensesunder 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 StatesTrustees (“Executive Office”). The following Guidelines have beenadopted by the Executive Office and are to be uniformly applied by the UnitedStates Trustees except when circumstances warrant different treatment.</P> <P>(2) The United States Trustees shall use these Guidelines in all casescommenced on or after October 22, 1994.</P> <P>(3) The Guidelines are not intended to supersede local rules of court, butshould be read as complementing the procedures set forth in local rules.</P> <P>(4) Nothing in the Guidelines should be construed:</P> <P>(i) To limit the United States Trustee's discretion to request additionalinformation necessary for the review of a particular application or type ofapplication or to refer any information provided to the United States Trustee toany investigatory or prosecutorial authority of the United States or a state;</P> <P>(ii) To limit the United States Trustee's discretion to determine whether tofile comments or objections to applications; or</P> <P>(iii) To create any private right of action on the part of any personenforceable in litigation with the United States Trustee or the United States.</P> <P>(5) Recognizing that the final authority to award compensation andreimbursement under section 330 of the Code is vested in the Court, theGuidelines focus on the disclosure of information relevant to a proper awardunder the law. In evaluating fees for professional services, it is relevant toconsider various factors including the following: the time spent; the ratescharged; whether the services were necessary to the administration of, orbeneficial towards the completion of, the case at the time they were rendered;whether services were performed within a reasonable time commensurate with thecomplexity, importance, and nature of the problem, issue, or task addressed; andwhether compensation is reasonable based on the customary compensation chargedby comparably skilled practitioners in non-bankruptcy cases. The Guidelines thusreflect standards and procedures articulated in section 330 of the Code and Rule2016 of the Federal Rules of Bankruptcy Procedure for awarding compensation totrustees and to professionals employed under section 327 or 1103. Applicationsthat contain the information requested in these Guidelines will facilitatereview by the Court, the parties, and the United States Trustee.</P> <P>(6) Fee applications submitted by trustees are subject to the same standardof review as are applications of other professionals and will be evaluatedaccording to the principles articulated in these Guidelines. Each United StatesTrustee should establish whether and <PRTPAGE P="141"/>to what extent trustees can deviate fromthe format specified in these Guidelines without substantially affecting theability of the United States Trustee to review and comment on their feeapplications in a manner consistent with the requirements of the law.</P> <P>(b) <E T="03">Contents of Applications for Compensation and Reimbursement ofExpenses.</E> All applications should include sufficient detail to demonstratecompliance with the standards set forth in 11 U.S.C. § 330. The feeapplication should also contain sufficient information about the case and theapplicant so that the Court, the creditors, and the United States Trustee canreview it without searching for relevant information in other documents. Thefollowing will facilitate review of the application.</P> <P>(1) Information about the Applicant and the Application. The followinginformation should be provided in every fee application:</P> <P>(i) Date the bankruptcy petition was filed, date of the order approvingemployment, identity of the party represented, date services commenced, andwhether the applicant is seeking compensation under a provision of theBankruptcy Code other than section 330.</P> <P>(ii) Terms and conditions of employment and compensation, source ofcompensation, existence and terms controlling use of a retainer, and anybudgetary or other limitations on fees.</P> <P>(iii) Names and hourly rates of all applicant's professionals andparaprofessionals who billed time, explanation of any changes in hourly ratesfrom those previously charged, and statement of whether the compensation isbased on the customary compensation charged by comparably skilled practitionersin cases other than cases under title 11.</P> <P>(iv) Whether the application is interim or final, and the dates of previousorders on interim compensation or reimbursement of expenses along with theamounts requested and the amounts allowed or disallowed, amounts of all previouspayments, and amount of any allowed fees and expenses remaining unpaid.</P> <P>(v) Whether the person on whose behalf the applicant is employed has beengiven the opportunity to review the application and whether that person hasapproved the requested amount.</P> <P>(vi) When an application is filed less than 120 days after the order forrelief or after a prior application to the Court, the date and terms of theorder allowing leave to file at shortened intervals.</P> <P>(vii) Time period of the services or expenses covered by the application.</P> <P>(2) Case Status. The following information should be provided to the extentthat it is known to or can be reasonably ascertained by the applicant:</P> <P>(i) In a chapter 7 case, a summary of the administration of the caseincluding all moneys received and disbursed in the case, when the case isexpected to close, and, if applicant is seeking an interim award, whether it isfeasible to make an interim distribution to creditors without prejudicing therights of any creditor holding a claim of equal or higher priority.</P> <P>(ii) In a chapter 11 case, whether a plan and disclosure statement have beenfiled and, if not yet filed, when the plan and disclosure statement are expectedto be filed; whether all quarterly fees have been paid to the United StatesTrustee; and whether all monthly operating reports have been filed.</P> <P>(iii) In every case, the amount of cash on hand or on deposit, the amount andnature of accrued unpaid administrative expenses, and the amount of unencumberedfunds in the estate.</P> <P>(iv) Any material changes in the status of the case that occur after thefiling of the fee application should be raised, orally or in writing, at thehearing on the application or, if a hearing is not required, prior to theexpiration of the time period for objection.</P> <P>(3) Summary Sheet. All applications should contain a summary or cover sheetthat provides a synopsis of the following information:</P> <P>(i) Total compensation and expenses requested and any amount(s) previouslyrequested;</P> <P>(ii) Total compensation and expenses previously awarded by the court;</P> <P>(iii) Name and applicable billing rate for each person who billed time duringthe period, and date of bar admission for each attorney;</P> <P>(iv) Total hours billed and total amount of billing for each person whobilled time during billing period; and</P> <P>(v) Computation of blended hourly rate for persons who billed time duringperiod, excluding paralegal or other paraprofessional time.</P> <P>(4) Project Billing Format. (i) To facilitate effective review of theapplication, all time and service entries should be arranged by projectcategories. The project categories set forth in exhibit A should be used to theextent applicable. A separate project category should be used for administrativematters and, if payment is requested, for fee application preparation.</P> <P>(ii) The United States Trustee has discretion to determine that the projectbilling format is not necessary in a particular case or in a particular class ofcases. Applicants should be encouraged to consult with the United States Trusteeif there is a question as to the need for project billing in any particularcase.</P> <P>(iii) Each project category should contain a narrative summary of thefollowing information:</P> <P>(A) a description of the project, its necessity and benefit to the estate,and the status <PRTPAGE P="142"/>of the project including all pending litigation for whichcompensation and reimbursement are requested;</P> <P>(B) identification of each person providing services on the project; and</P> <P>(C) a statement of the number of hours spent and the amount of compensationrequested for each professional and paraprofessional on the project.</P> <P>(iv) Time and service entries are to be reported in chronological order underthe appropriate project category.</P> <P>(v) Time entries should be kept contemporaneously with the services renderedin time periods of tenths of an hour. Services should be noted in detail and notcombined or “lumped” together, with each service showing a separatetime entry; however, tasks performed in a project which total a de minimisamount of time can be combined or lumped together if they do not exceed .5 hourson a daily aggregate. Time entries for telephone calls, letters, and othercommunications should give sufficient detail to identify the parties to and thenature of the communication. Time entries for court hearings and conferencesshould identify the subject of the hearing or conference. If more than oneprofessional from the applicant firm attends a hearing or conference, theapplicant should explain the need for multiple attendees.</P> <P>(5) Reimbursement for Actual, Necessary Expenses. Any expense for whichreimbursement is sought must be actual and necessary and supported bydocumentation as appropriate. Factors relevant to a determination that theexpense is proper include the following:</P> <P>(i) Whether the expense is reasonable and economical. For example, firstclass and other luxurious travel mode or accommodations will normally beobjectionable.</P> <P>(ii) Whether the requested expenses are customarily charged to non-bankruptcyclients of the applicant.</P> <P>(iii) Whether applicant has provided a detailed itemization of all expensesincluding the date incurred, description of expense (e.g., type of travel, typeof fare, rate, destination), method of computation, and, where relevant, name ofthe person incurring the expense and purpose of the expense. Itemized expensesshould 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, wherepracticable, to specific projects.</P> <P>(iv) Whether applicant has prorated expenses where appropriate between theestate and other cases (e.g., travel expenses applicable to more than one case)and has adequately explained the basis for any such proration.</P> <P>(v) Whether expenses incurred by the applicant to third parties are limitedto the actual amounts billed to, or paid by, the applicant on behalf of theestate.</P> <P>(vi) Whether applicant can demonstrate that the amount requested for expensesincurred in-house reflect the actual cost of such expenses to the applicant. TheUnited States Trustee may establish an objection ceiling for any in-houseexpenses that are routinely incurred and for which the actual cost cannot easilybe determined by most professionals (e.g., photocopies, facsimile charges, andmileage).</P> <P>(vii) Whether the expenses appear to be in the nature nonreimbursableoverhead. Overhead consists of all continuous administrative or general costsincident to the operation of the applicant's office and not particularlyattributable to an individual client or case. Overhead includes, but is notlimited to, word processing, proofreading, secretarial and other clericalservices, rent, utilities, office equipment and furnishings, insurance, taxes,local telephones and monthly car phone charges, lighting, heating and cooling,and library and publication charges.</P> <P>(viii) Whether applicant has adhered to allowable rates for expenses as fixedby local rule or order of the Court.</P> <HD SOURCE="HD1">Exhibit A—Project Categories</HD> <P>Here is a list of suggested project categories for use in most bankruptcycases. Only one category should be used for a given activity. Professionalsshould 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 inadvance and agree generally on how activities will be categorized. This list isnot exclusive. The application may contain additional categories as the caserequires. They are generally more applicable to attorneys in chapter 7 andchapter 11, but may be used by all professionals as appropriate.</P> <P> <E T="03">Asset Analysis and Recovery:</E> Identification and review ofpotential assets including causes of action and non-litigation recoveries.</P> <P> <E T="03">Asset Disposition:</E> Sales, leases (§ 365 matters),abandonment and related transaction work.</P> <P> <E T="03">Business Operations:</E> Issues related to debtor-in-possessionoperating in chapter 11 such as employee, vendor, tenant issues and othersimilar problems.</P> <P> <E T="03">Case Administration:</E> Coordination and compliance activities,including preparation of statement of financial affairs; schedules; list ofcontracts; United States Trustee interim statements and operating reports;contacts with the United States Trustee; general creditor inquiries.<PRTPAGE P="143"/> </P> <P> <E T="03">Claims Administration and Objections:</E> Specific claim inquiries;bar date motions; analyses, objections and allowances of claims.</P> <P> <E T="03">Employee Benefits/Pensions:</E> Review issues such as severance,retention, 401K coverage and continuance of pension plan.</P> <P> <E T="03">Fee/Employment Applicants:</E> Preparation of employment and feeapplications for self or others; motions to establish interim procedures.</P> <P> <E T="03">Fee/Employment Objections:</E> Review of and objections to theemployment and fee applications of others.</P> <P> <E T="03">Financing:</E> Matters under §§ 361, 363 and 364including cash collateral and secured claims; loan document analysis.</P> <P> <E T="03">Litigation:</E> There should be a separate category established foreach matter (e.g., XYZ Litigation).</P> <P> <E T="03">Meetings of Creditors:</E> Preparing for and attending theconference of creditors, the § 341(a) meeting and other creditors'committee meetings.</P> <P> <E T="03">Plan and Disclosure Statement:</E> Formulation, presentation andconfirmation; compliance with the plan confirmation order, related orders andrules; disbursement and case closing activities, except those related to theallowance and objections to allowance of claims.</P> <P> <E T="03">Relief From Stay Proceedings:</E> Matters relating to terminationor continuation of automatic stay under § 362.</P> <P>The following categories are generally more applicable to accountants andfinancial advisors, but may be used by all professionals as appropriate.</P> <P> <E T="03">Accounting/Auditing:</E> Activities related to maintaining andauditing books of account, preparation of financial statements and accountanalysis.</P> <P> <E T="03">Business Analysis:</E> Preparation and review of company businessplan; development and review of strategies; preparation and review of cash flowforecasts and feasibility studies.</P> <P> <E T="03">Corporate Finance:</E> Review financial aspects of potentialmergers, acquisitions and disposition of company or subsidiaries.</P> <P> <E T="03">Data Analysis:</E> Management information systems review,installation and analysis, construction, maintenance and reporting ofsignificant case financial data, lease rejection, claims, etc.</P> <P> <E T="03">Litigation Consulting:</E> Providing consulting and expert witnessservices relating to various bankruptcy matters such as insolvency, feasibility,avoiding actions, forensic accounting, etc.</P> <P> <E T="03">Reconstruction Accounting:</E> Reconstructing books and recordsfrom past transactions and bringing accounting current.</P> <P> <E T="03">Tax Issues:</E> Analysis of tax issues and preparation of state andfederal tax returns.</P> <P> <E T="03">Valuation:</E> Appraise or review appraisals of assets.</P> <CITA>[61 FR 24890, May 17, 1996]</CITA> </APPENDIX> </PART> <PART> <EAR>Pt. 59</EAR> <HD SOURCE="HED">PART 59—GUIDELINES ON METHODS OF OBTAININGDOCUMENTARY MATERIALS HELD BY THIRD PARTIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>59.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <SECTNO>59.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>59.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>59.4</SECTNO> <SUBJECT>Procedures.</SUBJECT> <SECTNO>59.5</SECTNO> <SUBJECT>Functions and authorities of the Deputy Assistant AttorneysGeneral.</SUBJECT> <SECTNO>59.6</SECTNO> <SUBJECT>Sanctions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C.2000aa-11).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 942-81, 46 FR 22364, Apr. 17, 1981,unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 59.1</SECTNO> <SUBJECT>Introduction.</SUBJECT> <P>(a) A search for documentary materials necessarily involves intrusions intopersonal privacy. First, the privacy of a person's home or office may bebreached. Second, the execution of such a search may require examination ofprivate papers within the scope of the search warrant, but not themselvessubject to seizure. In addition, where such a search involves intrusions intoprofessional, confidential relationships, the privacy interests of other personsare also implicated.</P> <P>(b) It is the responsibility of federal officers and employees to recognizethe importance of these personal privacy interests, and to protect againstunnecessary intrusions. Generally, when documentary materials are held by adisinterested third party, a subpoena, administrative summons, or governmentalrequest will be an effective alternative to the use of a search warrant and willbe considerably less intrusive. The purpose of the guidelines set forth in thispart is to assure that federal officers and employees do not use search andseizure to obtain documentary materials in the possession of disinterested thirdparties unless reliance on alternative means would substantially jeopardizetheir availability (<E T="03">e.g.,</E> by creating a risk of destruction, etc.)or usefulness (<E T="03">e.g.,</E> by detrimentally delaying the investigation,destroying a chain of custody, etc.). Therefore, the guidelines in this partestablish certain criteria and procedural requirements which must be met beforea search warrant may be used to <PRTPAGE P="144"/>obtain documentary materials held bydisinterested third parties. The guidelines in this part are not intended toinhibit the use of less intrusive means of obtaining documentary materials suchas the use of a subpoena, summons, or formal or informal request.</P> </SECTION> <SECTION> <SECTNO>§ 59.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part—</P> <P>(a) The term <E T="03">attorney for the government</E> shall have the samemeaning as is given that term in Rule 54(c) of the Federal Rules of CriminalProcedure;</P> <P>(b) The term <E T="03">disinterested third party</E> means a person ororganization not reasonably believed to be—</P> <P>(1) A suspect in the criminal offense to which the materials sought underthese guidelines relate; or</P> <P>(2) Related by blood or marriage to such a suspect;</P> <P>(c) The term <E T="03">documentary materials</E> means any materials uponwhich information is recorded, and includes, but is not limited to, written orprinted materials, photographs, films or negatives, audio or video tapes, ormaterials upon which information is electronically or magnetically recorded, <E T="03">but does not include</E> materials which constitute contraband, thefruits or instrumentalities of a crime, or things otherwise criminallypossessed;</P> <P>(d) The term <E T="03">law enforcement officer</E> shall have the samemeaning as the term “federal law enforcement officer” as defined inRule 41(h) of the Federal Rules of Criminal Procedure; and</P> <P>(e) The term <E T="03">supervisory official of the Department of Justice</E>means the supervising attorney for the section, office, or branch within theDepartment of Justice which is responsible for the investigation or prosecutionof the offense at issue, or any of his superiors.</P> </SECTION> <SECTION> <SECTNO>§ 59.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) The guidelines set forth in this part apply, pursuant to section 201 ofthe 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 federalofficer or employee, in connection with the investigation or prosecution of acriminal offense, to obtain documentary materials in the private possession of adisinterested third party.</P> <P>(b) The guidelines set forth in this part do not apply to:</P> <P>(1) Audits, examinations, or regulatory, compliance, or administrativeinspections or searches pursuant to federal statute or the terms of a federalcontract;</P> <P>(2) The conduct of foreign intelligence or counterintelligence activities bya government authority pursuant to otherwise applicable law;</P> <P>(3) The conduct, pursuant to otherwise applicable law, of searches andseizures at the borders of, or at international points of entry into, the UnitedStates in order to enforce the customs laws of the United States;</P> <P>(4) Governmental access to documentary materials for which valid consent hasbeen obtained; or</P> <P>(5) Methods of obtaining documentary materials whose location is known butwhich have been abandoned or which cannot be obtained through subpoena orrequest because they are in the possession of a person whose identity is unknownand cannot with reasonable effort be ascertained.</P> <P>(c) The use of search and seizure to obtain documentary materials which arebelieved to be possessed for the purpose of disseminating to the public a book,newspaper, broadcast, or other form of public communication is subject to titleI of the Privacy Protection Act of 1980 (Sec. 101, <E T="03">et seq.,</E> Pub.L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa, <E T="03">et seq.</E>)), whichstrictly prohibits the use of search and seizure to obtain such materials exceptunder specified circumstances.</P> <P>(d) These guidelines are not intended to supersede any other statutory,regulatory, or policy limitations on access to, or the use or disclosure ofparticular types of documentary materials, including, but not limited to, theprovisions of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401, <E T="03">et seq.</E>), the Drug Abuse Office and Treatment Act of 1972, as amended(21 U.S.C. 1101, <E T="03">et seq.</E>), and the Comprehensive Alcohol Abuse andAlcoholism Prevention, Treatment, and Rehabilitation Act of 1970, as amended (42U.S.C. 4541, <E T="03">et seq.</E>).</P> </SECTION> <SECTION> <PRTPAGE P="145"/> <SECTNO>§ 59.4</SECTNO> <SUBJECT>Procedures. <SU>1</SU> <FTREF/> </SUBJECT> <FTNT> <P> <SU>1</SU> Notwithstanding the provisions of this section, anyapplication for a warrant to search for evidence of a criminal tax offense underthe jurisdiction of the Tax Division must be specifically approved in advance bythe Tax Division pursuant to section 6-2.330 of the U.S. Attorneys'Manual.</P> </FTNT> <P>(a) <E T="03">Provisions governing the use of search warrants generally.</E>(1) A search warrant should not be used to obtain documentary materials believedto be in the private possession of a disinterested third party unless it appearsthat the use of a subpoena, summons, request, or other less intrusivealternative means of obtaining the materials would substantially jeopardize theavailability or usefulness of the materials sought, and the application for thewarrant has been authorized as provided in paragraph (a)(2) of this section.</P> <P>(2) No federal officer or employee shall apply for a warrant to search forand seize documentary materials believed to be in the private possession of adisinterested third party unless the application for the warrant has beenauthorized by an attorney for the government. Provided, however, that in anemergency situation in which the immediacy of the need to seize the materialsdoes not permit an opportunity to secure the authorization of an attorney forthe government, the application may be authorized by a supervisory lawenforcement officer in the applicant's department or agency, if the appropriateU.S. Attorney (or where the case is not being handled by a U.S. Attorney'sOffice, the appropriate supervisory official of the Department of Justice) isnotified of the authorization and the basis for justifying such authorizationunder this part within 24 hours of the authorization.</P> <P>(b) <E T="03">Provisions governing the use of search warrants which mayintrude upon professional, confidential relationships.</E> (1) A search warrantshould not be used to obtain documentary materials believed to be in the privatepossession of a disinterested third party physician, <SU>2</SU> <FTREF/>lawyer, or clergyman, under circumstances in which the materials sought, orother materials likely to be reviewed during the execution of the warrant,contain confidential information on patients, clients, or parishioners which wasfurnished or developed for the purposes of professional counseling or treatment,unless—</P> <FTNT> <P> <SU>2</SU> Documentary materials created or compiled by aphysician, but retained by the physician as a matter of practice at a hospitalor clinic shall be deemed to be in the private possession of the physician,unless the clinic or hospital is a suspect in the offense.</P> </FTNT> <P>(i) It appears that the use of a subpoena, summons, request or other lessintrusive alternative means of obtaining the materials would substantiallyjeopardize the availability or usefulness of the materials sought;</P> <P>(ii) Access to the documentary materials appears to be of substantialimportance to the investigation or prosecution for which they are sought; and</P> <P>(iii) The application for the warrant has been approved as provided inparagraph (b)(2) of this section.</P> <P>(2) No federal officer or employee shall apply for a warrant to search forand seize documentary materials believed to be in the private possession of adisinterested third party physician, lawyer, or clergyman under thecircumstances described in paragraph (b)(1) of this section, unless, upon therecommendation of the U.S. Attorney (or where a case is not being handled by aU.S. Attorney's Office, upon the recommendation of the appropriate supervisoryofficial of the Department of Justice), an appropriate Deputy Assistant AttorneyGeneral has authorized the application for the warrant. Provided, however, thatin an emergency situation in which the immediacy of the need to seize thematerials does not permit an opportunity to secure the authorization of a DeputyAssistant Attorney General, the application may be authorized by the U.S.Attorney (or where the case is not being handled by a U.S. Attorney's Office, bythe appropriate supervisory official of the Department of Justice) if anappropriate Deputy Assistant Attorney General is notified of the authorizationand the basis for justifying such authorization under this part within 72 hoursof the authorization.<PRTPAGE P="146"/> </P> <P>(3) Whenever possible, a request for authorization by an appropriate DeputyAssistant Attorney General of a search warrant application pursuant to paragraph(b)(2) of this section shall be made in writing and shall include:</P> <P>(i) The application for the warrant; and</P> <P>(ii) A brief description of the facts and circumstances advanced as the basisfor recommending authorization of the application under this part.</P> <FP>If a request for authorization of the application is made orally or if, inan emergency situation, the application is authorized by the U.S. Attorney or asupervisory official of the Department of Justice as provided in paragraph(b)(2) of this section, a written record of the request including the materialsspecified in paragraphs (b)(3) (i) and (ii) of this section shall be transmittedto an appropriate Deputy Assistant Attorney General within 7 days. The DeputyAssistant Attorneys General shall keep a record of the disposition of allrequests for authorizations of search warrant applications made under paragraph(b) of this section.</FP> <P>(4) A search warrant authorized under paragraph (b)(2) of this section shallbe executed in such a manner as to minimize, to the greatest extent practicable,scrutiny of confidential materials.</P> <P>(5) Although it is impossible to define the full range of additional doctor-like therapeutic relationships which involve the furnishing or development ofprivate information, the U.S. Attorney (or where a case is not being handled bya U.S. Attorney's Office, the appropriate supervisory official of the Departmentof Justice) should determine whether a search for documentary materials held byother disinterested third party professionals involved in such relationships (<E T="03">e.g.</E> psychologists or psychiatric social workers or nurses) wouldimplicate the special privacy concerns which are addressed in paragraph (b) ofthis section. If the U.S. Attorney (or other supervisory official of theDepartment of Justice) determines that such a search would require review ofextremely confidential information furnished or developed for the purposes ofprofessional counseling or treatment, the provisions of this subsection shouldbe applied. Otherwise, at a minimum, the requirements of paragraph (a) of thissection must be met.</P> <P>(c) <E T="03">Considerations bearing on choice of methods.</E> In determiningwhether, as an alternative to the use of a search warrant, the use of a subpoenaor other less intrusive means of obtaining documentary materials wouldsubstantially jeopardize the availability or usefulness of the materials sought,the following factors, among others, should be considered:</P> <P>(1) Whether it appears that the use of a subpoena or other alternative whichgives advance notice of the government's interest in obtaining the materialswould be likely to result in the destruction, alteration, concealment, ortransfer of the materials sought; considerations, among others, bearing on thisissue may include:</P> <P>(i) Whether a suspect has access to the materials sought;</P> <P>(ii) Whether there is a close relationship of friendship, loyalty, orsympathy between the possessor of the materials and a suspect;</P> <P>(iii) Whether the possessor of the materials is under the domination orcontrol of a suspect;</P> <P>(iv) Whether the possessor of the materials has an interest in preventing thedisclosure of the materials to the government;</P> <P>(v) Whether the possessor's willingness to comply with a subpoena or requestby the government would be likely to subject him to intimidation or threats ofreprisal;</P> <P>(vi) Whether the possessor of the materials has previously acted to obstructa criminal investigation or judicial proceeding or refused to comply with oracted in defiance of court orders; or</P> <P>(vii) Whether the possessor has expressed an intent to destroy, conceal,alter, or transfer the materials;</P> <P>(2) The immediacy of the government's need to obtain the materials;considerations, among others, bearing on this issue may include:</P> <P>(i) Whether the immediate seizure of the materials is necessary to preventinjury to persons or property;</P> <P>(ii) Whether the prompt seizure of the materials is necessary to preservetheir evidentiary value;<PRTPAGE P="147"/> </P> <P>(iii) Whether delay in obtaining the materials would significantly jeopardizean ongoing investigation or prosecution; or</P> <P>(iv) Whether a legally enforceable form of process, other than a searchwarrant, is reasonably available as a means of obtaining the materials.</P> <FP>The fact that the disinterested third party possessing the materials mayhave grounds to challenge a subpoena or other legal process is not in itself alegitimate basis for the use of a search warrant.</FP> </SECTION> <SECTION> <SECTNO>§ 59.5</SECTNO> <SUBJECT>Functions and authorities of the Deputy Assistant Attorneys General.</SUBJECT> <P>The functions and authorities of the Deputy Assistant Attorneys General setout in this part may at any time be exercised by an Assistant Attorney General,the Associate Attorney General, the Deputy Attorney General, or the AttorneyGeneral.</P> </SECTION> <SECTION> <SECTNO>§ 59.6</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <P>(a) Any federal officer or employee violating the guidelines set forth inthis part shall be subject to appropriate disciplinary action by the agency ordepartment by which he is employed.</P> <P>(b) Pursuant to section 202 of the Privacy Protection Act of 1980 (sec. 202,Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa-12)), an issuerelating to the compliance, or the failure to comply, with the guidelines setforth in this part may not be litigated, and a court may not entertain such anissue as the basis for the suppression or exclusion of evidence.</P> </SECTION> </PART> <PART> <EAR>Pt. 60</EAR> <HD SOURCE="HED">PART 60—AUTHORIZATION OF FEDERAL LAW ENFORCEMENTOFFICERS TO REQUEST THE ISSUANCE OF A SEARCH WARRANT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>60.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>60.2</SECTNO> <SUBJECT>Authorized categories.</SUBJECT> <SECTNO>60.3</SECTNO> <SUBJECT>Agencies with authorized personnel.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Rule 41(h), Fed. R. Crim. P (18 U.S.C. appendix).</P> </AUTH> <SECTION> <SECTNO>§ 60.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This regulation authorizes certain categories of federal law enforcementofficers to request the issuance of search warrants under Rule 41, Fed. R. Crim.P., and lists the agencies whose officers are so authorized. Rule 41(a) providesin part that a search warrant may be issued “upon the request of a federallaw enforcement officer,” and defines that term in Rule 41(h) as“any government agent, * * * who is engaged in the enforcement of thecriminal laws and is within the category of officers authorized by the AttorneyGeneral to request the issuance of a search warrant.” The publication ofthe categories and the listing of the agencies is intended to inform the courtsof the personnel who are so authorized. It should be noted that only in the veryrare and emergent case is the law enforcement officer permitted to seek a searchwarrant without the concurrence of the appropriate U.S. Attorney's office.Further, in all instances, military agents of the Department of Defense mustobtain the concurrence of the appropriate U.S. Attorney's Office before seekinga search warrant.</P> <CITA>[Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by OrderNo. 1026-83, 48 FR 37377, Aug. 18, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 60.2</SECTNO> <SUBJECT>Authorized categories.</SUBJECT> <P>The following categories of federal law enforcement officers are authorizedto request the issuance of a search warrant:</P> <P>(a) Any person authorized to execute search warrants by a statute of theUnited States.</P> <P>(b) Any person who has been authorized to execute search warrants by the headof a department, bureau, or agency (or his delegate, if applicable) pursuant toany statute of the United States.</P> <P>(c) Any peace officer or customs officer of the Virgin Islands, Guam, or theCanal Zone.</P> <P>(d) Any officer of the Metropolitan Police Department, District of Columbia.</P> <P>(e) Any person authorized to execute search warrants by the President of theUnited States.<PRTPAGE P="148"/> </P> <P>(f) Any civilian agent of the Department of Defense not subject to militarydirection who is authorized by statute or other appropriate authority to enforcethe criminal laws of the United States.</P> <P>(g) Any civilian agent of the Department of Defense who is authorized toenforce the Uniform Code of Military Justice.</P> <P>(h) Any military agent of the Department of Defense who is authorized toenforce the Uniform Code of Military Justice.</P> <P>(i) Any special agent of the Office of Inspector General, Department ofTransportation.</P> <P>(j) Any special agent of the Investigations Division of the Office ofInspector General, Small Business Administration.</P> <P>(k) Any special agent of the Office of Investigations and the Office of LaborRacketeering of the Office of Inspector General, Department of Labor.</P> <P>(l) Any special agent of the Office of Investigations of the Office ofInspector General, General Services Administration.</P> <P>(m) Any special agent of the Office of Inspector General, Department ofHousing and Urban Development.</P> <P>(n) Any special agent of the Office of Inspector General, Department ofInterior.</P> <P>(o) Any special agent of the Office of Inspector General, VeteransAdministration.</P> <P>(p) Any special agent of the Office of Inspector General, Social SecurityAdministration.</P> <P>(q) Any special agent of the Office of Inspector General, Department ofHealth and Human Services.</P> <CITA>[Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by OrderNo. 1026-83, 48 FR 37377, Aug. 18, 1983; Order No. 1143-86, 51 FR26878, July 28, 1986; Order No. 1188-87, 52 FR 19138, May 21, 1987; OrderNo. 1327-89, 54 FR 9431, Mar. 7, 1989; Order No. 2000-95, 60 FR62734, Dec. 7, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 60.3</SECTNO> <SUBJECT>Agencies with authorized personnel.</SUBJECT> <P>The following agencies have law enforcement officers within the categorieslisted in § 60.2 of this part:</P> <P>(a) <E T="03">National Law Enforcement Agencies:</E> </P> <P>(1) Department of Agriculture:</P> <P>National Forest Service</P> <P>Office of the Inspector General</P> <P>(2) Department of Defense:</P> <P>Defense Investigative Service Criminal Investigation Command, U.S. Army</P> <P>Naval Investigative Service, U.S. Navy</P> <P>Office of Assistant Inspector General for Investigations, Office of DefenseInspector General</P> <P>Office of Special Investigation, U.S. Air Force</P> <P>(3) Department of Health and Human Services:</P> <P>Center for Disease Control</P> <P>Food and Drug Administration</P> <P>Office of Investigations, Office of the Inspector General</P> <P>(4) Department of the Interior:</P> <P>Bureau of Indian Affairs</P> <P>Bureau of Sport Fisheries and Wildlife</P> <P>National Park Service</P> <P>(5) Department of Justice:</P> <P>Drug Enforcement Administration</P> <P>Federal Bureau of Investigation</P> <P>Immigration and Naturalization Service</P> <P>U.S. Marshals Service</P> <P>(6) Department of Transportation:</P> <P>U.S. Coast Guard</P> <P>Office of Inspector General, Department of Transportation</P> <P>(7) Department of the Treasury:</P> <P>Bureau of Alcohol, Tobacco, and Firearms</P> <P>Executive Protective Service</P> <P>Internal Revenue Service</P> <P>Criminal Investigation Division</P> <P>Internal Security Division, Inspection Service</P> <P>U.S. Customs Service</P> <P>U.S. Secret Service</P> <P>(8) U.S. Postal Service:</P> <P>Inspection Service</P> <P>Office of Inspector General</P> <P>(9) Department of Commerce: Office of Export Enforcement</P> <P>(10) Small Business Administration: Investigations Division of the Office ofInspector General</P> <P>(11) Department of State: Diplomatic Security Service</P> <P>(12) Department of Labor: Office of Investigations and Office of LaborRacketeering of the Office of Inspector General</P> <P>(13) General Services Administration: Office of Inspector General<PRTPAGE P="149"/> </P> <P>(14) Department of Housing and Urban Development: Office of Inspector General</P> <P>(15) Department of the Interior: Office of Inspector General</P> <P>(16) Veterans Administration: Office of Inspector General</P> <P>(17) Environmental Protection Agency: Office of Criminal Investigations</P> <P>(18) Social Security Administration, Office of Inspector General</P> <P>(b) <E T="03">Local Law Enforcement Agencies:</E> </P> <P>(1) District of Columbia Metropolitan Police Department</P> <P>(2) Law Enforcement Forces and Customs Agencies of Guam, The Virgin Islands,and the Canal Zone.</P> <CITA>[Order No. 826-79, 44 FR 21785, Apr. 12, 1979]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citationsaffecting § 60.3, see the List of Sections Affected, which appears inthe Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> </PART> <PART> <EAR>Pt. 61</EAR> <HD SOURCE="HED">PART 61—PROCEDURES FOR IMPLEMENTING THE NATIONALENVIRONMENTAL POLICY ACT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>61.1</SECTNO> <SUBJECT>Background.</SUBJECT> <SECTNO>61.2</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>61.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>61.4</SECTNO> <SUBJECT>Major federal action.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Implementing Procedures</HD> <SECTNO>61.5</SECTNO> <SUBJECT>Typical classes of action.</SUBJECT> <SECTNO>61.6</SECTNO> <SUBJECT>Consideration of environmental documents in decisionmaking.</SUBJECT> <SECTNO>61.7</SECTNO> <SUBJECT>Legislative proposals.</SUBJECT> <SECTNO>61.8</SECTNO> <SUBJECT>Classified proposals.</SUBJECT> <SECTNO>61.9</SECTNO> <SUBJECT>Emergencies.</SUBJECT> <SECTNO>61.10</SECTNO> <SUBJECT>Ensuring Department NEPA compliance.</SUBJECT> <SECTNO>61.11</SECTNO> <SUBJECT>Environmental information.</SUBJECT> <APP>Appendix A to Part 61—Bureau of Prisons Procedures Relating to theImplementation of the National Environmental Policy Act</APP> <APP>Appendix B to Part 61—Drug Enforcement Administration ProceduresRelating to the Implementation of the National Environmental Policy Act</APP> <APP>Appendix C to Part 61—Immigration and Naturalization ServiceProcedures Relating to the Implementation of the National Environmental PolicyAct</APP> <APP>Appendix D to Part 61—Office of Justice Assistance, Research, andStatistics Procedures Relating to the Implementation of the NationalEnvironmental Policy Act</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>28 U.S.C. 509, 510; 5 U.S.C. 301; Executive Order No.11991.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 927-81, 46 FR 7953, Jan. 26, 1981, unlessotherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 61.1</SECTNO> <SUBJECT>Background.</SUBJECT> <P>(a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 <E T="03">et seq.,</E> establishes national policies and goals for the protectionof the environment. Section 102(2) of NEPA contains certain proceduralrequirements directed toward the attainment of such goals. In particular, allfederal agencies are required to give appropriate consideration to theenvironmental effects of their proposed actions in their decisionmaking and toprepare detailed environmental statements on proposals for legislationsignificantly affecting the quality of the human environment and on other majorfederal actions significantly affecting the quality of the human environment.</P> <P>(b) Executive Order No. 11991 of May 24, 1977, directed the Council onEnvironmental Quality (CEQ) to issue regulations to implement the proceduralprovisions of NEPA. Accordingly, CEQ issued final NEPA regulations, 40 CFR parts1500-1508, (“The NEPA regulations”). These regulations providethat each federal agency shall, as necessary, adopt implementing procedures tosupplement the regulations. The NEPA regulations identify those sections of theregulations which must be addressed in agency procedures.</P> </SECTION> <SECTION> <SECTNO>§ 61.2</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part is to establish Department of Justice procedureswhich supplement the relevant provisions of the NEPA regulations and to providefor the implementation of those provisions identified in 40 CFR 1507.3(b).</P> </SECTION> <SECTION> <SECTNO>§ 61.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>The procedures set forth in this part, with the exception of the appendices,apply to all organizational elements of the Department of Justice. Internalprocedures applicable, respectively, to <PRTPAGE P="150"/>the Bureau of Prisons, the DrugEnforcement Administration, the Immigration and Naturalization Service, and theOffice of Justice Assistance, Research and Statistics are set forth in theappendices to this part, for informational purposes.</P> </SECTION> <SECTION> <SECTNO>§ 61.4</SECTNO> <SUBJECT>Major federal action.</SUBJECT> <P>The NEPA regulations define “major federal action.” “Majorfederal action” does not include action taken by the Department of Justicewithin the framework of judicial or administrative enforcement proceedings orcivil or criminal litigation, including but not limited to the submission ofconsent or settlement agreements and investigations. Neither does “majorfederal action” include the rendering of legal advice.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Implementing Procedures</HD> <SECTION> <SECTNO>§ 61.5</SECTNO> <SUBJECT>Typical classes of action.</SUBJECT> <P>(a) The NEPA regulations require agencies to establish three typical classesof action for similar treatment under NEPA. These classes are: actions normallyrequiring environmental impact statements (EIS), actions normally not requiringassessments or EIS, and actions normally requiring assessments but notnecessarily EIS. Typical Department of Justice actions falling within each classhave been identified as follows:</P> <P>(1) <E T="03">Actions normally requiring EIS.</E> None, except as noted inthe appendices to this part.</P> <P>(2) <E T="03">Actions normally not requiring assessments or EIS.</E> Actionsnot significantly affecting the human environment.</P> <P>(3) <E T="03">Actions normally requiring assessments but not necessarilyEIS.</E> (i) Proposals for major federal action;</P> <P>(ii) Proposals for legislation developed by or with the significantcooperation and support of the Department of Justice and for which theDepartment has primary responsibility for the subject matter.</P> <P>(b) The Department of Justice shall independently determine whether an EIS oran environmental assessment is required where:</P> <P>(1) A proposal for agency action is not covered by one of the typical classesof action above; or</P> <P>(2) For actions which are covered, the presence of extraordinarycircumstances indicates that some other level of environmental review may beappropriate.</P> </SECTION> <SECTION> <SECTNO>§ 61.6</SECTNO> <SUBJECT>Consideration of environmental documents in decisionmaking.</SUBJECT> <P>The NEPA regulations contain requirements to ensure adequate consideration ofenvironmental documents in agency decisionmaking. To implement theserequirements, the Department of Justice shall:</P> <P>(a) Consider from the earliest possible point in the process all relevantenvironmental documents in evaluating proposals for Department action;</P> <P>(b) Ensure that all relevant environmental documents, comments and responsesaccompany the proposal through existing Department review processes;</P> <P>(c) Consider those alternatives encompassed by the range of alternativesdiscussed when evaluating proposals for Department action, or if it is desirableto consider substantially different alternatives, first supplement theenvironmental document to include analysis of the additional alternatives;</P> <P>(d) Where an EIS has been prepared, consider the specific alternativesanalyzed in the EIS when evaluating the proposal which is the subject of theEIS.</P> </SECTION> <SECTION> <SECTNO>§ 61.7</SECTNO> <SUBJECT>Legislative proposals.</SUBJECT> <P>(a) Each subunit of the Department of Justice which develops or significantlycooperates and supports a bill or legislative proposal to Congress which mayhave an effect on the environment shall, in the early stages of development ofthe bill or proposal, undertake an assessment to determine whether thelegislation will significantly affect the environment. The Office of LegislativeAffairs shall monitor legislative proposals to assure that Department proceduresfor legislation are complied with. Requests for appropriations need not be soanalyzed.</P> <P>(b) If the Department of Justice has primary responsibility for the subject <PRTPAGE P="151"/>matter involved and if the subunit affected finds that the bill or legislativeproposal has a significant impact on the environment, that subunit shall preparea legislative environmental impact statement in compliance with 40 CFR 1506.8.</P> </SECTION> <SECTION> <SECTNO>§ 61.8</SECTNO> <SUBJECT>Classified proposals.</SUBJECT> <P>If an environmental document includes classified matter, a version containingonly unclassified material shall be prepared unless the head of the office,board, bureau or division determines that preparation of an unclassified versionis not feasible.</P> </SECTION> <SECTION> <SECTNO>§ 61.9</SECTNO> <SUBJECT>Emergencies.</SUBJECT> <P>CEQ shall be consulted when emergency circumstances make it necessary to takea major federal action with significant environmental impact without followingotherwise applicable procedural requirements under NEPA.</P> </SECTION> <SECTION> <SECTNO>§ 61.10</SECTNO> <SUBJECT>Ensuring Department NEPA compliance.</SUBJECT> <P>The Land and Natural Resources Division shall have final responsibility forensuring compliance with the requirements of the procedures set forth in thispart.</P> </SECTION> <SECTION> <SECTNO>§ 61.11</SECTNO> <SUBJECT>Environmental information.</SUBJECT> <P>Interested persons may contact the Land and Natural Resources Division forinformation regarding Department Justice compliance with NEPA.</P> </SECTION> <APPENDIX> <EAR>Pt. 61, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 61—Bureau of PrisonsProcedures Relating to the Implementation of the National Environmental PolicyAct</HD> <P>1. <E T="03">Authority: (CEQ Regulations)</E> NEPA, the Environmental QualityImprovement Act of 1970, as amended (42 U.S.C. 4371 et seq.) section 309 of theClean Air Act, as amended (42 U.S.C. 7609), and Executive Order 11514,Protection and Enhancement of Environmental Quality (March 5, 1970, as amendedby Executive Order 11991, May 24, 1977.)</P> <P>2. <E T="03">Purpose:</E> This guide shall apply to efforts associated withthe leasing, purchase, design, construction, management, operation andmaintenance of new and existing Bureau of Prisons facilities as well as theclosing of existing Bureau of Prisons institutions. These procedures shall beused by the Regional Facilities Administration staff as well as the CentralOffice of Facilities Development and Operations staff. Activities concerningBureau of Prisons compliance with NEPA shall be handled by and coordinated withthese staff members and coordinated by Central Office Personnel. (Referenceshall be made to Part 1507—Agency Compliance of the CEQ Regulations.)</P> <P>3. <E T="03">Agency Description:</E> The Bureau of Prisons, a component ofthe U.S. Department of Justice, is responsible for providing custody and care tocommitted Federal offenders in an integrated system of correctional institutionsacross the nation.</P> <P>The Bureau of Prisons performs its mission of protecting society byimplementing the judgments of the Federal courts and safeguarding Federaloffenders committed to the custody of the Attorney General.</P> <P>The administration of the Federal Prison System consists of six divisions.The central office in Washington, DC, is supplemented by five regional officeslocated in Atlanta, San Francisco, Dallas, Kansas City, and Philadelphia.</P> <P>4. (<E T="03">Reference: § 1501.2(d)(1)—CEQ Regulations</E>)The Bureau of Prisons shall make available the necessary technical staff toreview proposals and prepare feasibility studies for facilities underconsideration for possible use as Federal correctional institutions. (<E T="03">Reference: § 1501.2(d)(2)—CEQ Regulations</E>) At theappropriate time after project funding approval, the Bureau of Prisons, havingidentified a preferred general area for a new facility, will inform the membersof Congress representing the affected locale of the intent to pursue theestablishment of a Federal correctional institution in the area. This activationmight include but not be limited to: (1) The construction of a new facility; (2)or Surplus Federal, state, or local facility to the Bureau of Prisons for prioruse. The Bureau of Prisons shall advise and inform interested parties concerningproposed plans which might result in implementation of the NEPA regulations.After initial informal contacts have been made, the Bureau of Prisons will withthe aid of local area officials, begin to identify desired locations for theproposed new facility. In the event of proposed activation of an existingfacility for prison use, the Bureau of Prisons shall seek initial involvementamong local officials and advice on alternative courses of action.</P> <P>In either case, if the issues appear significantly controversial, an informalpublic hearing will be held to present the issues to the community and seektheir involvement in the planning process. Upon completion of the preliminarygroundwork described above, the Bureau of Prisons will issue an A-95letter of intent to (1) either file an EIS; (2) file an EIA; or (3) discontinuethe efforts of locating a facility in the proposed area.<PRTPAGE P="152"/> </P> <P>5. <E T="03">Public Involvement: (Reference: Part 1506.6(3)—CEQRegulations)</E> Information regarding the policies of the Bureau of Prisons forimplementing the NEPA process can be obtained from: Bureau of Prisons FacilitiesDevelopment and Operations Office, 320 First Street, NW., Washington, DC 20534.</P> <P>6. <E T="03">Supplemental Statements: (Reference: Part 1502.9(c)(3)—CEQRegulations)</E> If it is necessary to prepare a supplement to a Draft or FinalEnvironmental Impact Statement, the supplement shall be introduced into theproject administrative record.</P> <P>7. <E T="03">Bureau of Prisons Decisionmaking Procedures: (Reference: Part1501.1 (a) through (e)—CEQ Regulations)</E> Major decision points likelyto involve the NEPA process:</P> <P>(1) Construction of a new Federal correctional institution.</P> <P>(2) Closing of an existing Federal correctional institution.</P> <P>(3) Activation of a surplus facility for conversion to a Federal correctionalinstitution.</P> <P>(4) Significant change from the original mission of a Federal correctionalinstitution.</P> <P>(5) New construction at an existing Federal correctional institution whichmight significantly impact upon the existing community environment.</P> <P>When the inclusion of certain voluminous data in environmental documentswould prove impractical, the Bureau of Prisons will summarize the data andretain the original material as a part of its administrative record for theproject. This material will be made available to the public in a central placeto be designated in Environmental Impact Statements, and upon written request orcourt order copies of specified material will be provided. A charge may be madefor copying, in accordance with current Department of Justice guidelines forreproduction of records.</P> <P>Decisionmakers shall verify the consideration of all available options in theEIS with a comparative analysis of the alternatives to be considered in thedecisionmaking process.</P> <P>8. <E T="03">Those Actions Which Normally Do Require Environmental ImpactStatements: (Reference: § 1507.3(b)(2)(ii)—CEQ Regulations)</E>(1) New Federal correctional institution construction projects.</P> <P>(2) Acquisition of surplus facilities for conversion to Federal correctionalinstitutions, if the impact upon the quality of the human environment is likelyto be significant.</P> <P>(3) The closing of an existing Federal correctional institution, if that islikely to have a significant impact upon the quality of the human environment.</P> <P>(4) Significant change from the original mission of a Federal correctionalinstitution when the issue is likely to have an impact upon the quality of thehuman environment.</P> <P>(5) New construction at an existing Federal correctional institution whichwould significantly affect the physical capacity, when the action is likely tohave an impact upon the quality of the human environment.</P> <P>(6) New construction at an existing Federal correctional institution whichwould significantly impact upon the quality of the community environment.</P> <P>9. <E T="03">Those Actions Which Normally do not Require Either anEnvironmental Impact Statement or an Environmental Assessment: (Reference: Part1507.3(b)(2)(ii) and Part 1508.4—CEQ Regulations)</E> (1) Increase ordecrease in population of a facility, above or below its physical capacity.</P> <P>(2) Construction projects for existing facilities, including but not limitedto: additions and remodeling; replacement of building systems and components;maintenance and operations, repairs, and general improvements; when suchprojects do not significantly alter the program of the facility or significantlyimpact upon the quality of the environment in the community.</P> <P>(3) Contracts for halfway houses, community corrections centers,comprehensive sanction centers, community detention centers, or other similarfacilities.</P> <P>10. <E T="03">Those Actions Which Normally Require Environmental Assessmentsbut not Necessarily Environmental Impact Statements: (Reference:§ 1507.3(b)(2)(iii)—CEQ Regulations)</E> (1) Acquisition ofsurplus facilities for conversion to Federal correctional institution.</P> <P>(2) Construction of additional facilities at an existing institution when theimpact on the local environment is not seen to be significant, but when thealteration of programs or operations may be controversial.</P> <P>(3) The closing of an institution or significant reduction in population ofan institution when the impact on the local environment is not seen to besignificant.</P> <P>11. <E T="03">Emergency Actions: (Reference: Part 1506.11—CEQRegulations).</E> After consultation with the Council on Environmental Qualityregarding alternative courses of action, the Bureau of Prisons may take actionwithout observing the provisions of the CEQ Regulations and these Bureau ofPrisons Procedures in the following cases:</P> <P>(1) When the replacement of suddenly unavailable local utilities services,and/or resources, due to circumstances beyond the control of the Bureau ofPrisons, is vital to the lives and safety of inmates and staff or protection ofU.S. Government property.</P> <P>(2) When unforeseen circumstances, such as greatly increased judicialcommitments, suddenly dictate the activation of facilities to house increasednumbers of Federal offenders and detainees significantly above the physicalcapacity of the combined Bureau of Prisons facilities in order to insure thelives and safety of inmates and staff or protection of U.S. Government property.<PRTPAGE P="153"/> </P> <P>(3) When the sudden destruction of or damage to institutions dictatesimmediate replacement in order to protect the lives and safety of inmates andstaff and protection of U.S. Government property.</P> <P>12. Review.</P> <P>(1) If a proposed action is not covered by Sections 8 through 10 of thisappendix, the Bureau of Prisons will independently determine whether to prepareeither an environmental impact statement or an environmental assessment.</P> <P>(2) When a proposed action that could be classified as a categoricalexclusion under Section 9 of this appendix involves extraordinary circumstancesthat may affect the environment, the Bureau shall conduct appropriateenvironmental studies to determine if the categorical exclusion classificationis proper for that proposed action.</P> <CITA>[Order No. 927-81, 46 FR 7953, Jan. 26, 1981, as amended by OrderNo. 2142-98, 63 FR 11121, Mar. 6, 1998]</CITA> </APPENDIX> <APPENDIX> <EAR>Pt. 61, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 61—Drug EnforcementAdministration Procedures Relating to the Implementation of the NationalEnvironmental Policy Act</HD> <P>1. Applicability.</P> <P>2. Typical Classes of Action Requiring Similar Treatment Under NEPA.</P> <P>3. Environmental Information.</P> <P>1. <E T="03">Applicability.</E> </P> <P>This part applies to all organizational elements of the Drug EnforcementAdministration [DEA].</P> <P>2. <E T="03">Typical Classes of Action Requiring Similar Treatment UnderNEPA.</E> </P> <P>(a) Section 1507.3(c)(2) in conjunction with § 1508.4 requiresagencies to establish three typical classes of action for similar treatmentunder NEPA. These typical classes of action are set forth below:</P> <GPOTABLE CDEF="s60,r120,r100" COLS="3" OPTS="L2"> <BOXHD> <CHED H="1">(1) Actions normally requiring EIS</CHED> <CHED H="1">(2) Actions normally not requiring environmental assessments or EIS(Categorical exclusions)</CHED> <CHED H="1">(3) Actions normally requiring environmental assessments but notnecessarily EIS</CHED> </BOXHD> <ROW> <ENT I="01">None</ENT> <ENT>Scheduling of drugs as controlledsubstances</ENT> <ENT>Chemical eradication of plant species from which controlledsubstances may be extracted.</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Establishing quotas for controlled substances</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Registration of persons authorized to handlecontrolled substances</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Storage and destruction of controlled substances</ENT> </ROW> <ROW> <ENT I="22"/> <ENT>Manual eradication of plant species from whichcontrolled substances may be extracted</ENT> </ROW> </GPOTABLE> <P>(b) For the principal DEA program requiring environmental review, thefollowing chart identifies the point at which the NEPA process begins, the pointat which it ends, and the key agency officials or offices required to considerenvironmental documents in their decisionmaking.</P> <GPOTABLE CDEF="s50,r50,r50,r50" COLS="4" OPTS="L2"> <BOXHD> <CHED H="1">Principal program</CHED> <CHED H="1">Start of NEPA process</CHED> <CHED H="1">Completion of NEPA process</CHED> <CHED H="1">Key officials or offices required to consider environmentaldocuments</CHED> </BOXHD> <ROW> <ENT I="01">Eradication of plant species from which controlled substancesmay be extracted</ENT> <ENT>Prepare an environmental assessment</ENT> <ENT>Final review ofenvironmental assessment or Environmental Impact Statement</ENT> <ENT>Office of Scienceand Technology.</ENT> </ROW> </GPOTABLE> <P>(c) The DEA shall independently determine whether an EIS or an environmentalassessment is required where:</P> <P>(1) A proposal for agency action is not covered by one of the typical classesof action in (a) above; or</P> <P>(2) For actions which are covered, the presence of extraordinarycircumstances indicates that some other level of environmental review may beappropriate.</P> <P>3. <E T="03">Environmental Information</E> </P> <P>Interested persons may contact the Office of Science and Technology forinformation regarding the DEA compliance with NEPA.</P> </APPENDIX> <APPENDIX> <EAR>Pt. 61, App. C</EAR> <HD SOURCE="HED">Appendix C to Part 61—Immigration andNaturalization Service Procedures Relating to the Implementation of the NationalEnvironmental Policy Act</HD> <P>1. <E T="03">General.</E> These procedures are published pursuant to theNational Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 etseq.), the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C.4371 et seq.). Section 309 of the Clean <PRTPAGE P="154"/>Air Act, as amended (42 U.S.C. 7609),and Executive Order 11514, Protection and Enhancement of Environmental Quality(March 5, 1970, as amended by Executive Order 11991, May 24, 1977).</P> <P>2. <E T="03">Purpose.</E> These procedures shall apply to efforts associatedwith the leasing, purchase, design, construction, and maintenance of new andexisting INS facilities. All activities concerning the Immigration andNaturalization Service's compliance with NEPA shall be coordinated with CentralOffice Engineering staff.</P> <P>3. <E T="03">Agency Description.</E> The INS administers and enforces theimmigration and nationality laws. This includes determining the admissibility ofpersons seeking entry into the United States and adjudicating requests forbenefits and privileges under the immigration and nationality laws. Theenforcement actions of INS involve the prevention of illegal entry of personsinto the United States and the investigation and apprehension of aliens alreadyin the country who because of inadmissibility at entry or misconduct committedfollowing entry may be subject to deportation.</P> <P>In carrying out its statutory enforcement responsibilities. the INS isauthorized to arrest and detain aliens believed to be deportable and toeffectuate removal from the U.S. of aliens found deportable after hearing.</P> <P>4. <E T="03">Designation of Responsible Official.</E> The Chief Engineer,Facilities and Engineering Branch shall be the liaison official for INS with theCouncil on Environmental Quality, the Environmental Protection Agency, and theother departments and agencies concerning environmental matters. Duties of theChief Engineer include:</P> <P>(a) Insuring compliance with the requirements of NEPA and that the actionswith respect to the fulfillment of NEPA are coordinated;</P> <P>(b) Providing for procedural and substantive training on environmentalissues, policy, procedures and clearance requirements;</P> <P>(c) Providing guidance in the preparation and processing of EnvironmentalImpact Statements; and</P> <P>(d) Participating in policy formulation, as necessary, in the application ofthe requirements of the National Environmental Policy Act of 1969.</P> <P>5. <E T="03">NEPA and INS Planning.</E> (a) INS will make available to thepublic proposals and feasibility studies for facilities under consideration forpossible use as INS facilities.</P> <P>(b) Interested parties identified as such by the local clearinghouse (asestablished by the Office of Management and Budget Circular No. A-95) willbe advised and informed concerning proposed plans which might involve NEPAregulations.</P> <P>(c) Upon completion of the preliminary groundwork described above, INS willissue an A-95 Letter of Intent to:</P> <P>(1) File an Environmental Impact Assessment (EIA);</P> <P>(2) File an Environmental Impact Statement (EIS). (Reference:1501.2—CEQ Regulations.)</P> <P>6. <E T="03">Public Involvement.</E> Information regarding the policies ofINS for implementing the NEPA process can be obtained from: Immigration andNaturalization Service, Facilities and Engineering Branch, 425 I Street NW.,Washington, DC 20536. (Reference: Part 1506.6(3)—CEQ Regulations.)</P> <P>7. <E T="03">Supplemental Statements.</E> If it is necessary to prepare asupplement to a draft or a Final Environmental Impact Statement, the supplementshall be introduced into the administrative record pertaining to the project.(Reference: Part 1502.9(c)(3)—CEQ Regulations.)</P> <P>8. <E T="03">INS Decisionmaking Procedure.</E> (a) <E T="03">Policy</E>—(1) The Chief Engineer will consider all practicalmeans, including the “no-action” alternative and other alternativesto the proposed action, which will enhance, protect, and preserve the quality ofthe environment, restore environmental quality previously lost, and minimize andmitigate unavoidable adverse effects. He will analyze and study the environmenttogether with engineering, economic, social and other considerations to insurebalanced decisionmaking in the overall public interest.</P> <P>(2) During INS project planning and the related decisonmaking process,environmental effects will be weighed together with the engineering, economicand social and other considerations affecting the public interest.</P> <P>(b) <E T="03">Preparation of the environmental impact statements.</E> (1)Situations where Environmental Impact Statements (EIS) are required aredescribed in section 102(2)(C) of NEPA. EIS constitute an integral of the planformulation process and serve as a summation and evaluation of the effects, bothbeneficial and adverse, that each alternative action would have on theenvironment, and as an explanation and objective evaluation of the plan which isfinally recommended.</P> <P>(2) Should the Chief Engineer determine in assessing the impact of a minoraction that an environmental statement is not required, the determination tothat effect will be placed in the project file. This negative determinationshall be made available to the public as required in § 1506.6 of theCEQ regulations and shall include a statement of the facts and the basis for thedecision.</P> <P>(3) When inclusion of certain voluminous data in an EIS would prove to beimpractical, INS will summarize the data and retain the original material as apart of its administrative record for the project. This material will be madeavailable to the public in a central place to be designated in the EIS, <PRTPAGE P="155"/>and uponwritten request or court order, copies of specified material will be provided. Acharge for the reproduction of records may be made in accordance with currentDepartment of Justice guidelines. (Reference: Part 1505 CEQ Regulations.)</P> <P>9. <E T="03">Actions Which Normally Do Require Environmental ImpactStatements:</E> (a) Construction of a new INS facility which would have asignificant impact upon the environment.</P> <P>(b) Construction of a new addition to an existing INS facility which wouldsignificantly affect the physical capacity and which would have a significantimpact upon the environment. (Reference: § 1507.3(b)(2)(i)—CEQRegulations.)</P> <P>10. <E T="03">Actions Which Normally Do Not Require Either An EnvironmentalImpact Statement Or An Environmental Assessment:</E> (a) Construction projectsfor existing facilities including but not limited to: Remodeling; replacement ofbuilding systems and components; maintenance and operations repairs and generalimprovements when such projects do not significantly alter the initial occupancyand program of the facility or significantly impact upon the environment.</P> <P>(b) Increase or decrease in population of a facility within its physicalcapacity. (Reference: Part 1507.3(b)(2)(ii) and Part 1508.4—CEQRegulations.)</P> <P>11. <E T="03">Actions Which Normally Require An Environmental Assessment ButNot Necessarily Environmental Impact Statements:</E> </P> <P>(a) Construction of a new addition to an existing INS facility which mayaffect the physical capacity and may have some impact upon the environment.</P> <P>(b) Closing of an INS facility which may have some impact on the environment.(Reference: § 1507.3(b)(2)(iii)—CEQ Regulations.)</P> </APPENDIX> <APPENDIX> <EAR>Pt. 61, App. D</EAR> <HD SOURCE="HED">Appendix D to Part 61—Office of JusticeAssistance, Research, and Statistics Procedures Relating to the Implementationof the National Environmental Policy Act</HD> <HD SOURCE="HD1">1. Authority</HD> <P>These procedures are issued pursuant to the National Environmental Policy Act(NEPA) of 1969, 42 U.S.C. 4321, <E T="03">et seq.,</E> Regulations of theCouncil on Environmental Quality, 40 CFR part 1500, <E T="03">et seq.,</E> theEnvironmental Quality Improvement Act of 1970, as amended, 42 U.S.C. 4371, <E T="03">et seq.,</E> Section 309 of the Clean Air Act, as amended, 42 U.S.C.7609, and Executive Order 11514, “Protection and Enhancement ofEnvironmental Quality,” March 5, 1970, as amended by Executive Order11991, March 24, 1977.</P> <HD SOURCE="HD1">2. Purpose</HD> <P>It is the purpose of these procedures to supplement the procedures of theDepartment of Justice so as to insure compliance with NEPA. These proceduressupersede the regulations contained in 28 CFR part 19.</P> <HD SOURCE="HD1">3. Agency description</HD> <P>The Office of Justice Assistance, Research, and Statistics (OJARS) assistsState and local units of government in strengthening and improving lawenforcement and criminal justice by providing financial assistance and fundingresearch and statistical programs. OJARS will coordinate the activities andprovide the staff support for three Department of Justice Federal financialassistance offices: the Law Enforcement Assistance Administration, the NationalInstitute of Justice, and the Bureau of Justice Statistics. Each of theassistance offices has the authority to award grants, contracts and cooperativeagreements pursuant to the Justice System Improvement Act of 1979, Public Law96-157 (December 27, 1979).</P> <HD SOURCE="HD1">4. Typical classes of action undertaken</HD> <P>(a) Actions which normally require an environmental impact statement.</P> <P>(1) None.</P> <P>(b) Actions which normally do not require either an environmental impactstatement or an environmental assessment.</P> <P>(1) The bulk of the funded efforts; training programs, court improvementprojects, research, and gathering statistical data.</P> <P>(2) Minor renovation projects or remodeling.</P> <P>(c) Actions which normally require environmental assessments but notnecessarily environmental impact statements.</P> <P>(1) Renovations which change the basic prior use of a facility orsignificantly change the size.</P> <P>(2) New construction.</P> <P>(3) Research and technology whose anticipated and future application could beexpected to have an effect on the environment.</P> <P>(4) Implementation of programs involving the use of chemicals.</P> <P>(5) Other actions in which it is determined by the Administrator, LawEnforcement Assistance Administration; the Director, Bureau of JusticeStatistics; or the Director, National Institute of Justice, to be necessary andappropriate.</P> <HD SOURCE="HD1">5. Agency procedures</HD> <P>An environmental coordinator shall be designated in the Bureau of JusticeStatistics, the Law Enforcement Assistance Administration, and in the NationalInstitute of Justice. Duties of the environmental coordinator shall include:</P> <P>(a) Insuring that adequate environmental assessments are prepared at theearliest possible time by applicants on all programs or projects that may have asignificant impact on the environment. The assessments shall <PRTPAGE P="156"/>containdocumentation from independent parties with expertise in the particularenvironmental matter when deemed appropriate. The coordinator shall returnassessments that are found to be inadequate.</P> <P>(b) Reviewing the environmental assessments and determining whether anEnvironmental Impact Statement is required or preparing a “Finding of NoSignificant Impact.”</P> <P>(c) Coordinating the efforts for the preparation of an Environmental ImpactStatement consistent with the requirements of 40 CFR part 1502.</P> <P>(d) Cooperating and coordinating efforts with other Federal agencies.</P> <P>(e) Providing for agency training on environmental matters.</P> <HD SOURCE="HD1">6. Compliance with other environmental statutes</HD> <P>To the extent possible an environmental assessment, as well as anenvironmental impact statement, shall include information necessary to assurecompliance with the following:</P> <P>Fish and Wildlife Coordination Act, 16 U.S.C. 661, <E T="03">et seq.;</E> theNational Historic Preservation Act of 1966, 16 U.S.C. 470, <E T="03">etseq.;</E> Flood Disaster Protection Act of 1973, 42 U.S.C. 400, <E T="03">etseq.;</E> Clean Air Act and Federal Water Pollution Control Act, 42 U.S.C. 1857,<E T="03">et seq.;</E> 33 U.S.C. 1251, <E T="03">et seq.;</E> Safe DrinkingWater Act, 42 U.S.C. 300, <E T="03">et seq.;</E> Wild and Scenic Rivers Act, 16U.S.C. 1271, <E T="03">et seq.;</E> the Coastal Zone Management Act of 1972, 16U.S.C. 1451, <E T="03">et seq.;</E> and other environmental review laws andexecutive orders.</P> <HD SOURCE="HD1">7. Actions planned by private applicants or other non-Federal entities</HD> <P>Where actions are planned by private applicants or other non-Federal entitiesbefore Federal involvement:</P> <P>(a) The Policy and Management Planning Staff, Office of Criminal JusticePrograms, LEAA, Room 1158B, 633 Indiana Ave., Washington, DC 20531, Telephone:202/724-7659, will be available to advise potential applicants of studiesor other information foreseeably required for later Federal action;</P> <P>(b) OJARS will consult early with appropriate State and local agencies andwith interested private persons and organizations when its own involvement isreasonably foreseeable;</P> <P>(c) OJARS will commence its NEPA process at the earliest possible time (Ref.§ 1501.2(d) CEQ Regulations).</P> <HD SOURCE="HD1">8. Supplementing an EIS</HD> <P>If it is necessary to prepare a supplement to a draft or a final EIS, thesupplement shall be introduced into the administrative record pertaining to theproject. (Ref. § 1502.9(c)(3) CEQ Regulations).</P> <HD SOURCE="HD1">9. Availability of information</HD> <P>Information regarding status reports on EIS's and other elements of the NEPAprocess and policies of the agencies can be obtained from: Policy and ManagementPlanning Staff, Office of Criminal Justice Programs, LEAA, Room 1158B, 633Indiana Avenue, Washington, DC 20531, Telephone: 202/724-7659.</P> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 63</EAR> <HD SOURCE="HED">PART 63—FLOODPLAIN MANAGEMENT AND WETLAND PROTECTIONPROCEDURES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>63.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>63.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>63.3</SECTNO> <SUBJECT>References.</SUBJECT> <SECTNO>63.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>63.5</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>63.6</SECTNO> <SUBJECT>Procedures.</SUBJECT> <SECTNO>63.7</SECTNO> <SUBJECT>Determination of location.</SUBJECT> <SECTNO>63.8</SECTNO> <SUBJECT>Implementation.</SUBJECT> <SECTNO>63.9</SECTNO> <SUBJECT>Exception.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, Executive Order No. 11988 of May 24, 1977,and Executive Order No. 11990 of May 24, 1977.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 902-80, 45 FR 50565, July 30, 1980,unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 63.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>These guidelines set forth procedures to be followed by the Department ofJustice to implement Executive Order 11988 (Floodplain Management) and ExecutiveOrder 11990 (Protection of Wetlands). (The Orders.)</P> </SECTION> <SECTION> <SECTNO>§ 63.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) It is the Department of Justice's policy to avoid to the extent possiblethe long and short term adverse impacts associated with the destruction ormodification of wetlands and floodplains and to avoid direct or indirect supportof new construction in floodplains and wetlands whenever there is a practicablealternative. The Department will provide leadership and take affirmative actionto carry out the Orders.</P> <P>(b) It is the Department of Justice's intention to integrate these procedureswith those required under statutes protecting the environment, such as theNational Environmental Policy Act (NEPA). Whenever possible, the proceduresdetailed herein should be coordinated with other required documents, such as theenvironmental impact <PRTPAGE P="157"/>statement (EIS) or environmental assessment required underNEPA, so that unnecessary paperwork can be eliminated.</P> </SECTION> <SECTION> <SECTNO>§ 63.3</SECTNO> <SUBJECT>References.</SUBJECT> <P>(a) Unified National Program for Floodplain Management, Water ResourcesCouncil, which is incorporated in these guidelines.</P> <P>(b) Water Resources Council Floodplain Management Guidelines, Water ResourcesCouncil, 1978 (43 FR 6030).</P> <P>(c) National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 <E T="03">et seq.</E>) and NFIP criteria (44 CFR part 59 <E T="03">et seq.</E>).</P> <P>(d) Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat.975).</P> <P>(e) National Environmental Policy Act of 1969, as amended (43 U.S.C. 4321 <E T="03">et seq.</E>) (NEPA).</P> </SECTION> <SECTION> <SECTNO>§ 63.4</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Throughout this part, the following basic definitions shall apply:</P> <P>(a) <E T="03">Action</E>—any Federal activity including:</P> <P>(1) Acquiring, managing and disposing of Federal lands and facilities;</P> <P>(2) Providing federally undertaken, financed, or assisted construction andimprovements; and</P> <P>(3) Conducting Federal activities and program affecting land use, includingbut not limited to water and related land resources planning, regulating, andlicensing activities.</P> <P>(b) <E T="03">Agency</E>—an executive department, a governmentcorporation, or an independent establishment and includes the militarydepartments.</P> <P>(c) <E T="03">Base flood</E>—that flood which has a one percent chanceof occurrence in any given year (also known as a <E T="03">100-year flood</E>).(This term is used in the National Flood Insurance Program (NFIP) to indicatethe minimum level of flooding to be used by a community in its floodplainmanagement regulations.)</P> <P>(d) <E T="03">Base floodplain</E>—the 100-year floodplain (one percentchance floodplain). Also see definition of floodplain.</P> <P>(e) <E T="03">Channel</E>—a natural or artificial watercourse ofperceptible extent, with a definite bed and banks to confine and conductcontinuously or periodically flowing water.</P> <P>(f) <E T="03">Critical action</E>—any activity for which even a slightchance of flooding would be too great.</P> <P>(g) <E T="03">Facility</E>—any man-made or man-placed item other than astructure.</P> <P>(h) <E T="03">Flood or flooding</E>—a general and temporary conditionof partial or complete inundation of normally dry land areas from the overflowof inland and/or tidal waters, and/or the usual and rapid accumulation or runoffof surface waters from any source.</P> <P>(i) <E T="03">Flood fringe</E>—that portion of the floodplain outsideof the regulatory floodway (often referred to as “floodway fringe”).</P> <P>(j) <E T="03">Floodplain</E>—the lowland and relatively flat areasadjoining inland and coastal waters including floodprone areas of offshoreislands, including at a minimum, that area subject to a one percent or greaterchance of flooding in any given year. The base floodplain shall be used todesignate the 100-year floodplain (one percent chance floodplain). The criticalaction floodplain is defined as the 500-year floodplain (0.2 percent chancefloodplain).</P> <P>(k) <E T="03">Floodproofing</E>—the modification of individualstructures and facilities, their sites, and their contents to protect againststructural failure, to keep water out or to reduce effects of water entry.</P> <P>(l) <E T="03">Minimize</E>—to reduce to the smallest possible amount ordegree.</P> <P>(m) <E T="03">One percent chance flood</E>—the flood having one chancein 100 of being exceeded in any one-year period (a large flood). The likelihoodof exceeding this magnitude increases in a time period longer than one year. Forexample, there are two chances in three of a larger flood exceeding the onepercent chance flood in a 100-year period.</P> <P>(n) <E T="03">Practicable</E>—capable of being done within existingconstraints. The test of what is practicable depends upon the situation andincludes consideration of the pertinent factors, such as environment, cost ortechnology.</P> <P>(o) <E T="03">Preserve</E>—to prevent modification to the naturalfloodplain environment or to maintain it as closely as possible to its naturalstate.</P> <P>(p) <E T="03">Regulatory floodway</E>—the area regulated by Federal,State or local requirements; the channel of a river or other watercourse and theadjacent <PRTPAGE P="158"/>land areas that must be reserved in an open manner, i.e., unconfined orunobstructed either horizontally or vertically, to provide for the discharge ofthe base flood so the cumulative increase in water surface elevation is no morethan a designated amount (not to exceed one foot as set by the NFIP).</P> <P>(q) <E T="03">Restore</E>—to re-establish a setting or environment inwhich the natural functions of the floodplain can again operate.</P> <P>(r) <E T="03">Structures</E>—walled or roofed buildings, includingmobile homes and gas or liquid storage tanks that are primarily above ground (asset by the NFIP).</P> <P>(s) <E T="03">Wetlands</E>—“those areas that are inundated bysurface or ground water with a frequency sufficient to support and under normalcircumstances does or would support a prevalence of vegetative or aquatic lifethat requires saturated or seasonally saturated soil conditions for growth andreproduction. Wetlands generally include swamps, marshes, bogs, and similarareas such as sloughs, potholes, wet meadows, river overflows, mud flats, andnatural ponds” (as defined in Executive Order 11990 (Protection ofWetlands)).</P> </SECTION> <SECTION> <SECTNO>§ 63.5</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>(a) The Assistant Attorney General, Land and Natural Resources Division,</P> <P>(1) Has overall responsibility for ensuring that the Department'sresponsibilities for complying with the Orders are carried out,</P> <P>(2) Will ensure that the Water Resources Council, the Council onEnvironmental Quality, and the Federal Insurance Agency (FIA) are kept informedof the Department's execution of the Orders, as necessary, and</P> <P>(3) Will determine, and revise on a continuing basis, which components of theDepartment should take further steps, such as the promulgation of programspecific procedures, to comply with the Orders. Considerations for making thisselection are whether a component:</P> <P>(i) Acquires, manages, and disposes of federal lands and facilities;</P> <P>(ii) Provides federally undertaken, financed or assisted construction andimprovements;</P> <P>(iii) Conducts federal activities and programs affecting land use, includingbut not limited to water and related land resources planning, regulating, andlicensing activities;</P> <P>(iv) Reviews and approves component procedures for complying with the Orders;</P> <P>(b) The heads of offices, boards, bureaus and divisions,</P> <P>(1) Are responsible for preparing program specific guidelines or procedures,where necessary, to comply with the Orders and for updating these procedures, asrequired,</P> <P>(2) Will maintain general supervision over any new construction planningwithin the office, board, bureau, or division to see that the policyconsiderations and procedural requirements contained herein are followed in theplanning process,</P> <P>(3) Will furnish, with all requests for new authorizations or appropriationsfor proposals to be located in floodplains or wetlands, a statement that theproposal is in accord with the Orders,</P> <P>(4) Will provide information to applicants for licenses, permits, loans orgrants in areas in which floodplain and wetland requirements may have to be met,</P> <P>(5) Will provide conspicuous notice of past flood damage and potential floodhazard on structures under the component's control and used by the generalpublic, and</P> <P>(6) If responsible for granting a lease, an easement, or right-of-way, or fordisposing of federal property in a floodplain or wetland to nonfederal public orprivate parties, will, unless otherwise directed by law.</P> <P>(i) Reference uses in the conveyance that are restricted under identifiedFederal, State or local floodplain regulations; and</P> <P>(ii) Attach other appropriate restrictions; or</P> <P>(iii) Refuse to convey.</P> </SECTION> <SECTION> <SECTNO>§ 63.6</SECTNO> <SUBJECT>Procedures.</SUBJECT> <P>Prior to taking any action, as defined in § 63.4(a) of this part,an office, board, bureau or division shall:</P> <P>(a) Determine whether the proposed action is located in a wetland and/or the100-year floodplain (or the 500-year <PRTPAGE P="159"/>floodplain for critical actions) anddetermine whether the proposed action has the potential to affect or be affectedby a floodplain or wetland. The determination concerning location in afloodplain or wetland shall be performed in accordance with § 63.7 ofthis part. For actions which are in both a floodplain and wetland, the wetlandshould be considered as one of the natural and beneficial values of thefloodplain.</P> <P>(b) Notify the public at the earliest possible time of the intent to carryout the action affecting or affected by a floodplain or wetland, and involve thebroadest affected and interested public in the decisionmaking process. At aminimum, all notices shall be published in the newspaper serving the projectarea that has the widest circulation and shall be distributed through theA-95 review process if subject to that process. In addition, notices ofactions shall be published in the <E T="04">Federal Register,</E> if so requiredby the Assistant Attorney General, Land and Natural Resources Division, or bylaw. For certain actions, notice may entail other audiences and means ofdistribution. All actions shall be reviewed according to the following criteriato determine the appropriate audience for and means of notification beyond thoserequired above: Scale of action, potential for controversy, degree of publicneed for the action, number of affected persons, and anticipated potentialimpacts. Each notice shall include the following: A statement of the purpose ofand a description of the proposed action, a map of the general area clearlydelineating the action's locale and its relationship to its environs, astatement that it has been determined to be located in or that it affects afloodplain or wetland, a statement of intent to avoid the floodplain or wetlandwhere practicable, and to mitigate impacts where avoidance cannot be achieved,and identification of the responsible official for receipt of comments and forfurther information.</P> <P>(c) Identify and evaluate practicable alternatives to locating in afloodplain or wetland (including alternative sites outside the floodplain orwetland; alternative actions which serve essentially the same purpose as theproposed action, but which have less potential to adversely affect thefloodplain or wetland; and the “no action” option). The followingfactors shall be analyzed in determining the practicability of alternatives:Natural environment (topography, habitat, hazards, etc.); social concerns(aesthetics, historical and cultural values, land use patterns, etc.); economicaspects (costs of space, construction, services, and relocation); and legalconstraints (deeds, leases, etc.). The component shall not locate the proposedaction in the base floodplain (500-year floodplain for critical actions) or in awetland if a practicable alternative exists outside the base floodplain (500-year floodplain for critical actions) or wetland.</P> <P>(d) Identify the full range of potential direct or indirect adverse impactsassociated with the occupancy and modification of floodplains and wetlands andthe direct and indirect support of floodplain and wetland development that couldresult from the proposed action. Flood hazard-related factors shall be analyzedfor all actions. These include, for example, the following: Depth, velocity andrate of rise of flood water; duration of flooding, high hazard areas (riverineand coastal); available warning and evacuation time and routes; effects ofspecial problems, e.g., levees and other protection works, erosion, subsidence,sink holes, ice jams, combinations of flood sources, etc. Natural values-relatedfactors, shall be analyzed for all actions. These include, for example, thefollowing: water resource values (natural moderation of floods, water qualitymaintenance, and ground water recharge); living resource values (fish andwildlife and biological productivity); cultural resource values (archeologicaland historic sites, and open space for recreation and green belts); andagricultural, aquacultural and forestry resource values. Factors relevant to aproposed action's effects on the survival and quality of wetlands, shall beanalyzed for all actions. These include, for example, the following: Publichealth, safety, and welfare, including water supply, quality, recharge anddischarge; pollution; flood and storm hazards, sediment and erosion; maintenanceof natural systems, including <PRTPAGE P="160"/>conservation and long term productivity ofexisting flora and fauna, species and habitat diversity and stability,hydrologic utility, fish, wildlife, timber, and food and fiber resources; andother uses of wetlands in the public interest, including recreational,scientific, and cultural uses.</P> <P>(e) Where avoidance of floodplains or wetlands cannot be achieved, design ormodify its actions so as to minimize harm to or within the floodplain, minimizethe destruction, loss or degradation of wetlands, restore and preserve naturaland beneficial floodplain values, and preserve and enhance natural andbeneficial wetland values. The component shall minimize potential harm to livesand property from the 100-year flood (500-year flood for critical actions),minimize potential adverse impacts the action may have on others, and minimizepotential adverse impacts the action may have on floodplain and wetland values,Minimization of harm to property shall be performed in accord with the standardsand criteria set out at 44 CFR part 59 <E T="03">et seq.,</E> (formerly 24 CFRpart 1901 <E T="03">et seq.</E>), substituting the 500-year standard forcritical actions and, where practicable, elevating structures on openworks—walls, columns, piers, piles, etc.—rather than on fill.Minimization of harm to lives shall include, but not be limited to, theprovision for warning and evacuation procedures for all projects and shallemphasize adequacy of warning time and access and egress routes.</P> <P>(f) Re-evaluate the proposed action to determine, first, if it is stillpracticable in light of its exposure to flood hazards and its potential todisrupt floodplain and wetland values and, second, if alternatives rejected atparagraph (c) of this section are practicable, in light of the informationgained in paragraphs (d) and (e) of this section. Unless required by law, theproposed action shall not be located in a floodplain or wetland unless theimportance of the floodplain or wetland site clearly outweighs the requirementsof E.O. 11988 and E.O. 11990 to avoid direct or indirect support of floodplainand wetland development; reduce the risk of flood loss; minimize the impact offloods on human safety, health and welfare; restore and preserve floodplainvalues; and minimize the destruction, loss or degradation of wetlands. Inaddition, where there are no practicable alternative sites and actions, andwhere the potential adverse effects of using the floodplain or wetland sitecannot be minimized, no action shall be taken, unless required by law.</P> <P>(g) Prepare, and circulate a finding and public explanation of any finaldecision that there is no practicable alternative to locating an action in, oraffecting a floodplain or wetland. The same audience and means of distributionused in paragraph (b) of this section, shall be used to circulate this finding.The finding shall include the following: the reasons why the action is proposedto be located in a floodplain or wetland, a statement indicating whether theaction conforms to applicable State or local floodplain management standards, alist of alternatives considered, and a map of the general area clearlydelineating the project locale and its relationship to its environs. A briefcomment period on the finding shall be provided wherever practicable prior totaking any action.</P> <P>(h) Review the implementation and post implementation phase of the proposedaction to ensure that the provisions of paragraph (e) of this section, are fullyimplemented. This responsibility shall be fully integrated into existing review,audit, field oversight and other monitoring processes, and additional proceduresshall be prepared where existing procedures may be inadequate to ensure that theOrders' goals are met.</P> </SECTION> <SECTION> <SECTNO>§ 63.7</SECTNO> <SUBJECT>Determination of location.</SUBJECT> <P>(a) In order to determine whether an action is located on or affects a <E T="03">floodplain,</E> the component shall:</P> <P>(1) Consult the FIA Flood Insurance Rate Map (FIRM) and the Flood InsuranceStudy (FIS); or</P> <P>(2) If a detailed map (FIRM) is not available, consult an FIA Flood HazardBoundary Map (FHBM); or</P> <P>(3) If data on flood elevations, floodways, or coastal high hazard areas areneeded, or if none of the maps delineates the flood hazard boundaries in thevicinity of the proposed site, seek <PRTPAGE P="161"/>detailed information and assistance asnecessary and appropriate from the Department of Agriculture's Soil ConservationService, the Army Corps of Engineers, the National Oceanic and AtmosphericAdministration, the Federal Emergency Management Agency's RegionalOffices/Division of Insurance and Hazard Mitigation, the Department of theInterior's Geological Survey, Bureau of Land Management, and Bureau ofReclamation, the Tennessee Valley Authority, the Delaware River BasinCommission, the Susquehanna River Basin Commission, individual states and/orland administering agencies; or</P> <P>(4) If the sources listed above do not have or know of the informationnecessary to comply with the Orders' requirements, seek, as permitted by law,the services of a federal or other engineer experienced in this work to</P> <P>(i) Locate the site and the limits of the coastal high hazard area, floodwayand of the applicable floodplain, and</P> <P>(ii) Determine base flood elevations.</P> <P>(b) In the absence of a finding to the contrary, the component shall assumethat action involving a facility or structure that has been flooded in a majordisaster or emergency is in the applicable floodplain for the site of theproposed action.</P> <P>(c) In order to determine whether an action is located on or affects a <E T="03">wetland,</E> the component shall:</P> <P>(1) Consult with the United States Fish and Wildlife Service (FWS) forinformation concerning the location, scale and type of wetlands within the areawhich could be affected by the proposed action; or</P> <P>(2) If the FWS does not have adequate information upon which to base thedetermination, consult wetland inventories maintained by the Army Corps ofEngineers, the Environmental Protection Agency, various states, communities andothers; or</P> <P>(3) If state or other sources do not have adequate information upon which tobase the determination, insure that an on-site analysis is performed by arepresentative of the FWS or other qualified individual for wetlandscharacteristics based on the performance definition of what constitutes awetland.</P> </SECTION> <SECTION> <SECTNO>§ 63.8</SECTNO> <SUBJECT>Implementation.</SUBJECT> <P>Agencies and divisions within the Department of Justice shall amend existingregulations and procedures, as appropriate, to incorporate the policy andprocedures set forth in these guidelines. Such amendments will be made within 6months of final publication of these guidelines.</P> </SECTION> <SECTION> <SECTNO>§ 63.9</SECTNO> <SUBJECT>Exception.</SUBJECT> <P>Nothing in these guidelines shall apply to assistance provided for emergencywork essential to save lives and protect property and public health and safetyperformed pursuant to sections 305 and 306 of the Disaster Relief Act of 1974(88 Stat. 148, 42 U.S.C. 5145 and 5146).</P> </SECTION> </PART> <PART> <EAR>Pt. 64</EAR> <HD SOURCE="HED">PART 64—DESIGNATION OF OFFICERS AND EMPLOYEES OF THEUNITED STATES FOR COVERAGE UNDER SECTION 1114 OF TITLE 18 OF THE U.S. CODE</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>64.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>64.2</SECTNO> <SUBJECT>Designated officers and employees.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>18 U.S.C. 1114, 28 U.S.C. 509, 5 U.S.C. 301.</P> </AUTH> <SECTION> <SECTNO>§ 64.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This regulation designates categories of federal officers and employees inaddition to those already designated by the statute, who will be within theprotective coverage of 18 U.S.C. 1114, which prohibits the killing or attemptedkilling of such designated officers and employees. The categories of federalofficers and employees covered by section 1114 are also protected, while theyare engaged in or on account of the performance of their official duties, from aconspiracy to kill, 18 U.S.C. 1117; kidnapping, 18 U.S.C. 1201(a)(5); forcibleassault, intimidation, or interference, 18 U.S.C. 111; and threat of assault,kidnap or murder with intent to impede, intimidate, or retaliate against suchofficer or employee, 18 U.S.C. 115(a)(1)(B). In addition, the immediate familymembers of such officers and employees are protected against assault, kidnap,murder, attempt to kidnap or murder, and threat to assault, kidnap, or murder <PRTPAGE P="162"/>with intent to impede, intimidate, or retaliate against such officer oremployee, 18 U.S.C. 115(a)(1)(A). The protective coverage has been extended tothose federal officers and employees whose jobs involve inspection,investigative or law enforcement responsibilities, or whose work involves asubstantial degree of physical danger from the public that may not be adequatelyaddressed by available state or local law enforcement resources.</P> <CITA>[Order No. 1874-94, 59 FR 25816, May 18, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 64.2</SECTNO> <SUBJECT>Designated officers and employees.</SUBJECT> <P>The following categories of federal officers and employees are designated forcoverage under section 1114 of title 18 of the U.S. Code:</P> <P>(a) Judges and special trial judges of the U.S. Tax Court;</P> <P>(b) Commissioners and employees of the U.S. Parole Commission;</P> <P>(c) Attorneys of the Department of Justice;</P> <P>(d) Resettlement specialists and conciliators of the Community RelationsService of the Department of Justice;</P> <P>(e) Officers and employees of the Bureau of Prisons;</P> <P>(f) Criminal investigators employed by a U.S. Attorney's Office; andemployees of a U.S. Attorney's Office assigned to perform debt collectionfunctions;</P> <P>(g) U.S. Trustees and Assistant U.S. Trustees; bankruptcy analysts and otherofficers and employees of the U.S. Trustee System who have contact withcreditors and debtors, perform audit functions, or perform other investigativeor enforcement functions in administering the bankruptcy laws;</P> <P>(h) Attorneys and employees assigned to perform or to assist in performinginvestigative, inspection or audit functions of the Office of Inspector Generalof an “establishment” or a “designated Federal entity”as those terms are defined by section 11 and 8E, respectively, of the InspectorGeneral Act of 1978, as amended, 5 U.S.C. app. 3 section 11 and 8E, and of theOffices of the Inspector General of the U.S. Government Printing Office, theMerit Systems Protection Board, and the Selective Service System.</P> <P>(i) Employees of the Department of Agriculture at the State, district orcounty level assigned to perform loan making, loan servicing or loan collectingfunction;</P> <P>(j) Officers and employees of the Bureau of Alcohol, Tobacco and Firearmsassigned to perform or to assist in performing investigative, inspection or lawenforcement functions;</P> <P>(k) Federal air marshals of the Federal Aviation Administration;</P> <P>(l) Employees of the Bureau of Census employed in field work conductingcensuses and surveys;</P> <P>(m) Employees and members of the U.S. military services and employees of theDepartment of Defense who:</P> <P>(1) Are military police officers,</P> <P>(2) Have been assigned to guard and protect property of the United States, orpersons, under the administration and control of a U.S. military service or theDepartment of Defense, or</P> <P>(3) Have otherwise been assigned to perform investigative, correction orother law enforcement functions;</P> <P>(n) The Director, Deputy Director for Supply Reduction, Deputy Director forDemand Reduction, Associate Director for State and Local Affairs, and Chief ofStaff of the Office of National Drug Control Policy;</P> <P>(o) Officers and employees of the Department of Energy authorized to carryfirearms in the performance of investigative, inspection, protective or lawenforcement functions;</P> <P>(p) Officers and employees of the U.S. Environmental Protection Agencyassigned to perform or to assist in performing investigative, inspection or lawenforcement functions;</P> <P>(q) Biologists and technicians of the U.S. Fish and Wildlife Service who areparticipating in sea lamprey control operations;</P> <P>(r) Uniformed and nonuniformed special police of the General ServicesAdministration; and officers and employees of the General ServicesAdministration assigned to inspect property in the process of its acquisition byor on behalf of the U.S. Government;</P> <P>(s) Special Agents of the Security Office of the U.S. Information Agency;</P> <P>(t) Employees of the regional, subregional and resident offices of theNational Labor Relations Board assigned <PRTPAGE P="163"/>to perform investigative and hearingfunctions or to supervise the performance of such functions; and auditors andSecurity Specialists of the Division of Administration of the National LaborRelations Board;</P> <P>(u) Officers and employees of the U.S. Nuclear Regulatory Commission:</P> <P>(1) Assigned to perform or to assist in performing investigative, inspectionor law enforcement functions or</P> <P>(2) Engaged in activities related to the review of license applications andlicense amendments;</P> <P>(v) Investigators employed by the U.S. Office of Personnel Management;</P> <P>(w) Attorneys, accountants, investigators and other employees of the U.S.Securities and Exchange Commission assigned to perform or to assist inperforming investigative, inspection or other law enforcement functions;</P> <P>(x) Employees of the Social Security Administration assigned toAdministration field offices, hearing offices and field assessment offices;</P> <P>(y) Officers and employees of the Tennessee Valley Authority authorized bythe Tennessee Valley Authority Board of Directors to carry firearms in theperformance of investigative, inspection, protective or law enforcementfunctions;</P> <P>(z) Officers and employees of the Federal Aviation Administration, theFederal Highway Administration, the National Highway Traffic SafetyAdministration, the Research and Special Programs Administration and the SaintLawrence Seaway Development Corporation of the U.S. Department of Transportationwho are assigned to perform or assist in performing investigative, inspection orlaw enforcement functions;</P> <P>(aa) Federal administrative law judges appointed pursuant to 5 U.S.C. 3105;and</P> <P>(bb) Employees of the Office of Workers' Compensation Programs of theDepartment of Labor who adjudicate and administer claims under the FederalEmployees' Compensation Act, the Longshore and Harbor Workers' Compensation Actand its extension, or the Black Lung Benefits Act.</P> <CITA>[Order No. 1874-94, 59 FR 25816, May 18, 1994]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 65</EAR> <HD SOURCE="HED">PART 65—EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Eligible Applicants</HD> <SECHD>Sec.</SECHD> <SECTNO>65.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>65.2</SECTNO> <SUBJECT>State Government.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Allocation of Funds and Other Assistance</HD> <SECTNO>65.10</SECTNO> <SUBJECT>Fund availability.</SUBJECT> <SECTNO>65.11</SECTNO> <SUBJECT>Limitations on fund and other assistance use.</SUBJECT> <SECTNO>65.12</SECTNO> <SUBJECT>Other assistance.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Purpose of Emergency Federal Law EnforcementAssistance</HD> <SECTNO>65.20</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>65.21</SECTNO> <SUBJECT>Purpose of assistance.</SUBJECT> <SECTNO>65.22</SECTNO> <SUBJECT>Exclusions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Application for Assistance</HD> <SECTNO>65.30</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>65.31</SECTNO> <SUBJECT>Application content.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Submission and Review of Applications</HD> <SECTNO>65.40</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>65.41</SECTNO> <SUBJECT>Review of State applications.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Additional Requirements</HD> <SECTNO>65.50</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>65.51</SECTNO> <SUBJECT>Recordkeeping.</SUBJECT> <SECTNO>65.52</SECTNO> <SUBJECT>Civil rights.</SUBJECT> <SECTNO>65.53</SECTNO> <SUBJECT>Confidentiality of information.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Repayment of Funds</HD> <SECTNO>65.60</SECTNO> <SUBJECT>Repayment of funds.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Definitions</HD> <SECTNO>65.70</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Immigration Emergency Fund</HD> <SECTNO>65.80</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>65.81</SECTNO> <SUBJECT>General definitions.</SUBJECT> <SECTNO>65.82</SECTNO> <SUBJECT>Procedure for requesting a Presidential determination ofan immigration emergency.</SUBJECT> <SECTNO>65.83</SECTNO> <SUBJECT>Assistance required by the Attorney General.</SUBJECT> <SECTNO>65.84</SECTNO> <SUBJECT>Procedures for the Attorney General when seeking State orlocal assistance.</SUBJECT> <SECTNO>65.85</SECTNO> <SUBJECT>Procedures for State or local governments applying forfunding.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>The Comprehensive Crime Control Act of 1984, Title II,Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement Assistance, Pub.L. 98-473, 98 Stat. 1837, <PRTPAGE P="164"/>Oct. 12, 1984 (42 U.S.C. 10501 <E T="03">etseq</E>.); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105 Stat. 832.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>50 FR 51340, Dec. 16, 1985, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Eligible Applicants</HD> <SECTION> <SECTNO>§ 65.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>This subject describes who may apply for emergency Federal law enforcementassistance under the Justice Assistance Act of 1984.</P> </SECTION> <SECTION> <SECTNO>§ 65.2</SECTNO> <SUBJECT>State Government.</SUBJECT> <P>In the event that a law enforcement emergency exists throughout a state orpart of a state, a state (on behalf of itself or a local unit of government) maysubmit an application to the Attorney General, for emergency Federal lawenforcement assistance. This application is to be submitted by the chiefexecutive officer of the state, in writing, on Standard Form 424, and inaccordance with these regulations.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Allocation of Funds and Other Assistance</HD> <SECTION> <SECTNO>§ 65.10</SECTNO> <SUBJECT>Fund availability.</SUBJECT> <P>For the previous fiscal year (FY '85), $800,000 was appropriated foremergency Federal law enforcement assistance for the entire country. In FY '86,$1.5 million has been requested. The FY '86 request has not yet beenappropriated and is not currently available. The form and extent of assistanceprovided will be determined by the nature and scope of the emergency presented;but, in any event, no fund award may exceed the amount ultimately appropriated.</P> </SECTION> <SECTION> <SECTNO>§ 65.11</SECTNO> <SUBJECT>Limitations on fund and other assistance use.</SUBJECT> <P>(a) <E T="03">Land acquisition.</E> No funds shall be used for the purpose ofland acquisition.</P> <P>(b) <E T="03">Non-supplantation.</E> No funds shall be used to supplant stateor local funds that would otherwise be made available for such purposes.</P> <P>(c) <E T="03">Civil justice.</E> No funds or other assistance shall be usedwith respect to civil justice matters except to the extent that such civiljustice matters bear directly and substantially upon criminal justice matters orare inextricably intertwined with criminal justice matters.</P> <P>(d) <E T="03">Federal law enforcement personnel.</E> Nothing in the enablinglegislation authorizes the use of Federal law enforcement personnel toinvestigate violations of criminal law other than violations with respect towhich investigation is authorized by other provisions of law. (section 609O(a),of the Act).</P> <P>(e) <E T="03">Direction, supervision, control.</E> Nothing in the enablinglegislation shall be construed to authorize the Attorney General or the Federallaw enforcement community to exercise any direction, supervision, or controlover any police force or other criminal justice agency of an applicant forFederal law enforcement assistance. (section 609O(b), of the Act).</P> </SECTION> <SECTION> <SECTNO>§ 65.12</SECTNO> <SUBJECT>Other assistance.</SUBJECT> <P>In accordance with the purposes and limitations of this subdivision, membersof the Federal law enforcement community may provide needed assistance in theform of equipment, training, intelligence information, and personnel. Theapplication may include requests for assistance of this nature.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Purpose of Emergency Federal Law EnforcementAssistance</HD> <SECTION> <SECTNO>§ 65.20</SECTNO> <SUBJECT>General.</SUBJECT> <P>The purpose of the Act is to assist state and/or local units of governmentwhich are experiencing law enforcement emergencies to respond to thoseemergencies through the provision of Federal law enforcement assistance. Theauthority and responsibility for implementation of this section is vested in theAttorney General of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 65.21</SECTNO> <SUBJECT>Purpose of assistance.</SUBJECT> <P>The purpose of emergency Federal law enforcement assistance is to providenecessary assistance to (and through) a state government to provide an adequateresponse to an uncommon situation which requires law enforcement, which is orthreatens to become of serious or epidemic proportions, and <PRTPAGE P="165"/>with respect towhich state and local resources are inadequate to protect the lives and propertyof citizens, or to enforce the criminal law.</P> </SECTION> <SECTION> <SECTNO>§ 65.22</SECTNO> <SUBJECT>Exclusions.</SUBJECT> <P>Excluded from the situations for which this assistance is intended are:</P> <P>(a) The perceived need for planning or other activities related to crowdcontrol for general public safety projects; and,</P> <P>(b) A situation requiring the enforcement of laws associated with scheduledpublic events, including political conventions and sports events.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Application for Assistance</HD> <SECTION> <SECTNO>§ 65.30</SECTNO> <SUBJECT>General.</SUBJECT> <P>The Act requires that applications be submitted in writing, by the chiefexecutive officer of a state, on Standard Form 424, in accordance with theseregulations.</P> </SECTION> <SECTION> <SECTNO>§ 65.31</SECTNO> <SUBJECT>Application content.</SUBJECT> <P>The Act identifies six factors which the Attorney General will consider inapproving or disapproving an application, and includes administrativerequirements to ensure appropriate use of Federal assistance. Therefore, eachapplication must be in writing and must include the following:</P> <P>(a) <E T="03">Problem.</E> A description of the nature and extent of the lawenforcement emergency, including the specific identification and description ofthe political and geographical subdivision(s) wherein the emergency exists;</P> <P>(b) <E T="03">Cause.</E> A description of the situation or extraordinarycircumstances which produced such emergency;</P> <P>(c) <E T="03">Resources.</E> A description of the state and local criminaljustice resources available to address the emergency, and a discussion of whyand to what degree they are insufficient;</P> <P>(d) <E T="03">Assistance requested.</E> A specific statement of the funds,equipment, training, intelligence information, or personnel requested, and adescription of their intended use;</P> <P>(e) <E T="03">Other assistance.</E> The identification of any otherassistance the state or appropriate unit of government has received, or couldreceive, under any provision of the Act; and,</P> <P>(f) <E T="03">Other requirements.</E> Assurance of compliance with otherrequirements of the Act, detailed in other parts of these regulations,including: Nonsupplantation; nondiscrimination; confidentiality of information;prohibition against land acquisition; recordkeeping and audit; limitation oncivil justice matters.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Submission and Review of Applications</HD> <SECTION> <SECTNO>§ 65.40</SECTNO> <SUBJECT>General.</SUBJECT> <P>This subpart describes the process and criteria for the Attorney General'sreview and approval or disapproval of state applications. The originalapplication, on Standard Form 424, signed by the chief executive officer of thestate should be submitted directly to the Attorney General, U.S. Department ofJustice, Washington, DC 20503. One copy of the application should be sent to theDirector, Bureau of Justice Assistance, Office of Justice Programs, U.S.Department of Justice, Washington, DC 20531.</P> <CITA>[67 FR 7270, Feb. 19, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 65.41</SECTNO> <SUBJECT>Review of State applications.</SUBJECT> <P>(a) <E T="03">Review criteria.</E> The Act provides the basis for review andapproval or disapproval of state applications. Federal law enforcementassistance may be provided if such assistance is necessary to provide anadequate response to a law enforcement emergency. In determining whether toapprove or disapprove an application for assistance under this section, theAttorney General shall consider:</P> <P>(1) The nature and extent of such emergency throughout a state or in any partof a state;</P> <P>(2) The situation or extraordinary circumstances which produced suchemergency;</P> <P>(3) The availability of state and local criminal justice resources to resolvethe problem;</P> <P>(4) The cost associated with the increased Federal presence;</P> <P>(5) The need to avoid unnecessary Federal involvement and intervention <PRTPAGE P="166"/>inmatters primarily of state and local concern; and,</P> <P>(6) Any assistance which the state or other appropriate unit of governmenthas received, or could receive, under any provision of title I of the OmnibusCrime Control and Safe Streets Act of 1968.</P> <P>(b) <E T="03">Review process.</E> (1) The Attorney General shall consult withthe Assistant Attorney General, Office of Justice Programs, and the Director,Bureau of Justice Assistance, on requests for grant assistance.</P> <P>(2) All requests for assistance of the Federal law enforcement community(e.g., equipment, training, information, or personnel) shall be reviewed by theAttorney General in consultation with appropriate members of the Federal lawenforcement community, including the United States Attorney(s) in the affectedDistrict(s). Such requests will be subject to statutory restrictions, includingsection 609O on Federal agency activities.</P> <P>(3) The Attorney General will approve or disapprove each application,submitted in accordance with these regulations, no later than ten (10) daysafter receipt.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Additional Requirements</HD> <SECTION> <SECTNO>§ 65.50</SECTNO> <SUBJECT>General.</SUBJECT> <P>This subpart sets forth additional requirements under the Justice AssistanceAct. Applicants for assistance must assure compliance with each of theserequirements.</P> </SECTION> <SECTION> <SECTNO>§ 65.51</SECTNO> <SUBJECT>Recordkeeping.</SUBJECT> <P>(a) The state must assure that it adheres to the recordkeeping requirementsenumerated in OMB Circulars, Number A-102 and Number A-128. Thisrequirement extends to participating units of local government, in that they areviewed as the state's subgrantees.</P> <P>(b) The Attorney General and the Comptroller of the United States shall haveaccess, for the purpose of audit and examination, to any books, documents, andrecords of recipients of Federal law enforcement assistance provided under thissubdivision which, in the opinion of the Attorney General or the ComptrollerGeneral, are related to the receipt or use of such assistance.</P> </SECTION> <SECTION> <SECTNO>§ 65.52</SECTNO> <SUBJECT>Civil rights.</SUBJECT> <P>The Act provides that “no person in any state shall on the grounds ofrace, color, religion, national origin, or sex be excluded from participationin, be denied the benefits of, or be subjected to discrimination under or deniedemployment in connection with any programs or activity funded in whole or inpart with funds made available under this title.” Recipients of fundsunder the Act are also subject to the provisions of title VI of the Civil RightsAct of 1964; section 504 of the Rehabilitation Act of 1973, as amended; title IXof the Education Amendments of 1972; the Age Discrimination Act of 1975; and theDepartment of Justice Non-Discrimination Regulations 28 CFR part 42, subparts C,D, E, and G.</P> </SECTION> <SECTION> <SECTNO>§ 65.53</SECTNO> <SUBJECT>Confidentiality of information.</SUBJECT> <P>Section 812 of title I of the Omnibus Crime Control and Safe Streets Act of1968 (as amended and implemented by 28 CFR part 20) shall apply with respect toinformation, including criminal history information and criminal intelligencesystems operating with the support of Federal law enforcement assistance.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Repayment of Funds</HD> <SECTION> <SECTNO>§ 65.60</SECTNO> <SUBJECT>Repayment of funds.</SUBJECT> <P>(a) If Federal law enforcement assistance provided under this subdivision isused by the recipient of such assistance in violation of these regulations, orfor any purpose other than the purpose for which it is provided, then suchrecipient shall promptly repay to the Attorney General an amount equal to thevalue of such assistance.</P> <P>(b) The Attorney General may bring a civil action in an appropriate UnitedStates District Court to recover any amount authorized to be repaid under law.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="167"/> <HD SOURCE="HED">Subpart H—Definitions</HD> <SECTION> <SECTNO>§ 65.70</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Law enforcement emergency.</E> The term <E T="03">lawenforcement emergency</E> is defined by the Act as an uncommon situation whichrequires law enforcement, which is or threatens to become of serious or epidemicproportions, and with respect to which state and local resources are inadequateto protect the lives and property of citizens, or to enforce the criminal law.The Act specifically <E T="03">excludes</E> the following situations whendefining “law enforcement emergency”:</P> <P>(1) The perceived need for planning or other activities related to crowdcontrol for general public safety projects; and,</P> <P>(2) A situation requiring the enforcement of laws associated with scheduledpublic events, including political convention and sports events.</P> <P>(b) <E T="03">Federal law enforcement assistance.</E> The term <E T="03">Federal law enforcement assistance</E> is defined by the Act to meanfunds, equipment, training, intelligence information, and personnel.</P> <P>(c) <E T="03">Federal law enforcement community.</E> The term <E T="03">Federal law enforcement community</E> is defined by the Act as the headsof the following departments or agencies:</P> <P>(1) Federal Bureau of Investigation;</P> <P>(2) Drug Enforcement Administration;</P> <P>(3) Criminal Division of the Department of Justice;</P> <P>(4) Internal Revenue Service;</P> <P>(5) Customs Service;</P> <P>(6) Immigration and Naturalization Service;</P> <P>(7) U.S. Marshals Service;</P> <P>(8) National Park Service;</P> <P>(9) U.S. Postal Service;</P> <P>(10) Secret Service;</P> <P>(11) U.S. Coast Guard;</P> <P>(12) Bureau of Alcohol, Tobacco, and Firearms; and,</P> <P>(13) Other Federal agencies with specific statutory authority to investigateviolations of Federal criminal law.</P> <P>(d) <E T="03">State.</E> The term <E T="03">state</E> is defined by the Actas any state of the United States, the District of Columbia, the Commonwealth ofPuerto Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory ofthe Pacific Islands, or the Commonwealth of the Northern Mariana Islands.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Immigration Emergency Fund</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 1892-94, 59 FR 30522, June 14, 1994,unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 65.80</SECTNO> <SUBJECT>General.</SUBJECT> <P>The regulations of this subpart set forth procedures for implementing section404(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1101note, by providing for Presidential determinations of the existence of animmigration emergency, and for payments from the Immigration Emergency Fund orother funding available for such purposes, to State and local governments forassistance provided in meeting an immigration emergency. The regulations of thissubpart also establish procedures by which the Attorney General may draw uponthe Immigration Emergency Fund, without a Presidential determination that animmigration emergency exists, to provide funding to State and local governmentsfor assistance provided as required by the Attorney General in certain specifiedcircumstances.</P> <CITA>[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by OrderNo. 2601-2002, 67 FR 48359, July 24, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 65.81</SECTNO> <SUBJECT>General definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Assistance</E> means any actions taken by a State or localgovernment directly relating to aiding the Attorney General in theadministration of the immigration laws of the United States and in meetingurgent demands arising from the presence of aliens in the State or localgovernment's jurisdiction, when such actions are taken to assist in meeting animmigration emergency or under any of the circumstances specified in section404(b)(2)(A) of the INA. Assistance may include, but need not be limited to, theprovision of large shelter facilities for the housing and screening of aliens,and, in connection with these activities, the provision of such basicnecessities as food, water clothing, and health care.<PRTPAGE P="168"/> </P> <P> <E T="03">Immigration emergency</E> means an actual or imminent influx ofaliens which either is of such magnitude or exhibits such other characteristicsthat effective administration of the immigration laws of the United States isbeyond the existing capabilities of the Immigration and Naturalization Service(“INS”) in the affected area or areas. Characteristics of an influxof aliens, other than magnitude, which may be considered in determining whetheran immigration emergency exists include: the likelihood of continued growth inthe magnitude of the influx; an apparent connection between the influx andincreases in criminal activity; the actual or imminent imposition of unusual andoverwhelming demands on law enforcement agencies; and other similarcharacteristics.</P> <P> <E T="03">Other circumstances</E> means a situation that, as determined bythe Attorney General, requires the resources of a State or local government toensure the proper administration of the immigration laws of the United States orto meet urgent demands arising from the presence of aliens in a State or localgovernment's jurisdiction.</P> </SECTION> <SECTION> <SECTNO>§ 65.82</SECTNO> <SUBJECT>Procedure for requesting a Presidential determination of an immigrationemergency.</SUBJECT> <P>(a) The President may make a determination concerning the existence of animmigration emergency after review of a request from either the Attorney Generalof the United States or the chief executive of a State or local government. Sucha request shall include a description of the facts believed to constitute animmigration emergency and the types of assistance needed to meet that emergency.Except when a request is made by the Attorney General, the requestor shall filethe original application with the Office of the President and shall file copiesof the application with the Attorney General and with the Commissioner of INS.</P> <P>(b) If the President determines that an immigration emergency exists, thePresident shall certify that fact to the Judiciary Committees of the House ofRepresentatives and of the Senate.</P> </SECTION> <SECTION> <SECTNO>§ 65.83</SECTNO> <SUBJECT>Assistance required by the Attorney General.</SUBJECT> <P>The Attorney General may request assistance from a State or local governmentin the administration of the immigration laws of the United States or in meetingurgent demands where the need for assistance arises because of the presence ofaliens in that State or local jurisdiction, and may provide funding to a Stateor local government relating to such assistance from the Immigration EmergencyFund or other funding available for such purposes, without a Presidentialdetermination of an immigration emergency, in any of the followingcircumstances:</P> <P>(a) An INS district director certifies to the Commissioner of INS, who shall,in turn, certify to the Attorney General, that the number of asylum applicationsfiled in that INS district during the relevant calendar quarter exceeds by atleast 1,000 the number of such applications filed in that district during thepreceding calendar quarter. For purposes of this paragraph, providing parole ata point of entry in a district shall be deemed to constitute an application forasylum in the district.</P> <P>(b) The Attorney General determines that there exist circumstances involvingthe administration of the immigration laws of the United States that endangerthe lives, property, safety, or welfare of the residents of a State or locality.</P> <P>(c) The Attorney General determines that there exist any other circumstances,as defined in § 65.81 of this subpart, such that it is appropriate toseek assistance from a State or local government in administering theimmigration laws of the United States or in meeting urgent demands arising fromthe presence of aliens in a State or local jurisdiction.</P> <P>(d)(1) If, in making a determination pursuant to paragraph (b) or (c) of thissection, the Attorney General also determines that the situation involves anactual or imminent mass influx of aliens arriving off the coast or near a landborder of the United States and presents urgent circumstances requiring animmediate Federal response, the Attorney General will formally declare that amass influx of aliens is imminent or occurring. The determination <PRTPAGE P="169"/>that a massinflux of aliens is imminent or occurring will be based on the factors set forthin the definitions contained in § 65.81 of this subpart. The AttorneyGeneral will determine and define the time period that encompasses a mass influxof aliens by declaring when such an event begins and when it ends. The AttorneyGeneral will initially define the geographic boundaries where the mass influx ofaliens is imminent or occurring.</P> <P>(2) Based on evolving developments in the scope of the event, theCommissioner of the INS may, as necessary, amend and redefine the geographicarea defined by the Attorney General to expand or decrease the boundaries. Thisauthority shall not be further delegated.</P> <P>(3) The Attorney General, pursuant to section 103(a)(8) of the INA, 8 U.S.C.1103(a)(8), may authorize any State or local law enforcement officer to performor exercise any of the powers, privileges, or duties conferred or imposed by theAct, or regulations issued thereunder, upon officers or employees of theService. Such authorization must be with the consent of the head of thedepartment, agency, or establishment under whose jurisdiction the officer isserving.</P> <P>(4) Authorization for State or local law enforcement officers to exerciseFederal immigration law enforcement authority for transporting or guardingaliens in custody may be exercised as necessary beyond the defined geographicboundaries where the mass influx of aliens is imminent or occurring. Otherwise,Federal immigration law enforcement authority to be exercised by State or locallaw enforcement officers will be authorized only within the defined geographicboundaries where the mass influx of aliens is imminent or occurring.</P> <P>(5) State or local law enforcement officers will be authorized to exerciseFederal immigration law enforcement authority only during the time periodprescribed by the Attorney General in conjunction with the initiation andtermination of a declared mass influx of aliens.</P> <CITA>[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by OrderNo. 2601-2002, 67 FR 48360, July 24, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 65.84</SECTNO> <SUBJECT>Procedures for the Attorney General when seeking State or localassistance.</SUBJECT> <P>(a)(1) When the Attorney General determines to seek assistance from a Stateor local government under § 65.83 of this subpart, or when thePresident has determined that an immigration emergency exists, the AttorneyGeneral shall negotiate the terms and conditions of that assistance with theState or local government. The Attorney General shall then execute a writtenagreement with appropriate State or local officials, which sets forth the termsand conditions of the assistance, including funding. Such written agreements canbe reimbursement agreements, grants, or cooperative agreements.</P> <P>(2) The Commissioner may execute written contingency agreements regardingassistance under § 65.83(d) of this subpart in advance of theAttorney General's determination pursuant to that section. However, such advanceagreements shall not authorize State or local law enforcement officers toperform any functions of Service officers or employees under section 103(a)(8)of the INA, 8 U.S.C. 1103(a)(8), until the Attorney General has made thenecessary determinations and authorizes such performance. Any such advanceagreements shall contain precise activation procedures.</P> <P>(3) Written agreements regarding assistance under § 65.83(d) ofthis subpart, including contingency agreements, shall include the followingminimum requirements:</P> <P>(i) A statement of the powers, privileges, or duties that State or local lawenforcement officers will be authorized to exercise and the conditions underwhich they may be exercised;</P> <P>(ii) A statement of the types of assistance by State or local law enforcementofficers for which the Attorney General shall be responsible for reimbursing therelevant parties in accordance with the procedures set forth in paragraph (b) ofthis section;</P> <P>(iii) A statement that the relevant State or local law enforcement officersare not authorized to exercise any functions of Service officers or employeesunder section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until the Attorney <PRTPAGE P="170"/>General has made a determination pursuant to that section and authorizes suchperformance;</P> <P>(iv) A requirement that State or local law enforcement officers cannotexercise any authorized functions of Service officers or employees under section103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until they have successfullycompleted and been certified in a Service-prescribed course of instruction inbasic immigration law, immigration law enforcement fundamentals and procedures,civil rights law, and sensitivity and cultural awareness issues;</P> <P>(v) A description of the duration of the written agreement, and of theauthority the Attorney General will confer upon State or local law enforcementofficers pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), alongwith a provision for amending, terminating, or extending the duration of thewritten agreement, or for terminating or amending the authority to be conferredpursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8);</P> <P>(vi) A requirement that the exercise of any Service officer functions byState or local law enforcement officers pursuant to section 103(a)(8) of theINA, 8 U.S.C. 1103(a)(8), be at the direction of the Service;</P> <P>(vii) A requirement that any State or local law enforcement officerperforming Service officer or employee functions pursuant to section 103(a)(8)of the INA, 8 U.S.C. 1103(a)(8), must adhere to the policies and standards setforth during the training, including applicable immigration law enforcementstandards and procedures, civil rights law, and sensitivity and culturalawareness issues;</P> <P>(viii) A statement that the authority to perform Service officer or employeefunctions pursuant to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), doesnot abrogate or abridge constitutional or civil rights protections;</P> <P>(ix) A requirement that a complaint reporting and resolution procedure forallegations of misconduct or wrongdoing by State or local officers designated,or activities undertaken, pursuant to section 103(a)(8) of the INA, 8 U.S.C.1103(a)(8), be in place;</P> <P>(x) A requirement that a mechanism to record and monitor complaints regardingthe immigration enforcement activities of State or local law enforcementofficers authorized to enforce immigration laws be in place;</P> <P>(xi) A listing by position (title and name when available) of the Serviceofficers authorized to provide operational direction to State or local lawenforcement officers assisting in a Federal response pursuant to section103(a)(8) of the INA, 8 U.S.C. 1103(a)(8);</P> <P>(xii) A requirement that a State or local law enforcement agency maintainrecords of operational expenditures incurred as a result of supporting theFederal response to a mass influx of aliens;</P> <P>(xiii) Provisions concerning State or local law enforcement officer use ofFederal property or facilities, if any;</P> <P>(xiv) A requirement that any department, agency, or establishment whose Stateor local law enforcement officer is performing Service officer or employeefunctions shall cooperate fully in any Federal investigation related toallegations of misconduct or wrongdoing in conjunction with such functions, orto the written agreement; and</P> <P>(xv) A procedure by which the appropriate law enforcement agency, department,or establishment will be notified that the Attorney General has made adetermination under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), toauthorize State or local law enforcement officers to exercise Federalimmigration enforcement authority under the provisions of the respectiveagreements.</P> <P>(4) The Attorney General may abbreviate or waive any of the training requiredpursuant to a written agreement regarding assistance under § 65.83(d)of this chapter, including contingency agreements, in the event that the numberof State or local law enforcement officers available to respond in anexpeditious manner to urgent and quickly developing events during a declaredmass influx of aliens is insufficient to protect public safety, public health,or national security. Such officers still would be required to adhere toapplicable policies and standards of the Immigration and Naturalization Service.The decision to abbreviate or waive these training requirements is at the solediscretion of the Attorney General.<PRTPAGE P="171"/> </P> <P>(b) A reimbursement agreement shall contain the procedures under which theState or local government is to obtain reimbursement for its assistance. Areimbursement agreement shall include the title of the official to whom claimsare to be submitted, the intervals at which claims are to be submitted, adescription of the supporting documentation to be submitted, and any limitationson the total amount of reimbursement that will be provided. Grants andcooperative agreements shall be made and administered in accordance with theuniform procedures in part 66 of this title.</P> <P>(c) In exigent circumstances, the Attorney General may agree to providefunding to a State or local government without a written agreement. Areimbursement agreement, grant, or cooperative agreement conforming to thespecifications in this section shall be reduced to writing as soon aspracticable.</P> <CITA>[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by OrderNo. 2601-2002, 67 FR 48360, July 24, 2002; Order No. 2659-2003, 68FR 8822, Feb. 26, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 65.85</SECTNO> <SUBJECT>Procedures for State or local governments applying for funding.</SUBJECT> <P>(a) In the event that the chief executive of a State or local governmentdetermines that any of the circumstances set forth in § 65.83 of thissubpart exists, he or she may pursue the procedures in this section to submit tothe Attorney General an application for a reimbursement agreement, grant, orcooperative agreement as described in § 65.84 of this subpart.</P> <P>(b) The Department strongly encourages chief executives of States and localgovernments, if possible, to consult informally with the Attorney General andthe Commissioner of INS prior to submitting a formal application. This informalconsultation is intended to facilitate discussion of the nature of theassistance to be provided by the State or local government, the requirements ofthe Attorney General, if any, for such assistance, the costs associated withsuch assistance, and the Department's preliminary views on the appropriatenessof the proposed funding.</P> <P>(c) The chief executive of a State or local government shall submit anapplication in writing to the Attorney General, and shall file a copy with theCommissioner of INS. The application shall set forth in detail the followinginformation:</P> <P>(1) The name of the jurisdiction requesting reimbursement;</P> <P>(2) All facts supporting the application;</P> <P>(3) The nature of the assistance which the State or local government hasprovided or will provide, as required by the Attorney General, for which fundingis requested;</P> <P>(4) The dollar amount of the funding sought;</P> <P>(5) A justification for the amount of funding being sought;</P> <P>(6) The expected duration of the conditions requiring State or localassistance;</P> <P>(7) Information about whether funding is sought for past costs or for futurecosts;</P> <P>(8) The name, address, and telephone number of a contact person from therequesting jurisdiction.</P> <P>(d) If the Attorney General determines that the assistance for which fundingis sought under paragraph (c) of this section is appropriate under the standardsof this subpart, the Attorney General may enter into a reimbursement orcooperative agreement or may make a grant in the same manner as if theassistance had been requested by the Attorney General as described under§ 65.84 of this subpart.</P> <P>(e) The Attorney General will consider all applications from State or localgovernments until the Attorney General has obligated funding available for suchpurposes as determined by the Attorney General. The Attorney General will make adecision with respect to any application submitted under this section thatcontains the information described in paragraph (c) of this section within 15calendar days of such application.</P> <P>(f) In exigent circumstances, the Attorney General may waive the requirementsof this section concerning the <PRTPAGE P="172"/>form, contents, and order of consideration ofapplications, including the requirement in paragraph (c) of this section thatapplications be submitted in writing.</P> <CITA>[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by OrderNo. 2601-2002, 67 FR 48361, July 24, 2002]</CITA> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 66</EAR> <HD SOURCE="HED">PART 66—UNIFORM ADMINISTRATIVE REQUIREMENTS FORGRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>66.1</SECTNO> <SUBJECT>Purpose and scope of this part.</SUBJECT> <SECTNO>66.2</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <SECTNO>66.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>66.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>66.5</SECTNO> <SUBJECT>Effect on other issuances.</SUBJECT> <SECTNO>66.6</SECTNO> <SUBJECT>Additions and exceptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD> <SECTNO>66.10</SECTNO> <SUBJECT>Forms for applying for grants.</SUBJECT> <SECTNO>66.11</SECTNO> <SUBJECT>State plans.</SUBJECT> <SECTNO>66.12</SECTNO> <SUBJECT>Special grant or subgrant conditions for “high-risk” grantees.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Post-Award Requirements</HD> <SUBJGRP> <HD SOURCE="HED">Financial Administration</HD> <SECTNO>66.20</SECTNO> <SUBJECT>Standards for financial management systems.</SUBJECT> <SECTNO>66.21</SECTNO> <SUBJECT>Payment.</SUBJECT> <SECTNO>66.22</SECTNO> <SUBJECT>Allowable costs.</SUBJECT> <SECTNO>66.23</SECTNO> <SUBJECT>Period of availability of funds.</SUBJECT> <SECTNO>66.24</SECTNO> <SUBJECT>Matching or cost sharing.</SUBJECT> <SECTNO>66.25</SECTNO> <SUBJECT>Program income.</SUBJECT> <SECTNO>66.26</SECTNO> <SUBJECT>Non-Federal audit.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Changes, Property, and Subawards</HD> <SECTNO>66.30</SECTNO> <SUBJECT>Changes.</SUBJECT> <SECTNO>66.31</SECTNO> <SUBJECT>Real property.</SUBJECT> <SECTNO>66.32</SECTNO> <SUBJECT>Equipment.</SUBJECT> <SECTNO>66.33</SECTNO> <SUBJECT>Supplies.</SUBJECT> <SECTNO>66.34</SECTNO> <SUBJECT>Copyrights.</SUBJECT> <SECTNO>66.35</SECTNO> <SUBJECT>Subawards to debarred and suspended parties.</SUBJECT> <SECTNO>66.36</SECTNO> <SUBJECT>Procurement.</SUBJECT> <SECTNO>66.37</SECTNO> <SUBJECT>Subgrants.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Records, Retention, and Enforcement</HD> <SECTNO>66.40</SECTNO> <SUBJECT>Monitoring and reporting program performance.</SUBJECT> <SECTNO>66.41</SECTNO> <SUBJECT>Financial reporting.</SUBJECT> <SECTNO>66.42</SECTNO> <SUBJECT>Retention and access requirements for records.</SUBJECT> <SECTNO>66.43</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <SECTNO>66.44</SECTNO> <SUBJECT>Termination for convenience.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—After-The-Grant Requirements</HD> <SECTNO>66.50</SECTNO> <SUBJECT>Closeout.</SUBJECT> <SECTNO>66.51</SECTNO> <SUBJECT>Later disallowances and adjustments.</SUBJECT> <SECTNO>66.52</SECTNO> <SUBJECT>Collection of amounts due.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart E—Entitlement [Reserved]</RESERVED> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>18 U.S.C. 4042, 4351-4353; 42 U.S.C. 3711 <E T="03">et seq.,</E> 5601 <E T="03">et seq.,</E> 10601 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Order No. 1252-88, 53 FR 8068 and 8087, Mar. 11,1988, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 66.1</SECTNO> <SUBJECT>Purpose and scope of this part.</SUBJECT> <P>This part establishes uniform administrative rules for Federal grants andcooperative agreements and subawards to State, local and Indian tribalgovernments.</P> </SECTION> <SECTION> <SECTNO>§ 66.2</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <P>This subpart contains general rules pertaining to this part and proceduresfor control of exceptions from this part.</P> </SECTION> <SECTION> <SECTNO>§ 66.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Accrued expenditures</E> mean the charges incurred by the granteeduring a given period requiring the provision of funds for:</P> <P>(1) Goods and other tangible property received;</P> <P>(2) Services performed by employees, contractors, subgrantees,subcontractors, and other payees; and</P> <P>(3) Other amounts becoming owed under programs for which no current servicesor performance is required, such as annuities, insurance claims, and otherbenefit payments.</P> <P> <E T="03">Accrued income</E> means the sum of:</P> <P>(1) Earnings during a given period from services performed by the grantee andgoods and other tangible property delivered to purchasers, and</P> <P>(2) Amounts becoming owed to the grantee for which no current services orperformance is required by the grantee.</P> <P> <E T="03">Acquisition cost</E> of an item of purchased equipment means thenet invoice unit price of the property including the cost of modifications,attachments, accessories, or auxiliary apparatus necessary to make the propertyusable for the purpose for which it was <PRTPAGE P="173"/>acquired. Other charges such as the costof installation, transportation, taxes, duty or protective in-transit insurance,shall be included or excluded from the unit acquisition cost in accordance withthe grantee's regular accounting practices.</P> <P> <E T="03">Administrative</E> requirements mean those matters common to grantsin general, such as financial management, kinds and frequency of reports, andretention of records. These are distinguished from “programmatic”requirements, which concern matters that can be treated only on a program-by-program or grant-by-grant basis, such as kinds of activities that can besupported by grants under a particular program.</P> <P> <E T="03">Awarding agency</E> means:</P> <P>(1) With respect to a grant, the Federal agency, and</P> <P>(2) With respect to a subgrant, the party that awarded the subgrant.</P> <P> <E T="03">Cash contributions</E> means the grantee's cash outlay, includingthe outlay of money contributed to the grantee or subgrantee by other publicagencies and institutions, and private organizations and individuals. Whenauthorized by Federal legislation, Federal funds received from other assistanceagreements may be considered as grantee or subgrantee cash contributions.</P> <P> <E T="03">Contract</E> means (except as used in the definitions for“grant” and “subgrant” in this section and except wherequalified by “Federal”) a procurement contract under a grant orsubgrant, and means a procurement subcontract under a contract.</P> <P> <E T="03">Cost sharing or matching</E> means the value of the third party in-kind contributions and the portion of the costs of a federally assisted projector program not borne by the Federal Government.</P> <P> <E T="03">Cost-type contract</E> means a contract or subcontract under agrant in which the contractor or subcontractor is paid on the basis of the costsit incurs, with or without a fee.</P> <P> <E T="03">Equipment</E> means tangible, nonexpendable, personal propertyhaving a useful life of more than one year and an acquisition cost of $5,000 ormore per unit. A grantee may use its own definition of equipment provided thatsuch definition would at least include all equipment defined above.</P> <P> <E T="03">Expenditure report</E> means:</P> <P>(1) For nonconstruction grants, the SF-269 “Financial StatusReport” (or other equivalent report);</P> <P>(2) For construction grants, the SF-271 “Outlay Report andRequest for Reimbursement” (or other equivalent report).</P> <P> <E T="03">Federally recognized Indian tribal government</E> means thegoverning body or a governmental agency of any Indian tribe, band, nation, orother organized group or community (including any Native village as defined insection 3 of the Alaska Native Claims Settlement Act, 85 Stat 688) certified bythe Secretary of the Interior as eligible for the special programs and servicesprovided by him through the Bureau of Indian Affairs.</P> <P> <E T="03">Government</E> means a State or local government or a federallyrecognized Indian tribal government.</P> <P> <E T="03">Grant</E> means an award of financial assistance, includingcooperative agreements, in the form of money, or property in lieu of money, bythe Federal Government to an eligible grantee. The term does not includetechnical assistance which provides services instead of money, or otherassistance in the form of revenue sharing, loans, loan guarantees, interestsubsidies, insurance, or direct appropriations. Also, the term does not includeassistance, such as a fellowship or other lump sum award, which the grantee isnot required to account for.</P> <P> <E T="03">Grantee</E> means the government to which a grant is awarded andwhich is accountable for the use of the funds provided. The grantee is theentire legal entity even if only a particular component of the entity isdesignated in the grant award document.</P> <P> <E T="03">Local government</E> means a county, municipality, city, town,township, local public authority (including any public and Indian housing agencyunder the United States Housing Act of 1937) school district, special district,intrastate district, council of governments (whether or not incorporated as anonprofit corporation under state law), any other regional or interstategovernment entity, or any agency or instrumentality of a local government.<PRTPAGE P="174"/> </P> <P> <E T="03">Obligations</E> means the amounts of orders placed, contracts andsubgrants awarded, goods and services received, and similar transactions duringa given period that will require payment by the grantee during the same or afuture period.</P> <P> <E T="03">OMB</E> means the U.S. Office of Management and Budget.</P> <P> <E T="03">Outlays</E> (expenditures) mean charges made to the project orprogram. They may be reported on a cash or accrual basis. For reports preparedon a cash basis, outlays are the sum of actual cash disbursement for directcharges for goods and services, the amount of indirect expense incurred, thevalue of in-kind contributions applied, and the amount of cash advances andpayments made to contractors and subgrantees. For reports prepared on an accruedexpenditure basis, outlays are the sum of actual cash disbursements, the amountof indirect expense incurred, the value of inkind contributions applied, and thenew increase (or decrease) in the amounts owed by the grantee for goods andother property received, for services performed by employees, contractors,subgrantees, subcontractors, and other payees, and other amounts becoming owedunder programs for which no current services or performance are required, suchas annuities, insurance claims, and other benefit payments.</P> <P> <E T="03">Percentage of completion method</E> refers to a system under whichpayments are made for construction work according to the percentage ofcompletion of the work, rather than to the grantee's cost incurred.</P> <P> <E T="03">Prior approval</E> means documentation evidencing consent prior toincurring specific cost.</P> <P> <E T="03">Real property</E> means land, including land improvements,structures and appurtenances thereto, excluding movable machinery and equipment.</P> <P> <E T="03">Share,</E> when referring to the awarding agency's portion of realproperty, equipment or supplies, means the same percentage as the awardingagency's portion of the acquiring party's total costs under the grant to whichthe acquisition costs under the grant to which the acquisition cost of theproperty was charged. Only costs are to be counted—not the value of third-party in-kind contributions.</P> <P> <E T="03">State</E> means any of the several States of the United States, theDistrict of Columbia, the Commonwealth of Puerto Rico, any territory orpossession of the United States, or any agency or instrumentality of a Stateexclusive of local governments. The term does not include any public and Indianhousing agency under United States Housing Act of 1937.</P> <P> <E T="03">Subgrant</E> means an award of financial assistance in the form ofmoney, or property in lieu of money, made under a grant by a grantee to aneligible subgrantee. The term includes financial assistance when provided bycontractual legal agreement, but does not include procurement purchases, nordoes it include any form of assistance which is excluded from the definition of“grant” in this part.</P> <P> <E T="03">Subgrantee</E> means the government or other legal entity to whicha subgrant is awarded and which is accountable to the grantee for the use of thefunds provided.</P> <P> <E T="03">Supplies</E> means all tangible personal property other than“equipment” as defined in this part.</P> <P> <E T="03">Suspension</E> means depending on the context, either (1) temporarywithdrawal of the authority to obligate grant funds pending corrective action bythe grantee or subgrantee or a decision to terminate the grant, or (2) an actiontaken by a suspending official in accordance with agency regulationsimplementing E.O. 12549 to immediately exclude a person from participating ingrant transactions for a period, pending completion of an investigation and suchlegal or debarment proceedings as may ensue.</P> <P> <E T="03">Termination</E> means permanent withdrawal of the authority toobligate previously-awarded grant funds before that authority would otherwiseexpire. It also means the voluntary relinquishment of that authority by thegrantee or subgrantee. “Termination” does not include:</P> <P>(1) Withdrawal of funds awarded on the basis of the grantee's underestimateof the unobligated balance in a prior period;</P> <P>(2) Withdrawal of the unobligated balance as of the expiration of a grant;<PRTPAGE P="175"/> </P> <P>(3) Refusal to extend a grant or award additional funds, to make a competingor noncompeting continuation, renewal, extension, or supplemental award; or</P> <P>(4) Voiding of a grant upon determination that the award was obtainedfraudulently, or was otherwise illegal or invalid from inception.</P> <P> <E T="03">Terms of a grant or subgrant</E> mean all requirements of the grantor subgrant, whether in statute, regulations, or the award document.</P> <P> <E T="03">Third party in-kind contributions</E> mean property or serviceswhich benefit a federally assisted project or program and which are contributedby non-Federal third parties without charge to the grantee, or a cost-typecontractor under the grant agreement.</P> <P> <E T="03">Unliquidated obligations</E> for reports prepared on a cash basismean the amount of obligations incurred by the grantee that has not been paid.For reports prepared on an accrued expenditure basis, they represent the amountof obligations incurred by the grantee for which an outlay has not beenrecorded.</P> <P> <E T="03">Unobligated balance</E> means the portion of the funds authorizedby the Federal agency that has not been obligated by the grantee and isdetermined by deducting the cumulative obligations from the cumulative fundsauthorized.</P> </SECTION> <SECTION> <SECTNO>§ 66.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) <E T="03">General.</E> Subparts A-D of this part apply to allgrants and subgrants to governments, except where inconsistent with Federalstatutes or with regulations authorized in accordance with the exceptionprovision of §66.6, or:</P> <P>(1) Grants and subgrants to State and local institutions of higher educationor State and local hospitals.</P> <P>(2) The block grants authorized by the Omnibus Budget Reconciliation Act of1981 (Community Services; Preventive Health and Health Services; Alcohol, DrugAbuse, and Mental Health Services; Maternal and Child Health Services; SocialServices; Low-Income Home Energy Assistance; States' Program of CommunityDevelopment Block Grants for Small Cities; and Elementary and SecondaryEducation other than programs administered by the Secretary of Education undertitle V, subtitle D, chapter 2, Section 583—the Secretary's discretionarygrant program) and titles I-III of the Job Training Partnership Act of 1982 andunder the Public Health Services Act (section 1921), Alcohol and Drug AbuseTreatment and Rehabilitation Block Grant and part C of title V, Mental HealthService for the Homeless Block Grant).</P> <P>(3) Entitlement grants to carry out the following programs of the SocialSecurity Act:</P> <P>(i) Aid to Needy Families with Dependent Children (title IV-A of the Act, notincluding the Work Incentive Program (WIN) authorized by section 402(a)19(G);HHS grants for WIN are subject to this part);</P> <P>(ii) Child Support Enforcement and Establishment of Paternity (title IV-D ofthe Act);</P> <P>(iii) Foster Care and Adoption Assistance (title IV-E of the Act);</P> <P>(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and XVI-AABD ofthe Act); and</P> <P>(v) Medical Assistance (Medicaid) (title XIX of the Act) not including theState Medicaid Fraud Control program authorized by section 1903(a)(6)(B).</P> <P>(4) Entitlement grants under the following programs of The National SchoolLunch Act:</P> <P>(i) School Lunch (section 4 of the Act),</P> <P>(ii) Commodity Assistance (section 6 of the Act),</P> <P>(iii) Special Meal Assistance (section 11 of the Act),</P> <P>(iv) Summer Food Service for Children (section 13 of the Act), and</P> <P>(v) Child Care Food Program (section 17 of the Act).</P> <P>(5) Entitlement grants under the following programs of The Child NutritionAct of 1966:</P> <P>(i) Special Milk (section 3 of the Act), and</P> <P>(ii) School Breakfast (section 4 of the Act).</P> <P>(6) Entitlement grants for State Administrative expenses under The Food StampAct of 1977 (section 16 of the Act).</P> <P>(7) A grant for an experimental, pilot, or demonstration project that is also <PRTPAGE P="176"/>supported by a grant listed in paragraph (a)(3) of this section;</P> <P>(8) Grant funds awarded under subsection 412(e) of the Immigration andNationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the RefugeeEducation Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 1809), for cashassistance, medical assistance, and supplemental security income benefits torefugees and entrants and the administrative costs of providing the assistanceand benefits;</P> <P>(9) Grants to local education agencies under 20 U.S.C. 236 through241-1(a), and 242 through 244 (portions of the Impact Aid program), exceptfor 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for HandicappedChildren); and</P> <P>(10) Payments under the Veterans Administration's State Home Per Diem Program(38 U.S.C. 641(a)).</P> <P>(b) <E T="03">Entitlement programs.</E> Entitlement programs enumerated abovein § 66.4(a) (3) through (8) are subject to subpart E.</P> </SECTION> <SECTION> <SECTNO>§ 66.5</SECTNO> <SUBJECT>Effect on other issuances.</SUBJECT> <P>All other grants administration provisions of codified program regulations,program manuals, handbooks and other nonregulatory materials which areinconsistent with this part are superseded, except to the extent they arerequired by statute, or authorized in accordance with the exception provision in§ 66.6.</P> </SECTION> <SECTION> <SECTNO>§ 66.6</SECTNO> <SUBJECT>Additions and exceptions.</SUBJECT> <P>(a) For classes of grants and grantees subject to this part, Federal agenciesmay not impose additional administrative requirements except in codifiedregulations published in the <E T="04">Federal Register.</E> </P> <P>(b) Exceptions for classes of grants or grantees may be authorized only byOMB.</P> <P>(c) Exceptions on a case-by-case basis and for subgrantees may be authorizedby the affected Federal agencies.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD> <SECTION> <SECTNO>§ 66.10</SECTNO> <SUBJECT>Forms for applying for grants.</SUBJECT> <P>(a) <E T="03">Scope.</E> (1) This section prescribes forms and instructionsto be used by governmental organizations (except hospitals and institutions ofhigher education operated by a government) in applying for grants. This sectionis not applicable, however, to formula grant programs which do not requireapplicants to apply for funds on a project basis.</P> <P>(2) This section applies only to applications to Federal agencies for grants,and is not required to be applied by grantees in dealing with applicants forsubgrants. However, grantees are encouraged to avoid more detailed or burdensomeapplication requirements for subgrants.</P> <P>(b) <E T="03">Authorized forms and instructions for governmentalorganizations.</E> (1) In applying for grants, applicants shall only usestandard application forms or those prescribed by the granting agency with theapproval of OMB under the Paperwork Reduction Act of 1980.</P> <P>(2) Applicants are not required to submit more than the original and twocopies of preapplications or applications.</P> <P>(3) Applicants must follow all applicable instructions that bear OMBclearance numbers. Federal agencies may specify and describe the programs,functions, or activities that will be used to plan, budget, and evaluate thework under a grant. Other supplementary instructions may be issued only with theapproval of OMB to the extent required under the Paperwork Reduction Act of1980. For any standard form, except the SF-424 facesheet, Federal agenciesmay shade out or instruct the applicant to disregard any line item that is notneeded.</P> <P>(4) When a grantee applies for additional funding (such as a continuation orsupplemental award) or amends a previously submitted application, only theaffected pages need be submitted. Previously submitted pages with informationthat is still current need not be resubmitted.</P> </SECTION> <SECTION> <SECTNO>§ 66.11</SECTNO> <SUBJECT>State plans.</SUBJECT> <P>(a) <E T="03">Scope.</E> The statutes for some programs require States tosubmit plans before receiving grants. Under regulations implementing ExecutiveOrder 12372, “Intergovernmental Review of Federal Programs,” Statesare allowed to simplify, consolidate and substitute plans. This section containsadditional provisions for plans that are subject to <PRTPAGE P="177"/>regulations implementing theExecutive Order.</P> <P>(b) <E T="03">Requirements.</E> A State need meet only Federal administrativeor programmatic requirements for a plan that are in statutes or codifiedregulations.</P> <P>(c) <E T="03">Assurances.</E> In each plan the State will include anassurance that the State shall comply with all applicable Federal statutes andregulations in effect with respect to the periods for which it receives grantfunding. For this assurance and other assurances required in the plan, the Statemay:</P> <P>(1) Cite by number the statutory or regulatory provisions requiring theassurances and affirm that it gives the assurances required by those provisions,</P> <P>(2) Repeat the assurance language in the statutes or regulations, or</P> <P>(3) Develop its own language to the extent permitted by law.</P> <P>(d) <E T="03">Amendments.</E> A State will amend a plan whenever necessary toreflect: (1) New or revised Federal statutes or regulations or (2) a materialchange in any State law, organization, policy, or State agency operation. TheState will obtain approval for the amendment and its effective date but needsubmit for approval only the amended portions of the plan.</P> </SECTION> <SECTION> <SECTNO>§ 66.12</SECTNO> <SUBJECT>Special grant or subgrant conditions for “high-risk”grantees.</SUBJECT> <P>(a) A grantee or subgrantee may be considered “high risk” if anawarding agency determines that a grantee or subgrantee:</P> <P>(1) Has a history of unsatisfactory performance, or</P> <P>(2) Is not financially stable, or</P> <P>(3) Has a management system which does not meet the management standards setforth in this part, or</P> <P>(4) Has not conformed to terms and conditions of previous awards, or</P> <P>(5) Is otherwise not responsible; and if the awarding agency determines thatan award will be made, special conditions and/or restrictions shall correspondto the high risk condition and shall be included in the award.</P> <P>(b) Special conditions or restrictions may include:</P> <P>(1) Payment on a reimbursement basis;</P> <P>(2) Withholding authority to proceed to the next phase until receipt ofevidence of acceptable performance within a given funding period;</P> <P>(3) Requiring additional, more detailed financial reports;</P> <P>(4) Additional project monitoring;</P> <P>(5) Requiring the grante or subgrantee to obtain technical or managementassistance; or</P> <P>(6) Establishing additional prior approvals.</P> <P>(c) If an awarding agency decides to impose such conditions, the awardingofficial will notify the grantee or subgrantee as early as possible, in writing,of:</P> <P>(1) The nature of the special conditions/restrictions;</P> <P>(2) The reason(s) for imposing them;</P> <P>(3) The corrective actions which must be taken before they will be removedand the time allowed for completing the corrective actions and</P> <P>(4) The method of requesting reconsideration of the conditions/restrictionsimposed.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Post-Award Requirements</HD> <SUBJGRP> <HD SOURCE="HED">Financial Administration</HD> <SECTION> <SECTNO>§ 66.20</SECTNO> <SUBJECT>Standards for financial management systems.</SUBJECT> <P>(a) A State must expand and account for grant funds in accordance with Statelaws and procedures for expending and accounting for its own funds. Fiscalcontrol and accounting procedures of the State, as well as its subgrantees andcost-type contractors, must be sufficient to—</P> <P>(1) Permit preparation of reports required by this part and the statutesauthorizing the grant, and</P> <P>(2) Permit the tracing of funds to a level of expenditures adequate toestablish that such funds have not been used in violation of the restrictionsand prohibitions of applicable statutes.</P> <P>(b) The financial management systems of other grantees and subgrantees mustmeet the following standards:</P> <P>(1) <E T="03">Financial reporting.</E> Accurate, current, and completedisclosure of the financial results of financially assisted activities must bemade in accordance <PRTPAGE P="178"/>with the financial reporting requirements of the grant orsubgrant.</P> <P>(2) <E T="03">Accounting records.</E> Grantees and subgrantees must maintainrecords which adequately identify the source and application of funds providedfor financially-assisted activities. These records must contain informationpertaining to grant or subgrant awards and authorizations, obligations,unobligated balances, assets, liabilities, outlays or expenditures, and income.</P> <P>(3) <E T="03">Internal control.</E> Effective control and accountability mustbe maintained for all grant and subgrant cash, real and personal property, andother assets. Grantees and subgrantees must adequately safeguard all suchproperty and must assure that it is used solely for authorized purposes.</P> <P>(4) <E T="03">Budget control.</E> Actual expenditures or outlays must becompared with budgeted amounts for each grant or subgrant. Financial informationmust be related to performance or productivity data, including the developmentof unit cost information whenever appropriate or specifically required in thegrant or subgrant agreement. If unit cost data are required, estimates based onavailable documentation will be accepted whenever possible.</P> <P>(5) <E T="03">Allowable cost.</E> Applicable OMB cost principles, agencyprogram regulations, and the terms of grant and subgrant agreements will befollowed in determining the reasonableness, allowability, and allocability ofcosts.</P> <P>(6) <E T="03">Source documentation.</E> Accounting records must be supportedby such source documentation as cancelled checks, paid bills, payrolls, time andattendance records, contract and subgrant award documents, etc.</P> <P>(7) <E T="03">Cash management.</E> Procedures for minimizing the timeelapsing between the transfer of funds from the U.S. Treasury and disbursementby grantees and subgrantees must be followed whenever advance payment proceduresare used. Grantees must establish reasonable procedures to ensure the receipt ofreports on subgrantees' cash balances and cash disbursements in sufficient timeto enable them to prepare complete and accurate cash transactions reports to theawarding agency. When advances are made by letter-of-credit or electronictransfer of funds methods, the grantee must make drawdowns as close as possibleto the time of making disbursements. Grantees must monitor cash drawdowns bytheir subgrantees to assure that they conform substantially to the samestandards of timing and amount as apply to advances to the grantees.</P> <P>(c) An awarding agency may review the adequacy of the financial managementsystem of any applicant for financial assistance as part of a preaward review orat any time subsequent to award.</P> </SECTION> <SECTION> <SECTNO>§ 66.21</SECTNO> <SUBJECT>Payment.</SUBJECT> <P>(a) <E T="03">Scope.</E> This section prescribes the basic standard and themethods under which a Federal agency will make payments to grantees, andgrantees will make payments to subgrantees and contractors.</P> <P>(b) <E T="03">Basic standard.</E> Methods and procedures for payment shallminimize the time elapsing between the transfer of funds and disbursement by thegrantee or subgrantee, in accordance with Treasury regulations at 31 CFR part205.</P> <P>(c) <E T="03">Advances.</E> Grantees and subgrantees shall be paid inadvance, provided they maintain or demonstrate the willingness and ability tomaintain procedures to minimize the time elapsing between the transfer of thefunds and their disbursement by the grantee or subgrantee.</P> <P>(d) <E T="03">Reimbursement.</E> Reimbursement shall be the preferred methodwhen the requirements in paragraph (c) of this section are not met. Grantees andsubgrantees may also be paid by reimbursement for any construction grant. Exceptas otherwise specified in regulation, Federal agencies shall not use thepercentage of completion method to pay construction grants. The grantee orsubgrantee may use that method to pay its construction contractor, and if itdoes, the awarding agency's payments to the grantee or subgrantee will be basedon the grantee's or subgrantee's actual rate of disbursement.</P> <P>(e) <E T="03">Working capital advances.</E> If a grantee cannot meet thecriteria for <PRTPAGE P="179"/>advance payments described in paragraph (c) of this section, andthe Federal agency has determined that reimbursement is not feasible because thegrantee lacks sufficient working capital, the awarding agency may provide cashor a working capital advance basis. Under this procedure the awarding agencyshall advance cash to the grantee to cover its estimated disbursement needs foran initial period generally geared to the grantee's disbursing cycle.Thereafter, the awarding agency shall reimburse the grantee for its actual cashdisbursements. The working capital advance method of payment shall not be usedby grantees or subgrantees if the reason for using such method is theunwillingness or inability of the grantee to provide timely advances to thesubgrantee to meet the subgrantee's actual cash disbursements.</P> <P>(f) <E T="03">Effect of program income, refunds, and audit recoveries onpayment.</E> (1) Grantees and subgrantees shall disburse repayments to andinterest earned on a revolving fund before requesting additional cash paymentsfor the same activity.</P> <P>(2) Except as provided in paragraph (f)(1) of this section, grantees andsubgrantees shall disburse program income, rebates, refunds, contractsettlements, audit recoveries and interest earned on such funds beforerequesting additional cash payments.</P> <P>(g) <E T="03">Withholding payments.</E> (1) Unless otherwise required byFederal statute, awarding agencies shall not withhold payments for propercharges incurred by grantees or subgrantees unless—</P> <P>(i) The grantee or subgrantee has failed to comply with grant awardconditions or</P> <P>(ii) The grantee or subgrantee is indebted to the United States.</P> <P>(2) Cash withheld for failure to comply with grant award condition, butwithout suspension of the grant, shall be released to the grantee uponsubsequent compliance. When a grant is suspended, payment adjustments will bemade in accordance with § 66.43(c).</P> <P>(3) A Federal agency shall not make payment to grantees for amounts that arewithheld by grantees or subgrantees from payment to contractors to assuresatisfactory completion of work. Payments shall be made by the Federal agencywhen the grantees or subgrantees actually disburse the withheld funds to thecontractors or to escrow accounts established to assure satisfactory completionof work.</P> <P>(h) <E T="03">Cash depositories.</E> (1) Consistent with the national goal ofexpanding the opportunities for minority business enterprises, grantees andsubgrantees are encouraged to use minority banks (a bank which is owned at least50 percent by minority group members). A list of minority owned banks can beobtained from the Minority Business Development Agency, Department of Commerce,Washington, DC 20230.</P> <P>(2) A grantee or subgrantee shall maintain a separate bank account only whenrequired by Federal-State agreement.</P> <P>(i) <E T="03">Interest earned on advances.</E> Except for interest earned onadvances of funds exempt under the Intergovernmental Cooperation Act (31 U.S.C.6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 450), granteesand subgrantees shall promptly, but at least quarterly, remit interest earned onadvances to the Federal agency. The grantee or subgrantee may keep interestamounts up to $100 per year for administrative expenses.</P> </SECTION> <SECTION> <SECTNO>§ 66.22</SECTNO> <SUBJECT>Allowable costs.</SUBJECT> <P>(a) <E T="03">Limitation on use of funds.</E> Grant funds may be used onlyfor:</P> <P>(1) The allowable costs of the grantees, subgrantees and cost-typecontractors, including allowable costs in the form of payments to fixed-pricecontractors; and</P> <P>(2) Reasonable fees or profit to cost-type contractors but not any fee orprofit (or other increment above allowable costs) to the grantee or subgrantee.</P> <P>(b) <E T="03">Applicable cost principles.</E> For each kind of organization,there is a set of Federal principles for determining allowable costs. Allowablecosts will be determined in accordance with the cost principles applicable tothe organization incurring the costs. The following chart lists the kinds oforganizations and the applicable cost principles.<PRTPAGE P="180"/> </P> <GPOTABLE CDEF="s25,r25" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">For the costs of a—</CHED> <CHED H="1">Use the principles in—</CHED> </BOXHD> <ROW> <ENT I="01">State, local or Indian tribal government</ENT> <ENT>OMB CircularA-87.</ENT> </ROW> <ROW> <ENT I="01">Private nonprofit organization other than an (1) institution ofhigher education, (2) hospital, or (3) organization named in OMB CircularA-122 as not subject to that circular</ENT> <ENT>OBM Circular A-122.</ENT> </ROW> <ROW> <ENT I="01">Educational institutions.</ENT> <ENT>OMB Circular A-21.</ENT> </ROW> <ROW> <ENT I="01">For-profit organization other than a hospital and anorganization named in OBM Circular A-122 as not subject to thatcircular</ENT> <ENT>48 CFR part 31. Contract Cost Principles and Procedures, or uniformcost accounting standards that comply with cost principles acceptable to theFederal agency.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 66.23</SECTNO> <SUBJECT>Period of availability of funds.</SUBJECT> <P>(a) <E T="03">General.</E> Where a funding period is specified, a grantee maycharge to the award only costs resulting from obligations of the funding periodunless carryover of unobligated balances is permitted, in which case thecarryover balances may be charged for costs resulting from obligations of thesubsequent funding period.</P> <P>(b) <E T="03">Liquidation of obligations.</E> A grantee must liquidate allobligations incurred under the award not later than 90 days after the end of thefunding period (or as specified in a program regulation) to coincide with thesubmission of the annual Financial Status Report (SF-269). The Federalagency may extend this deadline at the request of the grantee.</P> </SECTION> <SECTION> <SECTNO>§ 66.24</SECTNO> <SUBJECT>Matching or cost sharing.</SUBJECT> <P>(a) <E T="03">Basic rule: Costs and contributions acceptable.</E> With thequalifications and exceptions listed in paragraph (b) of this section, amatching or cost sharing requirement may be satisfied by either or both of thefollowing:</P> <P>(1) Allowable costs incurred by the grantee, subgrantee or a cost-typecontractor under the assistance agreement. This includes allowable costs borneby non-Federal grants or by others cash donations from non-Federal thirdparties.</P> <P>(2) The value of third party in-kind contributions applicable to the periodto which the cost sharing or matching requirements applies.</P> <P>(b) <E T="03">Qualifications and exceptions</E>—(1) <E T="03">Costsborne by other Federal grant agreements.</E> Except as provided by Federalstatute, a cost sharing or matching requirement may not be met by costs borne byanother Federal grant. This prohibition does not apply to income earned by agrantee or subgrantee from a contract awarded under another Federal grant.</P> <P>(2) <E T="03">General revenue sharing.</E> For the purpose of this section,general revenue sharing funds distributed under 31 U.S.C. 6702 are notconsidered Federal grant funds.</P> <P>(3) <E T="03">Cost or contributions counted towards other Federal costs-sharing requirements.</E> Neither costs nor the values of third party in-kindcontributions may count towards satisfying a cost sharing or matchingrequirement of a grant agreement if they have been or will be counted towardssatisfying a cost sharing or matching requirement of another Federal grantagreement, a Federal procurement contract, or any other award of Federal funds.</P> <P>(4) <E T="03">Costs financed by program income.</E> Costs financed by programincome, as defined in § 66.25, shall not count towards satisfying acost sharing or matching requirement unless they are expressly permitted in theterms of the assistance agreement. (This use of general program income isdescribed in § 66.25(g).)</P> <P>(5) <E T="03">Services or property financed by income earned bycontractors.</E> Contractors under a grant may earn income from the activitiescarried out under the contract in addition to the amounts earned from the partyawarding the contract. No costs of services or property supported by this incomemay count toward satisfying a cost sharing or matching requirement unless otherprovisions of the grant agreement expressly permit this kind of income to beused to meet the requirement.</P> <P>(6) <E T="03">Records.</E> Costs and third party in-kind contributionscounting towards satisfying a cost sharing or matching requirement must beverifiable from the records of grantees and subgrantee or cost-type contractors.These records must show how the value placed on third party in-kindcontributions was derived. To the extent feasible, volunteer services will besupported by the same methods that the organization uses to support theallocability of regular personnel costs.<PRTPAGE P="181"/> </P> <P>(7) <E T="03">Special standards for third party in-kind contributions.</E>(i) Third party in-kind contributions count towards satisfying a cost sharing ormatching requirement only where, if the party receiving the contributions wereto pay for them, the payments would be allowable costs.</P> <P>(ii) Some third party in-kind contributions are goods and services that, ifthe grantee, subgrantee, or contractor receiving the contribution had to pay forthem, the payments would have been an indirect costs. Costs sharing or matchingcredit for such contributions shall be given only if the grantee, subgrantee, orcontractor has established, along with its regular indirect cost rate, a specialrate for allocating to individual projects or programs the value of thecontributions.</P> <P>(iii) A third party in-kind contribution to a fixed-price contract may counttowards satisfying a cost sharing or matching requirement only if it results in:</P> <P>(A) An increase in the services or property provided under the contract(without additional cost to the grantee or subgrantee) or</P> <P>(B) A cost savings to the grantee or subgrantee.</P> <P>(iv) The values placed on third party in-kind contributions for cost sharingor matching purposes will conform to the rules in the succeeding sections ofthis part. If a third party in-kind contribution is a type not treated in thosesections, the value placed upon it shall be fair and reasonable.</P> <P>(c) <E T="03">Valuation of donated services</E>—(1) <E T="03">Volunteerservices.</E> Unpaid services provided to a grantee or subgrantee by individualswill be valued at rates consistent with those ordinarily paid for similar workin the grantee's or subgrantee's organization. If the grantee or subgrantee doesnot have employees performing similar work, the rates will be consistent withthose ordinarily paid by other employers for similar work in the same labormarket. In either case, a reasonable amount for fringe benefits may be includedin the valuation.</P> <P>(2) <E T="03">Employees of other organizations.</E> When an employer otherthan a grantee, subgrantee, or cost-type contractor furnishes free of charge theservices of an employee in the employee's normal line of work, the services willbe valued at the employee's regular rate of pay exclusive of the employee'sfringe benefits and overhead costs. If the services are in a different line ofwork, paragraph (c)(1) of this section applies.</P> <P>(d) <E T="03">Valuation of third party donated supplies and loaned equipmentor space.</E> (1) If a third party donates supplies, the contribution will bevalued at the market value of the supplies at the time of donation.</P> <P>(2) If a third party donates the use of equipment or space in a building butretains title, the contribution will be valued at the fair rental rate of theequipment or space.</P> <P>(e) <E T="03">Valuation of third party donated equipment, buildings, andland.</E> If a third party donates equipment, buildings, or land, and titlepasses to a grantee or subgrantee, the treatment of the donated property willdepend upon the purpose of the grant or subgrant, as follows:</P> <P>(1) <E T="03">Awards for capital expenditures.</E> If the purpose of thegrant or subgrant is to assist the grantee or subgrantee in the acquisition ofproperty, the market value of that property at the time of donation may becounted as cost sharing or matching,</P> <P>(2) <E T="03">Other awards.</E> If assisting in the acquisition of propertyis not the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) ofthis section apply:</P> <P>(i) If approval is obtained from the awarding agency, the market value at thetime of donation of the donated equipment or buildings and the fair rental rateof the donated land may be counted as cost sharing or matching. In the case of asubgrant, the terms of the grant agreement may require that the approval beobtained from the Federal agency as well as the grantee. In all cases, theapproval may be given only if a purchase of the equipment or rental of the landwould be approved as an allowable direct cost. If any part of the donatedproperty was acquired with Federal funds, only the non-federal share of theproperty may be counted as cost-sharing or matching.</P> <P>(ii) If approval is not obtained under paragraph (e)(2)(i) of this section,no amount may be counted for donated <PRTPAGE P="182"/>land, and only depreciation or useallowances may be counted for donated equipment and buildings. The depreciationor use allowances for this property are not treated as third party in-kindcontributions. Instead, they are treated as costs incurred by the grantee orsubgrantee. They are computed and allocated (usually as indirect costs) inaccordance with the cost principles specified in § 66.22, in the sameway as depreciation or use allowances for purchased equipment and buildings. Theamount of depreciation or use allowances for donated equipment and buildings isbased on the property's market value at the time it was donated.</P> <P>(f) <E T="03">Valuation of grantee or subgrantee donated real property forconstruction/acquisition.</E> If a grantee or subgrantee donates real propertyfor a construction or facilities acquisition project, the current market valueof that property may be counted as cost sharing or matching. If any part of thedonated property was acquired with Federal funds, only the non-federal share ofthe property may be counted as cost sharing or matching.</P> <P>(g) <E T="03">Appraisal of real property.</E> In some cases under paragraphs(d), (e) and (f) of this section, it will be necessary to establish the marketvalue of land or a building or the fair rental rate of land or of space in abuilding. In these cases, the Federal agency may require the market value orfair rental value be set by an independent appraiser, and that the value or ratebe certified by the grantee. This requirement will also be imposed by thegrantee on subgrantees.</P> </SECTION> <SECTION> <SECTNO>§ 66.25</SECTNO> <SUBJECT>Program income.</SUBJECT> <P>(a) <E T="03">General.</E> Grantees are encouraged to earn income to defrayprogram costs. Program income includes income from fees for services performed,from the use or rental of real or personal property acquired with grant funds,from the sale of commodities or items fabricated under a grant agreement, andfrom payments of principal and interest on loans made with grant funds. Exceptas otherwise provided in regulations of the Federal agency, program income doesnot include interest on grant funds, rebates, credits, discounts, refunds, etc.and interest earned on any of them.</P> <P>(b) <E T="03">Definition of program income.</E> Program income means grossincome received by the grantee or subgrantee directly generated by a grantsupported activity, or earned only as a result of the grant agreement during thegrant period. “During the grant period” is the time between theeffective date of the award and the ending date of the award reflected in thefinal financial report.</P> <P>(c) <E T="03">Cost of generating program income.</E> If authorized by Federalregulations or the grant agreement, costs incident to the generation of programincome may be deducted from gross income to determine program income.</P> <P>(d) <E T="03">Governmental revenues.</E> Taxes, special assessments, levies,fines, and other such revenues raised by a grantee or subgrantee are not programincome unless the revenues are specifically identified in the grant agreement orFederal agency regulations as program income.</P> <P>(e) <E T="03">Royalties.</E> Income from royalties and license fees forcopyrighted material, patents, and inventions developed by a grantee orsubgrantee is program income only if the revenues are specifically identified inthe grant agreement or Federal agency regulations as program income. (See§ 66.34.)</P> <P>(f) <E T="03">Property.</E> Proceeds from the sale of real property orequipment will be handled in accordance with the requirements of§§ 66.31 and 66.32.</P> <P>(g) <E T="03">Use of program income.</E> Program income shall be deductedfrom outlays which may be both Federal and non-Federal as described below,unless the Federal agency regulations or the grant agreement specify anotheralternative (or a combination of the alternatives). In specifying alternatives,the Federal agency may distinguish between income earned by the grantee andincome earned by subgrantees and between the sources, kinds, or amounts ofincome. When Federal agencies authorize the alternatives in paragraphs (g) (2)and (3) of this section, program income in excess of any limits stipulated shallalso be deducted from outlays.</P> <P>(1) <E T="03">Deduction.</E> Ordinarily program income shall be deducted fromtotal allowable costs to determine the net allowable costs. Program income shallbe <PRTPAGE P="183"/>used for current costs unless the Federal agency authorizes otherwise.Program income which the grantee did not anticipate at the time of the awardshall be used to reduce the Federal agency and grantee contributions rather thanto increase the funds committed to the project.</P> <P>(2) <E T="03">Addition.</E> When authorized, program income may be added tothe funds committed to the grant agreement by the Federal agency and thegrantee. The program income shall be used for the purposes and under theconditions of the grant agreement.</P> <P>(3) <E T="03">Cost sharing or matching.</E> When authorized, program incomemay be used to meet the cost sharing or matching requirement of the grantagreement. The amount of the Federal grant award remains the same.</P> <P>(h) <E T="03">Income after the award period.</E> There are no Federalrequirements governing the disposition of program income earned after the end ofthe award period (i.e., until the ending date of the final financial report, seeparagraph (a) of this section), unless the terms of the agreement or the Federalagency regulations provide otherwise.</P> </SECTION> <SECTION> <SECTNO>§ 66.26</SECTNO> <SUBJECT>Non-Federal audit.</SUBJECT> <P>(a) <E T="03">Basic rule.</E> Grantees and subgrantees are responsible forobtaining audits in accordance with the Single Audit Act Amendments of 1996 (31U.S.C. 7501-7507) and revised OMB Circular A-133, “Audits ofStates, Local Governments, and Non-Profit Organizations.” The audits shallbe made by an independent auditor in accordance with generally acceptedgovernment auditing standards covering financial audits.</P> <P>(b) <E T="03">Subgrantees.</E> State or local governments, as those terms aredefined for purposes of the Single Audit Act Amendments of 1996, that provideFederal awards to a subgrantee, which expends $300,000 or more (or other amountas specified by OMB) in Federal awards in a fiscal year, shall:</P> <P>(1) Determine whether State or local subgrantees have met the auditrequirements of the Act and whether subgrantees covered by OMB CircularA-110, “Uniform Administrative Requirements for Grants andAgreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” have met the audit requirements of the Act.Commercial contractors (private for-profit and private and governmentalorganizations) providing goods and services to State and local governments arenot required to have a single audit performed. State and local governmentsshould use their own procedures to ensure that the contractor has complied withlaws and regulations affecting the expenditure of Federal funds;</P> <P>(2) Determine whether the subgrantee spent Federal assistance funds providedin accordance with applicable laws and regulations. This may be accomplished byreviewing an audit of the subgrantee made in accordance with the Act, CircularA-110, or through other means (e.g., program reviews) if the subgranteehas not had such an audit;</P> <P>(3) Ensure that appropriate corrective action is taken within six monthsafter receipt of the audit report in instance of noncompliance with Federal lawsand regulations;</P> <P>(4) Consider whether subgrantee audits necessitate adjustment of thegrantee's own records; and</P> <P>(5) Require each subgrantee to permit independent auditors to have access tothe records and financial statements.</P> <P>(c) <E T="03">Auditor selection.</E> In arranging for audit services,§ 66.36 shall be followed.</P> <CITA>[Order No. 1252-88, 53 FR 8068 and 8087, Mar. 11, 1988, as amendedat 62 FR 45939 and 45942, Aug. 29, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Changes, Property, and Subawards</HD> <SECTION> <SECTNO>§ 66.30</SECTNO> <SUBJECT>Changes.</SUBJECT> <P>(a) <E T="03">General.</E> Grantees and subgrantees are permitted to rebudgetwithin the approved direct cost budget to meet unanticipated requirements andmay make limited program changes to the approved project. However, unless waivedby the awarding agency, certain types of post-award changes in budgets andprojects shall require the prior written approval of the awarding agency.</P> <P>(b) <E T="03">Relation to cost principles.</E> The applicable cost principles(see § 66.22) contain requirements for prior approval of certaintypes of costs. Except where waived, those requirements apply to all <PRTPAGE P="184"/>grants andsubgrants even if paragraphs (c) through (f) of this section do not.</P> <P>(c) <E T="03">Budget changes</E>—(1) <E T="03">Nonconstructionprojects.</E> Except as stated in other regulations or an award document,grantees or subgrantees shall obtain the prior approval of the awarding agencywhenever any of the following changes is anticipated under a nonconstructionaward:</P> <P>(i) Any revision which would result in the need for additional funding.</P> <P>(ii) Unless waived by the awarding agency, cumulative transfers among directcost categories, or, if applicable, among separately budgeted programs,projects, functions, or activities which exceed or are expected to exceed tenpercent of the current total approved budget, whenever the awarding agency'sshare exceeds $100,000.</P> <P>(iii) Transfer of funds allotted for training allowances (i.e., from directpayments to trainees to other expense categories).</P> <P>(2) <E T="03">Construction projects.</E> Grantees and subgrantees shallobtain prior written approval for any budget revision which would result in theneed for additional funds.</P> <P>(3) <E T="03">Combined construction and nonconstruction projects.</E> When agrant or subgrant provides funding for both construction and nonconstructionactivities, the grantee or subgrantee must obtain prior written approval fromthe awarding agency before making any fund or budget transfer fromnonconstruction to construction or vice versa.</P> <P>(d) <E T="03">Programmatic changes.</E> Grantees or subgrantees must obtainthe prior approval of the awarding agency whenever any of the following actionsis anticipated:</P> <P>(1) Any revision of the scope or objectives of the project (regardless ofwhether there is an associated budget revision requiring prior approval).</P> <P>(2) Need to extend the period of availability of funds.</P> <P>(3) Changes in key persons in cases where specified in an application or agrant award. In research projects, a change in the project director or principalinvestigator shall always require approval unless waived by the awarding agency.</P> <P>(4) Under nonconstruction projects, contracting out, subgranting (ifauthorized by law) or otherwise obtaining the services of a third party toperform activities which are central to the purposes of the award. This approvalrequirement is in addition to the approval requirements of § 66.36but does not apply to the procurement of equipment, supplies, and generalsupport services.</P> <P>(e) <E T="03">Additional prior approval requirements.</E> The awarding agencymay not require prior approval for any budget revision which is not described inparagraph (c) of this section.</P> <P>(f) <E T="03">Requesting prior approval.</E> (1) A request for prior approvalof any budget revision will be in the same budget formal the grantee used in itsapplication and shall be accompanied by a narrative justification for theproposed revision.</P> <P>(2) A request for a prior approval under the applicable Federal costprinciples (see § 66.22) may be made by letter.</P> <P>(3) A request by a subgrantee for prior approval will be addressed in writingto the grantee. The grantee will promptly review such request and shall approveor disapprove the request in writing. A grantee will not approve any budget orproject revision which is inconsistent with the purpose or terms and conditionsof the Federal grant to the grantee. If the revision, requested by thesubgrantee would result in a change to the grantee's approved project whichrequires Federal prior approval, the grantee will obtain the Federal agency'sapproval before approving the subgrantee's request.</P> </SECTION> <SECTION> <SECTNO>§ 66.31</SECTNO> <SUBJECT>Real property.</SUBJECT> <P>(a) <E T="03">Title.</E> Subject to the obligations and conditions set forthin this section, title to real property acquired under a grant or subgrant willvest upon acquisition in the grantee or subgrantee respectively.</P> <P>(b) <E T="03">Use.</E> Except as otherwise provided by Federal statutes, realproperty will be used for the originally authorized purposes as long as neededfor that purposes, and the grantee or subgrantee shall not dispose of orencumber its title or other interests.<PRTPAGE P="185"/> </P> <P>(c) <E T="03">Disposition.</E> When real property is no longer needed for theoriginally authorized purpose, the grantee or subgrantee will requestdisposition instructions from the awarding agency. The instructions will providefor one of the following alternatives:</P> <P>(1) <E T="03">Retention of title.</E> Retain title after compensating theawarding agency. The amount paid to the awarding agency will be computed byapplying the awarding agency's percentage of participation in the cost of theoriginal purchase to the fair market value of the property. However, in thosesituations where a grantee or subgrantee is disposing of real property acquiredwith grant funds and acquiring replacement real property under the same program,the net proceeds from the disposition may be used as an offset to the cost ofthe replacement property.</P> <P>(2) <E T="03">Sale of property.</E> Sell the property and compensate theawarding agency. The amount due to the awarding agency will be calculated byapplying the awarding agency's percentage of participation in the cost of theoriginal purchase to the proceeds of the sale after deduction of any actual andreasonable selling and fixing-up expenses. If the grant is still active, the netproceeds from sale may be offset against the original cost of the property. Whena grantee or subgrantee is directed to sell property, sales procedures shall befollowed that provide for competition to the extent practicable and result inthe highest possible return.</P> <P>(3) <E T="03">Transfer of title.</E> Transfer title to the awarding agency orto a third-party designated/approved by the awarding agency. The grantee orsubgrantee shall be paid an amount calculated by applying the grantee orsubgrantee's percentage of participation in the purchase of the real property tothe current fair market value of the property.</P> </SECTION> <SECTION> <SECTNO>§ 66.32</SECTNO> <SUBJECT>Equipment.</SUBJECT> <P>(a) The Omnibus Crime Control and Safe Streets Act of 1968, as amended,Public Law 90-351, section 808, requires that the title to all equipmentand supplies purchased with section 403 or 1302 (block or formula funds) shallvest in the criminal justice agency or nonprofit organization that purchased theproperty if it certifies to the State office described in section 408 or 1308that it will use the property for criminal justice purposes. If suchcertification is not made, title to the property shall vest in the State office,which shall seek to have the property used for criminal justice purposeselsewhere in the State prior to using it or disposing of it in any other manner.</P> <P>(b) <E T="03">States.</E> A State will use, manage, and dispose of equipmentacquired under a grant by the State in accordance with State laws andprocedures. Other grantees and subgrantees will follow paragraphs (c) through(e) of this section.</P> <P>(c) <E T="03">Use.</E> (1) Equipment shall be used by the grantee orsubgrantee in the program or project for which it was acquired as long asneeded, whether or not the project or program continues to be supported byFederal funds. When no longer needed for the original program or project, theequipment may be used in other activities currently or previously supported by aFederal agency.</P> <P>(2) The grantee or subgrantee shall also make equipment available for use onother projects or programs currently or previously supported by the FederalGovernment, providing such use will not interfere with the work on the projectsor program for which it was originally acquired. First preference for other useshall be given to other programs or projects supported by the awarding agency.User fees should be considered if appropriate.</P> <P>(3) Notwithstanding the encouragement in § 66.25(a) to earnprogram income, the grantee or subgrantee must not use equipment acquired withgrant funds to provide services for a fee to compete unfairly with privatecompanies that provide equivalent services, unless specifically permitted orcontemplated by Federal statute.</P> <P>(4) When acquiring replacement equipment, the grantee or subgrantee may usethe equipment to be replaced as a trade-in or sell the property and use theproceeds to offset the cost of the replacement property, subject to the approvalof the awarding agency.</P> <P>(d) <E T="03">Management requirements.</E> Procedures for managing equipment(including replacement equipment), whether <PRTPAGE P="186"/>acquired in whole or in part withgrant funds, until disposition takes place will, as a minimum, meet thefollowing requirements:</P> <P>(1) Property records must be maintained that include a description of theproperty, a serial number or other identification number, the source ofproperty, who holds title, the acquisition date, and cost of the property,percentage of Federal participation in the cost of the property, the location,use and condition of the property, and any ultimate disposition data includingthe date of disposal and sale price of the property.</P> <P>(2) A physical inventory of the property must be taken and the resultsreconciled with the property records at least once every two years.</P> <P>(3) A control system must be developed to ensure adequate safeguards toprevent loss, damage, or theft of the property. Any loss, damage, or theft shallbe investigated.</P> <P>(4) Adequate maintenance procedures must be developed to keep the property ingood condition.</P> <P>(5) If the grantee or subgrantee is authorized or required to sell theproperty, proper sales procedures must be established to ensure the highestpossible return.</P> <P>(e) <E T="03">Disposition.</E> When original or replacement equipmentacquired under a grant or subgrant is no longer needed for the original projector program or for other activities currently or previously supported by aFederal agency, disposition of the equipment will be made as follows:</P> <P>(1) Items of equipment with a current per-unit fair market value of less than$5,000 may be retained, sold or otherwise disposed of with no further obligationto the awarding agency.</P> <P>(2) Items of equipment with a current per unit fair market value in excess of$5,000 may be retained or sold and the awarding agency shall have a right to anamount calculated by multiplying the current market value or proceeds from saleby the awarding agency's share of the equipment.</P> <P>(3) In cases where a grantee or subgrantee fails to take appropriatedisposition actions, the awarding agency may direct the grantee or subgrantee totake excess and disposition actions.</P> <P>(f) <E T="03">Federal equipment.</E> In the event a grantee or subgrantee isprovided federally-owned equipment:</P> <P>(1) Title will remain vested in the Federal Government.</P> <P>(2) Grantees or subgrantees will manage the equipment in accordance withFederal agency rules and procedures, and submit an annual inventory listing.</P> <P>(3) When the equipment is no longer needed, the grantee or subgrantee willrequest disposition instructions from the Federal agency.</P> <P>(g) <E T="03">Right to transfer title.</E> The Federal awarding agency mayreserve the right to transfer title to the Federal Government or a third partnamed by the awarding agency when such a third party is otherwise eligible underexisting statutes. Such transfers shall be subject to the following standards:</P> <P>(1) The property shall be identified in the grant or otherwise made known tothe grantee in writing.</P> <P>(2) The Federal awarding agency shall issue disposition instruction within120 calendar days after the end of the Federal support of the project for whichit was acquired. If the Federal awarding agency fails to issue dispositioninstructions within the 120 calendar-day period the grantee shall follow66.32(e).</P> <P>(3) When title to equipment is transferred, the grantee shall be paid anamount calculated by applying the percentage of participation in the purchase tothe current fair market value of the property.</P> <CITA>[53 FR 8068 and 8087, Mar. 11, 1988, as amended by Order No.1252-88, 53 FR 8068, Mar. 11, 1988; 53 FR 12099, Apr. 12, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 66.33</SECTNO> <SUBJECT>Supplies.</SUBJECT> <P>(a) The Omnibus Crime Control and Safe Streets Act of 1968, as amended,Public Law 90-351, section 808, requires that the title to all equipmentand supplies purchased with section 403 or 1302 (block or formula funds) shallvest in the criminal justice agency or nonprofit organization that purchased theproperty if it certifies to the State office described in section 408 or 1308that it will use the property for criminal justice purposes. If suchcertification is not made, title to the property shall vest in the State office,which shall <PRTPAGE P="187"/>seek to have the property used for criminal justice purposeselsewhere in the State prior to using it or disposing of it in any other manner.</P> <P>(b) <E T="03">Disposition.</E> If there is a residual inventory of unusedsupplies exceeding $5,000 in total aggregate fair market value upon terminationor completion of the award, and if the supplies are not needed for any otherfederally sponsored programs or projects, the grantee or subgrantee shallcompensate the awarding agency for its share.</P> <CITA>[53 FR 8068 and 8087, Mar. 11, 1988, as amended by Order No.1252-88, 53 FR 8069, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 66.34</SECTNO> <SUBJECT>Copyrights.</SUBJECT> <P>The Federal awarding agency reserves a royalty-free, nonexclusive, andirrevocable license to reproduce, publish or otherwise use, and to authorizeothers to use, for Federal Government purposes:</P> <P>(a) The copyright in any work developed under a grant, subgrant, or contractunder a grant or subgrant; and</P> <P>(b) Any rights of copyright to which a grantee, subgrantee or a contractorpurchases ownership with grant support.</P> </SECTION> <SECTION> <SECTNO>§ 66.35</SECTNO> <SUBJECT>Subawards to debarred and suspended parties.</SUBJECT> <P>Grantees and subgrantees must not make any award or permit any award(subgrant or contract) at any tier to any party which is debarred or suspendedor is otherwise excluded from or ineligible for participation in Federalassistance programs under Executive Order 12549, “Debarment andSuspension.”</P> </SECTION> <SECTION> <SECTNO>§ 66.36</SECTNO> <SUBJECT>Procurement.</SUBJECT> <P>(a) <E T="03">States.</E> When procuring property and services under a grant,a State will follow the same policies and procedures it uses for procurementsfrom its non-Federal funds. The State will ensure that every purchase order orother contract includes any clauses required by Federal statutes and executiveorders and their implementing regulations. Other grantees and subgrantees willfollow paragraphs (b) through (i) in this section.</P> <P>(b) <E T="03">Procurement standards.</E> (1) Grantees and subgrantees willuse their own procurement procedures which reflect applicable State and locallaws and regulations, provided that the procurements conform to applicableFederal law and the standards identified in this section.</P> <P>(2) Grantees and subgrantees will maintain a contract administration systemwhich ensures that contractors perform in accordance with the terms, conditions,and specifications of their contracts or purchase orders.</P> <P>(3) Grantees and subgrantees will maintain a written code of standards ofconduct governing the performance of their employees engaged in the award andadministration of contracts. No employee, officer or agent of the grantee orsubgrantee shall participate in selection, or in the award or administration ofa contract supported by Federal funds if a conflict of interest, real orapparent, would be involved. Such a conflict would arise when:</P> <P>(i) The employee, officer or agent,</P> <P>(ii) Any member of his immediate family,</P> <P>(iii) His or her partner, or</P> <P>(iv) An organization which employs, or is about to employ, any of the above,has a financial or other interest in the firm selected for award. The grantee'sor subgrantee's officers, employees or agents will neither solicit nor acceptgratuities, favors or anything of monetary value from contractors, potentialcontractors, or parties to subagreements. Grantee and subgrantees may setminimum rules where the financial interest is not substantial or the gift is anunsolicited item of nominal intrinsic value. To the extent permitted by State orlocal law or regulations, such standards or conduct will provide for penalties,sanctions, or other disciplinary actions for violations of such standards by thegrantee's and subgrantee's officers, employees, or agents, or by contractors ortheir agents. The awarding agency may in regulation provide additionalprohibitions relative to real, apparent, or potential conflicts of interest.</P> <P>(4) Grantee and subgrantee procedures will provide for a review of proposedprocurements to avoid purchase of unnecessary or duplicative items. <PRTPAGE P="188"/>Consideration should be given to consolidating or breaking out procurements toobtain a more economical purchase. Where appropriate, an analysis will be madeof lease versus purchase alternatives, and any other appropriate analysis todetermine the most economical approach.</P> <P>(5) To foster greater economy and efficiency, grantees and subgrantees areencouraged to enter into State and local intergovernmental agreements forprocurement or use of common goods and services.</P> <P>(6) Grantees and subgrantees are encouraged to use Federal excess and surplusproperty in lieu of purchasing new equipment and property whenever such use isfeasible and reduces project costs.</P> <P>(7) Grantees and subgrantees are encouraged to use value engineering clausesin contracts for construction projects of sufficient size to offer reasonableopportunities for cost reductions. Value engineering is a systematic andcreative anaylsis of each contract item or task to ensure that its essentialfunction is provided at the overall lower cost.</P> <P>(8) Grantees and subgrantees will make awards only to responsible contractorspossessing the ability to perform successfully under the terms and conditions ofa proposed procurement. Consideration will be given to such matters ascontractor integrity, compliance with public policy, record of past performance,and financial and technical resources.</P> <P>(9) Grantees and subgrantees will maintain records sufficient to detail thesignificant history of a procurement. These records will include, but are notnecessarily limited to the following: rationale for the method of procurement,selection of contract type, contractor selection or rejection, and the basis forthe contract price.</P> <P>(10) Grantees and subgrantees will use time and material type contractsonly—</P> <P>(i) After a determination that no other contract is suitable, and</P> <P>(ii) If the contract includes a ceiling price that the contractor exceeds atits own risk.</P> <P>(11) Grantees and subgrantees alone will be responsible, in accordance withgood administrative practice and sound business judgment, for the settlement ofall contractual and administrative issues arising out of procurements. Theseissues include, but are not limited to source evaluation, protests, disputes,and claims. These standards do not relieve the grantee or subgrantee of anycontractual responsibilities under its contracts. Federal agencies will notsubstitute their judgment for that of the grantee or subgrantee unless thematter is primarily a Federal concern. Violations of law will be referred to thelocal, State, or Federal authority having proper jurisdiction.</P> <P>(12) Grantees and subgrantees will have protest procedures to handle andresolve disputes relating to their procurements and shall in all instancesdisclose information regarding the protest to the awarding agency. A protestormust exhaust all administrative remedies with the grantee and subgrantee beforepursuing a protest with the Federal agency. Reviews of protests by the Federalagency will be limited to:</P> <P>(i) Violations of Federal law or regulations and the standards of thissection (violations of State or local law will be under the jurisdiction ofState or local authorities) and</P> <P>(ii) Violations of the grantee's or subgrantee's protest procedures forfailure to review a complaint or protest. Protests received by the Federalagency other than those specified above will be referred to the grantee orsubgrantee.</P> <P>(c) <E T="03">Competition.</E> (1) All procurement transactions will beconducted in a manner providing full and open competition consistent with thestandards of § 66.36. Some of the situations considered to berestrictive of competition include but are not limited to:</P> <P>(i) Placing unreasonable requirements on firms in order for them to qualifyto do business,</P> <P>(ii) Requiring unnecessary experience and excessive bonding,</P> <P>(iii) Noncompetitive pricing practices between firms or between affiliatedcompanies,</P> <P>(iv) Noncompetitive awards to consultants that are on retainer contracts,</P> <P>(v) Organizational conflicts of interest,<PRTPAGE P="189"/> </P> <P>(vi) Specifying only a “brand name” product instead of allowing“an equal” product to be offered and describing the performance ofother relevant requirements of the procurement, and</P> <P>(vii) Any arbitrary action in the procurement process.</P> <P>(2) Grantees and subgrantees will conduct procurements in a manner thatprohibits the use of statutorily or administratively imposed in-State or localgeographical preferences in the evaluation of bids or proposals, except in thosecases where applicable Federal statutes expressly mandate or encouragegeographic preference. Nothing in this section preempts State licensing laws.When contracting for architectural and engineering (A/E) services, geographiclocation may be a selection criteria provided its application leaves anappropriate number of qualified firms, given the nature and size of the project,to compete for the contract.</P> <P>(3) Grantees will have written selection procedures for procurementtransactions. These procedures will ensure that all solicitations:</P> <P>(i) Incorporate a clear and accurate description of the technicalrequirements for the material, product, or service to be procured. Suchdescription shall not, in competitive procurements, contain features whichunduly restrict competition. The description may include a statement of thequalitative nature of the material, product or service to be procured, and whennecessary, shall set forth those minimum essential characteristics and standardsto which it must conform if it is to satisfy its intended use. Detailed productspecifications should be avoided if at all possible. When it is impractical oruneconomical to make a clear and accurate description of the technicalrequirements, a “brand name or equal” description may be used as ameans to define the performance or other salient requirements of a procurement.The specific features of the named brand which must be met by offerors shall beclearly stated; and</P> <P>(ii) Identify all requirements which the offerors must fulfill and all otherfactors to be used in evaluating bids or proposals.</P> <P>(4) Grantees and subgrantees will ensure that all prequalified lists ofpersons, firms, or products which are used in acquiring goods and services arecurrent and include enough qualified sources to ensure maximum open and freecompetition. Also, grantees and subgrantees will not preclude potential biddersfrom qualifying during the solicitation period.</P> <P>(d) <E T="03">Methods of procurement to be followed</E>—(1) <E T="03">Procurement by small purchase procedures.</E> Small purchase proceduresare those relatively simple and informal procurement methods for securingservices, supplies, or other property that do not cost more than the simplifiedacquisition threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). Ifsmall purchase procedures are used, price or rate quotations shall be obtainedfrom an adequate number of qualified sources.</P> <P>(2) <E T="03">Procurement by sealed bids (formal advertising).</E> Bids arepublicly solicited and a firm-fixed-price contract (lump sum or unit price) isawarded to the responsible bidder whose bid, conforming with all the materialterms and conditions of the invitation for bids, is the lowest in price. Thesealed bid method is the preferred method for procuring construction, if theconditions in § 66.36(d)(2)(i) apply.</P> <P>(i) In order for sealed bidding to be feasible, the following conditionsshould be present:</P> <P>(A) A complete, adequate, and realistic specification or purchase descriptionis available;</P> <P>(B) Two or more responsible bidders are willing and able to competeeffectively and for the business; and</P> <P>(C) The procurement lends itself to a firm fixed price contract and theselection of the successful bidder can be made principally on the basis ofprice.</P> <P>(ii) If sealed bids are used, the following requirements apply:</P> <P>(A) The invitation for bids will be publicly advertised and bids shall besolicited from an adequate number of known suppliers, providing them sufficienttime prior to the date set for opening the bids;</P> <P>(B) The invitation for bids, which will include any specifications andpertinent attachments, shall define the items or services in order for thebidder to properly respond;<PRTPAGE P="190"/> </P> <P>(C) All bids will be publicly opened at the time and place prescribed in theinvitation for bids;</P> <P>(D) A firm fixed-price contract award will be made in writing to the lowestresponsive and responsible bidder. Where specified in bidding documents, factorssuch as discounts, transportation cost, and life cycle costs shall be consideredin determining which bid is lowest. Payment discounts will only be used todetermine the low bid when prior experience indicates that such discounts areusually taken advantage of; and</P> <P>(E) Any or all bids may be rejected if there is a sound documented reason.</P> <P>(3) Procurement by <E T="03">competitive proposals.</E> The technique ofcompetitive proposals is normally conducted with more than one source submittingan offer, and either a fixed-price or cost-reimbursement type contract isawarded. It is generally used when conditions are not appropriate for the use ofsealed bids. If this method is used, the following requirements apply:</P> <P>(i) Requests for proposals will be publicized and identify all evaluationfactors and their relative importance. Any response to publicized requests forproposals shall be honored to the maximum extent practical;</P> <P>(ii) Proposals will be solicited from an adequate number of qualifiedsources;</P> <P>(iii) Grantees and subgrantees will have a method for conducting technicalevaluations of the proposals received and for selecting awardees;</P> <P>(iv) Awards will be made to the responsible firm whose proposal is mostadvantageous to the program, with price and other factors considered; and</P> <P>(v) Grantees and subgrantees may use competitive proposal procedures forqualifications-based procurement of architectural/engineering (A/E) professionalservices whereby competitors' qualifications are evaluated and the mostqualified competitor is selected, subject to negotiation of fair and reasonablecompensation. The method, where price is not used as a selection factor, canonly be used in procurement of A/E professional services. It cannot be used topurchase other types of services though A/E firms are a potential source toperform the proposed effort.</P> <P>(4) Procurement by <E T="03">noncompetitive proposals</E> is procurementthrough solicitation of a proposal from only one source, or after solicitationof a number of sources, competition is determined inadequate.</P> <P>(i) Procurement by noncompetitive proposals may be used only when the awardof a contract is infeasible under small purchase procedures, sealed bids orcompetitive proposals and one of the following circumstances applies:</P> <P>(A) The item is available only from a single source;</P> <P>(B) The public exigency or emergency for the requirement will not permit adelay resulting from competitive solicitation;</P> <P>(C) The awarding agency authorizes noncompetitive proposals; or</P> <P>(D) After solicitation of a number of sources, competition is determinedinadequate.</P> <P>(ii) Cost analysis, i.e., verifying the proposed cost data, the projectionsof the data, and the evaluation of the specific elements of costs and profits,is required.</P> <P>(iii) Grantees and subgrantees may be required to submit the proposedprocurement to the awarding agency for pre-award review in accordance withparagraph (g) of this section.</P> <P>(e) <E T="03">Contracting with small and minority firms, women's businessenterprise and labor surplus area firms.</E> (1) The grantee and subgrantee willtake all necessary affirmative steps to assure that minority firms, women'sbusiness enterprises, and labor surplus area firms are used when possible.</P> <P>(2) Affirmative steps shall include:</P> <P>(i) Placing qualified small and minority businesses and women's businessenterprises on solicitation lists;</P> <P>(ii) Assuring that small and minority businesses, and women's businessenterprises are solicited whenever they are potential sources;</P> <P>(iii) Dividing total requirements, when economically feasible, into smallertasks or quantities to permit maximum participation by small and minoritybusiness, and women's business enterprises;</P> <P>(iv) Establishing delivery schedules, where the requirement permits, which <PRTPAGE P="191"/>encourage participation by small and minority business, and women's businessenterprises;</P> <P>(v) Using the services and assistance of the Small Business Administration,and the Minority Business Development Agency of the Department of Commerce; and</P> <P>(vi) Requiring the prime contractor, if subcontracts are to be let, to takethe affirmative steps listed in paragraphs (e)(2) (i) through (v) of thissection.</P> <P>(f) <E T="03">Contract cost and price.</E> (1) Grantees and subgrantees mustperform a cost or price analysis in connection with every procurement actionincluding contract modifications. The method and degree of analysis is dependenton the facts surrounding the particular procurement situation, but as a startingpoint, grantees must make independent estimates before receiving bids orproposals. A cost analysis must be performed when the offeror is required tosubmit the elements of his estimated cost, e.g., under professional, consulting,and architectural engineering services contracts. A cost analysis will benecessary when adequate price competition is lacking, and for sole sourceprocurements, including contract modifications or change orders, unless priceresonableness can be established on the basis of a catalog or market price of acommercial product sold in substantial quantities to the general public or basedon prices set by law or regulation. A price analysis will be used in all otherinstances to determine the reasonableness of the proposed contract price.</P> <P>(2) Grantees and subgrantees will negotiate profit as a separate element ofthe price for each contract in which there is no price competition and in allcases where cost analysis is performed. To establish a fair and reasonableprofit, consideration will be given to the complexity of the work to beperformed, the risk borne by the contractor, the contractor's investment, theamount of subcontracting, the quality of its record of past performance, andindustry profit rates in the surrounding geographical area for similar work.</P> <P>(3) Costs or prices based on estimated costs for contracts under grants willbe allowable only to the extent that costs incurred or cost estimates includedin negotiated prices are consistent with Federal cost principles (see§ 66.22). Grantees may reference their own cost principles thatcomply with the applicable Federal cost principles.</P> <P>(4) The cost plus a percentage of cost and percentage of construction costmethods of contracting shall not be used.</P> <P>(g) <E T="03">Awarding agency review.</E> (1) Grantees and subgrantees mustmake available, upon request of the awarding agency, technical specifications onproposed procurements where the awarding agency believes such review is neededto ensure that the item and/or service specified is the one being proposed forpurchase. This review generally will take place prior to the time thespecification is incorporated into a solicitation document. However, if thegrantee or subgrantee desires to have the review accomplished after asolicitation has been developed, the awarding agency may still review thespecifications, with such review usually limited to the technical aspects of theproposed purchase.</P> <P>(2) Grantees and subgrantees must on request make available for awardingagency pre-award review procurement documents, such as requests for proposals orinvitations for bids, independent cost estimates, etc. when:</P> <P>(i) A grantee's or subgrantee's procurement procedures or operation fails tocomply with the procurement standards in this section; or</P> <P>(ii) The procurement is expected to exceed the simplified acquisitionthreshold and is to be awarded without competition or only one bid or offer isreceived in response to a solicitation; or</P> <P>(iii) The procurement, which is expected to exceed the simplified acquisitionthreshold, specifies a “brand name” product; or</P> <P>(iv) The proposed award is more than the simplified acquisition threshold andis to be awarded to other than the apparent low bidder under a sealed bidprocurement; or</P> <P>(v) A proposed contract modification changes the scope of a contract orincreases the contract amount by more <PRTPAGE P="192"/>than the simplified acquisition threshold.</P> <P>(3) A grantee or subgrantee will be exempt from the pre-award review inparagraph (g)(2) of this section if the awarding agency determines that itsprocurement systems comply with the standards of this section.</P> <P>(i) A grantee or subgrantee may request that its procurement system bereviewed by the awarding agency to determine whether its system meets thesestandards in order for its system to be certified. Generally, these reviewsshall occur where there is a continuous high-dollar funding, and third-partycontracts are awarded on a regular basis.</P> <P>(ii) A grantee or subgrantee may self-certify its procurement system. Suchself-certification shall not limit the awarding agency's right to survey thesystem. Under a self-certification procedure, awarding agencies may wish to relyon written assurances from the grantee or subgrantee that it is complying withthese standards. A grantee or subgrantee will cite specific procedures,regulations, standards, etc., as being in compliance with these requirements andhave its system available for review.</P> <P>(h) <E T="03">Bonding requirements.</E> For construction or facilityimprovement contracts or subcontracts exceeding the simplified acquisitionthreshold, the awarding agency may accept the bonding policy and requirements ofthe grantee or subgrantee provided the awarding agency has made a determinationthat the awarding agency's interest is adequately protected. If such adetermination has not been made, the minimum requirements shall be as follows:</P> <P>(1) <E T="03">A bid guarantee from each bidder equivalent to five percent ofthe bid price.</E> The “bid guarantee” shall consist of a firmcommitment such as a bid bond, certified check, or other negotiable instrumentaccompanying a bid as assurance that the bidder will, upon acceptance of hisbid, execute such contractual documents as may be required within the timespecified.</P> <P>(2) <E T="03">A performance bond on the part of the contractor for 100percent of the contract price.</E> A “performance bond” is oneexecuted in connection with a contract to secure fulfillment of all thecontractor's obligations under such contract.</P> <P>(3) <E T="03">A payment bond on the part of the contractor for 100 percent ofthe contract price.</E> A “payment bond” is one executed inconnection with a contract to assure payment as required by law of all personssupplying labor and material in the execution of the work provided for in thecontract.</P> <P>(i) <E T="03">Contract provisions.</E> A grantee's and subgrantee's contractsmust contain provisions in paragraph (i) of this section. Federal agencies arepermitted to require changes, remedies, changed conditions, access and recordsretention, suspension of work, and other clauses approved by the Office ofFederal Procurement Policy.</P> <P>(1) Administrative, contractual, or legal remedies in instances wherecontractors violate or breach contract terms, and provide for such sanctions andpenalties as may be appropriate. (Contracts more than the simplified acquisitionthreshold)</P> <P>(2) Termination for cause and for convenience by the grantee or subgranteeincluding the manner by which it will be effected and the basis for settlement.(All contracts in excess of $10,000)</P> <P>(3) Compliance with Executive Order 11246 of September 24, 1965, entitled“Equal Employment Opportunity,” as amended by Executive Order 11375of October 13, 1967, and as supplemented in Department of Labor regulations (41CFR chapter 60). (All construction contracts awarded in excess of $10,000 bygrantees and their contractors or subgrantees)</P> <P>(4) Compliance with the Copeland “Anti-Kickback” Act (18 U.S.C.874) as supplemented in Department of Labor regulations (29 CFR part 3). (Allcontracts and subgrants for construction or repair)</P> <P>(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) assupplemented by Department of Labor regulations (29 CFR part 5). (Constructioncontracts in excess of $2000 awarded by grantees and subgrantees when requiredby Federal grant program legislation)</P> <P>(6) Compliance with sections 103 and 107 of the Contract Work Hours and <PRTPAGE P="193"/>Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department ofLabor regulations (29 CFR part 5). (Construction contracts awarded by granteesand subgrantees in excess of $2000, and in excess of $2500 for other contractswhich involve the employment of mechanics or laborers)</P> <P>(7) Notice of awarding agency requirements and regulations pertaining toreporting.</P> <P>(8) Notice of awarding agency requirements and regulations pertaining topatent rights with respect to any discovery or invention which arises or isdeveloped in the course of or under such contract.</P> <P>(9) Awarding agency requirements and regulations pertaining to copyrights andrights in data.</P> <P>(10) Access by the grantee, the subgrantee, the Federal grantor agency, theComptroller General of the United States, or any of their duly authorizedrepresentatives to any books, documents, papers, and records of the contractorwhich are directly pertinent to that specific contract for the purpose of makingaudit, examination, excerpts, and transcriptions.</P> <P>(11) Retention of all required records for three years after grantees orsubgrantees make final payments and all other pending matters are closed.</P> <P>(12) Compliance with all applicable standards, orders, or requirements issuedunder section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of theClean Water Act (33 U.S.C. 1368), Executive Order 11738, and EnvironmentalProtection Agency regulations (40 CFR part 15). (Contracts, subcontracts, andsubgrants of amounts in excess of $100,000)</P> <P>(13) Mandatory standards and policies relating to energy efficiency which arecontained in the state energy conservation plan issued in compliance with theEnergy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871).</P> <CITA>[Order No. 1252-88, 53 FR 8068 and 8067, Mar. 11, 1988, as amendedby Order No. 1961-95, 60 FR 19639, 19642, Apr. 19, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 66.37</SECTNO> <SUBJECT>Subgrants.</SUBJECT> <P>(a) <E T="03">States.</E> States shall follow state law and procedures whenawarding and administering subgrants (whether on a cost reimbursement or fixedamount basis) of financial assistance to local and Indian tribal governments.States shall:</P> <P>(1) Ensure that every subgrant includes any clauses required by Federalstatute and executive orders and their implementing regulations;</P> <P>(2) Ensure that subgrantees are aware of requirements imposed upon them byFederal statute and regulation;</P> <P>(3) Ensure that a provision for compliance with § 66.42 is placedin every cost reimbursement subgrant; and</P> <P>(4) Conform any advances of grant funds to subgrantees substantially to thesame standards of timing and amount that apply to cash advances by Federalagencies.</P> <P>(b) <E T="03">All other grantees.</E> All other grantees shall follow theprovisions of this part which are applicable to awarding agencies when awardingand administering subgrants (whether on a cost reimbursement or fixed amountbasis) of financial assistance to local and Indian tribal governments. Granteesshall:</P> <P>(1) Ensure that every subgrant includes a provision for compliance with thispart;</P> <P>(2) Ensure that every subgrant includes any clauses required by Federalstatute and executive orders and their implementing regulations; and</P> <P>(3) Ensure that subgrantees are aware of requirements imposed upon them byFederal statutes and regulations.</P> <P>(c) <E T="03">Exceptions.</E> By their own terms, certain provisions of thispart do not apply to the award and administration of subgrants:</P> <P>(1) Section 66.10;</P> <P>(2) Section 66.11;</P> <P>(3) The letter-of-credit procedures specified in Treasury Regulations at 31CFR part 205, cited in § 66.21; and</P> <P>(4) Section 66.50.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Records, Retention, and Enforcement</HD> <SECTION> <SECTNO>§ 66.40</SECTNO> <SUBJECT>Monitoring and reporting program performance.</SUBJECT> <P>(a) <E T="03">Monitoring by grantees.</E> Grantees are responsible formanaging the day-to-day operations of grant and subgrant supported activities.Grantees <PRTPAGE P="194"/>must monitor grant and subgrant supported activities to assurecompliance with applicable Federal requirements and that performance goals arebeing achieved. Grantee monitoring must cover each program, function oractivity.</P> <P>(b) <E T="03">Nonconstruction performance reports.</E> The Federal agencymay, if it decides that performance information available from subsequentapplications contains sufficient information to meet its programmatic needs,require the grantee to submit a performance report only upon expiration ortermination of grant support. Unless waived by the Federal agency this reportwill be due on the same date as the final Financial Status Report.</P> <P>(1) Grantees shall submit annual performance reports unless the awardingagency requires quarterly or semi-annual reports. However, performance reportswill not be required more frequently than quarterly. Annual reports shall be due90 days after the grant year, quarterly or semi-annual reports shall be due 30days after the reporting period. The final performance report will be due 90days after the expiration or termination of grant support. If a justifiedrequest is submitted by a grantee, the Federal agency may extend the due datefor any performance report. Additionally, requirements for unnecessaryperformance reports may be waived by the Federal agency.</P> <P>(2) Performance reports will contain, for each grant, brief information onthe following:</P> <P>(i) A comparison of actual accomplishments to the objectives established forthe period. Where the output of the project can be quantified, a computation ofthe cost per unit of output may be required if that information will be useful.</P> <P>(ii) The reasons for slippage if established objectives were not met.</P> <P>(iii) Additional pertinent information including, when appropriate, analysisand explanation of cost overruns or high unit costs.</P> <P>(3) Grantees will not be required to submit more than the original and twocopies of performance reports.</P> <P>(4) Grantees will adhere to the standards in this section in prescribingperformance reporting requirements for subgrantees.</P> <P>(c) <E T="03">Construction performance reports.</E> For the most part, on-site technical inspections and certified percentage-of-completion data arerelied on heavily by Federal agencies to monitor progress under constructiongrants and subgrants. The Federal agency will require additional formalperformance reports only when considered necessary, and never more frequentlythan quarterly.</P> <P>(d) <E T="03">Significant developments.</E> Events may occur between thescheduled performance reporting dates which have significant impact upon thegrant or subgrant supported activity. In such cases, the grantee must inform theFederal agency as soon as the following types of conditions become known:</P> <P>(1) Problems, delays, or adverse conditions which will materially impair theability to meet the objective of the award. This disclosure must include astatement of the action taken, or contemplated, and any assistance needed toresolve the situation.</P> <P>(2) Favorable developments which enable meeting time schedules and objectivessooner or at less cost than anticipated or producing more beneficial resultsthan originally planned.</P> <P>(e) Federal agencies may make site visits as warranted by program needs.</P> <P>(f) <E T="03">Waivers, extensions.</E> (1) Federal agencies may waive anyperformance report required by this part if not needed.</P> <P>(2) The grantee may waive any performance report from a subgrantee when notneeded. The grantee may extend the due date for any performance report from asubgrantee if the grantee will still be able to meet its performance reportingobligations to the Federal agency.</P> </SECTION> <SECTION> <SECTNO>§ 66.41</SECTNO> <SUBJECT>Financial reporting.</SUBJECT> <P>(a) <E T="03">General.</E> (1) Except as provided in paragraphs (a) (2) and(5) of this section, grantees will use only the forms specified in paragraphs(a) through (e) of this section, and such supplementary or other forms as mayfrom time to time be authorized by OMB, for:</P> <P>(i) Submitting financial reports to Federal agencies, or<PRTPAGE P="195"/> </P> <P>(ii) Requesting advances or reimbursements when letters of credit are notused.</P> <P>(2) Grantees need not apply the forms prescribed in this section in dealingwith their subgrantees. However, grantees shall not impose more burdensomerequirements on subgrantees.</P> <P>(3) Grantees shall follow all applicable standard and supplemental Federalagency instructions approved by OMB to the extend required under the PaperworkReduction Act of 1980 for use in connection with forms specified in paragraphs(b) through (e) of this section. Federal agencies may issue substantivesupplementary instructions only with the approval of OMB. Federal agencies mayshade out or instruct the grantee to disregard any line item that the Federalagency finds unnecessary for its decisionmaking purposes.</P> <P>(4) Grantees will not be required to submit more than the original and twocopies of forms required under this part.</P> <P>(5) Federal agencies may provide computer outputs to grantees to expedite orcontribute to the accuracy of reporting. Federal agencies may accept therequired information from grantees in machine usable format or computerprintouts instead of prescribed forms.</P> <P>(6) Federal agencies may waive any report required by this section if notneeded.</P> <P>(7) Federal agencies may extend the due date of any financial report uponreceiving a justified request from a grantee.</P> <P>(b) <E T="03">Financial Status Report</E>—(1) <E T="03">Form.</E>Grantees will use Standard Form 269 or 269A, Financial Status Report, to reportthe status of funds for all nonconstruction grants and for construction grantswhen required in accordance with § 66.41(e)(2)(iii).</P> <P>(2) <E T="03">Accounting basis.</E> Each grantee will report program outlaysand program income on a cash or accrual basis as prescribed by the awardingagency. If the Federal agency requires accrual information and the grantee'saccounting records are not normally kept on the accrual basis, the grantee shallnot be required to convert its accounting system but shall develop such accrualinformation through and analysis of the documentation on hand.</P> <P>(3) <E T="03">Frequency.</E> The Federal agency may prescribe the frequencyof the report for each project or program. However, the report will not berequired more frequently than quarterly. If the Federal agency does not specifythe frequency of the report, it will be submitted annually. A final report willbe required upon expiration or termination of grant support.</P> <P>(4) <E T="03">Due date.</E> When reports are required on a quarterly orsemiannual basis, they will be due 30 days after the reporting period. Whenrequired on an annual basis, they will be due 90 days after the grant year.Final reports will be due 90 days after the expiration or termination of grantsupport.</P> <P>(c) <E T="03">Federal Cash Transactions Report</E>—(1) <E T="03">Form.</E> (i) For grants paid by letter or credit, Treasury checkadvances or electronic transfer of funds, the grantee will submit the StandardForm 272, Federal Cash Transactions Report, and when necessary, its continuationsheet, Standard Form 272a, unless the terms of the award exempt the grantee fromthis requirement.</P> <P>(ii) These reports will be used by the Federal agency to monitor cashadvanced to grantees and to obtain disbursement or outlay information for eachgrant from grantees. The format of the report may be adapted as appropriate whenreporting is to be accomplished with the assistance of automatic data processingequipment provided that the information to be submitted is not changed insubstance.</P> <P>(2) <E T="03">Forecasts of Federal cash requirements.</E> Forecasts ofFederal cash requirements may be required in the “Remarks” sectionof the report.</P> <P>(3) <E T="03">Cash in hands of subgrantees.</E> When considered necessary andfeasible by the Federal agency, grantees may be required to report the amount ofcash advances in excess of three days' needs in the hands of their subgranteesor contractors and to provide short narrative explanations of actions taken bythe grantee to reduce the excess balances.</P> <P>(4) <E T="03">Frequency and due date.</E> Grantees must submit the report nolater than 15 working days following the end of each quarter. However, where anadvance either by letter of credit or electronic transfer of funds is authorizedat an <PRTPAGE P="196"/>annualized rate of one million dollars or more, the Federal agency mayrequire the report to be submitted within 15 working days following the end ofeach month.</P> <P>(d) <E T="03">Request for advance or reimbursement</E>—(1) <E T="03">Advance payments.</E> Requests for Treasury check advance payments willbe submitted on Standard Form 270, Request for Advance or Reimbursement. (Thisform will not be used for drawdowns under a letter of credit, electronic fundstransfer or when Treasury check advance payments are made to the granteeautomatically on a predetermined basis.)</P> <P>(2) <E T="03">Reimbursements.</E> Requests for reimbursement undernonconstruction grants will also be submitted on Standard Form 270. (Forreimbursement requests under construction grants, see paragraph (e)(1) of thissection.)</P> <P>(3) The frequency for submitting payment requests is treated in§ 66.41(b)(3).</P> <P>(e) <E T="03">Outlay report and request for reimbursement for constructionprograms</E>—(1) <E T="03">Grants that support construction activitiespaid by reimbursement method.</E> (i) Requests for reimbursement underconstruction grants will be submitted on Standard Form 271, Outlay Report andRequest for Reimbursement for Construction Programs. Federal agencies may,however, prescribe the Request for Advance or Reimbursement form, specified in§ 66.41(d), instead of this form.</P> <P>(ii) The frequency for submitting reimbursement requests is treated in§ 66.41(b)(3).</P> <P>(2) <E T="03">Grants that support construction activities paid by letter ofcredit, electronic funds transfer or Treasury check advance.</E> (i) When aconstruction grant is paid by letter of credit, electronic funds transfer orTreasury check advances, the grantee will report its outlays to the Federalagency using Standard Form 271, Outlay Report and Request for Reimbursement forConstruction Programs. The Federal agency will provide any necessary specialinstruction. However, frequency and due date shall be governed by§ 66.41(b) (3) and (4).</P> <P>(ii) When a construction grant is paid by Treasury check advances based onperiodic requests from the grantee, the advances will be requested on the formspecified in § 66.41(d).</P> <P>(iii) The Federal agency may substitute the Financial Status Report specifiedin § 66.41(b) for the Outlay Report and Request for Reimbursement forConstruction Programs.</P> <P>(3) <E T="03">Accounting basis.</E> The accounting basis for the OutlayReport and Request for Reimbursement for Construction Programs shall be governedby § 66.41(b)(2).</P> </SECTION> <SECTION> <SECTNO>§ 66.42</SECTNO> <SUBJECT>Retention and access requirements for records.</SUBJECT> <P>(a) <E T="03">Applicability.</E> (1) This section applies to all financialand programmatic records, supporting documents, statistical records, and otherrecords of grantees or subgrantees which are:</P> <P>(i) Required to be maintained by the terms of this part, program regulationsor the grant agreement, or</P> <P>(ii) Otherwise reasonably considered as pertinent to program regulations orthe grant agreement.</P> <P>(2) This section does not apply to records maintained by contractors orsubcontractors. For a requirement to place a provision concerning records incertain kinds of contracts, see § 66.36(i)(10).</P> <P>(b) <E T="03">Length of retention period.</E> (1) Except as otherwiseprovided, records must be retained for three years from the starting datespecified in paragraph (c) of this section.</P> <P>(2) If any litigation, claim, negotiation, audit or other action involvingthe records has been started before the expiration of the 3-year period, therecords must be retained until completion of the action and resolution of allissues which arise from it, or until the end of the regular 3-year period,whichever is later.</P> <P>(3) To avoid duplicate recordkeeping, awarding agencies may make specialarrangements with grantees and subgrantees to retain any records which arecontinuously needed for joint use. The awarding agency will request transfer ofrecords to its custody when it determines that the records possess long-termretention value. When the records are transferred to or maintained by theFederal agency, the 3-year retention requirement is not applicable to thegrantee or subgrantee.<PRTPAGE P="197"/> </P> <P>(c) <E T="03">Starting date of retention period</E>—(1) <E T="03">General.</E> When grant support is continued or renewed at annual orother intervals, the retention period for the records of each funding periodstarts on the day the grantee or subgrantee submits to the awarding agency itssingle or last expenditure report for that period. However, if grant support iscontinued or renewed quarterly, the retention period for each year's recordsstarts on the day the grantee submits its expenditure report for the lastquarter of the Federal fiscal year. In all other cases, the retention periodstarts on the day the grantee submits its final expenditure report. If anexpenditure report has been waived, the retention period starts on the day thereport would have been due.</P> <P>(2) <E T="03">Real property and equipment records.</E> The retention periodfor real property and equipment records starts from the date of the dispositionor replacement or transfer at the direction of the awarding agency.</P> <P>(3) <E T="03">Records for income transactions after grant or subgrantsupport.</E> In some cases grantees must report income after the period of grantsupport. Where there is such a requirement, the retention period for the recordspertaining to the earning of the income starts from the end of the grantee'sfiscal year in which the income is earned.</P> <P>(4) <E T="03">Indirect cost rate proposals, cost allocations plans, etc.</E>This paragraph applies to the following types of documents, and their supportingrecords: indirect cost rate computations or proposals, cost allocation plans,and any similar accounting computations of the rate at which a particular groupof costs is chargeable (such as computer usage chargeback rates or compositefringe benefit rates).</P> <P>(i) <E T="03">If submitted for negotiation.</E> If the proposal, plan, orother computation is required to be submitted to the Federal Government (or tothe grantee) to form the basis for negotiation of the rate, then the 3-yearretention period for its supporting records starts from the date of suchsubmission.</P> <P>(ii) <E T="03">If not submitted for negotiation.</E> If the proposal, plan,or other computation is not required to be submitted to the Federal Government(or to the grantee) for negotiation purposes, then the 3-year retention periodfor the proposal plan, or computation and its supporting records starts from endof the fiscal year (or other accounting period) covered by the proposal, plan,or other computation.</P> <P>(d) <E T="03">Substitution of microfilm.</E> Copies made by microfilming,photocopying, or similar methods may be substituted for the original records.</P> <P>(e) <E T="03">Access to records</E>—(1) <E T="03">Records of granteesand subgrantees.</E> The awarding agency and the Comptroller General of theUnited States, or any of their authorized representatives, shall have the rightof access to any pertinent books, documents, papers, or other records ofgrantees and subgrantees which are pertinent to the grant, in order to makeaudits, examinations, excerpts, and transcripts.</P> <P>(2) <E T="03">Expiration of right of access.</E> The rights of access in thissection must not be limited to the required retention period but shall last aslong as the records are retained.</P> <P>(f) <E T="03">Restrictions on public access.</E> The Federal Freedom ofInformation Act (5 U.S.C. 552) does not apply to records Unless required byFederal, State, or local law, grantees and subgrantees are not required topermit public access to their records.</P> </SECTION> <SECTION> <SECTNO>§ 66.43</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>(a) <E T="03">Remedies for noncompliance.</E> If a grantee or subgranteematerially fails to comply with any term of an award, whether stated in aFederal statute or regulation, an assurance, in a State plan or application, anotice of award, or elsewhere, the awarding agency may take one or more of thefollowing actions, as appropriate in the circumstances:</P> <P>(1) Temporarily withhold cash payments pending correction of the deficiencyby the grantee or subgrantee or more severe enforcement action by the awardingagency,</P> <P>(2) Disallow (that is, deny both use of funds and matching credit for) all orpart of the cost of the activity or action not in compliance,</P> <P>(3) Wholly or partly suspend or terminate the current award for the grantee'sor subgrantee's program,</P> <P>(4) Withhold further awards for the program, or<PRTPAGE P="198"/> </P> <P>(5) Take other remedies that may be legally available.</P> <P>(b) <E T="03">Hearings, appeals.</E> In taking an enforcement action, theawarding agency will provide the grantee or subgrantee an opportunity for suchhearing, appeal, or other administrative proceeding to which the grantee orsubgrantee is entitled under any statute or regulation applicable to the actioninvolved.</P> <P>(c) <E T="03">Effects of suspension and termination.</E> Costs of grantee orsubgrantee resulting from obligations incurred by the grantee or subgranteeduring a suspension or after termination of an award are not allowable unlessthe awarding agency expressly authorizes them in the notice of suspension ortermination or subsequently. Other grantee or subgrantee costs during suspensionor after termination which are necessary and not reasonably avoidable areallowable if:</P> <P>(1) The costs result from obligations which were properly incurred by thegrantee or subgrantee before the effective date of suspension or termination,are not in anticipation of it, and, in the case of a termination, arenoncancellable, and,</P> <P>(2) The costs would be allowable if the award were not suspended or expirednormally at the end of the funding period in which the termination takes effect.</P> <P>(d) <E T="03">Relationship to debarment and suspension.</E> The enforcementremedies identified in this section, including suspension and termination, donot preclude grantee or subgrantee from being subject to “Debarment andSuspension” under E.O. 12549 (see § 66.35).</P> </SECTION> <SECTION> <SECTNO>§ 66.44</SECTNO> <SUBJECT>Termination for convenience.</SUBJECT> <P>Except as provided in § 66.43 awards may be terminated in whole orin part only as follows:</P> <P>(a) By the awarding agency with the consent of the grantee or subgrantee inwhich case the two parties shall agree upon the termination conditions,including the effective date and in the case of partial termination, the portionto be terminated, or</P> <P>(b) By the grantee or subgrantee upon written notification to the awardingagency, setting forth the reasons for such termination, the effective date, andin the case of partial termination, the portion to be terminated. However, if,in the case of a partial termination, the awarding agency determines that theremaining portion of the award will not accomplish the purposes for which theaward was made, the awarding agency may terminate the award in its entiretyunder either § 66.43 or paragraph (a) of this section.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—After-The-Grant Requirements</HD> <SECTION> <SECTNO>§ 66.50</SECTNO> <SUBJECT>Closeout.</SUBJECT> <P>(a) <E T="03">General.</E> The Federal agency will close out the award whenit determines that all applicable administrative actions and all required workof the grant has been completed.</P> <P>(b) <E T="03">Reports.</E> Within 90 days after the expiration or terminationof the grant, the grantee must submit all financial, performance, and otherreports required as a condition of the grant. Upon request by the grantee,Federal agencies may extend this timeframe. These may include but are notlimited to:</P> <P>(1) Final performance or progress report.</P> <P>(2) Financial Status Report (SF 269) or Outlay Report and Request forReimbursement for Construction Programs (SF-271) (as applicable.)</P> <P>(3) Final request for payment (SF-270) (if applicable).</P> <P>(4) Invention disclosure (if applicable).</P> <P>(5) <E T="03">Federally-owned property report.</E> In accordance with§ 66.32(f), a grantee must submit an inventory of all federally ownedproperty (as distinct from property acquired with grant funds) for which it isaccountable and request disposition instructions from the Federal agency ofproperty no longer needed.</P> <P>(c) <E T="03">Cost adjustment.</E> The Federal agency will, within 90 daysafter receipt of reports in paragraph (b) of this section, make upward ordownward adjustments to the allowable costs.</P> <P>(d) <E T="03">Cash adjustments.</E> (1) The Federal agency will make promptpayment to the grantee for allowable reimbursable costs.</P> <P>(2) The grantee must immediately refund to the Federal agency any balance ofunobligated (unencumbered) cash <PRTPAGE P="199"/>advanced that is not authorized to be retainedfor use on other grants.</P> </SECTION> <SECTION> <SECTNO>§ 66.51</SECTNO> <SUBJECT>Later disallowances and adjustments.</SUBJECT> <P>The closeout of a grant does not affect:</P> <P>(a) The Federal agency's right to disallow costs and recover funds on thebasis of a later audit or other review;</P> <P>(b) The grantee's obligation to return any funds due as a result of laterrefunds, corrections, or other transactions;</P> <P>(c) Records retention as required in § 66.42;</P> <P>(d) Property management requirements in §§ 66.31 and 66.32;and</P> <P>(e) Audit requirements in § 66.26.</P> </SECTION> <SECTION> <SECTNO>§ 66.52</SECTNO> <SUBJECT>Collection of amounts due.</SUBJECT> <P>(a) Any funds paid to a grantee in excess of the amount to which the granteeis finally determined to be entitled under the terms of the award constitute adebt to the Federal Government. If not paid within a reasonable period afterdemand, the Federal agency may reduce the debt by:</P> <P>(1) Making an administrative offset against other requests forreimbursements,</P> <P>(2) Withholding advance payments otherwise due to the grantee, or</P> <P>(3) Other action permitted by law.</P> <P>(b) Except where otherwise provided by statutes or regulations, the Federalagency will charge interest on an overdue debt in accordance with the FederalClaims Collection Standards (4 CFR Ch. II). The date from which interest iscomputed is not extended by litigation or the filing of any form of appeal.</P> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart E—Entitlement [Reserved]</RESERVED> </SUBPART> </PART> <PART> <EAR>Pt. 67</EAR> <HD SOURCE="HED">PART 67—GOVERNMENT-WIDE DEBARMENT AND SUSPENSION(NONPROCUREMENT)</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>67.25</SECTNO> <SUBJECT>How is this part organized?</SUBJECT> <SECTNO>67.50</SECTNO> <SUBJECT>How is this part written?</SUBJECT> <SECTNO>67.75</SECTNO> <SUBJECT>Do terms in this part have special meanings?</SUBJECT> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTNO>67.100</SECTNO> <SUBJECT>What does this part do?</SUBJECT> <SECTNO>67.105</SECTNO> <SUBJECT>Does this part apply to me?</SUBJECT> <SECTNO>67.110</SECTNO> <SUBJECT>What is the purpose of the non-procurement debarment andsuspension system?</SUBJECT> <SECTNO>67.115</SECTNO> <SUBJECT>How does an exclusion restrict a person's involvement incovered transactions?</SUBJECT> <SECTNO>67.120</SECTNO> <SUBJECT>May we grant an exception to let an excluded personparticipate in a covered transaction?</SUBJECT> <SECTNO>67.125</SECTNO> <SUBJECT>Does an exclusion under the non-procurement system affecta person's eligibility for Federal procurement contracts?</SUBJECT> <SECTNO>67.130</SECTNO> <SUBJECT>Does an exclusion under the Federal procurement systemaffect a person's eligibility to participate in non-procurement transactions?</SUBJECT> <SECTNO>67.135</SECTNO> <SUBJECT>May the Department of Justice exclude a person who is notcurrently participating in a non-procurement transaction?</SUBJECT> <SECTNO>67.140</SECTNO> <SUBJECT>How do I know if a person is excluded?</SUBJECT> <SECTNO>67.145</SECTNO> <SUBJECT>Does this part address persons who are disqualified, aswell as those who are excluded from non-procurement transactions?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Covered Transactions</HD> <SECTNO>67.200</SECTNO> <SUBJECT>What is a covered transaction?</SUBJECT> <SECTNO>67.205</SECTNO> <SUBJECT>Why is it important to know if a particular transactionis a covered transaction?</SUBJECT> <SECTNO>67.210</SECTNO> <SUBJECT>Which non-procurement transactions are coveredtransactions?</SUBJECT> <SECTNO>67.215</SECTNO> <SUBJECT>Which non-procurement transactions are not coveredtransactions?</SUBJECT> <SECTNO>67.220</SECTNO> <SUBJECT>Are any procurement contracts included as coveredtransactions?</SUBJECT> <SECTNO>67.225</SECTNO> <SUBJECT>How do I know if a transaction in which I may participateis a covered transaction?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Responsibilities of Participants RegardingTransactions</HD> <HD SOURCE="HD1">Doing Business With Other Persons</HD> <SECTNO>67.300</SECTNO> <SUBJECT>What must I do before I enter into a covered transactionwith another person at the next lower tier?</SUBJECT> <SECTNO>67.305</SECTNO> <SUBJECT>May I enter into a covered transaction with an excludedor disqualified person?</SUBJECT> <SECTNO>67.310</SECTNO> <SUBJECT>What must I do if a Federal agency excludes a person withwhom I am already doing business in a covered transaction?</SUBJECT> <SECTNO>67.315</SECTNO> <SUBJECT>May I use the services of an excluded person as aprincipal under a covered transaction?</SUBJECT> <SECTNO>67.320</SECTNO> <SUBJECT>Must I verify that principals of my covered transactionsare eligible to participate?<PRTPAGE P="200"/> </SUBJECT> <SECTNO>67.325</SECTNO> <SUBJECT>What happens if I do business with an excluded person ina covered transaction?</SUBJECT> <SECTNO>67.330</SECTNO> <SUBJECT>What requirements must I pass down to persons at lowertiers with whom I intend to do business?</SUBJECT> <HD SOURCE="HD1">Disclosing Information—Primary Tier Participants</HD> <SECTNO>67.335</SECTNO> <SUBJECT>What information must I provide before entering into acovered transaction with the Department of Justice?</SUBJECT> <SECTNO>67.340</SECTNO> <SUBJECT>If I disclose unfavorable information required under§ 67.335, will I be prevented from participating in the transaction?</SUBJECT> <SECTNO>67.345</SECTNO> <SUBJECT>What happens if I fail to disclose the informationrequired under § 67.335?</SUBJECT> <SECTNO>67.350</SECTNO> <SUBJECT>What must I do if I learn of the information requiredunder § 67.335 after entering into a covered transaction with theDepartment of Justice?</SUBJECT> <HD SOURCE="HD1">Disclosing Information—Lower Tier Participants</HD> <SECTNO>67.355</SECTNO> <SUBJECT>What information must I provide to a higher tierparticipant before entering into a covered transaction with that participant?</SUBJECT> <SECTNO>67.360</SECTNO> <SUBJECT>What happens if I fail to disclose the informationrequired under § 67.355?</SUBJECT> <SECTNO>67.365</SECTNO> <SUBJECT>What must I do if I learn of information required under§ 67.355 after entering into a covered transaction with a higher tierparticipant?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Responsibilities of Department of JusticeOfficials Regarding Transactions</HD> <SECTNO>67.400</SECTNO> <SUBJECT>May I enter into a transaction with an excluded ordisqualified person?</SUBJECT> <SECTNO>67.405</SECTNO> <SUBJECT>May I enter into a covered transaction with a participantif a principal of the transaction is excluded?</SUBJECT> <SECTNO>67.410</SECTNO> <SUBJECT>May I approve a participant's use of the services of anexcluded person?</SUBJECT> <SECTNO>67.415</SECTNO> <SUBJECT>What must I do if a Federal agency excludes theparticipant or a principal after I enter into a covered transaction?</SUBJECT> <SECTNO>67.420</SECTNO> <SUBJECT>May I approve a transaction with an excluded ordisqualified person at a lower tier?</SUBJECT> <SECTNO>67.425</SECTNO> <SUBJECT>When do I check to see if a person is excluded ordisqualified?</SUBJECT> <SECTNO>67.430</SECTNO> <SUBJECT>How do I check to see if a person is excluded ordisqualified?</SUBJECT> <SECTNO>67.435</SECTNO> <SUBJECT>What must I require of a primary tier participant?</SUBJECT> <SECTNO>67.440</SECTNO> <SUBJECT>What method do I use to communicate those requirements toparticipants?</SUBJECT> <SECTNO>67.445</SECTNO> <SUBJECT>What action may I take if a primary tier participantknowingly does business with an excluded or disqualified person?</SUBJECT> <SECTNO>67.450</SECTNO> <SUBJECT>What action may I take if a primary tier participantfails to disclose the information required under § 67.335?</SUBJECT> <SECTNO>67.455</SECTNO> <SUBJECT>What may I do if a lower tier participant fails todisclose the information required under § 67.355 to the next highertier?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Excluded Parties List System</HD> <SECTNO>67.500</SECTNO> <SUBJECT>What is the purpose of the Excluded Parties List System(EPLS)?</SUBJECT> <SECTNO>67.505</SECTNO> <SUBJECT>Who uses the EPLS?</SUBJECT> <SECTNO>67.510</SECTNO> <SUBJECT>Who maintains the EPLS?</SUBJECT> <SECTNO>67.515</SECTNO> <SUBJECT>What specific information is on the EPLS?</SUBJECT> <SECTNO>67.520</SECTNO> <SUBJECT>Who places the information into the EPLS?</SUBJECT> <SECTNO>67.525</SECTNO> <SUBJECT>Whom do I ask if I have questions about a person in theEPLS?</SUBJECT> <SECTNO>67.530</SECTNO> <SUBJECT>Where can I find the EPLS?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—General Principles Relating to Suspension andDebarment Actions</HD> <SECTNO>67.600</SECTNO> <SUBJECT>How do suspension and debarment actions start?</SUBJECT> <SECTNO>67.605</SECTNO> <SUBJECT>How does suspension differ from debarment?</SUBJECT> <SECTNO>67.610</SECTNO> <SUBJECT>What procedures does the Department of Justice use insuspension and debarment actions?</SUBJECT> <SECTNO>67.615</SECTNO> <SUBJECT>How does the Department of Justice notify a person of asuspension and debarment action?</SUBJECT> <SECTNO>67.620</SECTNO> <SUBJECT>Do Federal agencies coordinate suspension and debarmentactions?</SUBJECT> <SECTNO>67.625</SECTNO> <SUBJECT>What is the scope of a suspension or debarment action?</SUBJECT> <SECTNO>67.630</SECTNO> <SUBJECT>May the Department of Justice impute the conduct of oneperson to another?</SUBJECT> <SECTNO>67.635</SECTNO> <SUBJECT>May the Department of Justice settle a debarment orsuspension action?</SUBJECT> <SECTNO>67.640</SECTNO> <SUBJECT>May a settlement include a voluntary exclusion?</SUBJECT> <SECTNO>67.645</SECTNO> <SUBJECT>Do other Federal agencies know if the Department ofJustice agrees to a voluntary exclusion?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Suspension</HD> <SECTNO>67.700</SECTNO> <SUBJECT>When may the suspending official issue a suspension?</SUBJECT> <SECTNO>67.705</SECTNO> <SUBJECT>What does the suspending official consider in issuing asuspension?</SUBJECT> <SECTNO>67.710</SECTNO> <SUBJECT>When does a suspension take effect?</SUBJECT> <SECTNO>67.715</SECTNO> <SUBJECT>What notice does the suspending official give me if I amsuspended?</SUBJECT> <SECTNO>67.720</SECTNO> <SUBJECT>How may I contest a suspension?</SUBJECT> <SECTNO>67.725</SECTNO> <SUBJECT>How much time do I have to contest a suspension?</SUBJECT> <SECTNO>67.730</SECTNO> <SUBJECT>What information must I provide to the suspendingofficial if I contest a suspension?</SUBJECT> <SECTNO>67.735</SECTNO> <SUBJECT>Under what conditions do I get an additional opportunityto challenge the facts on which the suspension is based?</SUBJECT> <SECTNO>67.740</SECTNO> <SUBJECT>Are suspension proceedings formal?</SUBJECT> <SECTNO>67.745</SECTNO> <SUBJECT>How is fact-finding conducted?<PRTPAGE P="201"/> </SUBJECT> <SECTNO>67.750</SECTNO> <SUBJECT>What does the suspending official consider in decidingwhether to continue or terminate my suspension?</SUBJECT> <SECTNO>67.755</SECTNO> <SUBJECT>When will I know whether the suspension is continued orterminated?</SUBJECT> <SECTNO>67.760</SECTNO> <SUBJECT>How long may my suspension last?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Debarment</HD> <SECTNO>67.800</SECTNO> <SUBJECT>What are the causes for debarment?</SUBJECT> <SECTNO>67.805</SECTNO> <SUBJECT>What notice does the debarring official give me if I amproposed for debarment?</SUBJECT> <SECTNO>67.810</SECTNO> <SUBJECT>When does a debarment take effect?</SUBJECT> <SECTNO>67.815</SECTNO> <SUBJECT>How may I contest a proposed debarment?</SUBJECT> <SECTNO>67.820</SECTNO> <SUBJECT>How much time do I have to contest a proposed debarment?</SUBJECT> <SECTNO>67.825</SECTNO> <SUBJECT>What information must I provide to the debarring officialif I contest a proposed debarment?</SUBJECT> <SECTNO>67.830</SECTNO> <SUBJECT>Under what conditions do I get an additional opportunityto challenge the facts on which a proposed debarment is based?</SUBJECT> <SECTNO>67.835</SECTNO> <SUBJECT>Are debarment proceedings formal?</SUBJECT> <SECTNO>67.840</SECTNO> <SUBJECT>How is fact-finding conducted?</SUBJECT> <SECTNO>67.845</SECTNO> <SUBJECT>What does the debarring official consider in decidingwhether to debar me?</SUBJECT> <SECTNO>67.850</SECTNO> <SUBJECT>What is the standard of proof in a debarment action?</SUBJECT> <SECTNO>67.855</SECTNO> <SUBJECT>Who has the burden of proof in a debarment action?</SUBJECT> <SECTNO>67.860</SECTNO> <SUBJECT>What factors may influence the debarring official'sdecision?</SUBJECT> <SECTNO>67.865</SECTNO> <SUBJECT>How long may my debarment last?</SUBJECT> <SECTNO>67.870</SECTNO> <SUBJECT>When do I know if the debarring official debars me?</SUBJECT> <SECTNO>67.875</SECTNO> <SUBJECT>May I ask the debarring official to reconsider a decisionto debar me?</SUBJECT> <SECTNO>67.880</SECTNO> <SUBJECT>What factors may influence the debarring official duringreconsideration?</SUBJECT> <SECTNO>67.885</SECTNO> <SUBJECT>May the debarring official extend a debarment?</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Definitions</HD> <SECTNO>67.900</SECTNO> <SUBJECT>Adequate evidence.</SUBJECT> <SECTNO>67.905</SECTNO> <SUBJECT>Affiliate.</SUBJECT> <SECTNO>67.910</SECTNO> <SUBJECT>Agency.</SUBJECT> <SECTNO>67.915</SECTNO> <SUBJECT>Agent or representative.</SUBJECT> <SECTNO>67.920</SECTNO> <SUBJECT>Civil judgment.</SUBJECT> <SECTNO>67.925</SECTNO> <SUBJECT>Conviction.</SUBJECT> <SECTNO>67.930</SECTNO> <SUBJECT>Debarment.</SUBJECT> <SECTNO>67.935</SECTNO> <SUBJECT>Debarring official.</SUBJECT> <SECTNO>67.940</SECTNO> <SUBJECT>Disqualified.</SUBJECT> <SECTNO>67.945</SECTNO> <SUBJECT>Excluded or exclusion.</SUBJECT> <SECTNO>67.950</SECTNO> <SUBJECT>Excluded Parties List System</SUBJECT> <SECTNO>67.955</SECTNO> <SUBJECT>Indictment.</SUBJECT> <SECTNO>67.960</SECTNO> <SUBJECT>Ineligible or ineligibility.</SUBJECT> <SECTNO>67.965</SECTNO> <SUBJECT>Legal proceedings.</SUBJECT> <SECTNO>67.970</SECTNO> <SUBJECT>Non-procurement transaction.</SUBJECT> <SECTNO>67.975</SECTNO> <SUBJECT>Notice.</SUBJECT> <SECTNO>67.980</SECTNO> <SUBJECT>Participant.</SUBJECT> <SECTNO>67.985</SECTNO> <SUBJECT>Person.</SUBJECT> <SECTNO>67.990</SECTNO> <SUBJECT>Preponderance of the evidence.</SUBJECT> <SECTNO>67.995</SECTNO> <SUBJECT>Principal.</SUBJECT> <SECTNO>67.1000</SECTNO> <SUBJECT>Respondent.</SUBJECT> <SECTNO>67.1005</SECTNO> <SUBJECT>State.</SUBJECT> <SECTNO>67.1010</SECTNO> <SUBJECT>Suspending official.</SUBJECT> <SECTNO>67.1015</SECTNO> <SUBJECT>Suspension.</SUBJECT> <SECTNO>67.1020</SECTNO> <SUBJECT>Voluntary exclusion or voluntarily excluded.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart J [Reserved]</RESERVED> <APP>Appendix to Part 67—Covered Transactions</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E.O. 12549; Omnibus Crime Control and Safe Streets Actof 1968, 42 U.S.C. 3711, <E T="03">et seq.,</E> Juvenile Justice and DelinquencyPrevention Act of 1974, 42 U.S.C. 5601, <E T="03">et seq.,</E> Victims of CrimeAct of 1984, 42 U.S.C. 10601, <E T="03">et seq.</E>; 18 U.S.C. 4042; 18 U.S.C.4351-4353; E.O. 12549 (3 CFR, 1986 Comp. P.189).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>68 FR 66544, 66599, Nov. 26, 2003, unless otherwisenoted.</P> </SOURCE> <SECTION> <SECTNO>§ 67.25</SECTNO> <SUBJECT>How is this part organized?</SUBJECT> <P>(a) This part is subdivided into ten subparts. Each subpart containsinformation related to a broad topic or specific audience with specialresponsibilities, as shown in the following table:</P> <GPOTABLE CDEF="s50,r200" COLS="2" OPTS="L2,tp0,i1"> <BOXHD> <CHED H="1" O="L">In subpart . . .</CHED> <CHED H="1">You will find provisions related to . . .</CHED> </BOXHD> <ROW> <ENT I="01">A</ENT> <ENT>general information about this rule.</ENT> </ROW> <ROW> <ENT I="01">B</ENT> <ENT>the types of Department of Justice transactions that arecovered by the Governmentwide nonprocurement suspension and debarment system.</ENT> </ROW> <ROW> <ENT I="01">C</ENT> <ENT>the responsibilities of persons who participate incovered transactions.</ENT> </ROW> <ROW> <ENT I="01">D</ENT> <ENT>the responsibilities of Department of Justice officialswho are authorized to enter into covered transactions.</ENT> </ROW> <ROW> <ENT I="01">E</ENT> <ENT>the responsibilities of Federal agencies for the <E T="03">Excluded Parties List System</E> (Disseminated by the General ServicesAdministration).</ENT> </ROW> <ROW> <ENT I="01">F</ENT> <ENT>the general principles governing suspension, debarment,voluntary exclusion and settlement.</ENT> </ROW> <ROW> <ENT I="01">G</ENT> <ENT>suspension actions.</ENT> </ROW> <ROW> <ENT I="01">H</ENT> <ENT>debarment actions.</ENT> </ROW> <ROW> <ENT I="01">I</ENT> <ENT>definitions of terms used in this part.</ENT> </ROW> <ROW> <ENT I="01">J</ENT> <ENT>[Reserved]</ENT> </ROW> </GPOTABLE> <PRTPAGE P="202"/> <P>(b) The following table shows which subparts may be of special interest toyou, depending on who you are:</P> <GPOTABLE CDEF="s100,r50" COLS="2" OPTS="L2,tp0,i1"> <BOXHD> <CHED H="1" O="L">If you are . . .</CHED> <CHED H="1" O="L">See subpart(s) . . .</CHED> </BOXHD> <ROW> <ENT I="01">(1) a participant or principal in a nonprocurementtransaction</ENT> <ENT>A, B, C, and I.</ENT> </ROW> <ROW> <ENT I="01">(2) a respondent in a suspension action</ENT> <ENT>A, B, F, G and I.</ENT> </ROW> <ROW> <ENT I="01">(3) a respondent in a debarment action</ENT> <ENT>A, B, F, H and I.</ENT> </ROW> <ROW> <ENT I="01">(4) a suspending official</ENT> <ENT>A, B, D, E, F, G and I.</ENT> </ROW> <ROW> <ENT I="01">(5) a debarring official</ENT> <ENT>A, B, D, E, F, H and I.</ENT> </ROW> <ROW> <ENT I="01">(6) a (n) Department of Justice official authorized to enterinto a covered transaction</ENT> <ENT>A, B, D, E and I.</ENT> </ROW> <ROW> <ENT I="01">(7) Reserved</ENT> <ENT>J.</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 67.50</SECTNO> <SUBJECT>How is this part written?</SUBJECT> <P>(a) This part uses a “plain language” format to make it easierfor the general public and business community to use. The section headings andtext, often in the form of questions and answers, must be read together.</P> <P>(b) Pronouns used within this part, such as “I” and“you,” change from subpart to subpart depending on the audiencebeing addressed. The pronoun “we” always is the Department ofJustice.</P> <P>(c) The “Covered Transactions” diagram in the appendix to thispart shows the levels or “tiers” at which the Department of Justiceenforces an exclusion under this part.</P> </SECTION> <SECTION> <SECTNO>§ 67.75</SECTNO> <SUBJECT>Do terms in this part have special meanings?</SUBJECT> <P>This part uses terms throughout the text that have special meaning. Thoseterms are defined in Subpart I of this part. For example, three important termsare—</P> <P>(a) <E T="03">Exclusion or excluded,</E> which refers only to discretionaryactions taken by a suspending or debarring official under this part or theFederal Acquisition Regulation (48 CFR part 9, subpart 9.4);</P> <P>(b) <E T="03">Disqualification or disqualified,</E> which refers toprohibitions under specific statutes, executive orders (other than ExecutiveOrder 12549 and Executive Order 12689), or other authorities. Disqualificationsfrequently are not subject to the discretion of an agency official, may have adifferent scope than exclusions, or have special conditions that apply to thedisqualification; and</P> <P>(c) <E T="03">Ineligibility or ineligible,</E> which generally refers to aperson who is either excluded or disqualified.</P> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 67.100</SECTNO> <SUBJECT>What does this part do?</SUBJECT> <P>This part adopts a governmentwide system of debarment and suspension forDepartment of Justice nonprocurement activities. It also provides for reciprocalexclusion of persons who have been excluded under the Federal AcquisitionRegulation, and provides for the consolidated listing of all persons who areexcluded, or disqualified by statute, executive order, or other legal authority.This part satisfies the requirements in section 3 of Executive Order 12549,“Debarment and Suspension” (3 CFR 1986 Comp., p. 189), ExecutiveOrder 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235)and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat.3327).</P> </SECTION> <SECTION> <SECTNO>§ 67.105</SECTNO> <SUBJECT>Does this part apply to me?</SUBJECT> <P>Portions of this part (see table at § 67.25(b)) apply to you ifyou are a(n)—</P> <P>(a) Person who has been, is, or may reasonably be expected to be, aparticipant or principal in a covered transaction;</P> <P>(b) Respondent (a person against whom the Department of Justice has initiateda debarment or suspension action);</P> <P>(c) Department of Justice debarring or suspending official; or</P> <P>(d) Department of Justice official who is authorized to enter into coveredtransactions with non-Federal parties.</P> </SECTION> <SECTION> <SECTNO>§ 67.110</SECTNO> <SUBJECT>What is the purpose of the nonprocurement debarment and suspensionsystem?</SUBJECT> <P>(a) To protect the public interest, the Federal Government ensures theintegrity of Federal programs by conducting business only with responsiblepersons.</P> <P>(b) A Federal agency uses the nonprocurement debarment and suspension systemto exclude from Federal programs persons who are not presently responsible.</P> <P>(c) An exclusion is a serious action that a Federal agency may take only toprotect the public interest. A Federal agency may not exclude a person <PRTPAGE P="203"/>orcommodity for the purposes of punishment.</P> </SECTION> <SECTION> <SECTNO>§ 67.115</SECTNO> <SUBJECT>How does an exclusion restrict a person's involvement in coveredtransactions?</SUBJECT> <P>With the exceptions stated in §§ 67.120, 67.315, and 67.420,a person who is excluded by the Department of Justice or any other Federalagency may not:</P> <P>(a) Be a participant in a(n) Department of Justice transaction that is acovered transaction under subpart B of this part;</P> <P>(b) Be a participant in a transaction of any other Federal agency that is acovered transaction under that agency's regulation for debarment and suspension;or</P> <P>(c) Act as a principal of a person participating in one of those coveredtransactions.</P> </SECTION> <SECTION> <SECTNO>§ 67.120</SECTNO> <SUBJECT>May we grant an exception to let an excluded person participate in acovered transaction?</SUBJECT> <P>(a) The Department of Justice debarring official or designee may grant anexception permitting an excluded person to participate in a particular coveredtransaction. If the Department of Justice debarring official or designee grantsan exception, the exception must be in writing and state the reason(s) fordeviating from the governmentwide policy in Executive Order 12549.</P> <P>(b) An exception granted by one agency for an excluded person does not extendto the covered transactions of another agency.</P> </SECTION> <SECTION> <SECTNO>§ 67.125</SECTNO> <SUBJECT>Does an exclusion under the nonprocurement system affect a person'seligibility for Federal procurement contracts?</SUBJECT> <P>If any Federal agency excludes a person under its nonprocurement common ruleon or after August 25, 1995, the excluded person is also ineligible toparticipate in Federal procurement transactions under the FAR. Therefore, anexclusion under this part has reciprocal effect in Federal procurementtransactions.</P> </SECTION> <SECTION> <SECTNO>§ 67.130</SECTNO> <SUBJECT>Does exclusion under the Federal procurement system affect a person'seligibility to participate in nonprocurement transactions?</SUBJECT> <P>If any Federal agency excludes a person under the FAR on or after August 25,1995, the excluded person is also ineligible to participate in nonprocurementcovered transactions under this part. Therefore, an exclusion under the FAR hasreciprocal effect in Federal nonprocurement transactions.</P> </SECTION> <SECTION> <SECTNO>§ 67.135</SECTNO> <SUBJECT>May the Department of Justice exclude a person who is not currentlyparticipating in a nonprocurement transaction?</SUBJECT> <P>Given a cause that justifies an exclusion under this part, we may exclude anyperson who has been involved, is currently involved, or may reasonably beexpected to be involved in a covered transaction.</P> </SECTION> <SECTION> <SECTNO>§ 67.140</SECTNO> <SUBJECT>How do I know if a person is excluded?</SUBJECT> <P>Check the <E T="03">Excluded Parties List System (EPLS)</E> to determinewhether a person is excluded. The General Services Administration (GSA)maintains the <E T="03">EPLS</E> and makes it available, as detailed in subpartE of this part. When a Federal agency takes an action to exclude a person underthe nonprocurement or procurement debarment and suspension system, the agencyenters the information about the excluded person into the <E T="03">EPLS.</E> </P> </SECTION> <SECTION> <SECTNO>§ 67.145</SECTNO> <SUBJECT>Does this part address persons who are disqualified, as well as thosewho are excluded from nonprocurement transactions?</SUBJECT> <P>Except if provided for in Subpart J of this part, this part—</P> <P>(a) Addresses disqualified persons only to—</P> <P>(1) Provide for their inclusion in the <E T="03">EPLS;</E> and</P> <P>(2) State responsibilities of Federal agencies and participants to check fordisqualified persons before entering into covered transactions.</P> <P>(b) Does not specify the—</P> <P>(1) Department of Justice transactions for which a disqualified person isineligible. Those transactions vary on a case-by-case basis, because they dependon the language of the specific <PRTPAGE P="204"/>statute, Executive order, or regulation thatcaused the disqualification;</P> <P>(2) Entities to which the disqualification applies; or</P> <P>(3) Process that the agency uses to disqualify a person. Unlike exclusion,disqualification is frequently not a discretionary action that a Federal agencytakes.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Covered Transactions</HD> <SECTION> <SECTNO>§ 67.200</SECTNO> <SUBJECT>What is a covered transaction?</SUBJECT> <P>A covered transaction is a nonprocurement or procurement transaction that issubject to the prohibitions of this part. It may be a transaction at—</P> <P>(a) The primary tier, between a Federal agency and a person (see appendix tothis part); or</P> <P>(b) A lower tier, between a participant in a covered transaction and anotherperson.</P> </SECTION> <SECTION> <SECTNO>§ 67.205</SECTNO> <SUBJECT>Why is it important if a particular transaction is a coveredtransaction?</SUBJECT> <P>The importance of a covered transaction depends upon who you are.</P> <P>(a) As a participant in the transaction, you have the responsibilities laidout in Subpart C of this part. Those include responsibilities to the person orFederal agency at the next higher tier from whom you received the transaction,if any. They also include responsibilities if you subsequently enter into othercovered transactions with persons at the next lower tier.</P> <P>(b) As a Federal official who enters into a primary tier transaction, youhave the responsibilities laid out in subpart D of this part.</P> <P>(c) As an excluded person, you may not be a participant or principal in thetransaction unless—</P> <P>(1) The person who entered into the transaction with you allows you tocontinue your involvement in a transaction that predates your exclusion, aspermitted under § 67.310 or § 67.415; or</P> <P>(2) A(n) Department of Justice official obtains an exception from theDepartment of Justice debarring official or designee to allow you to be involvedin the transaction, as permitted under § 67.120.</P> </SECTION> <SECTION> <SECTNO>§ 67.210</SECTNO> <SUBJECT>Which nonprocurement transactions are covered transactions?</SUBJECT> <P>All nonprocurement transactions, as defined in § 67.970, arecovered transactions unless listed in § 67.215. (See appendix to thispart.)</P> </SECTION> <SECTION> <SECTNO>§ 67.215</SECTNO> <SUBJECT>Which nonprocurement transactions are not covered transactions?</SUBJECT> <P>The following types of nonprocurement transactions are not coveredtransactions:</P> <P>(a) A direct award to—</P> <P>(1) A foreign government or foreign governmental entity;</P> <P>(2) A public international organization;</P> <P>(3) An entity owned (in whole or in part) or controlled by a foreigngovernment; or</P> <P>(4) Any other entity consisting wholly or partially of one or more foreigngovernments or foreign governmental entities.</P> <P>(b) A benefit to an individual as a personal entitlement without regard tothe individual's present responsibility (but benefits received in anindividual's business capacity are not excepted). For example, if a personreceives social security benefits under the Supplemental Security Incomeprovisions of the Social Security Act, 42 U.S.C. 1301 et seq., those benefitsare not covered transactions and, therefore, are not affected if the person isexcluded.</P> <P>(c) Federal employment.</