[Title 28 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
28
Part 43 to End
Revised as of July 1, 2001
Judicial Administration
Containing a codification of documents
of general applicability and future effect
As of July 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax: (202) 512-2250
Mail: Stop SSOP, Washington, DC 20402-0001
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Table of Contents
Page
Explanation................................................. v
Title 28:
Chapter I--Department of Justice (Continued) 3
Chapter III--Federal Prison Industries, Inc.,
Department of Justice 427
Chapter V--Bureau of Prisons, Department of Justice 449
Chapter VI--Offices of Independent Counsel,
Department of Justice 617
Chapter VII--Office of Independent Counsel 625
Chapter VIII--Court Services and Offender
Supervision Agency for the District of Columbia 649
Chapter IX--National Crime Prevention and Privacy
Compact Council 653
Finding Aids:
Table of CFR Titles and Chapters........................ 659
Alphabetical List of Agencies Appearing in the CFR...... 677
List of CFR Sections Affected........................... 687
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 28 CFR 43.1 refers
to title 28, part 43,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
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A subject index to the Code of Federal Regulations is contained in a
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the revision dates of the 50 CFR titles.
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There are no restrictions on the republication of material appearing
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[[Page vii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2001.
[[Page ix]]
THIS TITLE
Title 28--Judicial Administration is composed of two volumes. The
parts in these volumes are arranged in the following order: parts 0-42
and part 43 to end. The contents of these volumes represent all current
regulations codified by the Department of Justice, the Federal Prison
Industries, Inc., the Bureau of Prisons, Department of Justice, the
Offices of Independent Counsel, Department of Justice, and the Office of
Independent Counsel under this title of the CFR as of July 1, 2001.
[[Page x]]
[[Page 1]]
TITLE 28--JUDICIAL ADMINISTRATION
(This book contains part 43 to End)
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Part
chapter i--Department of Justice (Continued)................ 43
chapter iii--Federal Prison Industries, Inc., Department of
Justice................................................... 301
chapter v--Bureau of Prisons, Department of Justice......... 500
chapter vi--Offices of Independent Counsel, Department of
Justice................................................... 600
chapter vii--Office of Independent Counsel.................. 700
chapter viii--Court Services and Offender Supervision Agency
for the District of Columbia.............................. 800
chapter ix--National Crime Prevention and Privacy Compact
Council................................................... 901
[[Page 3]]
CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
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Part Page
43 Recovery of cost of hospital and medical
care and treatment furnished by the
United States........................... 7
44 Unfair immigration-related employment
practices............................... 8
45 Employee responsibilities................... 12
46 Protection of human subjects................ 15
47 Right to Financial Privacy Act.............. 26
48 Newspaper Preservation Act.................. 27
49 Antitrust Civil Process Act................. 32
50 Statements of policy........................ 33
51 Procedures for the administration of section
5 of the Voting Rights Act of 1965, as
amended................................. 78
52 Proceedings before U.S. magistrate judges... 98
54 Nondiscrimination on the basis of sex in
education programs or activities
receiving federal financial assistance.. 100
55 Implementation of the provisions of the
Voting Rights Act regarding language
minority groups......................... 116
56 International Energy Program................ 128
57 Investigation of discrimination in the
supply of petroleum to the Armed Forces. 131
58 Regulations relating to the Bankruptcy
Reform Acts of 1978 and 1994............ 132
59 Guidelines on methods of obtaining
documentary materials held by third
parties................................. 140
60 Authorization of Federal law enforcement
officers to request the issuance of a
search warrant.......................... 144
61 Procedures for implementing the National
Environmental Policy Act................ 146
63 Floodplain management and wetland protection
procedures.............................. 153
64 Designation of officers and employees of the
United States for coverage under section
1114 of title 18 of the U.S. Code....... 158
65 Emergency Federal law enforcement assistance 160
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66 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 167
67 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 194
68 Rules of practice and procedure for
administrative hearings before
administrative law judges in cases
involving allegations of unlawful
employment of aliens, unfair
immigration-related employment
practices, and document fraud........... 213
69 New restrictions on lobbying................ 242
70 Uniform administrative requirements for
grants and agreements (including
subawards) with institutions of higher
education, hospitals and other non-
profit organizations.................... 253
71 Implementation of the provisions of the
Program Fraud Civil Remedies Act of 1986 278
73 Notifications to the Attorney General by
agents of foreign governments........... 295
74 Civil Liberties Act redress provision....... 297
75 Child Protection Restoration and Penalties
Enhancement Act of 1990; record-keeping
provisions.............................. 309
76 Rules of procedure for assessment of civil
penalties for possession of certain
controlled substances................... 311
77 Ethical standards for attorneys for the
government.............................. 326
79 Claims under the Radiation Exposure
Compensation Act........................ 329
80 Foreign Corrupt Practices Act opinion
procedure............................... 372
81 Child abuse reporting designations and
procedures.............................. 375
85 Civil monetary penalties inflation
adjustment.............................. 376
90 Violence against women...................... 377
91 Grants for correctional facilities.......... 394
92 Office of Community Oriented Policing
Services (COPS)......................... 410
93 Provisions implementing the Violent Crime
Control and Law Enforcement Act of 1994. 416
100 Cost recovery regulations, Communications
Assistance for Law Enforcement Act of
1994.................................... 418
Cross References: Customs Service, Department of the Treasury: See
Customs Duties, 19 CFR chapter I.
Internal Revenue Service, Department of the Treasury: See Internal
Revenue, 26 CFR chapter I.
Employees' Benefits: See title 20.
Federal Trade Commission: See Commercial Practices, 16 CFR chapter I.
Note: Other regulations issued by the Department of Justice appear in
title 4; title 8; title 21; title 45; title 48.
[[Page 5]]
Supplemental Publications:The official opinions of the Attorneys
General of the United States. (Op. A. G.) Irregular, 1789--;
Washington, v. 1--, 1852--.
[[Page 7]]
PART 43--RECOVERY OF COST OF HOSPITAL AND MEDICAL CARE AND TREATMENT FURNISHED BY THE UNITED STATES--Table of Contents
Sec.
43.1 Administrative determination and assertion of claims.
43.2 Obligations of persons receiving care and treatment.
43.3 Settlement and waiver of claims.
43.4 Annual reports.
Authority: Sec. 2, 76 Stat. 593; 42 U.S.C. 2651-2653; E.O. 11060, 3
CFR, 1959-1963 Comp., p. 651.
Editorial Note: For establishment and determination of certain rates
for use in connection with recovery from tortiously liable third
persons, see notice documents published by the Office of Management and
Budget each year in the Federal Register.
Sec. 43.1 Administrative determination and assertion of claims.
(a) The head of a Department or Agency of the United States
responsible for the furnishing of hospital, medical, surgical or dental
care and treatment (including prostheses and medical appliances), or his
designee, shall determine whether such hospital, medical, surgical or
dental care and treatment was or will be furnished for an injury or
disease caused under circumstances entitling the United States to
recovery under the Act of September 25, 1962 (Pub. L. 87-693); and, if
it is so determined, shall, subject to the provisions of Sec. 43.3,
assert a claim against such third person for the reasonable value of
such care and treatment. The Department of Justice, or a Department or
Agency responsible for the furnishing of such care and treatment may
request any other Department or Agency to investigate, determine, or
assert a claim under the regulations in this part.
(b) Each Department or Agency is authorized to implement the
regulations in this part to give full force and effect thereto.
(c) The provisions of the regulations in this part shall not apply
with respect to hospital, medical, surgical, or dental care and
treatment (including prostheses and medical appliances) furnished by the
Veterans Administration to an eligible veteran for a service-connected
disability under the provisions of chapter 17 of title 38 of the U.S.
Code.
[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]
Sec. 43.2 Obligations of persons receiving care and treatment.
(a) In the discretion of the Department or Agency concerned, any
person furnished care and treatment under circumstances in which the
regulations in this part may be applicable, his guardian, personal
representative, estate, dependents or survivors may be required:
(1) To assign in writing to the United States his claim or cause of
action against the third person to the extent of the reasonable value of
the care and treatment furnished or to be furnished, or any portion
thereof;
(2) To furnish such information as may be requested concerning the
circumstances giving rise to the injury or disease for which care and
treatment is being given and concerning any action instituted or to be
instituted by or against a third person;
(3) To notify the Department or Agency concerned of a settlement
with, or an offer of settlement from, a third person; and
(4) To cooperate in the prosecution of all claims and actions by the
United States against such third person.
(b) [Reserved]
[Order No. 289-62, 27 FR 11317, Nov. 16, 1962, as amended by Order No.
896-80, 45 FR 39841, June 12, 1980]
Sec. 43.3 Settlement and waiver of claims.
(a) The head of the Department or Agency of the United States
asserting such claim, or his or her designee, may:
(1) Accept the full amount of a claim and execute a release
therefor;
(2) Compromise or settle and execute a release of any claim, not in
excess of $100,000, which the United States has for the reasonable value
of such care and treatment; or
(3) Waive and in this connection release any claim, not in excess of
$100,000, in whole or in part, either for the convenience of the
Government, or if the head of the Department or Agency, or his or her
designee, determines that collection would result in undue hardship upon
the person who suffered
[[Page 8]]
the injury or disease resulting in the care and treatment described in
Sec. 43.1.
(b) Claims in excess of $100,000 may be compromised, settled,
waived, and released only with the prior approval of the Department of
Justice.
(c) The authority granted in this section shall not be exercised in
any case in which:
(1) The claim of the United States for such care and treatment has
been referred to the Department of Justice; or
(2) A suit by the third party has been instituted against the United
States or the individual who received or is receiving the care and
treatment described in Sec. 43.1 and the suit arises out of the
occurrence which gave rise to the third-party claim of the United
States.
(d) The Departments and Agencies concerned shall consult the
Department of Justice in all cases involving:
(1) Unusual circumstances;
(2) A new point of law which may serve as a precedent; or
(3) A policy question where there is or may be a difference of views
between any of such Departments and Agencies.
[Order No. 1594-92, 57 FR 27356, June 19, 1992]
Sec. 43.4 Annual reports.
The head of each Department or Agency concerned, or his designee,
shall report annually to the Attorney General, by March 1, commencing in
1964, the number and dollar amount of claims asserted against, and the
number and dollar amount of recoveries from third persons.
[Order No. 289-62, 27 FR 11317, Nov. 16, 1962]
PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES--Table of Contents
Subpart A--General
Sec.
44.100 Purpose.
44.101 Definitions.
Subpart B--Prohibited Practices
44.200 Unfair immigration-related employment practices.
Subpart C--Enforcement Procedures
44.300 Filing a charge.
44.301 Acceptance of charge.
44.302 Investigation.
44.303 Determination.
44.304 Special Counsel acting on own initiative.
44.305 Regional offices.
Authority: 8 U.S.C. 1324b, 8 U.S.C. 1103(a).
Source: Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, unless
otherwise noted.
Subpart A--General
Sec. 44.100 Purpose.
The purpose of this part is to effectuate section 102 of the
Immigration Reform and Control Act of 1986, which prohibits certain
unfair immigration-related employment practices.
Sec. 44.101 Definitions.
(a) Charge means a written statement under oath or affirmation
that--
(1) Identifies the charging party's name, address, and telephone
number;
(2) Identifies the injured party's name, address, and telephone
number, if the charging party is not the injured party;
(3) Identifies the name and address of the person or entity against
whom the charge is being made;
(4) Includes a statement sufficient to describe the circumstances,
place, and date of an alleged unfair immigration-related employment
practice;
(5) Indicates whether the basis of the alleged unfair immigration-
related employment practice is discrimination based on national origin,
citizenship status, or both; or intimidation or retaliation, or
documentation abuses;
(6) Indicates whether the injured party is a U.S. citizen, U.S.
national, or alien authorized to work in the United States;
(7) Indicates, if the injured party is an alien authorized to work,
whether the injured party--
(i) Has been--
(A) Lawfully admitted for permanent residence;
(B) Granted the status of an alien lawfully admitted for temporary
residence under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C.
1255a(a)(1);
(C) Admitted as a refugee under 8 U.S.C. 1157; or
(D) Granted asylum under 8 U.S.C. 1158; and
[[Page 9]]
(ii) Has applied for naturalization (and if so, indicates the date
of the application);
(8) Identifies, if the injured party is an alien authorized to work,
the injured party's alien registration number and date of birth.
(9) Indicates, if possible, the number of persons employed on the
date of the alleged discrimination by the person or entity against whom
the charge is being made;
(10) Is signed by the charging party and, if the charging party is
neither the injured party nor an officer of the Immigration and
Naturalization Service, indicates that the charging party has the
authorization of the injured party to file the charge.
(11) Indicates whether a charge based on the same set of facts has
been filed with the Equal Employment Opportunity Commission, and if so,
the specific office, and contact person (if known); and
(12) Authorizes the Special Counsel to reveal the identity of the
injured or charging party when necessary to carry out the purposes of
this part.
(b) Charging party means--
(1) An individual who files a charge with the Special Counsel that
alleges that he or she has been adversely affected directly by an unfair
immigration-related employment practice;
(2) An individual or private organization who is authorized by an
individual to file a charge with the Special Counsel that alleges that
the individual has been adversely affected directly by an unfair
immigration-related employment practice; or
(3) An officer of the Immigration and Naturalization Service who
files a charge with the Special Counsel that alleges that an unfair
immigration-related employment practice has occurred.
(c) Protected individual means an individual who--
(1) Is a citizen or national of the United States; or
(2) Is an alien who is lawfully admitted for permanent residence, is
granted the status of an alien lawfully admitted for temporary residence
under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C. 1255a(a)(1), is
admitted as a refugee under 8 U.S.C. 1157, or is granted asylum under 8
U.S.C. 1158. The status of an alien whose application for temporary
resident status under 8 U.S.C. 1160(a), 8 U.S.C. 1161(a), or 8 U.S.C.
1255a(a)(1) is approved shall be adjusted to that of a lawful temporary
resident as of the date indicated on the application fee receipt issued
at the Immigration and Naturalization Service Legalization Office. As
used in this definition, the term ``protected individual'' does not
include an alien who--
(i) Fails to apply for naturalization within six months of the date
the alien first becomes eligible (by virtue of period of lawful
permanent residence) to apply for naturalization or, if later, by May 6,
1987; or
(ii) Has applied on a timely basis, but has not been naturalized as
a citizen within two years after the date of the application, unless the
alien can establish that he or she is actively pursuing naturalization,
except that time consumed in the Immigration and Naturalization
Service's processing of the application shall not be counted toward the
two-year period.
(d) Complaint means a written submission filed with an
administrative law judge by the Special Counsel or the charging party,
other than an officer of the Immigration and Naturalization Service,
that is based on the same charge filed with the Special Counsel.
(e) Injured party means a person who claims to have been adversely
affected directly by an unfair immigration-related employment practice
or, in the case of a charge filed by an officer of the Immigration and
Naturalization Service or by a charging party other than the injured
party, is alleged to be so affected.
(f) Respondent means a person or entity against whom a charge of an
unfair immigration-related employment practice has been filed.
(g) Special Counsel means the Special Counsel for Immigration-
Related Unfair Employment Practices appointed by the President under
section 102 of the Immigration Reform and Control Act of 1986, or his or
her designee.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR 59948,
Nov. 12, 1993]
[[Page 10]]
Subpart B--Prohibited Practices
Sec. 44.200 Unfair immigration-related employment practices.
(a)(1) General. It is unfair immigration-related employment practice
for a person or other entity to knowingly and intentionally discriminate
or to engage in a pattern or practice of knowing and intentional
discrimination against any individual (other than an unauthorized alien)
with respect to the hiring, or recruitment or referral for a fee, of the
individual for employment or the discharging of the individual from
employment--
(i) Because of such individual's national origin; or
(ii) In the case of a protected individual, as defined in
Sec. 44.101(c), because of such individual's citizenship status.
(2) Intimidation or retaliation. It is an unfair immigration-related
employment practice for a person or other entity to intimidate,
threaten, coerce, or retaliate against any individual for the purpose of
interfering with any right or privilege secured under 8 U.S.C. 1324b or
because the individual intends to file or has filed a charge or a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under that section.
(3) Documentation abuses. A person's or other entity's request, for
purposes of satisfying the requirements of 8 U.S.C. 1324a(b), for more
or different documents than are required under such section or refusing
to honor documents tendered that on their face reasonably appear to be
genuine and to relate to the individual shall be treated as an unfair
immigration-related employment practice relating to the hiring of
individuals.
(b) Exceptions. (1) Paragraph (a) of this section shall not apply
to--
(i) A person or other entity that employs three or fewer employees;
(ii) Discrimination because of an individual's national origin if
the discrimination with respect to that person or entity and that
individual is covered under 42 U.S.C. 2000e-2; or
(iii) Discrimination because of citizenship which--
(A) Is otherwise required in order to comply with law, regulation,
or Executive Order; or
(B) Is required by Federal, State, or local government contract; or
(C) Which the Attorney General determines to be essential for an
employer to do business with an agency or department of the Federal,
State, or local government.
(2) Notwithstanding any other provision of this part, it is not an
unfair immigration-related employment practice for a person or other
entity to prefer to hire, recruit or refer for a fee an individual who
is a citizen or national of the United States over another individual
who is an alien if the two individuals are equally qualified.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 56 FR 40249, Aug. 14, 1991; Order No. 1807-93, 58 FR 59948,
Nov. 12, 1993]
Subpart C--Enforcement Procedures
Sec. 44.300 Filing a charge.
(a) Who may file. (1) Any individual who believes that he or she has
been adversely affected directly by an unfair immigration-related
employment practice, or any individual or private organization
authorized to act on such person's behalf, may file a charge with the
Special Counsel.
(2) Any officer of the Immigration and Naturalization Service who
believes that an unfair immigration-related employment practice has
occurred or is occurring may file a charge with the Special Counsel.
(b) When to file. Charges shall be filed within 180 days of the
alleged occurrence of an unfair immigration-related employment practice.
For purposes of determining when a charge is timely under this
paragraph, a charge mailed to the Special Counsel shall be deemed filed
on the date it is postmarked.
(c) How to file. Charges may be:
(1) Mailed to: Office of Special Counsel for Immigration-Related
Unfair Employment Practices, P.O. Box 27728, Washington, DC 20038-7728
or
(2) Delivered to the Office of Special Counsel at 1425 New York
Avenue NW., suite 9000, Washington, DC 20005.
[[Page 11]]
(d) No overlap with EEOC complaints. No charge may be filed
respecting an unfair immigration-related employment practice described
in Sec. 44.200(a)(1) if a charge with respect to that practice based on
the same set of facts has been filed with the Equal Employment
Opportunity Commission under title VII of the Civil Rights Act of 1964,
unless the charge is dismissed as being outside the scope of such title.
No charge respecting an employment practice may be filed with the Equal
Employment Opportunity Commission under such title if a charge with
respect to such practice based on the same set of facts has been filed
under this section, unless the charge is dismissed by the Special
Counsel as being outside the scope of this part.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1807-93, 58 FR 59948, Nov. 12, 1993]
Sec. 44.301 Acceptance of charge.
(a) The Special Counsel shall notify the charging party of receipt
of a charge as defined in Sec. 44.101(a) or receipt of a submission
deemed to be a charge under paragraph (c)(2) of this section.
(b) The notice to the charging party shall specify the date on which
the charge was received, state that the charging party, other than an
officer of the Immigration and Naturalization Service, may file a
complaint before an administrative law judge if the Special Counsel does
not do so within 120 days of receipt of the charge, and state the last
date on which such a complaint may be filed.
(c)(1) Subject to paragraph (c)(2) of this section, if a charging
party's submission is inadequate to constitute a charge as defined in
Sec. 44.101(a), the Special Counsel shall notify the charging party that
specified additional information is needed. As of the date that adequate
information is received in writing by the Special Counsel, the charging
party's submission shall be deemed a filed charge and the Special
Counsel shall issue the notices required by paragraphs (b) and (e) of
this section.
(2) In the Special Counsel's discretion, the Special Counsel may
deem a submission to be a filed charge as of the date of its receipt
even though it is inadequate to constitute a charge as defined in
Sec. 44.101(a). The Special Counsel may then obtain the additional
information specified in Sec. 44.101(a) in the course of investigating
the charge.
(d)(1) If the Special Counsel receives a charge after 180 days of
the alleged occurrence of an unfair immigration-related employment
practice, the Special Counsel shall dismiss the charge with prejudice.
(2) Inadequate submissions that are later deemed charges under
paragraph (c)(1) of this section are timely filed as long as--
(i) The original submission is filed within 180 days of the alleged
occurrence of an unfair immigration-related employment practice; and
(ii) Any additional information requested by the Special Counsel
pursuant to paragraph (c)(1) of this section is provided in writing to
the Special Counsel within the 180-day period or within 45 days of the
date on which the charging party received the Special Counsel's
notification pursuant to paragraph (c) of this section, whichever is
later.
(e) The Special Counsel shall serve notice of the charge on the
respondent by certified mail within 10 days of receipt of the charge.
The notice shall include the date, place, and circumstances of the
alleged unfair immigration-related employment practice.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 57 FR 40249, Aug. 14, 1991; 57 FR 30397, July 9, 1992]
Sec. 44.302 Investigation.
(a) The Special Counsel may propound interrogatories, requests for
production of documents, and requests for admissions.
(b) The Special Counsel shall have reasonable access to examine the
evidence of any person or entity being investigated. The respondent
shall permit access by the Special Counsel during normal business hours
to such of its books, records, accounts, and other sources of
information, as the Special Counsel may deem pertinent to ascertain
compliance with this part.
[[Page 12]]
Sec. 44.303 Determination.
(a) Within 120 days of the receipt of a charge, the Special Counsel
shall undertake an investigation of the charge and determine whether a
complaint with respect to the charge will be brought before an
administrative law judge specially designated by the Attorney General to
hear cases under section 102 of the Act.
(b) When the Special Counsel decides not to file a complaint with
respect to such charge before an administrative jaw judge within the
120-day period, or at the end of the 120-day period, the Special Counsel
shall issue letters of determination by certified mail which notify the
charging party and the respondent of the Special Counsel's determination
not to file a complaint.
(c) When the charging party receives a letter of determination
issued pursuant to Sec. 44.303(b), indicating that the Special Counsel
will not file a complaint with respect to such charge, the charging
party, other than an officer of the Immigration and Naturalization
Service, may bring his or her complaint directly before an
administrative law judge within 90 days after his or her receipt of the
Special Counsel's letter of determination. The charging party's
complaint must be filed with an administrative law judge pursuant to the
regulations issued by the Office of the Chief Administrative Hearing
Officer codified at 28 CFR 68.1.
(d) The Special Counsel's failure to file a complaint with respect
to such charge, before an administrative law judge within 120 days shall
not affect the right of the Special Counsel to continue to investigate
the charge or to bring a complaint before an administrative law judge
during the additional 90-day period as defined by paragraph (c) of this
section.
(e) The Special Counsel may seek to intervene at any time in any
proceeding brought by a charging party before an administrative law
judge.
[Order No. 1225-87, 52 FR 37409, Oct. 6, 1987, as amended by Order No.
1520-91, 56 FR 40249, Aug. 14, 1991]
Sec. 44.304 Special Counsel acting on own initiative.
(a) The Special Counsel may, on his or her own initiative, conduct
investigations respecting unfair immigration-related employment
practices when there is reason to believe that a person or entity has
engaged or is engaging in such practices.
(b) The Special Counsel may file a complaint with an administrative
law judge where there is reasonable cause to believe that an unfair
immigration-related employment practice has occurred within 180 days
from the date of the filing of the complaint.
Sec. 44.305 Regional offices.
The Special Counsel, in consultation with the Attorney General,
shall establish such regional offices as may be necessary to carry out
his or her duties.
PART 45--EMPLOYEE RESPONSIBILITIES--Table of Contents
Sec.
45.1 Cross-reference to ethical standards and financial disclosure
regulations.
45.2 Disqualification arising from personal or political relationship.
45.3 Disciplinary proceedings under 18 U.S.C. 207(j).
45.4 Personal use of Government property.
Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 207; 28 U.S.C. 503, 528;
DOJ Order 1735.1.
Sec. 45.1 Cross-reference to ethical standards and financial disclosure regulations.
Employees of the Department of Justice are subject to the executive
branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the
Department of Justice regulations at 5 CFR part 3801 which supplement
the executive branch-wide standards, the executive branch-wide financial
disclosure regulations at 5 CFR part 2634 and the executive branch-wide
employee responsibilities and conduct regulations at 5 CFR part 735.
[61 FR 59815, Nov. 25, 1996]
Sec. 45.2 Disqualification arising from personal or political relationship.
(a) Unless authorized under paragraph (b) of this section, no
employee shall participate in a criminal investigation or prosecution if
he has a personal or political relationship with:
[[Page 13]]
(1) Any person or organization substantially involved in the conduct
that is the subject of the investigation or prosecution; or
(2) Any person or organization which he knows has a specific and
substantial interest that would be directly affected by the outcome of
the investigation or prosecution.
(b) An employee assigned to or otherwise participating in a criminal
investigation or prosecution who believes that his participation may be
prohibited by paragraph (a) of this section shall report the matter and
all attendant facts and circumstances to his supervisor at the level of
section chief or the equivalent or higher. If the supervisor determines
that a personal or political relationship exists between the employee
and a person or organization described in paragraph (a) of this section,
he shall relieve the employee from participation unless he determines
further, in writing, after full consideration of all the facts and
circumstances, that:
(1) The relationship will not have the effect of rendering the
employee's service less than fully impartial and professional; and
(2) The employee's participation would not create an appearance of a
conflict of interest likely to affect the public perception of the
integrity of the investigation or prosecution.
(c) For the purposes of this section:
(1) Political relationship means a close identification with an
elected official, a candidate (whether or not successful) for elective,
public office, a political party, or a campaign organization, arising
from service as a principal adviser thereto or a principal official
thereof; and
(2) Personal relationship means a close and substantial connection
of the type normally viewed as likely to induce partiality. An employee
is presumed to have a personal relationship with his father, mother,
brother, sister, child and spouse. Whether relationships (including
friendships) of an employee to other persons or organizations are
``personal'' must be judged on an individual basis with due regard given
to the subjective opinion of the employee.
(d) This section pertains to agency management and is not intended
to create rights enforceable by private individuals or organizations.
[Order No. 993-83, 48 FR 2319, Jan. 19, 1983. Redesignated at 61 FR
59815, Nov. 25, 1996]
Sec. 45.3 Disciplinary proceedings under 18 U.S.C. 207(j).
(a) Upon a determination by the Assistant Attorney General in charge
of the Criminal Division (Assistant Attorney General), after
investigation, that there is reasonable cause to believe that a former
officer or employee, including a former special Government employee, of
the Department of Justice (former departmental employee) has violated 18
U.S.C. 207 (a), (b) or (c), the Assistant Attorney General shall cause a
copy of written charges of the violation(s) to be served upon such
individual, either personally or by registered mail. The charges shall
be accompanied by a notice to the former departmental employee to show
cause within a specified time of not less than 30 days after receipt of
the notice why he or she should not be prohibited from engaging in
representational activities in relation to matters pending in the
Department of Justice, as authorized by 18 U.S.C. 207(j), or subjected
to other appropriate disciplinary action under that statute. The notice
to show cause shall include:
(1) A statement of allegations, and their basis, sufficiently
detailed to enable the former departmental employee to prepare an
adequate defense,
(2) Notification of the right to a hearing, and
(3) An explanation of the method by which a hearing may be
requested.
(b) If a former departmental employee who submits an answer to the
notice to show cause does not request a hearing or if the Assistant
Attorney General does not receive an answer within five days after the
expiration of the time prescribed by the notice, the Assistant Attorney
General shall forward the record, including the report(s) of
investigation, to the Attorney General. In the case of a failure to
answer, such failure shall constitute a waiver of defense.
(c) Upon receipt of a former departmental employee's request for a
hearing, the Assistant Attorney General shall notify him or her of the
time and
[[Page 14]]
place thereof, giving due regard both to such person's need for an
adequate period to prepare a suitable defense and an expeditious
resolution of allegations that may be damaging to his or her reputation.
(d) The presiding officer at the hearing and any related proceedings
shall be a federal administrative law judge or other federal official
with comparable duties. He shall insure that the former departmental
employee has, among others, the rights:
(1) To self-representation or representation by counsel,
(2) To introduce and examine witnesses and submit physical evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To a transcript or recording of the proceedings, upon request.
(e) The Assistant Attorney General shall designate one or more
officers or employees of the Department of Justice to present the
evidence against the former departmental employee and perform other
functions incident to the proceedings.
(f) A decision adverse to the former departmental employee must be
sustained by substantial evidence that he violated 18 U.S.C. 207 (a),
(b) or (c).
(g) The presiding officer shall issue an initial decision based
exclusively on the transcript of testimony and exhibits, together with
all papers and requests filed in the proceeding, and shall set forth in
the decision findings and conclusions, supported by reasons, on the
material issues of fact and law presented on the record.
(h) Within 30 days after issuance of the initial decision, either
party may appeal to the Attorney General, who in that event shall issue
the final decision based on the record of the proceedings or those
portions thereof cited by the parties to limit the issues. If the final
decision modifies or reverses the initial decision, the Attorney General
shall specify the findings of fact and conclusions of law that vary from
those of the presiding officer.
(i) If a former departmental employee fails to appeal from an
adverse initial decision within the prescribed period of time, the
presiding officer shall forward the record of the proceedings to the
Attorney General.
(j) In the case of a former departmental employee who filed an
answer to the notice to show cause but did not request a hearing, the
Attorney General shall make the final decision on the record submitted
to him by the Assistant Attorney General pursuant to subsection (b) of
this section.
(k) The Attorney General, in a case where:
(1) The defense has been waived,
(2) The former departmental employee has failed to appeal from an
adverse initial decision, or
(3) The Attorney General has issued a final decision that the former
departmental employee violated 18 U.S.C. 207 (a), (b) or (c),
may issue an order:
(i) Prohibiting the former departmental employee from making, on
behalf of any other person (except the United States), any informal or
formal appearance before, or, with the intent to influence, any oral or
written communication to, the Department of Justice on a pending matter
of business for a period not to exceed five years, or
(ii) Prescribing other appropriate disciplinary action.
(l) An order issued under either paragraph (k)(3) (i) or (ii) of
this section may be supplemented by a directive to officers and
employees of the Department of Justice not to engage in conduct in
relation to the former departmental employee that would contravene such
order.
[Order No. 889-80, 45 FR 31717, May 14, 1980. Redesignated at 61 FR
59815, Nov. 25, 1996, and further redesignated at 62 FR 23943, May 2,
1997]
Sec. 45.4 Personal use of Government property.
(a) Employees may use Government property only for official business
or as authorized by the Government. See 5 CFR 2635.101(b)(9),
2635.704(a). The following uses of Government office and library
equipment and facilities are hereby authorized:
(1) Personal uses that involve only negligible expense (such as
electricity, ink, small amounts of paper, and ordinary wear and tear);
and
[[Page 15]]
(2) Limited personal telephone/fax calls to locations within the
office's commuting area, or that are charged to non-Government accounts.
(b) The foregoing authorization does not override any statutes,
rules, or regulations governing the use of specific types of Government
property (e.g. internal Departmental policies governing the use of
electronic mail; and 41 CFR (FPMR) 101-35.201, governing the authorized
use of long-distance telephone services), and may be revoked or limited
at any time by any supervisor or component for any business reason.
(c) In using Government property, employees should be mindful of
their responsibility to protect and conserve such property and to use
official time in an honest effort to perform official duties. See 5 CFR
2635.101(b)(9), 2635.704(a), 2635.705(a).
[62 FR 23943, May 2, 1997]
PART 46--PROTECTION OF HUMAN SUBJECTS--Table of Contents
Sec.
46.101 To what does this policy apply?
46.102 Definitions.
46.103 Assuring compliance with this policy--research conducted or
supported by any Federal Department or Agency.
46.104-46.106 [Reserved]
46.107 IRB Membership.
46.108 IRB functions and operations.
46.109 IRB review of research.
46.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in
approved research.
46.111 Criteria for IRB approval of research.
46.112 Review by institution.
46.113 Suspension or termination of IRB approval of research.
46.114 Cooperative research.
46.115 IRB records.
46.116 General requirements for informed consent.
46.117 Documentation of informed consent.
46.118 Applications and proposals lacking definite plans for
involvement of human subjects.
46.119 Research undertaken without the intention of involving human
subjects.
46.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department
or Agency.
46.121 [Reserved]
46.122 Use of Federal funds.
46.123 Early termination of research support: Evaluation of
applications and proposals.
46.124 Conditions.
Authority: 5 U.S.C. 301; 28 U.S.C. 509-510; 42 U.S.C. 300v-1(b).
Source: 56 FR 28012, 28020, June 18, 1991, unless otherwise noted.
Sec. 46.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by federal
civilian employees or military personnel, except that each department or
agency head may adopt such procedural modifications as may be
appropriate from an administrative standpoint. It also includes research
conducted, supported, or otherwise subject to regulation by the federal
government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in Sec. 46.102(e),
must comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in
Sec. 46.102(e) must be reviewed and approved, in compliance with
Sec. 46.101, Sec. 46.102, and Sec. 46.107 through Sec. 46.117 of this
policy, by an institutional review board (IRB) that operates in
accordance with the pertinent requirements of this policy.
(b) Unless otherwise required by department or agency heads,
research activities in which the only involvement of human subjects will
be in one or more of the following categories are exempt from this
policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison
[[Page 16]]
among instructional techniques, curricula, or classroom management
methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and
(ii) Any disclosure of the human subjects' responses outside the
research could reasonably place the subjects at risk of criminal or
civil liability or be damaging to the subjects' financial standing,
employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or
(ii) Federal statute(s) require(s) without exception that the
confidentiality of the personally identifiable information will be
maintained throughout the research and thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs;
(ii) Procedures for obtaining benefits or services under those
programs;
(iii) Possible changes in or alternatives to those programs or
procedures; or
(iv) Possible changes in methods or levels of payment for benefits
or services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies,
(i) If wholesome foods without additives are consumed or
(ii) If a food is consumed that contains a food ingredient at or
below the level and for a use found to be safe, or agricultural chemical
or environmental contaminant at or below the level found to be safe, by
the Food and Drug Administration or approved by the Environmental
Protection Agency or the Food Safety and Inspection Service of the U.S.
Department of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations
which may otherwise be applicable and which provide additional
protections to human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these circumstances, if a
department or
[[Page 17]]
agency head determines that the procedures prescribed by the institution
afford protections that are at least equivalent to those provided in
this policy, the department or agency head may approve the substitution
of the foreign procedures in lieu of the procedural requirements
provided in this policy. Except when otherwise required by statute,
Executive Order, or the department or agency head, notices of these
actions as they occur will be published in the Federal Register or will
be otherwise published as provided in department or agency procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures.\1\
---------------------------------------------------------------------------
\1\ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991]
Sec. 46.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or
judicial or other body authorized under applicable law to consent on
behalf of a prospective subject to the subject's participation in the
procedure(s) involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs may
include research activities.
(e) Research subject to regulation, and similar terms are intended
to encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. Private information includes information about
behavior that occurs in a
[[Page 18]]
context in which an individual can reasonably expect that no observation
or recording is taking place, and information which has been provided
for specific purposes by an individual and which the individual can
reasonably expect will not be made public (for example, a medical
record). Private information must be individually identifiable (i.e.,
the identity of the subject is or may readily be ascertained by the
investigator or associated with the information) in order for obtaining
the information to constitute research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the
research has been reviewed and may be conducted at an institution within
the constraints set forth by the IRB and by other institutional and
federal requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
Sec. 46.103 Assuring compliance with this policy--research conducted or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(b) Departments and agencies will conduct or support research
covered by this policy only if the institution has an assurance approved
as provided in this section, and only if the institution has certified
to the department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of this
policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under Sec. 46.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any employment
or other relationship between each member and the institution; for
example: full-time employee, part-time
[[Page 19]]
employee, member of governing panel or board, stockholder, paid or
unpaid consultant. Changes in IRB membership shall be reported to the
department or agency head, unless in accord with Sec. 46.103(a) of this
policy, the existence of an HHS-approved assurance is accepted. In this
case, change in IRB membership shall be reported to the Office for
Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
Sec. 46.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by Sec. 46.103 of this Policy has been reviewed and
approved by the IRB. Such certification must be submitted with the
application or proposal or by such later date as may be prescribed by
the department or agency to which the application or proposal is
submitted. Under no condition shall research covered by Sec. 46.103 of
the Policy be supported prior to receipt of the certification that the
research has been reviewed and approved by the IRB. Institutions without
an approved assurance covering the research shall certify within 30 days
after receipt of a request for such a certification from the department
or agency, that the application or proposal has been approved by the
IRB. If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under control number
9999-0020)
[56 FR 28012 and 28020, June 18, 1991; 56 FR 29756, June 28, 1991]
Secs. 46.104-46.106 [Reserved]
Sec. 46.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review
[[Page 20]]
of research activities commonly conducted by the institution. The IRB
shall be sufficiently qualified through the experience and expertise of
its members, and the diversity of the members, including consideration
of race, gender, and cultural backgrounds and sensitivity to such issues
as community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no
IRB consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary
concerns are in scientific areas and at least one member whose primary
concerns are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with
competence in special areas to assist in the review of issues which
require expertise beyond or in addition to that available on the IRB.
These individuals may not vote with the IRB.
Sec. 46.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
Sec. 46.103(b)(4) and, to the extent required by, Sec. 46.103(b)(5).
(b) Except when an expedited review procedure is used (see
Sec. 46.110), review proposed research at convened meetings at which a
majority of the members of the IRB are present, including at least one
member whose primary concerns are in nonscientific areas. In order for
the research to be approved, it shall receive the approval of a majority
of those members present at the meeting.
Sec. 46.109 IRB review of research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with Sec. 46.116. The IRB may
require that information, in addition to that specifically mentioned in
Sec. 46.116, be given to the subjects when in the IRB's judgment the
information would meaningfully add to the protection of the rights and
welfare of subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with Sec. 46.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it shall
include in its written notification a statement of the reasons for its
decision and give the investigator an opportunity to respond in person
or in writing.
[[Page 21]]
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.110 Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.
(a) The Secretary, HHS, has established, and published as a Notice
in the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list will
be amended, as appropriate after consultation with other departments and
agencies, through periodic republication by the Secretary, HHS, in the
Federal Register. A copy of the list is available from the Office for
Protection from Research Risks, National Institutes of Health, HHS,
Bethesda, Maryland 20892.
(b) An IRB may use the expedited review procedure to review either
or both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in Sec. 46.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
Sec. 46.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB
shall determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by Sec. 46.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by Sec. 46.117.
[[Page 22]]
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
Sec. 46.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
Sec. 46.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head, an
institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
Sec. 46.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving research;
and a written summary of the discussion of controverted issues and their
resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is
Sec. 46.103(b)(3).
(6) Written procedures for the IRB in the same detail as described
in Sec. 46.103(b)(4) and Sec. 46.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by Sec. 46.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of the research. All
records shall be accessible for inspection and copying by authorized
representatives of the department or agency at reasonable times and in a
reasonable manner.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or
[[Page 23]]
the subject's legally authorized representative. An investigator shall
seek such consent only under circumstances that provide the prospective
subject or the representative sufficient opportunity to consider whether
or not to participate and that minimize the possibility of coercion or
undue influence. The information that is given to the subject or the
representative shall be in language understandable to the subject or the
representative. No informed consent, whether oral or written, may
include any exculpatory language through which the subject or the
representative is made to waive or appear to waive any of the subject's
legal rights, or releases or appears to release the investigator, the
sponsor, the institution or its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's
participation may be terminated by the investigator without regard to
the subject's consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4) The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include,
or which alters, some or all of the elements of informed consent set
forth above, or waive the requirement to obtain informed consent
provided the IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or
subject to the approval of state or local government officials and is
designed to study, evaluate, or otherwise examine:
(i) Public benefit of service programs;
(ii) Procedures for obtaining benefits or services under those
programs;
[[Page 24]]
(iii) Possible changes in or alternatives to those programs or
procedures; or
(iv) Possible changes in methods or levels of payment for benefits
or services under those programs; and
(2) The research could not practicably be carried out without the
waiver or alteration.
(d) An IRB may approve a consent procedure which does not include,
or which alters, some or all of the elements of informed consent set
forth in this section, or waive the requirements to obtain informed
consent provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights
and welfare of the subjects;
(3) The research could not practicably be carried out without the
waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with
additional pertinent information after participation.
(e) The informed consent requirements in this policy are not
intended to preempt any applicable federal, state, or local laws which
require additional information to be disclosed in order for informed
consent to be legally effective.
(f) Nothing in this policy is intended to limit the authority of a
physician to provide emergency medical care, to the extent the physician
is permitted to do so under applicable federal, state, or local law.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of
informed consent required by Sec. 46.116. This form may be read to the
subject or the subject's legally authorized representative, but in any
event, the investigator shall give either the subject or the
representative adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by Sec. 46.116 have been presented orally
to the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain
a signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each subject will be asked
whether the subject wants documentation linking the subject with the
research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to
subjects and involves no procedures for which written consent is
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB may
require the investigator to provide subjects with a written statement
regarding the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
Sec. 46.118 Applications and proposals lacking definite plans for involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or
[[Page 25]]
agencies with the knowledge that subjects may be involved within the
period of support, but definite plans would not normally be set forth in
the application or proposal. These include activities such as
institutional type grants when selection of specific projects is the
institution's responsibility; research training grants in which the
activities involving subjects remain to be selected; and projects in
which human subjects' involvement will depend upon completion of
instruments, prior animal studies, or purification of compounds. These
applications need not be reviewed by an IRB before an award may be made.
However, except for research exempted or waived under Sec. 46.101 (b) or
(i), no human subjects may be involved in any project supported by these
awards until the project has been reviewed and approved by the IRB, as
provided in this policy, and certification submitted, by the
institution, to the department or agency.
Sec. 46.119 Research undertaken without the intention of involving human subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
Sec. 46.120 Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.
(a) The department or agency head will evaluate all applications and
proposals involving human subjects submitted to the department or agency
through such officers and employees of the department or agency and such
experts and consultants as the department or agency head determines to
be appropriate. This evaluation will take into consideration the risks
to the subjects, the adequacy of protection against these risks, the
potential benefits of the research to the subjects and others, and the
importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head
may approve or disapprove the application or proposal, or enter into
negotiations to develop an approvable one.
[56 FR 28012, 28020, June 18, 1991, as amended at 61 FR 33658, June 28,
1996]
Sec. 46.121 [Reserved]
Sec. 46.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
Sec. 46.123 Early termination of research support: Evaluation of applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications
or proposals covered by this policy the department or agency head may
take into account, in addition to all other eligibility requirements and
program criteria, factors such as whether the applicant has been subject
to a termination or suspension under paragraph (a) of this section and
whether the applicant or the person or persons who would direct or has
have directed the scientific and technical aspects of an activity has
have, in the judgment of the department or agency head, materially
failed to discharge responsibility for the protection of the rights and
welfare of human subjects (whether or not the research was subject to
federal regulation).
Sec. 46.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment
[[Page 26]]
of the department or agency head additional conditions are necessary for
the protection of human subjects.
PART 47--RIGHT TO FINANCIAL PRIVACY ACT--Table of Contents
Sec.
47.1 Definitions.
47.2 Purpose.
47.3 Authorization.
47.4 Written request.
47.5 Certification.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; section 1108 of the
Right to Financial Privacy Act of 1978, 12 U.S.C. 3408.
Source: Order No. 822-79, 44 FR 14554, Mar. 13, 1979, unless
otherwise noted.
Sec. 47.1 Definitions.
The terms used in this part shall have the same meaning as similar
terms used in the Right to Financial Privacy Act of 1978. Departmental
unit means any office, division, board, bureau, or other component of
the Department of Justice which is authorized to conduct law enforcement
inquiries. Act means the Right to Financial Privacy Act of 1978.
Sec. 47.2 Purpose.
The purpose of these regulations is to authorize Departmental units
to request financial records from a financial institution pursuant to
the formal written request procedure authorized by section 1108 of the
Act, and to set forth the conditions under which such requests may be
made.
Sec. 47.3 Authorization.
Departmental units are authorized to request financial records of
any customer from a financial institution pursuant to a formal written
request under the Act only if:
(a) No administrative summons or subpoena authority reasonably
appears to be available to the Departmental unit to obtain financial
records for the purpose for which the records are sought;
(b) There is reason to believe that the records sought are relevant
to a legitimate law enforcement inquiry and will further that inquiry;
(c) The request is issued by a supervisory official of a rank
designated by the head of the requesting Departmental unit. The
officials so designated shall not delegate this authority to others;
(d) The request adheres to the requirements set forth in Sec. 47.4;
and
(e) The notice requirements set forth in section 1108(4) of the Act,
or the requirements pertaining to delay of notice in section 1109 of the
Act, are satisfied, except in situations (e.g., section 1113(g)) where
no notice is required.
Sec. 47.4 Written request.
(a) The formal written request shall be in the form of a letter or
memorandum to an appropriate official of the financial institution from
which financial records are requested. The request shall be signed by
the issuing official, and shall set forth that official's name, title,
business address and business phone number. The request shall also
contain the following:
(1) The identity of the customer or customers to whom the records
pertain;
(2) A reasonable description of the records sought; and
(3) Such additional information as may be appropriate--e.g., the
date on which the opportunity for the customer to challenge the formal
written request will expire, the date on which the requesting
Departmental unit expects to present a certificate of compliance with
the applicable provisions of the Act, the name and title of the
individual (if known) to whom disclosure is to be made.
(b) In cases where customer notice is delayed by court order, a copy
of the court order shall be attached to the formal written request.
Sec. 47.5 Certification.
Prior to obtaining the requested records pursuant to a formal
written request, an official of a rank designated by the head of the
requesting Departmental unit shall certify in writing to the financial
institution that the Departmental unit has complied with the applicable
provisions of the Act.
[[Page 27]]
PART 48--NEWSPAPER PRESERVATION ACT--Table of Contents
Sec.
48.1 Purpose.
48.2 Definitions.
48.3 Procedure for filing all documents.
48.4 Application for approval of joint newspaper operating arrangement
entered into after July 24, 1970.
48.5 Requests that information not be made public.
48.6 Public notice.
48.7 Report of the Assistant Attorney General in Charge of the
Antitrust Division.
48.8 Written comments and requests for a hearing.
48.9 Extensions of time.
48.10 Hearings.
48.11 Intervention in hearings.
48.12 Ex parte communications.
48.13 Record for decision.
48.14 Decision by the Attorney General.
48.15 Temporary approval.
48.16 Procedure for filing of terms of a renewal or amendment to an
existing joint newspaper operating arrangement.
Authority: 28 U.S.C. 509, 510; (5 U.S.C. 301); Newspaper
Preservation Act, 84 Stat. 466 (15 U.S.C. 1801 et seq.).
Source: Order No. 558-73, 39 FR 7, Jan. 2, 1974, unless otherwise
noted.
Sec. 48.1 Purpose.
These regulations set forth the procedure by which application may
be made to the Attorney General for his approval of joint newspaper
operating arrangements entered into after July 24, 1970, and for the
filing with the Department of Justice of the terms of a renewal or
amendment of existing joint newspaper operating arrangements, as
required by the Newspaper Preservation Act, Pub. L. 91-353, 84 Stat.
466, 15 U.S.C. 1801 et seq. The Newspaper Preservation Act does not
require that all joint newspaper operating arrangements obtain the prior
written consent of the Attorney General. The Act and these regulations
provide a method for newspapers to obtain the benefit of a limited
exemption from the antitrust laws if they desire to do so. Joint
newspaper operating arrangements that are put into effect without the
prior written consent of the Attorney General remain fully subject to
the antitrust laws.
Sec. 48.2 Definitions.
(a) The term Attorney General means the Attorney General of the
United States or his delegate, other than the Assistant Attorney General
in charge of the Antitrust Division or other employee in the Antitrust
Division.
(b) The term Assistant Attorney General in charge of the Antitrust
Division means the Assistant Attorney General in charge of the Antitrust
Division or his delegate.
(c) The term Assistant Attorney General for Administration means the
Assistant Attorney General for Administration or his delegate.
(d) The term existing arrangement means any joint newspaper
operating arrangement entered into before July 24, 1970.
(e) The term joint newspaper operating arrangement means any
contract, agreement, joint venture (whether or not incorporated), or
other arrangement entered into between two or more newspaper owners for
the publication of two or more newspaper publications, pursuant to which
joint or common production facilities are established or operated and
joint or unified action is taken or agreed to be taken with respect to
any of the following: Printing; time, method, and field of publication;
allocation of production facilities; distribution; advertising
solicitation; circulation solicitation; business department;
establishment of advertising rates; establishment of circulation rates
and revenue distribution: Provided, That there is no merger,
combination, or amalgamation of editorial or reportorial staffs, and
that editorial policies be independently determined.
(f) The term newspaper means a publication produced on newsprint
paper which is published in one or more issues weekly (including as one
publication any daily newspaper and any Sunday newspaper published by
the same owner in the same city, community, or metropolitan area), and
in which a substantial portion of the content is devoted to the
dissemination of news and editorial opinion.
(g) The term party means any individual, and any partnership,
corporation, association, or other legal entity.
[[Page 28]]
(h) The term person means any individual, and any partnership,
corporation, association, or other legal entity.
Sec. 48.3 Procedure for filing all documents.
All filings required by these regulations shall be accomplished by:
(a) Mailing or delivering five copies of each document (two copies
in the case of documents filed by the Assistant Attorney General in
charge of the Antitrust Division) to the Assistant Attorney General for
Administration, Department of Justice, Washington, DC 20530. He shall
place one copy in a numbered public docket; one copy in a duplicate of
this file for the use of officials with decisional responsibility; and
(except in the case of documents filed by the Assistant Attorney General
in charge of the Antitrust Division) shall forward three copies to the
Assistant Attorney General in charge of the Antitrust Division; except
that documents subject to nondisclosure orders under Sec. 48.5 shall be
held under seal and disclosed only in accordance with the provisions of
that section; and
(b) Mailing or delivering one copy of each document filed after a
hearing has been ordered to each party to the proceedings, along with
the name and address of the party filing the document or its counsel,
and filing in the manner provided in paragraph (a) of this section a
certificate that service has been made in accordance herewith.
Sec. 48.4 Application for approval of joint newspaper operating arrangement entered into after July 24, 1970.
(a) Persons desiring to obtain the approval of the Attorney General
of a joint newspaper operating arrangement after July 24, 1970, shall
file an application in writing setting forth a short, plain statement of
the reasons why the applicants believe that approval should be granted.
(b) With the request, the applicants shall also file copies of the
following:
(1) The proposed joint newspaper operating agreement;
(2) Any prior, existing or proposed agreement between any of the
newspapers involved, or a statement of any such agreements as have not
been reduced to writing;
(3) With respect to each newspaper, for the 5-year period prior to
the date of the application,
(i) Annual statements of profit and loss;
(ii) Annual statements of assets and liabilities;
(iii) Reports of the Audit Bureau of Circulation, or statements
containing equivalent information;
(iv) Annual advertising lineage records;
(v) Rate cards;
(4) If any amount stated in paragraph (b)(3)(i) or (ii) of this
section represents an allocation of revenues, expenses, assets or
liabilities between the newspaper and any parent, subsidiary, division
or affiliate, the financial statements shall be accompanied by a full
explanation of the method by which each such amount has been allocated.
(5) If any of the newspapers involved purchased or sold goods or
services from or to any parent, subsidiary, division or affiliate at any
time during the five years preceding the date of application, a
statement shall be submitted identifying such products or services, the
entity from which they were purchased or to which they were sold, and
the amount paid for each product or service during each of the five
years.
(6) Any other information which the applicants believe relevant to
their request for approval.
(c) A copy of the application and supporting data shall be open to
public inspection during normal business hours at the main office of
each of the newspapers involved in the arrangement, except to the extent
permitted by nondisclosure orders under Sec. 48.5; except that materials
for which nondisclosure has been requested under Sec. 48.5 need not be
made available for inspection before the request has been decided.
Sec. 48.5 Requests that information not be made public.
(a) Any applicant may file a request that commercial or financial
data required to be filed and made public under these regulations, which
is privileged and confidential within the meaning of 5 U.S.C. 552(b), be
withheld from public disclosure. Each such request shall be accompanied
by a statement of the reasons why nondisclosure
[[Page 29]]
is required. The request shall be determined by the Attorney General who
shall consider the extent to which (1) disclosure may cause substantial
harm to the applicant submitting the information, and (2) nondisclosure
may impair the ability of persons who may be adversely affected by the
proposed arrangement to present their views in proceedings under these
regulations. Information relevant to the financial conditions of the
newspaper or newspapers represented to be failing ordinarily shall not
be ordered withheld from public disclosure.
(b) Upon ordering that any documents be withheld from public
disclosure, the Attorney General shall file a statement setting forth
the subject matter of the documents withheld. Any person desiring to
inspect the documents may file a request for inspection, identifying
with as much particularity as possible the materials to be inspected and
setting forth the reasons for inspection and the facts in support
thereof. The request for disclosure shall be considered by the Attorney
General, who shall give the applicant that submitted the documents an
opportunity to be heard in opposition to disclosure. Orders granting
inspection shall specify the terms and conditions thereof, including
restrictions on disclosure to third parties.
(c) Documents ordered withheld from public disclosure shall be made
available to the Assistant Attorney General in charge of the Antitrust
Division. If a hearing is held, the documents may be offered as evidence
by any party to whom they have been disclosed. The administrative law
judge may restrict further disclosure as he deems appropriate, taking
into account the considerations set forth in paragraph (a) of this
section.
(d) Requests for access to materials within the scope of this
section that may be filed after the conclusion of proceedings under
these regulations shall be processed in accordance with the Department's
regulations under 5 U.S.C. 552 (part 16 of this chapter).
Sec. 48.6 Public notice.
(a) Upon the filing of the documents required by Sec. 48.4, the
applicants shall file, and publish on the front pages of each of the
newspapers for which application is made, daily and Sunday (if a Sunday
edition is published) for a period of one week:
(1) Notice that a request for approval of a joint newspaper
operating arrangement has been filed with the Attorney General;
(2) Notice that copies of the proposed arrangement, as well as all
other documents submitted pursuant to Sec. 48.4, are available for
public inspection at the Department of Justice and at the main offices
of the newspapers involved; and
(3) Notice that any person may file written comments or a request
for a hearing with the Department of Justice, in accordance with the
requirements of Sec. 48.3.
(b) Upon the filing of the notice required in paragraph (a) of this
section, the Assistant Attorney General for Administration shall cause
notice to be published in the Federal Register, and shall cause to be
issued a press release setting forth the information contained therein.
(c) If a hearing is scheduled pursuant to Sec. 48.10, the applicants
shall publish the time, date, place and purpose of such hearing on their
respective front pages at least three times within the 2-week period
after the hearing has been scheduled (two times if the applicants are
weekly newspapers), and for the 3 days preceding such hearing (one day
during the week preceding the hearing if the applicants are weekly
newspapers).
(d) The applicants shall file copies of each day's newspaper in
which the notice required in paragraph (a) or (c) of this section has
appeared.
Sec. 48.7 Report of the Assistant Attorney General in Charge of the Antitrust Division.
(a) The Assistant Attorney General in charge of the Antitrust
Division shall, not later than 30 days from the publication in the
Federal Register of the notice required by Sec. 48.6, submit to the
Attorney General a report on any application filed pursuant to
Sec. 48.4. In preparing such report he may require submission by the
applicants of any further information which may be relevant to a
determination of whether
[[Page 30]]
approval of the proposed arrangement is warranted under the Act.
(b) In his report he may state (1) that the proposed arrangement
should be approved or disapproved without a hearing; or (2) that a
hearing should be held to resolve material issues of fact.
(c) The report shall be filed, and a copy shall be sent to the
applicants. Upon the filing of the report, the Assistant Attorney
General for Administration shall cause to be issued a press release
setting forth the substance thereof.
(d) Any person may, within 30 days after filing of the report, file
a reply to the report for the consideration of the Attorney General.
Sec. 48.8 Written comments and requests for a hearing.
(a) Any person who believes that the Attorney General should or
should not approve a proposed arrangement, may at any time after filing
of the application until 30 days after publication in the Federal
Register of the notice required in Sec. 48.6,
(1) File written comments stating the reasons why approval should or
should not be granted, and/or
(2) File a request that a hearing be held on the application. A
request for a hearing shall set forth the issues of fact to be
determined and the reasons that a hearing is required to determine them.
(b) Any person may within 30 days after the filing of any comment or
request pursuant to paragraph (a) of this section, file a reply for the
consideration of the Attorney General.
(c) After the expiration of the time for filing of replies in
accordance with Sec. 48.7 and this section the Attorney General shall
either approve or deny approval of the arrangement, in accordance with
Sec. 48.14, or shall order that a hearing be held.
Sec. 48.9 Extensions of time.
Any of the time periods established by these Regulations may be
extended for good cause, upon timely application to the Attorney
General, or to the administrative law judge if one has been appointed.
Sec. 48.10 Hearings.
(a) Upon the issuance by the Attorney General of an order for a
hearing, the Assistant Attorney General for Administration shall appoint
an administrative law judge in accordance with section 11 of the
Administrative Procedure Act, 5 U.S.C. 3105. The administrative law
judge shall:
(1) Set a date, time and place for the hearing convenient for all
parties involved. The date set shall be as soon as practicable, allowing
time for publication of the notice required in Sec. 48.6 and for a
reasonable period of discovery as provided in this section. In setting a
place for the hearing, preference shall be given to the community in
which the applicants' newspapers operate.
(2) Mail notice of the hearing to the parties, to each person who
filed written comments or a request for a hearing, and to any other
person he believes may have an interest in the proceeding.
(3) Permit discovery by any party, as provided in the Federal Rules
of Civil Procedure; except that he may place such limits as he deems
reasonable on the time and manner of taking discovery in order to avoid
unnecessary delays in the proceedings.
(4) Conduct a hearing in accordance with section 7 of the
Administrative Procedure Act, 5 U.S.C. 556. At such hearing, the burden
of proving that the proposed arrangement meets the requirements of the
Newspaper Preservation Act will be on the proponents of the arrangement.
The rules of evidence which govern civil proceedings in matters not
involving trial by jury in the courts of the United States shall apply,
but these rules may be relaxed if the ends of justice will be better
served in so doing: Provided, that the introduction of irrelevant,
immaterial, or unduly repetitious evidence is avoided. Only parties to
the proceedings may present evidence, or cross-examine witnesses.
(b) The applicants and the Assistant Attorney General in charge of
the Antitrust Division shall be parties in any hearing held hereunder.
Other persons may intervene as parties as provided in Sec. 48.11.
(c) The Assistant Attorney General for Administration shall procure
the
[[Page 31]]
services of a stenographic reporter. One copy of the transcript produced
shall be placed in the public docket. Additional copies may be purchased
from the reporter or, if the arrangement with the reporter permits, from
the Department of Justice at its cost.
(d) Following the hearing the administrative law judge shall render
to the Attorney General his recommendation that the proposed arrangement
be approved or denied approval in accordance with the standards of the
Act. The recommendation shall be in writing, shall be based solely on
the hearing record, and shall include a statement of the administrative
law judge's findings and conclusions, and the reasons or basis therefor,
on all material issues of fact, law or discretion presented on the
record. Copies of the recommendation shall be filed and sent to each
party.
(e) Within 30 days of the date the administrative law judge files
his recommendation, any party may file written exceptions to the
recommendation for consideration by the Attorney General. Parties shall
then have a further 15 days in which to file responses to any such
exceptions.
Sec. 48.11 Intervention in hearings.
(a) Any person may intervene as a party in a hearing held under
these regulations if (1) he has an interest which may be affected by the
Attorney General's decision, and (2) it appears that his interest may
not be adequately represented by existing parties.
(b) Application for intervention shall be made by filing in
accordance with Sec. 48.3(a) and (b), within 20 days after a hearing has
been ordered, a statement of the nature of the applicant's interest, the
way in which it may be affected, the facts and reasons in support
thereof and the reasons why the applicant's interest may not be
adequately represented by existing parties.
(c) Existing parties may file a statement in opposition to or in
support of an application to intervene within 10 days of the filing of
the application.
(d) Applications for intervention shall be decided by the Attorney
General.
(e) Intervenors shall have the same rights as existing parties in
connection with any hearing held under these regulations.
Sec. 48.12 Ex parte communications.
No person shall communicate on any matter related to these
proceedings with the administrative law judge, the Attorney General or
anyone having decisional responsibility, except as provided in these
regulations.
Sec. 48.13 Record for decision.
(a) The record on which the Attorney General shall base his decision
in the event a hearing is not held shall be comprised of all material
filed in accordance with these regulations, including any material that
has been ordered withheld from public disclosure.
(b) If a hearing is held, the record on which the Attorney General
shall base his decision shall consist exclusively of the hearing record,
the examiner's recommendation and any exceptions and responses filed
with respect thereto.
Sec. 48.14 Decision by the Attorney General.
(a) The Attorney General shall decide, on the basis of the record as
constituted in accordance with Sec. 48.13, whether approval is warranted
under the Act. In rendering his decision, the Attorney General shall
file therewith a statement of his findings and conclusions and the
reasons therefor, or where a hearing has been held, he may adopt the
findings and conclusions of the administrative law judge.
(b) Approval of a proposed arrangement by the Attorney General shall
not become effective until the tenth day after the filing of the
Attorney General's decision as provided in this section.
Sec. 48.15 Temporary approval.
(a) If the Attorney General concludes that one or more of the
newspapers involved would otherwise fail before the procedures under
these regulations can be completed, he may grant temporary approval of
whatever form of joint or unified action would be lawful under the Act
if performed as part of an approved joint newspaper operating
arrangement, and that he concludes is:
[[Page 32]]
(1) Essential to the survival of the newspaper or newspapers; and (2)
most likely capable of being terminated without impairment to the
ability of both newspapers to resume independent operation should final
approval eventually be denied.
(b) Upon the filing of a request for temporary approval, the
applicants shall publish notice of such application on the front pages
of their respective newspapers for a period of three consecutive days in
the case of daily newspapers or in the next issue in the case of weekly
newspapers. The notice shall state:
(1) That a request for temporary approval of a joint operating
arrangement or other joint or unified action has been made to the
Attorney General; and
(2) That anyone wishing to protest the application for temporary
approval may do so by delivering a statement of protest or telephoning
his views to an employee of the Department of Justice, whose name,
address and telephone number shall be designated by the Department upon
receipt of the application for temporary approval, and that such
protests must be received by the Department within five days of the
first publication of notice in accordance with paragraph (a) of this
section.
(c) The notice required by this section shall be in addition to the
notice required by Sec. 48.6.
(d) Such temporary approval may be granted without hearing at any
time following the expiration of the period provided for protests, but
shall create no presumption that final approval will be granted.
Sec. 48.16 Procedure for filing of terms of a renewal or amendment to an existing joint newspaper operating arrangement.
Within 30 days after a renewal of or an amendment to the terms of an
existing arrangement, the parties to said renewal or amendment shall
file five copies of the agreement of renewal or amendment. In the case
of an amendment, the parties shall also file copies of the amended
portion of the original agreement.
[Order No. 558-73, 39 FR 7, Jan. 2, 1974, as amended by Order No. 568-
74, 39 FR 18646, May 29, 1974]
PART 49--ANTITRUST CIVIL PROCESS ACT--Table of Contents
Sec.
49.1 Purpose.
49.2 Duties of custodian.
49.3 Examination of the material.
49.4 Deputy custodians.
Authority: 15 U.S.C. 1313.
Source: At 60 FR 44277, Aug. 25, 1995, unless otherwise noted.
Sec. 49.1 Purpose.
The regulations in this part are issued in compliance with the
requirements imposed by the provisions of section 4(c) of the Antitrust
Civil Process Act, as amended (15 U.S.C. 1313(c)). The terms used in
this part shall be deemed to have the same meaning as similar terms used
in that Act.
Sec. 49.2 Duties of custodian.
(a) Upon taking physical possession of documentary material, answers
to interrogatories, or transcripts of oral testimony delivered pursuant
to a civil investigative demand issued under section 3(a) of the Act,
the antitrust document custodian designated pursuant to section 4(a) of
the Act (subject to the general supervision of the Assistant Attorney
General in charge of the Antitrust Division), shall, unless otherwise
directed by a court of competent jurisdiction, select, from time to
time, from among such documentary material, answers to interrogatories
or transcripts of oral testimony, the documentary material, answers to
interrogatories or transcripts of oral testimony the copying of which
the custodian deems necessary or appropriate for the official use of the
Department of Justice, and shall determine, from time to time, the
number of copies of any such documentary material, answers to
interrogatories or transcripts of oral testimony that are to be
reproduced pursuant to the Act.
[[Page 33]]
(b) Copies of documentary material, answers to interrogatories, or
transcripts of oral testimony in the physical possession of the
custodian pursuant to a civil investigative demand may be reproduced by
or under the authority of any officer, employee, or agent of the
Department of Justice designated by the custodian. Documentary material
for which a civil investigative demand has been issued but which is
still in the physical possession of the person upon whom the demand has
been served may, by agreement between such person and the custodian, be
reproduced by such person, in which case the custodian may require that
the copies so produced be duly certified as true copies of the original
of the material involved.
[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]
Sec. 49.3 Examination of the material.
Documentary material, answers to interrogatories, or transcripts of
oral testimony produced pursuant to the Act, while in the custody of the
custodian, shall be for the official use of officers, employees, and
agents of the Department of Justice in accordance with the Act. Upon
reasonable notice to the custodian--
(a) Such documentary material or answers to interrogatories shall be
made available for examination by the person who produced such
documentary material or answers to interrogatories, or by any duly
authorized representative of such person; and
(b) Such transcripts of oral testimony shall be made available for
examination by the person who produced such testimony, or by such
person's counsel, during regular office hours established for the
Department of Justice. Examination of such documentary material, answers
to interrogatories, or transcripts of oral testimony at other times may
be authorized by the Assistant Attorney General or the custodian.
[60 FR 44277, Aug. 25, 1995; 60 FR 61290, Nov. 29, 1995]
Sec. 49.4 Deputy custodians.
Deputy custodians may perform such of the duties assigned to the
custodian as may be authorized or required by the Assistant Attorney
General.
PART 50--STATEMENTS OF POLICY--Table of Contents
Sec.
50.2 Release of information by personnel of the Department of Justice
relating to criminal and civil proceedings.
50.3 Guidelines for the enforcement of title VI, Civil Rights Act of
1964.
50.5 Notification of Consular Officers upon the arrest of foreign
nationals.
50.6 Antitrust Division business review procedure.
50.7 Consent judgments in actions to enjoin discharges of pollutants.
50.8 [Reserved]
50.9 Policy with regard to open judicial proceedings.
50.10 Policy with regard to the issuance of subpoenas to members of the
news media, subpoenas for telephone toll records of members of
the news media, and the interrogation, indictment, or arrest
of, members of the news media.
50.12 Exchange of FBI identification records.
50.14 Guidelines on employee selection procedures.
50.15 Representation of Federal officials and employees by Department
of Justice attorneys or by private counsel furnished by the
Department in civil, criminal, and congressional proceedings
in which Federal employees are sued, subpoenaed, or charged in
their individual capacities.
50.16 Representation of Federal employees by private counsel at Federal
expense.
50.17 Ex parte communications in informal rulemaking proceedings.
50.18 [Reserved]
50.19 Procedures to be followed by government attorneys prior to filing
recusal or disqualification motions.
50.20 Participation by the United States in court-annexed arbitration.
50.21 Procedures governing the destruction of contraband drug evidence
in the custody of Federal law enforcement authorities.
50.22 Young American Medals Program.
50.23 Policy against entering into final settlement agreements or
consent decree that are subject to confidentiality provisions
and against seeking or concurring in the sealing of such
documents.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1921 et
seq., 1973c.
[[Page 34]]
Sec. 50.2 Release of information by personnel of the Department of Justice relating to criminal and civil proceedings.
(a) General. (1) The availability to news media of information in
criminal and civil cases is a matter which has become increasingly a
subject of concern in the administration of justice. The purpose of this
statement is to formulate specific guidelines for the release of such
information by personnel of the Department of Justice.
(2) While the release of information for the purpose of influencing
a trial is, of course, always improper, there are valid reasons for
making available to the public information about the administration of
the law. The task of striking a fair balance between the protection of
individuals accused of crime or involved in civil proceedings with the
Government and public understandings of the problems of controlling
crime and administering government depends largely on the exercise of
sound judgment by those responsible for administering the law and by
representatives of the press and other media.
(3) Inasmuch as the Department of Justice has generally fulfilled
its responsibilities with awareness and understanding of the competing
needs in this area, this statement, to a considerable extent, reflects
and formalizes the standards to which representatives of the Department
have adhered in the past. Nonetheless, it will be helpful in ensuring
uniformity of practice to set forth the following guidelines for all
personnel of the Department of Justice.
(4) Because of the difficulty and importance of the questions they
raise, it is felt that some portions of the matters covered by this
statement, such as the authorization to make available Federal
conviction records and a description of items seized at the time of
arrest, should be the subject of continuing review and consideration by
the Department on the basis of experience and suggestions from those
within and outside the Department.
(b) Guidelines to criminal actions. (1) These guidelines shall apply
to the release of information to news media from the time a person is
the subject of a criminal investigation until any proceeding resulting
from such an investigation has been terminated by trial or otherwise.
(2) At no time shall personnel of the Department of Justice furnish
any statement or information for the purpose of influencing the outcome
of a defendant's trial, nor shall personnel of the Department furnish
any statement or information, which could reasonably be expected to be
disseminated by means of public communication, if such a statement or
information may reasonably be expected to influence the outcome of a
pending or future trial.
(3) Personnel of the Department of Justice, subject to specific
limitations imposed by law or court rule or order, may make public the
following information:
(i) The defendant's name, age, residence, employment, marital
status, and similar background information.
(ii) The substance or text of the charge, such as a complaint,
indictment, or information.
(iii) The identity of the investigating and/or arresting agency and
the length or scope of an investigation.
(iv) The circumstances immediately surrounding an arrest, including
the time and place of arrest, resistance, pursuit, possession and use of
weapons, and a description of physical items seized at the time of
arrest.
Disclosures should include only incontrovertible, factual matters, and
should not include subjective observations. In addition, where
background information or information relating to the circumstances of
an arrest or investigation would be highly prejudicial or where the
release thereof would serve no law enforcement function, such
information should not be made public.
(4) Personnel of the Department shall not disseminate any
information concerning a defendant's prior criminal record.
(5) Because of the particular danger of prejudice resulting from
statements in the period approaching and during trial, they ought
strenuously to be avoided during that period. Any such statement or
release shall be made only on the infrequent occasion when circumstances
absolutely demand a
[[Page 35]]
disclosure of information and shall include only information which is
clearly not prejudicial.
(6) The release of certain types of information generally tends to
create dangers of prejudice without serving a significant law
enforcement function. Therefore, personnel of the Department should
refrain from making available the following:
(i) Observations about a defendant's character.
(ii) Statements, admissions, confessions, or alibis attributable to
a defendant, or the refusal or failure of the accused to make a
statement.
(iii) Reference to investigative procedures such as fingerprints,
polygraph examinations, ballistic tests, or laboratory tests, or to the
refusal by the defendant to submit to such tests or examinations.
(iv) Statements concerning the identity, testimony, or credibility
of prospective witnesses.
(v) Statements concerning evidence or argument in the case, whether
or not it is anticipated that such evidence or argument will be used at
trial.
(vi) Any opinion as to the accused's guilt, or the possibility of a
plea of guilty to the offense charged, or the possibility of a plea to a
lesser offense.
(7) Personnel of the Department of Justice should take no action to
encourage or assist news media in photographing or televising a
defendant or accused person being held or transported in Federal
custody. Departmental representatives should not make available
photographs of a defendant unless a law enforcement function is served
thereby.
(8) This statement of policy is not intended to restrict the release
of information concerning a defendant who is a fugitive from justice.
(9) Since the purpose of this statement is to set forth generally
applicable guidelines, there will, of course, be situations in which it
will limit the release of information which would not be prejudicial
under the particular circumstances. If a representative of the
Department believes that in the interest of the fair administration of
justice and the law enforcement process information beyond these
guidelines should be released, in a particular case, he shall request
the permission of the Attorney General or the Deputy Attorney General to
do so.
(c) Guidelines to civil actions. Personnel of the Department of
Justice associated with a civil action shall not during its
investigation or litigation make or participate in making an
extrajudicial statement, other than a quotation from or reference to
public records, which a reasonable person would expect to be
disseminated by means of public communication if there is a reasonable
likelihood that such dissemination will interfere with a fair trial and
which relates to:
(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal records of a party,
witness, or prospective witness.
(3) The performance or results of any examinations or tests or the
refusal or failure of a party to submit to such.
(4) An opinion as to the merits of the claims or defenses of a
party, except as required by law or administrative rule.
(5) Any other matter reasonably likely to interfere with a fair
trial of the action.
[Order No. 469-71, 36 FR 21028, Nov. 3, 1971, as amended by Order No.
602-75, 40 FR 22119, May 20, 1975]
Sec. 50.3 Guidelines for the enforcement of title VI, Civil Rights Act of 1964.
(a) Where the heads of agencies having responsibilities under title
VI of the Civil Rights Act of 1964 conclude there is noncompliance with
regulations issued under that title, several alternative courses of
action are open. In each case, the objective should be to secure prompt
and full compliance so that needed Federal assistance may commence or
continue.
(b) Primary responsibility for prompt and vigorous enforcement of
title VI rests with the head of each department and agency administering
programs of Federal financial assistance. Title VI itself and relevant
Presidential directives preserve in each agency the authority and the
duty to select, from among the available sanctions, the methods best
designed to secure compliance in individual cases. The decision to
terminate or refuse assistance
[[Page 36]]
is to be made by the agency head or his designated representative.
(c) This statement is intended to provide procedural guidance to the
responsible department and agency officials in exercising their
statutory discretion and in selecting, for each noncompliance situation,
a course of action that fully conforms to the letter and spirit of
section 602 of the Act and to the implementing regulations promulgated
thereunder.
I. Alternative Courses of Action
a. ultimate sanctions
The ultimate sanctions under title VI are the refusal to grant an
application for assistance and the termination of assistance being
rendered. Before these sanctions may be invoked, the Act requires
completion of the procedures called for by section 602. That section
require the department or agency concerned (1) to determine that
compliance cannot be secured by voluntary means, (2) to consider
alternative courses of action consistent with achievement of the
objectives of the statutes authorizing the particular financial
assistance, (3) to afford the applicant an opportunity for a hearing,
and (4) to complete the other procedural steps outlined in section 602,
including notification to the appropriate committees of the Congress.
In some instances, as outlined below, it is legally permissible
temporarily to defer action on an application for assistance, pending
initiation and completion of section 602 procedures--including attempts
to secure voluntary compliance with title VI. Normally, this course of
action is appropriate only with respect to applications for
noncontinuing assistance or initial applications for programs of
continuing assistance. It is not available where Federal financial
assistance is due and payable pursuant to a previously approved
application.
Whenever action upon an application is deferred pending the outcome
of a hearing and subsequent section 602 procedures, the efforts to
secure voluntary compliance and the hearing and such subsequent
procedures, if found necessary, should be conducted without delay and
completed as soon as possible.
b. available alternatives
1. Court Enforcement
Compliance with the nondiscrimination mandate of title VI may often
be obtained more promptly by appropriate court action than by hearings
and termination of assistance. Possibilities of judicial enforcement
include (1) a suit to obtain specific enforcement of assurances,
covenants running with federally provided property, statements or
compliance or desegregation plans filed pursuant to agency regulations,
(2) a suit to enforce compliance with other titles of the 1964 Act,
other Civil Rights Acts, or constitutional or statutory provisions
requiring nondiscrimination, and (3) initiation of, or intervention or
other participation in, a suit for other relief designed to secure
compliance.
The possibility of court enforcement should not be rejected without
consulting the Department of Justice. Once litigation has been begun,
the affected agency should consult with the Department of Justice before
taking any further action with respect to the noncomplying party.
2. Administrative Action
A number of effective alternative courses not involving litigation
may also be available in many cases. These possibilities include (1)
consulting with or seeking assistance from other Federal agencies (such
as the Contract Compliance Division of the Department of Labor) having
authority to enforce nondiscrimination requirements; (2) consulting with
or seeking assistance from State or local agencies having such
authority; (3) bypassing a recalcitrant central agency applicant in
order to obtain assurances from, or to grant assistance to complying
local agencies; and (4) bypassing all recalcitrant non-Federal agencies
and providing assistance directly to the complying ultimate
beneficiaries. The possibility of utilizing such administrative
alternatives should be considered at all stages of enforcement and used
as appropriate or feasible.
c. inducing voluntary compliance
Title VI requires that a concerted effort be made to persuade any
noncomplying applicant or recipient voluntarily to comply with title VI.
Efforts to secure voluntary compliance should be undertaken at the
outset in every noncompliance situation and should be pursued through
each stage of enforcement action. Similarly, where an applicant fails to
file an adequate assurance or apparently breaches its terms, notice
should be promptly given of the nature of the noncompliance problem and
of the possible consequences thereof, and an immediate effort made to
secure voluntary compliance.
II. Procedures
a. new applications
The following procedures are designed to apply in cases of
noncompliance involving applications for one-time or noncontinuing
assistance and initial applications for new or existing programs of
continuing assistance.
1. Where the Requisite Assurance Has Not Been Filed or is Inadequate on
its Face.
Where the assurance, statement of compliance or plan of
desegregation required by
[[Page 37]]
agency regulations has not been filed or where, in the judgment of the
head of the agency in question, the filed assurance fails on its face to
satisfy the regulations, the agency head should defer action on the
application pending prompt initiation and completion of section 602
procedures. The applicant should be notified immediately and attempts
made to secure voluntary compliance. If such efforts fail, the applicant
should promptly be offered a hearing for the purpose of determining
whether an adequate assurance has in fact been filed.
If it is found that an adequate assurance has not been filed, and if
administrative alternatives are ineffective or inappropriate, and court
enforcement is not feasible, section 602 procedures may be completed and
assistance finally refused.
2. Where it Appears that the Field Assurance Is Untrue or Is Not Being
Honored.
Where an otherwise adequate assurance, statement of compliance, or
plan has been filed in connection with an application for assistance,
but prior to completion of action on the application the head of the
agency in question has reasonable grounds, based on a substantiated
complaint, the agency's own investigation, or otherwise, to believe that
the representations as to compliance are in some material respect untrue
or are not being honored, the agency head may defer action on the
application pending prompt initiation and completion of section 602
procedures. The applicant should be notified immediately and attempts
made to secure voluntary compliance. If such efforts fail and court
enforcement is determined to be ineffective or inadequate, a hearing
should be promptly initiated to determine whether, in fact, there is
noncompliance.
If noncompliance is found, and if administrative alternatives are
ineffective or inappropriate and court enforcement is still not
feasible, section 602 procedures may be completed and assistance finally
refused.
The above-described deferral and related compliance procedures would
normally be appropriate in cases of an application for noncontinuing
assistance. In the case of an initial application for a new or existing
program of continuing assistance, deferral would often be less
appropriate because of the opportunity to secure full compliance during
the life of the assistance program. In those cases in which the agency
does not defer action on the application, the applicant should be given
prompt notice of the asserted noncompliance; funds should be paid out
for short periods only, with no long-term commitment of assistance
given; and the applicant advised that acceptance of the funds carries an
enforceable obligation of nondiscrimination and the risk of invocation
of severe sanctions, if noncompliance in fact is found.
b. requests for continuation or renewal of assistance
The following procedures are designed to apply in cases of
noncompliance involving all submissions seeking continuation or renewal
under programs of continuing assistance.
In cases in which commitments for Federal financial assistance have
been made prior to the effective date of title VI regulations and funds
have not been fully disbursed, or in which there is provision for future
periodic payments to continue the program or activity for which a
present recipient has previously applied and qualified, or in which
assistance is given without formal application pursuant to statutory
direction or authorization, the responsible agency may nonetheless
require an assurance, statement of compliance, or plan in connection
with disbursement or further funds. However, once a particular program
grant or loan has been made or an application for a certain type of
assistance for a specific or indefinite period has been approved, no
funds due and payable pursuant to that grant, loan, or application, may
normally be deferred or withheld without first completing the procedures
prescribed in section 602.
Accordingly, where the assurance, statement of compliance, or plan
required by agency regulations has not been filed or where, in the
judgment of the head of the agency in question, the filed assurance
fails on its face to satisfy the regulations, or there is reasonable
cause to believe it untrue or not being honored, the agency head should,
if efforts to secure voluntary compliance are unsuccessful, promptly
institute a hearing to determine whether an adequate assurance has in
fact been filed, or whether, in fact, there is noncompliance, as the
case may be. There should ordinarily be no deferral of action on the
submission or withholding of funds in this class of cases, although the
limitation of the payout of funds to short periods may appropriately be
ordered. If noncompliance is found, and if administrative alternatives
are ineffective or inappropriate and court enforcement is not feasible,
section 602 procedures may be completed and assistance terminated.
c. short-term programs
Special procedures may sometimes be required where there is
noncompliance with title VI regulations in connection with a program of
such short total duration that all assistance funds will have to be paid
out before the agency's usual administrative procedures can be completed
and where deferral in accordance with these guidelines would be
tantamount to a final refusal to grant assistance.
In such a case, the agency head may, although otherwise following
these guidelines,
[[Page 38]]
suspend normal agency procedures and institute expedited administrative
proceedings to determine whether the regulations have been violated. He
should simultaneously refer the matter to the Department of Justice for
consideration of possible court enforcement, including interim
injunctive relief. Deferral of action on an application is appropriate,
in accordance with these guidelines, for a reasonable period of time,
provided such action is consistent with achievement of the objectives of
the statute authorizing the financial assistance in connection with the
action taken. As in other cases, where noncompliance is found in the
hearing proceeding, and if administrative alternatives are ineffective
or inappropriate and court enforcement is not feasible, section 602
procedures may be completed and assistance finally refused.
III. Procedures in Cases of Subgrantees
In situations in which applications for Federal assistance are
approved by some agency other than the Federal granting agency, the same
rules and procedures would apply. Thus, the Federal Agency should
instruct the approving agency--typically a State agency--to defer
approval or refuse to grant funds, in individual cases in which such
action would be taken by the original granting agency itself under the
above procedures. Provision should be made for appropriate notice of
such action to the Federal agency which retains responsibility for
compliance with section 602 procedures.
IV. Exceptional Circumstances
The Attorney General should be consulted in individual cases in
which the head of an agency believes that the objectives of title VI
will be best achieved by proceeding other than as provided in these
guidelines.
V. Coordination
While primary responsibility for enforcement of title VI rests
directly with the head of each agency, in order to assure coordination
of title VI enforcement and consistency among agencies, the Department
of Justice should be notified in advance of applications on which action
is to be deferred, hearings to be scheduled, and refusals and
terminations of assistance or other enforcement actions or procedures to
be undertaken. The Department also should be kept advised of the
progress and results of hearings and other enforcement actions.
[31 FR 5292, Apr. 2, 1966]
Sec. 50.5 Notification of Consular Officers upon the arrest of foreign nationals.
(a) This statement is designed to establish a uniform procedure for
consular notification where nationals of foreign countries are arrested
by officers of this Department on charges of criminal violations. It
conforms to practice under international law and in particular
implements obligations undertaken by the United States pursuant to
treaties with respect to the arrest and detention of foreign nationals.
Some of the treaties obligate the United States to notify the consular
officer only upon the demand or request of the arrested foreign
national. On the other hand, some of the treaties require notifying the
consul of the arrest of a foreign national whether or not the arrested
person requests such notification.
(1) In every case in which a foreign national is arrested the
arresting officer shall inform the foreign national that his consul will
be advised of his arrest unless he does not wish such notification to be
given. If the foreign national does not wish to have his consul
notified, the arresting officer shall also inform him that in the event
there is a treaty in force between the United States and his country
which requires such notification, his consul must be notified regardless
of his wishes and, if such is the case, he will be advised of such
notification by the U.S. Attorney.
(2) In all cases (including those where the foreign national has
stated that he does not wish his consul to be notified) the local office
of the Federal Bureau of Investigation or the local Marshal's office, as
the case may be, shall inform the nearest U.S. Attorney of the arrest
and of the arrested person's wishes regarding consular notification.
(3) The U.S. Attorney shall then notify the appropriate consul
except where he has been informed that the foreign national does not
desire such notification to be made. However, if there is a treaty
provision in effect which requires notification of consul, without
reference to a demand or request of the arrested national, the consul
shall be notified even if the arrested person has asked that he not be
notified. In such case, the U.S. Attorney shall advise the foreign
national that his consul has been notified and inform him that
notification was necessary because of the treaty obligation.
[[Page 39]]
(b) The procedure prescribed by this statement shall not apply to
cases involving arrests made by the Immigration and Naturalization
Service in administrative expulsion or exclusion proceedings, since that
Service has heretofore established procedures for the direct
notification of the appropriate consular officer upon such arrest. With
respect to arrests made by the Service for violations of the criminal
provisions of the immigration laws, the U.S. Marshal, upon delivery of
the foreign national into his custody, shall be responsible for
informing the U.S. Attorney of the arrest in accordance with numbered
paragraph 2 of this statement.
[Order No. 375-67, 32 FR 1040, Jan. 28, 1967]
Sec. 50.6 Antitrust Division business review procedure.
Although the Department of Justice is not authorized to give
advisory opinions to private parties, for several decades the Antitrust
Division has been willing in certain circumstances to review proposed
business conduct and state its enforcement intentions. This originated
with a ``railroad release'' procedure under which the Division would
forego the initiation of criminal antitrust proceedings. The procedure
was subsequently expanded to encompass a ``merger clearance'' procedure
under which the Division would state its present enforcement intention
with respect to a merger or acquisition; and the Department issued a
written statement entitled ``Business Review Procedure.'' That statement
has been revised several times.
1. A request for a business review letter must be submitted in
writing to the Assistant Attorney General, Antitrust Division,
Department of Justice, Washington, DC 20530.
2. The Division will consider only requests with respect to proposed
business conduct, which may involve either domestic or foreign commerce.
3. The Division may, in its discretion, refuse to consider a
request.
4. A business review letter shall have no application to any party
which does not join in the request therefor.
5. The requesting parties are under an affirmative obligation to
make full and true disclosure with respect to the business conduct for
which review is requested. Each request must be accompanied by all
relevant data including background information, complete copies of all
operative documents and detailed statements of all collateral oral
understandings, if any. All parties requesting the review letter must
provide the Division with whatever additional information or documents
the Division may thereafter request in order to review the matter. Such
additional information, if furnished orally, shall be promptly confirmed
in writing. In connection with any request for review the Division will
also conduct whatever independent investigation it believes is
appropriate.
6. No oral clearance, release or other statement purporting to bind
the enforcement discretion of the Division may be given. The requesting
party may rely upon only a written business review letter signed by the
Assistant Attorney General in charge of the Antitrust Division or his
delegate.
7. (a) If the business conduct for which review is requested is
subject to approval by a regulatory agency, a review request may be
considered before agency approval has been obtained only where it
appears that exceptional and unnecessary burdens might otherwise be
imposed on the party or parties requesting review, or where the agency
specifically requests that a party or parties request review. However,
any business review letter issued in these as in any other circumstances
will state only the Department's present enforcement intentions under
the antitrust laws. It shall in no way be taken to indicate the
Department's views on the legal or factual issues that may be raised
before the regulatory agency, or in an appeal from the regulatory
agency's decision. In particular, the issuance of such a letter is not
to be represented to mean that the Division believes that there are no
anticompetitive consequences warranting agency consideration.
(b) The submission of a request for a business review, or its
pendency, shall in no way alter any responsibility of any party to
comply with the Premerger Notification provisions of the Antitrust
Improvements Act of 1976, 15 U.S.C. 18A, and the regulations promulgated
thereunder, 16 CFR, part 801.
8. After review of a request submitted hereunder the Division may:
state its present enforcement intention with respect to the proposed
business conduct; decline to pass on the request; or take such other
position or action as it considers appropriate.
9. A business review letter states only the enforcement intention of
the Division as of the date of the letter, and the Division remains
completely free to bring whatever action or proceeding it subsequently
comes to believe is required by the public interest. As to a stated
present intention not to bring an action, however, the Division has
never exercised its right to bring a criminal action
[[Page 40]]
where there has been full and true disclosure at the time of presenting
the request.
10. (a) Simultaneously upon notifying the requesting party of and
Division action described in paragraph 8, the business review request,
and the Division's letter in response shall be indexed and placed in a
file available to the public upon request.
(b) On that date or within thirty days after the date upon which the
Division takes any action as described in paragraph 8, the information
supplied to support the business review request and any other
information supplied by the requesting party in connection with the
transaction that is the subject of the business review request, shall be
indexed and placed in a file with the request and the Division's letter,
available to the public upon request. This file shall remain open for
one year, after which time it shall be closed and the documents either
returned to the requesting party or otherwise disposed of, at the
discretion of the Antitrust Division.
(c) Prior to the time the information described in subparagraphs (a)
and (b) is indexed and made publicly available in accordance with the
terms of that subparagraph, the requesting party may ask the Division to
delay making public some or all of such information. However the
requesting party must: (1) Specify precisely the documents or parts
thereof that he asks not be made public; (2) state the minimum period of
time during which nondisclosure is considered necessary; and (3) justify
the request for non-disclosure, both as to content and time, by showing
good cause therefor, including a showing that disclosure would have a
detrimental effect upon the requesting party's operations or
relationships with actual or potential customers, employees, suppliers
(including suppliers of credit), stockholders, or competitors. The
Department of Justice, in its discretion, shall make the final
determination as to whether good cause for non-disclosure has been
shown.
(d) Nothing contained in subparagraphs (a), (b) and (c) shall limit
the Division's right, in its discretion, to issue a press release
describing generally the identity of the requesting party or parties and
the nature of action taken by the Division upon the request.
(e) This paragraph reflects a policy determination by the Justice
Department and is subject to any limitations on public disclosure
arising from statutory restrictions, Executive Order, or the national
interest.
11. Any requesting party may withdraw a request for review at any
time. The Division remains free, however, to submit such comments to
such requesting party as it deems appropriate. Failure to take action
after receipt of documents or information whether submitted pursuant to
this procedure or otherwise, does not in any way limit or stop the
Division from taking such action at such time thereafter as it deems
appropriate. The Division reserves the right to retain documents
submitted to it under this procedure or otherwise and to use them for
all governmental purposes.
[42 FR 11831, Mar. 1, 1977]
Sec. 50.7 Consent judgments in actions to enjoin discharges of pollutants.
(a) It is hereby established as the policy of the Department of
Justice to consent to a proposed judgment in an action to enjoin
discharges of pollutants into the environment only after or on condition
that an opportunity is afforded persons (natural or corporate) who are
not named as parties to the action to comment on the proposed judgment
prior to its entry by the court.
(b) To effectuate this policy, each proposed judgment which is
within the scope of paragraph (a) of this section shall be lodged with
the court as early as feasible but at least 30 days before the judgment
is entered by the court. Prior to entry of the judgment, or some earlier
specified date, the Department of Justice will receive and consider, and
file with the court, any written comments, views or allegations relating
to the proposed judgment. The Department shall reserve the right (1) to
withdraw or withhold its consent to the proposed judgment if the
comments, views and allegations concerning the judgment disclose facts
or considerations which indicate that the proposed judgment is
inappropriate, improper or inadequate and (2) to oppose an attempt by
any person to intervene in the action.
(c) The Assistant Attorney General in charge of the Land and Natural
Resources Division may establish procedures for implementing this
policy. Where it is clear that the public interest in the policy hereby
established is not compromised, the Assistant Attorney General may
permit an exception to this policy in a specific case where
extraordinary circumstances require a period shorter than 30 days or a
procedure other than stated herein.
[Order No. 529-73, 38 FR 19029, July 17, 1973]
[[Page 41]]
Sec. 50.8 [Reserved]
Sec. 50.9 Policy with regard to open judicial proceedings.
Because of the vital public interest in open judicial proceedings,
the Government has a general overriding affirmative duty to oppose their
closure. There is, moreover, a strong presumption against closing
proceedings or portions thereof, and the Department of Justice foresees
very few cases in which closure would be warranted. The Government
should take a position on any motion to close a judicial proceeding, and
should ordinarily oppose closure; it should move for or consent to
closed proceedings only when closure is plainly essential to the
interests of justice. In furtherance of the Department's concern for the
right of the public to attend judicial proceedings and the Department's
obligation to the fair administration of justice, the following
guidelines shall be adhered to by all attorneys for the United States.
(a) These guidelines apply to all federal trials, pre- and post-
trial evidentiary proceedings, arraignments, bond hearings, plea
proceedings, sentencing proceedings, or portions thereof, except as
indicated in paragraph (e) of this section.
(b) A Government attorney has a compelling duty to protect the
societal interest in open proceedings.
(c) A Government attorney shall not move for or consent to closure
of a proceeding covered by these guidelines unless:
(1) No reasonable alternative exists for protecting the interests at
stake;
(2) Closure is clearly likely to prevent the harm sought to be
avoided;
(3) The degree of closure is minimized to the greatest extent
possible;
(4) The public is given adequate notice of the proposed closure;
and, in addition, the motion for closure is made on the record, except
where the disclosure of the details of the motion papers would clearly
defeat the reason for closure specified under paragraph (c)(6) of this
section;
(5) Transcripts of the closed proceedings will be unsealed as soon
as the interests requiring closure no longer obtain; and
(6) Failure to close the proceedings will produce;
(i) A substantial likelihood of denial of the right of any person to
a fair trial; or
(ii) A substantial likelihood of imminent danger to the safety of
parties, witnesses, or other persons; or
(iii) A substantial likelihood that ongoing investigations will be
seriously jeopardized.
(d) A government attorney shall not move for or consent to the
closure of any proceeding, civil or criminal, except with the express
authorization of:
(1) The Deputy Attorney General, or,
(2) The Associate Attorney General, if the Division seeking
authorization is under the supervision of the Associate Attorney
General.
(e) These guidelines do not apply to:
(1) The closure of part of a judicial proceeding where necessary to
protect national security information or classified documents; or
(2) In camera inspection, consideration or sealing of documents,
including documents provided to the Government under a promise of
confidentiality, where permitted by statute, rule of evidence or
privilege; or
(3) Grand jury proceedings or proceedings ancillary thereto; or
(4) Conferences traditionally held at the bench or in chambers
during the course of an open proceeding; or
(5) The closure of judicial proceedings pursuant to 18 U.S.C. 3509
(d) and (e) for the protection of child victims or child witnesses.
(f) Because of the vital public interest in open judicial
proceedings, the records of any proceeding closed pursuant to this
section, and still sealed 60 days after termination of the proceeding,
shall be reviewed to determine if the reasons for closure are still
applicable. If they are not, an appropriate motion will be made to have
the records unsealed. If the reasons for closure are still applicable
after 60 days, this review is to be repeated every 60 days until such
time as the records are unsealed. Compliance with this section will be
monitored by the Criminal Division.
(g) The principles set forth in this section are intended to provide
guidance to attorneys for the Government
[[Page 42]]
and are not intended to create or recognize any legally enforceable
right in any person.
[Order No. 914-80, 45 FR 69214, Oct. 20, 1980, as amended by Order No.
1031-83, 48 FR 49509, Oct. 26, 1983; Order No. 1115-85, 50 FR 51677,
Dec. 19, 1985; Order No. 1507-91, 56 FR 32327, July 16, 1991]
Sec. 50.10 Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll records of members of the news media, and
the interrogation, indictment, or arrest of, members of the
news media.
Because freedom of the press can be no broader than the freedom of
reporters to investigate and report the news, the prosecutorial power of
the government should not be used in such a way that it impairs a
reporter's responsibility to cover as broadly as possible controversial
public issues. This policy statement is thus intended to provide
protection for the news media from forms of compulsory process, whether
civil or criminal, which might impair the news gathering function. In
balancing the concern that the Department of Justice has for the work of
the news media and the Department's obligation to the fair
administration of justice, the following guidelines shall be adhered to
by all members of the Department in all cases:
(a) In determining whether to request issuance of a subpoena to a
member of the news media, or for telephone toll records of any member of
the news media, the approach in every case must be to strike the proper
balance between the public's interest in the free dissemination of ideas
and information and the public's interest in effective law enforcement
and the fair administration of justice.
(b) All reasonable attempts should be made to obtain information
from alternative sources before considering issuing a subpoena to a
member of the news media, and similarly all reasonable alternative
investigative steps should be taken before considering issuing a
subpoena for telephone toll records of any member of the news media.
(c) Negotiations with the media shall be pursued in all cases in
which a subpoena to a member of the news media is contemplated. These
negotiations should attempt to accommodate the interests of the trial or
grand jury with the interests of the media. Where the nature of the
investigation permits, the government should make clear what its needs
are in a particular case as well as its willingness to respond to
particular problems of the media.
(d) Negotiations with the affected member of the news media shall be
pursued in all cases in which a subpoena for the telephone toll records
of any member of the news media is contemplated where the responsible
Assistant Attorney General determines that such negotiations would not
pose a substantial threat to the integrity of the investigation in
connection with which the records are sought. Such determination shall
be reviewed by the Attorney General when considering a subpoena
authorized under paragraph (e) of this section.
(e) No subpoena may be issued to any member of the news media or for
the telephone toll records of any member of the news media without the
express authorization of the Attorney General: Provided, That, if a
member of the news media with whom negotiations are conducted under
paragraph (c) of this section expressly agrees to provide the material
sought, and if that material has already been published or broadcast,
the United States Attorney or the responsible Assistant Attorney
General, after having been personally satisfied that the requirements of
this section have been met, may authorize issuance of the subpoena and
shall thereafter submit to the Office of Public Affairs a report
detailing the circumstances surrounding the issuance of the subpoena.
(f) In requesting the Attorney General's authorization for a
subpoena to a member of the news media, the following principles will
apply:
(1) In criminal cases, there should be reasonable grounds to
believe, based on information obtained from nonmedia sources, that a
crime has occurred, and
[[Page 43]]
that the information sought is essential to a successful investigation--
particularly with reference to directly establishing guilt or innocence.
The subpoena should not be used to obtain peripheral, nonessential, or
speculative information.
(2) In civil cases there should be reasonable grounds, based on
nonmedia sources, to believe that the information sought is essential to
the successful completion of the litigation in a case of substantial
inportance. The subpoena should not be used to obtain peripheral,
nonessential, or speculative information.
(3) The government should have unsuccessfully attempted to obtain
the information from alternative nonmedia sources.
(4) The use of subpoenas to members of the news media should, except
under exigent circumstances, be limited to the verification of published
information and to such surrounding circumstances as relate to the
accuracy of the published information.
(5) Even subpoena authorization requests for publicly disclosed
information should be treated with care to avoid claims of harassment.
(6) Subpoenas should, wherever possible, be directed at material
information regarding a limited subject matter, should cover a
reasonably limited period of time, and should avoid requiring production
of a large volume of unpublished material. They should give reasonable
and timely notice of the demand for documents.
(g) In requesting the Attorney General's authorization for a
subpoena for the telephone toll records of members of the news media,
the following principles will apply:
(1) There should be reasonable ground to believe that a crime has
been committed and that the information sought is essential to the
successful investigation of that crime. The subpoena should be as
narrowly drawn as possible; it should be directed at relevant
information regarding a limited subject matter and should cover a
reasonably limited time period. In addition, prior to seeking the
Attorney General's authorization, the government should have pursued all
reasonable alternative investigation steps as required by paragraph (b)
of this section.
(2) When there have been negotiations with a member of the news
media whose telephone toll records are to be subpoenaed, the member
shall be given reasonable and timely notice of the determination of the
Attorney General to authorize the subpoena and that the government
intends to issue it.
(3) When the telephone toll records of a member of the news media
have been subpoenaed without the notice provided for in paragraph (e)(2)
of this section, notification of the subpoena shall be given the member
of the news media as soon thereafter as it is determined that such
notification will no longer pose a clear and substantial threat to the
integrity of the investigation. In any event, such notification shall
occur within 45 days of any return made pursuant to the subpoena, except
that the responsible Assistant Attorney General may authorize delay of
notification for no more than an additional 45 days.
(4) Any information obtained as a result of a subpoena issued for
telephone toll records shall be closely held so as to prevent disclosure
of the information to unauthorized persons or for improper purposes.
(h) No member of the Department shall subject a member of the news
media to questioning as to any offense which he is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of a news story, or while engaged in the performance of
his official duties as a member of the news media, without the express
authority of the Attorney General: Provided, however, That where exigent
circumstances preclude prior approval, the requirements of paragraph (l)
of this section shall be observed.
(i) A member of the Department shall secure the express authority of
the Attorney General before a warrant for an arrest is sought, and
whenever possible before an arrest not requiring a warrant, of a member
of the news media for any offense which he is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of a news story, or while engaged in the performance of
his official duties as a member of the news media.
[[Page 44]]
(j) No member of the Department shall present information to a grand
jury seeking a bill of indictment, or file an information, against a
member of the news media for any offense which he is suspected of having
committed in the course of, or arising out of, the coverage or
investigation of a news story, or while engaged in the performance of
his official duties as a member of the news media, without the express
authority of the Attorney General.
(k) In requesting the Attorney General's authorization to question,
to arrest or to seek an arrest warrant for, or to present information to
a grand jury seeking a bill of indictment or to file an information
against, a member of the news media for an offense which he is suspected
of having committed during the course of, or arising out of, the
coverage or investigation of a news story, or committed while engaged in
the performance of his official duties as a member of the news media, a
member of the Department shall state all facts necessary for
determination of the issues by the Attorney General. A copy of the
request shall be sent to the Director of Public Affairs.
(l) When an arrest or questioning of a member of the news media is
necessary before prior authorization of the Attorney General can be
obtained, notification of the arrest or questioning, the circumstances
demonstrating that an exception to the requirement of prior
authorization existed, and a statement containing the information that
would have been given in requesting prior authorization, shall be
communicated immediately to the Attorney General and to the Director of
Public Affairs.
(m) In light of the intent of this section to protect freedom of the
press, news gathering functions, and news media sources, this policy
statement does not apply to demands for purely commercial or financial
information unrelated to the news gathering function.
(n) Failure to obtain the prior approval of the Attorney General may
constitute grounds for an administrative reprimand or other appropriate
disciplinary action. The principles set forth in this section are not
intended to create or recognize any legally enforceable right in any
person.
[Order No. 916-80, 45 FR 76436, Nov. 19, 1980]
Sec. 50.12 Exchange of FBI identification records.
(a) The Federal Bureau of Investigation, hereinafter referred to as
the FBI, is authorized to expend funds for the exchange of
identification records with officials of federally chartered or insured
banking institutions to promote or maintain the security of those
institutions and, if authorized by state statute and approved by the
Director of the FBI, acting on behalf of the Attorney General, with
officials of state and local governments for purposes of employment and
licensing, pursuant to section 201 of Public Law 92-544, 86 Stat. 1115.
Also, pursuant to 15 U.S.C. 78q, 7 U.S.C. 21 (b)(4)(E), and 42 U.S.C.
2169, respectively, such records can be exchanged with certain segments
of the securities industry, with registered futures associations, and
with nuclear power plants. The records also may be exchanged in other
instances as authorized by federal law.
(b) The FBI Director is authorized by 28 CFR 0.85(j) to approve
procedures relating to the exchange of identification records. Under
this authority, effective September 6, 1990, the FBI Criminal Justice
Information Services (CJIS) Division has made all data on identification
records available for such purposes. Records obtained under this
authority may be used solely for the purpose requested and cannot be
disseminated outside the receiving departments, related agencies, or
other authorized entities. Officials at the governmental institutions
and other entities authorized to submit fingerprints and receive FBI
identification records under this authority must notify the individuals
fingerprinted that the fingerprints will be used to check the criminal
history records of the FBI. The officials making the determination of
suitability for licensing or employment shall provide the applicants the
opportunity to complete, or challenge the accuracy of, the information
contained in the FBI identification record. These officials also must
advise the applicants that procedures for obtaining a change,
correction, or updating of an
[[Page 45]]
FBI identification record are set forth in 28 CFR 16.34. Officials
making such determinations should not deny the license or employment
based on information in the record until the applicant has been afforded
a reasonable time to correct or complete the record, or has declined to
do so. A statement incorporating these use-and-challenge requirements
will be placed on all records disseminated under this program. This
policy is intended to ensure that all relevant criminal record
information is made available to provide for the public safety and,
further, to protect the interests of the prospective employee/licensee
who may be affected by the information or lack of information in an
identification record.
[Order No. 2258-99, 64 FR 52229, Sept. 28, 1999]
Sec. 50.14 Guidelines on employee selection procedures.
The guidelines set forth below are intended as a statement of policy
of the Department of Justice and will be applied by the Department in
exercising its responsibilities under Federal law relating to equal
employment opportunity.
Uniform Guidelines on Employee Selection Procedures (1978)
Note: These guidelines are issued jointly by four agencies. Separate
official adoptions follow the guidelines in this part IV as follows:
Civil Service Commission, Department of Justice, Equal Employment
Opportunity Commission, Department of Labor.
For official citation see section 18 of these guidelines.
Table of Contents
general principles
1. Statement of Purpose
A. Need for Uniformity--Issuing Agencies
B. Purpose of Guidelines
C. Relation to Prior Guidelines
2. Scope
A. Application of Guidelines
B. Employment Decisions
C. Selection Procedures
D. Limitations
E. Indian Preference Not Affected
3. Discrimination Defined: Relationship Between Use of Selection
Procedures and Discrimination
A. Procedure Having Adverse Impact Constitutes Discrimination Unless
Justified
B. Consideration of Suitable Alternative Selection Procedures
4. Information on Impact
A. Records Concerning Impact
B. Applicable Race, Sex and Ethnic Groups For Record Keeping
C. Evaluation of Selection Rates. The ``Bottom Line''
D. Adverse Impact And The ``Four-Fifths Rule''
E. Consideration of User's Equal Employment Opportunity Posture
5. General Standards for Validity Studies
A. Acceptable types of Validity Studies
B. Criterion-Related, Content, and Construct Validity
C. Guidelines Are Consistent with Professional Standards
D. Need For Documentation of Validity
E. Accuracy and Standardization
F. Caution Against Selection on Basis of Knowledges, Skills or Abilities
Learned in Brief Orientation Period
G. Method of Use of Selection Procedures
H. Cutoff Scores
I. Use of Selection Procedures for Higher Level Jobs
J. Interim Use of Selection Procedures
K. Review of Validity Studies for Currency
6. Use of Selection Procedures Which Have Not Been Validated
A. Use of Alternate Selection Procedures to Eliminate Adverse Impact
B. Where Validity Studies Cannot or Need Not Be Performed
(1) Where Informal or Unscored Procedures Are Used
(2) Where Formal And Scored Procedures Are Used
7. Use of Other Validity Studies
A. Validity Studies not Conducted by the User
B. Use of Criterion-Related Validity Evidence from Other Sources
(1) Validity Evidence
(2) Job Similarity
(3) Fairness Evidence
C. Validity Evidence from Multi-Unit Study
D. Other Significant Variables
8. Cooperative Studies
A. Encouragement of Cooperative Studies
B. Standards for Use of Cooperative Studies
9. No Assumption of Validity
A. Unacceptable Substitutes for Evidence of Validity
B. Encouragement of Professional Supervision
10. Employment Agencies and Employment Services
A. Where Selection Procedures Are Devised by Agency
B. Where Selection Procedures Are Devised Elsewhere
11. Disparate Treatment
12. Retesting of Applicants
13. Affirmative Action
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A. Affirmative Action Obligations
B. Encouragement of Voluntary Affirmative Action Programs
technical standards
14. Technical Standards for Validity Studies
A. Validity Studies Should be Based on Review of Information about the
Job
B. Technical Standards for Criterion-Related Validity Studies
(1) Technical Feasibility
(2) Analysis of the Job
(3) Criterion Measures
(4) Representativeness of the Sample
(5) Statistical Relationships
(6) Operational Use of Selection Procedures
(7) Over-Statement of Validity Findings
(8) Fairness
(a) Unfairness Defined
(b) Investigation of Fairness
(c) General Considerations in Fairness Investigations
(d) When Unfairness Is Shown
(e) Technical Feasibility of Fairness Studies
(f) Continued Use of Selection Procedures When Fairness Studies not
Feasible
C. Technical Standards for Content Validity Studies
(1) Appropriateness of Content Validity Studies
(2) Job Analysis for Content Validity
(3) Development of Selection Procedure
(4) Standards For Demonstrating Content Validity
(5) Reliability
(6) Prior Training or Experience
(7) Training Success
(8) Operational Use
(9) Ranking Based on Content Validity Studies
D. Technical Standards For Construct Validity Studies
(1) Appropriateness of Construct Validity Studies
(2) Job Analysis For Construct Validity Studies
(3) Relationship to the Job
(4) Use of Construct Validity Study Without New Criterion-Related
Evidence
(a) Standards for Use
(b) Determination of Common Work Behaviors
documentation of impact and validity evidence
15. Documentation of Impact and Validity Evidence
A. Required Information
(1) Simplified Recordkeeping for Users With Less Than 100 Employees
(2) Information on Impact
(a) Collection of Information on Impact
(b) When Adverse Impact Has Been Eliminated in The Total Selection
Process
(c) When Data Insufficient to Determine Impact
(3) Documentation of Validity Evidence
(a) Type of Evidence
(b) Form of Report
(c) Completeness
B. Criterion-Related Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Job Analysis or Review of Job Information
(4) Job Titles and Codes
(5) Criterion Measures
(6) Sample Description
(7) Description of Selection Procedure
(8) Techniques and Results
(9) Alternative Procedures Investigated
(10) Uses and Applications
(11) Source Data
(12) Contact Person
(13) Accuracy and Completeness
C. Content Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Job Analysis--Content of the Job
(4) Selection Procedure and its Content
(5) Relationship Between Selection Procedure and the Job
(6) Alternative Procedures Investigated
(7) Uses and Applications
(8) Contact Person
(9) Accuracy and Completeness
D. Construct Validity Studies
(1) User(s), Location(s), and Date(s) of Study
(2) Problem and Setting
(3) Construct Definition
(4) Job Analysis
(5) Job Titles and Codes
(6) Selection Procedure
(7) Relationship to Job Performance
(8) Alternative Procedures Investigated
(9) Uses and Applications
(10) Accuracy and Completeness
(11) Source Data
(12) Contact Person
E. Evidence of Validity from Other Studies
(1) Evidence from Criterion-Related Validity Studies
(a) Job Information
(b) Relevance of Criteria
(c) Other Variables
(d) Use of the Selection Procedure
(e) Bibliography
(2) Evidence from Content Validity Studies
(3) Evidence from Construct Validity Studies
F. Evidence of Validity from Cooperative Studies
G. Selection for Higher Level Jobs
H. Interim Use of Selection Procedures
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definitions
16. Definitions
appendix
17. Policy Statement on Affirmative Action (see Section 13B)
18. Citations
General Principles
Section 1. Statement of purpose-- A. Need for uniformity--Issuing
agencies. The Federal government's need for a uniform set of principles
on the question of the use of tests and other selection procedures has
long been recognized. The Equal Employment Opportunity Commission, the
Civil Service Commission, the Department of Labor, and the Department of
Justice jointly have adopted these uniform guidelines to meet that need,
and to apply the same principles to the Federal Government as are
applied to other employers.
B. Purpose of guidelines. These guidelines incorporate a single set
of principles which are designed to assist employers, labor
organizations, employment agencies, and licensing and certification
boards to comply with requirements of Federal law prohibiting employment
practices which discriminate on grounds of race, color, religion, sex,
and national origin. They are designed to provide a framework for
determining the proper use of tests and other selection procedures.
These guidelines do not require a user to conduct validity studies of
selection procedures where no adverse impact results. However, all users
are encouraged to use selection procedures which are valid, especially
users operating under merit principles.
C. Relation to prior guidelines. These guidelines are based upon and
supersede previously issued guidelines on employee selection procedures.
These guidelines have been built upon court decisions, the previously
issued guidelines of the agencies, and the practical experience of the
agencies, as well as the standards of the psychological profession.
These guidelines are intended to be consistent with existing law.
Sec. 2. Scope-- A. Application of guidelines. These guidelines will
be applied by the Equal Employment Opportunity Commission in the
enforcement of title VII of the Civil Rights Act of 1964, as amended by
the Equal Employment Opportunity Act of 1972 (hereinafter ``Title
VII''); by the Department of Labor, and the contract compliance agencies
until the transfer of authority contemplated by the President's
Reorganization Plan No. 1 of 1978, in the administration and enforcement
of Executive Order 11246, as amended by Executive Order 11375
(hereinafter ``Executive Order 11246''); by the Civil Service Commission
and other Federal agencies subject to section 717 of title VII; by the
Civil Service Commission in exercising its responsibilities toward State
and local governments under section 208(b)(1) of the Intergovernmental-
Personnel Act; by the Department of Justice in exercising its
responsibilities under Federal law; by the Office of Revenue Sharing of
the Department of the Treasury under the State and Local Fiscal
Assistance Act of 1972, as amended; and by any other Federal agency
which adopts them.
B. Employment decisions. These guidelines apply to tests and other
selection procedures which are used as a basis for any employment
decision. Employment decisions include but are not limited to hiring,
promotion, demotion, membership (for example, in a labor organization),
referral, retention, and licensing and certification, to the extent that
licensing and certification may be covered by Federal equal employment
opportunity law. Other selection decisions, such as selection for
training or transfer, may also be considered employment decisions if
they lead to any of the decisions listed above.
C. Selection procedures. These guidelines apply only to selection
procedures which are used as a basis for making employment decisions.
For example, the use of recruiting procedures designed to attract
members of a particular race, sex, or ethnic group, which were
previously denied employment opportunities or which are currently
underutilized, may be necessary to bring an employer into compliance
with Federal law, and is frequently an essential element of any
effective affirmative action program; but recruitment practices are not
considered by these guidelines to be selection procedures. Similarly,
these guidelines do not pertain to the question of the lawfulness of a
seniority system within the meaning of section 703(h), Executive Order
11246 or other provisions of Federal law or regulation, except to the
extent that such systems utilize selection procedures to determine
qualifications or abilities to perform the job. Nothing in these
guidelines is intended or should be interpreted as discouraging the use
of a selection procedure for the purpose of determining qualifications
or for the purpose of selection on the basis of relative qualifications,
if the selection procedure had been validated in accord with these
guidelines for each such purpose for which it is to be used.
D. Limitations. These guidelines apply only to persons subject to
title VII, Executive Order 11246, or other equal employment opportunity
requirements of Federal law. These guidelines do not apply to
responsibilities under the Age Discrimination in Employment Act of 1967,
as amended, not to discriminate on the basis of age, or under sections
501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate
on the basis of handicap.
[[Page 48]]
E. Indian preference not affected. These guidelines do not restrict
any obligation imposed or right granted by Federal law to users to
extend a preference in employment to Indians living on or near an Indian
reservation in connection with employment opportunities on or near an
Indian reservation.
Sec. 3. Discrimination defined: Relationship between use of
selection procedures and discrimination-- A. Procedure having adverse
impact constitutes discrimination unless justified. The use of any
selection procedure which has an adverse impact on the hiring,
promotion, or other employment or membership opportunities of members of
any race, sex, or ethnic group will be considered to be discriminatory
and inconsistent with these guidelines, unless the procedure has been
validated in accordance with these guidelines, or the provisions of
section 6 below are satisfied.
B. Consideration of suitable alternative selection procedures. Where
two or more selection procedures are available which serve the user's
legitimate interest in efficient and trustworthy workmanship, and which
are substantially equally valid for a given purpose, the user should use
the procedure which has been demonstrated to have the lesser adverse
impact. Accordingly, whenever a validity study is called for by these
guidelines, the user should include, as a part of the validity study, an
investigation of suitable alternative selection procedures and suitable
alternative methods of using the selection procedure which have as
little adverse impact as possible, to determine the appropriateness of
using or validating them in accord with these guidelines. If a user has
made a reasonable effort to become aware of such alternative procedures
and validity has been demonstrated in accord with these guidelines, the
use of the test or other selection procedure may continue until such
time as it should reasonably be reviewed for currency. Whenever the user
is shown an alternative selection procedure with evidence of less
adverse impact and substantial evidence of validity for the same job in
similar circumstances, the user should investigate it to determine the
appropriateness of using or validating it in accord with these
guidelines. This subsection is not intended to preclude the combination
of procedures into a significantly more valid procedure, if the use of
such a combination has been shown to be in compliance with the
guidelines.
Sec. 4. Information on impact-- A. Records concerning impact. Each
user should maintain and have available for inspection records or other
information which will disclose the impact which its tests and other
selection procedures have upon employment opportunities of persons by
identifiable race, sex, or ethnic group as set forth in paragraph B
below in order to determine compliance with these guidelines. Where
there are large numbers of applicants and procedures are administered
frequently, such information may be retained on a sample basis, provided
that the sample is appropriate in terms of the applicant population and
adequate in size.
B. Applicable race, sex, and ethnic groups for recordkeeping. The
records called for by this section are to be maintained by sex, and the
following races and ethnic groups: Blacks (Negroes), American Indians
(including Alaskan Natives), Asians (including Pacific Islanders),
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish origin or culture regardless of race),
whites (Caucasians) other than Hispanic, and totals. The race, sex, and
ethnic classifications called for by this section are consistent with
the Equal Employment Opportunity Standard Form 100, Employer Information
Report EEO-1 series of reports. The user should adopt safeguards to
insure that the records required by this paragraph are used for
appropriate purposes such as determining adverse impact, or (where
required) for developing and monitoring affirmative action programs, and
that such records are not used improperly. See sections 4E and 17(4),
below.
C. Evaluation of selection rates. The ``bottom line.'' If the
information called for by sections 4A and B above shows that the total
selection process for a job has an adverse impact, the individual
components of the selection process should be evaluated for adverse
impact. If this information shows that the total selection process does
not have an adverse impact, the Federal enforcement agencies, in the
exercise of their administrative and prosecutorial discretion, in usual
circumstances, will not expect a user to evaluate the individual
components for adverse impact, or to validate such individual
components, and will not take enforcement action based upon adverse
impact of any component of that process, including the separate parts of
a multipart selection procedure or any separate procedure that is used
as an alternative method of selection. However, in the following
circumstances the Federal enforcement agencies will expect a user to
evaluate the individual components for adverse impact and may, where
appropriate, take enforcement action with respect to the individual
components: (1) Where the selection procedure is a significant factor in
the continuation of patterns of assignments of incumbent employees
caused by prior discriminatory employment practices, (2) where the
weight of court decisions or administrative interpretations hold that a
specific procedure (such as height or weight requirements or no-arrest
records) is not job related in the same or similar circumstances. In
unusual circumstances, other than those listed in (1) and (2) above, the
Federal enforcement agencies may request a user to evaluate the
individual components for adverse impact
[[Page 49]]
and may, where appropriate, take enforcement action with respect to the
individual component.
D. Adverse impact and the ``four-fifths rule.'' A selection rate for
any race, sex, or ethnic group which is less than four-fifths (\4/5\)
(or eighty percent) of the rate for the group with the highest rate will
generally be regarded by the Federal enforcement agencies as evidence of
adverse impact, while a greater than four-fifths rate will generally not
be regarded by Federal enforcement agencies as evidence of adverse
impact. Smaller differences in selection rate may nevertheless
constitute adverse impact, where they are significant in both
statistical and practical terms or where a user's actions have
discouraged applicants disproportionately on grounds of race, sex, or
ethnic group. Greater differences in selection rate may not constitute
adverse impact where the differences are based on small numbers and are
not statistically significant, or where special recruiting or other
programs cause the pool of minority or female candidates to be atypical
of the normal pool of applicants from that group. Where the user's
evidence concerning the impact of a selection procedure indicates
adverse impact but is based upon numbers which are too small to be
reliable, evidence concerning the impact of the procedure over a longer
period of time and/or evidence concerning the impact which the selection
procedure had when used in the same manner in similar circumstances
elsewhere may be considered in determining adverse impact. Where the
user has not maintained data on adverse impact as required by the
documentation section of applicable guidelines, the Federal enforcement
agencies may draw an inference of adverse impact of the selection
process from the failure of the user to maintain such data, if the user
has an underutilization of a group in the job category, as compared to
the group's representation in the relevant labor market or, in the case
of jobs filled from within, the applicable work force.
E. Consideration of user's equal employment opportunity posture. In
carrying out their obligations, the Federal enforcement agencies will
consider the general posture of the user with respect to equal
employment opportunity for the job or group of jobs in question. Where a
user has adopted an affirmative action program, the Federal enforcement
agencies will consider the provisions of that program, including the
goals and timetables which the user has adopted and the progress which
the user has made in carrying out that program and in meeting the goals
and timetables. While such affirmative action programs may in design and
execution be race, color, sex, or ethnic conscious, selection procedures
under such programs should be based upon the ability or relative ability
to do the work.
Sec. 5. General standards for validity studies-- A. Acceptable types
of validity studies. For the purposes of satisfying these guidelines,
users may rely upon criterion-related validity studies, content validity
studies or construct validity studies, in accordance with the standards
set forth in the technical standards of these guidelines, section 14
below. New strategies for showing the validity of selection procedures
will be evaluated as they become accepted by the psychological
profession.
B. Criterion-related, content, and construct validity. Evidence of
the validity of a test or other selection procedure by a criterion-
related validity study should consist of empirical data demonstrating
that the selection procedure is predictive of or significantly
correlated with important elements of job performance. See section 14B
below. Evidence of the validity of a test or other selection procedure
by a content validity study should consist of data showing that the
content of the selection procedure is representative of important
aspects of performance on the job for which the candidates are to be
evaluated. See section 14C below. Evidence of the validity of a test or
other selection procedure through a construct validity study should
consist of data showing that the procedure measures the degree to which
candidates have identifiable characteristics which have been determined
to be important in successful performance in the job for which the
candidates are to be evaluated. See section 14D below.
C. Guidelines are consistent with professional standards. The
provisions of these guidelines relating to validation of selection
procedures are intended to be consistent with generally accepted
professional standards for evaluating standardized tests and other
selection procedures, such as those described in the Standards for
Educational and Psychological Tests prepared by a joint committee of the
American Psychological Association, the American Educational Research
Association, and the National Council on Measurement in Education
(American Psychological Association, Washington, DC, 1974) (hereinafter
``A.P.A. Standards'') and standard textbooks and journals in the field
of personnel selection.
D. Need for documentation of validity. For any selection procedure
which is part of a selection process which has an adverse impact and
which selection procedure has an adverse impact, each user should
maintain and have available such documentation as is described in
section 15 below.
E. Accuracy and standardization. Validity studies should be carried
out under conditions which assure insofar as possible the adequacy and
accuracy of the research and the report. Selection procedures should be
administered and scored under standardized conditions.
[[Page 50]]
F. Caution against selection on basis of knowledges, skills, or
ability learned in brief orientation period. In general, users should
avoid making employment decisions on the basis of measures of
knowledges, skills, or abilities which are normally learned in a brief
orientation period, and which have an adverse impact.
G. Method of use of selection procedures. The evidence of both the
validity and utility of a selection procedure should support the method
the user chooses for operational use of the procedure, if that method of
use has a greater adverse impact than another method of use. Evidence
which may be sufficient to support the use of a selection procedure on a
pass/fail (screening) basis may be insufficient to support the use of
the same procedure on a ranking basis under these guidelines. Thus, if a
user decides to use a selection procedure on a ranking basis, and that
method of use has a greater adverse impact than use on an appropriate
pass/fail basis (see section 5H below), the user should have sufficient
evidence of validity and utility to support the use on a ranking basis.
See sections 3B, 14B (5) and (6), and 14C (8) and (9).
H. Cutoff scores. Where cutoff scores are used, they should normally
be set so as to be reasonable and consistent with normal expectations of
acceptable proficiency within the work force. Where applicants are
ranked on the basis of properly validated selection procedures and those
applicants scoring below a higher cutoff score than appropriate in light
of such expectations have little or no chance of being selected for
employment, the higher cutoff score may be appropriate, but the degree
of adverse impact should be considered.
I. Use of selection procedures for higher level jobs. If job
progression structures are so established that employees will probably,
within a reasonable period of time and in a majority of cases, progress
to a higher level, it may be considered that the applicants are being
evaluated for a job or jobs at the higher level. However, where job
progression is not so nearly automatic, or the time span is such that
higher level jobs or employees' potential may be expected to change in
significant ways, it should be considered that applicants are being
evaluated for a job at or near the entry level. A ``reasonable period of
time'' will vary for different jobs and employment situations but will
seldom be more than 5 years. Use of selection procedures to evaluate
applicants for a higher level job would not be appropriate:
(1) If the majority of those remaining employed do not progress to
the higher level job;
(2) If there is a reason to doubt that the higher level job will
continue to require essentially similar skills during the progression
period; or
(3) If the selection procedures measure knowledges, skills, or
abilities required for advancement which would be expected to develop
principally from the training or experience on the job.
J. Interim use of selection procedures. Users may continue the use
of a selection procedure which is not at the moment fully supported by
the required evidence of validity, provided: (1) The user has available
substantial evidence of validity, and (2) the user has in progress, when
technically feasible, a study which is designed to produce the
additional evidence required by these guidelines within a reasonable
time. If such a study is not technically feasible, see section 6B. If
the study does not demonstrate validity, this provision of these
guidelines for interim use shall not constitute a defense in any action,
nor shall it relieve the user of any obligations arising under Federal
law.
K. Review of validity studies for currency. Whenever validity has
been shown in accord with these guidelines for the use of a particular
selection procedure for a job or group of jobs, additional studies need
not be performed until such time as the validity study is subject to
review as provided in section 3B above. There are no absolutes in the
area of determining the currency of a validity study. All circumstances
concerning the study, including the validation strategy used, and
changes in the relevant labor market and the job should be considered in
the determination of when a validity study is outdated.
Sec. 6. Use of selection procedures which have not been validated--
A. Use of alternate selection procedures to eliminate adverse impact. A
user may choose to utilize alternative selection procedures in order to
eliminate adverse impact or as part of an affirmative action program.
See section 13 below. Such alternative procedures should eliminate the
adverse impact in the total selection process, should be lawful and
should be as job related as possible.
B. Where validity studies cannot or need not be performed. There are
circumstances in which a user cannot or need not utilize the validation
techniques contemplated by these guidelines. In such circumstances, the
user should utilize selection procedures which are as job related as
possible and which will minimize or eliminate adverse impact, as set
forth below.
(1) Where informal or unscored procedures are used. When an informal
or unscored selection procedure which has an adverse impact is utilized,
the user should eliminate the adverse impact, or modify the procedure to
one which is a formal, scored or quantified measure or combination of
measures and then validate the procedure in accord with these
guidelines, or otherwise justify continued use of the procedure in
accord with Federal law.
[[Page 51]]
(2) Where formal and scored procedures are used. When a formal and
scored selection procedure is used which has an adverse impact, the
validation techniques contemplated by these guidelines usually should be
followed if technically feasible. Where the user cannot or need not
follow the validation techniques anticipated by these guidelines, the
user should either modify the procedure to eliminate adverse impact or
otherwise justify continued use of the procedure in accord with Federal
law.
Sec. 7. Use of other validity studies-- A. Validity studies not
conducted by the user. Users may, under certain circumstances, support
the use of selection procedures by validity studies conducted by other
users or conducted by test publishers or distributors and described in
test manuals. While publishers of selection procedures have a
professional obligation to provide evidence of validity which meets
generally accepted professional standards (see section 5C above), users
are cautioned that they are responsible for compliance with these
guidelines. Accordingly, users seeking to obtain selection procedures
from publishers and distributors should be careful to determine that, in
the event the user becomes subject to the validity requirements of these
guidelines, the necessary information to support validity has been
determined and will be made available to the user.
B. Use of criterion-related validity evidence from other sources.
Criterion-related validity studies conducted by one test user, or
described in test manuals and the professional literature, will be
considered acceptable for use by another user when the following
requirements are met:
(1) Validity evidence. Evidence from the available studies meeting
the standards of section 14B below clearly demonstrates that the
selection procedure is valid;
(2) Job similarity. The incumbents in the user's job and the
incumbents in the job or group of jobs on which the validity study was
conducted perform substantially the same major work behaviors, as shown
by appropriate job analyses both on the job or group of jobs on which
the validity study was performed and on the job for which the selection
procedure is to be used; and
(3) Fairness evidence. The studies include a study of test fairness
for each race, sex, and ethnic group which constitutes a significant
factor in the borrowing user's relevant labor market for the job or jobs
in question. If the studies under consideration satisfy (1) and (2)
above but do not contain an investigation of test fairness, and it is
not technically feasible for the borrowing user to conduct an internal
study of test fairness, the borrowing user may utilize the study until
studies conducted elsewhere meeting the requirements of these guidelines
show test unfairness, or until such time as it becomes technically
feasible to conduct an internal study of test fairness and the results
of that study can be acted upon. Users obtaining selection procedures
from publishers should consider, as one factor in the decision to
purchase a particular selection procedure, the availability of evidence
concerning test fairness.
C. Validity evidence from multiunit study. if validity evidence from
a study covering more than one unit within an organization statisfies
the requirements of section 14B below, evidence of validity specific to
each unit will not be required unless there are variables which are
likely to affect validity significantly.
D. Other significant variables. If there are variables in the other
studies which are likely to affect validity significantly, the user may
not rely upon such studies, but will be expected either to conduct an
internal validity study or to comply with section 6 above.
Sec. 8. Cooperative studies-- A. Encouragement of cooperative
studies. The agencies issuing these guidelines encourage employers,
labor organizations, and employment agencies to cooperate in research,
development, search for lawful alternatives, and validity studies in
order to achieve procedures which are consistent with these guidelines.
B. Standards for use of cooperative studies. If validity evidence
from a cooperative study satisfies the requirements of section 14 below,
evidence of validity specific to each user will not be required unless
there are variables in the user's situation which are likely to affect
validity significantly.
Sec. 9. No assumption of validity-- A. Unacceptable substitutes for
evidence of validity. Under no circumstances will the general reputation
of a test or other selection procedures, its author or its publisher, or
casual reports of it's validity be accepted in lieu of evidence of
validity. Specifically ruled out are: Assumptions of validity based on a
procedure's name or descriptive labels; all forms of promotional
literature; data bearing on the frequency of a procedure's usage;
testimonial statements and credentials of sellers, users, or
consultants; and other nonempirical or anecdotal accounts of selection
practices or selection outcomes.
B. Encouragement of professional supervision. Professional
supervision of selection activities is encouraged but is not a
substitute for documented evidence of validity. The enforcement agencies
will take into account the fact that a thorough job analysis was
conducted and that careful development and use of a selection procedure
in accordance with professional standards enhance the probability that
the selection procedure is valid for the job.
Sec. 10. Employment agencies and employment services-- A. Where
selection procedures are devised by agency. An employment agency,
including private employment agencies and State employment agencies,
which
[[Page 52]]
agrees to a request by an employer or labor organization to device and
utilize a selection procedure should follow the standards in these
guidelines for determining adverse impact. If adverse impact exists the
agency should comply with these guidelines. An employment agency is not
relieved of its obligation herein because the user did not request such
validation or has requested the use of some lesser standard of
validation than is provided in these guidelines. The use of an
employment agency does not relieve an employer or labor organization or
other user of its responsibilities under Federal law to provide equal
employment opportunity or its obligations as a user under these
guidelines.
B. Where selection procedures are devised elsewhere. Where an
employment agency or service is requested to administer a selection
procedure which has been devised elsewhere and to make referrals
pursuant to the results, the employment agency or service should
maintain and have available evidence of the impact of the selection and
referral procedures which it administers. If adverse impact results the
agency or service should comply with these guidelines. If the agency or
service seeks to comply with these guidelines by reliance upon validity
studies or other data in the possession of the employer, it should
obtain and have available such information.
Sec. 11. Disparate treatment. The principles of disparate or unequal
treatment must be distinguished from the concepts of validation. A
selection procedure--even though validated against job performance in
accordance with these guidelines--cannot be imposed upon members of a
race, sex, or ethnic group where other employees, applicants, or members
have not been subjected to that standard. Disparate treatment occurs
where members of a race, sex, or ethnic group have been denied the same
employment, promotion, membership, or other employment opportunities as
have been available to other employees or applicants. Those employees or
applicants who have been denied equal treatment, because of prior
discriminatory practices or policies, must at least be afforded the same
opportunities as had existed for other employees or applicants during
the period of discrimination. Thus, the persons who were in the class of
persons discriminated against during the period the user followed the
discriminatory practices should be allowed the opportunity to qualify
under less stringent selection procedures previously followed, unless
the user demonstrates that the increased standards are required by
business necessity. This section does not prohibit a user who has not
previously followed merit standards from adopting merit standards which
are in compliance with these guidelines; nor does it preclude a user who
has previously used invalid or unvalidated selection procedures from
developing and using procedures which are in accord with these
guidelines.
Sec. 12. Retesting of applicants. Users should provide a reasonable
opportunity for retesting and reconsideration. Where examinations are
administered periodically with public notice, such reasonable
opportunity exists, unless persons who have previously been tested are
precluded from retesting. The user may however take reasonable steps to
preserve the security of its procedures.
Sec. 13. Affirmative action-- A. Affirmative action obligations. The
use of selection procedures which have been validated pursuant to these
guidelines does not relieve users of any obligations they may have to
undertake affirmative action to assure equal employment opportunity.
Nothing in these guidelines is intended to preclude the use of lawful
selection procedures which assist in remedying the effects of prior
discriminatory practices, or the achievement of affirmative action
objectives.
B. Encouragement of voluntary affirmative action programs. These
guidelines are also intended to encourage the adoption and
implementation of voluntary affirmative action programs by users who
have no obligation under Federal law to adopt them; but are not intended
to impose any new obligations in that regard. The agencies issuing and
endorsing these guidelines endorse for all private employers and
reaffirm for all governmental employers the Equal Employment Opportunity
Coordinating Council's ``Policy Statement on Affirmative Action Programs
for State and Local Government Agencies'' (41 FR 38814, September 13,
1976). That policy statement is attached hereto as appendix, section 17.
Technical Standards
Sec. 14. Technical standards for validity studies. The following
minimum standards, as applicable, should be met in conducting a validity
study. Nothing in these guidelines is intended to preclude the
development and use of other professionally acceptable techniques with
respect to validation of selection procedures. Where it is not
technically feasible for a user to conduct a validity study, the user
has the obligation otherwise to comply with these guidelines. See
sections 6 and 7 above.
A. Validity studies should be based on review of information about
the job. Any validity study should be based upon a review of information
about the job for which the selection procedure is to be used. The
review should include a job analysis except as provided in section
14B(3) below with respect to criterion-related validity. Any method of
job analysis may be used if it provides the information required for the
specific validation strategy used.
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B. Technical standards for criterion-related validity studies--(1)
Technical feasibility. Users choosing to validate a selection procedure
by a criterion-related validity strategy should determine whether it is
technically feasible (as defined in section 16) to conduct such a study
in the particular employment context. The determination of the number of
persons necessary to permit the conduct of a meaningful criterion-
related study should be made by the user on the basis of all relevant
information concerning the selection procedure, the potential sample and
the employment situation. Where appropriate, jobs with substantially the
same major work behaviors may be grouped together for validity studies,
in order to obtain an adequate sample. These guidelines do not require a
user to hire or promote persons for the purpose of making it possible to
conduct a criterion-related study.
(2) Analysis of the job. There should be a review of job information
to determine measures of work behavior(s) or performance that are
relevant to the job or group of jobs in question. These measures or
criteria are relevant to the extent that they represent critical or
important job duties, work behaviors or work outcomes as developed from
the review of job information. The possibility of bias should be
considered both in selection of the criterion measures and their
application. In view of the possibility of bias in subjective
evaluations, supervisory rating techniques and instructions to raters
should be carefully developed. All criterion measures and the methods
for gathering data need to be examined for freedom from factors which
would unfairly alter scores of members of any group. The relevance of
criteria and their freedom from bias are of particular concern when
there are significant differences in measures of job performance for
different groups.
(3) Criterion measures. Proper safeguards should be taken to insure
that scores on selection procedures do not enter into any judgments of
employee adequacy that are to be used as criterion measures. Whatever
criteria are used should represent important or critical work
behavior(s) or work outcomes. Certain criteria may be used without a
full job analysis if the user can show the importance of the criteria to
the particular employment context. These criteria include but are not
limited to production rate, error rate, tardiness, absenteeism, and
length of service. A standardized rating of overall work performance may
be used where a study of the job shows that it is an appropriate
criterion. Where performance in training is used as a criterion, success
in training should be properly measured and the relevance of the
training should be shown either through a comparsion of the content of
the training program with the critical or important work behavior(s) of
the job(s), or through a demonstration of the relationship between
measures of performance in training and measures of job performance.
Measures of relative success in training include but are not limited to
instructor evaluations, performance samples, or tests. Criterion
measures consisting of paper and pencil tests will be closely reviewed
for job relevance.
(4) Representativeness of the sample. Whether the study is
predictive or concurrent, the sample subjects should insofar as feasible
be representative of the candidates normally available in the relevant
labor market for the job or group of jobs in question, and should
insofar as feasible include the races, sexes, and ethnic groups normally
available in the relevant job market. In determining the
representativeness of the sample in a concurrent validity study, the
user should take into account the extent to which the specific
knowledges or skills which are the primary focus of the test are those
which employees learn on the job.
Where samples are combined or compared, attention should be given to
see that such samples are comparable in terms of the actual job they
perform, the length of time on the job where time on the job is likely
to affect performance, and other relevant factors likely to affect
validity differences; or that these factors are included in the design
of the study and their effects identified.
(5) Statistical relationships. The degree of relationship between
selection procedure scores and criterion measures should be examined and
computed, using professionally acceptable statistical procedures.
Generally, a selection procedure is considered related to the criterion,
for the purposes of these guidelines, when the relationship between
performance on the procedure and performance on the criterion measure is
statistically significant at the 0.05 level of significance, which means
that it is sufficiently high as to have a probability of no more than
one (1) in twenty (20) to have occurred by chance. Absence of a
statistically significant relationship between a selection procedure and
job performance should not necessarily discourage other investigations
of the validity of that selection procedure.
(6) Operational use of selection procedures. Users should evaluate
each selection procedure to assure that it is appropriate for
operational use, including establishment of cutoff scores or rank
ordering. Generally, if other factors reman the same, the greater the
magnitude of the relationship (e.g., correlation coefficent) between
performance on a selection procedure and one or more criteria of
performance on the job, and the greater the importance and number of
aspects of job performance covered by the criteria, the more likely it
is that the procedure will be appropriate for use. Reliance upon a
selection procedure which is significantly related to a criterion
measure, but which is based upon a study involving a large
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number of subjects and has a low correlation coefficient will be subject
to close review if it has a large adverse impact. Sole reliance upon a
single selection instrument which is related to only one of many job
duties or aspects of job performance will also be subject to close
review. The appropriateness of a selection procedure is best evaluated
in each particular situation and there are no minimum correlation
coefficients applicable to all employment situations. In determining
whether a selection procedure is appropriate for operational use the
following considerations should also be taken into account: The degree
of adverse impact of the procedure, the availability of other selection
procedures of greater or substantially equal validity.
(7) Overstatement of validity findings. Users should avoid reliance
upon techniques which tend to overestimate validity findings as a result
of capitalization on chance unless an appropriate safeguard is taken.
Reliance upon a few selection procedures or criteria of successful job
performance when many selection procedures or criteria of performance
have been studied, or the use of optimal statistical weights for
selection procedures computed in one sample, are techniques which tend
to inflate validity estimates as a result of chance. Use of a large
sample is one safeguard: Cross-validation is another.
(8) Fairness. This section generally calls for studies of unfairness
where technically feasible. The concept of fairness or unfairness of
selection procedures is a developing concept. In addition, fairness
studies generally require substantial numbers of employees in the job or
group of jobs being studied. For these reasons, the Federal enforcement
agencies recognize that the obligation to conduct studies of fairness
imposed by the guidelines generally will be upon users or groups of
users with a large number of persons in a a job class, or test
developers; and that small users utilizing their own selection
procedures will generally not be obligated to conduct such studies
because it will be technically infeasible for them to do so.
(a) Unfairness defined. When members of one race, sex, or ethnic
group characteristically obtain lower scores on a selection procedure
than members of another group, and the differences in scores are not
reflected in differences in a measure of job performance, use of the
selection procedure may unfairly deny opportunities to members of the
group that obtains the lower scores.
(b) Investigation of fairness. Where a selection procedure results
in an adverse impact on a race, sex, or ethnic group identified in
accordance with the classifications set forth in section 4 above and
that group is a significant factor in the relevant labor market, the
user generally should investigate the possible existence of unfairness
for that group if it is technically feasible to do so. The greater the
severity of the adverse impact on a group, the greater the need to
investigate the possible existence of unfairness. Where the weight of
evidence from other studies shows that the selection procedure predicts
fairly for the group in question and for the same or similar jobs, such
evidence may be relied on in connection with the selection procedure at
issue.
(c) General considerations in fairness investigations. Users
conducting a study of fairness should review the A.P.A. Standards
regarding investigation of possible bias in testing. An investigation of
fairness of a selection procedure depends on both evidence of validity
and the manner in which the selection procedure is to be used in a
particular employment context. Fairness of a selection procedure cannot
necessarily be specified in advance without investigating these factors.
Investigation of fairness of a selection procedure in samples where the
range of scores on selection procedures or criterion measures is
severely restricted for any subgroup sample (as compared to other
subgroup samples) may produce misleading evidence of unfairness. That
factor should accordingly be taken into account in conducting such
studies and before reliance is placed on the results.
(d) When unfairness is shown. If unfairness is demonstrated through
a showing that members of a particular group perform better or poorer on
the job than their scores on the selection procedure would indicate
through comparison with how members of other groups perform, the user
may either revise or replace the selection instrument in accordance with
these guidelines, or may continue to use the selection instrument
operationally with appropriate revisions in its use to assure
compatibility between the probability of successful job performance and
the probability of being selected.
(e) Technical feasibility of fairness studies. In addition to the
general conditions needed for technical feasibility for the conduct of a
criterion-related study (see section 16, below) an investigation of
fairness requires the following:
(i) An adequate sample of persons in each group available for the
study to achieve findings of statistical significance. Guidelines do not
require a user to hire or promote persons on the basis of group
classifications for the purpose of making it possible to conduct a study
of fairness; but the user has the obligation otherwise to comply with
these guidelines.
(ii) The samples for each group should be comparable in terms of the
actual job they perform, length of time on the job where time on the job
is likely to affect performance, and other relevant factors likely to
affect validity differences; or such factors should be included in the
design of the study and their effects identified.
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(f) Continued use of selection procedures when fairness studies not
feasible. If a study of fairness should otherwise be performed, but is
not technically feasible, a selection procedure may be used which has
otherwise met the validity standards of these guidelines, unless the
technical infeasibility resulted from discriminatory employment
practices which are demonstrated by facts other than past failure to
conform with requirements for validation of selection procedures.
However, when it becomes technically feasible for the user to perform a
study of fairness and such a study is otherwise called for, the user
should conduct the study of fairness.
C. Technical standards for content validity studies--(1)
Appropriateness of content validity studies. Users choosing to validate
a selection procedure by a content validity strategy should determine
whether it is appropriate to conduct such a study in the particular
employment context. A selection procedure can be supported by a content
validity strategy to the extent that it is a representative sample of
the content of the job. Selection procedures which purport to measure
knowledges, skills, or abilities may in certain circumstances be
justified by content validity, although they may not be representative
samples, if the knowledge, skill, or ability measured by the selection
procedure can be operationally defined as provided in section 14C(4)
below, and if that knowledge, skill, or ability is a necessary
prerequisite to successful job performance.
A selection procedure based upon inferences about mental processes
cannot be supported solely or primarily on the basis of content
validity. Thus, a content strategy is not appropriate for demonstrating
the validity of selection procedures which purport to measure traits or
constructs, such as intelligence, aptitude, personality, commonsense,
judgment, leadership, and spatial ability. Content validity is also not
an appropriate strategy when the selection procedure involves
knowledges, skills, or abilities which an employee will be expected to
learn on the job.
(2) Job analysis for content validity. There should be a job
analysis which includes an analysis of the important work behavior(s)
required for successful performance and their relative importance and,
if the behavior results in work product(s), an analysis of the work
product(s). Any job analysis should focus on the work behavior(s) and
the tasks associated with them. If work behavior(s) are not observable,
the job analysis should identify and analyze those aspects of the
behavior(s) that can be observed and the observed work products. The
work behavior(s) selected for measurement should be critical work
behavior(s) and/or important work behavior(s) constituting most of the
job.
(3) Development of selection procedures. A selection procedure
designed to measure the work behavior may be developed specifically from
the job and job analysis in question, or may have been previously
developed by the user, or by other users or by a test publisher.
(4) Standards for demonstrating content validity. To demonstrate the
content validity of a selection procedure, a user should show that the
behavior(s) demonstrated in the selection procedure are a representative
sample of the behavior(s) of the job in question or that the selection
procedure provides a representative sample of the work product of the
job. In the case of a selection procedure measuring a knowledge, skill,
or ability, the knowledge, skill, or ability being measured should be
operationally defined. In the case of a selection procedure measuring a
knowledge, the knowledge being measured should be operationally defined
as that body of learned information which is used in and is a necessary
prerequisite for observable aspects of work behavior of the job. In the
case of skills or abilities, the skill or ability being measured should
be operationally defined in terms of observable aspects of work behavior
of the job. For any selection procedure measuring a knowledge, skill, or
ability the user should show that (a) the selection procedure measures
and is a representative sample of that knowledge, skill, or ability; and
(b) that knowledge, skill, or ability is used in and is a necessary
prerequisite to performance of critical or important work behavior(s).
In addition, to be content valid, a selection procedure measuring a
skill or ability should either closely approximate an observable work
behavior, or its product should closely approximate an observable work
product. If a test purports to sample a work behavior or to provide a
sample of a work product, the manner and setting of the selection
procedure and its level and complexity should closely approximate the
work situation. The closer the content and the context of the selection
procedure are to work samples or work behaviors, the stronger is the
basis for showing content validity. As the content of the selection
procedure less resembles a work behavior, or the setting and manner of
the administration of the selection procedure less resemble the work
situation, or the result less resembles a work product, the less likely
the selection procedure is to be content valid, and the greater the need
for other evidence of validity.
(5) Reliability. The reliability of selection procedures justified
on the basis of content validity should be a matter of concern to the
user. Whenever it is feasible, appropriate statistical estimates should
be made of the reliability of the selection procedure.
(6) Prior training or experience. A requirement for or evaluation of
specific prior training or experience based on content validity,
including a specification of level or amount of training or experience,
should be
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justified on the basis of the relationship between the content of the
training or experience and the content of the job for which the training
or experience is to be required or evaluated. The critical consideration
is the resemblance between the specific behaviors, products, knowledges,
skills, or abilities in the experience or training and the specific
behaviors, products, knowledges, skills, or abilities required on the
job, whether or not there is close resemblance between the experience or
training as a whole and the job as a whole.
(7) Content validity of training success. Where a measure of success
in a training program is used as a selection procedure and the content
of a training program is justified on the basis of content validity, the
use should be justified on the relationship between the content of the
training program and the content of the job.
(8) Operational use. A selection procedure which is supported on the
basis of content validity may be used for a job if it represents a
critical work behavior (i.e., a behavior which is necessary for
performance of the job) or work behaviors which constitute most of the
important parts of the job.
(9) Ranking based on content validity studies. If a user can show,
by a job analysis or otherwise, that a higher score on a content valid
selection procedure is likely to result in better job performance, the
results may be used to rank persons who score above minimum levels.
Where a selection procedure supported solely or primarily by content
validity is used to rank job candidates, the selection procedure should
measure those aspects of performance which differentiate among levels of
job performance.
D. Technical standards for construct validity studies--(1)
Appropriateness of construct validity studies. Construct validity is a
more complex strategy than either criterion-related or content validity.
Construct validation is a relatively new and developing procedure in the
employment field, and there is at present a lack of substantial
literature extending the concept to employment practices. The user
should be aware that the effort to obtain sufficient empirical support
for construct validity is both an extensive and arduous effort involving
a series of research studies, which include criterion related validity
studies and which may include content validity studies. Users choosing
to justify use of a selection procedure by this strategy should
therefore take particular care to assure that the validity study meets
the standards set forth below.
(2) Job analysis for construct validity studies. There should be a
job analysis. This job analysis should show the work behavior(s)
required for successful performance of the job, or the groups of jobs
being studied, the critical or important work behavior(s) in the job or
group of jobs being studied, and an identification of the construct(s)
believed to underlie successful performance of these critical or
important work behaviors in the job or jobs in question. Each construct
should be named and defined, so as to distinguish it from other
constructs. If a group of jobs is being studied the jobs should have in
common one or more critical or important work behaviors at a comparable
level of complexity.
(3) Relationship to the job. A selection procedure should then be
identified or developed which measures the construct identified in
accord with paragraph (2) above. The user should show by empirical
evidence that the selection procedure is validly related to the
construct and that the construct is validly related to the performance
of critical or important work behavior(s). The relationship between the
construct as measured by the selection procedure and the related work
behavior(s) should be supported by empirical evidence from one or more
criterion-related studies involving the job or jobs in question which
satisfy the provisions of section 14B above.
(4) Use of construct validity study without new criterion-related
evidence--(a) Standards for use. Until such time as professional
literature provides more guidance on the use of construct validity in
employment situations, the Federal agencies will accept a claim of
construct validity without a criterion-related study which satisfies
section 14B above only when the selection procedure has been used
elsewhere in a situation in which a criterion-related study has been
conducted and the use of a criterion-related validity study in this
context meets the standards for transportability of criterion-related
validity studies as set forth above in section 7. However, if a study
pertains to a number of jobs having common critical or important work
behaviors at a comparable level of complexity, and the evidence
satisfies paragraphs 14B (2) and (3) above for those jobs with
criterion-related validity evidence for those jobs, the selection
procedure may be used for all the jobs to which the study pertains. If
construct validity is to be generalized to other jobs or groups of jobs
not in the group studied, the Federal enforcement agencies will expect
at a minimum additional empirical research evidence meeting the
standards of paragraphs section 14B (2) and (3) above for the additional
jobs or groups of jobs.
(b) Determination of common work behaviors. In determining whether
two or more jobs have one or more work behavior(s) in common, the user
should compare the observed work behavior(s) in each of the jobs and
should compare the observed work product(s) in each of the jobs. If
neither the observed work behavior(s) in each of the jobs nor the
observed work product(s) in each of the jobs
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are the same, the Federal enforcement agencies will presume that the
work behavior(s) in each job are different. If the work behaviors are
not observable, then evidence of similarity of work products and any
other relevant research evidence will be considered in determining
whether the work behavior(s) in the two jobs are the same.
Documentation of Impact and Validity Evidence
Sec. 15. Documentation of impact and validity evidence-- A. Required
information. Users of selection procedures other than those users
complying with section 15A(1) below should maintain and have available
for each job information on adverse impact of the selection process for
that job and, where it is determined a selection process has an adverse
impact, evidence of validity as set forth below.
(1) Simplified recordkeeping for users with less than 100 employees.
In order to minimize recordkeeping burdens on employers who employ one
hundred (100) or fewer employees, and other users not required to file
EEO-1, et seq., reports, such users may satisfy the requirements of this
section 15 if they maintain and have available records showing, for each
year:
(a) The number of persons hired, promoted, and terminated for each
job, by sex, and where appropriate by race and national origin;
(b) The number of applicants for hire and promotion by sex and where
appropriate by race and national origin; and
(c) The selection procedures utilized (either standardized or not
standardized).
These records should be maintained for each race or national origin
group (see section 4 above) constituting more than two percent (2%) of
the labor force in the relevant labor area. However, it is not necessary
to maintain records by race and/or national origin (see section 4 above)
if one race or national origin group in the relevant labor area
constitutes more than ninety-eight percent (98%) of the labor force in
the area. If the user has reason to believe that a selection procedure
has an adverse impact, the user should maintain any available evidence
of validity for that procedure (see sections 7A and 8).
(2) Information on impact--(a) Collection of information on impact.
Users of selection procedures other than those complying with section
15A(1) above should maintain and have available for each job records or
other information showing whether the total selection process for that
job has an adverse impact on any of the groups for which records are
called for by sections 4B above. Adverse impact determinations should be
made at least annually for each such group which constitutes at least 2
percent of the labor force in the relevant labor area or 2 percent of
the applicable workforce. Where a total selection process for a job has
an adverse impact, the user should maintain and have available records
or other information showing which components have an adverse impact.
Where the total selection process for a job does not have an adverse
impact, information need not be maintained for individual components
except in circumstances set forth in subsection 15A(2)(b) below. If the
determination of adverse impact is made using a procedure other than the
``four-fifths rule,'' as defined in the first sentence of section 4D
above, a justification, consistent with section 4D above, for the
procedure used to determine adverse impact should be available.
(b) When adverse impact has been eliminated in the total selection
process. Whenever the total selection process for a particular job has
had an adverse impact, as defined in section 4 above, in any year, but
no longer has an adverse impact, the user should maintain and have
available the information on individual components of the selection
process required in the preceding paragraph for the period in which
there was adverse impact. In addition, the user should continue to
collect such information for at least two (2) years after the adverse
impact has been eliminated.
(c) When data insufficient to determine impact. Where there has been
an insufficient number of selections to determine whether there is an
adverse impact of the total selection process for a particular job, the
user should continue to collect, maintain and have available the
information on individual components of the selection process required
in section 15(A)(2)(a) above until the information is sufficient to
determine that the overall selection process does not have an adverse
impact as defined in section 4 above, or until the job has changed
substantially.
(3) Documentation of validity evidence--(a) Types of evidence. Where
a total selection process has an adverse impact (see section 4 above)
the user should maintain and have available for each component of that
process which has an adverse impact, one or more of the following types
of documentation evidence:
(i) Documentation evidence showing criterion-related validity of the
selection procedure (see section 15B, below).
(ii) Documentation evidence showing content validity of the
selection procedure (see section 15C, below).
(iii) Documentation evidence showing construct validity of the
selection procedure (see section 15D, below).
(iv) Documentation evidence from other studies showing validity of
the selection procedure in the user's facility (see section 15E, below).
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(v) Documentation evidence showing why a validity study cannot or
need not be performed and why continued use of the procedure is
consistent with Federal law.
(b) Form of report. This evidence should be compiled in a reasonably
complete and organized manner to permit direct evaluation of the
validity of the selection procedure. Previously written employer or
consultant reports of validity, or reports describing validity studies
completed before the issuance of these guidelines are acceptable if they
are complete in regard to the documentation requirements contained in
this section, or if they satisfied requirements of guidelines which were
in effect when the validity study was completed. If they are not
complete, the required additional documentation should be appended. If
necessary information is not available the report of the validity study
may still be used as documentation, but its adequacy will be evaluated
in terms of compliance with the requirements of these guidelines.
(c) Completeness. In the event that evidence of validity is reviewed
by an enforcement agency, the validation reports completed after the
effective date of these guidelines are expected to contain the
information set forth below. Evidence denoted by use of the word
``(Essential)'' is considered critical. If information denoted essential
is not included, the report will be considered incomplete unless the
user affirmatively demonstrates either its unavailability due to
circumstances beyond the user's control or special circumstances of the
user's study which make the information irrelevant. Evidence not so
denoted is desirable but its absence will not be a basis for considering
a report incomplete. The user should maintain and have available the
information called for under the heading ``Source Data'' in sections
15B(11) and 15D(11). While it is a necessary part of the study, it need
not be submitted with the report. All statistical results should be
organized and presented in tabular or graphic form to the extent
feasible.
B. Criterion-related validity studies. Reports of criterion-related
validity for a selection procedure should include the following
information:
(1) User(s), location(s), and date(s) of study. Dates and
location(s) of the job analysis or review of job information, the
date(s) and location(s) of the administration of the selection
procedures and collection of criterion data, and the time between
collection of data on selection procedures and criterion measures should
be provided (Essential). If the study was conducted at several
locations, the address of each location, including city and State,
should be shown.
(2) Problem and setting. An explicit definition of the purpose(s) of
the study and the circumstances in which the study was conducted should
be provided. A description of existing selection procedures and cutoff
scores, if any, should be provided.
(3) Job analysis or review of job information. A description of the
procedure used to analyze the job or group of jobs, or to review the job
information should be provided (Essential). Where a review of job
information results in criteria which may be used without a full job
analysis (see section 14B(3)), the basis for the selection of these
criteria should be reported (Essential). Where a job analysis is
required a complete description of the work behavior(s) or work
outcome(s), and measures of their criticality or importance should be
provided (Essential). The report should describe the basis on which the
behavior(s) or outcome(s) were determined to be critical or important,
such as the proportion of time spent on the respective behaviors, their
level of difficulty, their frequency of performance, the consequences of
error, or other appropriate factors (Essential). Where two or more jobs
are grouped for a validity study, the information called for in this
subsection should be provided for each of the jobs, and the
justification for the grouping (see section 14B(1)) should be provided
(Essential).
(4) Job titles and codes. It is desirable to provide the user's job
title(s) for the job(s) in question and the corresponding job title(s)
and code(s) from U.S. Employment Service's Dictionary of Occupational
Titles.
(5) Criterion measures. The bases for the selection of the criterion
measures should be provided, together with references to the evidence
considered in making the selection of criterion measures (essential). A
full description of all criteria on which data were collected and means
by which they were observed, recorded, evaluated, and quantified, should
be provided (essential). If rating techniques are used as criterion
measures, the appraisal form(s) and instructions to the rater(s) should
be included as part of the validation evidence, or should be explicitly
described and available (essential). All steps taken to insure that
criterion measures are free from factors which would unfairly alter the
scores of members of any group should be described (essential).
(6) Sample description. A description of how the research sample was
identified and selected should be included (essential). The race, sex,
and ethnic composition of the sample, including those groups set forth
in section 4A above, should be described (essential). This description
should include the size of each subgroup (essential). A description of
how the research sample compares with the relevant labor market or work
force, the method by which the relevant labor market or work force was
defined, and a discussion of the likely effects on validity of
differences between the sample and the relevant labor
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market or work force, are also desirable. Descriptions of educational
levels, length of service, and age are also desirable.
(7) Description of selection procedures. Any measure, combination of
measures, or procedure studied should be completely and explicitly
described or attached (essential). If commercially available selection
procedures are studied, they should be described by title, form, and
publisher (essential). Reports of reliability estimates and how they
were established are desirable.
(8) Techniques and results. Methods used in analyzing data should be
described (essential). Measures of central tendency (e.g., means) and
measures of dispersion (e.g., standard deviations and ranges) for all
selection procedures and all criteria should be reported for each race,
sex, and ethnic group which constitutes a significant factor in the
relevant labor market (essential). The magnitude and direction of all
relationships between selection procedures and criterion measures
investigated should be reported for each relevant race, sex, and ethnic
group and for the total group (essential). Where groups are too small to
obtain reliable evidence of the magnitude of the relationship, need not
be reported separately. Statements regarding the statistical
significance of results should be made (essential). Any statistical
adjustments, such as for less then perfect reliability or for
restriction of score range in the selection procedure or criterion
should be described and explained; and uncorrected correlation
coefficients should also be shown (essential). Where the statistical
technique categorizes continuous data, such as biserial correlation and
the phi coefficient, the categories and the bases on which they were
determined should be described and explained (essential). Studies of
test fairness should be included where called for by the requirements of
section 14B(8) (essential). These studies should include the rationale
by which a selection procedure was determined to be fair to the group(s)
in question. Where test fairness or unfairness has been demonstrated on
the basis of other studies, a bibliography of the relevant studies
should be included (essential). If the bibliography includes unpublished
studies, copies of these studies, or adequate abstracts or summaries,
should be attached (essential). Where revisions have been made in a
selection procedure to assure compatability between successful job
performance and the probability of being selected, the studies
underlying such revisions should be included (essential). All
statistical results should be organized and presented by relevant race,
sex, and ethnic group (essential).
(9) Alternative procedures investigated. The selection procedures
investigated and available evidence of their impact should be identified
(essential). The scope, method, and findings of the investigation, and
the conclusions reached in light of the findings, should be fully
described (essential).
(10) Uses and applications. The methods considered for use of the
selection procedure (e.g., as a screening device with a cutoff score,
for grouping or ranking, or combined with other procedures in a battery)
and available evidence of their impact should be described (essential).
This description should include the rationale for choosing the method
for operational use, and the evidence of the validity and utility of the
procedure as it is to be used (essential). The purpose for which the
procedure is to be used (e.g., hiring, transfer, promotion) should be
described (essential). If weights are assigned to different parts of the
selection procedure, these weights and the validity of the weighted
composite should be reported (essential). If the selection procedure is
used with a cutoff score, the user should describe the way in which
normal expectations of proficiency within the work force were determined
and the way in which the cutoff score was determined (essential).
(11) Source data. Each user should maintain records showing all
pertinent information about individual sample members and raters where
they are used, in studies involving the validation of selection
procedures. These records should be made available upon request of a
compliance agency. In the case of individual sample members these data
should include scores on the selection procedure(s), scores on criterion
measures, age, sex, race, or ethnic group status, and experience on the
specific job on which the validation study was conducted, and may also
include such things as education, training, and prior job experience,
but should not include names and social security numbers. Records should
be maintained which show the ratings given to each sample member by each
rater.
(12) Contact person. The name, mailing address, and telephone number
of the person who may be contacted for further information about the
validity study should be provided (essential).
(13) Accuracy and completeness. The report should describe the steps
taken to assure the accuracy and completeness of the collection,
analysis, and report of data and results.
C. Content validity studies. Reports of content validity for a
selection procedure should include the following information:
(1) User(s), location(s) and date(s) of study. Dates and location(s)
of the job analysis should be shown (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of
the study and the circumstances in which the study was conducted should
be provided. A description of existing selection procedures and cutoff
scores, if any, should be provided.
(3) Job analysis--Content of the job. A description of the method
used to analyze the job should be provided (essential). The work
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behavior(s), the associated tasks, and, if the behavior results in a
work product, the work products should be completely described
(essential). Measures of criticality and/or importance of the work
behavior(s) and the method of determining these measures should be
provided (essential). Where the job analysis also identified the
knowledges, skills, and abilities used in work behavior(s), an
operational definition for each knowledge in terms of a body of learned
information and for each skill and ability in terms of observable
behaviors and outcomes, and the relationship between each knowledge,
skill, or ability and each work behavior, as well as the method used to
determine this relationship, should be provided (essential). The work
situation should be described, including the setting in which work
behavior(s) are performed, and where appropriate, the manner in which
knowledges, skills, or abilities are used, and the complexity and
difficulty of the knowledge, skill, or ability as used in the work
behavior(s).
(4) Selection procedure and its content. Selection procedures,
including those constructed by or for the user, specific training
requirements, composites of selection procedures, and any other
procedure supported by content validity, should be completely and
explicitly described or attached (essential). If commercially available
selection procedures are used, they should be described by title, form,
and publisher (essential). The behaviors measured or sampled by the
selection procedure should be explicitly described (essential). Where
the selection procedure purports to measure a knowledge, skill, or
ability, evidence that the selection procedure measures and is a
representative sample of the knowledge, skill, or ability should be
provided (essential).
(5) Relationship between the selection procedure and the job. The
evidence demonstrating that the selection procedure is a representative
work sample, a representative sample of the work behavior(s), or a
representative sample of a knowledge, skill, or ability as used as a
part of a work behavior and necessary for that behavior should be
provided (essential). The user should identify the work behavior(s)
which each item or part of the selection procedure is intended to sample
or measure (essential). Where the selection procedure purports to sample
a work behavior or to provide a sample of a work product, a comparison
should be provided of the manner, setting, and the level of complexity
of the selection procedure with those of the work situation (essential).
If any steps were taken to reduce adverse impact on a race, sex, or
ethnic group in the content of the procedure or in its administration,
these steps should be described. Establishment of time limits, if any,
and how these limits are related to the speed with which duties must be
performed on the job, should be explained. Measures of central tend-
ency (e.g., means) and measures of dispersion (e.g., standard
deviations) and estimates of realibility should be reported for all
selection procedures if available. Such reports should be made for
relevant race, sex, and ethnic subgroups, at least on a statistically
reliable sample basis.
(6) Alternative procedures investigated. The alternative selection
procedures investigated and available evidence of their impact should be
identified (essential). The scope, method, and findings of the
investigation, and the conclusions reached in light of the findings,
should be fully described (essential).
(7) Uses and applications. The methods considered for use of the
selection procedure (e.g., as a screening device with a cutoff score,
for grouping or ranking, or combined with other procedures in a battery)
and available evidence of their impact should be described (essential).
This description should include the rationale for choosing the method
for operational use, and the evidence of the validity and utility of the
procedure as it is to be used (essential). The purpose for which the
procedure is to be used (e.g., hiring, transfer, promotion) should be
described (essential). If the selection procedure is used with a cutoff
score, the user should describe the way in which normal expectations of
proficiency within the work force were determined and the way in which
the cutoff score was determined (essential). In addition, if the
selection procedure is to be used for ranking, the user should specify
the evidence showing that a higher score on the selection procedure is
likely to result in better job performance.
(8) Contact person. The name, mailing address, and telephone number
of the person who may be contacted for further information about the
validity study should be provided (essential).
(9) Accuracy and completeness. The report should describe the steps
taken to assure the accuracy and completeness of the collection,
analysis, and report of data and results.
D. Construct validity studies. Reports of construct validity for a
selection procedure should include the following information:
(1) User(s), location(s), and date(s) of study. Date(s) and
location(s) of the job analysis and the gathering of other evidence
called for by these guidelines should be provided (essential).
(2) Problem and setting. An explicit definition of the purpose(s) of
the study and the circumstances in which the study was conducted should
be provided. A description of existing selection procedures and cutoff
scores, if any, should be provided.
(3) Construct definition. A clear definition of the construct(s)
which are believed to underlie successful performance of the critical or
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important work behavior(s) should be provided (essential). This
definition should include the levels of construct performance relevant
to the job(s) for which the selection procedure is to be used
(essential). There should be a summary of the position of the construct
in the psychological literature, or in the absence of such a position, a
description of the way in which the definition and measurement of the
construct was developed and the psychological theory underlying it
(essential). Any quantitative data which identify or define the job
constructs, such as factor analyses, should be provided (essential).
(4) Job analysis. A description of the method used to analyze the
job should be provided (essential). A complete description of the work
behavior(s) and, to the extent appropriate, work outcomes and measures
of their criticality and/or importance should be provided (essential).
The report should also describe the basis on which the behavior(s) or
outcomes were determined to be important, such as their level of
difficulty, their frequency of performance, the consequences of error or
other appropriate factors (essential). Where jobs are grouped or
compared for the purposes of generalizing validity evidence, the work
behavior(s) and work product(s) for each of the jobs should be
described, and conclusions concerning the similarity of the jobs in
terms of observable work behaviors or work products should be made
(essential).
(5) Job titles and codes. It is desirable to provide the selection
procedure user's job title(s) for the job(s) in question and the
corresponding job title(s) and code(s) from the United States Employment
Service's dictionary of occupational titles.
(6) Selection procedure. The selection procedure used as a measure
of the construct should be completely and explicitly described or
attached (essential). If commercially available selection procedures are
used, they should be identified by title, form and publisher
(essential). The research evidence of the relationship between the
selection procedure and the construct, such as factor structure, should
be included (essential). Measures of central tendency, variability and
reliability of the selection procedure should be provided (essential).
Whenever feasible, these measures should be provided separately for each
relevant race, sex and ethnic group.
(7) Relationship to job performance. The criterion-related
study(ies) and other empirical evidence of the relationship between the
construct measured by the selection procedure and the related work
behavior(s) for the job or jobs in question should be provided
(essential). Documentation of the criterion-related study(ies) should
satisfy the provisions of section 15B above or section 15E(1) below,
except for studies conducted prior to the effective date of these
guidelines (essential). Where a study pertains to a group of jobs, and,
on the basis of the study, validity is asserted for a job in the group,
the observed work behaviors and the observed work products for each of
the jobs should be described (essential). Any other evidence used in
determining whether the work behavior(s) in each of the jobs is the same
should be fully described (essential).
(8) Alternative procedures investigated. The alternative selection
procedures investigated and available evidence of their impact should be
identified (essential). The scope, method, and findings of the
investigation, and the conclusions reached in light of the findings
should be fully described (essential).
(9) Uses and applications. The methods considered for use of the
selection procedure (e.g., as a screening device with a cutoff score,
for grouping or ranking, or combined with other procedures in a battery)
and available evidence of their impact should be described (essential).
This description should include the rationale for choosing the method
for operational use, and the evidence of the validity and utility of the
procedure as it is to be used (essential). The purpose for which the
procedure is to be used (e.g., hiring, transfer, promotion) should be
described (essential). If weights are assigned to different parts of the
selection procedure, these weights and the validity of the weighted
composite should be reported (essential). If the selection procedure is
used with a cutoff score, the user should describe the way in which
normal expectations of proficiency within the work force were determined
and the way in which the cutoff score was determined (essential).
(10) Accuracy and completeness. The report should describe the steps
taken to assure the accuracy and completeness of the collection,
analysis, and report of data and results.
(11) Source data. Each user should maintain records showing all
pertinent information relating to its study of construct validity.
(12) Contact person. The name, mailing address, and telephone number
of the individual who may be contacted for further information about the
validity study should be provided (essential).
E. Evidence of validity from other studies. When validity of a
selection procedure is supported by studies not done by the user, the
evidence from the original study or studies should be compiled in a
manner similar to that required in the appropriate section of this
section 15 above. In addition, the following evidence should be
supplied:
(1) Evidence from criterion-related validity studies--a. Job
information. A description of the important job behavior(s) of the
user's job and the basis on which the behaviors were determined to be
important should be provided (essential). A full description of the
basis for determining that these important work behaviors are the same
as those of the
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job in the original study (or studies) should be provided (essential).
b. Relevance of criteria. A full description of the basis on which
the criteria used in the original studies are determined to be relevant
for the user should be provided (essential).
c. Other variables. The similarity of important applicant pool or
sample characteristics reported in the original studies to those of the
user should be described (essential). A description of the comparison
between the race, sex and ethnic composition of the user's relevant
labor market and the sample in the original validity studies should be
provided (essential).
d. Use of the selection procedure. A full description should be
provided showing that the use to be made of the selection procedure is
consistent with the findings of the original validity studies
(essential).
e. Bibliography. A bibliography of reports of validity of the
selection procedure for the job or jobs in question should be provided
(essential). Where any of the studies included an investigation of test
fairness, the results of this investigation should be provided
(essential). Copies of reports published in journals that are not
commonly available should be described in detail or attached
(essential). Where a user is relying upon unpublished studies, a
reasonable effort should be made to obtain these studies. If these
unpublished studies are the sole source of validity evidence they should
be described in detail or attached (essential). If these studies are not
available, the name and address of the source, an adequate abstract or
summary of the validity study and data, and a contact person in the
source organization should be provided (essential).
(2) Evidence from content validity studies. See section 14C(3) and
section 15C above.
(3) Evidence from construct validity studies. See sections 14D(2)
and 15D above.
F. Evidence of validity from cooperative studies. Where a selection
procedure has been validated through a cooperative study, evidence that
the study satisfies the requirements of sections 7, 8 and 15E should be
provided (essential).
G. Selection for higher level job. If a selection procedure is used
to evaluate candidates for jobs at a higher level than those for which
they will initially be employed, the validity evidence should satisfy
the documentation provisions of this section 15 for the higher level job
or jobs, and in addition, the user should provide: (1) A description of
the job progression structure, formal or informal; (2) the data showing
how many employees progress to the higher level job and the length of
time needed to make this progression; and (3) an identification of any
anticipated changes in the higher level job. In addition, if the test
measures a knowledge, skill or ability, the user should provide evidence
that the knowledge, skill or ability is required for the higher level
job and the basis for the conclusion that the knowledge, skill or
ability is not expected to develop from the training or experience on
the job.
H. Interim use of selection procedures. If a selection procedure is
being used on an interim basis because the procedure is not fully
supported by the required evidence of validity, the user should maintain
and have available (1) substantial evidence of validity for the
procedure, and (2) a report showing the date on which the study to
gather the additional evidence commenced, the estimated completion date
of the study, and a description of the data to be collected (essential).
Definitions
Sec. 16. Definitions. The following definitions shall apply
throughout these guidelines:
A. Ability. A present competence to perform an observable behavior
or a behavior which results in an observable product.
B. Adverse impact. A substantially different rate of selection in
hiring, promotion, or other employment decision which works to the
disadvantage of members of a race, sex, or ethnic group. See section 4
of these guidelines.
C. Compliance with these guidelines. Use of a selection procedure is
in compliance with these guidelines if such use has been validated in
accord with these guidelines (as defined below), or if such use does not
result in adverse impact on any race, sex, or ethnic group (see section
4, above), or, in unusual circumstances, if use of the procedure is
otherwise justified in accord with Federal law. See section 6B, above.
D. Content validity. Demonstrated by data showing that the content
of a selection procedure is representative of important aspects of
performance on the job. See section 5B and section 14C.
E. Construct validity. Demonstrated by data showing that the
selection procedure measures the degree to which candidates have
identifiable characteristics which have been determined to be important
for successful job performance. See section 5B and section 14D.
F. Criterion-related validity. Demonstrated by empirical data
showing that the selection procedure is predictive of or significantly
correlated with important elements of work behavior. See sections 5B and
14B.
G. Employer. Any employer subject to the provisions of the Civil
Rights Act of 1964, as amended, including State or local governments and
any Federal agency subject to the provisions of section 717 of the Civil
Rights Act of 1964, as amended, and any Federal
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contractor or subcontractor or federally assisted construction
contractor or subcontactor covered by Executive Order 11246, as amended.
H. Employment agency. Any employment agency subject to the
provisions of the Civil Rights Act of 1964, as amended.
I. Enforcement action. For the purposes of section 4 a proceeding by
a Federal enforcement agency such as a lawsuit or an administrative
proceeding leading to debarment from or withholding, suspension, or
termination of Federal Government contracts or the suspension or
withholding of Federal Government funds; but not a finding of reasonable
cause or a concil- ation process or the issuance of right to sue letters
under title VII or under Executive Order 11246 where such finding,
conciliation, or issuance of notice of right to sue is based upon an
individual complaint.
J. Enforcement agency. Any agency of the executive branch of the
Federal Government which adopts these guidelines for purposes of the
enforcement of the equal employment opportunity laws or which has
responsibility for securing compliance with them.
K. Job analysis. A detailed statement of work behaviors and other
information relevant to the job.
L. Job description. A general statement of job duties and
responsibilities.
M. Knowledge. A body of information applied directly to the
performance of a function.
N. Labor organization. Any labor organization subject to the
provisions of the Civil Rights Act of 1964, as amended, and any
committee subject thereto controlling apprenticeship or other training.
O. Observable. Able to be seen, heard, or otherwise perceived by a
person other than the person performing the action.
P. Race, sex, or ethnic group. Any group of persons identifiable on
the grounds of race, color, religion, sex, or national origin.
Q. Selection procedure. Any measure, combination of measures, or
procedure used as a basis for any employment decision. Selection
procedures include the full range of assessment techniques from
traditional paper and pencil tests, performance tests, training
programs, or probationary periods and physical, educational, and work
experience requirements through informal or casual interviews and
unscored application forms.
R. Selection rate. The proportion of applicants or candidates who
are hired, promoted, or otherwise selected.
S. Should. The term ``should'' as used in these guidelines is
intended to connote action which is necessary to achieve compliance with
the guidelines, while recognizing that there are circumstances where
alternative courses of action are open to users.
T. Skill. A present, observable competence to perform a learned
psychomoter act.
U. Technical feasibility. The exist- ence of conditions permitting
the conduct of meaningful criterion-related validity studies. These
conditions include: (1) An adequate sample of persons available for the
study to achieve findings of statistical significance; (2) having or
being able to obtain a sufficient range of scores on the selection
procedure and job performance measures to produce validity results which
can be expected to be representative of the results if the ranges
normally expected were utilized; and (3) having or being able to devise
unbiased, reliable and relevant measures of job performance or other
criteria of employee adequacy. See section 14B(2). With respect to
investigation of possible unfairness, the same considerations are
applicable to each group for which the study is made. See section
14B(8).
V. Unfairness of selection procedure. A condition in which members
of one race, sex, or ethnic group characteristically obtain lower scores
on a selection procedure than members of another group, and the
differences are not reflected in differences in measures of job
performance. See section 14B(7).
W. User. Any employer, labor organization, employment agency, or
licensing or certification board, to the extent it may be covered by
Federal equal employment opportunity law, which uses a selection
procedure as a basis for any employment decision. Whenever an employer,
labor organization, or employment agency is required by law to restrict
recruitment for any occupation to those applicants who have met
licensing or certification requirements, the licensing or certifying
authority to the extent it may be covered by Federal equal employment
opportunity law will be considered the user with respect to those
licensing or certification requirements. Whenever a State employment
agency or service does no more than administer or monitor a procedure as
permitted by Department of Labor regulations, and does so without making
referrals or taking any other action on the basis of the results, the
State employment agency will not be deemed to be a user.
X. Validated in accord with these guidelines or properly validated.
A demonstration that one or more validity study or studies meeting the
standards of these guidelines has been conducted, including
investigation and, where appropriate, use of suitable alternative
selection procedures as contemplated by section 3B, and has produced
evidence of validity sufficient to warrant use of the procedure for the
intended purpose under the standards of these guidelines.
Y. Work behavior. An activity performed to achieve the objectives of
the job. Work behaviors involve observable (physical) components and
unobservable (mental) components. A work behavior consists of the
performance of one or more tasks. Knowledges,
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skills, and abilities are not behaviors, although they may be applied in
work behaviors.
Appendix
17. Policy statement on affirmative action (see section 13B). The
Equal Employment Opportunity Coordinating Council was established by act
of Congress in 1972, and charged with responsibility for developing and
implementing agreements and policies designed, among other things, to
eliminate conflict and inconsistency among the agencies of the Federal
Government responsible for administering Federal law prohibiting
discrimination on grounds of race, color, sex, religion, and national
origin. This statement is issued as an initial response to the requests
of a number of State and local officials for clarification of the
Government's policies concerning the role of affirmative action in the
overall equal employment opportunity program. While the Coordinating
Council's adoption of this statement expresses only the views of the
signatory agencies concerning this important subject, the principles set
forth below should serve as policy guidance for other Federal agencies
as well.
(1) Equal employment opportunity is the law of the land. In the
public sector of our society this means that all persons, regardless of
race, color, religion, sex, or national origin shall have equal access
to positions in the public service limited only by their ability to do
the job. There is ample evidence in all sectors of our society that such
equal access frequently has been denied to members of certain groups
because of their sex, racial, or ethnic characteristics. The remedy for
such past and present discrimination is twofold.
On the one hand, vigorous enforcement of the laws against
discrimination is essential. But equally, and perhaps even more
important are affirmative, voluntary efforts on the part of public
employers to assure that positions in the public service are genuinely
and equally accessible to qualified persons, without regard to their
sex, racial, or ethnic characteristics. Without such efforts equal
employment opportunity is no more than a wish. The importance of
voluntary affirmative action on the part of employers is underscored by
title VII of the Civil Rights Act of 1964, Executive Order 11246, and
related laws and regulations--all of which emphasize voluntary action to
achieve equal employment opportunity.
As with most management objectives, a systematic plan based on sound
organizational analysis and problem identification is crucial to the
accomplishment of affirmative action objectives. For this reason, the
Council urges all State and local governments to develop and implement
results oriented affirmative action plans which deal with the problems
so identified.
The following paragraphs are intended to assist State and local
governments by illustrating the kinds of analyses and activities which
may be appropriate for a public employer's voluntary affirmative action
plan. This statement does not address remedies imposed after a finding
of unlawful discrimination.
(2) Voluntary affirmative action to assure equal employment
opportunity is appropriate at any stage of the employment process. The
first step in the construction of any affirmative action plan should be
an analysis of the employer's work force to determine whether
percentages of sex, race, or ethnic groups in individual job
classifications are substantially similar to the percentages of those
groups available in the relevant job market who possess the basic job-
related qualifications.
When substantial disparities are found through such analyses, each
element of the overall selection process should be examined to determine
which elements operate to exclude persons on the basis of sex, race, or
ethnic group. Such elements include, but are not limited to,
recruitment, testing, ranking certification, interview, recommendations
for selection, hiring, promotion, etc. The examination of each element
of the selection process should at a minimum include a determination of
its validity in predicting job performance.
(3) When an employer has reason to believe that its selection
procedures have the exclusionary effect described in paragraph 2 above,
it should initiate affirmative steps to remedy the situation. Such
steps, which in design and execution may be race, color, sex, or ethnic
``conscious,'' include, but are not limited to, the following:
(a) The establishment of a long-term goal, and short-range, interim
goals and timetables for the specific job classifications, all of which
should take into account the availability of basically qualified persons
in the relevant job market;
(b) A recruitment program designed to attract qualified members of
the group in question;
(c) A systematic effort to organize work and redesign jobs in ways
that provide opportunities for persons lacking ``journeyman'' level
knowledge or skills to enter and, with appropriate training, to progress
in a career field;
(d) Revamping selection instruments or procedures which have not yet
been validated in order to reduce or eliminate exclusionary effects on
particular groups in particular job classifications;
(e) The initiation of measures designed to assure that members of
the affected group
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who are qualified to perform the job are included within the pool of
persons from which the selecting official makes the selection;
(f) A systematic effort to provide career advancement training, both
classroom and on-the-job, to employees locked into dead end jobs; and
(g) The establishment of a system for regularly monitoring the
effectiveness of the particular affirmative action program, and
procedures for making timely adjustments in this program where
effectiveness is not demonstrated.
(4) The goal of any affirmative action plan should be achievement of
genuine equal employment opportunity for all qualified persons.
Selection under such plans should be based upon the ability of the
applicant(s) to do the work. Such plans should not require the selection
of the unqualified, or the unneeded, nor should they require the
selection of persons on the basis of race, color, sex, religion, or
national origin. Moreover, while the Council believes that this
statement should serve to assist State and local employers, as well as
Federal agencies, it recognizes that affirmative action cannot be viewed
as a standardized program which must be accomplished in the same way at
all times in all places.
Accordingly, the Council has not attempted to set forth here either
the minimum or maximum voluntary steps that employers may take to deal
with their respective situations. Rather, the Council recognizes that
under applicable authorities, State and local employers have flexibility
to formulate affirmative action plans that are best suited to their
particular situations. In this manner, the Council believes that
affirmative action programs will best serve the goal of equal employment
opportunity.
Respectfully submitted,
Harold R. Tyler, Jr.,
Deputy Attorney General and Chairman of the Equal Employment
Coordinating Council.
Michael H. Moskow,
Under Secretary of Labor.
Ethel Bent Walsh,
Acting Chairman, Equal Employment Opportunity Commission.
Robert E. Hampton,
Chairman, Civil Service Commission.
Arthur E. Flemming,
Chairman, Commission on Civil Rights.
Because of its equal employment opportunity responsibilities under
the State and Local Government Fiscal Assistance Act of 1972 (the
revenue sharing act), the Department of Treasury was invited to
participate in the formulation of this policy statement; and it concurs
and joins in the adoption of this policy statement.
Done this 26th day of August 1976.
Richard Albrecht,
General Counsel, Department of the Treasury.
Section 18. Citations. The official title of these guidelines is
``Uniform Guidelines on Employee Selection Procedures (1978)''. The
Uniform Guidelines on Employee Selection Procedures (1978) are intended
to establish a uniform Federal position in the area of prohibiting
discrimination in employment practices on grounds of race, color,
religion, sex, or national origin. These guidelines have been adopted by
the Equal Employment Opportunity Commission, the Department of Labor,
the Department of Justice, and the Civil Service Commission.
The official citation is:
``Section ____, Uniform Guidelines on Employee Selection Procedure
(1978); 43 FR ____ (August 25, 1978).''
The short form citation is:
``Section ____, U.G.E.S.P. (1978); 43 FR ____ (August 25, 1978).''
When the guidelines are cited in connection with the activities of
one of the issuing agencies, a specific citation to the regulations of
that agency can be added at the end of the above citation. The specific
additional citations are as follows:
Equal Employment Opportunity Commission
29 CFR Part 1607
Department of Labor
Office of Federal Contract Compliance Programs
41 CFR Part 60-3
Department of Justice
28 CFR 50.14
Civil Service Commission
5 CFR 300.103(c)
Normally when citing these guidelines, the section number
immediately preceding the title of the guidelines will be from these
guidelines series 1-18. If a section number from the codification for an
individual agency is needed it can also be added at the end of the
agency citation. For example, section 6A of these guidelines could be
cited for EEOC as follows: ``Section 6A, Uniform Guidelines on Employee
Selection Procedures (1978); 43 FR ____, (August 25, 1978); 29 CFR part
1607, section 6A.''
Eleanor Holmes Norton,
Chair, Equal Employment Opportunity Commission.
Alan K. Campbell,
Chairman, Civil Service Commission.
Ray Marshall,
Secretary of Labor.
Griffin B. Bell,
Attorney General.
[Order No. 668-76, 41 FR 51735, Nov. 23, 1976, as amended at 43 FR
38295, Aug. 25, 1978]
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Sec. 50.15 Representation of Federal officials and employees by Department of Justice attorneys or by private counsel furnished by the Department in civil,
criminal, and congressional proceedings in which Federal
employees are sued, subpoenaed, or charged in their individual
capacities.
(a) Under the procedures set forth below, a federal employee (hereby
defined to include present and former Federal officials and employees)
may be provided representation in civil, criminal and Congressional
proceedings in which he is sued, subpoenaed, or charged in his
individual capacity, not covered by Sec. 15.1 of this chapter, when the
actions for which representation is requested reasonably appear to have
been performed within the scope of the employee's employment and the
Attorney General or his designee determines that providing
representation would otherwise be in the interest of the United States.
No special form of request for representation is required when it is
clear from the proceedings in a case that the employee is being sued
solely in his official capacity and only equitable relief is sought.
(See USAM 4-13.000)
(1) When an employee believes he is entitled to representation by
the Department of Justice in a proceeding, he must submit forthwith a
written request for that representation, together with all process and
pleadings served upon him, to his immediate supervisor or whomever is
designated by the head of his department or agency. Unless the
employee's employing federal agency concludes that representation is
clearly unwarranted, it shall submit, in a timely manner, to the Civil
Division or other appropriate litigating division (Antitrust, Civil
Rights, Criminal, Land and Natural Resources or the Tax Division), a
statement containing its findings as to whether the employee was acting
within the scope of his employment and its recommendation for or against
providing representation. The statement should be accompanied by all
available factual information. In emergency situations the litigating
division may initiate conditional representation after a telephone
request from the appropriate official of the employing agency. In such
cases, the written request and appropriate documentation must be
subsequently provided.
(2) Upon receipt of the individual's request for counsel, the
litigating division shall determine whether the employee's actions
reasonably appear to have been performed within the scope of his
employment and whether providing representation would be in the interest
of the United States. In circumstances where considerations of
professional ethics prohibit direct review of the facts by attorneys of
the litigating division (e.g. because of the possible existence of
inter-defendant conflicts) the litigating division may delegate the
fact-finding aspects of this function to other components of the
Department or to a private attorney at federal expenses.
(3) Attorneys employed by any component of the Department of Justice
who participate in any process utilized for the purpose of determining
whether the Department should provide representation to a federal
employee, undertake a full and traditional attorney-client relationship
with the employee with respect to application of the attorney-client
privilege. If representation is authorized, Justice Department attorneys
who represent an employee under this section also undertake a full and
traditional attorney-client relationship with the employee with respect
to the attorney-client privilege. Any adverse information communicated
by the client-employee to an attorney during the course of such
attorney-client relationship shall not be disclosed to anyone, either
inside or outside the Department, other than attorneys responsible for
representation of the employee, unless such disclosure is authorized by
the employee. Such adverse information shall continue to be fully
protected whether or not representation is provided, and even though
representation may be denied or discontinued. The extent, if any, to
which attorneys employed by an agency other than the Department of
Justice undertake a full and traditional attorney-client relationship
with the employee with respect to the attorney-client privilege, either
for purposes of determining whether representation should be provided or
to assist Justice
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Department attorneys in representing the employee, shall be determined
by the agency employing the attorneys.
(4) Representation generally is not available in federal criminal
proceedings. Representation may be provided to a federal employee in
connection with a federal criminal proceeding only where the Attorney
General or his designee determines that representation is in the
interest of the United States and subject to applicable limitations of
Sec. 50.16. In determining whether representation in a federal criminal
proceeding is in the interest of the United States, the Attorney General
or his designee shall consider, among other factors, the relevance of
any non-prosecutorial interests of the United States, the importance of
the interests implicated, the Department's ability to protect those
interests through other means, and the likelihood of a conflict of
interest between the Department's prosecutorial and representational
responsibilities. If representation is authorized, the Attorney General
or his designee also may determine whether representation by Department
attorneys, retention of private counsel at federal expense, or
reimbursement to the employee of private counsel fees is most
appropriate under the circumstances.
(5) Where representation is sought for proceedings other than
federal criminal proceedings, but there appears to exist the possibility
of a federal criminal investigation or indictment relating to the same
subject matter, the litigating division shall contact a designated
official in the Criminal, Civil Rights or Tax Division or other
prosecutive authority within the Department (hereinafter ``prosecuting
division'') to determine whether the employee is either a subject of a
federal criminal investigation or a defendant in a federal criminal
case. An employee is the subject of an investigation if, in addition to
being circumstantially implicated by having the appropriate
responsibilities at the appropriate time, there is some evidence of his
specific participation in a crime.
(6) If a prosecuting division of the Department indicates that the
employee is not the subject of a criminal investigation concerning the
act or acts for which he seeks representation, then representation may
be provided if otherwise permissible under the provisions of this
section. Similarly, if the prosecuting division indicates that there is
an ongoing investigation, but into a matter unrelated to that for which
representation has been requested, then representation may be provided.
(7) If the prosecuting division indicates that the employee is the
subject of a federal criminal investigation concerning the act or acts
for which he seeks representation, the litigating division shall inform
the employee that no representation by Justice Department attorneys will
be provided in that federal criminal proceeding or in any related civil,
congressional, or state criminal proceeding. In such a case, however,
the litigating division, in its discretion, may provide a private
attorney to the employee at federal expense under the procedures of
Sec. 50.16, or provide reimbursement to employees for private attorney
fees incurred in connection with such related civil, congressional, or
state criminal proceeding, provided no decision has been made to seek an
indictment or file an information against the employee.
(8) In any case where it is determined that Department of Justice
attorneys will represent a federal employee, the employee must be
notified of his right to retain private counsel at his own expense. If
he elects representation by Department of Justice attorneys, the
employee and his agency shall be promptly informed:
(i) That in actions where the United States, any agency, or any
officer thereof in his official capacity is also named as a defendant,
the Department of Justice is required by law to represent the United
States and/or such agency or officer and will assert all appropriate
legal positions and defenses on behalf of such agency, officer and/or
the United States;
(ii) That the Department of Justice will not assert any legal
position or defense on behalf of any employee sued in his individual
capacity which is deemed not to be in the interest of the United States;
(iii) Where appropriate, that neither the Department of Justice nor
any
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agency of the U.S. Government is obligated to pay or to indemnify the
defendant employee for any judgment for money damages which may be
rendered against such employee; but that, where authorized, the employee
may apply for such indemnification from his employing agency upon the
entry of an adverse verdict, judgment, or other monetary award;
(iv) That any appeal by Department of Justice attorneys from an
adverse ruling or judgment against the employee may only be taken upon
the discretionary approval of the Solicitor General, but the employee-
defendant may pursue an appeal at his own expense whenever the Solicitor
General declines to authorize an appeal and private counsel is not
provided at federal expense under the procedures of Sec. 50.16; and
(v) That while no conflict appears to exist at the time
representation is tendered which would preclude making all arguments
necessary to the adequate defense of the employee, if such conflict
should arise in the future the employee will be promptly advised and
steps will be taken to resolve the conflict as indicated by paragraph
(a) (6), (9) and (10) of this section, and by Sec. 50.16.
(9) If a determination not to provide representation is made, the
litigating division shall inform the agency and/or the employee of the
determination.
(10) If conflicts exist between the legal and factual positions of
various employees in the same case which make it inappropriate for a
single attorney to represent them all, the employees may be separated
into as many compatible groups as is necessary to resolve the conflict
problem and each group may be provided with separate representation.
Circumstances may make it advisable that private representation be
provided to all conflicting groups and that direct Justice Department
representation be withheld so as not to prejudice particular defendants.
In such situations, the procedures of Sec. 50.16 will apply.
(11) Whenever the Solicitor General declines to authorize further
appellate review or the Department attorney assigned to represent an
employee becomes aware that the representation of the employee could
involve the assertion of a position that conflicts with the interests of
the United States, the attorney shall fully advise the employee of the
decision not to appeal or the nature, extent, and potential consequences
of the conflict. The attorney shall also determine, after consultation
with his supervisor (and, if appropriate, with the litigating division)
whether the assertion of the position or appellate review is necessary
to the adequate representation of the employee and
(i) If it is determined that the assertion of the position or appeal
is not necessary to the adequate representation of the employee, and if
the employee knowingly agrees to forego appeal or to waive the assertion
of that position, governmental representation may be provided or
continued; or
(ii) If the employee does not consent to forego appeal or waive the
assertion of the position, or if it is determined that an appeal or
assertion of the position is necessary to the adequate representation of
the employee, a Justice Department lawyer may not provide or continue to
provide the representation; and
(iii) In appropriate cases arising under paragraph (a)(10)(ii) of
this section, a private attorney may be provided at federal expense
under the procedures of Sec. 50.16.
(12) Once undertaken, representation of a federal employee under
this subsection will continue until either all appropriate proceedings,
including applicable appellate procedures approved by the Solicitor
General, have ended, or until any of the bases for declining or
withdrawing from representation set forth in this section is found to
exist, including without limitation the basis that representation is not
in the interest of the United States. If representation is discontinued
for any reason, the representing Department attorney on the case will
seek to withdraw but will take all reasonable steps to avoid prejudice
to the employee.
(b) Representation is not available to a federal employee whenever:
(1) The conduct with regard to which the employee desires
representation does not reasonably appear to have been performed within
the scope of his
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employment with the federal government;
(2) It is otherwise determined by the Department that it is not in
the interest of the United States to provide representation to the
employee.
(c)(1) The Department of Justice may indemnify the defendant
Department of Justice employee for any verdict, judgment, or other
monetary award which is rendered against such employee, provided that
the conduct giving rise to the verdict, judgment, or award was taken
within the scope of employment and that such indemnification is in the
interest of the United States, as determined by the Attorney General or
his designee.
(2) The Department of Justice may settle or compromise a personal
damages claim against a Department of Justice employee by the payment of
available funds, at any time, provided the alleged conduct giving rise
to the personal damages claim was taken within the scope of employment
and that such settlement or compromise is in the interest of the United
States, as determined by the Attorney General or his designee.
(3) Absent exceptional circumstances as determined by the Attorney
General or his designee, the Department will not entertain a request
either to agree to indemnify or to settle a personal damages claim
before entry of an adverse verdict, judgment, or award.
(4) The Department of Justice employee may request indemnification
to satisfy a verdict, judgment, or award entered against the employee.
The employee shall submit a written request, with appropriate
documentation including copies of the verdict, judgment, award, or
settlement proposal if on appeal, to the head of his employing
component, who shall thereupon submit to the appropriate Assistant
Attorney General, in a timely manner, a recommended disposition of the
request. Where appropriate, the Assistant Attorney General shall seek
the views of the U.S. Attorney; in all such cases the Civil Division
shall be consulted. The Assistant Attorney General shall forward the
request, the employing component's recommendation, and the Assistant
Attorney General's recommendation to the Attorney General for decision.
(5) Any payment under this section either to indemnify a Department
of Justice employee or to settle a personal damages claim shall be
contingent upon the availability of appropriated funds of the employing
component of the Department of Justice.
[Order No. 970-82, 47 FR 8172, Feb. 25, 1982, as amended at Order No.
1139-86, 51 FR 27022, July 29, 1986; Order No. 1409-90, 55 FR 13130,
Apr. 9, 1990]
Sec. 50.16 Representation of Federal employees by private counsel at Federal expense.
(a) Representation by private counsel at federal expense or
reimbursement of private counsel fees is subject to the availability of
funds and may be provided to a federal employee only in the instances
described in Sec. 50.15(a) (4), (7), (10), and (11), and in appropriate
circumstances, for the purposes set forth in Sec. 50.15(a)(2).
(b) To ensure uniformity in retention and reimbursement procedures
among the litigating divisions, the Civil Division shall be responsible
for establishing procedures for the retention of private counsel and the
reimbursement to an employee of private counsel fees, including the
setting of fee schedules. In all instances where a litigating division
decides to retain private counsel or to provide reimbursement of private
counsel fees under this section, the Civil Division shall be consulted
before the retention or reimbursement is undertaken.
(c) Where private counsel is provided, the following procedures
shall apply:
(1) While the Department of Justice will generally defer to the
employee's choice of counsel, the Department must approve in advance any
private counsel to be retained under this section. Where national
security interests may be involved, the Department of Justice will
consult with the agency employing the federal defendant seeking
representation.
(2) Federal payments to private counsel for an employee will cease
if the private counsel violates any of the terms of the retention
agreement or the Department of Justice.
[[Page 70]]
(i) Decides to seek an indictment of, or to file an information
against, that employee on a federal criminal charge relating to the
conduct concerning which representation was undertaken;
(ii) Determines that the employee's actions do not reasonably appear
to have been performed within the scope of his employment;
(iii) Resolves any conflict described herein and tenders
representation by Department of Justice attorneys;
(iv) Determines that continued representation is not in the interest
of the United States;
(v) Terminates the retainer with the concurrence of the employee-
client for any reason.
(d) Where reimbursement is provided for private counsel fees
incurred by employees, the following limitations shall apply:
(1) Reimbursement shall be limited to fees incurred for legal work
that is determined to be in the interest of the United States.
Reimbursement is not available for legal work that advances only the
individual interests of the employee.
(2) Reimbursement shall not be provided if at any time the Attorney
General or his designee determines that the employee's actions do not
reasonably appear to have been performed within the scope of his
employment or that representation is no longer in the interest of the
United States.
(3) Reimbursement shall not be provided for fees incurred during any
period of time for which representation by Department of Justice
attorneys was tendered.
(4) Reimbursement shall not be provided if the United States decides
to seek an indictment of or to file an information against the employee
seeking reimbursement, on a criminal charge relating to the conduct
concerning which representation was undertaken.
[Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by Order No.
1409-90, 55 FR 13130, Apr. 9, 1990]
Sec. 50.17 Ex parte communications in informal rulemaking proceedings.
In rulemaking proceedings subject only to the procedural
requirements of 5 U.S.C. 553:
(a) A general prohibition applicable to all offices, boards, bureaus
and divisions of the Department of Justice against the receipt of
private, ex parte oral or written communications is undesirable, because
it would deprive the Department of the flexibility needed to fashion
rulemaking procedures appropriate to the issues involved, and would
introduce a degree of formality that would, at least in most instances,
result in procedures that are unduly complicated, slow, and expensive,
and, at the same time, perhaps not conducive to developing all relevant
information.
(b) All written communications from outside the Department addressed
to the merits of a proposed rule, received after notice of proposed
informal rulemaking and in its course by the Department, its offices,
boards, and bureaus, and divisions or their personnel participating in
the decision, should be placed promptly in a file available for public
inspection.
(c) All oral communications from outside the Department of
significant information or argument respecting the merits of a proposed
rule, received after notice of proposed informal rulemaking and in its
course by the Department, its offices, boards, bureaus, and divisions or
their personnel participating in the decision, should be summarized in
writing and placed promptly in a file available for public inspection.
(d) The Department may properly withhold from the public files
information exempt from disclosure under 5 U.S.C. 552.
(e) The Department may conclude that restrictions on ex parte
communications in particular rulemaking proceedings are necessitated by
considerations of fairness or for other reasons.
[Order No. 801-78, 43 FR 43297, Sept. 25, 1978, as amended at Order No.
1409-90, 55 FR 13130, April 9, 1990]
Sec. 50.18 [Reserved]
Sec. 50.19 Procedures to be followed by government attorneys prior to filing recusal or disqualification motions.
The determination to seek for any reason the disqualification or
recusal
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of a justice, judge, or magistrate is a most significant and sensitive
decision. This is particularly true for government attorneys, who should
be guided by uniform procedures in obtaining the requisite authorization
for such a motion. This statement is designed to establish a uniform
procedure.
(a) No motion to recuse or disqualify a justice, judge, or
magistrate (see, e.g., 28 U.S.C. 144, 455) shall be made or supported by
any Department of Justice attorney, U.S. Attorney (including Assistant
U.S. Attorneys) or agency counsel conducting litigation pursuant to
agreement with or authority delegated by the Attorney General, without
the prior written approval of the Assistant Attorney General having
ultimate supervisory power over the action in which recusal or
disqualification is being considered.
(b) Prior to seeking such approval, Justice Department lawyer(s)
handling the litigation shall timely seek the recommendations of the
U.S. Attorney for the district in which the matter is pending, and the
views of the client agencies, if any. Similarly, if agency attorneys are
primarily handling any such suit, they shall seek the recommendations of
the U.S. Attorney and provide them to the Department of Justice with the
request for approval. In actions where the United States Attorneys are
primarily handling the litigation in question, they shall seek the
recommendation of the client agencies, if any, for submission to the
Assistant Attorney General.
(c) In the event that the conduct and pace of the litigation does
not allow sufficient time to seek the prior written approval by the
Assistant Attorney General, prior oral authorization shall be sought and
a written record fully reflecting that authorization shall be
subsequently prepared and submitted to the Assistant Attorney General.
(d) Assistant Attorneys General may delegate the authority to
approve or deny requests made pursuant to this section, but only to
Deputy Assistant Attorneys General or an equivalent position.
(e) This policy statement does not create or enlarge any legal
obligations upon the Department of Justice in civil or criminal
litigation, and it is not intended to create any private rights
enforceable by private parties in litigation with the United States.
[Order No. 977-82, 47 FR 22094, May 21, 1982]
Sec. 50.20 Participation by the United States in court-annexed arbitration.
(a) Considerations affecting participation in arbitration. (1) The
Department recognizes and supports the general goals of court-annexed
arbitrations, which are to reduce the time and expenses required to
dispose of civil litigation. Experimentations with such procedures in
appropriate cases can offer both the courts and litigants an opportunity
to determine the effectiveness of arbitration as an alternative to
traditional civil litigation.
(2) An arbitration system, however, is best suited for the
resolution of relatively simple factual issues, not for trying cases
that may involve complex issues of liability or other unsettled legal
questions. To expand an arbitration system beyond the types of cases for
which it is best suited and most competent would risk not only a
decrease in the quality of justice available to the parties but
unnecessarily higher costs as well.
(3) In particular, litigation involving the United States raises
special concerns with respect to court-annexed arbitration programs. A
mandatory arbitration program potentially implicates the principles of
separation of powers, sovereign immunity, and the Attorney General's
control over the process of settling litigation.
(b) General rule consenting to arbitration consistent with the
department's regulations. (1) Subject to the considerations set forth in
the following paragraphs and the restrictions set forth in paragraphs
(c) and (d), in a case assigned to arbitration or mediation under a
local district court rule, the Department of Justice agrees to
participate in the arbitration process under the local rule. The
attorney for the government responsible for the case should take any
appropriate steps in conducting the case to protect the interests of the
United States.
(2) Based upon its experience under arbitration programs to date,
and the
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purposes and limitations of court-annexed arbitration, the Department
generally endorses inclusion in a district's court-annexed arbitration
program of civil actions--
(i) In which the United States or a Department, agency, or official
of the United States is a party, and which seek only money damages in an
amount not in excess of $100,000, exclusive of interest and costs; and
(ii) Which are brought (A) under the Federal Tort Claims Act, 28
U.S.C. 1346(b), 2671 et seq., or (B) under the Longshoreman's and Harbor
Worker's Compensation Act, 33 U.S.C. 905, or (C) under the Miller Act,
40 U.S.C. 270(b).
(3) In any other case in which settlement authority has been
delegated to the U.S. Attorney under the regulations of the Department
and the directives of the applicable litigation division and none of the
exceptions to such delegation apply, the U.S. Attorney for the district,
if he concludes that a settlement of the case upon the terms of the
arbitration award would be appropriate, may proceed to settle the case
accordingly.
(4) Cases other than those described in paragraph (2) that are not
within the delegated settlement authority of the U.S. Attorney for the
district ordinarily are not appropriate for an arbitration process
because the Department generally will not be able to act favorably or
negatively in a short period of time upon a settlement of the case in
accordance with the arbitration award. Therefore, this will result in a
demand for trial de novo in a substantial proportion of such cases to
preserve the interests of the United States.
(5) The Department recommends that any district court's arbitration
rule include a provision exempting any case from arbitration, sua sponte
or on motion of a party, in which the objectives of arbitration would
not appear to be realized, because the case involves complex or novel
legal issues, or because legal issues predominate over factual issues,
or for other good cause.
(c) Objection to the imposition of penalties or sanctions against
the United States for demanding trial de novo. (1) Under the principle
of sovereign immunity, the United States cannot be held liable for costs
or sanctions in litigation in the absence of a statutory provision
waiving its immunity. In view of the statutory limitations on the costs
payable by the United States (28 U.S.C. 2412(a), 2412(b), and 1920), the
Department does not consent to provisions in any district's arbitration
program providing for the United States or the Department, agency, or
official named as a party to the action to pay any sanction for
demanding a trial de novo--either as a deposit in advance or as a
penalty imposed after the fact--which is based on the arbitrators' fees,
the opposing party's attorneys' fees, or any other costs not authorized
by statute to be awarded against the United States. This objection
applies whether the penalty or sanction is required to be paid to the
opposing party, to the clerk of the court, or to the Treasury of the
United States.
(2) In any case involving the United States that is designated for
arbitration under a program pursuant to which such a penalty or sanction
might be imposed against the United States, its officers or agents, the
attorney for the government is instructed to take appropriate steps, by
motion, notice of objection, or otherwise, to apprise the court of the
objection of the United States to the imposition of such a penalty or
sanction.
(3) Should such a penalty or sanction actually be required of or
imposed on the United States, its officers or agents, the attorney for
the government is instructed to:
(i) Advise the appropriate Assistant Attorney General of this
development promptly in writing;
(ii) Seek appropriate relief from the district court; and
(iii) If necessary, seek authority for filing an appeal or petition
for mandamus.
The Solicitor General, the Assistant Attorneys General, and the U.S.
Attorneys are instructed to take all appropriate steps to resist the
imposition of such penalties or sanctions against the United States.
(d) Additional restrictions. (1) The Assistant Attorneys General,
the U.S. Attorneys, and their delegates, have no authority to settle or
compromise the interests of the United States in a case
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pursuant to an arbitration process in any respect that is inconsistent
with the limitations upon the delegation of settlement authority under
the Department's regulations and the directives of the litigation
divisions. See 28 CFR part 0, subpart Y and appendix to subpart Y. The
attorney for the government shall demand trial de novo in any case in
which:
(i) Settlement of the case on the basis of the amount awarded would
not be in the best interests of the United States;
(ii) Approval of a proposed settlement under the Department's
regulations in accordance with the arbitration award cannot be obtained
within the period allowed by the local rule for rejection of the award;
or
(iii) The client agency opposes settlement of the case upon the
terms of the settlement award, unless the appropriate official of the
Department approves a settlement of the case in accordance with the
delegation of settlement authority under the Department's regulations.
(2) Cases sounding in tort and arising under the Constitution of the
United States or under a common law theory filed against an employee of
the United States in his personal capacity for actions within the scope
of his employment which are alleged to have caused injury or loss of
property or personal injury or death are not appropriate for
arbitration.
(3) Cases for injunctive or declaratory relief are not appropriate
for arbitration.
(4) The Department reserves the right to seek any appropriate relief
to which its client is entitled, including injunctive relief or a ruling
on motions for judgment on the pleadings, for summary judgment, or for
qualified immunity, or on issues of discovery, before proceeding with
the arbitration process.
(5) In view of the provisions of the Federal Rules of Evidence with
respect to settlement negotiations, the Department objects to the
introduction of the arbitration process or the arbitration award in
evidence in any proceeding in which the award has been rejected and the
case is tried de novo.
(6) The Department's consent for participation in an arbitration
program is not a waiver of sovereign immunity or other defenses of the
United States except as expressly stated; nor is it intended to affect
jursidictional limitations (e.g., the Tucker Act).
(e) Notification of new or revised arbitration rules. The U.S.
Attorney in a district which is considering the adoption of or has
adopted a program of court-annexed arbitration including cases involving
the United States shall:
(1) Advise the district court of the provisions of this section and
the limitations on the delegation of settlement authority to the United
States Attorney pursuant to the Department's regulations and the
directives of the litigation divisions; and
(2) Forward to the Executive Office for United States Attorneys a
notice that such a program is under consideration or has been adopted,
or is being revised, together with a copy of the rules or proposed
rules, if available, and a recommendation as to whether United States
participation in the program as proposed, adopted, or revised, would be
advisable, in whole or in part.
[Order No. 1109-85, 50 FR 40524, Oct. 4, 1985]
Sec. 50.21 Procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities.
(a) General. The procedures set forth below are intended as a
statement of policy of the Department of Justice and will be applied by
the Department in exercising its responsibilities under Federal law
relating to the destruction of seized contraband drugs.
(b) Purpose. This policy implements the authority of the Attorney
General under title I, section 1006(c)(3) of the Anti-Drug Abuse Act of
1986, Public Law 99-570 which is codified at 21 U.S.C. 881(f)(2), to
direct the destruction, as necessary, of Schedule I and II contraband
substances.
(c) Policy. This regulation is intended to prevent the warehousing
of large quantities of seized contraband drugs which are unnecessary for
due process in criminal cases. Such stockpiling of contraband drugs
presents inordinate security and storage problems which create
additional economic burdens on
[[Page 74]]
limited law enforcement resources of the United States.
(d) Definitions. As used in this subpart, the following terms shall
have the meanings specified:
(1) The term Contraband drugs are those controlled substances listed
in Schedules I and II of the Controlled Substances Act seized for
violation of that Act.
(2) The term Marijuana is as defined in 21 U.S.C. 801(15) but does
not include, for the purposes of this regulation, the derivatives
hashish or hashish oil for purposes of destruction.
(3) The term Representative sample means the exemplar for testing
and a sample aggregate portion of the whole amount seized sufficient for
current criminal evidentiary practice.
(4) The term Threshold amount means:
(i) Two kilograms of a mixture or substance containing a detectable
amount of heroin;
(ii) Ten kilograms of a mixture or substance containing a detectable
amount of--
(A) Coca leaves, except coca leaves and extracts of coca leaves from
which cocaine, ecgonine, and derivatives of ecognine or their salts have
been removed;
(B) Cocaine, its salts, optical and geometric isomers, and salts of
isomers;
(C) Ecgonine, its derivatives, their salts, isomers, and salts of
isomers; or
(D) Any compound, mixture, or preparation which contains any
quantity of any of the substances referred to in paragraphs (d)(4)(ii)
(A) through (C) of this section;
(iii) Ten kilograms of a mixture or substance described in paragraph
(d)(4)(ii)(B) of this section which contains cocaine base;
(iv) Two hundred grams of phencyclidine (PCP) or two kilograms of a
mixture or substance containing a detectable amount of phencyclidine
(PCP);
(v) Twenty grams of a mixture or substance containing a detectable
amount of Lysergic Acid Diethylamide (LSD);
(vi) Eight hundred grams of a mixture or substance containing a
detectable amount of N-phenyl-N[1-(2-phenylethyl)-4-piperidiny]
propanamide (commonly known as fentanyl) or two hundred grams of a
mixture or substance containing a detectable amount of any analogue of
N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl propanamide; or
(vii) Twenty kilograms of hashish or two kilograms of hashish oil
(21 U.S.C. 841(b)(1)(D), 960(b)(4)).
In the event of any changes to section 401(b)(1) of the Controlled
Substances Act (21 U.S.C. 841(b)(1) as amended occurring after the date
of these regulations, the threshold amount of any substance therein
listed, except marijuana, shall be twice the minimum amount required for
the most severe mandatory minimum sentence.
(e) Procedures. Responsibilities of the Federal Bureau of
Investigation and Drug Enforcement Administration.
When contraband drug substances in excess of the threshold amount or in
the case of marijuana a quantity in excess of the representative sample
are seized pursuant to a criminal investigation and retained in the
custody of the Federal Bureau of Investigation or Drug Enforcement
Administration, the Agency having custody shall:
(1) Immediately notify the appropriate U.S. Attorney, Assistant U.S.
Attorney, or the responsible state/local prosecutor that the amount of
seized contraband drug exceeding the threshold amount and its packaging,
will be destroyed after sixty days from the date notice is provided of
the seizures, unless the agency providing notice is requested in writing
by the authority receiving notice not to destroy the excess contraband
drug; and
(2) Assure that appropriate tests of samples of the drug are
conducted to determined the chemical nature of the contraband substance
and its weight sufficient to serve as evidence before the trial courts
of that jurisdiction; and
(3) Photographically depict, and if requested by the appropriate
prosecutorial authority, videotape, the contraband drugs as originally
packaged or an appropriate display of the seized contraband drugs so as
to create evidentiary exhibits for use at trial; and
(4) Isolate and retain the appropriate threshold amounts of
contraband drug evidence when an amount greater than
[[Page 75]]
the appropriate threshold amount has been seized, or when less than the
appropriate threshold amounts of contraband drugs have been seized, the
entire amount of the seizure, with the exception of marijuana, for which
a representative sample shall be retained; and
(5) Maintain the retained portions of the contraband drugs until the
evidence is no longer required for legal proceedings, at which time it
may be destroyed, first having obtained consent of the U.S. Attorney, an
Assistant U.S. Attorney, or the responsible state/local prosecutor;
(6) Notify the appropriate U.S. Attorney, Assistant U.S. Attorney,
or the responsible state/local prosecutor to obtain consent to destroy
the retained amount or representative sample whenever th e related
suspect(s) has been a fugitive from justice for a period of five years.
An exemplar sufficent for testing will be retained consistent with this
section.
(f) Procedures. Responsibilities of the U.S. Attorney or the
District Attorney (or equivalent state/local prosecutorial authority).
When so notified by the Federal Bureau of Investigation or the Drug
Enforcement Administration of an intent to destroy excess contraband
drugs, the U.S. Attorney or the District Attorney (or equivalent) may:
(1) Agree to the destruction of the contraband drug evidence in
excess of the threshold amount, or for marijuana in excess of the
representative sample, prior to the normal sixty-day period. The U.S.
Attorney, or the District Attorney (or equivalent) may delegate to his/
her assistants authority to enter into such agreement; or
(2) Request an exception to the destruction policy in writing to the
Special Agent in Charge of the responsible division prior to the end of
the sixty-day period when retaining only the threshold amount or
representative sample will significantly affect any legal proceedings;
and
(3) In the event of a denial of the request may appeal the denial to
the Assistant Attorney General, Criminal Division. Such authority may
not be redelegated. An appeal shall stay the destruction until the
appeal is complete.
(g) Supplementary regulations. The Federal Bureau of Investigation
and the Drug Enforcement Administration are authorized to issue
regulations and establish procedures consistent with this section.
[Order No. 1256-88, 53 FR 8453, Mar. 15, 1988]
Sec. 50.22 Young American Medals Program.
(a) Scope. There are hereby established two medals, one to be known
as the Young American Medal for Bravery and the other to be known as the
Young American Medal for Service.
(b) Young American Medal for Bravery. (1)(i) The Young American
Medal for Bravery may be awarded to a person--
(A) Who during a given calendar year has exhibited exceptional
courage, attended by extraordinary decisiveness, presence of mind, and
unusual swiftness of action, regardless of his or her own personal
safety, in an effort to save or in saving the life of any person or
persons in actual imminent danger;
(B) Who was eighteen years of age or younger at the time of the
occurrence; and
(C) Who habitually resides in the United States (including its
territories and possessions), but need not be a citizen thereof.
(ii) These conditions must be met at the time of the event.
(2) The act of bravery must have been public in nature and must have
been acknowledged by the Governor, Chief Executive Officer of a State,
county, municipality, or other political subdivision, or by a civic,
educational, or religious institution, group, or society.
(3) No more than two such medals may be awarded in any one calendar
year.
(c) Young American Medal for Service. (1) The Young American Medal
for Service may be awarded to any citizen of the United States eighteen
years of age or younger at the time of the occurrence, who has achieved
outstanding or unusual recognition for character and service during a
given calendar year.
(2) Character attained and service accomplished by a candidate for
this medal must have been such as to make
[[Page 76]]
his or her achievement worthy of public report. The outstanding and
unusual recognition of the candidate's character and service must have
been public in nature and must have been acknowledged by the Governor,
Chief Executive Officer of a State, county, municipality, or other
political subdivision, or by a civic, educational, or religious
institution, group, or society.
(3) The recognition of the character and service upon which the
award of the Medal for Service is based must have been accorded
separately and apart from the Young American Medals program and must not
have been accorded for the specific and announced purpose of rendering a
candidate eligible, or of adding to a candidate's qualifications, for
the award of the Young American Medal for Service.
(4) No more than two such medals may be awarded in any one calendar
year.
(d) Eligibility. (1) The act or acts of bravery and the recognition
for character and service that make a candidate eligible for the
respective medals must have occurred during the calendar year for which
the award is made.
(2) A candidate may be eligible for both medals in the same year.
Moreover, the receipt of either medal in any year will not affect a
candidate's eligibility for the award of either or both of the medals in
a succeeding year.
(3) Acts of bravery performed and recognition of character and
service achieved by persons serving in the Armed Forces, which arise
from or out of military duties, shall not make a candidate eligible for
either of the medals, provided, however, that a person serving in the
Armed Forces shall be eligible to receive either or both of the medals
if the act of bravery performed or the recognition for character and
service achieved is on account of acts and service performed or rendered
outside of and apart from military duties.
(e) Request for information. (1) A recommendation in favor of a
candidate for the award of a Young American Medal for Bravery or for
Service must be accompanied by:
(i) A full and complete statement of the candidate's act or acts of
bravery or recognized character and service (including the times and
places) that supports qualification of the candidate to receive the
appropriate medal;
(ii) Statements by witnesses or persons having personal knowledge of
the facts surrounding the candidate's act or acts of bravery or
recognized character and service, as required by the respective medals;
(iii) A certified copy of the candidate's birth certificate, or, if
no birth certificate is available, other authentic evidence of the date
and place of the candidate's birth; and
(iv) A biographical sketch of the candidate, including information
as to his or her citizenship or habitual residence, as may be required
by the respective medals.
(f) Procedure. (1)(i) All recommendations and accompanying documents
and papers should be submitted to the Governor or Chief Executive
Officer of the State, territory, or possession of the United States
where the candidate's act or acts of bravery or recognized character and
service were demonstrated. In the case of the District of Columbia, the
recommendations should be submitted to the Mayor of the District of
Columbia.
(ii) If the act or acts of bravery or recognized character and
service did not occur within the boundaries of any State, territory, or
possession of the United States, the papers should be submitted to the
Governor or Chief Executive Officer of the territory or other possession
of the United States wherein the candidate habitually maintains his or
her residence.
(2) The Governor or Chief Executive Officer, after considering the
various recommendations received after the close of the pertinent
calendar year, may nominate therefrom no more than two candidates for
the Young American Medal for Bravery and no more than two candidates for
the Young American Medal for Service. Nominated individuals should have,
in the opinion of the appropriate official, shown by the facts and
circumstances to be the most worthy and qualified candidates from the
jurisdiction to receive consideration for awards of the above-named
medals.
[[Page 77]]
(3) Nominations of candidates for either medal must be submitted no
later than 120 days after notification that the Department of Justice is
seeking nominations under this program for a specific calendar year.
Each nomination must contain the necessary documentation establishing
eligibility, must be submitted by the Governor or Chief Executive
Officer, together with any comments, and should be submitted to the
address published in the notice.
(4) Nominations of candidates for medals will be considered only
when received from the Governor or Chief Executive Officer of a State,
territory, or possession of the United States.
(5) The Young American Medals Committee will select, from
nominations properly submitted, those candidates who are shown by the
facts and circumstances to be eligible for the award of the medals. The
Committee shall make recommendations to the Attorney General based on
its evaluation of the nominees. Upon consideration of these
recommendations, the Attorney General may select up to the maximum
allowable recipients for each medal for the calendar year.
(g) Presentation. (1) The Young American Medal for Bravery and the
Young American Medal for Service will be presented personally by the
President of the United States to the candidates selected. These medals
will be presented in the name of the President and the Congress of the
United States. Presentation ceremonies shall be held at such times and
places selected by the President in consultation with the Attorney
General.
(2) The Young American Medals Committee will officially designate
two adults (preferably the parents of the candidate) to accompany each
candidate selected to the presentation ceremonies. The candidates and
persons designated to accompany them will be furnished transportation
and other appropriate allowances.
(3) There shall be presented to each recipient an appropriate
Certificate of Commendation stating the circumstances under which the
act of bravery was performed or describing the outstanding recognition
for character and service, as appropriate for the medal awarded. The
Certificate will bear the signature of the President of the United
States and the Attorney General of the United States.
(4) There also shall be presented to each recipient of a medal, a
miniature replica of the medal awarded in the form of a lapel pin.
(h) Posthumous awards. In cases where a medal is awarded
posthumously, the Young American Medals Committee will designate the
father or mother of the deceased or other suitable person to receive the
medal on behalf of the deceased. The decision of the Young American
Medals Committee in designating the person to receive the posthumously
awarded medal, on behalf of the deceased, shall be final.
(i) Young American Medals Committee. The Young American Medals
Committee shall be represented by the following:
(1) Director of the FBI, Chairman;
(2) Administrator of the Drug Enforcement Administration, Member;
(3) Director of the U.S. Marshals Service, Member; and
(4) Assistant Attorney General, Office of Justice Programs, Member
and Executive Secretary.
(Authority: The United States Department of Justice is authorized under
42 U.S.C. 1921 et seq. to promulgate rules and regulations establishing
medals, one for bravery and one for service. This authority was enacted
by chapter 520 of Pub. L. 81-638 (August 3, 1950).)
[61 FR 49260, Sept. 19, 1996]
Sec. 50.23 Policy against entering into final settlement agreements or consent decree that are subject to confidentiality provisions and against seeking or
concurring in the sealing of such documents.
(a) It is the policy of the Department of Justice that, in any civil
matter in which the Department is representing the interests of the
United States or its agencies, it will not enter into final settlement
agreements or consent decrees that are subject to confidentiality
provisions, nor will it seek or concur in the sealing of such documents.
This policy flows from the principle of openness in government and is
[[Page 78]]
consistent with the Department's policies regarding openness in judicial
proceedings (see 28 CFR 50.9) and the Freedom of Information Act (see
Memorandum for Heads of Departments and Agencies from the Attorney
General Re: The Freedom of Information Act (Oct. 4, 1993)).
(b) There may be rare circumstances that warrant an exception to
this general rule. In determining whether an exception is appropriate,
any such circumstances must be considered in the context of the public's
strong interest in knowing about the conduct of its Government and
expenditure of its resources. The existence of such circumstances must
be documented as part of the approval process, and any confidentiality
provision must be drawn as narrowly as possible. Non-delegable approval
authority to determine that an exception justifies use of a
confidentiality provision in, or seeking or concurring in the sealing
of, a final settlement or consent decree resides with the relevant
Assistant Attorney General or United States Attorney, unless authority
to approve the settlement itself lies with a more senior Department
official, in which case the more senior official will have such approval
authority.
(c) Regardless of whether particular information is subject to a
confidentiality provision or to seal, statutes and regulations may
prohibit its disclosure from Department of Justice files. Thus, before
releasing any information, Department attorneys should consult all
appropriate statutes and regulations (e.g., 5 U.S.C. 552a (Privacy Act);
50 U.S.C. 403-3(c)(6) (concerning intelligence sources and methods), and
Execution Order 12958 (concerning national security information). In
particular, in matters involving individuals, the Privacy Act regulates
disclosure of settlement agreements that have not been made part of the
court record.
(d) The principles set forth in this section are intended to provide
guidance to attorneys for the Government and are not intended to create
or recognize any legally enforceable right in any person.
[Order No. 2270-99, 64 FR 59122, Nov. 2, 1999]
PART 51--PROCEDURES FOR THE ADMINISTRATION OF SECTION 5 OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED--Table of Contents
Subpart A--General Provisions
Sec.
51.1 Purpose.
51.2 Definitions.
51.3 Delegation of authority.
51.4 Date used to determine coverage; list of covered jurisdictions.
51.5 Termination of coverage (bailout).
51.6 Political subunits.
51.7 Political parties.
51.8 Section 3 coverage.
51.9 Computation of time.
51.10 Requirement of action for declaratory judgment or submission to
the Attorney General.
51.11 Right to bring suit.
51.12 Scope of requirement.
51.13 Examples of changes.
51.14 Recurrent practices.
51.15 Enabling legislation and contingent or nonuniform requirements.
51.16 Distinction between changes in procedure and changes in
substance.
51.17 Special elections.
51.18 Court-ordered changes.
51.19 Request for notification concerning voting litigation.
Subpart B--Procedures for Submission to the Attorney General
51.20 Form of submissions.
51.21 Time of submissions.
51.22 Premature submissions.
51.23 Party and jurisdiction responsible for making submissions.
51.24 Address for submissions.
51.25 Withdrawal of submissions.
Subpart C--Contents of Submissions
51.26 General.
51.27 Required contents.
51.28 Supplemental contents.
Subpart D--Communications From Individuals and Groups
51.29 Communications concerning voting changes.
51.30 Action on communications from individuals or groups.
51.31 Communications concerning voting suits.
51.32 Establishment and maintenance of registry of interested
individuals and groups.
[[Page 79]]
Subpart E--Processing of Submissions
51.33 Notice to registrants concerning submissions.
51.34 Expedited consideration.
51.35 Disposition of inappropriate submissions.
51.36 Release of information concerning submissions.
51.37 Obtaining information from the submitting authority.
51.38 Obtaining information from others.
51.39 Supplementary submissions.
51.40 Failure to complete submissions.
51.41 Notification of decision not to object.
51.42 Failure of the Attorney General to respond.
51.43 Reexamination of decision not to object.
51.44 Notification of decision to object.
51.45 Request for reconsideration.
51.46 Reconsideration of objection at the instance of the Attorney
General.
51.47 Conference.
51.48 Decision after reconsideration.
51.49 Absence of judicial review.
51.50 Records concerning submissions.
Subpart F--Determinations by the Attorney General
51.51 Purpose of the subpart.
51.52 Basic standard.
51.53 Information considered.
51.54 Discriminatory effect.
51.55 Consistency with constitutional and statutory requirements.
51.56 Guidance from the courts.
51.57 Relevant factors.
51.58 Representation.
51.59 Redistrictings.
51.60 Changes in electoral systems.
51.61 Annexations.
Subpart G--Sanctions
51.62 Enforcement by the Attorney General.
51.63 Enforcement by private parties.
51.64 Bar to termination of coverage (bailout).
Subpart H--Petition To Change Procedures
51.65 Who may petition.
51.66 Form of petition.
51.67 Disposition of petition.
Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the
Voting Rights Act, as Amended
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; and 42 U.S.C. 1973c.
Source: 52 FR 490, Jan. 6, 1987, unless otherwise noted.
Subpart A--General Provisions
Sec. 51.1 Purpose.
(a) Section 5 of the Voting Rights Act of 1965, as amended, 42
U.S.C. 1973c, prohibits the enforcement in any jurisdiction covered by
section 4(b) of the Act, 42 U.S.C. 1973b(b), of any voting qualification
or prerequisite to voting, or standard, practice, or procedure with
respect to voting different from that in force or effect on the date
used to determine coverage, until either:
(1) A declaratory judgment is obtained from the U.S. District Court
for the District of Columbia that such qualification, prerequisite,
standard, practice, or procedure does not have the purpose and will not
have the effect of denying or abridging the right to vote on account of
race, color, or membership in a language minority group, or
(2) It has been submitted to the Attorney General and the Attorney
General has interposed no objection within a 60-day period following
submission.
(b) In order to make clear the responsibilities of the Attorney
General under section 5 and the interpretation of the Attorney General
of the responsibility imposed on others under this section, the
procedures in this part have been established to govern the
administration of section 5.
Sec. 51.2 Definitions.
As used in this part--
Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by
the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act,
84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400,
and the Voting Rights Act Amendments of 1982, 96 Stat. 131, 42 U.S.C.
1973 et seq. Section numbers, such as ``section 14(c)(3),'' refer to
sections of the Act.
Attorney General means the Attorney General of the United States or
the delegate of the Attorney General.
Change affecting voting means any voting qualification, prerequisite
to voting, or standard, practice, or procedure with respect to voting
different from that in force or effect on the date
[[Page 80]]
used to determine coverage under section 4(b) and includes, inter alia,
the examples given in Sec. 51.13.
Covered jurisdiction is used to refer to a State, where the
determination referred to in Sec. 51.4 has been made on a statewide
basis, and to a political subdivision, where the determination has not
been made on a statewide basis.
Language minorities or language minority group is used, as defined
in the Act, to refer to persons who are American Indian, Asian American,
Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)).
See 28 CFR part 55, Interpretative Guidelines: Implementation of the
Provisions of the Voting Rights Act Regarding Language Minority Groups.
Political subdivision is used, as defined in the Act, to refer to
``any county or parish, except that where registration for voting is not
conducted under the supervision of a county or parish, the term shall
include any other subdivision of a State which conducts registration for
voting.'' (Section 14(c)(2)).
Preclearance is used to refer to the obtaining of the declaratory
judgment described in section 5, to the failure of the Attorney General
to interpose an objection pursuant to section 5, or to the withdrawal of
an objection by the Attorney General pursuant to Sec. 51.48(b).
Submission is used to refer to the written presentation to the
Attorney General by an appropriate official of any change affecting
voting.
Submitting authority means the jurisdiction on whose behalf a
submission is made.
Vote and voting are used, as defined in the Act, to include ``all
action necessary to make a vote effective in any primary, special, or
general election, including, but not limited to, registration, listing
pursuant to this Act, or other action required by law prerequisite to
voting, casting a ballot, and having such ballot counted properly and
included in the appropriate totals of votes cast with respect to
candidates for public or party office and propositions for which votes
are received in an election.'' (Section 14(c)(1)).
Sec. 51.3 Delegation of authority.
The responsibility and authority for determinations under section 5
have been delegated by the Attorney General to the Assistant Attorney
General, Civil Rights Division. With the exception of objections and
decisions following the reconsideration of objections, the Chief of the
Voting Section is authorized to act on behalf of the Assistant Attorney
General.
Sec. 51.4 Date used to determine coverage; list of covered jurisdictions.
(a) The requirement of section 5 takes effect upon publication in
the Federal Register of the requisite determinations of the Director of
the Census and the Attorney General under section 4(b). These
determinations are not reviewable in any court. (Section 4(b)).
(b) Section 5 requires the preclearance of changes affecting voting
made since the date used for the determination of coverage. For each
covered jurisdiction that date is one of the following: November 1,
1964; November 1, 1968; or November 1, 1972.
(c) The appendix to this part contains a list of covered
jurisdictions, together with the applicable date used to determine
coverage and the Federal Register citation for the determination of
coverage.
Sec. 51.5 Termination of coverage (bailout).
A covered jurisdiction or a political subdivision of a covered State
may terminate the application of section 5 (or bail out) by obtaining
the declaratory judgment described in section 4(a) of the Act.
Sec. 51.6 Political subunits.
All political subunits within a covered jurisdiction (e.g.,
counties, cities, school districts) are subject to the requirement of
section 5.
Sec. 51.7 Political parties.
Certain activities of political parties are subject to the
preclearance requirement of section 5. A change affecting voting
effected by a political party is subject to the preclearance
requirement:
[[Page 81]]
(a) If the change relates to a public electoral function of the
party and
(b) If the party is acting under authority explicitly or implicitly
granted by a covered jurisdiction or political subunit subject to the
preclearance requirement of section 5.
For example, changes with respect to the recruitment of party members,
the conduct of political campaigns, and the drafting of party platforms
are not subject to the preclearance requirement. Changes with respect to
the conduct of primary elections at which party nominees, delegates to
party conventions, or party officials are chosen are subject to the
preclearance requirement of section 5. Where appropriate the term
``jurisdiction'' (but not ``covered jurisdiction'') includes political
parties.
Sec. 51.8 Section 3 coverage.
Under section 3(c) of the Act, a court in voting rights litigation
can order as relief that a jurisdiction not subject to the preclearance
requirement of section 5 preclear its voting changes by submitting them
either to the court or to the Attorney General. Where a jurisdiction is
required under section 3(c) to preclear its voting changes, and it
elects to submit the proposed changes to the Attorney General for
preclearance, the procedures in this part will apply.
Sec. 51.9 Computation of time.
(a) The Attorney General shall have 60 days in which to interpose an
objection to a submitted change affecting voting.
(b) Except as specified in Secs. 51.37, 51.39, and 51.42 the 60-day
period shall commence upon receipt by the Department of Justice of a
submission.
(c) The 60-day period shall mean 60 calendar days, with the day of
receipt of the submission not counted. If the final day of the period
should fall on a Saturday, Sunday, any day designated as a holiday by
the President or Congress of the United States, or any other day that is
not a day of regular business for the Department of Justice, the
Attorney General shall have until the close of the next full business
day in which to interpose an objection. The date of the Attorney
General's response shall be the date on which it is mailed to the
submitting authority.
Sec. 51.10 Requirement of action for declaratory judgment or submission to the Attorney General.
Section 5 requires that, prior to enforcement of any change
affecting voting, the jurisdiction that has enacted or seeks to
administer the change must either:
(a) Obtain a judicial determination from the U.S. District Court for
the District of Columbia that denial or abridgment of the right to vote
on account of race, color, or membership in a language minority group is
not the purpose and will not be the effect of the change or
(b) Make to the Attorney General a proper submission of the change
to which no objection is interposed.
It is unlawful to enforce a change affecting voting without obtaining
preclearance under section 5. The obligation to obtain such preclearance
is not relieved by unlawful enforcement.
[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]
Sec. 51.11 Right to bring suit.
Submission to the Attorney General does not affect the right of the
submitting authority to bring an action in the U.S. District Court for
the District of Columbia for a declaratory judgment that the change
affecting voting does not have the prohibited discriminatory purpose or
effect.
Sec. 51.12 Scope of requirement.
Any change affecting voting, even though it appears to be minor or
indirect, returns to a prior practice or procedure, ostensibly expands
voting rights, or is designed to remove the elements that caused
objection by the Attorney General to a prior submitted change, must meet
the section 5 preclearance requirement.
Sec. 51.13 Examples of changes.
Changes affecting voting include, but are not limited to, the
following examples:
(a) Any change in qualifications or eligibility for voting.
(b) Any change concerning registration, balloting, and the counting
of
[[Page 82]]
votes and any change concerning publicity for or assistance in
registration or voting.
(c) Any change with respect to the use of a language other than
English in any aspect of the electoral process.
(d) Any change in the boundaries of voting precincts or in the
location of polling places.
(e) Any change in the constituency of an official or the boundaries
of a voting unit (e.g., through redistricting, annexation, deannexation,
incorporation, reapportionment, changing to at-large elections from
district elections, or changing to district elections from at-large
elections).
(f) Any change in the method of determining the outcome of an
election (e.g., by requiring a majority vote for election or the use of
a designated post or place system).
(g) Any change affecting the eligibility of persons to become or
remain candidates, to obtain a position on the ballot in primary or
general elections, or to become or remain holders of elective offices.
(h) Any change in the eligibility and qualification procedures for
independent candidates.
(i) Any change in the term of an elective office or an elected
official or in the offices that are elective (e.g., by shortening the
term of an office, changing from election to appointment or staggering
the terms of offices).
(j) Any change affecting the necessity of or methods for offering
issues and propositions for approval by referendum.
(k) Any change affecting the right or ability of persons to
participate in political campaigns which is effected by a jurisdiction
subject to the requirement of section 5.
Sec. 51.14 Recurrent practices.
Where a jurisdiction implements a practice or procedure periodically
or upon certain established contingencies, a change occurs:
(a) The first time such a practice or procedure is implemented by
the jurisdiction,
(b) When the manner in which such a practice or procedure is
implemented by the jurisdiction is changed, or
(c) When the rules for determining when such a practice or procedure
will be implemented are changed.
The failure of the Attorney General to object to a recurrent practice or
procedure constitutes preclearance of the future use of the practice or
procedure if its recurrent nature is clearly stated or described in the
submission or is expressly recognized in the final response of the
Attorney General on the merits of the submission.
Sec. 51.15 Enabling legislation and contingent or nonuniform requirements.
(a) With respect to legislation (1) that enables or permits the
State or its political subunits to institute a voting change or (2) that
requires or enables the State or its political sub-units to institute a
voting change upon some future event or if they satisfy certain
criteria, the failure of the Attorney General to interpose an objection
does not exempt from the preclearance requirement the implementation of
the particular voting change that is enabled, permitted, or required,
unless that implementation is explicitly included and described in the
submission of such parent legislation.
(b) For example, such legislation includes--
(1) Legislation authorizing counties, cities, school districts, or
agencies or officials of the State to institute any of the changes
described in Sec. 51.13,
(2) Legislation requiring a political subunit that chooses a certain
form of government to follow specified election procedures,
(3) Legislation requiring or authorizing political subunits of a
certain size or a certain location to institute specified changes,
(4) Legislation requiring a political subunit to follow certain
practices or procedures unless the subunit's charter or ordinances
specify to the contrary.
Sec. 51.16 Distinction between changes in procedure and changes in substance.
The failure of the Attorney General to interpose an objection to a
procedure for instituting a change affecting voting does not exempt the
substantive
[[Page 83]]
change from the preclearance requirement. For example, if the procedure
for the approval of an annexation is changed from city council approval
to approval in a referendum, the preclearance of the new procedure does
not exempt an annexation accomplished under the new procedure from the
preclearance requirement.
Sec. 51.17 Special elections.
(a) The conduct of a special election (e.g., an election to fill a
vacancy; an initiative, referendum, or recall election; or a bond issue
election) is subject to the preclearance requirement to the extent that
the jurisdiction makes changes in the practices or procedures to be
followed.
(b) Any discretionary setting of the date for a special election or
scheduling of events leading up to or following a special election is
subject to the preclearance requirement.
(c) A jurisdiction conducting a referendum election to ratify a
change in a practice or procedure that affects voting may submit the
change to be voted on at the same time that it submits any changes
involved in the conduct of the referendum election. A jurisdiction
wishing to receive preclearance for the change to be ratified should
state clearly that such preclearance is being requested. See Sec. 51.22
of this part.
Sec. 51.18 Court-ordered changes.
(a) In general. Changes affecting voting that are ordered by a
Federal court are subject to the preclearance requirement of section 5
to the extent that they reflect the policy choices of the submitting
authority.
(b) Subsequent changes. Where a court-ordered change is not itself
subject to the preclearance requirement, subsequent changes necessitated
by the court order but decided upon by the jurisdiction remain subject
to preclearance. For example, voting precinct and polling place changes
made necessary by a court-ordered redistricting plan are subject to
section 5 review.
(c) In emergencies. A Federal court's authorization of the emergency
interim use without preclearance of a voting change does not exempt from
section 5 review any use of the practice not explicitly authorized by
the court.
Sec. 51.19 Request for notification concerning voting litigation.
A jurisdiction subject to the preclearance requirement of section 5
that becomes involved in any litigation concerning voting is requested
promptly to notify the Chief, Voting Section, Civil Rights Division,
Department of Justice, P.O. Box 66128, Washington, DC 20035-6128. Such
notification will not be considered a submission under section 5.
[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,
Sept. 3, 1987]
Subpart B--Procedures for Submission to the Attorney General
Sec. 51.20 Form of submissions.
(a) Submissions may be made in letter or any other written form.
(b) The Attorney General will accept certain machine readable data
in the following forms of magnetic media: 3\1/2\" 1.4 megabyte MS-DOS
formatted diskettes; 5 \1/4\" 1.2 megabyte MS-DOS formatted floppy
disks; nine-track tape (1600/6250 BPI). Unless requested by the Attorney
General, data provided on magnetic media need not be provided in hard
copy.
(c) All magnetic media shall be clearly labelled with the following
information:
(1) Submitting authority.
(2) Name, address, title, and telephone number of contact person.
(3) Date of submission cover letter.
(4) Statement identifying the voting change(s) involved in the
submission.
The label shall be affixed to each magnetic medium, and the information
included on the label shall also be contained in a documentation file on
the magnetic medium. If the information identified above is provided as
a disk operating system (DOS) file, it shall be formatted in a standard
American Standard Code for Information Interchange (ASCII) character
code, with a line feed or carriage return control character starting in
position 80. If the information identified above is provided other than
as DOS files, it shall
[[Page 84]]
be formatted as ASCII text (or Extended Binary Coded Decimal Interchange
Code (EBCDIC) if IBM standard labels are used), 80 byte fixed record
length, blocked in a multiple of 80 with a blocksize no larger than 32
kilobytes, and with no carriage return or line feed.
(d) Each magnetic medium (floppy disk or tape) provided must be
accompanied by a printed description of its contents, including an
identification by name and/or location of each data file that is
contained on the medium, a detailed record layout for each such file, a
record count for each such file, and a full description of the magnetic
medium format.
(e) All data files shall be provided in a fixed record-length format
using alphanumeric ASCII values. The first 50 records of each such file
shall be printed on hard copy and shall be attached to the printed
description of the file. Proprietary and/or commercial software system
data files (e.g. SAS, SPSS, dBase, Lotus 1-2-3) and data files
containing compressed data or binary data fields will not be accepted.
Nine-track tapes shall be clearly marked with printed labels to indicate
their density, and manner of labelling (ANSI, IBM, or unlabelled). The
printed label shall also include the record count, the record length,
the blocksize, the dataset name (DSN) if it is a labelled tape, and the
file number of each file on the tape.
[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836,
Oct. 16, 1991]
Sec. 51.21 Time of submissions.
Changes affecting voting should be submitted as soon as possible
after they become final.
Sec. 51.22 Premature submissions.
The Attorney General will not consider on the merits:
(a) Any proposal for a change affecting voting submitted prior to
final enactment or administrative decision or
(b) Any proposed change which has a direct bearing on another change
affecting voting which has not received section 5 preclearance.
However, with respect to a change for which approval by referendum, a
State or Federal court or a Federal agency is required, the Attorney
General may make a determination concerning the change prior to such
approval if the change is not subject to alteration in the final
approving action and if all other action necessary for approval has been
taken.
Sec. 51.23 Party and jurisdiction responsible for making submissions.
(a) Changes affecting voting shall be submitted by the chief legal
officer or other appropriate official of the submitting authority or by
any other authorized person on behalf of the submitting authority. When
one or more counties or other political subunits within a State will be
affected, the State may make a submission on their behalf. Where a State
is covered as a whole, State legislation (except legislation of local
applicability) or other changes undertaken or required by the State
shall be submitted by the State.
(b) A change effected by a political party (see Sec. 51.7) may be
submitted by an appropriate official of the political party.
Sec. 51.24 Address for submissions.
(a) Delivery by U.S. Postal Service. Submissions sent to the
Attorney General via the U.S. Postal Service shall be addressed to the
Chief, Voting Section, Civil Rights Division, Department of Justice,
P.O. Box 66128, Washington, DC 20035-6128.
(b) Delivery by other means. Submissions sent to the Attorney
General by carriers other than the U.S. Postal Service should be
addressed or may be delivered to the Chief, Voting Section, Civil Rights
Division, Department of Justice, 320 First Street, NW., room 818A,
Washington, DC 20001.
(c) Special marking. The envelope and first page of the submission
shall be clearly marked: Submission under section 5 of the Voting Rights
Act.
[Order 1214-87, 52 FR 33409, Sept. 3, 1987, as amended by Order No.
1793-93, 58 FR 51225, Oct. 1, 1993]
Sec. 51.25 Withdrawal of submissions.
(a) A jurisdiction may withdraw a submission at any time prior to a
final decision by the Attorney General. Notice of the withdrawal of a
submission
[[Page 85]]
must be made in writing, addressed to the Chief, Voting Section, as
specified in Sec. 51.24 of this part. The submission shall be deemed
withdrawn upon receipt of the notice.
(b) Notice of withdrawals will be given to interested parties
registered under Sec. 51.32.
[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,
Sept. 3, 1987]
Subpart C--Contents of Submissions
Sec. 51.26 General.
(a) The source of any information contained in a submission should
be identified.
(b) Where an estimate is provided in lieu of more reliable
statistics, the submission should identify the name, position, and
qualifications of the person responsible for the estimate and should
briefly describe the basis for the estimate.
(c) Submissions should be no longer than is necessary for the
presentation of the appropriate information and materials.
(d) The Attorney General will not accept for review any submission
that fails to describe the subject change in sufficient particularity to
satisfy the minimum requirements of Sec. 51.27(c).
(e) A submitting authority that desires the Attorney General to
consider any information supplied as part of an earlier submission may
incorporate such information by reference by stating the date and
subject matter of the earlier submission and identifying the relevant
information.
(f) Where information requested by this subpart is relevant but not
known or available, or is not applicable, the submission should so
state.
(g) The following Office of Management and Budget control number
under the Paperwork Reduction Act applies to the collection of
information requirements contained in these Procedures: OMB No. 1190-
0001 (expires February 28, 1994). See 5 CFR 1320.13.
[52 FR 490, Jan. 6, 1987, as amended by Order No. 1284-88, 53 FR 25327,
July 6, 1988; Order No. 1498-91, 56 FR 26032, June 6, 1991]
Sec. 51.27 Required contents.
Each submission should contain the following information or
documents to enable the Attorney General to make the required
determination pursuant to section 5 with respect to the submitted change
affecting voting:
(a) A copy of any ordinance, enactment, order, or regulation
embodying a change affecting voting.
(b) A copy of any ordinance, enactment, order, or regulation
embodying the voting practice that is proposed to be repealed, amended,
or otherwise changed.
(c) If the change affecting voting either is not readily apparent on
the face of the documents provided under paragraphs (a) and (b) of this
section or is not embodied in a document, a clear statement of the
change explaining the difference between the submitted change and the
prior law or practice, or explanatory materials adequate to disclose to
the Attorney General the difference between the prior and proposed
situation with respect to voting.
(d) The name, title, address, and telephone number of the person
making the submission.
(e) The name of the submitting authority and the name of the
jurisdiction responsible for the change, if different.
(f) If the submission is not from a State or county, the name of the
county and State in which the submitting authority is located.
(g) Identification of the person or body responsible for making the
change and the mode of decision (e.g., act of State legislature,
ordinance of city council, administrative decision by registrar).
(h) A statement identifying the statutory or other authority under
which the jurisdiction undertakes the change and a description of the
procedures the jurisdiction was required to follow in deciding to
undertake the change.
(i) The date of adoption of the change affecting voting.
(j) The date on which the change is to take effect.
(k) A statement that the change has not yet been enforced or
administered, or an explanation of why such a statement cannot be made.
[[Page 86]]
(l) Where the change will affect less than the entire jurisdiction,
an explanation of the scope of the change.
(m) A statement of the reasons for the change.
(n) A statement of the anticipated effect of the change on members
of racial or language minority groups.
(o) A statement identifying any past or pending litigation
concerning the change or related voting practices.
(p) A statement that the prior practice has been precleared (with
the date) or is not subject to the preclearance requirement and a
statement that the procedure for the adoption of the change has been
precleared (with the date) or is not subject to the preclearance
requirement, or an explanation of why such statements cannot be made.
(q) For redistrictings and annexations: the items listed under
Sec. 51.28 (a)(1) and (b)(1); for annexations only: the items listed
under Sec. 51.28(c)(3).
(r) Other information that the Attorney General determines is
required for an evaluation of the purpose or effect of the change. Such
information may include items listed in Sec. 51.28 and is most likely to
be needed with respect to redistrictings, annexations, and other complex
changes. In the interest of time such information should be furnished
with the initial submission relating to voting changes of this type.
When such information is required, but not provided, the Attorney
General shall notify the submitting authority in the manner provided in
Sec. 51.37.
Sec. 51.28 Supplemental contents.
Review by the Attorney General will be facilitated if the following
information, where pertinent, is provided in addition to that required
by Sec. 51.27.
(a) Demographic information. (1) Total and voting age population of
the affected area before and after the change, by race and language
group. If such information is contained in publications of the U.S.
Bureau of the Census, reference to the appropriate volume and table is
sufficient.
(2) The number of registered voters for the affected area by voting
precinct before and after the change, by race and language group.
(3) Any estimates of population, by race and language group, made in
connection with the adoption of the change.
(4) Demographic data provided on magnetic media shall be based upon
the Bureau of the Census Public Law 94-171 file unique block identity
code of state, county, tract, and block.
(5) Demographic data on magnetic media that are provided in
conjunction with a redistricting shall be contained in a table of
equivalencies giving the census block to district assignments in the
following format:
(i) Each census block record (including those with zero population)
will be followed by one or more additional fields indicating the
district assignment for the census block in one or more plans.
(ii) All district assignments in the plan fields shall be right
justified and blank filled if the assignment is less than four
characters.
(iii) The file structure shall be as follows:
------------------------------------------------------------------------
PL 94-171
Field reference name Length Data type
------------------------------------------------------------------------
State......................... STATEFP........ 2 Numeric.
County........................ CNTY........... 3 Numeric.
Tract......................... TRACT/BNA...... 6 Alpha/
Numeric.
Block......................... BLCK........... 4 Alpha/
Numeric.
Plan 1 District............... User supplied.. 4 Alpha/
Numeric.
Plan 2 District............... User supplied.. 4 Alpha/
Numeric.
Plan 3 District, etc.......... ............... ........ .............
Plan n District............... User supplied.. 4 Alpha/
Numeric.
------------------------------------------------------------------------
(iv) State and county shall be identified using the Federal
Information Processing Standards (FIPS-55) code.
(v) Census tracts shall be left justified, and census blocks shall
be left justified and blank filled if less than four characters.
(vi) Unused plan fields shall be blank filled.
(vii) In addition to the information identified in Sec. 51.20 (c)
through (e), the documentation file accompanying the block level
equivalency file shall contain the following information:
(A) The file structure.
(B) The total number of plans.
[[Page 87]]
(C) For each plan field, an identification of the plan (e.g., state
senate, congressional, county board, city council, school board) and its
status or nature (e.g., plan currently in effect, adopted plan,
alternative plan and sponsors).
(D) The number of districts in each plan field.
(E) Whether the plan field contains a complete or partial plan.
(F) Any additional information the jurisdiction deems relevant such
as bill number, date of adoption, etc., and a listing of any
modifications the submitting authority has made that alter the structure
of the TIGER/line geographic file.
(b) Maps. Where any change is made that revises the constituency
that elects any office or affects the boundaries of any geographic unit
or units defined or employed for voting purposes (e.g., redistricting,
annexation, change from district to at-large elections) or that changes
voting precinct boundaries, polling place locations, or voter
registration sites, maps in duplicate of the area to be affected,
containing the following information:
(1) The prior and new boundaries of the voting unit or units.
(2) The prior and new boundaries of voting precincts.
(3) The location of racial and language minority groups.
(4) Any natural boundaries or geographical features that influenced
the selection of boundaries of the prior or new units.
(5) The location of prior and new polling places.
(6) The location of prior and new voter registration sites.
(c) Annexations. For annexations, in addition to that information
specified elsewhere, the following information:
(1) The present and expected future use of the annexed land (e.g.,
garden apartments, industrial park).
(2) An estimate of the expected population, by race and language
group, when anticipated development, if any, is completed.
(3) A statement that all prior annexations subject to the
preclearance requirement have been submitted for review, or a statement
that identifies all annexations subject to the preclearance requirement
that have not been submitted for review. See Sec. 51.61(b).
(d) Election returns. Where a change may affect the electoral
influence of a racial or language minority group, returns of primary and
general elections conducted by or in the jurisdiction, containing the
following information:
(1) The name of each candidate.
(2) The race or language group of each candidate, if known.
(3) The position sought by each candidate.
(4) The number of votes received by each candidate, by voting
precinct.
(5) The outcome of each contest.
(6) The number of registered voters, by race and language group, for
each voting precinct for which election returns are furnished.
Information with respect to elections held during the last ten years
will normally be sufficient.
(7) Election related data containing any of the information
described above that are provided on magnetic media shall conform to the
requirements of Sec. 51.20 (b) through (e). Election related data that
cannot be accurately presented in terms of census blocks may be
identified by county and by precinct.
(e) Language usage. Where a change is made affecting the use of the
language of a language minority group in the electoral process,
information that will enable the Attorney General to determine whether
the change is consistent with the minority language requirements of the
Act. The Attorney General's interpretation of the minority language
requirements of the Act is contained in Interpretative Guidelines:
Implementation of the Provisions of the Voting Rights Act Regarding
Language Minority Groups, 28 CFR part 55.
(f) Publicity and participation. For submissions involving
controversial or potentially controversial changes, evidence of public
notice, of the opportunity for the public to be heard, and of the
opportunity for interested parties to participate in the decision to
adopt the proposed change and an account of the extent to which such
participation, especially by minority group members, in fact took place.
Examples of materials demonstrating public notice or participation
include:
[[Page 88]]
(1) Copies of newspaper articles discussing the proposed change.
(2) Copies of public notices that describe the proposed change and
invite public comment or participation in hearings and statements
regarding where such public notices appeared (e.g., newspaper, radio, or
television, posted in public buildings, sent to identified individuals
or groups).
(3) Minutes or accounts of public hearings concerning the proposed
change.
(4) Statements, speeches, and other public communications concerning
the proposed change.
(5) Copies of comments from the general public.
(6) Excerpts from legislative journals containing discussion of a
submitted enactment, or other materials revealing its legislative
purpose.
(g) Availability of the submission. (1) Copies of public notices
that announce the submission to the Attorney General, inform the public
that a complete duplicate copy of the submission is available for public
inspection (e.g., at the county courthouse) and invite comments for the
consideration of the Attorney General and statements regarding where
such public notices appeared.
(2) Information demonstrating that the submitting authority, where a
submission contains magnetic media, made the magnetic media available to
be copied or, if so requested, made a hard copy of the data contained on
the magnetic media available to be copied.
(h) Minority group contacts. For submissions from jurisdictions
having a significant minority population, the names, addresses,
telephone numbers, and organizational affiliation (if any) of racial or
language minority group members residing in the jurisdiction who can be
expected to be familiar with the proposed change or who have been active
in the political process.
[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836,
Oct. 16, 1991]
Subpart D--Communications From Individuals and Groups
Sec. 51.29 Communications concerning voting changes.
Any individual or group may send to the Attorney General information
concerning a change affecting voting in a jurisdiction to which section
5 applies.
(a) Communications may be in the form of a letter stating the name,
address, and telephone number of the individual or group, describing the
alleged change affecting voting and setting forth evidence regarding
whether the change has or does not have a discriminatory purpose or
effect, or simply bringing to the attention of the Attorney General the
fact that a voting change has occurred.
(b) The communications should be mailed to the Chief, Voting
Section, Civil Rights Division, Department of Justice, P.O. Box 66128,
Washington, DC 20035-6128. The envelope and first page should be marked:
Comment under section 5 of the Voting Rights Act.
(c) Comments by individuals or groups concerning any change
affecting voting may be sent at any time; however, individuals and
groups are encouraged to comment as soon as they learn of the change.
(d) Department of Justice officials and employees shall comply with
the request of any individual that his or her identity not be disclosed
to any person outside the Department, to the extent permitted by the
Freedom of Information Act, 5 U.S.C. 552. In addition, whenever it
appears to the Attorney General that disclosure of the identity of an
individual who provided information regarding a change affecting voting
``would constitute a clearly unwarranted invasion of personal privacy''
under 5 U.S.C. 552(b)(6), the identity of the individual shall not be
disclosed to any person outside the Department.
(e) When an individual or group desires the Attorney General to
consider
[[Page 89]]
information that was supplied in connection with an earlier submission,
it is not necessary to resubmit the information but merely to identify
the earlier submission and the relevant information.
[52 FR 490, Jan. 6, 1987, as amended by Order 1214-87, 52 FR 33409,
Sept. 3, 1987]
Sec. 51.30 Action on communications from individuals or groups.
(a) If there has already been a submission received of the change
affecting voting brought to the attention of the Attorney General by an
individual or group, any evidence from the individual or group shall be
considered along with the materials submitted and materials resulting
from any investigation.
(b) If such a submission has not been received, the Attorney General
shall advise the appropriate jurisdiction of the requirement of section
5 with respect to the change in question.
Sec. 51.31 Communications concerning voting suits.
Individuals and groups are urged to notify the Chief, Voting
Section, Civil Rights Division, of litigation concerning voting in
jurisdictions subject to the requirement of section 5.
Sec. 51.32 Establishment and maintenance of registry of interested individuals and groups.
The Attorney General shall establish and maintain a Registry of
Interested Individuals and Groups, which shall contain the name and
address of any individual or group that wishes to receive notice of
section 5 submissions. Information relating to this registry and to the
requirements of the Privacy Act of 1974, 5 U.S.C. 552a et seq., is
contained in JUSTICE/CRT-004. 48 FR 5334 (Feb. 4, 1983).
Subpart E--Processing of Submissions
Sec. 51.33 Notice to registrants concerning submissions.
Weekly notice of submissions that have been received will be given
to the individuals and groups who have registered for this purpose under
Sec. 51.32. Such notice will also be given when section 5 declaratory
judgment actions are filed or decided.
Sec. 51.34 Expedited consideration.
(a) When a submitting authority is required under State law or local
ordinance or otherwise finds it necessary to implement a change within
the 60-day period following submission, it may request that the
submission be given expedited consideration. The submission should
explain why such consideration is needed and provide the date by which a
determination is required.
(b) Jurisdictions should endeavor to plan for changes in advance so
that expedited consideration will not be required and should not
routinely request such consideration. When a submitting authority
demonstrates good cause for expedited consideration the Attorney General
will attempt to make a decision by the date requested. However, the
Attorney General cannot guarantee that such consideration can be given.
(c) Notice of the request for expedited consideration will be given
to interested parties registered under Sec. 51.32.
Sec. 51.35 Disposition of inappropriate submissions.
The Attorney General will make no response on the merits with
respect to an inappropriate submission but will notify the submitting
authority of the inappropriateness of the submission. Such notification
will be made as promptly as possible and no later than the 60th day
following receipt and will include an explanation of the
inappropriateness of the submission. Inappropriate submissions include
the submission of changes that do not affect voting (see, e.g.,
Sec. 51.13), the submission of standards, practices, or procedures that
have not been changed (see, e.g., Secs. 51.4, 51.14), the submission of
changes that affect voting but are not subject to the requirement of
section 5 (see, e.g., Sec. 51.18), premature submissions (see
Secs. 51.22, 51.61(b)), submissions by jurisdictions not subject to the
preclearance requirement (see Secs. 51.4, 51.5), and deficient
submissions (see Sec. 51.26(d)).
[[Page 90]]
Sec. 51.36 Release of information concerning submissions.
The Attorney General shall have the discretion to call to the
attention of the submitting authority or any interested individual or
group information or comments related to a submission.
Sec. 51.37 Obtaining information from the submitting authority.
(a) If a submission does not satisfy the requirements of Sec. 51.27,
the Attorney General may request from the submitting authority any
omitted information considered necessary for the evaluation of the
submission. The request shall be made by letter and shall be made within
the 60-day period and as promptly as possible after receipt of the
original submission. See also Sec. 51.26(d).
(b) A copy of the request shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
(c) The Attorney General shall notify the submitting authority that
a new 60-day period in which the Attorney General may interpose an
objection shall commence upon the receipt of a response from the
submitting authority that provides the information requested or states
that the information is unavailable. The Attorney General can request
further information within the new 60-day period, but such a further
request shall not suspend the running of the 60-day period, nor shall
the receipt of a response to such a request operate to begin a new 60-
day period.
(d) The receipt of a response from the submitting authority that
neither provides the information requested nor states that such
information is unavailable shall not commence a new 60-day period. It is
the practice of the Attorney General to notify the submitting authority
that its response is inadequate and to provide such notification as soon
as possible after the receipt of the inadequate response.
(e) If, after a request for further information is made pursuant to
this section, the information requested becomes available to the
Attorney General from a source other than the submitting authority, the
Attorney General shall promptly notify the submitting authority by
letter, and the 60-day period will commence upon the date of such
notification.
(f) Notice of the request for and receipt of further information
will be given to interested parties registered under Sec. 51.32.
Sec. 51.38 Obtaining information from others.
(a) The Attorney General may at any time request relevant
information from governmental jurisdictions and from interested groups
and individuals and may conduct any investigation or other inquiry that
is deemed appropriate in making a determination.
(b) If a submission does not contain evidence of adequate notice to
the public, and the Attorney General believes that such notice is
essential to a determination, steps will be taken by the Attorney
General to provide public notice sufficent to invite interested or
affected persons to provide evidence as to the presence or absence of a
discriminatory purpose or effect. The submitting authority shall be
advised when any such steps are taken.
Sec. 51.39 Supplementary submissions.
(a) When a submitting authority provides documents and written
information materially supplementing a submission (or a request for
reconsideration of an objection) for evaluation as if part of its
original submission, or, before the expiration of the 60-day period,
makes a second submission such that the two submissions cannot be
independently considered, the 60-day period for the original submission
will be calculated from the receipt of the supplementary information or
from the second submission.
(b) The Attorney General will notify the submitting authority when
the 60-day period for a submission is recalculated from the receipt of
supplementary information or from the receipt of a second related
submission.
(c) Notice of the receipt of supplementary information will be given
to interested parties registered under Sec. 51.32.
[[Page 91]]
Sec. 51.40 Failure to complete submissions.
If after 60 days the submitting authority has not provided further
information in response to a request made pursuant to Sec. 51.37(a), the
Attorney General, absent extenuating circumstances and consistent with
the burden of proof under section 5 described in Sec. 51.52 (a) and (c),
may object to the change, giving notice as specified in Sec. 51.44.
Sec. 51.41 Notification of decision not to object.
(a) The Attorney General shall within the 60-day period allowed
notify the submitting authority of a decision to interpose no objection
to a submitted change affecting voting.
(b) The notification shall state that the failure of the Attorney
General to object does not bar subsequent litigation to enjoin the
enforcement of the change.
(c) A copy of the notification shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
Sec. 51.42 Failure of the Attorney General to respond.
It is the practice and intention of the Attorney General to respond
to each submission within the 60-day period. However, the failure of the
Attorney General to make a written response within the 60-day period
constitutes preclearance of the submitted change, provided the
submission is addressed as specified in Sec. 51.24 and is appropriate
for a response on the merits as described in Sec. 51.35.
Sec. 51.43 Reexamination of decision not to object.
After notification to the submitting authority of a decision to
interpose no objection to a submitted change affecting voting has been
given, the Attorney General may reexamine the submission if, prior to
the expiration of the 60-day period, information indicating the
possibility of the prohibited discriminatory purpose or effect is
received. In this event, the Attorney General may interpose an objection
provisionally and advise the submitting authority that examination of
the change in light of the newly raised issues will continue and that a
final decision will be rendered as soon as possible.
Sec. 51.44 Notification of decision to object.
(a) The Attorney General shall within the 60-day period allowed
notify the submitting authority of a decision to interpose an objection.
The reasons for the decision shall be stated.
(b) The submitting authority shall be advised that the Attorney
General will reconsider an objection upon a request by the submitting
authority.
(c) The submitting authority shall be advised further that
notwithstanding the objecton it may institute an action in the U.S.
District Court for the District of Columbia for a declaratory judgment
that the change objected to by the Attorney General does not have the
prohibited discriminatory purpose or effect.
(d) A copy of the notification shall be sent to any party who has
commented on the submission or has requested notice of the Attorney
General's action thereon.
(e) Notice of the decision to interpose an objection will be given
to interested parties registered under Sec. 51.32.
Sec. 51.45 Request for reconsideration.
(a) The submitting authority may at any time request the Attorney
General to reconsider an objection.
(b) Requests may be in letter or any other written form and should
contain relevant information or legal argument.
(c) Notice of the request will be given to any party who commented
on the submission or requested notice of the Attorney General's action
thereon and to interested parties registered under Sec. 51.32. In
appropriate cases the Attorney General may request the submitting
authority to give local public notice of the request.
Sec. 51.46 Reconsideration of objection at the instance of the Attorney General.
(a) Where there appears to have been a substantial change in
operative fact or relevant law, an objection may be
[[Page 92]]
reconsidered, if it is deemed appropriate, at the instance of the
Attorney General.
(b) Notice of such a decision to reconsider shall be given to the
submitting authority, to any party who commented on the submission or
requested notice of the Attorney General's action thereon, and to
interested parties registered under Sec. 51.32, and the Attorney General
shall decide whether to withdraw or to continue the objection only after
such persons have had a reasonable opportunity to comment.
Sec. 51.47 Conference.
(a) A submitting authority that has requested reconsideration of an
objection pursuant to Sec. 51.45 may request a conference to produce
information or legal argument in support of reconsideration.
(b) Such a conference shall be held at a location determined by the
Attorney General and shall be conducted in an informal manner.
(c) When a submitting authority requests such a conference,
individuals or groups that commented on the change prior to the Attorney
General's objection or that seek to participate in response to any
notice of a request for reconsideration shall be notified and given the
opportunity to confer.
(d) The Attorney General shall have the discretion to hold separate
meetings to confer with the submitting authority and other interested
groups or individuals.
(e) Such conferences will be open to the public or to the press only
at the discretion of the Attorney General and with the agreement of the
participating parties.
Sec. 51.48 Decision after reconsideration.
(a) The Attorney General shall within the 60-day period following
the receipt of a reconsideration request or following notice given under
Sec. 51.46(b) notify the submitting authority of the decision to
continue or withdraw the objection, provided that the Attorney General
shall have at least 15 days following any conference that is held in
which to decide. (See also Sec. 51.39(a).) The reasons for the decision
shall be stated.
(b) The objection shall be withdrawn if the Attorney General is
satisfied that the change does not have the purpose and will not have
the effect of discriminating on account of race, color, or membership in
a language minority group.
(c) If the objection is not withdrawn, the submitting authority
shall be advised that notwithstanding the objection it may institute an
action in the U.S. District Court for the District of Columbia for a
declaratory judgment that the change objected to by the Attorney General
does not have the prohibited purpose or effect.
(d) An objection remains in effect until either it is withdrawn by
the Attorney General or a declaratory judgment with respect to the
change in question is entered by the U.S. District Court for the
District of Columbia.
(e) A copy of the notification shall be sent to any party who has
commented on the submission or reconsideration or has requested notice
of the Attorney General's action thereon.
(f) Notice of the decision after reconsideration will be given to
interested parties registered under Sec. 51.32.
Sec. 51.49 Absence of judicial review.
The decision of the Attorney General not to object to a submitted
change or to withdraw an objection is not reviewable. The preclearance
by the Attorney General of a voting change does not constitute the
certification that the voting change satisfies any other requirement of
the law beyond that of section 5, and, as stated in section 5,
``(n)either an affirmative indication by the Attorney General that no
objection will be made, nor the Attorney General's failure to object,
nor a declaratory judgment entered under this section shall bar a
subsequent action to enjoin enforcement of such qualification,
prerequisite, standard, practice, or procedure.''
Sec. 51.50 Records concerning submissions.
(a) Section 5 files: The Attorney General shall maintain a section 5
file for each submission, containing the submission, related written
materials, correspondence, memoranda, investigative reports, data
provided on magnetic
[[Page 93]]
media, notations concerning conferences with the submitting authority or
any interested individual or group, and copies of letters from the
Attorney General concerning the submission.
(b) Objection files: Brief summaries regarding each submission and
the general findings of the Department of Justice investigation and
decision concerning it will be prepared when a decision to interpose,
continue, or withdraw an objection is made. Files of these summaries,
arranged by jurisdiction and by the date upon which such decision is
made, will be maintained.
(c) Computer file: Records of all submissions and of their
dispositions by the Attorney General shall be electronically stored and
periodically retrieved in the form of computer printouts.
(d) The contents of the files in paper or microfiche form described
in paragraphs (a) through (c) of this section shall be available for
inspection and copying by the public during normal business hours at the
Voting Section, Civil Rights Division, Department of Justice,
Washington, DC. Those who desire to inspect information that has been
provided on magnetic media will be provided a copy of that information
in the same form as it was received. Materials that are exempt from
inspection under the Freedom of Information Act, 5 U.S.C. 552(b), may be
withheld at the discretion of the Attorney Gereral. Communications from
individuals who have requested confidentiality or with respect to whom
the Attorney General has determined that confidentiality is appropriate
under Sec. 51.29(d) shall be available only as provided by
Sec. 51.29(d). Applicable fees, if any, for the copying of the contents
of these files are contained in the Department of Justice regulations
implementing the Freedom of Information Act, 28 CFR 16.10.
[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987, as amended by Order
No. 1536-91, 56 FR 51837, Oct. 16, 1991]
Subpart F--Determinations by the Attorney General
Sec. 51.51 Purpose of the subpart.
The purpose of this subpart is to inform submitting authorities and
other interested parties of the factors that the Attorney General
considers relevant and of the standards by which the Attorney General
will be guided in making substantive determinations under section 5 and
in defending section 5 declaratory judgment actions.
Sec. 51.52 Basic standard.
(a) Surrogate for the court. Section 5 provides for submission of a
voting change to the Attorney General as an alternative to the seeking
of a declaratory judgment from the U.S. District Court for the District
of Columbia. Therefore, the Attorney General shall make the same
determination that would be made by the court in an action for a
declaratory judgment under section 5: Whether the submitted change has
the purpose or will have the effect of denying or abridging the right to
vote on account of race, color, or membership in a language minority
group. The burden of proof is on a submitting authority when it submits
a change to the Attorney General for preclearance, as it would be if the
proposed change were the subject of a declaratory judgment action in the
U.S. District Court for the District of Columbia. See South Carolina v.
Katzenbach, 383 U.S. 301, 328, 335 (1966).
(b) No objection. If the Attorney General determines that the
submitted change does not have the prohibited purpose or effect, no
objection shall be interposed to the change.
(c) Objection. An objection shall be interposed to a submitted
change if the Attorney General is unable to determine that the change is
free of discriminatory purpose and effect. This includes those
situations where the evidence as to the purpose or effect of the change
is conflicting and the Attorney General is unable to determine that the
change is free of discriminatory purpose and effect.
Sec. 51.53 Information considered.
The Attorney General shall base a determination on a review of
material presented by the submitting authority, relevant information
provided by individuals or groups, and the results of any investigation
conducted by the Department of Justice.
[[Page 94]]
Sec. 51.54 Discriminatory effect.
(a) Retrogression. A change affecting voting is considered to have a
discriminatory effect under section 5 if it will lead to a retrogression
in the position of members of a racial or language minority group (i.e.,
will make members of such a group worse off than they had been before
the change) with respect to their opportunity to exercise the electoral
franchise effectively. See Beer v. United States, 425 U.S. 130, 140-42
(1976).
(b) Benchmark. (1) In determining whether a submitted change is
retrogressive the Attorney General will normally compare the submitted
change to the voting practice or procedure in effect at the time of the
submission. If the existing practice or procedure upon submission was
not in effect on the jurisdiction's applicable date for coverage
(specified in the appendix) and is not otherwise legally enforceable
under section 5, it cannot serve as a benchmark, and, except as provided
in paragraph (b)(4) of this section, the comparison shall be with the
last legally enforceable practice or procedure used by the jurisdiction.
(2) The Attorney General will make the comparison based on the
conditions existing at the time of the submission.
(3) The implementation and use of an unprecleared voting change
subject to section 5 review under Sec. 51.18(a) does not operate to make
that unprecleared change a benchmark for any subsequent change submitted
by the jurisdiction. See Sec. 51.18(c).
(4) Where at the time of submission of a change for section 5 review
there exists no other lawful practice or procedure for use as a
benchmark (e.g., where a newly incorporated college district selects a
method of election) the Attorney General's preclearance determination
will necessarily center on whether the submitted change was designed or
adopted for the purpose of discriminating against members of racial or
language minority groups.
Sec. 51.55 Consistency with constitutional and statutory requirements.
(a) Consideration in general. In making a determination the Attorney
General will consider whether the change is free of discriminatory
purpose and retrogressive effect in light of, and with particular
attention being given to, the requirements of the 14th, 15th, and 24th
amendments to the Constitution, 42 U.S.C. 1971(a) and (b), sections 2,
4(a), 4(f)(2), 4(f)(4), 201, 203(c), and 208 of the Act, and other
constitutional and statutory provisions designed to safeguard the right
to vote from denial or abridgment on account of race, color, or
membership in a language minority group.
(b) Section 2. Preclearance under section 5 of a voting change will
not preclude any legal action under section 2 by the Attorney General if
implementation of the change demonstrates that such action is
appropriate.
[52 FR 490, Jan. 6, 1987, as amended at 63 FR 24109, May 1, 1998]
Sec. 51.56 Guidance from the courts.
In making determinations the Attorney General will be guided by the
relevant decisions of the Supreme Court of the United States and of
other Federal courts.
Sec. 51.57 Relevant factors.
Among the factors the Attorney General will consider in making
determinations with respect to the submitted changes affecting voting
are the following:
(a) The extent to which a reasonable and legitimate justification
for the change exists.
(b) The extent to which the jurisdiction followed objective
guidelines and fair and conventional procedures in adopting the change.
(c) The extent to which the jurisdiction afforded members of racial
and language minority groups an opportunity to participate in the
decision to make the change.
(d) The extent to which the jurisdiction took the concerns of
members of racial and language minority groups into account in making
the change.
Sec. 51.58 Representation.
(a) Introduction. This section and the sections that follow set
forth factors--in addition to those set forth above--that the Attorney
General considers in reviewing redistrictings (see Sec. 51.59), changes
in electoral systems (see Sec. 51.60), and annexations (see Sec. 51.61).
[[Page 95]]
(b) Background factors. In making determinations with respect to
these changes involving voting practices and procedures, the Attorney
General will consider as important background information the following
factors:
(1) The extent to which minorities have been denied an equal
opportunity to participate meaningfully in the political process in the
jurisdiction.
(2) The extent to which minorities have been denied an equal
opportunity to influence elections and the decisionmaking of elected
officials in the jurisdiction.
(3) The extent to which voting in the jurisdiction is racially
polarized and political activities are racially segregated.
(4) The extent to which the voter registration and election
participation of minority voters have been adversely affected by present
or past discrimination.
Sec. 51.59 Redistrictings.
In determining whether a submitted redistricting plan has the
prohibited purpose or effect the Attorney General, in addition to the
factors described above, will consider the following factors (among
others):
(a) The extent to which malapportioned districts deny or abridge the
right to vote of minority citizens.
(b) The extent to which minority voting strength is reduced by the
proposed redistricting.
(c) The extent to which minority concentrations are fragmented among
different districts.
(d) The extent to which minorities are overconcentrated in one or
more districts.
(e) The extent to which available alternative plans satisfying the
jurisdiction's legitimate governmental interests were considered.
(f) The extent to which the plan departs from objective
redistricting criteria set by the submitting jurisdiction, ignores other
relevant factors such as compactness and contiguity, or displays a
configuration that inexplicably disregards available natural or
artificial boundaries.
(g) The extent to which the plan is inconsistent with the
jurisdiction's stated redistricting standards.
Sec. 51.60 Changes in electoral systems.
In making determinations with respect to changes in electoral
systems (e.g., changes to or from the use of at-large elections, changes
in the size of elected bodies) the Attorney General, in addition to the
factors described above, will consider the following factors (among
others):
(a) The extent to which minority voting strength is reduced by the
proposed change.
(b) The extent to which minority concentrations are submerged into
larger electoral units.
(c) The extent to which available alternative systems satisfying the
jurisdiction's legitimate governmental interests were considered.
Sec. 51.61 Annexations.
(a) Coverage. Annexations, even of uninhabited land, are subject to
section 5 preclearance to the extent that they alter or are calculated
to alter the composition of a jurisdiction's electorate. In analyzing
annexations under section 5, the Attorney General only considers the
purpose and effect of the annexation as it pertains to voting.
(b) Section 5 review. It is the practice of the Attorney General to
review all of a jurisdiction's unprecleared annexations together. See
City of Pleasant Grove v. United States, C.A. No. 80-2589 (D.D.C. Oct.
7, 1981).
(c) Relevant factors. In making determinations with respect to
annexations, the Attorney General, in addition to the factors described
above, will consider the following factors (among others):
(1) The extent to which a jurisdiction's annexations reflect the
purpose or have the effect of excluding minorities while including other
similarly situated persons.
(2) The extent to which the annexations reduce a jurisdiction's
minority population percentage, either at the time of the submission or,
in view of the intended use, for the reasonably foreseeable future.
(3) Whether the electoral system to be used in the jurisdiction
fails fairly
[[Page 96]]
to reflect minority voting strength as it exists in the post-annexation
jurisdiction. See City of Richmond v. United States, 422 U.S. 358, 367-
72 (1975).
[52 FR 490, Jan. 6, 1987; 52 FR 2648, Jan. 23, 1987]
Subpart G--Sanctions
Sec. 51.62 Enforcement by the Attorney General.
(a) The Attorney General is authorized to bring civil actions for
appropriate relief against violations of the Act's provisions, including
section 5. See section 12(d).
(b) Certain violations of section 5 may be subject to criminal
sanctions. See section 12(a) and (c).
Sec. 51.63 Enforcement by private parties.
Private parties have standing to enforce section 5.
Sec. 51.64 Bar to termination of coverage (bailout).
(a) Section 4(a) of the Act sets out the requirements for the
termination of coverage (bailout) under section 5. See Sec. 51.5. Among
the requirements for bailout is compliance with section 5, as described
in section 4(a), during the ten years preceding the filing of the
bailout action and during its pendency.
(b) In defending bailout actions, the Attorney General will not
consider as a bar to bailout under section 4(a)(1)(E) a section 5
objection to a submitted voting standard, practice, or procedure if the
objection was subsequently withdrawn on the basis of a determination by
the Attorney General that it had originally been interposed as a result
of the Attorney General's misinterpretation of fact or mistake in the
law, or if the unmodified voting standard, practice, or procedure that
was the subject of the objection received section 5 preclearance by
means of a declaratory judgment from the U.S. District Court for the
District of Columbia.
(c) Notice will be given to interested parties registered under
Sec. 51.32 when bailout actions are filed or decided.
Subpart H--Petition To Change Procedures
Sec. 51.65 Who may petition.
Any jurisdiction or interested individual or group may petition to
have these procedural guidelines amended.
Sec. 51.66 Form of petition.
A petition under this subpart may be made by informal letter and
shall state the name, address, and telephone number of the petitioner,
the change requested, and the reasons for the change.
Sec. 51.67 Disposition of petition.
The Attorney General shall promptly consider and dispose of a
petition under this subpart and give notice of the disposition,
accompanied by a simple statement of the reasons, to the petitioner.
Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of the
Voting Rights Act, as Amended
The preclearance requirement of section 5 of the Voting Rights Act,
as amended, applies in the following jurisdictions. The applicable date
is the date that was used to determine coverage and the date after which
changes affecting voting are subject to the preclearance requirement.
Some jurisdictions, for example, Yuba County, California, are
included more than once because they have been determined on more than
one occasion to be covered under section 4(b).
----------------------------------------------------------------------------------------------------------------
Federal Register citation
Jurisdiction Applicable Date -------------------------------------------------
Volume and page Date
----------------------------------------------------------------------------------------------------------------
Alabama.............................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Alaska............................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Arizona.............................. Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
California:
Kings County....................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23. 1975.
Merced County...................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Monterey County.................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Yuba County........................ Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Yuba County........................ Nov. 1, 1972........... 41 FR 784.............. Jan. 5, 1976.
[[Page 97]]
Florida:
Collier County..................... Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Hardee County...................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Hendry County...................... Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Hillsborough County................ Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Monroe County...................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Georgia.............................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Louisiana............................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Michigan:
Allegan County:
Clyde Township................... Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Saginaw County:
Buena Vista Township............. Nov. 1, 1972........... 41 FR 34329............ Aug. 13, 1976.
Mississippi.......................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
New Hampshire:
Cheshire County:
Rindge Town...................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Coos County:
Millsfield Township.............. Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Pinkhams Grant................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Stewartstown Town................ Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Stratford Town................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Grafton County:
Benton Town...................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Hillsborough County:
Antrim Town...................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Merrimack County:
Boscawen Town.................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Rockingham County:
Newington Town................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
Sullivan County:
Unity Town....................... Nov. 1, 1968........... 39 FR 16912............ May 10, 1974.
New York:
Bronx County....................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Bronx County....................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Kings County....................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Kings County....................... Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
New York County.................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
North Carolina:
Anson County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Beaufort County.................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Bertie County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Bladen County...................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Camden County...................... Nov. 1, 1964........... 31 FR 3317............. Mar. 2, 1966.
Caswell County..................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Chowan County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Cleveland County................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Craven County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Cumberland County.................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Edgecombe County................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Franklin County.................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Gaston County...................... Nov. 1, 1964........... 31 FR 5081............. Mar, 29, 1966.
Gates County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Granville County................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Greene County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Guilford County.................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Halifax County..................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Harnett County..................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Hertford County.................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Hoke County........................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Jackson County..................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Lee County......................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Lenoir County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Martin County...................... Nov. 1, 1964........... 31 FR 19............... Jan. 4, 1966.
Nash County........................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Northampton County................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Onslow County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Pasquotank County.................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Perquimans County.................. Nov. 1, 1964........... 31 FR 3317............. Mar. 2, 1966.
Person County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Pitt County........................ Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Robeson County..................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
[[Page 98]]
Rockingham County.................. Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Scotland County.................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Union County....................... Nov. 1, 1964........... 31 FR 5081............. Mar. 29, 1966.
Vance County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Washington County.................. Nov. 1, 1964........... 31 FR 19............... Jan. 4, 1966.
Wayne County....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
Wilson County...................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
South Carolina....................... Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
South Dakota:
Shannon County..................... Nov. 1, 1972........... 41 FR 784.............. Jan. 5, 1976.
Todd County........................ Nov. 1, 1972........... 41 FR 784.............. Jan. 5, 1976.
Texas................................ Nov. 1, 1972........... 40 FR 43746............ Sept. 23, 1975.
Virginia............................. Nov. 1, 1964........... 30 FR 9897............. Aug. 7, 1965.
----------------------------------------------------------------------------------------------------------------
The following political subdivisions in States subject to statewide
coverage are also covered individually:
----------------------------------------------------------------------------------------------------------------
Federal Register citation
Jurisdiction Applicable date -------------------------------------------------
Volume and page Date
----------------------------------------------------------------------------------------------------------------
Arizona:
Apache County...................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Apache County...................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975
Cochise County..................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Coconino County.................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Coconino County.................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Mohave County...................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Navajo County...................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Navajo County...................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Pima County........................ Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Pinal County....................... Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Pinal County....................... Nov. 1, 1972........... 40 FR 49422............ Oct. 22, 1975.
Santa Cruz County.................. Nov. 1, 1968........... 36 FR 5809............. Mar. 27, 1971.
Yuma County........................ Nov. 1, 1964........... 31 FR 982.............. Jan. 25, 1966.
----------------------------------------------------------------------------------------------------------------
PART 52--PROCEEDINGS BEFORE U.S. MAGISTRATE JUDGES--Table of Contents
Sec.
52.01 Civil proceedings: Special master, pretrial, trial, appeal.
52.02 Criminal proceedings: Pretrial, trial.
Sec. 52.01 Civil proceedings: Special master, pretrial, trial, appeal.
(a) Sections 636 (b) and (c) of title 28 of the United States Code
govern pretrial and case-dispositive civil jurisdiction of magistrate
judges, as well as service by magistrate judges as special masters.
(b) It is the policy of the Department of Justice to encourage the
use of magistrate judges, as set forth in this paragraph, to assist the
district courts in resolving civil disputes. In conformity with this
policy, the attorney for the government is encouraged to accede to a
referral of an entire civil action for disposition by a magistrate
judge, or to consent to designation of a magistrate judge as special
master, if the attorney, with the concurrence of his or her supervisor,
determines that such a referral or designation is in the interest of the
United States. In making this determination, the attorney shall consider
all relevant factors, including--
(1) The complexity of the matter, including involvement of
significant rights of large numbers of persons;
(2) The relief sought;
(3) The amount in controversy;
(4) The novelty, importance, and nature of the issues raised;
(5) The likelihood that referral to or designation of the magistrate
judge will expedite resolution of the litigation;
(6) The experience and qualifications of the magistrate judge; and
(7) The possibility of the magistrate judge's actual or apparent
bias or conflict of interest.
[[Page 99]]
(c)(1) In determining whether to consent to having an appeal taken
to the district court rather than to the court of appeals, the attorney
for the government should consider all relevant factors including--
(i) The amount in controversy;
(ii) The importance of the questions of law involved;
(iii) The desirability of expeditious review of the magistrate
judge's judgment.
(2) In making a determination under paragraph (c)(1) of this section
the attorney shall, except in those cases in which delegation authority
has been exercised under 28 CFR 0.168, consult with the Assistant
Attorney General having supervisory authority over the subject matter.
[Order No. 2012-96, 61 FR 8473, Mar. 5, 1996]
Sec. 52.02 Criminal proceedings: Pretrial, trial.
(a) A judge of the district court, without the parties' consent, may
designate a magistrate judge to hear and determine criminal pretrial
matters pending before the court, except for two named classes of
motions; as to the latter, the magistrate judge may conduct a hearing
and recommend a decision to the judge. 28 U.S.C. 636(b)(1) (A), (B).
(b) When specially designated by the court to exercise such
jurisdiction, a magistrate judge may try, and impose sentence for, any
misdemeanor if he has properly and fully advised the defendant that he
has a right to elect ``trial, judgment, and sentencing by a judge of the
district court and * * * may have a right to trial by jury before a
district judge or magistrate judge,'' and has obtained the defendant's
written consent to be tried by the magistrate judge. 18 U.S.C. 3401 (a),
(b). The court may order that proceedings be conducted before a district
judge rather than a magistrate judge upon its own motion or, for good
cause shown upon petition by the attorney for the government. The
petition should note ``the novelty, importance, or complexity of the
case, or other pertinent factors * * *''. 18 U.S.C. 3401(f).
(1) If the attorney for the government determines that the public
interest is better served by trial before a district judge, the attorney
may petition the district court for such an order after consulting with
the appropriate Assistant Attorney General as provided in paragraph
(b)(2) of this section. In making this determination, the attorney shall
consider all relevant factors including--
(i) The novelty of the case with respect to the facts, the statute
being enforced, and the application of the statute to the facts;
(ii) The importance of the case in light of the nature and
seriousness of the offense charged;
(iii) The defendant's history of criminal activity, the potential
penalty upon conviction, and the purposes to be served by prosecution,
including punishment, deterrence, rehabilitation, and incapacitation;
(iv) The factual and legal complexity of the case and the amount and
nature of the evidence to be presented;
(v) The desirability of prompt disposition of the case; and
(vi) The experience and qualifications of the magistrate judge, and
the possibility of the magistrate judge's actual or apparent bias or
conflict of interest.
(2) The attorney for the government shall consult with the Assistant
Attorney General having supervisory authority over the subject matter in
determining whether to petition for trial before a district judge in a
case involving a violation of 2 U.S.C. 192, 441j(a); 18 U.S.C. 210, 211,
242, 245, 594, 597, 599, 600, 601, 1304, 1504, 1508, 1509, 2234, 2235,
2236; or 42 U.S.C. 3631.
(3) In a case in which the government petitions for trial before a
district judge, the attorney for the government shall forward a copy of
the petition to the Assistant Attorney General having supervisory
authority over the subject matter and, if the petition is denied, shall
promptly notify the Assistant Attorney General.
(5 U.S.C. 301, 18 U.S.C. 3401(f))
[Order No. 903-80, 45 FR 50564, July 30, 1980, as amended by Order No.
2012-96, 61 FR 8473, Mar. 5, 1996]
[[Page 100]]
PART 54--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
Subpart A--Introduction
Sec.
54.100 Purpose and effective date.
54.105 Definitions.
54.110 Remedial and affirmative action and self-evaluation.
54.115 Assurance required.
54.120 Transfers of property.
54.125 Effect of other requirements.
54.130 Effect of employment opportunities.
54.135 Designation of responsible employee and adoption of grievance
procedures.
54.140 Dissemination of policy.
Subpart B--Coverage
54.200 Application.
54.205 Educational institutions and other entities controlled by
religious organizations.
54.210 Military and merchant marine educational institutions.
54.215 Membership practices of certain organizations.
54.220 Admissions.
54.225 Educational institutions eligible to submit transition plans.
54.230 Transition plans.
54.235 Statutory amendments.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
54.300 Admission.
54.305 Preference in admission.
54.310 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
54.400 Education programs or activities.
54.405 Housing.
54.410 Comparable facilities.
54.415 Access to course offerings.
54.420 Access to schools operated by LEAs.
54.425 Counseling and use of appraisal and counseling materials.
54.430 Financial assistance.
54.435 Employment assistance to students.
54.440 Health and insurance benefits and services.
54.445 Marital or parental status.
54.450 Athletics.
54.455 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
54.500 Employment.
54.505 Employment criteria.
54.510 Recruitment.
54.515 Compensation.
54.520 Job classification and structure.
54.525 Fringe benefits.
54.530 Marital or parental status.
54.535 Effect of state or local law or other requirements.
54.540 Advertising.
54.545 Pre-employment inquiries.
54.550 Sex as a bona fide occupational qualification.
Subpart F--Procedures
54.600 Notice of covered programs.
54.605 Enforcement procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
Source: Order No. 2320-2000, 65 FR 52865, 52880, Aug. 30, 2000,
unless otherwise noted.
Subpart A--Introduction
Sec. 54.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904 and
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687,
1688), which is designed to eliminate (with certain exceptions)
discrimination on the basis of sex in any education program or activity
receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution as
defined in these Title IX regulations. The effective date of these Title
IX regulations shall be September 29, 2000.
Sec. 54.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or
college of an educational institution (other than a local educational
agency) admission to which is independent of admission to any other
component of such institution.
Admission means selection for part-time, full-time, special,
associate, transfer, exchange, or any other enrollment, membership, or
matriculation in
[[Page 101]]
or at an education program or activity operated by a recipient.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that awards
Federal financial assistance, or by a recipient, as a condition to
becoming a recipient.
Designated agency official means the Assistant Attorney General,
Civil Rights Division.
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds
made available for:
(i) The acquisition, construction, renovation, restoration, or
repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to
any entity for payment to or on behalf of students admitted to that
entity, or extended directly to such students for payment to that
entity.
(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 such property, 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.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at
nominal consideration, or at consideration reduced for the purpose of
assisting the recipient or in recognition of public interest to be
served thereby, or permission to use Federal property or any interest
therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of
its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of
science degree, whether or not leading to a certificate of any higher
degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first
professional degree (regardless of whether the first professional degree
in such field is awarded by an institution of undergraduate higher
education or professional education); or
(3) Awards no degree and offers no further academic study, but
operates ordinarily for the purpose of facilitating research by persons
who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that offers a program
of academic study that leads to a first professional degree in a field
for which there is a national specialized accrediting agency recognized
by the Secretary of Education.
Institution of undergraduate higher education means:
(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 associate degree, or wholly or principally creditable toward a
baccalaureate degree; or
(2) An institution offering academic study leading to a
baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that has as its primary purpose preparation of
students to pursue a technical, skilled, or semiskilled occupation or
trade, or to pursue study in a technical field, whether or not the
school or institution offers certificates,
[[Page 102]]
diplomas, or degrees and whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any
instrumentality of a State or political subdivision thereof, any public
or private agency, institution, or organization, or other entity, or any
person, to whom Federal financial assistance is extended directly or
through another recipient and that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX 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 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at Secs. 54.100
through 54.605.
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.
Sec. 54.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a
recipient has discriminated against persons on the basis of sex in an
education program or activity, such recipient shall take such remedial
action as the designated agency official deems necessary to overcome the
effects of such discrimination.
(b) Affirmative action. In the absence of a finding of
discrimination on the basis of sex in an education program or activity,
a recipient may take affirmative action consistent with law to overcome
the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing in these Title IX regulations
shall be interpreted to alter any affirmative action obligations that a
recipient may have under 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 12086, 3 CFR, 1978 Comp., p. 230; as
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, its current policies and practices and the effects thereof
concerning admission of students, treatment of students, and employment
of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that resulted or may have resulted from adherence to
these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of this
section, and shall provide to the designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.
Sec. 54.115 Assurance required.
(a) General. Either at the application stage or the award stage,
Federal agencies must ensure that applications for Federal financial
assistance or awards of Federal financial assistance contain, be
accompanied by, or be covered by a specifically identified assurance
from the applicant or recipient, satisfactory to the designated agency
official, that
[[Page 103]]
each education program or activity operated by the applicant or
recipient and to which these Title IX regulations apply will be operated
in compliance with these Title IX regulations. An assurance of
compliance with these Title IX regulations shall not be satisfactory to
the designated agency official if the applicant or recipient to whom
such assurance applies fails to commit itself to take whatever remedial
action is necessary in accordance with Sec. 54.110(a) to eliminate
existing discrimination on the basis of sex or to eliminate the effects
of past discrimination whether occurring prior to or subsequent to the
submission to the designated agency official of such assurance.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended to provide real property or structures thereon, such
assurance shall obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide
personal property, such assurance shall obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient
for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient will comply with all applicable Federal statutes relating to
nondiscrimination. These include but are not limited to: Title IX of the
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.
Sec. 54.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
operates any education program or activity, and 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, both the transferor
and the transferee shall be deemed to be recipients, subject to the
provisions of Secs. 54.205 through 54.235(a).
Sec. 54.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not 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, 1978 Comp., 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 et seq.); the Equal Pay Act of 1963
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that would
render any applicant or student ineligible, or limit the eligibility of
any applicant or student, on the basis of sex, to practice any
occupation or profession.
(c) Effect of rules or regulations of private organizations. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club, athletic
or other league, or association that would render any applicant or
student ineligible to participate or limit the eligibility or
participation of any applicant or student, on the basis of sex, in any
education program or activity operated by a recipient and that receives
Federal financial assistance.
[[Page 104]]
Sec. 54.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not
obviated or alleviated because employment opportunities in any
occupation or profession are or may be more limited for members of one
sex than for members of the other sex.
Sec. 54.135 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall
designate at least one employee to coordinate its efforts to comply with
and carry out its responsibilities under these Title IX regulations,
including any investigation of any complaint communicated to such
recipient alleging its noncompliance with these Title IX regulations or
alleging any actions that would be prohibited by these Title IX
regulations. The recipient shall notify all its students and employees
of the name, office address, and telephone number of the employee or
employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and
publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action that
would be prohibited by these Title IX regulations.
Sec. 54.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement
specific 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 unions or professional organizations holding
collective bargaining or professional agreements with the recipient,
that it does not discriminate on the basis of sex in the educational
programs or activities that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made in
such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or
activities extends to employment therein, and to admission thereto
unless Secs. 54.300 through 54.310 do not apply to the recipient, and
that inquiries concerning the application of Title IX and these Title IX
regulations to such recipient may be referred to the employee designated
pursuant to Sec. 54.135, or to the designated agency official.
(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 these Title IX regulations first apply to such recipient,
whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by
student, alumnae, or alumni groups for or in connection with such
recipient; and
(ii) Memoranda or other written communications distributed to every
student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a
statement of the policy described in paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that it makes
available to any person of a type, described in paragraph (a) of this
section, or which is otherwise used in connection with the recruitment
of students or employees.
(2) A recipient shall not use or distribute a publication of the
type described in paragraph (b)(1) of this section that suggests, by
text or illustration, that such recipient treats applicants, students,
or employees differently on the basis of sex except as such treatment is
permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) of this section, and shall apprise each of its
admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and shall
require such representatives to adhere to such policy.
[[Page 105]]
Subpart B--Coverage
Sec. 54.200 Application.
Except as provided in Secs. 54.205 through 54.235(a), these Title IX
regulations apply to every recipient and to each education program or
activity operated by such recipient that receives Federal financial
assistance.
Sec. 54.205 Educational institutions and other entities controlled by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application of
these Title IX regulations would not be consistent with the religious
tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the institution,
identifying the provisions of these Title IX regulations that conflict
with a specific tenet of the religious organization.
Sec. 54.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational
institution whose primary purpose is the training of individuals for a
military service of the United States or for the merchant marine.
Sec. 54.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership
of which consists primarily of students in attendance at institutions of
higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than nineteen years of age.
Sec. 54.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Secs. 54.225 and 54.230, and Secs. 54.300 through 54.310, each
administratively separate unit shall be deemed to be an educational
institution.
(c) Application of Secs. 54.300 through .310. Except as provided in
paragraphs (d) and (e) of this section, Secs. 54.300 through 54.310
apply to each recipient. A recipient to which Secs. 54.300 through
54.310 apply shall not discriminate on the basis of sex in admission or
recruitment in violation of Secs. 54.300 through 54.310.
(d) Educational institutions. Except as provided in paragraph (e) of
this section as to recipients that are educational institutions,
Secs. 54.300 through 54.310 apply only to institutions of vocational
education, professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Secs. 54.300 through 54.310 do not apply to any public institution of
undergraduate higher education that traditionally and continually from
its establishment has had a policy of admitting students of only one
sex.
Sec. 54.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational
institution to which Secs. 54.300 through 54.310 apply that:
[[Page 106]]
(1) Admitted students of only one sex as regular students as of June
23, 1972; or
(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 not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to
which this section applies shall not discriminate on the basis of sex in
admission or recruitment in violation of Secs. 54.300 through 54.310.
Sec. 54.230 Transition plans.
(a) Submission of plans. An institution to which Sec. 54.225 applies
and that is composed of more than one administratively separate unit may
submit either a single transition plan applicable to all such units, or
a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education Code of the educational institution submitting such plan, the
administratively separate units to which the plan is applicable, and the
name, address, and telephone number of the person to whom questions
concerning the plan may be addressed. The person who submits the plan
shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all
actions set forth in the plan.
(2) State whether the educational institution or administratively
separate unit admits students of both sexes as regular students and, if
so, when it began to do so.
(3) Identify and describe with respect to the educational
institution or administratively separate unit any obstacles to admitting
students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as
practicable each obstacle so identified and indicate the schedule for
taking these steps and the individual directly responsible for their
implementation.
(5) Include estimates of the number of students, by sex, expected to
apply for, be admitted to, and enter each class during the period
covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which
Sec. 54.225 applies shall result in treatment of applicants to or
students of such recipient in violation of Secs. 54.300 through 54.310
unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a schedule for eliminating that
obstacle has been provided as required by paragraph (b)(4) of this
section.
(d) Effects of past exclusion. To overcome the effects of past
exclusion of students on the basis of sex, each educational institution
to which Sec. 54.225 applies shall include in its transition plan, and
shall implement, specific steps designed to encourage individuals of the
previously excluded sex to apply for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the
institution's commitment to enrolling students of the sex previously
excluded.
Sec. 54.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution or in an education program or activity, but if such
activities are provided for students of one sex, opportunities for
reasonably comparable activities shall be provided to students of the
other sex;
[[Page 107]]
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such individual
has received such award in a single-sex pageant based upon a combination
of factors related to the individual's personal appearance, poise, and
talent. The pageant, however, must comply with other nondiscrimination
provisions of Federal law.
(c) Program or activity or program means:
(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 financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the application
of 20 U.S.C. 1681 to such operation would not be consistent with the
religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or
other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to
require or prohibit any person, or public or private entity, to provide
or pay for any benefit or service, including the use of facilities,
related to an abortion. Medical procedures, benefits, services, and the
use of facilities, necessary to save the life of a pregnant woman or to
address complications related to an abortion are not subject to this
section.
(2) Nothing in this section shall be construed to permit a penalty
to be imposed on any person or individual because such person or
individual is seeking or 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 from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.
Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited
Sec. 54.300 Admission.
(a) General. No person shall, on the basis of sex, be denied
admission, or be
[[Page 108]]
subjected to discrimination in admission, by any recipient to which
Secs. 54.300 through Secs. 54.310 apply, except as provided in
Secs. 54.225 and Secs. 54.230.
(b) Specific prohibitions. (1) In determining whether a person
satisfies any policy or criterion for admission, or in making any offer
of admission, a recipient to which Secs. 54.300 through 54.310 apply
shall not:
(i) Give preference to one person over another on the basis of sex,
by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of
persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the
basis of sex.
(2) A recipient shall not administer or operate any test or other
criterion for admission that has a disproportionately adverse effect on
persons on the basis of sex unless the use of such test or criterion is
shown to predict validly success in the education program or activity in
question and alternative tests or criteria that do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In
determining whether a person satisfies any policy or criterion for
admission, or in making any offer of admission, a recipient to which
Secs. 54.300 through 54.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the
basis of pregnancy, childbirth, termination of pregnancy, or recovery
therefrom, or establish or follow any rule or practice that so
discriminates or excludes;
(3) Subject to Sec. 54.235(d), shall treat disabilities related to
pregnancy, childbirth, termination of pregnancy, or recovery therefrom
in the same manner and under the same policies as any other temporary
disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of
an applicant for admission, including whether such applicant is ``Miss''
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of
an applicant for admission, but only if such inquiry is made equally of
such applicants of both sexes and if the results of such inquiry are not
used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 54.305 Preference in admission.
A recipient to which Secs. 54.300 through 54.310 apply shall not
give preference to applicants for admission, on the basis of attendance
at any educational institution or other school or entity that admits as
students only or predominantly members of one sex, if the giving of such
preference has the effect of discriminating on the basis of sex in
violation of Secs. 54.300 through 54.310.
Sec. 54.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which Secs. 54.300
through 54.310 apply shall not discriminate on the basis of sex in the
recruitment and admission of students. A recipient may be required to
undertake additional recruitment efforts for one sex as remedial action
pursuant to Sec. 54.110(a), and may choose to undertake such efforts as
affirmative action pursuant to Sec. 54.110(b).
(b) Recruitment at certain institutions. A recipient to which
Secs. 54.300 through 54.310 apply shall not recruit primarily or
exclusively at educational institutions, schools, or entities that admit
as students only or predominantly members of one sex, if such actions
have the effect of discriminating on the basis of sex in violation of
Secs. 54.300 through 54.310.
Subpart D--Discrimination on the Basis of Sex in Education Programs or
Activities Prohibited
Sec. 54.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX
regulations, no person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research,
occupational training, or other education program or activity operated
by a recipient that
[[Page 109]]
receives Federal financial assistance. Sections 54.400 through 54.455 do
not apply to actions of a recipient in connection with admission of its
students to an education program or activity of a recipient to which
Secs. 54.300 through 54.310 do not apply, or an entity, not a recipient,
to which Secs. 54.300 through 54.310 would not apply if the entity were
a recipient.
(b) Specific prohibitions. Except as provided in Secs. 54.400
through 54.455, in providing any aid, benefit, or service to a student,
a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether
such person satisfies any requirement or condition for the provision of
such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid,
benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior,
sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student
or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing
significant assistance to any agency, organization, or person that
discriminates on the basis of sex in providing any aid, benefit, or
service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right,
privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution
to study at a foreign institution. A recipient educational institution
may administer or assist in the administration of scholarships,
fellowships, or other awards established by foreign or domestic wills,
trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that are restricted to members of one sex
provides, or otherwise makes available, reasonable opportunities for
similar studies for members of the other sex. Such opportunities may be
derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This
paragraph (d) applies to any recipient that requires participation by
any applicant, student, or employee in any education program or activity
not operated wholly by such recipient, or that facilitates, permits, or
considers such participation as part of or equivalent to an education
program or activity operated by such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education program or
activity takes no action affecting any applicant, student, or employee
of such recipient that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
Sec. 54.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply
different rules or regulations, impose different fees or requirements,
or offer different services or benefits related to housing, except as
provided in this section (including housing provided only to married
students).
(b) Housing provided by recipient. (1) A recipient may provide
separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when
compared to that provided to students of the other sex, shall be as a
whole:
(i) Proportionate in quantity to the number of students of that sex
applying for such housing; and
(ii) Comparable in quality and cost to the student.
[[Page 110]]
(c) Other housing. (1) A recipient shall not, on the basis of sex,
administer different policies or practices concerning occupancy by its
students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of
housing, or otherwise, assists any agency, organization, or person in
making housing available to any of its students, shall take such
reasonable action as may be necessary to assure itself that such housing
as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.
Sec. 54.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities provided for
students of the other sex.
Sec. 54.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out
any of its education program or activity separately on the basis of sex,
or require or refuse participation therein by any of its students on
such basis, including health, physical education, industrial, business,
vocational, technical, home economics, music, and adult education
courses.
(b)(1) With respect to classes and activities in physical education
at the elementary school level, the recipient shall comply fully with
this section as expeditiously as possible but in no event later than one
year from September 29, 2000. With respect to physical education classes
and activities at the secondary and post-secondary levels, the recipient
shall comply fully with this section as expeditiously as possible but in
no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without regard
to sex.
(3) This section does not prohibit separation of students by sex
within physical education classes or activities during participation in
wrestling, boxing, rugby, ice hockey, football, basketball, and other
sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in
a physical education class has an adverse effect on members of one sex,
the recipient shall use appropriate standards that do not have such
effect.
(5) Portions of classes in elementary and secondary schools, or
portions of education programs or activities, that deal exclusively with
human sexuality may be conducted in separate sessions for boys and
girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses of one or predominantly one sex.
Sec. 54.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the
basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such
recipient; or
(b) Any other school or educational unit operated by such recipient,
unless such recipient otherwise makes available to such person, pursuant
to the same policies and criteria of admission, courses, services, and
facilities comparable to each course, service, and facility offered in
or through such schools.
Sec. 54.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any
person on the basis of sex in the counseling or guidance of students or
applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses
testing or
[[Page 111]]
other materials for appraising or counseling students shall not use
different materials for students on the basis of their sex or use
materials that permit or require different treatment of students on such
basis unless such different materials cover the same occupations and
interest areas and the use of such different materials is shown to be
essential to eliminate sex bias. Recipients shall develop and use
internal procedures for ensuring that such materials do not discriminate
on the basis of sex. Where the use of a counseling test or other
instrument results in a substantially disproportionate number of members
of one sex in any particular course of study or classification, the
recipient shall take such action as is necessary to assure itself that
such disproportion is not the result of discrimination in the instrument
or its application.
(c) Disproportion in classes. Where a recipient finds that a
particular class contains a substantially disproportionate number of
individuals of one sex, the recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials
or by counselors.
Sec. 54.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, in providing financial assistance to any of its students, a
recipient shall not:
(1) On the basis of sex, provide different amounts or types of such
assistance, limit eligibility for such assistance that is of any
particular type or source, apply different criteria, or otherwise
discriminate;
(2) Through solicitation, listing, approval, provision of
facilities, or other services, assist any foundation, trust, agency,
organization, or person that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of sex;
or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that treats persons of one sex
differently from persons of the other sex with regard to marital or
parental status.
(b) Financial aid established by certain legal instruments. (1) A
recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established pursuant to domestic or foreign wills, trusts, bequests, or
similar legal instruments or by acts of a foreign government that
require that awards be made to members of a particular sex specified
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial
assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in
paragraph (b)(1) of this section, recipients shall develop and use
procedures under which:
(i) Students are selected for award of financial assistance on the
basis of nondiscriminatory criteria and not on the basis of availability
of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other
form of financial assistance is allocated to each student selected under
paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was
selected under paragraph (b)(2)(i) of this section because of the
absence of a scholarship, fellowship, or other form of financial
assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards
athletic scholarships or grants-in-aid, it must provide reasonable
opportunities for such awards for members of each sex in proportion to
the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph (c)
and Sec. 54.450.
[[Page 112]]
Sec. 54.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment.
A recipient that assists any agency, organization, or person in making
employment available to any of its students:
(1) Shall assure itself that such employment is made available
without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or
person that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates
Secs. 54.500 through 54.550.
Sec. 54.440 Health and insurance benefits and services.
Subject to Sec. 54.235(d), in providing a medical, hospital,
accident, or life insurance benefit, service, policy, or plan to any of
its students, a recipient shall not discriminate on the basis of sex, or
provide such benefit, service, policy, or plan in a manner that would
violate Secs. 54.500 through 54.550 if it were provided to employees of
the recipient. This section shall not prohibit a recipient from
providing any benefit or service that may be used by a different
proportion of students of one sex than of the other, including family
planning services. However, any recipient that provides full coverage
health service shall provide gynecological care.
Sec. 54.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule
concerning a student's actual or potential parental, family, or marital
status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not
discriminate against any student, or exclude any student from its
education program or activity, including any class or extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom, unless the
student requests voluntarily to participate in a separate portion of the
program or activity of the recipient.
(2) A recipient may require such a student to obtain the
certification of a physician that the student is physically and
emotionally able to continue participation as long as such a
certification is required of all students for other physical or
emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or
activity separately for pregnant students, admittance to which is
completely voluntary on the part of the student as provided in paragraph
(b)(1) of this section, shall ensure that the separate portion is
comparable to that offered to non-pregnant students.
(4) Subject to Sec. 54.235(d), a recipient shall treat pregnancy,
childbirth, false pregnancy, termination of pregnancy and recovery
therefrom in the same manner and under the same policies as any other
temporary disability with respect to any medical or hospital benefit,
service, plan, or policy that such recipient administers, operates,
offers, or participates in with respect to students admitted to the
recipient's educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy
for its students, or in the case of a student who does not otherwise
qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification for a leave of absence for as long
a period of time as is deemed medically necessary by the student's
physician, at the conclusion of which the student shall be reinstated to
the status that she held when the leave began.
Sec. 54.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, be treated differently from
another person, or otherwise be discriminated against in any
interscholastic, intercollegiate, club, or intramural athletics offered
by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph
(a) of this section, a recipient may operate or sponsor separate teams
for members of each sex where selection for such teams is based upon
competitive skill
[[Page 113]]
or the activity involved is a contact sport. However, where a recipient
operates or sponsors a team in a particular sport for members of one sex
but operates or sponsors no such team for members of the other sex, and
athletic opportunities for members of that sex have previously been
limited, members of the excluded sex must be allowed to try out for the
team offered unless the sport involved is a contact sport. For the
purposes of these Title IX regulations, contact sports include boxing,
wrestling, rugby, ice hockey, football, basketball, and other sports the
purpose or major activity of which involves bodily contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics shall
provide equal athletic opportunity for members of both sexes. In
determining whether equal opportunities are available, the designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal
aggregate expenditures for members of each sex or unequal expenditures
for male and female teams if a recipient operates or sponsors separate
teams will not constitute noncompliance with this section, but the
designated agency official may consider the failure to provide necessary
funds for teams for one sex in assessing equality of opportunity for
members of each sex.
(d) Adjustment period. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
elementary school level shall comply fully with this section as
expeditiously as possible but in no event later than one year from
September 29, 2000. A recipient that operates or sponsors
interscholastic, intercollegiate, club, or intramural athletics at the
secondary or postsecondary school level shall comply fully with this
section as expeditiously as possible but in no event later than three
years from September 29, 2000.
Sec. 54.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as
requiring or prohibiting or abridging in any way the use of particular
textbooks or curricular materials.
Subpart E--Discrimination on the Basis of Sex in Employment in Education
Programs or Activities Prohibited
Sec. 54.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination in employment, or recruitment, consideration, or
selection therefor, whether full-time or part-time, under any education
program or activity operated by a recipient that receives Federal
financial assistance.
(2) A recipient shall make all employment decisions in any education
program or activity operated by such recipient in a nondiscriminatory
manner and shall not limit, segregate, or classify applicants or
employees in any way that could adversely affect any applicant's or
employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other
relationship which directly or indirectly has the effect of subjecting
employees or students to discrimination prohibited by Secs. 54.500
through 54.550, including relationships with employment and referral
agencies, with labor unions, and
[[Page 114]]
with organizations providing or administering fringe benefits to
employees of the recipient.
(4) A recipient shall not grant preferences to applicants for
employment on the basis of attendance at any educational institution or
entity that admits as students only or predominantly members of one sex,
if the giving of such preferences has the effect of discriminating on
the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Secs. 54.500 through 54.550 apply
to:
(1) Recruitment, advertising, and the process of application for
employment;
(2) Hiring, upgrading, promotion, consideration for and award of
tenure, demotion, transfer, layoff, termination, application of nepotism
policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in
compensation;
(4) Job assignments, classifications, and structure, including
position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy,
childbirth, false pregnancy, termination of pregnancy, leave for persons
of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(8) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, selection for tuition assistance, selection for sabbaticals
and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational
programs; and
(10) Any other term, condition, or privilege of employment.
Sec. 54.505 Employment criteria.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity that has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly
successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not
have such disproportionately adverse effect, are shown to be
unavailable.
Sec. 54.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not
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 of sex in the recruitment or hiring of
employees, or has been found to have so discriminated in the past, the
recipient shall recruit members of the sex so discriminated against so
as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or
exclusively at entities that furnish as applicants only or predominantly
members of one sex if such actions have the effect of discriminating on
the basis of sex in violation of Secs. 54.500 through 54.550.
Sec. 54.515 Compensation.
A recipient shall not make or enforce any policy or practice that,
on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a
rate less than that paid to employees of the opposite sex for equal work
on jobs the performance of which requires equal skill, effort, and
responsibility, and that are performed under similar working conditions.
Sec. 54.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority
lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for
[[Page 115]]
similar jobs, position descriptions, or job requirements that classify
persons on the basis of sex, unless sex is a bona fide occupational
qualification for the positions in question as set forth in Sec. 54.550.
Sec. 54.525 Fringe benefits.
(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, fringe benefits means: Any medical, hospital, accident,
life insurance, or retirement benefit, service, policy or plan, any
profit-sharing or bonus plan, leave, and any other benefit or service of
employment not subject to the provision of Sec. 54.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe
benefits available to employees or make fringe benefits available to
spouses, families, or dependents of employees differently upon the basis
of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit
plan that does not provide for equal periodic benefits for members of
each sex and for equal contributions to the plan by such recipient for
members of each sex; or
(3) Administer, operate, offer, or participate in a pension or
retirement plan that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in benefits
on the basis of sex.
Sec. 54.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any
employment action:
(1) Concerning the potential marital, parental, or family status of
an employee or applicant for employment that treats persons differently
on the basis of sex; or
(2) Which is based upon whether an employee or applicant for
employment is the head of household or principal wage earner in such
employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude
from employment any employee or applicant for employment on the basis of
pregnancy, childbirth, false pregnancy, termination of pregnancy, or
recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to Sec. 54235(d), a
recipient shall treat pregnancy, childbirth, false pregnancy,
termination of pregnancy, recovery therefrom, and any temporary
disability resulting therefrom as any other temporary disability for all
job-related purposes, including commencement, duration, and extensions
of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe
benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not
maintain a leave policy for its employees, or in the case of an employee
with insufficient leave or accrued employment time to qualify for leave
under such a policy, a recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy, and recovery therefrom as a
justification for a leave of absence without pay for a reasonable period
of time, at the conclusion of which the employee shall be reinstated to
the status that she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
Sec. 54.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with
Secs. 54.500 through 54.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service,
or benefit to members of one sex pursuant to a State or local law or
other requirement shall provide the same compensation, service, or
benefit to members of the other sex.
Sec. 54.540 Advertising.
A recipient shall not in any advertising related to employment
indicate preference, limitation, specification, or discrimination based
on sex unless sex is a bona fide occupational qualification for the
particular job in question.
[[Page 116]]
Sec. 54.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment
inquiry as to the marital status of an applicant for employment,
including whether such applicant is ``Miss'' or ``Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to the sex
of an applicant for employment, but only if such inquiry is made equally
of such applicants of both sexes and if the results of such inquiry are
not used in connection with discrimination prohibited by these Title IX
regulations.
Sec. 54.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by Secs. 54.500
through 54.550 provided it is shown that sex is a bona fide occupational
qualification for that action, such that consideration of sex with
regard to such action is essential to successful operation of the
employment function concerned. A recipient shall not take action
pursuant to this section that is based upon alleged comparative
employment characteristics or stereotyped characterizations of one or
the other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained in this
section shall prevent a recipient from considering an employee's sex in
relation to employment in a locker room or toilet facility used only by
members of one sex.
Subpart F--Procedures
Sec. 54.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that
awards Federal financial assistance shall publish in the Federal
Register a notice of the programs covered by these Title IX regulations.
Each such Federal agency shall periodically republish the notice of
covered programs to reflect changes in covered programs. Copies of this
notice also shall be made available upon request to the Federal agency's
office that enforces Title IX.
Sec. 54.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions
of Title VI 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 procedures may be found at 28 CFR 42.106 through 42.111.
[Order No. 2320-2000, 65 FR 52881, Aug. 30, 2000]
PART 55--IMPLEMENTATION OF THE PROVISIONS OF THE VOTING RIGHTS ACT REGARDING LANGUAGE MINORITY GROUPS--Table of Contents
Subpart A--General Provisions
Sec.
55.1 Definitions.
55.2 Purpose; standards for measuring compliance.
55.3 Statutory requirements.
Subpart B--Nature of Coverage
55.4 Effective date; list of covered jurisdictions.
55.5 Coverage under section 4(f)(4).
55.6 Coverage under section 203(c).
55.7 Termination of coverage.
55.8 Relationship between section 4(f)(4) and section 203(c).
55.9 Coverage of political units within a county.
55.10 Types of elections covered.
Subpart C--Determining the Exact Language
55.11 General.
55.12 Language used for written material.
55.13 Language used for oral assistance and publicity.
Subpart D--Minority Language Materials and Assistance
55.14 General.
55.15 Affected activities.
55.16 Standards and proof of compliance.
55.17 Targeting.
55.18 Provision of minority language materials and assistance.
55.19 Written materials.
55.20 Oral assistance and publicity.
55.21 Record keeping.
Subpart E--Preclearance
55.22 Requirements of section 5 of the Act.
Subpart F--Sanctions
55.23 Enforcement by the Attorney General.
Subpart G--Comment on This Part
55.24 Procedure.
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Appendix to Part 55--Jurisdictions Covered Under Sections 4(f)(4) and
203(c) of the Voting Rights Act of 1965, as Amended
Authority 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1973b,
1973j(d), 1973aa-la, 1973aa-2.
Source: Order No. 655-76, 41 FR 29998, July 20, 1976, unless
otherwise noted.
Subpart A--General Provisions
Sec. 55.1 Definitions.
As used in this part--
Act means the Voting Rights Act of 1965, 79 Stat. 437, as amended by
the Civil Rights Act of 1968, 82 Stat. 73, the Voting Rights Act
Amendments of 1970, 84 Stat. 314, the District of Columbia Delegate Act,
84 Stat. 853, the Voting Rights Act Amendments of 1975, 89 Stat. 400,
the Voting Rights Act Amendments of 1982, 96 Stat. 131, and the Voting
Rights Language Assistance Act of 1992, Public Law 102-344, 106 Stat.
921, 42 U.S.C. 1973 et seq. Section numbers, such as ``section
14(c)(3),'' refer to sections of the Act.
Attorney General means the Attorney General of the United States.
Language minorities or language minority group is used, as defined
in the Act, to refer to persons who are American Indian, Asian American,
Alaskan Natives, or of Spanish heritage. (Sections 14(c)(3) and 203(e)).
Political subdivision is used, as defined in the Act, to refer to
``any county or parish, except that where registration for voting is not
conducted under the supervision of a county or parish, the term shall
include any other subdivision of a State which conducts registration for
voting.'' (Section 14(c)(2)).
[Order 1246-87, 53 FR 735, Jan. 12, 1988, as amended by Order No. 1752-
93, 58 FR 35372, July 1, 1993]
Sec. 55.2 Purpose; standards for measuring compliance.
(a) The purpose of this part is to set forth the Attorney General's
interpretation of the provisions of the Voting Rights Act which require
certain States and political subdivisions to conduct elections in the
language of certain ``language minority groups'' in addition to English.
(b) In the Attorney General's view the objective of the Act's
provisions is to enable members of applicable language minority groups
to participate effectively in the electoral process. This part
establishes two basic standards by which the Attorney General will
measure compliance:
(1) That materials and assistance should be provided in a way
designed to allow members of applicable language minority groups to be
effectively informed of and participate effectively in voting-connected
activities; and
(2) That an affected jurisdiction should take all reasonable steps
to achieve that goal.
(c) The determination of what is required for compliance with
section 4(f)(4) and section 203(c) is the responsibility of the affected
jurisdiction. These guidelines should not be used as a substitute for
analysis and decision by the affected jurisdiction.
(d) Jurisdictions covered under section 4(f)(4) of the Act are
subject to the preclearance requirements of section 5. See part 51 of
this chapter. Such jurisdictions have the burden of establishing to the
satisfaction of the Attorney General or to the U.S. District Court for
the District of Columbia that changes made in their election laws and
procedures in order to comply with the requirements of section 4(f)(4)
are not discriminatory under the terms of section 5. However, section 5
expressly provides that the failure of the Attorney General to object
does not bar any subsequent judicial action to enjoin the enforcement of
the changes.
(e) Jurisdictions covered solely under section 203(c) of the Act are
not subject to the preclearance requirements of section 5, nor is there
a Federal apparatus available for preclearance of section 203(c)
compliance activities. The Attorney General will not preclear
jurisdictions' proposals for compliance with section 203(c).
(f) Consideration by the Attorney General of a jurisdiction's
compliance with the requirements of section 4(f)(4) occurs in the review
pursuant to section 5 of the Act of changes with respect to voting, in
the consideration of the need for litigation to enforce the requirements
of section 4(f)(4), and in the defense of suits for termination of
coverage under section 4(f)(4). Consideration by the Attorney General of
a
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jurisdiction's compliance with the requirements of section 203(c) occurs
in the consideration of the need for litigation to enforce the
requirements of section 203(c).
(g) In enforcing the Act--through the section 5 preclearance review
process, through litigation, and through defense of suits for
termination of coverage under section 4(f)(4)--the Attorney General will
follow the general policies set forth in this part.
(h) This part is not intended to preclude affected jurisdictions
from taking additional steps to further the policy of the Act. By virtue
of the Supremacy Clause of Art. VI of the Constitution, the provisions
of the Act override any inconsistent State law.
[Order 655-76, 41 FR 29998, July 20, 1976, as amended by Order 1246-87,
53 FR 736, Jan. 12, 1988]
Sec. 55.3 Statutory requirements.
The Act's requirements concerning the conduct of elections in
languages in addition to English are contained in section 4(f)(4) and
section 203(c). These sections state that whenever a jurisdiction
subject to their terms ``provides any registration or voting notices,
forms, instructions, assistance, or other materials or information
relating to the electoral process, including ballots, it shall provide
them in the language of the applicable language minority group as well
as in * * * English. * * *''
Subpart B--Nature of Coverage