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



[[Page i]]

          

          Title 28

Judicial Administration


________________________

Part 43 to End

                         Revised as of July 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

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

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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                                    555
          Chapter V--Bureau of Prisons, Department of Justice      577
          Chapter VI--Offices of Independent Counsel, 
          Department of Justice                                    733
          Chapter VII--Office of Independent Counsel               741
          Chapter VIII--Court Services and Offender 
          Supervision Agency for the District of Columbia          765
          Chapter IX--National Crime Prevention and Privacy 
          Compact Council                                          807
          Chapter XI--Department of Justice and Department of 
          State                                                    819
  Finding Aids:
      Table of CFR Titles and Chapters........................     829
      Alphabetical List of Agencies Appearing in the CFR......     849
      List of CFR Sections Affected...........................     859

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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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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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citations for the regulations are referred to by volume number and page 
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Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
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previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

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

INCORPORATION BY REFERENCE

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established by statute and allows Federal agencies to meet the 
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to materials already published elsewhere. For an incorporation to be 
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This material, like any other properly issued regulation, has the force 
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    (c) The incorporating document is drafted and submitted for 
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    What if the material incorporated by reference cannot be found? If 
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alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

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

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

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available at www.ecfr.gov.

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

                                
                                      
                            

  

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                               THIS TITLE

    Title 28--Judicial Administration is composed of two volumes. The 
parts in these volumes are arranged in the following order: Parts 0-42, 
and part 43 to end. The contents of these volumes represent all current 
regulations codified by the Department of Justice, the Federal Prison 
Industries, Inc., the Bureau of Prisons, Department of Justice, the 
Offices of Independent Counsel, Department of Justice, and the Office of 
Independent Counsel under this title of the CFR as of July 1, 2017.

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

[[Page 1]]



                    TITLE 28--JUDICIAL ADMINISTRATION




                   (This book contains part 43 to End)

  --------------------------------------------------------------------
                                                                    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

chapter xi--Department of Justice and Department of State...        1100

[[Page 3]]



              CHAPTER I--DEPARTMENT OF JUSTICE (CONTINUED)




  --------------------------------------------------------------------
Part                                                                Page
43              Recovery of cost of hospital and medical 
                    care and treatment furnished by the 
                    United States...........................           5
44              Unfair immigration-related employment 
                    practices...............................           6
45              Employee responsibilities...................          11
46              Protection of human subjects................          16
47              Right to Financial Privacy Act..............          26
48              Newspaper Preservation Act..................          27
49              Antitrust Civil Process Act.................          33
50              Statements of policy........................          34
51              Procedures for the administration of section 
                    5 of the Voting Rights Act of 1965, as 
                    amended.................................          88
52              Proceedings before U.S. magistrate judges...         112
54              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         113
55              Implementation of the provisions of the 
                    Voting Rights Act regarding language 
                    minority groups.........................         130
56              International Energy Program................         138
57              Investigation of discrimination in the 
                    supply of petroleum to the Armed Forces.         140
58              Regulations relating to the Bankruptcy 
                    Reform Acts of 1978 and 1994............         141
59              Guidelines on methods of obtaining 
                    documentary materials held by third 
                    parties.................................         182
60              Authorization of Federal law enforcement 
                    officers to request the issuance of a 
                    search warrant..........................         186
61              Procedures for implementing the National 
                    Environmental Policy Act................         188
63              Floodplain management and wetland protection 
                    procedures..............................         200
64              Designation of officers and employees of the 
                    United States for coverage under section 
                    1114 of title 18 of the U.S. Code.......         206
65              Emergency Federal law enforcement assistance         207

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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...........         216
69              New restrictions on lobbying................         245
71              Implementation of the provisions of the 
                    Program Fraud Civil Remedies Act of 1986         257
72              Sex offender registration and notification..         273
73              Notifications to the Attorney General by 
                    agents of foreign governments...........         274
74              Civil Liberties Act redress provision.......         276
75              Child Protection Restoration and Penalties 
                    Enhancement Act of 1990; Protect Act; 
                    Adam Walsh Child Protection and Safety 
                    Act of 2006; recordkeeping and record-
                    inspection provisions...................         288
76              Rules of procedure for assessment of civil 
                    penalties for possession of certain 
                    controlled substances...................         297
77              Ethical standards for attorneys for the 
                    government..............................         312
79              Claims under the Radiation Exposure 
                    Compensation Act........................         315
80              Foreign Corrupt Practices Act opinion 
                    procedure...............................         387
81              Child abuse and child pornography reporting 
                    designations and procedures.............         389
83              Government-wide requirements for drug-free 
                    workplace (grants)......................         391
85              Civil monetary penalties inflation 
                    adjustment..............................         396
90              Violence against women......................         402
91              Grants for correctional facilities..........         415
92              Office of Community Oriented Policing 
                    Services (COPS).........................         431
93              Provisions implementing the Violent Crime 
                    Control and Law Enforcement Act of 1994.         437
94              Crime victim services.......................         439
97              Standards for private entities providing 
                    prisoner or detainee services...........         457
100             Cost recovery regulations, Communications 
                    Assistance for Law Enforcement Act of 
                    1994....................................         460
104             September 11th Victim Compensation Fund.....         469
105             Criminal history background checks..........         482
115             Prison Rape Elimination Act national 
                    standards...............................         491
200             Alien terrorist removal procedures..........         553
201-299         [Reserved].

Supplementary Publications: The official opinions of the Attorneys 
  General of the United States. (Op. A. G.) Irregular, 1789--; 
  Washington, v. 1--, 1852--.

[[Page 5]]



PART 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 $300,000, 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 
$300,000, in whole or in part, either for the convenience of the 
Government, or if the head of the Department or Agency, or his or her 
designee, determines that collection would result in undue hardship upon 
the person who suffered

[[Page 6]]

the injury or disease resulting in the care and treatment described in 
Sec. 43.1.
    (b) Claims in excess of $300,000 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, as amended by Order No. 
3141-2010, 75 FR 9103, Mar. 1, 2010]



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



Sec.
44.100  Purpose.
44.101  Definitions.
44.102  Computation of time.
44.200  Unfair immigration-related employment practices.
44.201  [Reserved].
44.202  Counting employees for jurisdictional purposes.
44.300  Filing a charge.
44.301  Receipt 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. 1103(a)(1), (g), 1324b.

    Source: 81 FR 91789, Dec. 19, 2016, unless otherwise noted.



Sec. 44.100  Purpose.

    The purpose of this part is to implement section 274B of the 
Immigration and Nationality Act (8 U.S.C. 1324b), which prohibits 
certain unfair immigration-related employment practices.



Sec. 44.101  Definitions.

    For purposes of 8 U.S.C. 1324b and this part:
    (a) Charge means a written statement in any language that--
    (1) Is made under oath or affirmation;
    (2) Identifies the charging party's name, address, and telephone 
number;
    (3) Identifies the injured party's name, address, and telephone 
number, if the charging party is not the injured party;
    (4) Identifies the name and address of the person or other entity 
against whom the charge is being made;
    (5) Includes a statement sufficient to describe the circumstances, 
place, and date of an alleged unfair immigration-related employment 
practice;
    (6) Indicates whether the basis of the alleged unfair immigration-
related employment practice is discrimination based on national origin, 
citizenship status, or both; or involves intimidation or retaliation; or 
involves unfair documentary practices;
    (7) Indicates the citizenship status of the injured party;
    (8) Indicates, if known, the number of individuals employed on the 
date of the alleged unfair immigration-related employment practice by 
the person or other entity against whom the charge is being made;
    (9) Is signed by the charging party and, if the charging party is 
neither the injured party nor an officer of the Department of Homeland 
Security, indicates that the charging party has the authorization of the 
injured party to file the charge;
    (10) Indicates whether a charge based on the same set of facts has 
been filed

[[Page 7]]

with the Equal Employment Opportunity Commission, and if so, the 
specific office and contact person (if known); and
    (11) 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 injured party who files a charge with the Special Counsel;
    (2) An individual or entity authorized by an injured party to file a 
charge with the Special Counsel that alleges that the injured party is 
adversely affected directly by an unfair immigration-related employment 
practice; or
    (3) An officer of the Department of Homeland Security who files a 
charge with the Special Counsel that alleges that an unfair immigration-
related employment practice has occurred or is occurring.
    (c) Citizenship status means an individual's status as a U.S. 
citizen or national, or non-U.S. citizen, including the immigration 
status of a non-U.S. citizen.
    (d) Complaint means a written submission filed with the Office of 
the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 by 
the Special Counsel or by a charging party, other than an officer of the 
Department of Homeland Security, alleging one or more unfair 
immigration-related employment practices under 8 U.S.C. 1324b.
    (e) Discriminate as that term is used in 8 U.S.C. 1324b(a) means the 
act of intentionally treating an individual differently from other 
individuals because of national origin or citizenship status, regardless 
of the explanation for the differential treatment, and regardless of 
whether such treatment is because of animus or hostility.
    (f) The phrase ``for purposes of satisfying the requirements of 
section 1324a(b),'' as that phrase is used in 8 U.S.C. 1324b(a)(6), 
means for the purpose of completing the employment eligibility 
verification form designated in 8 CFR 274a.2, or for the purpose of 
making any other efforts to verify an individual's employment 
eligibility, including the use of ``E-Verify'' or any other electronic 
employment eligibility verification program.
    (g) An act done ``for the purpose or with the intent of 
discriminating against an individual in violation of [1324(a)(1)],'' as 
that phrase is used in 8 U.S.C. 1324b(a)(6), means an act of 
intentionally treating an individual differently based on national 
origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1), 
regardless of the explanation for the differential treatment, and 
regardless of whether such treatment is because of animus or hostility.
    (h) Hiring means all conduct and acts during the entire recruitment, 
selection, and onboarding process undertaken to make an individual an 
employee.
    (i) Injured party means an individual who claims to be adversely 
affected directly by an unfair immigration-related employment practice.
    (j) The phrase ``more or different documents than are required under 
such section,'' as that phrase is used in 8 U.S.C. 1324b(a)(6), includes 
any limitation on an individual's choice of acceptable documentation to 
present to satisfy the requirements of 8 U.S.C. 1324a(b).
    (k) Protected individual means an individual who--
    (1) Is a citizen or national of the United States;
    (2) Is an alien who is lawfully admitted for permanent residence, 
other than 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, within 
six months after November 6, 1986; 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 Department of Homeland Security's 
processing of the application shall not be counted toward the two-year 
period;
    (3) Is granted the status of an alien lawfully admitted for 
temporary residence under 8 U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1);

[[Page 8]]

    (4) Is admitted as a refugee under 8 U.S.C. 1157; or
    (5) Is granted asylum under 8 U.S.C. 1158.
    (l) Recruitment or referral for a fee has the meaning given the 
terms ``recruit for a fee'' and ``refer for a fee,'' respectively, in 8 
CFR 274a.1, and includes all conduct and acts during the entire 
recruitment or referral process.
    (m) Respondent means a person or other entity who is under 
investigation by the Special Counsel, as identified in the written 
notice required by Sec. 44.301(a) or Sec. 44.304(a).
    (n) Special Counsel means the Special Counsel for Immigration-
Related Unfair Employment Practices appointed by the President under 8 
U.S.C. 1324b, or a duly authorized designee.



Sec. 44.102  Computation of time.

    When a time period specified in this part ends on a day when the 
Federal Government in Washington, DC is closed (such as on weekends and 
Federal holidays, or due to a closure for all or part of a business 
day), the time period shall be extended until the next full day that the 
Federal Government in Washington, DC is open.



Sec. 44.200  Unfair immigration-related employment practices.

    (a)(1) General. It is an unfair immigration-related employment 
practice under 8 U.S.C. 1324b(a)(1) for a person or other entity to 
intentionally discriminate or to engage in a pattern or practice of 
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(k), because of such individual's citizenship status.
    (2) Intimidation or retaliation. It is an unfair immigration-related 
employment practice under 8 U.S.C. 1324b(a)(5) 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) Unfair documentary practices. It is an unfair immigration-
related employment practice under 8 U.S.C. 1324b(a)(6) for--
    (i) A person or other entity, for purposes of satisfying the 
requirements of 8 U.S.C. 1324a(b), either--
    (A) To request more or different documents than are required under 
Sec. 1324a(b); or
    (B) To refuse to honor documents tendered that on their face 
reasonably appear to be genuine and to relate to the individual; and
    (ii) To make such request or refusal for the purpose or with the 
intent of discriminating against any individual in violation of 
paragraph (a)(1) of this section, regardless of whether such documentary 
practice is a condition of employment or causes economic harm to the 
individual.
    (b) Exceptions. (1) Paragraph (a)(1) 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 by a 
person or other entity if such discrimination is covered by 42 U.S.C. 
2000e-2; or
    (iii) Discrimination because of citizenship status 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) 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 an individual, or to 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.

[[Page 9]]



Sec. 44.201  [Reserved]



Sec. 44.202  Counting employees for jurisdictional purposes.

    The Special Counsel will calculate the number of employees referred 
to in Sec. 44.200(b)(1)(i) by counting all part-time and full-time 
employees employed on the date that the alleged discrimination occurred. 
The Special Counsel will use the 20 calendar week requirement contained 
in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b), for 
purposes of determining whether the exception of Sec. 44.200(b)(1)(ii) 
applies, and will refer to the Equal Employment Opportunity Commission 
charges of national origin discrimination that the Special Counsel 
determines are covered by 42 U.S.C. 2000e-2.



Sec. 44.300  Filing a charge.

    (a) Who may file: Charges may be filed by:
    (1) Any injured party;
    (2) Any individual or entity authorized by an injured party to file 
a charge with the Special Counsel alleging that the injured party is 
adversely affected directly by an unfair immigration-related employment 
practice; or
    (3) Any officer of the Department of Homeland Security who alleges 
that an unfair immigration-related employment practice has occurred or 
is occurring.
    (b) Charges shall be filed within 180 days of the alleged occurrence 
of an unfair immigration-related employment practice. A charge is deemed 
to be filed on the date it is postmarked or the date on which the 
charging party otherwise delivers or transmits the charge to the Special 
Counsel.
    (c) Charges may be sent by:
    (1) U.S. mail;
    (2) Courier service;
    (3) Electronic or online submission; or
    (4) Facsimile.
    (d) No charge may be filed respecting an unfair immigration-related 
employment practice described in Sec. 44.200(a)(1)(i) 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, as amended, 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 as being outside the scope of this part.



Sec. 44.301  Receipt of charge.

    (a) Within 10 days of receipt of a charge, the Special Counsel shall 
notify the charging party and respondent by certified mail, in 
accordance with paragraphs (b) and (c) of this section, of the Special 
Counsel's receipt of the charge.
    (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 Department of Homeland Security, 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 that the charging 
party will have 90 days from the receipt of the letter of determination 
issued pursuant to Sec. 44.303(b) by which to file such a complaint.
    (c) The notice to the respondent shall include the date, place, and 
circumstances of the alleged unfair immigration-related employment 
practice.
    (d)(1) If a charging party's submission is found to be inadequate to 
constitute a complete charge as defined in Sec. 44.101(a), the Special 
Counsel shall notify the charging party that the charge is incomplete 
and specify what additional information is needed.
    (2) An incomplete charge that is later deemed to be complete under 
this paragraph is deemed filed on the date the initial but inadequate 
submission is postmarked or otherwise delivered or transmitted to the 
Special Counsel, provided any additional information requested by the 
Special Counsel pursuant to this paragraph is postmarked or otherwise 
provided, delivered or transmitted to the Special Counsel within 180 
days of the alleged occurrence of an unfair immigration-related 
employment practice or within 45 days of the date on which the charging

[[Page 10]]

party received the Special Counsel's request for additional information, 
whichever is later.
    (3) Once the Special Counsel determines adequate information has 
been submitted to constitute a complete charge, the Special Counsel 
shall issue the notices required by paragraphs (b) and (c) of this 
section within 10 days.
    (e) In the Special Counsel's discretion, the Special Counsel may 
deem a submission to be a complete charge 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.
    (f) A charge or an inadequate submission referred to the Special 
Counsel by a federal, state, or local government agency appointed as an 
agent for accepting charges on behalf of the Special Counsel is deemed 
filed on the date the charge or inadequate submission was postmarked to 
or otherwise delivered or transmitted to that agency. Upon receipt of 
the referred charge or inadequate submission, the Special Counsel shall 
follow the applicable notification procedures for the receipt of a 
charge or inadequate submission set forth in this section.
    (g) The Special Counsel shall dismiss a charge or inadequate 
submission that is filed more than 180 days after the alleged occurrence 
of an unfair immigration-related employment practice, unless the Special 
Counsel determines that the principles of waiver, estoppel, or equitable 
tolling apply.



Sec. 44.302  Investigation.

    (a) The Special Counsel may seek information, request documents and 
answers to written interrogatories, inspect premises, and solicit 
testimony as the Special Counsel believes is necessary to ascertain 
compliance with this part.
    (b) The Special Counsel may require any person or other entity to 
present Employment Eligibility Verification Forms (``Forms I-9'') for 
inspection.
    (c) The Special Counsel shall have reasonable access to examine the 
evidence of any person or other entity being investigated. The 
respondent shall permit access by the Special Counsel during normal 
business hours to such books, records, accounts, papers, electronic and 
digital documents, databases, systems of records, witnesses, premises, 
and other sources of information the Special Counsel may deem pertinent 
to ascertain compliance with this part.
    (d) A respondent, upon receiving notice by the Special Counsel that 
it is under investigation, shall preserve all evidence, information, and 
documents potentially relevant to any alleged unfair immigration-related 
employment practices, and shall suspend routine or automatic deletion of 
all such evidence, information, and documents.



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 to 
file a complaint with respect to the charge.
    (b) If the Special Counsel determines not to file a complaint with 
respect to such charge by the end of the 120-day period, or decides to 
continue the investigation of the charge beyond the 120-day period, the 
Special Counsel shall, by the end of the 120-day period, issue letters 
to the charging party and respondent by certified mail notifying both 
parties of the Special Counsel's determination.
    (c) When a charging party receives a letter of determination issued 
pursuant to paragraph (b) of this section, the charging party, other 
than an officer of the Department of Homeland Security, may file a 
complaint directly before an administrative law judge in the Office of 
the Chief Administrative Hearing Officer (OCAHO) 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 OCAHO as provided in 28 
CFR part 68.
    (d) The Special Counsel's failure to file a complaint with respect 
to such charge with OCAHO within the 120-day period shall not affect the 
right of the Special Counsel to continue to investigate the charge or 
later to bring a complaint before OCAHO.

[[Page 11]]

    (e) The Special Counsel may seek to intervene at any time in any 
proceeding brought by a charging party before OCAHO.



Sec. 44.304  Special Counsel acting on own initiative.

    (a) The Special Counsel may, on the Special Counsel's own 
initiative, conduct investigations respecting unfair immigration-related 
employment practices when there is reason to believe that a person or 
other entity has engaged or is engaging in such practices, and shall 
notify a respondent by certified mail of the commencement of the 
investigation.
    (b) The Special Counsel may file a complaint with OCAHO when there 
is reasonable cause to believe that an unfair immigration-related 
employment practice has occurred no more than 180 days prior to the date 
on which the Special Counsel opened an investigation of that practice.



Sec. 44.305  Regional offices.

    The Special Counsel, in accordance with regulations of the Attorney 
General, shall establish such regional offices as may be necessary to 
carry out the Special Counsel's 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.
45.10  Procedures to promote compliance with crime victims' rights 
          obligations.
45.11  Reporting to the Office of the Inspector General.
45.12  Reporting to the Department of Justice Office of Professional 
          Responsibility.
45.13  Duty to cooperate in an official investigation.

    Authority: 5 U.S.C. 301, 7301, App. 3, 6; 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:
    (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)

[[Page 12]]

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 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

[[Page 13]]

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
    (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]



Sec. 45.10  Procedures to promote compliance with crime victims'
rights obligations.

    (a) Definitions. The following definitions shall apply with respect 
to this section, which implements the provisions of the Justice for All 
Act that relate to protection of the rights of crime victims. See 18 
U.S.C. 3771.
    Crime victim means a person directly and proximately harmed as a 
result of the commission of a Federal offense or an offense in the 
District of Columbia. In the case of a crime victim who is

[[Page 14]]

under 18 years of age, incompetent, incapacitated, or deceased, the 
legal guardians of the crime victim or the representatives of the crime 
victim's estate, family members, or any other persons appointed as 
suitable by the court, may assume the crime victim's rights, but in no 
event shall the defendant be named as such guardian or representative.
    Crime victims' rights means those rights provided in 18 U.S.C. 3771.
    Employee of the Department of Justice means an attorney, 
investigator, law enforcement officer, or other personnel employed by 
any division or office of the Department of Justice whose regular course 
of duties includes direct interaction with crime victims, not including 
a contractor.
    Office of the Department of Justice means a component of the 
Department of Justice whose employees directly interact with crime 
victims in the regular course of their duties.
    (b) The Attorney General shall designate an official within the 
Executive Office for United States Attorneys (EOUSA) to receive and 
investigate complaints alleging the failure of Department of Justice 
employees to provide rights to crime victims under 18 U.S.C. 3771. The 
official shall be called the Department of Justice Victims' Rights 
Ombudsman (VRO). The VRO shall then designate, in consultation with each 
office of the Department of Justice, an official in each office to serve 
as the initial point of contact (POC) for complainants.
    (c) Complaint process. (1) Complaints must be submitted in writing 
to the POC of the relevant office or offices of the Department of 
Justice. If a complaint alleges a violation that would create a conflict 
of interest for the POC to investigate, the complaint shall be forwarded 
by the POC immediately to the VRO.
    (2) Complaints shall contain, to the extent known to, or reasonably 
available to, the victim, the following information:
    (i) The name and personal contact information of the crime victim 
who allegedly was denied one or more crime victims' rights;
    (ii) The name and contact information of the Department of Justice 
employee who is the subject of the complaint, or other identifying 
information if the complainant is not able to provide the name and 
contact information;
    (iii) The district court case number;
    (iv) The name of the defendant in the case;
    (v) The right or rights listed in 18 U.S.C. 3771 that the Department 
of Justice employee is alleged to have violated; and
    (vi) Specific information regarding the circumstances of the alleged 
violation sufficient to enable the POC to conduct an investigation, 
including, but not limited to: The date of the alleged violation; an 
explanation of how the alleged violation occurred; whether the 
complainant notified the Department of Justice employee of the alleged 
violation; how and when such notification was provided to the Department 
of Justice employee; and actions taken by the Department of Justice 
employee in response to the notification.
    (3) Complaints must be submitted within 60 days of the victim's 
knowledge of a violation, but not more than one year after the actual 
violation.
    (4)(i) In response to a complaint that provides the information 
required under paragraph (c)(2) of this section and that contains 
specific and credible information that demonstrates that one or more 
crime victims' rights listed in 18 U.S.C. 3771 may have been violated by 
a Department of Justice employee or office, the POC shall investigate 
the allegation(s) in the complaint within a reasonable period of time.
    (ii) The POC shall report the results of the investigation to the 
VRO.
    (5) Upon receipt of the POC's report of the investigation, the VRO 
shall determine whether to close the complaint without further action, 
whether further investigation is warranted, or whether action in 
accordance with paragraphs (d) or (e) of this section is necessary.
    (6) Where the VRO concludes that further investigation is warranted, 
he may conduct such further investigation. Upon conclusion of the 
investigation, the VRO may close the complaint if he determines that no 
further action

[[Page 15]]

is warranted or may take action under paragraph (d) or (e) of this 
section.
    (7) The VRO shall be the final arbiter of the complaint.
    (8) A complainant may not seek judicial review of the VRO's 
determination regarding the complaint.
    (9) To the extent permissible in accordance with the Privacy Act and 
other relevant statutes and regulations regarding release of information 
by the Federal government, the VRO, in his discretion, may notify the 
complainant of the result of the investigation.
    (10) The POC and the VRO shall refer to the Office of the Inspector 
General and to the Office of Professional Responsibility any matters 
that fall under those offices' respective jurisdictions that come to 
light in an investigation.
    (d) If the VRO finds that an employee or office of the Department of 
Justice has failed to provide a victim with a right to which the victim 
is entitled under 18 U.S.C. 3771, but not in a willful or wanton manner, 
he shall require such employee or office of the Department of Justice to 
undergo training on victims' rights.
    (e) Disciplinary procedures. (1) If, based on the investigation, the 
VRO determines that a Department of Justice employee has wantonly or 
willfully failed to provide the complainant with a right listed in 18 
U.S.C. 3771, the VRO shall recommend, in conformity with laws and 
regulations regarding employee discipline, a range of disciplinary 
sanctions to the head of the office of the Department of Justice in 
which the employee is located, or to the official who has been 
designated by Department of Justice regulations and procedures to take 
action on disciplinary matters for that office. The head of that office 
of the Department of Justice, or the other official designated by 
Department of Justice regulations and procedures to take action on 
disciplinary matters for that office, shall be the final decision-maker 
regarding the disciplinary sanction to be imposed, in accordance with 
applicable laws and regulations.
    (2) Disciplinary sanctions available under paragraph (e)(1) of this 
section include all sanctions provided under the Department of Justice 
Human Resources Order, 1200.1.

[70 FR 69653, Nov. 17, 2005]



Sec. 45.11  Reporting to the Office of the Inspector General.

    Department of Justice employees have a duty to, and shall, report to 
the Department of Justice Office of the Inspector General, or to their 
supervisor or their component's internal affairs office for referral to 
the Office of the Inspector General:
    (a) Any allegation of waste, fraud, or abuse in a Department program 
or activity;
    (b) Any allegation of criminal or serious administrative misconduct 
on the part of a Department employee (except those allegations of 
misconduct that are required to be reported to the Department of Justice 
Office of Professional Responsibility pursuant to Sec. 45.12); and
    (c) Any investigation of allegations of criminal misconduct against 
any Department employee.

[Order No. 2835-2006, 71 FR 54414, Sept. 15, 2006]



Sec. 45.12  Reporting to the Department of Justice Office of
Professional Responsibility.

    Department employees have a duty to, and shall, report to the 
Department of Justice Office of Professional Responsibility (DOJ-OPR), 
or to their supervisor, or their component's internal affairs office for 
referral to DOJ-OPR, any allegations of misconduct by a Department 
attorney that relate to the exercise of the attorney's authority to 
investigate, litigate or provide legal advice, as well as allegations of 
misconduct by law enforcement personnel when such allegations are 
related to allegations of attorney misconduct within the jurisdiction of 
DOJ-OPR.

[Order No. 2835-2006, 71 FR 54414, Sept. 15, 2006]



Sec. 45.13  Duty to cooperate in an official investigation.

    Department employees have a duty to, and shall, cooperate fully with 
the Office of the Inspector General and Office of Professional 
Responsibility, and shall respond to questions posed during

[[Page 16]]

the course of an investigation upon being informed that their statement 
will not be used to incriminate them in a criminal proceeding. Refusal 
to cooperate could lead to disciplinary action.

[Order No. 2835-2006, 71 FR 54414, Sept. 15, 2006]



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 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.

[[Page 17]]

    (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 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

[[Page 18]]

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 Human Research Protections, Department of 
Health and Human Services (HHS), or any successor office, 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, subpart 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, 28020, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



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 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

[[Page 19]]

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 Human Research Protections, HHS, or any successor office, 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 
Human Research Protections, HHS, or any successor office.
    (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 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 Human Research Protections, HHS, or 
any successor office.
    (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

[[Page 20]]

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 
0990-0260)

[56 FR 28012, 28020, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



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 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

[[Page 21]]

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.
    (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 
0990-0260)

[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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

[[Page 22]]

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 Human 
Research Protections, HHS, or any successor office.
    (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.

[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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.
    (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.

[[Page 23]]



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 
0990-0260)

[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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 
0990-0260)

[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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 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

[[Page 24]]

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;
    (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:

[[Page 25]]

    (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 
0990-0260)

[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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 
0990-0260)

[56 FR 28012, 28020, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



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 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

[[Page 26]]

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 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.

[[Page 27]]

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.



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.

[[Page 28]]

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.
    (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,

[[Page 29]]

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 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

[[Page 30]]

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 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

[[Page 31]]

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 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

[[Page 32]]

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: (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

[[Page 33]]

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.
    (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

[[Page 34]]

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 regarding obtaining information from, or records of, 
          members of the news media; and regarding questioning, 
          arresting, or charging 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.
50.24  Annuity broker minimum qualifications.
50.25  Assumption of concurrent Federal criminal jurisdiction in certain 
          areas of Indian country.

    Authority: 5 U.S.C. 301; 18 U.S.C. 1162; 28 U.S.C. 509, 510, 516, 
and 519; 42 U.S.C. 1921 et seq., 1973c; and Pub. L. 107-273, 116 Stat. 
1758, 1824.



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

[[Page 35]]

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 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.

[[Page 36]]

    (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 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.

[[Page 37]]

                    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 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,

[[Page 38]]

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, 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

[[Page 39]]

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.
    (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.

[[Page 40]]

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 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

[[Page 41]]

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]



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

[[Page 42]]

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 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 regarding obtaining information from, or records 
of, members of the news media; and regarding questioning, arresting,
or charging members of the news media.

    (a) Statement of principles. (1) Because freedom of the press can be 
no broader than the freedom of members of the news media to investigate 
and report the news, the Department's policy is intended to provide 
protection to members of the news media from certain

[[Page 43]]

law enforcement tools, whether criminal or civil, that might 
unreasonably impair newsgathering activities. The policy is not intended 
to extend special protections to members of the news media who are 
subjects or targets of criminal investigations for conduct not based on, 
or within the scope of, newsgathering activities.
    (2) In determining whether to seek information from, or records of, 
members of the news media, the approach in every instance must be to 
strike the proper balance among several vital interests: Protecting 
national security, ensuring public safety, promoting effective law 
enforcement and the fair administration of justice, and safeguarding the 
essential role of the free press in fostering government accountability 
and an open society.
    (3) The Department views the use of certain law enforcement tools, 
including subpoenas, court orders issued pursuant to 18 U.S.C. 2703(d) 
or 3123, and search warrants to seek information from, or records of, 
non-consenting members of the news media as extraordinary measures, not 
standard investigatory practices. In particular, subpoenas or court 
orders issued pursuant to 18 U.S.C. 2703(d) or 3123 may be used, after 
authorization by the Attorney General, or by another senior official in 
accordance with the exceptions set forth in paragraph (c)(3) of this 
section, only to obtain information from, or records of, members of the 
news media when the information sought is essential to a successful 
investigation, prosecution, or litigation; after all reasonable 
alternative attempts have been made to obtain the information from 
alternative sources; and after negotiations with the affected member of 
the news media have been pursued and appropriate notice to the affected 
member of the news media has been provided, unless the Attorney General 
determines that, for compelling reasons, such negotiations or notice 
would pose a clear and substantial threat to the integrity of the 
investigation, risk grave harm to national security, or present an 
imminent risk of death or serious bodily harm.
    (4) When the Attorney General has authorized the use of a subpoena, 
court order issued pursuant to 18 U.S.C. 2703(d) or 3123, or warrant to 
obtain from a third party communications records or business records of 
a member of the news media, the affected member of the news media shall 
be given reasonable and timely notice of the Attorney General's 
determination before the use of the subpoena, court order, or warrant, 
unless the Attorney General determines that, for compelling reasons, 
such notice would pose a clear and substantial threat to the integrity 
of the investigation, risk grave harm to national security, or present 
an imminent risk of death or serious bodily harm.
    (b) Scope.--(1) Covered individuals and entities. (i) The policy 
governs the use of certain law enforcement tools to obtain information 
from, or records of, members of the news media.
    (ii) The protections of the policy do not extend to any individual 
or entity where there are reasonable grounds to believe that the 
individual or entity is--
    (A) A foreign power or agent of a foreign power, as those terms are 
defined in section 101 of the Foreign Intelligence Surveillance Act of 
1978 (50 U.S.C. 1801);
    (B) A member or affiliate of a foreign terrorist organization 
designated under section 219(a) of the Immigration and Nationality Act 
(8 U.S.C. 1189(a));
    (C) Designated as a Specially Designated Global Terrorist by the 
Department of the Treasury under Executive Order 13224 of September 23, 
2001 (66 FR 49079);
    (D) A specially designated terrorist as that term is defined in 31 
CFR 595.311 (or any successor thereto);
    (E) A terrorist organization as that term is defined in section 
212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 
1182(a)(3)(B)(vi));
    (F) Committing or attempting to commit a crime of terrorism, as that 
offense is described in 18 U.S.C. 2331(5) or 2332b(g)(5);
    (G) Committing or attempting the crime of providing material support 
or resources to terrorists, as that offense is defined in 18 U.S.C. 
2339A; or

[[Page 44]]

    (H) Aiding, abetting, or conspiring in illegal activity with a 
person or organization described in paragraphs (b)(1)(ii)(A) through (G) 
of this section.
    (2) Covered law enforcement tools and records. (i) The policy 
governs the use by law enforcement authorities of subpoenas or, in civil 
matters, other similar compulsory process such as a civil investigative 
demand (collectively ``subpoenas'') to obtain information from members 
of the news media, including documents, testimony, and other materials; 
and the use by law enforcement authorities of subpoenas, or court orders 
issued pursuant to 18 U.S.C. 2703(d) (``2703(d) order'') or 18 U.S.C. 
3123 (``3123 order''), to obtain from third parties ``communications 
records'' or ``business records'' of members of the news media.
    (ii) The policy also governs applications for warrants to search the 
premises or property of members of the news media, pursuant to Federal 
Rule of Criminal Procedure 41; or to obtain from third-party 
``communication service providers'' the communications records or 
business records of members of the news media, pursuant to 18 U.S.C. 
2703(a) and (b).
    (3) Definitions. (i)(A) ``Communications records'' include the 
contents of electronic communications as well as source and destination 
information associated with communications, such as email transaction 
logs and local and long distance telephone connection records, stored or 
transmitted by a third-party communication service provider with which 
the member of the news media has a contractual relationship.
    (B) Communications records do not include information described in 
18 U.S.C. 2703(c)(2)(A), (B), (D), (E), and (F).
    (ii) A ``communication service provider'' is a provider of an 
electronic communication service or remote computing service as defined, 
respectively, in 18 U.S.C. 2510(15) and 18 U.S.C. 2711(2).
    (iii) (A) ``Business records'' include work product and other 
documentary materials, and records of the activities, including the 
financial transactions, of a member of the news media related to the 
coverage, investigation, or reporting of news. Business records are 
limited to those generated or maintained by a third party with which the 
member of the news media has a contractual relationship, and which could 
provide information about the newsgathering techniques or sources of a 
member of the news media.
    (B) Business records do not include records unrelated to 
newsgathering activities, such as those related to the purely 
commercial, financial, administrative, or technical, operations of a 
news media entity.
    (C) Business records do not include records that are created or 
maintained either by the government or by a contractor on behalf of the 
government.
    (c) Issuing subpoenas to members of the news media, or using 
subpoenas or court orders issued pursuant to 18 U.S.C. 2703(d) or 3123 
to obtain from third parties communications records or business records 
of a member of the news media. (1) Except as set forth in paragraph 
(c)(3) of this section, members of the Department must obtain the 
authorization of the Attorney General to issue a subpoena to a member of 
the news media; or to use a subpoena, 2703(d) order, or 3123 order to 
obtain from a third party communications records or business records of 
a member of the news media.
    (2) Requests for the authorization of the Attorney General for the 
issuance of a subpoena to a member of the news media, or to use a 
subpoena, 2703(d) order, or 3123 order to obtain communications records 
or business records of a member of the news media, must be personally 
endorsed by the United States Attorney or Assistant Attorney General 
responsible for the matter.
    (3) Exceptions to the Attorney General authorization requirement. 
(i)(A) A United States Attorney or Assistant Attorney General 
responsible for the matter may authorize the issuance of a subpoena to a 
member of the news media (e.g., for documents, video or audio 
recordings, testimony, or other materials) if the member of the news 
media expressly agrees to provide the requested information in response 
to a subpoena. This exception applies, but is not limited, to both 
published and unpublished materials and aired and unaired recordings.

[[Page 45]]

    (B) In the case of an authorization under paragraph (c)(3)(i)(A) of 
this section, the United States Attorney or Assistant Attorney General 
responsible for the matter shall provide notice to the Director of the 
Criminal Division's Office of Enforcement Operations within 10 business 
days of the authorization of the issuance of the subpoena.
    (ii) In light of the intent of this policy to protect freedom of the 
press, newsgathering activities, and confidential news media sources, 
authorization of the Attorney General will not be required of members of 
the Department in the following circumstances:
    (A) To issue subpoenas to news media entities for purely commercial, 
financial, administrative, technical, or other information unrelated to 
newsgathering activities; or for information or records relating to 
personnel not involved in newsgathering activities.
    (B) To issue subpoenas to members of the news media for information 
related to public comments, messages, or postings by readers, viewers, 
customers, or subscribers, over which the member of the news media does 
not exercise editorial control prior to publication.
    (C) To use subpoenas to obtain information from, or to use 
subpoenas, 2703(d) orders, or 3123 orders to obtain communications 
records or business records of, members of the news media who may be 
perpetrators or victims of, or witnesses to, crimes or other events, 
when such status (as a perpetrator, victim, or witness) is not based on, 
or within the scope of, newsgathering activities.
    (iii) In the circumstances identified in paragraphs (c)(3)(ii)(A) 
through (C) of this section, the United States Attorney or Assistant 
Attorney General responsible for the matter must--
    (A) Authorize the use of the subpoena or court order;
    (B) Consult with the Criminal Division regarding appropriate review 
and safeguarding protocols; and
    (C) Provide a copy of the subpoena or court order to the Director of 
the Office of Public Affairs and to the Director of the Criminal 
Division's Office of Enforcement Operations within 10 business days of 
the authorization.
    (4) Considerations for the Attorney General in determining whether 
to authorize the issuance of a subpoena to a member of the news media. 
(i) In matters in which a member of the Department determines that a 
member of the news media is a subject or target of an investigation 
relating to an offense committed in the course of, or arising out of, 
newsgathering activities, the member of the Department requesting 
Attorney General authorization to issue a subpoena to a member of the 
news media shall provide all facts necessary for determinations by the 
Attorney General regarding both whether the member of the news media is 
a subject or target of the investigation and whether to authorize the 
issuance of such subpoena. If the Attorney General determines that the 
member of the news media is a subject or target of an investigation 
relating to an offense committed in the course of, or arising out of, 
newsgathering activities, the Attorney General's determination regarding 
the issuance of the proposed subpoena should take into account the 
principles reflected in paragraph (a) of this section, but need not take 
into account the considerations identified in paragraphs (c)(4)(ii) 
through (viii) of this section.
    (ii)(A) In criminal matters, there should be reasonable grounds to 
believe, based on public information, or information from non-media 
sources, that a crime has occurred, and that the information sought is 
essential to a successful investigation or prosecution. The subpoena 
should not be used to obtain peripheral, nonessential, or speculative 
information.
    (B) In civil matters, there should be reasonable grounds to believe, 
based on public information or information from non-media sources, that 
the information sought is essential to the successful completion of the 
investigation or litigation in a case of substantial importance. The 
subpoena should not be used to obtain peripheral, nonessential, 
cumulative, or speculative information.
    (iii) The government should have made all reasonable attempts to 
obtain the information from alternative, non-media sources.

[[Page 46]]

    (iv)(A) The government should have pursued negotiations with the 
affected member of the news media, unless the Attorney General 
determines that, for compelling reasons, such negotiations would pose a 
clear and substantial threat to the integrity of the investigation, risk 
grave harm to national security, or present an imminent risk of death or 
serious bodily harm. Where the nature of the investigation permits, the 
government should have explained to the member of the news media the 
government's needs in a particular investigation or prosecution, as well 
as its willingness to address the concerns of the member of the news 
media.
    (B) The obligation to pursue negotiations with the affected member 
of the news media, unless excused by the Attorney General, is not 
intended to conflict with the requirement that members of the Department 
secure authorization from the Attorney General to question a member of 
the news media as required in paragraph (f)(1) of this section. 
Accordingly, members of the Department do not need to secure 
authorization from the Attorney General to pursue negotiations.
    (v) The proposed subpoena generally should be limited to the 
verification of published information and to such surrounding 
circumstances as relate to the accuracy of the published information.
    (vi) In investigations or prosecutions of unauthorized disclosures 
of national defense information or of classified information, where the 
Director of National Intelligence, after consultation with the relevant 
Department or agency head(s), certifies to the Attorney General the 
significance of the harm raised by the unauthorized disclosure and that 
the information disclosed was properly classified and reaffirms the 
intelligence community's continued support for the investigation or 
prosecution, the Attorney General may authorize members of the 
Department, in such investigations, to issue subpoenas to members of the 
news media. The certification, which the Attorney General should take 
into account along with other considerations identified in paragraphs 
(c)(4)(ii) through (viii) of this section, will be sought not more than 
30 days prior to the submission of the approval request to the Attorney 
General.
    (vii) Requests should be treated with care to avoid interference 
with newsgathering activities and to avoid claims of harassment.
    (viii) The proposed subpoena should be narrowly drawn. It should be 
directed at material and relevant information regarding a limited 
subject matter, should cover a reasonably limited period of time, should 
avoid requiring production of a large volume of material, and should 
give reasonable and timely notice of the demand.
    (5) Considerations for the Attorney General in determining whether 
to authorize the use of a subpoena, 2703(d) order, or 3123 order to 
obtain from third parties the communications records or business records 
of a member of the news media. (i) In matters in which a member of the 
Department determines that a member of the news media is a subject or 
target of an investigation relating to an offense committed in the 
course of, or arising out of, newsgathering activities, the member of 
the Department requesting Attorney General authorization to use a 
subpoena, 2703(d) order, or 3123 order to obtain from a third party the 
communications records or business records of a member of the news media 
shall provide all facts necessary for determinations by the Attorney 
General regarding both whether the member of the news media is a subject 
or target of the investigation and whether to authorize the use of such 
subpoena or order. If the Attorney General determines that the member of 
the news media is a subject or target of an investigation relating to an 
offense committed in the course of, or arising out of, newsgathering 
activities, the Attorney General's determination regarding the use of 
the proposed subpoena or order should take into account the principles 
reflected in paragraph (a) of this section, but need not take into 
account the considerations identified in paragraphs (c)(5)(ii) through 
(viii) of this section.
    (ii)(A) In criminal matters, there should be reasonable grounds to 
believe, based on public information, or information from non-media 
sources, that a crime has been committed, and

[[Page 47]]

that the information sought is essential to the successful investigation 
or prosecution of that crime. The subpoena or court order should not be 
used to obtain peripheral, nonessential, cumulative, or speculative 
information.
    (B) In civil matters, there should be reasonable grounds to believe, 
based on public information, or information from non-media sources, that 
the information sought is essential to the successful completion of the 
investigation or litigation in a case of substantial importance. The 
subpoena should not be used to obtain peripheral, nonessential, 
cumulative, or speculative information.
    (iii) The use of a subpoena or court order to obtain from a third 
party communications records or business records of a member of the news 
media should be pursued only after the government has made all 
reasonable attempts to obtain the information from alternative sources.
    (iv)(A) The government should have pursued negotiations with the 
affected member of the news media unless the Attorney General determines 
that, for compelling reasons, such negotiations would pose a clear and 
substantial threat to the integrity of the investigation, risk grave 
harm to national security, or present an imminent risk of death or 
serious bodily harm.
    (B) The obligation to pursue negotiations with the affected member 
of the news media, unless excused by the Attorney General, is not 
intended to conflict with the requirement that members of the Department 
secure authorization from the Attorney General to question a member of 
the news media as set forth in paragraph (f)(1) of this section. 
Accordingly, members of the Department do not need to secure 
authorization from the Attorney General to pursue negotiations.
    (v) In investigations or prosecutions of unauthorized disclosures of 
national defense information or of classified information, where the 
Director of National Intelligence, after consultation with the relevant 
Department or agency head(s), certifies to the Attorney General the 
significance of the harm raised by the unauthorized disclosure and that 
the information disclosed was properly classified and reaffirms the 
intelligence community's continued support for the investigation or 
prosecution, the Attorney General may authorize members of the 
Department, in such investigations, to use subpoenas or court orders 
issued pursuant to 18 U.S.C. 2703(d) or 3123 to obtain communications 
records or business records of a member of the news media. The 
certification, which the Attorney General should take into account along 
with the other considerations identified in paragraph (c)(5) of this 
section, will be sought not more than 30 days prior to the submission of 
the approval request to the Attorney General.
    (vi) Requests should be treated with care to avoid interference with 
newsgathering activities and to avoid claims of harassment.
    (vii) The proposed subpoena or court order should be narrowly drawn. 
It should be directed at material and relevant information regarding a 
limited subject matter, should cover a reasonably limited period of 
time, and should avoid requiring production of a large volume of 
material.
    (viii) If appropriate, investigators should propose to use search 
protocols designed to minimize intrusion into potentially protected 
materials or newsgathering activities unrelated to the investigation, 
including but not limited to keyword searches (for electronic searches) 
and filter teams (reviewing teams separate from the prosecution and 
investigative teams).
    (6) When the Attorney General has authorized the issuance of a 
subpoena to a member of the news media; or the use of a subpoena, 
2703(d) order, or 3123 order to obtain from a third party communications 
records or business records of a member of the news media, members of 
the Department must consult with the Criminal Division before moving to 
compel compliance with any such subpoena or court order.
    (d) Applying for warrants to search the premises, property, 
communications records, or business records of members of the news 
media. (1) Except as set forth in paragraph (d)(4) of this section, 
members of the Department must obtain the authorization of the Attorney 
General to apply for a warrant to

[[Page 48]]

search the premises, property, communications records, or business 
records of a member of the news media.
    (2) All requests for authorization of the Attorney General to apply 
for a warrant to search the premises, property, communications records, 
or business records of a member of the news media must be personally 
endorsed by the United States Attorney or Assistant Attorney General 
responsible for the matter.
    (3) In determining whether to authorize an application for a warrant 
to search the premises, property, communications records, or business 
records of a member of the news media, the Attorney General should take 
into account the considerations identified in paragraph (c)(5) of this 
section.
    (4) Members of the Department may apply for a warrant to obtain work 
product materials or other documentary materials of a member of the news 
media pursuant to the ``suspect exception'' of the Privacy Protection 
Act (``PPA suspect exception''), 42 U.S.C. 2000aa(a)(1), (b)(1), when 
the member of the news media is a subject or target of a criminal 
investigation for conduct not based on, or within the scope of, 
newsgathering activities. In such instances, members of the Department 
must secure authorization from a Deputy Assistant Attorney General for 
the Criminal Division.
    (5) Members of the Department should not be authorized to apply for 
a warrant to obtain work product materials or other documentary 
materials of a member of the news media under the PPA suspect exception, 
42 U.S.C. 2000aa(a)(1), (b)(1), if the sole purpose is to further the 
investigation of a person other than the member of the news media.
    (6) A Deputy Assistant Attorney General for the Criminal Division 
may authorize, under an applicable PPA exception, an application for a 
warrant to search the premises, property, communications records, or 
business records of an individual other than a member of the news media, 
but who is reasonably believed to have ``a purpose to disseminate to the 
public a newspaper, book, broadcast, or other similar form of public 
communication.'' 42 U.S.C. 2000aa(a), (b).
    (7) In executing a warrant authorized by the Attorney General or by 
a Deputy Assistant Attorney General for the Criminal Division 
investigators should use search protocols designed to minimize intrusion 
into potentially protected materials or newsgathering activities 
unrelated to the investigation, including but not limited to keyword 
searches (for electronic searches) and filter teams.
    (e) Notice to affected member of the news media. (1)(i) In matters 
in which the Attorney General has both determined that a member of the 
news media is a subject or target of an investigation relating to an 
offense committed in the course of, or arising out of, newsgathering 
activities, and authorized the use of a subpoena, court order, or 
warrant to obtain from a third party the communications records or 
business records of a member of the news media pursuant to paragraph 
(c)(4)(i), (c)(5)(i), or (d)(1) of this section, members of the 
Department are not required to provide notice of the Attorney General's 
authorization to the affected member of the news media. The Attorney 
General nevertheless may direct that notice be provided.
    (ii) If the Attorney General does not direct that notice be 
provided, the United States Attorney or Assistant Attorney General 
responsible for the matter shall provide to the Attorney General every 
90 days an update regarding the status of the investigation, which 
update shall include an assessment of any harm to the investigation that 
would be caused by providing notice to the affected member of the news 
media. The Attorney General shall consider such update in determining 
whether to direct that notice be provided.
    (2)(i) Except as set forth in paragraph (e)(1) of this section, when 
the Attorney General has authorized the use of a subpoena, court order, 
or warrant to obtain from a third party communications records or 
business records of a member of the news media, the affected member of 
the news media shall be given reasonable and timely notice of the 
Attorney General's determination before the use of the subpoena,

[[Page 49]]

court order, or warrant, unless the Attorney General determines that, 
for compelling reasons, such notice would pose a clear and substantial 
threat to the integrity of the investigation, risk grave harm to 
national security, or present an imminent risk of death or serious 
bodily harm.
    (ii) The mere possibility that notice to the affected member of the 
news media, and potential judicial review, might delay the investigation 
is not, on its own, a compelling reason to delay notice.
    (3) When the Attorney General has authorized the use of a subpoena, 
court order, or warrant to obtain communications records or business 
records of a member of the news media, and the affected member of the 
news media has not been given notice, pursuant to paragraph (e)(2) of 
this section, of the Attorney General's determination before the use of 
the subpoena, court order, or warrant, the United States Attorney or 
Assistant Attorney General responsible for the matter shall provide to 
the affected member of the news media notice of the order or warrant as 
soon as it is determined that such notice will no longer pose a clear 
and substantial threat to the integrity of the investigation, risk grave 
harm to national security, or present an imminent risk of death or 
serious bodily harm. In any event, such notice shall occur within 45 
days of the government's receipt of any return made pursuant to the 
subpoena, court order, or warrant, except that the Attorney General may 
authorize delay of notice for an additional 45 days if he or she 
determines that, for compelling reasons, such notice would pose a clear 
and substantial threat to the integrity of the investigation, risk grave 
harm to national security, or present an imminent risk of death or 
serious bodily harm. No further delays may be sought beyond the 90-day 
period.
    (4) The United States Attorney or Assistant Attorney General 
responsible for the matter shall provide to the Director of the Office 
of Public Affairs and to the Director of the Criminal Division's Office 
of Enforcement Operations a copy of any notice to be provided to a 
member of the news media whose communications records or business 
records were sought or obtained at least 10 business days before such 
notice is provided to the affected member of the news media, and 
immediately after such notice is, in fact, provided to the affected 
member of the news media.
    (f) Questioning, arresting, or charging members of the news media. 
(1) No member of the Department shall subject a member of the news media 
to questioning as to any offense that he or she is suspected of having 
committed in the course of, or arising out of, newsgathering activities 
without first providing notice to the Director of the Office of Public 
Affairs and obtaining the express authorization of the Attorney General. 
The government need not view the member of the news media as a subject 
or target of an investigation, or have the intent to prosecute the 
member of the news media, to trigger the requirement that the Attorney 
General must authorize such questioning.
    (2) No member of the Department shall seek a warrant for an arrest, 
or conduct an arrest, of a member of the news media for any offense that 
he or she is suspected of having committed in the course of, or arising 
out of, newsgathering activities without first providing notice to the 
Director of the Office of Public Affairs and obtaining the express 
authorization of the Attorney General.
    (3) 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 that he or she is suspected of 
having committed in the course of, or arising out of newsgathering 
activities, without first providing notice to the Director of the Office 
of Public Affairs and obtaining the express authorization of the 
Attorney General.
    (4) In requesting the Attorney General's authorization to question, 
to seek an arrest warrant for or to arrest, or to present information to 
a grand jury seeking an indictment or to file an information against, a 
member of the news media as provided in paragraphs (f)(1) through (3) of 
this section, members of the Department shall provide

[[Page 50]]

all facts necessary for a determination by the Attorney General.
    (5) In determining whether to grant a request for authorization to 
question, to seek an arrest warrant for or to arrest, or to present 
information to a grand jury seeking an indictment or to file an 
information against, a member of the news media, the Attorney General 
should take into account the considerations reflected in the Statement 
of Principles in paragraph (a) of this section.
    (g) Exigent circumstances. (1)(i) A Deputy Assistant Attorney 
General for the Criminal Division may authorize the use of a subpoena or 
court order, as described in paragraph (c) of this section, or the 
questioning, arrest, or charging of a member of the news media, as 
described in paragraph (f) of this section, if he or she determines that 
the exigent use of such law enforcement tool or technique is necessary 
to prevent or mitigate an act of terrorism; other acts that are 
reasonably likely to cause significant and articulable harm to national 
security; death; kidnapping; substantial bodily harm; conduct that 
constitutes a specified offense against a minor (for example, as those 
terms are defined in section 111 of the Adam Walsh Child Protection and 
Safety Act of 2006, 42 U.S.C. 16911), or an attempt or conspiracy to 
commit such a criminal offense; or incapacitation or destruction of 
critical infrastructure (for example, as defined in section 1016(e) of 
the USA PATRIOT Act, 42 U.S.C. 5195c(e)).
    (ii) A Deputy Assistant Attorney General for the Criminal Division 
may authorize an application for a warrant, as described in paragraph 
(d) of this section, if there is reason to believe that the immediate 
seizure of the materials at issue is necessary to prevent the death of, 
or serious bodily injury to, a human being, as provided in 42 U.S.C. 
2000aa(a)(2) and (b)(2).
    (2) Within 10 business days of the approval by a Deputy Assistant 
Attorney General for the Criminal Division of a request under paragraph 
(g) of this section, the United States Attorney or Assistant Attorney 
General responsible for the matter shall provide to the Attorney General 
and to the Director of the Office of Public Affairs a statement 
containing the information that would have been provided in a request 
for prior authorization.
    (h) Safeguarding. Any information or records obtained from members 
of the news media or from third parties pursuant to this policy shall be 
closely held so as to prevent disclosure of the information to 
unauthorized persons or for improper purposes. Members of the Department 
should consult the United States Attorneys' Manual for specific guidance 
regarding the safeguarding of information or records obtained from 
members of the news media or from third parties pursuant to this policy.
    (i) Failure to comply with policy. Failure to obtain the prior 
approval of the Attorney General, as required by this policy, may 
constitute grounds for an administrative reprimand or other appropriate 
disciplinary action.
    (j) General provision. This policy is not intended to, and does not, 
create any right or benefit, substantive or procedural, enforceable at 
law or in equity by any party against the United States, its 
departments, agencies, or entities, its officers, employees, or agents, 
or any other person.

[AG Order No. 3486-2015, 80 FR 2820, Jan. 21, 2015]



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.

[[Page 51]]

    (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 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

[[Page 52]]

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
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

[[Page 53]]

(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

                               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,

[[Page 54]]

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.
    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

[[Page 55]]

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 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

[[Page 56]]

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.
    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.

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    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.
    (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 satisfies 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.

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    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 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

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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.
    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 comparison 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

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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 remain the same, the greater the 
magnitude of the relationship (e.g., correlation coefficient) 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 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 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

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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.
    (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

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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 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

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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 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

[[Page 64]]

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).
    (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,

[[Page 65]]

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 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.

[[Page 66]]

    (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 
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 reliability 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

[[Page 67]]

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 
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.

[[Page 68]]

    (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 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

[[Page 69]]

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 contractor or 
subcontractor or federally assisted construction contractor or 
subcontractor 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 existence 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

[[Page 70]]

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, 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;

[[Page 71]]

    (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 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.''


[[Page 72]]


          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]



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

[[Page 73]]

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 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

[[Page 74]]

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 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

[[Page 75]]

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 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

[[Page 76]]

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.
    (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.

[[Page 77]]

    (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, Apr. 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 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.

[[Page 78]]

    (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 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:

[[Page 79]]

    (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 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 
jurisdictional 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

[[Page 80]]

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 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 powdered phencyclidine (PCP) or two 
kilograms of a powdered mixture or substance containing a detectable 
amount of phencyclidine (PCP) or 28.35 grams of a liquid 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

[[Page 81]]

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 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 the related 
suspect(s) has been a fugitive from justice for a period of five years. 
An exemplar sufficient 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, as amended by Order No. 
2920-2007, 72 FR 69144, Dec. 7, 2007]



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.

[[Page 82]]

    (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 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

[[Page 83]]

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.
    (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]

[[Page 84]]



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 
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]



Sec. 50.24  Annuity broker minimum qualifications.

    (a) Minimum standards. The Civil Division, United States Department 
of Justice, shall establish a list of annuity brokers who meet minimum 
qualifications for providing annuity brokerage services in connection 
with structured settlements entered by the United States. Those 
qualifications are as follows:
    (1) The broker must have a current license issued by at least one 
State, the District of Columbia, or a Territory of the United States as 
a life insurance agent, producer, or broker;
    (2) The broker must have a current license or appointment issued by 
at least one life insurance company to sell its structured settlement 
annuity contracts or to act as a structured settlement consultant or 
broker for the company;
    (3) The broker must be currently covered by an Errors and Omissions 
insurance policy, or an equivalent form of insurance;
    (4) The broker must never have had a license to be a life insurance 
agent, producer, or broker revoked, rescinded, or suspended for any 
reason or for any period of time;
    (5) The broker must not have been convicted of a felony; and
    (6) The broker must have had substantial experience in each of the 
past three years in providing structured settlement brokerage services 
to or on behalf of defendants or their counsel.
    (b) Procedures for inclusion on the list. (1) An annuity broker who 
desires to be included on the list must submit a

[[Page 85]]

``Declaration'' that he or she has reviewed the list of minimum 
qualifications set forth in paragraph (a) of this section and that he or 
she meets those minimum qualifications. A sample of the Declaration for 
annuity brokers to submit is available from the Civil Division's Web 
site (http://www.usdoj.gov/civil/home.html) or by written request to the 
address in this section. These minimum qualifications must be 
continually met for a broker who has been included on the list to remain 
included when the list is updated thereafter. The Declaration must be 
executed under penalty of perjury in a manner specified in 28 U.S.C. 
1746.
    (2) Each broker must submit a new Declaration annually to be 
included on updated lists. For a broker to be included on the initial 
list to be established by May 1, 2003, the Torts Branch, Civil Division, 
must receive the broker's Declaration no later than April 24, 2003. If 
the broker wishes to be included on updated lists, the Torts Branch must 
receive a new Declaration from the broker between January 1 and April 10 
of each successive calendar year. After the Declaration is completed and 
signed, the original must be mailed to the United States Department of 
Justice, Civil Division, FTCA Staff, Post Office Box 888, Benjamin 
Franklin Station, Washington, DC 20044. The Department of Justice will 
not accept a photocopy or facsimile of the Declaration.
    (3) A Declaration will not be accepted by the Department of Justice 
unless it is complete and has been signed by the individual annuity 
broker requesting inclusion on the list. A Declaration that is 
incomplete or has been altered, amended, or changed in any respect from 
the Declaration at the Civil Division's Web site will not be accepted by 
the Department of Justice. Such a Declaration will be returned to the 
annuity broker who submitted it, and the Department of Justice will take 
no further action on the request for inclusion on the list until the 
defect in the Declaration has been cured by the annuity broker.
    (4) The Department of Justice will retain a complete Declaration 
signed and filed by an annuity broker requesting to be on the list. 
Because this rule does not require the submission of any additional 
information, the Department retains discretion to dispose of additional 
information or documentation provided by an annuity broker.
    (5) The Department of Justice will not accept a Declaration 
submitted by an annuity company or by someone on behalf of another 
individual or group of individuals. Each individual annuity broker who 
desires to be included on the list must submit his or her own 
Declaration.
    (6) An annuity broker whose name appears on the list incorrectly may 
submit a written request that his or her name be corrected. An annuity 
broker whose name appears on the list may submit a written request that 
his or her name be removed from the list.
    (7) To the extent practicable, a name correction or deletion will 
appear on the next revision of the list immediately after receipt of the 
written request for a name correction or deletion. A written request for 
a name correction or deletion must be mailed to the United States 
Department of Justice, Civil Division, FTCA Staff, Post Office Box 888, 
Benjamin Franklin Station, Washington, DC 20044. Facsimiles will not be 
accepted.
    (8) The list of annuity brokers established pursuant to this section 
will be updated periodically, but not more often than twice every 
calendar year, beginning in calendar year 2004.
    (c) Disclaimers. (1) The inclusion of an annuity broker on the list 
signifies only that the individual declared under penalty of perjury 
that he or she meets the minimum qualifications required by the Attorney 
General for providing annuity brokerage services in connection with 
structured settlements entered into by the United States. Because the 
decision to include an individual annuity broker on the list is based 
solely and exclusively on the Declaration submitted by the annuity 
broker, the appearance of an annuity broker's name on the list does not 
signify that the annuity broker actually meets those minimum 
qualifications or is otherwise competent to provide structured 
settlement brokerage services to the United States. No preferential 
consideration will be given to an annuity broker appearing on the list

[[Page 86]]

except to the extent that United States Attorneys utilize the list 
pursuant to section 11015(b) of Public Law 107-273.
    (2) By submitting a Declaration to the Department of Justice, the 
individual annuity broker agrees that the Declaration and the list each 
may be made public in its entirety, and the annuity broker expressly 
consents to such release and disclosure of the Declaration and list.

[Order No. 2667-2003, 68 FR 18120, Apr. 15, 2003]



Sec. 50.25  Assumption of concurrent Federal criminal jurisdiction
in certain areas of Indian country.

    (a) Assumption of concurrent Federal criminal jurisdiction. (1) 
Under 18 U.S.C. 1162(d), the United States may accept concurrent Federal 
criminal jurisdiction to prosecute violations of 18 U.S.C. 1152 (the 
General Crimes, or Indian Country Crimes, Act) and 18 U.S.C. 1153 (the 
Major Crimes, or Indian Major Crimes, Act) within areas of Indian 
country in the States of Alaska, California, Minnesota, Nebraska, 
Oregon, and Wisconsin that are subject to State criminal jurisdiction 
under Public Law 280, 18 U.S.C. 1162(a), if the tribe requests such an 
assumption of jurisdiction and the Attorney General consents to that 
request. Once the Attorney General has consented to an Indian tribe's 
request for assumption of concurrent Federal criminal jurisdiction, the 
General Crimes and Major Crimes Acts shall apply in the Indian country 
of the requesting tribe that is located in any of these ``mandatory'' 
Public Law 280 States, and criminal jurisdiction over those areas shall 
be concurrent among the Federal Government, the State government, and 
(where applicable) the tribal government. Assumption of concurrent 
Federal criminal jurisdiction under 18 U.S.C. 1162(d) does not require 
the agreement, consent, or concurrence of any State or local government.
    (2) Under 25 U.S.C. 1321(a)(2), the United States may exercise 
concurrent Federal criminal jurisdiction in other areas of Indian 
country as to which States have assumed ``optional'' Public Law 280 
criminal jurisdiction under 25 U.S.C. 1321(a), if a tribe so requests 
and after consultation with and consent by the Attorney General. The 
Department's view is that such concurrent Federal criminal jurisdiction 
exists under applicable statutes in these areas of Indian country, even 
if the Federal Government does not formally accept such jurisdiction in 
response to petitions from individual tribes. This rule therefore does 
not establish procedures for processing requests from tribes under 25 
U.S.C. 1321(a)(2).
    (b) Request requirements. (1) A tribal request for assumption of 
concurrent Federal criminal jurisdiction under 18 U.S.C. 1162(d) shall 
be made by the chief executive official of a federally recognized Indian 
tribe that occupies Indian country listed in 18 U.S.C. 1162(a). For 
purposes of this section, a chief executive official may include a 
tribal chairperson, president, governor, principal chief, or other 
equivalent position.
    (2) The tribal request shall be submitted in writing to the Director 
of the Office of Tribal Justice at the Department of Justice. The first 
page of the tribal request shall be clearly marked: ``Request for United 
States Assumption of Concurrent Federal Criminal Jurisdiction.'' The 
tribal request shall explain why the assumption of concurrent Federal 
criminal jurisdiction will improve public safety and criminal law 
enforcement and reduce crime in the Indian country of the requesting 
tribe. The tribal request shall also identify each local or State agency 
that currently has jurisdiction to investigate or prosecute criminal 
violations in the Indian country of the tribe and shall provide contact 
information for each such agency.
    (c) Process for handling tribal requests. (1) Upon receipt of a 
tribal request, the Office of Tribal Justice shall:
    (i) Acknowledge receipt; and
    (ii) Open a file.
    (2) Within 30 days of receipt of a tribal request, the Office of 
Tribal Justice shall:
    (i) Publish a notice in the Federal Register, seeking comments from 
the general public;
    (ii) Send written notice of the request to the State and local 
agencies identified by the tribe as having criminal jurisdiction over 
the tribe's Indian country, with a copy of the notice to

[[Page 87]]

the governor of the State in which the agency is located, requesting 
that any comments be submitted within 45 days of the date of the notice;
    (iii) Seek comments from the relevant United States Attorney's 
Offices, the Federal Bureau of Investigation, and other Department of 
Justice components that would be affected by consenting to the request; 
and
    (iv) Seek comments from the Department of the Interior (including 
the Bureau of Indian Affairs), the Department of Homeland Security, 
other affected Federal departments and agencies, and Federal courts.
    (3) As soon as possible but not later than 30 days after receipt of 
a tribal request, the Office of Tribal Justice shall initiate 
consultation with the requesting tribe, consistent with applicable 
Executive Orders and Presidential Memoranda on tribal consultation.
    (4) To the extent appropriate and consistent with applicable laws 
and regulations, including requirements of the Privacy Act of 1974, as 
amended, 5 U.S.C. 552a, governing personally identifiable information, 
and with the duty to protect law enforcement sensitive information, the 
Office of Tribal Justice may share with the requesting tribe any 
comments from other parties and provide the tribe with an opportunity to 
respond in writing.
    (5) An Indian tribe may submit a request at any time after the 
effective date of this rule. However, requests received by February 28 
of each calendar year will be prioritized for decision by July 31 of the 
same calendar year, if feasible; and requests received by August 31 of 
each calendar year will be prioritized for decision by January 31 of the 
following calendar year, if feasible. The Department will seek to 
complete its review of prioritized requests within these time frames, 
recognizing that it may not be possible to do so in each instance.
    (d) Factors. Factors that will be considered in determining whether 
or not to consent to a tribe's request for assumption of concurrent 
Federal criminal jurisdiction include the following:
    (1) Whether consenting to the request will improve public safety and 
criminal law enforcement and reduce crime in the Indian country of the 
requesting tribe.
    (2) Whether consenting to the request will increase the availability 
of law enforcement resources for the requesting tribe, its members, and 
other residents of the tribe's Indian country.
    (3) Whether consenting to the request will improve access to 
judicial resources for the requesting tribe, its members, and other 
residents of the tribe's Indian country.
    (4) Whether consenting to the request will improve access to 
detention and correctional resources for the requesting tribe, its 
members, and other residents of the tribe's Indian country.
    (5) Other comments and information received from the relevant United 
States Attorney's Offices, the Federal Bureau of Investigation, and 
other Department of Justice components that would be affected by 
consenting to the request.
    (6) Other comments and information received from the Department of 
the Interior (including the Bureau of Indian Affairs), the Department of 
Homeland Security, other affected Federal departments and agencies, and 
Federal courts.
    (7) Other comments and information received from tribal 
consultation.
    (8) Other comments and information received from other sources, 
including governors and State and local law enforcement agencies.
    (e) Decision. (1) The decision whether to consent to a tribal 
request for assumption of concurrent Federal criminal jurisdiction shall 
be made by the Deputy Attorney General after receiving written 
recommendations from the Office of Tribal Justice, the Executive Office 
for United States Attorneys, and the Federal Bureau of Investigation.
    (2) The Deputy Attorney General will:
    (i) Consent to the request for assumption of concurrent Federal 
criminal jurisdiction, effective as of some future date certain within 
the next twelve months (and, if feasible, within the next six months), 
with or without conditions, and publish a notice of the consent in the 
Federal Register;
    (ii) Deny the request for assumption of concurrent Federal criminal 
jurisdiction; or

[[Page 88]]

    (iii) Request further information or comment before making a final 
decision.
    (3) The Deputy Attorney General shall explain the basis for the 
decision in writing.
    (4) The decision to grant or deny a request for assumption of 
concurrent Federal criminal jurisdiction is not appealable. However, at 
any time after a denial of such a request, a tribe may submit a renewed 
request for assumption of concurrent Federal criminal jurisdiction. A 
renewed request shall address the basis for the prior denial. The Office 
of Tribal Justice may provide appropriate technical assistance to any 
tribe that wishes to prepare and submit a renewed request.
    (f) Retrocession of State criminal jurisdiction. Retrocession of 
State criminal jurisdiction under Public Law 280 is governed by 25 
U.S.C. 1323(a) and Executive Order 11435 of November 21, 1968. The 
procedures for retrocession do not govern a request for assumption of 
concurrent Federal criminal jurisdiction under 18 U.S.C. 1162(d).

[AG Order No. 3314-2011, 76 FR 76042, Dec. 6, 2011]



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.
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  Federal 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  Submitted changes that will not be reviewed.
51.23  Party and jurisdiction responsible for making submissions.
51.24  Delivery of 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.

                   Subpart E_Processing of Submissions

51.33  Notice to registrants concerning submissions.
51.34  Expedited consideration.
51.35  Disposition of inappropriate submissions and resubmissions.
51.36  Release of information concerning submissions.
51.37  Obtaining information from the submitting authority.
51.38  Obtaining information from others.
51.39  Supplemental information and related 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.

[[Page 89]]

51.52  Basic standard.
51.53  Information considered.
51.54  Discriminatory purpose and effect.
51.55  Consistency with constitutional and statutory requirements.
51.56  Guidance from the courts.
51.57  Relevant factors.
51.58  Representation.
51.59  Redistricting plans.
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. 1973b, 
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 neither has the purpose nor will 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.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21243, Apr. 15, 2011]



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, 
the Voting Rights Act Amendments of 1982, 96 Stat. 131, the Voting 
Rights Language Assistance Act of 1992, 106 Stat. 921, the Fannie Lou 
Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
Reauthorization and Amendments Act of 2006, 120 Stat. 577, and the Act 
to Revise the Short Title of the Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott King Voting Rights Act Reauthorization and Amendments Act 
of 2006, 122 Stat. 2428, 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 or change 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 used to 
determine coverage under section 4(b) or from the existing standard, 
practice, or procedure if it was subsequently altered and precleared 
under section 5. In assessing whether a change has a discriminatory 
purpose or effect, the comparison shall be with the standard, practice, 
or procedure in effect on the date used to determine coverage under 
section 4(b) or the most recent precleared standard, practice, or 
procedure. Some examples of changes affecting voting are 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.

[[Page 90]]

    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)).

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21243, Apr. 15, 2011]



Sec. 51.3  Delegation of authority.

    The responsibility and authority for determinations under section 5 
and section 3(c) 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 perform the functions 
of the Assistant Attorney General. With the concurrence of the Assistant 
Attorney General, the Chief of the Voting Section may designate 
supervisory attorneys in the Voting Section to perform the functions of 
the Chief.

[Order No. 3262-2011, 76 FR 21243, Apr. 15, 2011]



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.

    (a) Expiration. The requirements of section 5 will expire at the end 
of the twenty-five-year period following the effective date of the 
amendments made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, 
Cesar E. Chavez, Barbara C. Jordan, William C. Velasquez, and Dr. Hector 
P. Garcia Voting Rights Act Reauthorization and Amendments Act of 2006 
(VRARA), which amendments became effective on July 27, 2006. See section 
4(a)(8) of the VRARA.
    (b) Bailout. Any political subunit in a covered jurisdiction or a 
political subdivision of a covered State, a covered jurisdiction or a 
political subdivision of a covered State, or a covered State

[[Page 91]]

may terminate the application of section 5 (``bailout'') by obtaining 
the declaratory judgment described in section 4(a) of the Act.

[Order No. 3262-2011, 76 FR 21243, Apr. 15, 2011]



Sec. 51.6  Political subunits.

    All political subunits within a covered jurisdiction (e.g., 
counties, cities, school districts) that have not terminated coverage by 
obtaining the declaratory judgment described in section 4(a) of the Act 
are subject to the requirements of section 5.

[Order No. 3262-2011, 76 FR 21243, Apr. 15, 2011]



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:
    (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 for which a response on 
the merits is appropriate (see Sec. 51.35, Sec. 51.37).
    (b) The 60-day period shall commence upon receipt of a submission by 
the Voting Section of the Department of Justice's Civil Rights Division 
or upon receipt of a submission by the Office of the Assistant Attorney 
General, Civil Rights Division, if the submission is properly marked as 
specified in Sec. 51.24(f). The 60-day period shall recommence upon the 
receipt in like manner of a resubmission (see Sec. 51.35), information 
provided in response to a written request for additional information 
(see Sec. 51.37(b)), or material, supplemental information or a related 
submission (see Sec. 51.39).
    (c) The 60-day period shall mean 60 calendar days, with the day of 
receipt of the submission not counted, and with the 60th day ending at 
11:59 p.m. Eastern Time of that day. If the final day of the period 
should fall on a Saturday, Sunday, or 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 next 
full business day shall be counted as the final day of the 60-day 
period. The date of the Attorney General's response shall be the date on 
which it is transmitted to the submitting authority by any reasonable 
means, including placing it in a postbox of the U.S. Postal Service or a 
private mail carrier, sending it by telefacsimile, email, or other 
electronic means, or delivering it in person to a representative of the 
submitting authority.

[Order No. 3262-2011, 76 FR 21243, Apr. 15, 2011]



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:

[[Page 92]]

    (a) Obtain a judicial determination from the U.S. District Court for 
the District of Columbia that the voting change neither has the purpose 
nor will have the effect of denying or abridging the right to vote on 
account of race, color, or membership in a language minority group.
    (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, as amended by Order 
No. 3262-2011, 76 FR 21243, Apr. 15, 2011]



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 neither has the purpose nor will have the effect of 
denying or abridging the right to vote on account of race, color, or 
membership in a language minority group.

[Order No. 3262-2011, 76 FR 21243, Apr. 15, 2011]



Sec. 51.12  Scope of requirement.

    Except as provided in Sec. 51.18 (Federal court-ordered changes), 
the section 5 requirement applies to any change affecting voting, even 
though it appears to be minor or indirect, returns to a prior practice 
or procedure, seemingly expands voting rights, or is designed to remove 
the elements that caused the Attorney General to object to a prior 
submitted change. The scope of section 5 coverage is based on whether 
the generic category of changes affecting voting to which the change 
belongs (for example, the generic categories of changes listed in 
Sec. 51.13) has the potential for discrimination. NAACP v. Hampton 
County Election Commission, 470 U.S. 166 (1985). The method by which a 
jurisdiction enacts or administers a change does not affect the 
requirement to comply with section 5, which applies to changes enacted 
or administered through the executive, legislative, or judicial 
branches.

[Order No. 3262-2011, 76 FR 21244, Apr. 15, 2011]



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 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, dissolution, merger, 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 any change in the offices that are elective (e.g., by 
shortening or extending the term of an office; changing from election to 
appointment; transferring authority from an elected to an appointed 
official that, in law or in fact, eliminates the elected official's 
office; or staggering the terms of offices).
    (j) Any change affecting the necessity of or methods for offering 
issues and propositions for approval by referendum.

[[Page 93]]

    (k) Any change affecting the right or ability of persons to 
participate in pre-election activities, such as political campaigns.
    (l) Any change that transfers or alters the authority of any 
official or governmental entity regarding who may enact or seek to 
implement a voting qualification, prerequisite to voting, or standard, 
practice, or procedure with respect to voting.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21244, Apr. 15, 2011]



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 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

[[Page 94]]

preclearance is being requested. See Sec. 51.22 of this part.



Sec. 51.18  Federal court-ordered changes.

    (a) In general. Changes affecting voting for which approval by a 
Federal court is required, or that are ordered by a Federal court, are 
exempt from section 5 review only where the Federal court prepared the 
change and the change has not been subsequently adopted or modified by 
the relevant governmental body. McDaniel v. Sanchez, 452 U.S. 130 
(1981). (See also Sec. 51.22.)
    (b) Subsequent changes. Where a Federal 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 
changes made necessary by a court-ordered redistricting plan are subject 
to section 5 review.
    (c) Alteration in section 5 status. Where a Federal court-ordered 
change at its inception is not subject to review under section 5, a 
subsequent action by the submitting authority demonstrating that the 
change reflects its policy choices (e.g., adoption or ratification of 
the change, or implementation in a manner not explicitly authorized by 
the court) will render the change subject to review under section 5 with 
regard to any future implementation.
    (d) 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 that practice not explicitly authorized by 
the court.

[Order No. 3262-2011, 76 FR 21244, Apr. 15, 2011]



Sec. 51.19  Request for notification concerning voting litigation.

    A jurisdiction subject to the preclearance requirements of section 5 
that becomes involved in any litigation concerning voting is requested 
to notify the Chief, Voting Section, Civil Rights Division, at the 
addresses, telefacsimile number, or email address specified in 
Sec. 51.24. Such notification will not be considered a submission under 
section 5.

[Order No. 3262-2011, 76 FR 21244, Apr. 15, 2011]



       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 electronic media: 3.5 inch 1.4 megabyte disk, compact 
disc read-only memory (CD-ROM) formatted to the ISO-9660/Joliet 
standard, or digital versatile disc read-only memory (DVD-ROM). Unless 
requested by the Attorney General, data provided on electronic media 
need not be provided in hard copy.
    (c) All electronic media shall be clearly labeled 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.
    (d) Each magnetic medium (floppy disk or tape) provided must be 
accompanied by a printed description of its contents, including an 
identification by name or location of each data file 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) Text documents should be provided in a standard American 
Standard Code for Information Interchange (ASCII) character code; 
documents with graphics and complex formatting should be provided in 
standard Portable Document Format (PDF). The label shall be affixed to 
each electronic medium, and the information included on the label shall 
also be contained in a documentation file on the electronic medium.
    (f) All data files shall be provided in a delimited text file and 
must include a header row as the first row with a name for each field in 
the data set. A

[[Page 95]]

separate data dictionary file documenting the fields in the data set, 
the field separators or delimiters, and a description of each field, 
including whether the field is text, date, or numeric, enumerating all 
possible values is required; separators and delimiters should not also 
be used as data in the data set. Proprietary 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.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 1536-91, 56 FR 51836, 
Oct. 16, 1991; Order No. 3262-2011, 76 FR 21244, Apr. 15, 2011]



Sec. 51.21  Time of submissions.

    Changes affecting voting should be submitted as soon as possible 
after they become final, except as provided in Sec. 51.22.

[Order No. 3262-2011, 76 FR 21244, Apr. 15, 2011]



Sec. 51.22  Submitted changes that will not be reviewed.

    (a) The Attorney General will not consider on the merits:
    (1) Any proposal for a change submitted prior to final enactment or 
administrative decision except as provided in paragraph (b) of this 
section.
    (2) Any submitted change directly related to another change that has 
not received section 5 preclearance if the Attorney General determines 
that the two changes cannot be substantively considered independently of 
one another.
    (3) Any submitted change whose enforcement has ceased and been 
superseded by a standard, practice, or procedure that has received 
section 5 preclearance or that is otherwise legally enforceable under 
section 5.
    (b) For any change requiring approval by referendum, by a State or 
Federal court, or by a Federal agency, 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. (See also 
Sec. 51.18.)

[Order No. 3262-2011, 76 FR 21244, Apr. 15, 2011]



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. A 
State, whether partially or fully covered, has authority to submit any 
voting change on behalf of its covered jurisdictions and political 
subunits. Where a State is covered as a whole, State legislation or 
other changes undertaken or required by the State shall be submitted by 
the State (except that legislation of local applicability may be 
submitted by political subunits). Where a State is partially covered, 
changes of statewide application may be submitted by the State. 
Submissions from the State, rather than from the individual covered 
jurisdictions, would serve the State's interest in at least two 
important respects: first, the State is better able to explain to the 
Attorney General the purpose and effect of voting changes it enacts than 
are the individual covered jurisdictions; second, a single submission of 
the voting change on behalf of all of the covered jurisdictions would 
reduce the possibility that some State acts will be legally enforceable 
in some parts of the State but not in others.
    (b) A change effected by a political party (see Sec. 51.7) may be 
submitted by an appropriate official of the political party.
    (c) A change affecting voting that results from a State court order 
should be submitted by the jurisdiction or entity that is to implement 
or administer the change (in the manner specified by paragraphs (a) and 
(b) of this section).

[Order No. 3262-2011, 76 FR 21245, Apr. 15, 2011]



Sec. 51.24  Delivery of submissions.

    (a) Delivery by U.S. Postal Service. Submissions sent to the 
Attorney General by the U.S. Postal Service, including certified mail or 
express mail, shall be addressed to the Chief, Voting Section, Civil 
Rights Division, United States Department of Justice, Room 7254-NWB, 950 
Pennsylvania Avenue, NW, Washington, DC 20530.

[[Page 96]]

    (b) Delivery by other carriers. Submissions sent to the Attorney 
General by carriers other than the U.S. Postal Service, including by 
hand delivery, should be addressed or may be delivered to the Chief, 
Voting Section, Civil Rights Division, United States Department of 
Justice, Room 7254-NWB, 1800 G Street, NW, Washington, DC 20006.
    (c) Electronic submissions. Submissions may be delivered to the 
Attorney General through an electronic form available on the website of 
the Voting Section of the Civil Rights Division at www.justice.gov/crt/
voting/. Detailed instructions appear on the website. Jurisdictions 
should answer the questions appearing on the electronic form, and should 
attach documents as specified in the instructions accompanying the 
application.
    (d) Telefacsimile submissions. In urgent circumstances, submissions 
may be delivered to the Attorney General by telefacsimile to (202) 616-
9514. Submissions should not be sent to any other telefacsimile number 
at the Department of Justice. Submissions that are voluminous should not 
be sent by telefacsimile.
    (e) Email. Submissions may not be delivered to the Attorney General 
by email in the first instance. However, after a submission is received 
by the Attorney General, a jurisdiction may supply additional 
information on that submission by email to [email protected] The 
subject line of the email shall be identified with the Attorney 
General's file number for the submission (YYYY-NNNN), marked as 
``Additional Information,'' and include the name of the jurisdiction.
    (f) Special marking. The first page of the submission, and the 
envelope (if any), shall be clearly marked: ``Submission under Section 5 
of the Voting Rights Act.''
    (g) The most current information on addresses for, and methods of 
making, section 5 submissions is available on the Voting Section website 
at www.justice.gov/crt/voting/.

[Order No. 3262-2011, 76 FR 21245, Apr. 15, 2011]



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 must be made in writing addressed to the Chief, Voting 
Section, Civil Rights Division, to be delivered at the addresses, 
telefacsimile number, or email address specified in Sec. 51.24. The 
submission shall be deemed withdrawn upon the Attorney General's 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 No. 1214-87, 52 FR 33409, 
Sept. 3, 1987; Order No. 3262-2011, 76 FR 21245, Apr. 15, 2011]



                    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

[[Page 97]]

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 the change affecting voting for which section 5 preclearance 
is being requested.
    (b) A copy of any ordinance, enactment, order, or regulation 
embodying the voting standard, practice, or procedure that is proposed 
to be repealed, amended, or otherwise changed.
    (c) A statement that identifies with specificity each change 
affecting voting for which section 5 preclearance is being requested and 
that explains the difference between the submitted change and the prior 
law or practice. If the submitted change is a special referendum 
election and the subject of the referendum is a proposed change 
affecting voting, the submission should specify whether preclearance is 
being requested solely for the special election or for both the special 
election and the proposed change to be voted on in the referendum (see 
Secs. 51.16, 51.22).
    (d) The name, title, mailing address, and telephone number of the 
person making the submission. Where available, a telefacsimile number 
and an email address for the person making the submission also should be 
provided.
    (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.
    (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.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21245, Apr. 15, 2011]

[[Page 98]]



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 electronic media that are provided in 
conjunction with a redistricting plan shall be contained in an ASCII, 
comma delimited block equivalency import file with two fields as 
detailed in the following table. A separate import file shall accompany 
each redistricting plan:

------------------------------------------------------------------------
                                             Total
   Field No.            Description          length        Comments
------------------------------------------------------------------------
1..............  PL94-171 reference              15
                  number: GEOID10.
2..............  District Number..........        3  No leading zeroes.
------------------------------------------------------------------------

    (i) Field 1: The PL 94-171/GEOID10 reference number is the state, 
county, tract, and block reference numbers concatenated together and 
padded with leading zeroes so as to create a 15-digit character field; 
and
    (ii) Field 2: The district number is a 3 digit character field with 
no padded leading zeroes.

    Example: 482979501002099,1 482979501002100,3 482979501004301,10 
482975010004305,23 482975010004302,101

    (6) Demographic data on magnetic media that are provided in 
conjunction with a redistricting can be provided in shapefile (.shp) 
spatial data format.
    (i) The shapefile shall include at a minimum the main file, index 
file, and dBASE table.
    (ii) The dBASE table shall contain a row for each census block. Each 
census block will be identified by the state, county, tract and block 
identifier [GEOID10] as specified by the Bureau of Census. Each row 
shall identify the district assignment and relevant population for that 
specific row.
    (iii) The shapefile should include a projection file (.prj).
    (iv) The shapefile should be sent in NAD 83 geographic projection. 
If another projection is used, it should be described fully.
    (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 (and deannexations) 
subject to the preclearance requirement have been submitted for review, 
or a statement that identifies all annexations (and deannexations) 
subject to the

[[Page 99]]

preclearance requirement that have not been submitted for review. See 
Sec. 51.61(b).
    (4) To the extent that the jurisdiction elects some or all members 
of its governing body from single-member districts, it should inform the 
Attorney General how the newly annexed territory will be incorporated 
into the existing election districts.
    (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:
    (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

[[Page 100]]

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; Order No. 3262-2011, 76 FR 21245, Apr. 15, 2011]



          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) Comments should be sent to the Chief, Voting Section, Civil 
Rights Division, at the addresses, telefacsimile number, or email 
address specified in Sec. 51.24. The first page and the envelope (if 
any) should be marked: ``Comment under section 5 of the Voting Rights 
Act.'' Comments should include, where available, the name of the 
jurisdiction and the Attorney General's file number (YYYY-NNNN) in the 
subject line.
    (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) To the extent permitted by the Freedom of Information Act, 5 
U.S.C. 552, the Attorney General shall not disclose to any person 
outside the Department of Justice the identity of any individual or 
entity providing information on a submission or the administration of 
section 5 where the individual or entity has requested confidentiality; 
an assurance of confidentiality may reasonably be implied from the 
circumstances of the communication; disclosure could reasonably be 
expected to constitute an unwarranted invasion of personal privacy under 
5 U.S.C. 552; or disclosure is prohibited by any applicable provisions 
of federal law.
    (e) When an individual or group desires the Attorney General to 
consider 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 No. 1214-87, 52 FR 33409, 
Sept. 3, 1987; Order No. 3262-2011, 76 FR 21246, Apr. 15, 2011]



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).

[[Page 101]]



                   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 and resubmissions.

    (a) When the Attorney General determines that a response on the 
merits of a submitted change is inappropriate, the Attorney General 
shall notify the submitting official in writing within the 60-day period 
that would have commenced for a determination on the merits and shall 
include an explanation of the reason why a response is not appropriate.
    (b) Matters that are not appropriate for a merits response include:
    (1) Changes that do not affect voting (see Sec. 51.13);
    (2) Standards, practices, or procedures that have not been changed 
(see Secs. 51.4, 51.14);
    (3) Changes that previously have received preclearance;
    (4) Changes that affect voting but are not subject to the 
requirement of section 5 (see Sec. 51.18);
    (5) Changes that have been superseded or for which a determination 
is premature (see Secs. 51.22, 51.61(b));
    (6) Submissions by jurisdictions not subject to the preclearance 
requirement (see Secs. 51.4, 51.5);
    (7) Submissions by an inappropriate or unauthorized party or 
jurisdiction (see Sec. 51.23); and
    (8) Deficient submissions (see Sec. 51.26(d)).
    (c) Following such a notification by the Attorney General, a change 
shall be deemed resubmitted for section 5 review upon the Attorney 
General's receipt of a submission or other written information that 
renders the change appropriate for review on the merits (such as a 
notification from the submitting authority that a change previously 
determined to be premature has been formally adopted). Notice of the 
resubmission of a change affecting voting will be given to interested 
parties registered under Sec. 51.32.

[Order No. 3262-2011, 76 FR 21246, Apr. 15, 2011]



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) Oral requests for information. (1) If a submission does not 
satisfy the requirements of Sec. 51.27, the Attorney General may request 
orally any omitted information necessary for the evaluation of the 
submission. An oral request may be made at any time within the 60-day 
period, and the submitting authority should provide the requested 
information as promptly as possible. The oral request for information 
shall not suspend the running of the 60-day period, and the Attorney 
General will

[[Page 102]]

proceed to make a determination within the initial 60-day period. The 
Attorney General reserves the right as set forth in Sec. 51.39, however, 
to commence a new 60-day period in which to make the requisite 
determination if the written information provided in response to such 
request materially supplements the submission.
    (2) An oral request for information shall not limit the authority of 
the Attorney General to make a written request for information.
    (3) The Attorney General will notify the submitting authority in 
writing when the 60-day period for a submission is recalculated from the 
Attorney General's receipt of written information provided in response 
to an oral request as described in Sec. 51.37(a)(1), above.
    (4) Notice of the Attorney General's receipt of written information 
pursuant to an oral request will be given to interested parties 
registered under Sec. 51.32.
    (b) Written requests for information. (1) If the Attorney General 
determines that a submission does not satisfy the requirements of 
Sec. 51.27, the Attorney General may request in writing from the 
submitting authority any omitted information necessary for evaluation of 
the submission. Branch v. Smith, 538 U.S. 254 (2003); Georgia v. United 
States, 411 U.S. 526 (1973). This written request shall be made as 
promptly as possible within the original 60-day period or the new 60-day 
period described in Sec. 51.39(a). The written request shall advise the 
jurisdiction that the submitted change remains unenforceable unless and 
until preclearance is obtained.
    (2) 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.
    (3) 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 Attorney General's 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 in writing within the new 60-day 
period, but such a further request shall not suspend the running of the 
60-day period, nor shall the Attorney General's receipt of such further 
information begin a new 60-day period.
    (4) Where the response from the submitting authority neither 
provides the information requested nor states that such information is 
unavailable, the response 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 incomplete and to provide such notification as soon 
as possible within the 60-day period that would have commenced had the 
response been complete. Where the response includes a portion of the 
available information that was requested, the Attorney General will 
reevaluate the submission to ascertain whether a determination on the 
merits may be made based upon the information provided. If a merits 
determination is appropriate, it is the practice of the Attorney General 
to make that determination within the new 60-day period that would have 
commenced had the response been complete. See Sec. 51.40.
    (5) If, after a request for further information is made pursuant to 
this section, the information requested by the Attorney General becomes 
available to the Attorney General from a source other than the 
submitting authority, the Attorney General shall promptly notify the 
submitting authority in writing, and the new 60-day period will commence 
the day after the information is received by the Attorney General.
    (6) Notice of the written request for further information and the 
receipt of a response by the Attorney General will be given to 
interested parties registered under Sec. 51.32.

[Order No. 3262-2011, 76 FR 21246, Apr. 15, 2011]



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.

[[Page 103]]

    (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 sufficient 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  Supplemental information and related submissions.

    (a)(1) Supplemental information. When a submitting authority, at its 
own instance, provides information during the 60-day period that the 
Attorney General determines materially supplements a pending submission, 
the 60-day period for the pending submission will be recalculated from 
the Attorney General's receipt of the supplemental information.
    (2) Related submissions. When the Attorney General receives related 
submissions during the 60-day period for a submission that cannot be 
independently considered, the 60-day period for the first submission 
shall be recalculated from the Attorney General's receipt of the last 
related submission.
    (b) The Attorney General will notify the submitting authority in 
writing when the 60-day period for a submission is recalculated due to 
the Attorney General's receipt of supplemental information or a related 
submission.
    (c) Notice of the Attorney General's receipt of supplemental 
information or a related submission will be given to interested parties 
registered under Sec. 51.32.

[Order No. 3262-2011, 76 FR 21247, Apr. 15, 2011]



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(b), 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.

[Order No. 3262-2011, 76 FR 21247, Apr. 15, 2011]



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 
in writing 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 
that a 60-day review period had commenced after receipt by the Attorney 
General of a complete submission that is appropriate for a response on 
the merits. (See Sec. 51.22, Sec. 51.27, Sec. 51.35.)

[Order No. 3262-2011, 76 FR 21247, Apr. 15, 2011]



Sec. 51.43  Reexamination of decision not to object.

    (a) After notification to the submitting authority of a decision not 
to interpose an 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 comes to the 
attention of the Attorney General that would otherwise require objection 
in accordance with section 5.
    (b) In such circumstances, the Attorney General may by letter 
withdraw his decision not to interpose an objection and may by letter 
interpose an objection provisionally, in accordance with Sec. 51.44, and 
advise the submitting

[[Page 104]]

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.

[Order No. 3262-2011, 76 FR 21247, Apr. 15, 2011]



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 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 neither has the 
purpose nor will have the effect of denying or abridging the right to 
vote on account of race, color, or membership in a language minority 
group.
    (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.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21247, Apr. 15, 2011]



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, or where it appears there may have been 
a misinterpretation of fact or mistake in the law, an objection may be 
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.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21247, Apr. 15, 2011]



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.

[[Page 105]]



Sec. 51.48  Decision after reconsideration.

    (a) It is the practice of the Attorney General to notify the 
submitting authority of the decision to continue or withdraw an 
objection within a 60-day period following receipt of a reconsideration 
request or following notice given under Sec. 51.46(b), except that this 
60-day period shall be recommenced upon receipt of any documents or 
written information from the submitting authority that materially 
supplements the reconsideration review, irrespective of whether the 
submitting authority provides the documents or information at its own 
instance or pursuant to a request (written or oral) by the Attorney 
General. The 60-day reconsideration period may be extended to allow a 
15-day decision period following a conference held pursuant to 
Sec. 51.47. The 60-day reconsideration period shall be computed in the 
manner specified in Sec. 51.9. Where the reconsideration is at the 
instance of the Attorney General, the first day of the period shall be 
the day after the notice required by Sec. 51.46(b) is transmitted to the 
submitting authority. The reasons for the reconsideration decision shall 
be stated.
    (b) The objection shall be withdrawn if the Attorney General is 
satisfied that the change neither has the purpose nor will have the 
effect of denying or abridging the right to vote 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 
neither has the purpose nor will have the effect of denying or abridging 
the right to vote on account of race, color, or membership in a language 
minority group.
    (d) An objection remains in effect until either it is specifically 
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.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21248, Apr. 15, 2011]



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 electronic 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 letters. The Attorney General shall maintain section 5 
notification letters regarding decisions to interpose, continue, or 
withdraw an objection.
    (c) Computer file. Records of all submissions and their dispositions 
by the Attorney General shall be electronically stored.
    (d) Copies. The contents of the section 5 submission files in paper, 
microfiche, electronic, or other form shall be available for obtaining 
copies by the public, pursuant to written request directed to the Chief, 
Voting Section, Civil Rights Division, United States Department of 
Justice, Washington,

[[Page 106]]

DC. Such written request may be delivered to the addresses or 
telefacsimile number specified in Sec. 51.24 or by electronic mail to 
[email protected] It is the Attorney General's intent and 
practice to expedite, to the extent possible, requests pertaining to 
pending submissions. Those who desire copies of information that has 
been provided on electronic 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 General. The 
identity of any individual or entity that provided information to the 
Attorney General regarding the administration of section 5 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.

[Order No. 3262-2011, 76 FR 21248, Apr. 15, 2011]



            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 
neither has the purpose nor 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. South 
Carolina v. Katzenbach, 383 U.S. 301, 328, 335 (1966).
    (b) No objection. If the Attorney General determines that the 
submitted change neither has the purpose nor will have the effect of 
denying or abridging the right to vote on account of race, color, or 
membership in a language minority group, 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 
neither has the purpose nor will have the effect of denying or abridging 
the right to vote on account of race, color, or membership in a language 
minority group. 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 both the 
prohibited discriminatory purpose and effect.

[Order No. 3262-2011, 76 FR 21248, Apr. 15, 2011]



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.



Sec. 51.54  Discriminatory purpose and effect.

    (a) Discriminatory purpose. A change affecting voting is considered 
to have a discriminatory purpose under section 5 if it is enacted or 
sought to be administered with any purpose of denying or abridging the 
right to vote on account of race, color, or membership in a language 
minority group. The term ``purpose'' in section 5 includes any 
discriminatory purpose. 42 U.S.C. 1973c. The Attorney General's 
evaluation of discriminatory purpose under section 5 is guided by the 
analysis in Village of

[[Page 107]]

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 
252 (1977).
    (b) Discriminatory effect. 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 effective 
exercise of the electoral franchise. Beer v. United States, 425 U.S. 
130, 140-42 (1976).
    (c) Benchmark. (1) In determining whether a submitted change is 
retrogressive the Attorney General will normally compare the submitted 
change to the voting standard, practice, or procedure in force or effect 
at the time of the submission. If the existing standard, 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 (c)(4) of this section, 
the comparison shall be with the last legally enforceable standard, 
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 does not operate to make that unprecleared 
change a benchmark for any subsequent change submitted by the 
jurisdiction.
    (4) Where at the time of submission of a change for section 5 review 
there exists no other lawful standard, 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 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.
    (d) Protection of the ability to elect. Any change affecting voting 
that has the purpose of or will have the effect of diminishing the 
ability of any citizens of the United States on account of race, color, 
or membership in a language minority group to elect their preferred 
candidates of choice denies or abridges the right to vote within the 
meaning of section 5. 42 U.S.C. 1973c.

[Order No. 3262-2011, 76 FR 21248, Apr. 15, 2011]



Sec. 51.55  Consistency with constitutional and statutory requirements.

    (a) Consideration in general. In making a determination under 
section 5, the Attorney General will consider whether the change neither 
has the purpose nor will have the effect of denying or abridging the 
right to vote on account of race, color, or membership in a language 
minority group 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; Order 
No. 3262-2011, 76 FR 21249, Apr. 15, 2011]



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;

[[Page 108]]

    (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; and
    (e) The factors set forth in Village of Arlington Heights v. 
Metropolitan Housing Development Corp., 429 U.S. 252 (1977):
    (1) Whether the impact of the official action bears more heavily on 
one race than another;
    (2) The historical background of the decision;
    (3) The specific sequence of events leading up to the decision;
    (4) Whether there are departures from the normal procedural 
sequence;
    (5) Whether there are substantive departures from the normal factors 
considered; and
    (6) The legislative or administrative history, including 
contemporaneous statements made by the decision makers.

[Order No. 3262-2011, 76 FR 21249, Apr. 15, 2011]



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).
    (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 voting in the jurisdiction is racially 
polarized and election-related activities are racially segregated.
    (3) The extent to which the voter registration and election 
participation of minority voters have been adversely affected by present 
or past discrimination.

[52 FR 490, Jan. 6, 1987, as amended by Order No. 3262-2011, 76 FR 
21249, Apr. 15, 2011]



Sec. 51.59  Redistricting plans.

    (a) Relevant factors. In determining whether a submitted 
redistricting plan has a prohibited purpose or effect the Attorney 
General, in addition to the factors described above, will consider the 
following factors (among others):
    (1) The extent to which malapportioned districts deny or abridge the 
right to vote of minority citizens;
    (2) The extent to which minority voting strength is reduced by the 
proposed redistricting;
    (3) The extent to which minority concentrations are fragmented among 
different districts;
    (4) The extent to which minorities are over concentrated in one or 
more districts;
    (5) The extent to which available alternative plans satisfying the 
jurisdiction's legitimate governmental interests were considered;
    (6) 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; and
    (7) The extent to which the plan is inconsistent with the 
jurisdiction's stated redistricting standards.
    (b) Discriminatory purpose. A jurisdiction's failure to adopt the 
maximum possible number of majority-minority districts may not be the 
sole basis for determining that a jurisdiction was motivated by a 
discriminatory purpose.

[Order No. 3262-2011, 76 FR 21249, Apr. 15, 2011]



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):

[[Page 109]]

    (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 and deannexations, 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. See, e.g., City of Pleasant Grove v. United States, 479 U.S. 
462 (1987). In analyzing annexations and deannexations under section 5, 
the Attorney General considers the purpose and effect of the annexations 
and deannexations only as they pertain to voting.
    (b) Section 5 review. It is the practice of the Attorney General to 
review all of a jurisdiction's unprecleared annexations and 
deannexations 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 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, as amended by Order 
No. 3262-2011, 76 FR 21249, Apr. 15, 2011]



                           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.

[[Page 110]]



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.



 Sec. Appendix to Part 51--Jurisdictions Covered Under Section 4(b) of 
                    the Voting Rights Act, as Amended

    The requirements of section 5 of the Voting Rights Act, as amended, 
apply 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.
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.

[[Page 111]]

 
    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.
    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.
----------------------------------------------------------------------------------------------------------------

    The Voting Section maintains a current list of those jurisdictions 
that have maintained successful declaratory judgments from the United 
States District Court for the District of Columbia pursuant to section 4 
of the Act on its Web site at http://www.justice.gov/crt/voting.

[Order No. 3262-2011, 76 FR 21250, Apr. 15, 2011]

[[Page 112]]



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.
    (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--

[[Page 113]]

    (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]



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.

[[Page 114]]

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 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;

[[Page 115]]

    (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, 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

[[Page 116]]

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 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).

[[Page 117]]



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.



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

[[Page 118]]

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.



                           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

[[Page 119]]

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 54.310. 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:
    (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

[[Page 120]]

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;
    (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

[[Page 121]]

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 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

[[Page 122]]

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 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

[[Page 123]]

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.
    (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.

[[Page 124]]

    (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 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.

[[Page 125]]

    (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.



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

[[Page 126]]

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 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.

[[Page 127]]



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 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

[[Page 128]]

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 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. 54.235(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

[[Page 129]]

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.



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]

[[Page 130]]



PART 55_IMPLEMENTATION OF THE PROVISIONS OF THE VOTING RIGHTS
ACT REGARDING LANGUAGE MINORITY GROUPS--Table of Contents



                      Subpart A_General Provisions

Sec.
55.1  Definitions.
55.2  Purpose; standards for measuring compliance.
55.3  Statutory requirements.

                      Subpart B_Nature of Coverage

55.4  Effective date; list of covered jurisdictions.
55.5  Coverage under section 4(f)(4).
55.6  Coverage under section 203(c).
55.7  Termination of coverage.
55.8  Relationship between section 4(f)(4) and section 203(c).
55.9  Coverage of political units within a county.
55.10  Types of elections covered.

                Subpart C_Determining the Exact Language

55.11  General.
55.12  Language used for written material.
55.13  Language used for oral assistance and publicity.

          Subpart D_Minority Language Materials and Assistance

55.14  General.
55.15  Affected activities.
55.16  Standards and proof of compliance.
55.17  Targeting.
55.18  Provision of minority language materials and assistance.
55.19  Written materials.
55.20  Oral assistance and publicity.
55.21  Record keeping.

                         Subpart E_Preclearance

55.22  Requirements of section 5 of the Act.

                           Subpart F_Sanctions

55.23  Enforcement by the Attorney General.

                     Subpart G_Comment on This Part

55.24  Procedure.

Appendix to Part 55--Jurisdictions Covered Under Sections 4(f)(4) and 
          203(c) of the Voting Rights Act of 1965, as Amended 
          [Applicable language minority group(s)]

    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, Public Law 
89-110, as amended by the Civil Rights Act of 1968, 82 Stat. 73, Public 
Law 90-284, the Voting Rights Act Amendments of 1970, 84 Stat. 314, 
Public Law 91-285, the District of Columbia Delegate Act, 84 Stat. 853, 
Public Law 91-405, the Voting Rights Act Amendments of 1975, 89 Stat. 
400, Public Law 94-73, the Voting Rights Act Amendments of 1982, 96 
Stat. 131, Public Law 97-205, the Voting Rights Language Assistance Act 
of 1992, 106 Stat. 921, Public Law 102-344, the Fannie Lou Hamer, Rosa 
Parks, Coretta Scott King Voting Rights Act Reauthorization and 
Amendments Act of 2006, 120 Stat. 577, Public Law 109-246, and the Act 
to Revise the Short Title of the Fannie Lou Hamer, Rosa Parks, and 
Coretta Scott King Voting Rights Act Reauthorization and Amendments Act, 
122 Stat. 2428, Public Law 110-258, 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 No. 1246-87, 53 FR 735, Jan. 12, 1988, as amended by Order No. 
1752-93, 58 FR 35372, July 1, 1993; Order No. 3291-2011, 76 FR 54111, 
Aug. 31, 2011]



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

[[Page 131]]

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 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 No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1246-87, 53 FR 736, Jan. 12, 1988]



Sec. 55.3  Statutory requirements.

    The Act's requirements concerning the conduct of elections in 
languages in addition to English are contained in section 4(f)(4) and 
section 203(c). These sections state that whenever a jurisdiction 
subject to their terms ``provides any registration or voting notices, 
forms, instructions, assistance, or other materials or information 
relating to the electoral process, including ballots, it shall provide 
them in the language of the applicable language minority group as well 
as in * * * English. * * *''



                      Subpart B_Nature of Coverage



Sec. 55.4  Effective date; list of covered jurisdictions.

    (a) The minority language provisions of the Voting Rights Act were 
added by the Voting Rights Act Amendments of 1975, and amended and 
extended in 1982, 1992, and 2006.
    (1) The requirements of section 4(f)(4) take effect upon publication 
in the Federal Register of the requisite determinations of the Director 
of the

[[Page 132]]

Census and the Attorney General. Such determinations are not reviewable 
in any court. See section 4(b).
    (2) The requirements of section 203(c) take effect upon publication 
in the Federal Register of the requisite determinations of the Director 
of the Census. Such determinations are not reviewable in any court. See 
section 203(b)(4).
    (b) Jurisdictions determined to be covered under section 4(f)(4) or 
section 203(c) are listed, together with the language minority group 
with respect to which coverage was determined, in the appendix to this 
part. Any additional determinations of coverage under either section 
4(f)(4) or section 203(c) will be published in the Federal Register.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1246-87, 53 FR 736, Jan. 12, 1988; Order No. 3291-2011, 76 FR 54111, 
Aug. 31, 2011]



Sec. 55.5  Coverage under section 4(f)(4).

    (a) Coverage formula. Section 4(f)(4) applies to any State or 
political subdivision in which
    (1) Over five percent of the voting-age citizens were, on November 
1, 1972, members of a single language minority group,
    (2) Registration and election materials were provided only in 
English on November 1, 1972, and
    (3) Fewer than 50 percent of the voting-age citizens were registered 
to vote or voted in the 1972 Presidential election.

All three conditions must be satisfied before coverage exists under 
section 4(f)(4). \1\
---------------------------------------------------------------------------

    \1\ Coverage is based on sections 4(b) (third sentence), 4(c), and 
4(f)(3).
---------------------------------------------------------------------------

    (b) Coverage may be determined with regard to section 4(f)(4) on a 
statewide or political subdivision basis.
    (1) Whenever the determination is made that the bilingual 
requirements of section 4(f)(4) are applicable to an entire State, these 
requirements apply to each of the State's political subdivisions as well 
as to the State. In other words, each political subdivision within a 
covered State is subject to the same requirements as the State.
    (2) Where an entire State is not covered under section 4(f)(4), 
individual political subdivisions may be covered.



Sec. 55.6  Coverage under section 203(c).

    (a) Coverage formula. There are four ways in which a political 
subdivision can become subject to section 203(c). \2\
---------------------------------------------------------------------------

    \2\ The criteria for coverage are contained in section 203(b).
---------------------------------------------------------------------------

    (1) Political subdivision approach. A political subdivision is 
covered if--
    (i) More than 5 percent of its voting age citizens are members of a 
single language minority group and are limited-English proficient; and
    (ii) The illiteracy rate of such language minority citizens in the 
political subdivision is higher than the national illiteracy rate.
    (2) State approach. A political subdivision is covered if--
    (i) It is located in a state in which more than 5 percent of the 
voting age citizens are members of a single language minority and are 
limited-English proficient;
    (ii) The illiteracy rate of such language minority citizens in the 
state is higher than the national illiteracy rate; and
    (iii) Five percent or more of the voting age citizens of the 
political subdivision are members of such language minority group and 
are limited-English proficient.
    (3) Numerical approach. A political subdivision is covered if--
    (i) More than 10,000 of its voting age citizens are members of a 
single language minority group and are limited-English proficient; and
    (ii) The illiteracy rate of such language minority citizens in the 
political subdivision is higher than the national illiteracy rate.
    (4) Indian reservation approach. A political subdivision is covered 
if there is located within its borders all or any part of an Indian 
reservation--
    (i) In which more than 5 percent of the voting age American Indian 
or Alaska Native citizens are members of a single language minority 
group and are limited-English proficient; and
    (ii) The illiteracy rate of such language minority citizens is 
higher than the national illiteracy rate.

[[Page 133]]

    (b) Definitions. For the purpose of determinations of coverage under 
section 203(c), limited-English proficient means unable to speak or 
understand English adequately enough to participate in the electoral 
process; Indian reservation means any area that is an American Indian or 
Alaska Native area, as defined by the Census Bureau for the purposes of 
the 1990 decennial census; and illiteracy means the failure to complete 
the fifth primary grade.
    (c) Determinations. Determinations of coverage under section 203(c) 
are made with regard to specific language groups of the language 
minorities listed in section 203(e).

[Order No. 1752-93, 58 FR 35372, July 1, 1993]



Sec. 55.7  Termination of coverage.

    (a) Section 4(f)(4). The requirements of section 4(f)(4) apply for a 
twenty-five-year period following the effective date of the amendments 
made by the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, Cesar E. 
Chavez, Barbara C. Jordan, William C. Velasquez, and Dr. Hector P. 
Garcia Voting Rights Act Reauthorization and Amendments Act of 2006, 
which amendments became effective on July 27, 2006. See section 4(a)(8). 
A covered State, a political subdivision of a covered State, a 
separately covered political subdivision, or a political subunit of any 
of the above, may terminate the application of section 4(f)(4) earlier 
by obtaining the declaratory judgment described in section 4(a) of the 
Act.
    (b) Section 203(c). The requirements of section 203(c) apply until 
August 6, 2032. See section 203(b). A covered jurisdiction may terminate 
Section 203 coverage earlier if it can prove in a declaratory judgment 
action in a United States district court, that the illiteracy rate of 
the applicable language minority group is equal to or less than the 
national illiteracy rate, as described in section 203(d) of the Act.

[Order No. 3291-2011, 76 FR 54111, Aug. 31, 2011]



Sec. 55.8  Relationship between section 4(f)(4) and section 203(c).

    (a) The statutory requirements of section 4(f)(4) and section 203(c) 
regarding minority language material and assistance are essentially 
identical.
    (b) Jurisdictions subject to the requirements of section 4(f)(4)--
but not jurisdictions subject only to the requirements of section 
203(c)--are also subject to the Act's special provisions, such as 
section 5 (regarding preclearance of changes in voting laws) and section 
8 (regarding federal observers).\2\ See part 51 of this chapter.
---------------------------------------------------------------------------

    \2\ In addition, a jurisdiction covered under section 203(c) but not 
under section 4(f)(4) is subject to the Act's special provisions if it 
was covered under section 4(b) prior to the 1975 Amendments to the Act.
---------------------------------------------------------------------------

    (c) Although the coverage formulas applicable to section 4(f)(4) and 
section 203(c) are different, a political subdivision may be included 
within both of the coverage formulas. Under these circumstances, a 
judgment terminating coverage of the jurisdiction under one provision 
would not have the effect of terminating coverage under the other 
provision.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
3291-2011, 76 FR 54112, Aug. 31, 2011]



Sec. 55.9  Coverage of political units within a county.

    Where a political subdivision (e.g., a county) is determined to be 
subject to section 4(f)(4) or section 203(c), all political units that 
hold elections within that political subdivision (e.g., cities, school 
districts) are subject to the same requirements as the political 
subdivision.



Sec. 55.10  Types of elections covered.

    (a) General. The language provisions of the Act apply to 
registration for and voting in any type of election, whether it is a 
primary, general or special election. Section 14(c)(1). This includes 
elections of officers as well as elections regarding such matters as 
bond issues, constitutional amendments and referendums. Federal, State 
and local elections are covered as are elections of special districts, 
such as school districts and water districts.
    (b) Elections for statewide office. If an election conducted by a 
county relates to Federal or State offices or issues as

[[Page 134]]

well as county offices or issues, a county subject to the bilingual 
requirements must insure compliance with those requirements with respect 
to all aspects of the election, i.e., the minority language material and 
assistance must deal with the Federal and State offices or issues as 
well as county offices or issues.
    (c) Multi-county districts. Regarding elections for an office 
representing more than one county, e.g., State legislative districts and 
special districts that include portions of two or more counties, the 
bilingual requirements are applicable on a county-by-county basis. Thus, 
minority language material and assistance need not be provided by the 
government in counties not subject to the bilingual requirements of the 
Act.



                Subpart C_Determining the Exact Language



Sec. 55.11  General.

    The requirements of section 4(f)(4) or section 203(c) apply with 
respect to the languages of language minority groups. The applicable 
groups are indicated in the determinations of the Attorney General or 
the Director of the Census. This subpart relates to the view of the 
Attorney General concerning the determination by covered jurisdictions 
of precisely the language to be employed. In enforcing the Act, the 
Attorney General will consider whether the languages, forms of 
languages, or dialects chosen by covered jurisdictions for use in the 
electoral process enable members of applicable language minority groups 
to participate effectively in the electoral process. It is the 
responsibility of covered jurisdictions to determine what languages, 
forms of languages, or dialects will be effective. For those 
jurisdictions covered under section 203(c), the coverage determination 
(indicated in the appendix) may specify the particular language minority 
group (in parentheses) for which the jurisdiction is covered, but does 
not specify the language or dialect to be used for such group.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1246-87, 53 FR 736, Jan. 12, 1988; Order No. 3291-2011, 76 FR 54112, 
Aug. 31, 2011]



Sec. 55.12  Language used for written material.

    (a) Language minority groups having more than one language. Some 
language minority groups, for example, Filipino Americans, have more 
than one language other than English. A jurisdiction required to provide 
election materials in the language of such a group need not provide 
materials in more than one language other than English. The Attorney 
General will consider whether the language that is used for election 
materials is the one most widely used by the jurisdiction's voting-age 
citizens who are members of the language minority group.
    (b) Languages with more than one written form. Some languages, for 
example, Japanese, have more than one written form. A jurisdiction 
required to provide election materials in such a language need not 
provide more than one version. The Attorney General will consider 
whether the particular version of the language that is used for election 
materials is the one most widely used by the jurisdiction's voting-age 
citizens who are members of the language minority group.
    (c) Unwritten languages. Many of the languages used by language 
minority groups, for example, by some American Indians and Alaskan 
Natives, are unwritten. With respect to any such language, only oral 
assistance and publicity are required. Even though a written form for a 
language may exist, a language may be considered unwritten if it is not 
commonly used in a written form. It is the responsibility of the covered 
jurisdiction to determine whether a language should be considered 
written or unwritten.



Sec. 55.13  Language used for oral assistance and publicity.

    (a) Languages with more than one dialect. Some languages, for 
example, Chinese, have several dialects. Where a jurisdiction is 
obligated to provide oral assistance in such a language, the 
jurisdiction's obligation is to ascertain the dialects that are commonly 
used by members of the applicable language minority group in the 
jurisdiction and to provide oral assistance in such dialects. (See 
Sec. 55.20.)

[[Page 135]]

    (b) Language minority groups having more than one language. In some 
jurisdictions members of an applicable language minority group speak 
more than one language other than English. Where a jurisdiction is 
obligated to provide oral assistance in the language of such a group, 
the jurisdiction's obligation is to ascertain the languages that are 
commonly used by members of that group in the jurisdiction and to 
provide oral assistance in such languages. (See Sec. 55.20)

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1246-87, 53 FR 736, Jan. 12, 1988; Order No. 1752-93, 58 FR 35373, July 
1, 1993]



          Subpart D_Minority Language Materials and Assistance



Sec. 55.14  General.

    (a) This subpart sets forth the views of the Attorney General with 
respect to the requirements of section 4(f)(4) and section 203(c) 
concerning the provision of minority language materials and assistance 
and some of the factors that the Attorney General will consider in 
carrying out his responsibilities to enforce section 4(f)(4) and section 
203(c). Through the use of his authority under section 5 and his 
authority to bring suits to enforce section 4(f)(4) and section 203(c), 
the Attorney General will seek to prevent or remedy discrimination 
against members of language minority groups based on the failure to use 
the applicable minority language in the electoral process. The Attorney 
General also has the responsibility to defend against suits brought for 
the termination of coverage under section 4(f)(4) and section 203(c).
    (b) In discharging these responsibilities the Attorney General will 
respond to complaints received, conduct on his own initiative inquiries 
and surveys concerning compliance, and undertake other enforcement 
activities.
    (c) It is the responsibility of the jurisdiction to determine what 
actions by it are required for compliance with the requirements of 
section 4(f)(4) and section 203(c) and to carry out these actions.



Sec. 55.15  Affected activities.

    The requirements of sections 4(f)(4) and 203(c) apply with regard to 
the provision of ``any registration or voting notices, forms, 
instructions, assistance, or other materials or information relating to 
the electoral process, including ballots.'' The basic purpose of these 
requirements is to allow members of applicable language minority groups 
to be effectively informed of and participate effectively in voting-
connected activities. Accordingly, the quoted language should be broadly 
construed to apply to all stages of the electoral process, from voter 
registration through activities related to conducting elections, 
including, for example the issuance, at any time during the year, of 
notifications, announcements, or other informational materials 
concerning the opportunity to register, the deadline for voter 
registration, the time, places and subject matters of elections, and the 
absentee voting process.



Sec. 55.16  Standards and proof of compliance.

    Compliance with the requirements of section 4(f)(4) and section 
203(c) is best measured by results. A jurisdiction is more likely to 
achieve compliance with these requirements if it has worked with the 
cooperation of and to the satisfaction of organizations representing 
members of the applicable language minority group. In planning its 
compliance with section 4(f)(4) or section 203(c), a jurisdiction may, 
where alternative methods of compliance are available, use less costly 
methods if they are equivalent to more costly methods in their 
effectiveness.



Sec. 55.17  Targeting.

    The term ``targeting'' is commonly used in discussions of the 
requirements of section 4(f)(4) and section 203(c). ``Targeting'' refers 
to a system in which the minority language materials or assistance 
required by the Act are provided to fewer than all persons or registered 
voters. It is the view of the Attorney General that a targeting system 
will normally fulfill the Act's minority language requirements if it is 
designed and implemented in such a way that language minority group

[[Page 136]]

members who need minority language materials and assistance receive 
them.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1752-93, 58 FR 35373, July 1, 1993]



Sec. 55.18  Provision of minority language materials and assistance.

    (a) Materials provided by mail. If materials provided by mail (or by 
some comparable form of distribution) generally to residents or 
registered voters are not all provided in the applicable minority 
language, the Attorney General will consider whether an effective 
targeting system has been developed. For example, a separate mailing of 
materials in the minority language to persons who are likely to need 
them or to residents of neighborhoods in which such a need is likely to 
exist, supplemented by a notice of the availability of minority language 
materials in the general mailing (in English and in the applicable 
minority language) and by other publicity regarding the availability of 
such materials may be sufficient.
    (b) Public notices. The Attorney General will consider whether 
public notices and announcements of electoral activities are handled in 
a manner that provides members of the applicable language minority group 
an effective opportunity to be informed about electoral activities.
    (c) Registration. The Attorney General will consider whether the 
registration system is conducted in such a way that members of the 
applicable language minority group have an effective opportunity to 
register. One method of accomplishing this is to provide, in the 
applicable minority language, all notices, forms and other materials 
provided to potential registrants and to have only bilingual persons as 
registrars. Effective results may also be obtained, for example, through 
the use of deputy registrars who are members of the applicable language 
minority group and the use of decentralized places of registration, with 
minority language materials available at places where persons who need 
them are most likely to come to register.
    (d) Polling place activities. The Attorney General will consider 
whether polling place activities are conducted in such a way that 
members of the applicable language minority group have an effective 
opportunity to vote. One method of accomplishing this is to provide all 
notices, instructions, ballots, and other pertinent materials and oral 
assistance in the applicable minority language. If very few of the 
registered voters scheduled to vote at a particular polling place need 
minority language materials or assistance, the Attorney General will 
consider whether an alternative system enabling those few to cast 
effective ballots is available.
    (e) Publicity. The Attorney General will consider whether a covered 
jurisdiction has taken appropriate steps to publicize the availability 
of materials and assistance in the minority language. Such steps may 
include the display of appropriate notices, in the minority language, at 
voter registration offices, polling places, etc., the making of 
announcements over minority language radio or television stations, the 
publication of notices in minority language newspapers, and direct 
contact with language minority group organizations.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
733-77, 42 FR 35970, July 13, 1977]



Sec. 55.19  Written materials.

    (a) Types of materials. It is the obligation of the jurisdiction to 
decide what materials must be provided in a minority language. A 
jurisdiction required to provide minority language materials is only 
required to publish in the language of the applicable language minority 
group materials distributed to or provided for the use of the electorate 
generally. Such materials include, for example, ballots, sample ballots, 
informational materials, and petitions.
    (b) Accuracy, completeness. It is essential that material provided 
in the language of a language minority group be clear, complete and 
accurate. In examining whether a jurisdiction has achieved compliance 
with this requirement, the Attorney General will consider whether the 
jurisdiction has consulted with members of the applicable language 
minority group with respect to the translation of materials.

[[Page 137]]

    (c) Ballots. The Attorney General will consider whether a 
jurisdiction provides the English and minority language versions on the 
same document. Lack of such bilingual preparation of ballots may give 
rise to the possibility, or to the appearance, that the secrecy of the 
ballot will be lost if a separate minority language ballot or voting 
machine is used.
    (d) Voting machines. Where voting machines that cannot mechanically 
accommodate a ballot in English and in the applicable minority language 
are used, the Attorney General will consider whether the jurisdiction 
provides sample ballots for use in the polling booths. Where such sample 
ballots are used the Attorney General will consider whether they contain 
a complete and accurate translation of the English ballots, and whether 
they contain or are accompanied by instructions in the minority language 
explaining the operation of the voting machine. The Attorney General 
will also consider whether the sample ballots are displayed so that they 
are clearly visible and at the same level as the machine ballot on the 
inside of the polling booth, whether the sample ballots are identical in 
layout to the machine ballots, and whether their size and typeface are 
the same as that appearing on the machine ballots. Where space 
limitations preclude affixing the translated sample ballots to the 
inside of polling booths, the Attorney General will consider whether 
language minority group voters are allowed to take the sample ballots 
into the voting booths.



Sec. 55.20  Oral assistance and publicity.

    (a) General. Announcements, publicity, and assistance should be 
given in oral form to the extent needed to enable members of the 
applicable language minority group to participate effectively in the 
electoral process.
    (b) Assistance. The Attorney General will consider whether a 
jurisdiction has given sufficient attention to the needs of language 
minority group members who cannot effectively read either English or the 
applicable minority language and to the needs of members of language 
minority groups whose languages are unwritten.
    (c) Helpers. With respect to the conduct of elections, the 
jurisdiction will need to determine the number of helpers (i.e., persons 
to provide oral assistance in the minority language) that must be 
provided. In evaluating the provision of assistance, the Attorney 
General will consider such facts as the number of a precinct's 
registered voters who are members of the applicable language minority 
group, the number of such persons who are not proficient in English, and 
the ability of a voter to be assisted by a person of his or her own 
choice. The basic standard is one of effectiveness.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
1752-93, 58 FR 35373, July 1, 1993]



Sec. 55.21  Record keeping.

    The Attorney General's implementation of the Act's provisions 
concerning language minority groups would be facilitated if each covered 
jurisdiction would maintain such records and data as will document its 
actions under those provisions, including, for example, records on such 
matters as alternatives considered prior to taking such actions, and the 
reasons for choosing the actions finally taken.



                         Subpart E_Preclearance



Sec. 55.22  Requirements of section 5 of the Act.

    For many jurisdictions, changes in voting laws and practices will be 
necessary in order to comply with section 4(f)(4) or section 203(c). If 
a jurisdiction is subject to the preclearance requirements of section 5 
(see Sec. 55.8(b)), such changes must either be submitted to the 
Attorney General or be made the subject of a declaratory judgment action 
in the U.S. District Court for the District of Columbia. Procedures for 
the administration of section 5 are set forth in part 51 of this 
chapter.



                           Subpart F_Sanctions



Sec. 55.23  Enforcement by the Attorney General.

    (a) The Attorney General is authorized to bring civil actions for 
appropriate relief against violations of the

[[Page 138]]

Act's provisions, including section 4 and section 203. See sections 
12(d) and 204.
    (b) Also, certain violations may be subject to criminal sanctions. 
See sections 12(a) and (c) and 205.

[Order No. 655-76, 41 FR 29998, July 20, 1976, as amended by Order No. 
3291-2011, 76 FR 54112, Aug. 31, 2011]



                     Subpart G_Comment on This Part



Sec. 55.24  Procedure.

    These guidelines may be modified from time to time on the basis of 
experience under the Act and comments received from interested parties. 
The Attorney General therefore invites public comments and suggestions 
on these guidelines. Any party who wishes to make such suggestions or 
comments may do so by sending them to: Assistant Attorney General, Civil 
Rights Division, Department of Justice, Washington, DC 20530.



 Sec. Appendix to Part 55--Jurisdictions Covered Under Sections 4(f)(4) 
  and 203(c) of the Voting Rights Act of 1965, as Amended [Applicable 
                       language minority group(s)]

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Jurisdiction             Coverage under Sec. Coverage under sec.
                          4(f)(4) \1\              203(c) \2\
------------------------------------------------------------------------
\1\ Coverage determinations for Section 4(f)(4) were published at 40 FR
  43746 (Sept. 23, 1975), 40 FR 49422 (Oct. 22, 1975), 41 FR 783 (Jan.
  5, 1976) (corrected at 41 FR 1503 (Jan. 8, 1976)), and 41 FR 34329
  (Aug. 13, 1976). The Voting Section maintains a current list of those
  jurisdictions that have maintained successful declaratory judgments
  from the United States District Court for the District of Columbia
  pursuant to section 4 of the Act on its Web site at http://
  www.justice.gov/crt/about/vot/. See Sec. 55.7 of this part.
\2\ Coverage determinations for Section 203 based on 2000 Census data
  were published at 67 FR 48871 (July 26, 2002). Subsequent coverage
  determinations for Section 203 will be based on 2010 American
  Community Survey census data and subsequent American Community Survey
  data in 5-year increments, or comparable census data. See section
  203(b)(2)(A). New coverage determinations for Section 203 by the
  Director of the Census Bureau are forthcoming.


[Order No. 3291-2011, 76 FR 54112, Aug. 31, 2011]



PART 56_INTERNATIONAL ENERGY PROGRAM--Table of Contents



Sec.
56.1  Purpose and scope.
56.2  Maintenance of records with respect to meetings held to develop 
          voluntary agreements or plans of action pursuant to the 
          Agreement on an International Energy Program.
56.3  Maintenance of records with respect to meetings held to develop 
          and carry out voluntary agreements or plans of action pursuant 
          to the Agreement on an International Energy Program.

    Authority: Energy Policy and Conservation Act, Pub. L. 94-163, 89 
Stat. 871 (42 U.S.C. 6201).

    Source: 49 FR 33998, Aug. 28, 1984, unless otherwise noted.



Sec. 56.1  Purpose and scope.

    These regulations are promulgated pursuant to section 252(e)(2) of 
the Energy Policy and Conservation Act (EPCA), 42 U.S.C. 6272(e)(2). 
They are being issued by the Assistant Attorney General in charge of the 
Antitrust Division to whom the Attorney General has delegated his 
authority under this section of EPCA. The requirements of this part do 
not apply to activities other than those for which section 252 of EPCA 
makes available a defense to actions brought under the Federal antitrust 
laws.



Sec. 56.2  Maintenance of records with respect to meetings held to
develop voluntary agreements or plans of action pursuant to the 
Agreement on an International Energy Program.

    (a) The Administrator of the Department of Energy shall keep a 
verbatim transcript of any meeting held pursuant to this subpart.
    (b)(1) Except as provided in paragraphs (b) (2) through (4) of this 
section, potential participants shall keep a full and complete record of 
any communications (other than in a meeting held pursuant to this 
subpart) between or among themselves for the purpose of developing a 
voluntary agreement under this part. When two or more potential 
participants are involved in such a communication, they may agree among 
themselves who shall keep such record. Such record shall include the 
names of the parties to the communication and the organizations, if any, 
which they represent; the date of the communication; the means of 
communication; and a description of the communication in sufficient 
detail to convey adequately its substance.
    (2) Where any communication is written (including, but not limited 
to,

[[Page 139]]

telex, telegraphic, telecopied, microfilmed and computer printout 
material), and where such communication demonstrates on its face that 
the originator or some other source furnished a copy of the 
communication to the Office of International Affairs, Department of 
Energy with the notation ``Voluntary Agreement'' marked on the first 
page of the document, no participant need record such a communication or 
send a further copy to the Department of Energy. The Department of 
Energy may, upon written notice to potential participants, from time to 
time, or with reference to particular types of documents, require 
deposit with other offices or officials of the Department of Energy. 
Where such communication demonstrates that it was sent to the Office of 
International Affairs, Department of Energy with the notation 
``Voluntary Agreement'' marked on the first page of the document, or 
such other offices or officials in the Department of Energy has 
designated pursuant to this section it shall satisfy paragraph (c) of 
this section, for the purpose of deposit with the Department of Energy.
    (3) To the extent that any communication is procedural, 
administrative or ministerial (for example, if it involves the location 
of a record, the place of a meeting, travel arrangements, or similar 
matters,) only a brief notation of the date, time, persons involved and 
description of the communication need be recorded.
    (4) To the extent that any communication involves matters which 
recapitulate matters already contained in a full and complete record, 
the substance of such matters shall be identified, but need not be 
recorded in detail, provided that reference is made to the record and 
the portion thereof in which the substance is fully set out.
    (c) Except where the Department of Energy otherwise provides, all 
records and transcripts prepared pursuant to paragraphs (a) and (b) of 
this section, shall be deposited within fifteen (15) days after the 
close of the month of their preparation together with any agreement 
resulting therefrom, with the Department of Energy, and shall be 
available to the Department of Justice, the Federal Trade Commission, 
and the Department of State. Such records and transcripts shall be 
available for public inspection and copying at the Department of Energy. 
Any person depositing material with the Department of Energy pursuant to 
this section shall indicate with particularity what portions, if any, 
the person believes are subject to disclosure to the public pursuant to 
5 U.S.C. 552 and the reasons for such belief.

(Approved by the Office of Management and Budget under control number 
1105-0029)



Sec. 56.3  Maintenance of records with respect to meetings held to 
develop and carry out voluntary agreements or plans of action pursuant
to the Agreement on an International Energy Program.

    (a) The Administrator of the Department of Energy or his delegate 
shall keep a verbatim transcript of any meeting held pursuant to this 
subpart except where:
    (1) Due to considerations of time or other overriding circumstances, 
the keeping of a verbatim transcript is not practicable, or
    (2) Principal participants in the meeting are representatives of 
foreign governments.

If any such record other than a verbatim transcript, is kept by a 
designee who is not a full-time Federal employee, that record shall be 
submitted to the full-time Federal employee in attendance at the meeting 
who shall review the record, promptly make any changes he deems 
necessary to make the record full and complete, and shall notify the 
designee of such changes.
    (b)(1) Except as provided in paragraphs (b) (2) through (4) of this 
section, participants shall keep a full and complete record of any 
communication (other than in a meeting held pursuant to this subpart) 
between or among themselves or with any other member of a petroleum 
industry group created by the International Energy Agency (IEA), or 
subgroup thereof for the purpose of carrying out a voluntary agreement 
or developing or carrying out a plan of action under this subpart, 
except that where there are several communications within the same day 
involving the same participants, they may keep a cumulative record for 
the

[[Page 140]]

day. The parties to a communication may agree among themselves who shall 
keep such record. Such record shall include the names of the parties to 
the communication and the organizations, if any, which they represent; 
the date of communication; the means of communication, and a description 
of the communication in sufficient detail to convey adequately its 
substance.
    (2) Where any communication is written (including, but not limited 
to, telex, telegraphic, telecopied, microfilmed and computer printout 
material), and where such communication demonstrates on its face that 
the originator or some other source furnished a copy of the 
communication to the Office of International Affairs, Department of 
Energy with the notation ``Voluntary Agreement'' on the first page of 
the document, no participants need record such a communication or send a 
further copy to the Department of Energy. The Department of Energy may, 
upon written notice to participants, from time to time, or with 
reference to particular types of documents, require deposit with other 
offices or officials of the Department of Energy. Where such 
communication demonstrates that it was sent to the Office of 
International Affairs, Department of Energy with the notation 
``Voluntary Agreement'' on the first page of the document, or such other 
offices or officials as the Department of Energy has designated pursuant 
to this section, it shall satisfy paragraph (c) of this section, for the 
purpose of deposit with the Department of Energy.
    (3) To the extent that any communication is procedural, 
administrative or ministerial (for example, if it involves the location 
of a record, the place of a meeting, travel arrangements, or similar 
matters) only a brief notation of the date, time, persons involved and 
description of the communication need be recorded; except that during an 
IEA emergency allocation exercise or an allocation systems test such a 
non-substantive communication between members of the Industry Supply 
Advisory Group which occur within IEA headquarters need not be recorded.
    (4) To the extent that any communication involves matters which 
recapitulate matters already contained in a full and complete record, 
the substance of such matters shall be identified, but need not be 
recorded in detail, provided that reference is made to the record and 
the portion thereof in which the substance is fully set out.
    (c) Except where the Department of Energy otherwise provides, all 
records and transcripts prepared pursuant to paragraphs (a) and (b) of 
this section, shall be deposited within seven (7) days after the close 
of the week (ending Saturday) of their preparation during an 
international energy supply emergency or a test of the IEA emergency 
allocation system, and within fifteen (15) days after the close of the 
month of their preparation during periods of non-emergency, together 
with any agreement resulting therefrom, with the Department of Energy 
and shall be available to the Department of Justice, the Federal Trade 
Commission, and the Department of State. Such records and transcripts 
shall be available for public inspection and copying to the extent set 
forth in 5 U.S.C. 552. Any person depositing materials pursuant to this 
section shall indicate with particularity what portions, if any, the 
person believes are not subject to disclosure to the public pursuant to 
5 U.S.C. 552 and the reasons for such belief.
    (d) During international oil allocation under chapter III and IV of 
the IEP or during an IEA allocation systems test, the Department of 
Justice may issue such additional guidelines amplifying the requirements 
of these regulations as the Department of Justice determines to be 
necessary and appropriate.

(Approved by the Office of Management and Budget under control number 
1105-0029)



PART 57_INVESTIGATION OF DISCRIMINATION IN THE SUPPLY OF PETROLEUM
TO THE ARMED FORCES--Table of Contents



Sec.
57.1  Responsibility for the conduct of litigation.
57.2  Responsibility for the conduct of investigations.
57.3  Scope and purpose of investigation; other sources of information.
57.4  Expiration date.


[[Page 141]]


    Authority: Sec. 816(b)(2), Pub. L. 94-106; 89 Stat. 531.

    Source: Order No. 644-76, 41 FR 12302, Mar. 25, 1976, unless 
otherwise noted.



Sec. 57.1  Responsibility for the conduct of litigation.

    (a) In accord with 28 CFR 0.45(h), civil litigation under sec. 816 
of the Department of Defense Appropriation Authorization Act, 1976, 10 
U.S.C.A. 2304 note (hereafter the ``Act''), shall be conducted under the 
supervision of the Assistant Attorney General in charge of the Civil 
Division.
    (b) In accord with 28 CFR 0.55(a), prosecution, under section 816(f) 
of the Act, of criminal violations shall be conducted under the 
supervision of the Assistant Attorney General in charge of the Criminal 
Division.



Sec. 57.2  Responsibility for the conduct of investigations.

    (a) When an instance of alleged ``discrimination'' in violation of 
section 816(b)(1) of the Act is referred to the Department of Justice by 
the Department of Defense, the matter shall be assigned initially to the 
Civil Division.
    (b)(1) If the information provided by the Department of Defense 
indicates that a non-criminal violation may have occurred and further 
investigation is warranted, such investigation shall be conducted under 
the supervision of the Assistant Attorney General in charge of the Civil 
Division.
    (2) If the information provided by the Department of Defense 
indicates that a criminal violation under section 816(f) of the Act may 
have occurred, the Civil Division shall refer the matter to the Criminal 
Division. If it is determined that further investigation of a possible 
criminal violation is warranted, such investigation shall be conducted 
under the supervision of the Assistant Attorney General in charge of the 
Criminal Division.
    (3) If a referral from the Department of Defense is such that both 
civil and criminal proceedings may be warranted, responsibility for any 
further investigation may be determined by the Deputy Attorney General.



Sec. 57.3  Scope and purpose of investigation; other sources of
information.

    (a) The authority granted the Attorney General by section 816(d)(1) 
of the Act (e.g., authority to inspect books and records) shall not be 
utilized until an appropriate official has defined, in an appropriate 
internal memorandum, the scope and purpose of the particular 
investigation.
    (b) There shall be no use, with respect to particular information, 
of the authority granted by section 816(d)(1) of the Act until an 
appropriate official has determined that the information in question is 
not available to the Department of Justice from any other Federal agency 
or other responsible agency (e.g., a State agency).
    (c) For purposes of this section, ``appropriate official'' means the 
Assistant Attorney General in charge of the division conducting the 
investigation, or his delegate.



Sec. 57.4  Expiration date.

    This part shall remain in effect until expiration, pursuant to 
section 816(h) of the Act, of the Attorney General's authority under 
section 816 of the Act.



PART 58_REGULATIONS RELATING TO THE BANKRUPTCY REFORM ACTS OF 1978 
AND 1994--Table of Contents



Sec.
58.1  Authorization to establish panels of private trustees.
58.2  Authorization to appoint standing trustees.
58.3  Qualification for membership on panels of private trustees.
58.4  Qualifications for appointment as standing trustee and fiduciary 
          standards.
58.5  Non-discrimination in appointment.
58.6  Procedures for suspension and removal of panel trustees and 
          standing trustees.
58.7  Procedures for Completing Uniform Forms of Trustee Final Reports 
          in Cases Filed Under Chapters 7, 12, and 13 of the Bankruptcy 
          Code.
58.11  Procedures governing administrative review of a United States 
          Trustee's decision to deny a Chapter 12 or Chapter 13 standing 
          Trustee's claim of actual, necessary expenses.
58.12  Definitions.
58.13  Procedures all agencies shall follow when applying to become 
          approved agencies.

[[Page 142]]

58.14  Automatic expiration of agencies' status as approved agencies.
58.15  Procedures all approved agencies shall follow when applying for 
          approval to act as an approved agency for an additional one 
          year period.
58.16  Renewal for an additional one year period.
58.17  Mandatory duty of approved agencies to notify United States 
          Trustees of material changes.
58.18  Mandatory duty of approved agencies to obtain prior consent of 
          the United States Trustee before taking certain actions.
58.19  Continuing requirements for becoming and remaining approved 
          agencies.
58.20  Minimum qualifications agencies shall meet to become and remain 
          approved agencies.
58.21  Minimum requirements to become and remain approved agencies 
          relating to fees.
58.22  Minimum requirements to become and remain approved agencies 
          relating to certificates.
58.23  Minimum financial requirements and bonding and insurance 
          requirements for agencies offering debt repayment plans.
58.24  Procedures for obtaining final agency action on United States 
          Trustees' decisions to deny agencies' applications and to 
          remove approved agencies from the approved list.
58.25  Definitions.
58.26  Procedures all providers shall follow when applying to become 
          approved providers.
58.27  Automatic expiration of providers' status as approved providers.
58.28  Procedures all approved providers shall follow when applying for 
          approval to act as an approved provider for an additional one 
          year period.
58.29  Renewal for an additional one year period.
58.30  Mandatory duty of approved providers to notify United States 
          Trustees of material changes.
58.31  Mandatory duty of approved providers to obtain prior consent of 
          the United States Trustee before taking certain actions.
58.32  Continuing requirements for becoming and remaining approved 
          providers.
58.33  Minimum qualifications providers shall meet to become and remain 
          approved providers.
58.34  Minimum requirements to become and remain approved providers 
          relating to fees.
58.35  Minimum requirements to become and remain approved providers 
          relating to certificates.
58.36  Procedures for obtaining final provider action on United States 
          Trustees' decisions to deny providers' applications and to 
          remove approved providers from the approved list.

Appendix A to Part 58--Guidelines for Reviewing Applications for 
          Compensation and Reimbursement of Expenses Filed Under 11 
          U.S.C. 330

    Authority: 5 U.S.C. 301, 552; 11 U.S.C. 109(h), 111, 521(b), 
727(a)(11), 1141(d)(3), 1202; 1302, 1328(g); 28 U.S.C. 509, 510, 586, 
589b.

    Source: Order No. 921-80, 45 FR 82631, Dec. 16, 1980, unless 
otherwise noted.



Sec. 58.1  Authorization to establish panels of private trustees.

    (a) Each U.S. Trustee is authorized to establish a panel of private 
trustees (the ``panel'') pursuant to 28 U.S.C. 586(a)(1).
    (b) Each U.S. Trustee is authorized, with the approval of the 
Director, Executive Office for United States Trustees (the ``Director'') 
to increase or decrease the total membership of the panel. In addition, 
each U.S. Trustee, with the approval of the Director, is authorized to 
institute a system of rotation of membership or the like to achieve 
diversity of experience, geographical distribution or other 
characteristics among the persons on the panel.

[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended at 62 FR 
30183, June 2, 1997]



Sec. 58.2  Authorization to appoint standing trustees.

    Each U.S. Trustee is authorized, subject to the approval of the 
Deputy Attorney General, or his delegate, to appoint and remove one or 
more standing trustees to serve in cases under chapters 12 and 13 of 
title 11, U.S. Code.

[51 FR 44288, Dec. 9, 1986]



Sec. 58.3  Qualification for membership on panels of private trustees.

    (a) To be eligible for appointment to the panel and to retain 
eligibility therefor, an individual must possess the qualifications 
described in paragraph (b) of this section in addition to any other 
statutory qualifications. A corporation or partnership may qualify as an 
entity for appointment to the private panel. However, each person who, 
in the opinion of the U.S. Trustee or of the Director, performs duties 
as trustee on behalf of a corporation or partnership must individually 
meet the

[[Page 143]]

standards described in paragraph (b) of this section, except that each 
U.S. Trustee, with the approval of the Director, shall have the 
discretion to waive the applicability of paragraph (b)(6) of this 
section as to any individual in a non-supervisory position. No 
professional corporation, partnership, or similar entity organized for 
the practice of law or accounting shall be eligible to serve on the 
panel.
    (b) The qualifications for membership on the panel are as follows:
    (1) Possess integrity and good moral character.
    (2) Be physically and mentally able to satisfactorily perform a 
trustee's duties.
    (3) Be courteous and accessible to all parties with reasonable 
inquiries or comments about a case for which such individual is serving 
as private trustee.
    (4) Be free of prejudices against any individual, entity, or group 
of individuals or entities which would interfere with unbiased 
performance of a trustee's duties.
    (5) Not be related by affinity or consanguinity within the degree of 
first cousin to any employee of the Executive Office for United States 
Trustees of the Department of Justice, or to any employee of the office 
of the U.S. Trustee for the district in which he or she is applying.
    (6)(i) Be a member in good standing of the bar of the highest court 
of a state or of the District of Columbia; or
    (ii) Be a certified public accountant; or
    (iii) Hold a bachelor's degree from a full four-year course of study 
(or the equivalent) of an accredited college or university (accredited 
as described in part II, section III of Handbook X118 promulgated by the 
U.S. Office of Personnel Management) with a major in a business-related 
field of study or at least 20 semester-hours of business-related 
courses; or hold a master's or doctoral degree in a business-related 
field of study from a college or university of the type described above; 
or
    (iv) Be a senior law student or candidate for a master's degree in 
business administration recommended by the relevant law school or 
business school dean and working under the direct supervision of:
    (A) A member of a law school faculty; or
    (B) A member of the panel of private trustees; or
    (C) A member of a program established by the local bar association 
to provide clinical experience to students; or
    (v) Have equivalent experience as deemed acceptable by the U.S. 
Trustee.
    (7) Be willing to provide reports as required by the U.S. Trustee.
    (8) Have submitted an application under oath, in the form prescribed 
by the Director, to the U.S. Trustee for the District in which 
appointment is sought: Provided, That this provision may be waived by 
the U.S. Trustee on approval of the Director.



Sec. 58.4  Qualifications for appointment as standing trustee and
fiduciary standards.

    (a) As used in this section--
    (1) The term standing trustee means an individual appointed pursuant 
to 28 U.S.C. 586(b).
    (2) The term relative means an individual who is related to the 
standing trustee as father, mother, son, daughter, brother, sister, 
uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, 
mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-
law, stepfather, stepmother, stepson, stepdaughter, stepbrother, 
stepsister, half brother, half sister, or an individual whose close 
association to the standing trustee is the equivalent of a spousal 
relationship.
    (3) The term financial or ownership interest excludes ownership of 
stock in a publicly-traded company if the ownership interest in not 
controlling.
    (4) The word region means the geographical area defined in 28 U.S.C. 
581.
    (b) To be eligible for appointment as a standing trustee, an 
individual must have the qualifications for membership on a private 
panel of trustees set forth in Secs. 58.3 (b)(1)-(4), (6)-(8). An 
individual need not be an attorney to be eligible for appointment as a 
standing trustee. A corporation or partnership may be appointed as 
standing trustee only with the approval of the Director.
    (c) The United States Trustee shall not appoint as a standing 
trustee any

[[Page 144]]

individuals who, at the time of appointment, is:
    (1) A relative of another standing trustee in the region in which 
the standing trustee is to be appointed;
    (2) A relative of a standing trustee (in the region in which the 
standing trustee is to be appointed), who, within the preceding one-year 
period, died, resigned, or was removed as a standing trustee from a 
case;
    (3) A relative of a bankruptcy judge or a clerk of the bankruptcy 
court in the region in which the standing trustee is to be appointed;
    (4) An employee of the Department of Justice within the preceding 
one-year period; or
    (5) A relative of a United States Trustee or an Assistant United 
States Trustee, a relative of an employee in any of the offices of the 
United States Trustee in the region in which the standing trustee is to 
be appointed, or a relative of an employee in the Executive Office for 
United States Trustees.
    (d) A standing trustee must, at a minimum, adhere to the following 
fiduciary standards:
    (1) Employment of relatives. (i) A standing trustee shall not employ 
a relative of the standing trustee.
    (ii) A standing trustee shall also not employ a relative of the 
United States Trustee or of an Assistant United States Trustee in the 
region in which the trustee has been appointed or a relative of a 
bankruptcy court judge or of the clerk of the bankruptcy court in the 
judicial district in which the trustee has been appointed.
    (iii)(A) Paragraphs (d)(1) (i) and (ii) of this section shall not 
apply to a spouse of a standing trustee who was employed by the standing 
trustee as of August 1, 1995.
    (B) For all other relatives employed by a standing trustee as of 
August 1, 1995, paragraphs (d)(1) (i) and (ii) of this section shall be 
fully implemented by October 1, 1998, unless specifically provided 
below:
    (1) The United States Trustee shall have the discretion to grant a 
written waiver for a period of time not to exceed 2 years upon a written 
showing by the standing trustee of compelling circumstances that make 
the continued employment of a relative necessary for a standing 
trustee's performance of his or her duties and written evidence that the 
salary to be paid is at or below market rate.
    (2) Additional waivers, not to exceed a period of two years each, 
may be granted under paragraph (d)(1)(iii)(B)(1) of this section 
provided the standing trustee makes a similar written showing within 90 
days prior to the expiration of a present waiver and the United States 
Trustee determines that the circumstances for waiver are met.
    (3) No waivers will be granted for a relative of the United States 
Trustee or of an Assistant United States Trustee.
    (2) Related party transactions. (i) A standing trustee shall not 
direct debtors or creditors of a bankruptcy case administered by the 
standing trustee to an individual or entity that provides products or 
services, such as insurance or financial counseling, if a standing 
trustee is a relative of that individual or if the standing trustee or 
relative has a financial or ownership interest in the entity.
    (ii) A standing trustee shall not, on behalf of the trust, contract 
or allocate expenses with himself or herself, with a relative, or with 
any entity in which the standing trustee or a relative of the standing 
trustee has a financial or ownership interest if the costs are to be 
paid as an expense out of the fiduciary expense fund.
    (iii)(A) The United States Trustee may grant a waiver from 
compliance with paragraph (d)(2)(ii) of this section for up to three 
years following the appointment of a standing trustee if the newly-
appointed standing trustee can demonstrate in writing that a waiver is 
necessary and the cost is at or below market.
    (B) The United States Trustee may grant a provisional waiver from 
compliance with the allocation prohibition contained in paragraph 
(d)(2)(ii) of this section if one of the following conditions is 
present:
    (1) A standing trustee has insufficient receipts to earn maximum 
annual compensation as determined by the Director during any one of the 
last three fiscal years and provides the United States Trustee with an 
appraisal or

[[Page 145]]

other written evidence that the allocation is necessary and the 
allocated cost is at or below market rate for that good or service, or
    (2) A chapter 13 standing trustee also serves as a trustee in 
chapter 12 cases and provides the United States Trustee with an 
appraisal or other written evidence that the allocation is necessary and 
the allocated cost is at or below market rate for that good or service.
    (C) Except as otherwise provided in this paragraph, a standing 
trustee may seek a reasonable extension of time from the United States 
Trustee to comply with paragraph (d)(2)(ii) of this section. To obtain 
an extension, a standing trustee must demonstrate by an appraisal or 
other written evidence, satisfactory to the United States Trustee, that 
the expense is necessary and at or below market rate. In no event shall 
an extension be granted for the use and occupation of real estate beyond 
October 1, 2005. For personal property and personal service contracts, 
no extension shall be granted beyond October 1, 1998.
    (3) Employment of other standing trustees. A standing trustee shall 
not employ or contract with another standing trustee to provide personal 
services for compensation payable from the fiduciary expense fund. This 
section does not prohibit the standing trustee from reimbursing the 
actual, necessary expenses incurred by another standing trustee who 
provides necessary assistance to the standing trustee provided that the 
reimbursement has been pre-approved by the United States Trustee.
    (e) Paragraph (d) of this section is effective July 2, 1997. As to 
those standing trustees who are appointed as of July 2, 1997, paragraph 
(d) will be applicable on the first day of their next fiscal year (i.e., 
October 1, 1997, for chapter 13 trustees and January 1, 1998, for 
chapter 12 trustees).

[62 FR 30183, June 2, 1997]



Sec. 58.5  Non-discrimination in appointment.

    The U.S. Trustees shall not discriminate on the basis of race, 
color, religion, sex, national origin or age in appointments to the 
private panel of trustees or of standing trustees and in this regard 
shall assure equal opportunity for all appointees and applicants for 
appointment to the private panel of trustees or as standing trustee. 
Each U.S. Trustee shall be guided by the policies and requirements of 
Executive Order 11478 of August 8, 1969, relating to equal employment 
opportunity in the Federal Government, section 717 of the Civil Rights 
Act of 1964, as amended (42 U.S.C. 2000e-16), section 15 of the Age 
Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a), 
and the regulations of the Office of Personnel Management relating to 
equal employment opportunity (5 CFR part 713).

[Order No. 921-80, 45 FR 82631, Dec. 16, 1980, as amended by Order No. 
960-81, 46 FR 52360, Oct. 27, 1981]



Sec. 58.6  Procedures for suspension and removal of panel trustees
and standing trustees.

    (a) A United States Trustee shall notify a panel trustee or a 
standing trustee in writing of any decision to suspend or terminate the 
assignment of cases to the trustee including, where applicable, any 
decision not to renew the trustee's term appointment. The notice shall 
state the reason(s) for the decision and should refer to, or be 
accompanied by copies of, pertinent materials upon which the United 
States Trustee has relied and any prior communications in which the 
United States Trustee has advised the trustee of the potential action. 
The notice shall be sent to the office of the trustee by overnight 
courier, for delivery the next business day. The reasons may include, 
but are in no way limited to:
    (1) Failure to safeguard or to account for estate funds and assets;
    (2) Failure to perform duties in a timely and consistently 
satisfactory manner;
    (3) Failure to comply with the provisions of the Code, the 
Bankruptcy Rules, and local rules of court;
    (4) Failure to cooperate and to comply with orders, instructions and 
policies of the court, the bankruptcy clerk or the United States 
Trustee;
    (5) Substandard performance of general duties and case management in 
comparison to other members of the chapter 7 panel or other standing 
trustees;

[[Page 146]]

    (6) Failure to display proper temperament in dealing with judges, 
clerks, attorneys, creditors, debtors, the United States Trustee and the 
general public;
    (7) Failure to adequately monitor the work of professionals or 
others employed by the trustee to assist in the administration of cases;
    (8) Failure to file timely, accurate reports, including interim 
reports, final reports, and final accounts;
    (9) Failure to meet the eligibility requirements of 11 U.S.C. 321 or 
the qualifications set forth in 28 CFR 58.3 and 58.4 and in 11 U.S.C. 
322;
    (10) Failure to attend in person or appropriately conduct the 11 
U.S.C. 341(a) meeting of creditors;
    (11) Action by or pending before a court or state licensing agency 
which calls the trustee's competence, financial responsibility or 
trustworthiness into question;
    (12) Routine inability to accept assigned cases due to conflicts of 
interest or to the trustee's unwillingness or incapacity to serve;
    (13) Change in the composition of the chapter 7 panel pursuant to a 
system established by the United States Trustee under 28 CFR 58.1;
    (14) A determination by the United States Trustee that the interests 
of efficient case administration or a decline in the number of cases 
warrant a reduction in the number of panel trustees or standing 
trustees.
    (b) The notice shall advise the trustee that the decision is final 
and unreviewable unless the trustee requests in writing a review by the 
Director, Executive Office for United States Trustees, no later than 20 
calendar days from the date of issuance of the United States Trustee's 
notice (``request for review''). In order to be timely, a request for 
review must be received by the Office of the Director no later than 20 
calendar days from the date of the United States Trustee's notice to the 
trustee.
    (c) A decision by a United States Trustee to suspend or terminate 
the assignment of cases to a trustee shall take effect upon the 
expiration of a trustee's time to seek review from the Director or, if 
the trustee timely seeks such review, upon the issuance of a final 
written decision by the Director.
    (d) Notwithstanding paragraph (c) of this section, a United States 
Trustee's decision to suspend or terminate the assignment of cases to a 
trustee may include, or may later by supplemented by an interim 
directive, by which the United States trustee may immediately 
discontinue assigning cases to a trustee during the review period. A 
United States Trustee may issue such an interim directive if the United 
States Trustee specifically finds that:
    (1) A continued assignment of cases to the trustee places the safety 
of estate assets at risk ;
    (2) The trustee appears to be ineligible to serve under applicable 
law, rule, or regulation;
    (3) The trustee has engaged in conduct that appears to be dishonest, 
deceitful, fraudulent, or criminal in nature; or
    (4) The trustee appears to have engaged in other gross misconduct 
that is unbefitting his or her position as trustee or violates the 
trustee's duties.
    (e) If the United States Trustee issues an interim directive, the 
trustee may seek a stay of the interim directive from the Director if 
the trustee has timely filed a request for review under paragraph (b) of 
this section.
    (f) The trustee's written request for review shall fully describe 
why the trustee disagrees with the United States Trustee's decision, and 
shall be accompanied by all documents and materials that the trustee 
wants the Director to consider in reviewing the decision. The trustee 
shall send a copy of the request for review, and the accompanying 
documents and materials, to the United States Trustee by overnight 
courier, for delivery the next business day. The trustee may request 
that specific documents in the possession of the United States Trustee 
be transmitted to the Director for inclusion in the record.
    (g) The United States Trustee shall have 15 calendar days from the 
date of the trustee's request for review to submit to the Director a 
written response regarding the matters raised in the trustee's request 
for review. The United States Trustee shall provide a copy of this 
response to the trustee. Both copes shall be sent by overnight

[[Page 147]]

courier, for delivery the next business day.
    (h) The Director may seek additional information from any party in 
the manner and to the extent the Director deems appropriate.
    (i) Unless the trustee and the United States Trustee agree to a 
longer period of time, the Director shall issue a written decision no 
later than 30 calendar days from the receipt of the United States 
Trustee's response to the trustee's request for review. That decision 
shall determine whether the United States Trustee's decision is 
supported by the record and the action is an appropriate exercise of the 
United States Trustee's discretion, and shall adopt, modify or reject 
the United States Trustee's decision to suspend or terminate the 
assignment of future cases to the trustee. The Director's decision shall 
constitute final agency action.
    (j) In reaching a determination, the Director may specify a person 
to act as a reviewing official. The reviewing official shall not be a 
person who was involved in the United States Trustee's decision or a 
Program employee who is located within the region of the United States 
Trustee who made the decision. The reviewing official's duties shall be 
specified by the Director on a case by case basis, and may include 
reviewing the record, obtaining additional information from the 
participants, providing the Director with written recommendations, or 
such other duties as the Director shall prescribe in a particular case.
    (k) This rule does not authorize a trustee to seek review of any 
decision to increase the size of the chapter 7 panel or to appoint 
additional standing trustees in the district or region.
    (l) A trustee who files a request for review shall bear his or her 
own costs and expenses, including counsel fees.

[62 FR 51750, Oct. 2, 1997]



Sec. 58.7  Procedures for Completing Uniform Forms of Trustee Final
Reports in Cases Filed Under Chapters 7, 12, and 13 of the Bankruptcy
Code.

    (a) UST Form 101-7-TFR, Chapter 7 Trustee's Final Report. A chapter 
7 trustee must complete UST Form 101-7-TFR final report (TFR) in 
preparation for closing an asset case. This report must be submitted to 
the United States Trustee after liquidating the estate's assets, but 
before making distribution to creditors, and before filing it with the 
United States Bankruptcy Court. The TFR must contain the trustee's 
certification, under penalty of perjury, that all assets have been 
liquidated or properly accounted for and that funds of the estate are 
available for distribution. Pursuant to 28 U.S.C. 589b(d), the TFR must 
also contain the following:
    (1) Summary of the trustee's case administration;
    (2) Copies of the estate's financial records;
    (3) List of allowed claims;
    (4) Fees and administrative expenses; and
    (5) Proposed dividend distribution to creditors.
    (b) UST Form 101-7-NFR Chapter 7 Trustee's Notice of Trustee's Final 
Report. After the TFR has been reviewed by the United States Trustee and 
filed with the United States Bankruptcy Court, if the net proceeds 
realized in an estate exceed the amounts specified in Fed. R. Bankr. P. 
2002(f)(8), UST Form 101-7-NFR (NFR) must be sent to all creditors as 
the notice required under Fed. R. Bankr. P. 2002(f). The NFR must show 
the receipts, approved disbursements, and any balance identified on the 
TFR, as well as the information required in the TFR's Exhibit D. In 
addition, the NFR must identify the procedures for objecting to any fee 
application or to the TFR.
    (c) UST Form 101-7-TDR Chapter 7 Trustee's Final Account, 
Certification The Estate Has Been Fully Administered and Application of 
Trustee To Be Discharged. After distributing all estate funds, a trustee 
must submit to the United States Trustee and file with the United States 
Bankruptcy Court the trustee's final account, UST Form 101-7-TDR (TDR). 
The TDR must contain the trustee's certification, under penalty of 
perjury, that the estate has been fully administered and the trustee's 
request to be discharged as trustee. Pursuant to 28 U.S.C. 589b(d), the 
TDR must also include the following:
    (1) The length of time the case was pending;

[[Page 148]]

    (2) Assets abandoned;
    (3) Assets exempted;
    (4) Receipts and disbursements of the estate;
    (5) Claims asserted;
    (6) Claims allowed; and,
    (7) Distributions to claimants and claims discharged without 
payment, in each case by appropriate category.
    (d) UST Form 101-7-NDR Chapter 7 Trustee's Report of No 
Distribution. In cases where there is no distribution of funds the case 
trustee must submit to the United States Trustee and file with the 
United States Bankruptcy Court UST Form 101-7-NDR (NDR). The NDR must 
contain the trustee's certification that the estate has been fully 
administered, that the trustee has neither received nor disbursed any 
property or money on account of the estate, and that there is no 
property available for distribution over and above that exempted by law. 
In addition, the NDR must set forth the trustee's request to be 
discharged as trustee. Pursuant to 28 U.S.C. 589b(d), the NDR must also 
include the following information:
    (1) The length of time the case was pending;
    (2) Assets abandoned;
    (3) Assets exempted;
    (4) Claims asserted;
    (5) Claims scheduled; and,
    (6) claims scheduled to be discharged without payment.
    (e) UST Form 101-12-FR-S, Chapter 12 Standing Trustee's Final Report 
and Account and UST Form 101-13-FR-S, Chapter 13 Standing Trustee's 
Final Report and Account. After the final distribution to creditors in a 
chapter 12 or 13 case in which a standing trustee has been appointed, a 
trustee must submit to the United States Trustee and file with the 
United States Bankruptcy Court either UST Form 101-12-FR-S for chapter 
12 cases or UST Form 101-13-FR-S for chapter 13 cases, which are the 
trustee's final report and account. In these forms, a trustee must 
include a certification that the estate has been fully administered if 
not converted to another chapter and a request to be discharged as 
trustee. Pursuant to 28 U.S.C. 589b(d), these forms must also include 
the following information:
    (1) The length of time the case was pending;
    (2) Assets abandoned;
    (3) Assets exempted;
    (4) Receipts and disbursements of the estate;
    (5) Expenses of administration, including for use under section 
707(b), actual costs of administering cases under chapter 12 or 13 (as 
applicable) of title 11;
    (6) Claims asserted;
    (7) Claims allowed;
    (8) Distributions to claimants and claims discharged without 
payment, in each case by appropriate category;
    (9) Date of confirmation of the plan;
    (10) Date of each modification thereto; and,
    (11) Defaults by the debtor in performance under the plan.
    (f) UST Form 101-12-FR-C, Chapter 12 Case Trustee's Final Report and 
Account, and UST Form 101-13-FR-C, Chapter 13 Case Trustee's Final 
Report and Account. After the final distribution to creditors in a 
chapter 12 or 13 case in which a case trustee has been appointed, the 
trustee must submit to the United States Trustee and file with the 
United States Bankruptcy Court either UST Form 101-12-FR-C for chapter 
12 cases, or UST Form 101-13-FR-C for chapter 13 cases, which are the 
trustee's final report and account. In these forms, a trustee must 
include a certification, submitted under penalty of perjury, that the 
estate has been fully administered if not converted to another chapter 
and the trustee's request to be discharged from further duties as 
trustee. Pursuant to 28 U.S.C. 589b(d), these forms must also include 
the following information:
    (1) The length of time the case was pending;
    (2) Assets abandoned;
    (3) Assets exempted;
    (4) Receipts and disbursements of the estate;
    (5) Expenses of administration, including for use under section 
707(b), actual costs of administering cases under chapter 12 or 13 (as 
applicable) of title 11;
    (6) Claims asserted;
    (7) Claims allowed;
    (8) Distributions to claimants and claims discharged without 
payment, in each case by appropriate category;
    (9) Date of confirmation of the plan;

[[Page 149]]

    (10) Date of each modification thereto; and,
    (11) defaults by the debtor in performance under the plan.
    (g) Mandatory Usage of Uniform Forms. The Uniform Forms associated 
with this rule must be utilized by trustees when completing their final 
reports and final accounts. All trustees serving in districts where a 
United States Trustee is serving must use the Uniform Forms in the 
administration of their cases, in the same manner, and with the same 
content, as set forth in this rule:
    (1) All Uniform Forms may be electronically or mechanically 
reproduced so long as all the content and the form remain consistent 
with the Uniform Forms as they are posted on EOUST's Web site;
    (2) The Uniform Forms shall be filed via the United States 
Bankruptcy Courts Case Management/Electronic Case Filing System (CM/ECF) 
as a ``smart form'' meaning the forms are data enabled, unless the court 
offers an automated process that has been approved by EOUST, such as the 
virtual NDR event through CM/ECF.

[73 FR 58444, Oct. 7, 2008]



Sec. 58.11  Procedures governing administrative review of a 
United States Trustee's decision to deny a Chapter 12 or Chapter
13 standing Trustee's claim of actual, necessary expenses.

    (a) The following definitions apply to this section. These terms 
shall have these meanings:
    (1) The term claim of actual, necessary expenses means the request 
by a chapter 12 or chapter 13 standing trustee for the United States 
Trustee's approval of the trustee's projected expenses for each fiscal 
year budget, or for an amendment to the current budget when an increase 
in an individual expense line item is greater than both 10% of the 
budgeted amount and $5,000.00. Expenses for certain items require prior 
United States Trustee approval regardless of amount;
    (2) The term director means the person designated or acting as the 
Director of the Executive Office for United States Trustees;
    (3) The term final decision means the written determination issued 
by the Director based upon the review of the United States Trustee's 
decision to deny all or part of a trustee's claim of actual, necessary 
expenses;
    (4) The term notice means the written communication from the United 
States Trustee to a trustee that the trustee's claim of actual, 
necessary expenses has been denied in whole or in part;
    (5) The term request for review means the written communication from 
a trustee to the Director seeking review of the United States Trustee's 
decision to deny, in whole or in part, the trustee's claim of actual, 
necessary expenses;
    (6) The term trustee means an individual appointed by the United 
States Trustee under 28 U.S.C. 586(b) to serve as the standing trustee 
for chapter 12 or chapter 13 cases in a particular region; and
    (7) The term United States Trustee means, alternatively:
    (i) A United States Trustee appointed under 28 U.S.C. 581; or
    (ii) A person acting as a United States Trustee under 28 U.S.C. 585.
    (b) The United States Trustee may issue a decision to deny a 
trustee's claim of actual, necessary expenses. Reasons for denial 
include, but are not limited to, finding that the trustee failed to do 
any of the following:
    (1) Provide to the United States Trustee sufficient justification 
for the expense;
    (2) Demonstrate to the United States Trustee that the expense is a 
cost effective use of funds;
    (3) Demonstrate to the United States Trustee that the expense is 
reasonably related to the duties of the trustee;
    (4) Obtain authorization from the United States Trustee prior to 
making an expenditure that was not provided for in the current budget;
    (5) Provide the United States Trustee with documents, materials, or 
other information pertaining to the expense;
    (6) Timely submit to the United States Trustee accurate budgets or 
requests for amendment of budgets to cover the additional expense; or
    (7) Demonstrate to the United States Trustee that the expense is 
directly related to office operations.

[[Page 150]]

    (c) Before issuing a notice of denial, the United States Trustee 
shall communicate in writing with the trustee in an attempt to resolve 
any dispute over a claim of actual, necessary expenses:
    (1) For disputes involving the trustee's projected expenses for the 
upcoming fiscal year budget, the United States Trustee shall either 
resolve the dispute or issue a notice of denial no later than July 30 of 
the current calendar year for a chapter 12 standing trustee or October 
31 of the current calendar year for a chapter 13 standing trustee, or if 
the United States Trustee has requested additional information, 30 
calendar days from submission of the additional information if such 
submission is after July 1 for a chapter 12 standing trustee or October 
1 for a chapter 13 standing trustee, unless the trustee and United 
States Trustee agree to a longer period of time. Any projected expenses 
not specifically disputed shall be approved in the ordinary course and 
the trustee's fee shall be set on an interim basis;
    (2) For disputes over amendments to the current year budget, the 
United States Trustee shall either resolve the dispute or issue a notice 
of denial no later than 30 calendar days after the trustee's amendment 
request, or if the United States Trustee has requested additional 
information, 30 calendar days from submission of the additional 
information, unless the trustee and the United States Trustee agree to a 
longer period of time. Any portion of the amendment not specifically 
disputed shall be approved in the ordinary course;
    (3) If the United States Trustee does not resolve the dispute or 
issue a notice of denial within the time frames identified in (c)(1) or 
(2) of this section, the trustee's claim of actual, necessary expenses 
shall be deemed denied on the next business day following expiration of 
the time frames identified in (c)(1) or (2) of this section.
    (d) The United States Trustee shall notify a trustee in writing of 
any decision denying a trustee's claim of actual, necessary expenses. 
The notice shall state the reason(s) for the decision and shall 
reference any documents or communications relied upon in reaching the 
decision. The United States Trustee shall provide to the trustee copies 
of any such non-privileged documents that were not supplied to the 
United States Trustee by the trustee. The notice shall be sent to the 
trustee by overnight courier, for delivery the next business day.
    (e) The notice shall advise the trustee that the decision is final 
and unreviewable unless the trustee requests in writing a review by the 
Director no later than 21 calendar days from the date of the notice to 
the trustee. If the United States Trustee did not issue a notice of 
denial, and the expenses were deemed denied under (c)(3) of this 
section, the trustee shall have 21 calendar days from the date on which 
the expenses were deemed denied to submit a request for review to the 
Director.
    (f) The decision to deny a trustee's claim of actual, necessary 
expenses shall take effect upon the expiration of a trustee's time to 
seek review from the Director or, if the trustee timely seeks such 
review, upon the issuance of a final decision by the Director.
    (g) The trustee's request for review shall be in writing and shall 
fully describe why the trustee disagrees with the United States 
Trustee's decision, and shall be accompanied by all documents and 
materials the trustee wants the Director to consider in reviewing the 
United States Trustee's decision. The trustee shall send the original 
and one copy of the request for review, including all accompanying 
documents and materials, to the Office of the Director by overnight 
courier, for delivery the next business day. In order to be timely, a 
request for review shall be received at the Office of the Director no 
later than 21 calendar days from the date of the notice to the trustee 
or the date the expenses were deemed denied. The trustee shall also send 
a copy of the request for review to the United States Trustee by 
overnight courier, for delivery the next business day.
    (h) The United States Trustee shall have 21 calendar days from the 
date of the trustee's request for review to submit to the Director a 
written response regarding the matters raised in the trustee's request 
for review. The United States Trustee shall provide a copy of this 
response to the trustee by

[[Page 151]]

overnight courier, for delivery the next business day.
    (i) The Director may seek additional non-privileged information from 
any party, in the manner and to the extent the Director deems 
appropriate.
    (j) In reviewing the decision to deny a trustee's claim of actual, 
necessary expenses, the Director shall determine:
    (1) Whether the decision is supported by the record; and
    (2) Whether the decision constitutes an appropriate exercise of 
discretion.
    (k) The Director shall issue a final decision no later than 90 
calendar days from the receipt of the trustee's request for review, or, 
if the Director has requested additional information, 30 calendar days 
from submission of the additional information, unless the trustee agrees 
to a longer period of time. The Director's final decision on the 
trustee's request for review shall constitute final agency action.
    (l) In reaching a final decision the Director may specify a person 
to act as a reviewing official. The reviewing official may not be under 
the supervision of the United States Trustee who denied the trustee's 
claim of actual, necessary expenses. The reviewing official's duties 
shall be specified by the Director on a case-by-case basis, and may 
include reviewing the record, obtaining additional information from the 
participants, providing the Director with written recommendations, and 
such other duties as the Director shall prescribe in a particular case.
    (m) This rule does not authorize a trustee to seek review of any 
decision to change maximum annual compensation, to decrease or increase 
appointments of trustees in a region or district, to change the 
trustee's percentage fee, or to suspend, terminate, or remove a trustee.
    (n) A trustee must exhaust all administrative remedies before 
seeking redress in any court of competent jurisdiction.

[76 FR 31228, May 31, 2011]



Sec. 58.12  Definitions.

    (a) The following definitions apply to Secs. 58.12 through and 
including 58.24 of this Part and the applications and other materials 
agencies submit in an effort to establish they meet the requirements 
necessary to become an approved nonprofit budget and credit counseling 
agency.
    (b) These terms shall have these meanings: (1) The term 
``accreditation'' means the recognition or endorsement that an 
accrediting organization bestows upon an agency because the accrediting 
organization has determined the agency meets or exceeds all the 
accrediting organization's standards;
    (2) The term ``accrediting organization'' means either an entity 
that provides accreditation to agencies or provides certification to 
counselors, provided, however, that an accrediting organization shall:
    (i) Not be an agency or affiliate of any agency; and
    (ii) Be deemed acceptable by the United States Trustee;
    (3) The term ``adequate counseling'' means the actual receipt by a 
client from an approved agency of all counseling services, and all other 
applicable services, rights, and protections specified in:
    (i) 11 U.S.C. 109(h);
    (ii) 11 U.S.C. 111; and
    (iii) This part;
    (4) The term ``affiliate of an agency'' includes:
    (i) Every entity that is an affiliate of the agency, as the term 
``affiliate'' is defined in 11 U.S.C. 101(2), except that the word 
``agency'' shall be substituted for the word ``debtor'' in 11 U.S.C. 
101(2);
    (ii) Each of an agency's officers and each of an agency's directors; 
and
    (iii) Every relative of an agency's officers and every relative of 
an agency's directors;
    (5) The term ``agency'' and the term ``budget and credit counseling 
agency'' shall each mean a nonprofit organization that is applying under 
this part for United States Trustee approval to be included on a 
publicly available list in one or more United States district courts, as 
authorized by 11 U.S.C. 111(a)(1), and shall also mean, whenever 
appropriate, an approved agency;
    (6) The term ``application'' means the application and related 
forms, including appendices, approved by the Office of Management and 
Budget as form EOUST-CC1, Application for Approval as

[[Page 152]]

a Nonprofit Budget and Credit Counseling Agency, as it shall be amended 
from time to time;
    (7) The term ``approved agency'' means an agency currently approved 
by a United States Trustee under 11 U.S.C. 111 as an approved nonprofit 
budget and credit counseling agency eligible to be included on one or 
more lists maintained under 11 U.S.C. 111(a)(1);
    (8) The term ``approved list'' means the list of agencies currently 
approved by a United States Trustee under 11 U.S.C. 111, as currently 
published on the United States Trustee Program's Internet site, which is 
located on the United States Department of Justice's Internet site;
    (9) The term ``audited financial statements'' means financial 
reports audited by independent certified public accountants in 
accordance with generally accepted accounting principles as defined by 
the American Institute of Certified Public Accountants;
    (10) The term ``certificate'' means the certificate identified in 11 
U.S.C. 521(b)(1) that an approved agency shall provide to a client after 
the client completes counseling services;
    (11) The term ``client'' means an individual who both seeks and 
receives (or sought and received) counseling services from an approved 
agency;
    (12) The term ``counseling services'' means all counseling required 
by 11 U.S.C. 109(h) and 111, and this part including, without 
limitation, services that are typically of at least 60 minutes in 
duration and that shall at a minimum include:
    (i) Performing on behalf of, and providing to, each client a written 
analysis of that client's current financial condition, which analysis 
shall include a budget analysis, consideration of all alternatives to 
resolve a client's credit problems, discussion of the factors that 
caused such financial condition, and identification of all methods by 
which the client can develop a plan to respond to the financial problems 
without incurring negative amortization of debt; and
    (ii) Providing each client the opportunity to have the agency 
negotiate an alternative payment schedule with regard to each unsecured 
consumer debt under terms as set forth in 11 U.S.C. 502(k) or, if the 
client accepts this option and the agency is unable to provide this 
service, the agency shall refer the client to another approved agency in 
the appropriate federal judicial district that provides it;
    (13) The term ``counselor certification'' means certification of a 
counselor by an accrediting organization because the accrediting 
organization has determined the counselor meets or exceeds all the 
accrediting organization's standards for counseling services or related 
areas, such as personal finance, budgeting, or credit or debt 
management;
    (14) The term ``criminal background check'' means a report generated 
by a state law enforcement authority disclosing the entire state 
criminal history record, if any, of the counselor for whom the criminal 
background check is sought, for every state where the counselor has 
resided or worked during any part of the immediately preceding five 
years. If a criminal background check is not available for, or is not 
authorized by state law in, each of the states where the counselor has 
resided or worked during any part of the immediately preceding five 
years, the agency shall instead obtain at least every five years a sworn 
statement from each counselor attesting to whether the counselor has 
been convicted of a felony, or a crime involving fraud, dishonesty, or 
false statements;
    (15) The term ``debt repayment plan'' means any written document 
suggested, drafted, or reviewed by an approved agency that either 
proposes or implements any mechanism by which a client would make 
payments to any creditor or creditors if, during the time any such 
payments are being made, that creditor or those creditors would forbear 
from collecting or otherwise enforcing their claim or claims against the 
client; provided, however, that any such written document shall not 
constitute a debt repayment plan if the client would incur a negative 
amortization of debt under it;
    (16) The term ``Director'' means the person designated or acting as 
the Director of the Executive Office for United States Trustees;

[[Page 153]]

    (17) The term ``entity'' shall have the meaning given that term in 
11 U.S.C. 101(15);
    (18) The term ``fair share'' means payments by a creditor to an 
approved agency for administering a debt repayment plan;
    (19) The terms ``fee'' and ``fee policy'' each mean the aggregate of 
all fees, contributions, and payments an approved agency charges clients 
for providing counseling services; ``fee policy'' shall also mean the 
objective criteria the agency uses in determining whether to waive or 
reduce any fee, contribution, or payment;
    (20) The term ``final decision'' means the written determination 
issued by the Director based upon the review of the United States 
Trustee's decision either to deny an agency's application or to remove 
an agency from the approved list;
    (21) The term ``financial benefit'' means any interest equated with 
money or its equivalent, including, but not limited to, stocks, bonds, 
other investments, income, goods, services, or receivables;
    (22) The term ``governmental unit'' shall have the meaning given 
that term in 11 U.S.C. 101(27);
    (23) The term ``independent contractor'' means a person or entity 
who provides any goods or services to an approved agency other than as 
an employee and as to whom the approved agency does not:
    (i) Direct or control the means or methods of delivery of the goods 
or services being provided;
    (ii) Make financial decisions concerning the business aspects of the 
goods or services being provided; and
    (iii) Have any common employees;
    (24) The term ``languages offered'' means every language other than 
English in which an approved agency provides counseling services;
    (25) The term ``legal advice'' shall have the meaning given that 
term in 11 U.S.C. 110(e)(2);
    (26) The term ``limited English proficiency'' refers to individuals 
who:
    (i) Do not speak English as their primary language; and
    (ii) Have a limited ability to read, write, speak, or understand 
English;
    (27) The term ``material change'' means, alternatively, any change:
    (i) In the name, structure, principal contact, management, 
counselors, physical location, counseling services, fee policy, language 
services, or method of delivery of an approved agency; or
    (ii) That renders inapplicable, inaccurate, incomplete, or 
misleading any statement an agency or approved agency previously made:
    (A) In its application or related materials; or
    (B) To the United States Trustee;
    (28) The term ``method of delivery'' means one or more of the three 
methods by which an approved agency can provide some component of 
counseling services to its clients, including:
    (i) ``In person'' delivery, which applies when a client primarily 
receives counseling services at a physical location with a credit 
counselor physically present in that location, and with the credit 
counselor providing oral and/or written communication to the client at 
the facility;
    (ii) ``Telephone'' delivery, which applies when a client primarily 
receives counseling services by telephone; and
    (iii) ``Internet'' delivery, which applies when a client primarily 
receives counseling services through an Internet Web site;
    (29) The term ``nonprofit'' means, alternatively:
    (i) An entity validly organized as a not-for-profit entity under 
applicable state or federal law, if that entity operates as a not-for-
profit entity in full compliance with all applicable state and federal 
laws; or
    (ii) A qualifying governmental unit;
    (30) The term ``notice'' in Sec. 58.24 means the written 
communication from the United States Trustee to an agency that its 
application to become an approved agency has been denied or to an 
approved agency that it is being removed from the approved list;
    (31) The term ``potential client'' means an individual who seeks, 
but does not receive, counseling services from an approved agency.
    (32) The term ``qualifying government unit'' means any governmental 
unit that, were it not a governmental

[[Page 154]]

unit, would qualify for tax-exempt status under 26 U.S.C. 501(c)(3), or 
would qualify as a nonprofit entity under applicable state law;
    (33) The term ``referral fees'' means money or any other valuable 
consideration paid or transferred between an approved agency and another 
entity in return for that entity, directly or indirectly, identifying, 
referring, securing, or in any other way encouraging any client or 
potential client to receive counseling services from the approved 
agency; provided, however, that ``referral fees'' shall not include fees 
paid to the agency under a fair share agreement;
    (34) The term ``relative'' shall have the meaning given that term in 
11 U.S.C. 101(45);
    (35) The term ``request for review'' means the written communication 
from an agency to the Director seeking review of the United States 
Trustee's decision either to deny the agency's application or to remove 
the agency from the approved list;
    (36) The term ``state'' means state, commonwealth, district, or 
territory of the United States;
    (37) The term ``tax waiver'' means a document sufficient to permit 
the Internal Revenue Service to release directly to the United States 
Trustee information about an agency;
    (38) The term ``trust account'' means an account with a federally 
insured depository institution that is separated and segregated from 
operating accounts, which an approved agency shall maintain in its 
fiduciary capacity for the purpose of receiving and holding client funds 
entrusted to the approved agency; and
    (39) The term ``United States Trustee'' means, alternatively:
    (i) The Executive Office for United States Trustees;
    (ii) A United States Trustee appointed under 28 U.S.C. 581;
    (iii) A person acting as a United States Trustee;
    (iv) An employee of a United States Trustee; or
    (v) Any other entity authorized by the Attorney General to act on 
behalf of the United States under this part.

[78 FR 16150, Mar. 14, 2013]



Sec. 58.13  Procedures all agencies shall follow when applying to 
become approved agencies.

    (a) An agency applying to become an approved agency shall obtain an 
application, including appendices, from the United States Trustee.
    (b) The agency shall complete the application, including its 
appendices, and attach the required supporting documents requested in 
the application.
    (c) The agency shall submit the original of the completed 
application, including completed appendices and the required supporting 
documents, to the United States Trustee at the address specified on the 
application form.
    (d) The application shall be signed by an agency representative who 
is authorized under applicable law to sign on behalf of the applying 
agency.
    (e) The signed application, completed appendices, and required 
supporting documents shall be accompanied by a writing, signed by the 
signatory of the application and executed on behalf of the signatory and 
the agency, certifying the application does not:
    (1) Falsify, conceal, or cover up by any trick, scheme or device a 
material fact;
    (2) Make any materially false, fictitious, or fraudulent statement 
or representation; or
    (3) Make or use any false writing or document knowing the same to 
contain any materially false, fictitious, or fraudulent statement or 
entry.
    (f) The United States Trustee shall not consider an application, and 
it may be returned if:
    (1) It is incomplete;
    (2) It fails to include the completed appendices or all of the 
required supporting documents; or
    (3) It is not accompanied by the certification identified in 
paragraph (e) of this section.
    (g) The United States Trustee shall not consider an application on 
behalf of an agency, and it shall be returned if:
    (1) It is submitted by any entity other than the agency; or
    (2) Either the application or the accompanying certification is 
executed by any entity other than an agency representative who is 
authorized under applicable law to sign on behalf of the agency.

[[Page 155]]

    (h) By the act of submitting an application, an agency consents to 
the release and disclosure of its name, contact information, and non-
confidential business information relating to the services it provides 
on the approved list should its application be approved.

[78 FR 16150, Mar. 14, 2013]



Sec. 58.14  Automatic expiration of agencies' status as approved
agencies.

    (a) Except as provided in Sec. 58.15(c), if an approved agency was 
not an approved agency immediately prior to the date it last obtained 
approval to be an approved agency, such an approved agency shall cease 
to be an approved agency six months from the date on which it was 
approved unless the United States Trustee approves an additional one 
year period.
    (b) Except as provided in Sec. 58.15(c), if an approved agency was 
an approved agency immediately prior to the date it last obtained 
approval to be an approved agency, such an agency shall cease to be an 
approved agency one year from the date on which it was last approved to 
be an approved agency unless the United States Trustee approves an 
additional one year period.

[78 FR 16150, Mar. 14, 2013]



Sec. 58.15  Procedures all approved agencies shall follow when applying
for approval to act as an approved agency for an additional one year
period.

    (a) To be considered for approval to act as an approved agency for 
an additional one year term, an approved agency shall reapply by 
complying with all the requirements specified for agencies under 11 
U.S.C. 109(h) and 111, and under this part.
    (b) Such an agency shall apply no later than 45 days prior to the 
expiration of its six month probationary period or annual period to be 
considered for approval for an additional one year period, unless a 
written extension is granted by the United States Trustee.
    (c) An approved agency that has complied with all prerequisites for 
applying to act as an approved agency for an additional one year period 
may continue to operate as an approved agency while its application is 
under review by the United States Trustee, so long as either the 
application for an additional one year period is timely submitted, or an 
agency receives a written extension from the United States Trustee.

[78 FR 16152, Mar. 14, 2013]



Sec. 58.16  Renewal for an additional one year period.

    If an approved agency's application for an additional one year 
period is approved, such renewal period shall begin to run from the 
later of:
    (a) The day after the expiration date of the immediately preceding 
approval period; or
    (b) The actual date of approval of such renewal by the United States 
Trustee.

[78 FR 16152, Mar. 14, 2013]



Sec. 58.17  Mandatory duty of approved agencies to notify United States
Trustees of material changes.

    (a) An approved agency shall immediately notify the United States 
Trustee in writing of any material change.
    (b) An approved agency shall immediately notify the United States 
Trustee in writing of any failure by the approved agency to comply with 
any standard or requirement specified in 11 U.S.C. 109(h) or 111, this 
part, or the terms under which the United States Trustee approved it to 
act as an approved agency.
    (c) An approved agency shall immediately notify the United States 
Trustee in writing of any of the following events:
    (1) Notification by the Internal Revenue Service or by a state or 
local taxing authority that the approved agency has been selected for 
audit or examination regarding its tax-exempt status, or any 
notification of a compliance check by the Internal Revenue Service or by 
a state or local taxing authority;
    (2) Revocation or termination of the approved agency's tax-exempt 
status by any governmental unit or by any judicial officer;
    (3) Cessation of business by the approved agency or by any office of 
the agency, or withdrawal from any federal judicial district(s) where 
the approved agency is approved;
    (4) Any investigation of, or any administrative or judicial action 
brought

[[Page 156]]

against, the approved agency by any governmental unit;
    (5) Termination or cancellation of any surety bond or fidelity 
insurance;
    (6) Any administrative or judicial action brought by any entity that 
seeks recovery against a surety bond or fidelity insurance;
    (7) Any action by a governmental unit or a court to suspend or 
revoke the approved agency's articles of incorporation, or any license 
held by the approved agency, or any authorization necessary to engage in 
business;
    (8) A suspension, or action to suspend, any accreditation held by 
the approved agency, or any withdrawal by the approved agency of any 
application for accreditation, or any denial of any application of the 
approved agency for accreditation;
    (9) A change in the approved agency's nonprofit status under any 
applicable law;
    (10) Any change in the banks or financial institutions used by the 
agency; and
    (11) [Reserved]
    (d) An agency shall notify the United States Trustee in writing if 
any of the changes identified in paragraphs (a) through (c) of this 
section occur while its application to become an approved agency is 
pending before the United States Trustee.
    (e) An approved agency whose name or other information appears 
incorrectly on the approved list shall immediately submit a written 
request to the United States Trustee asking that the information be 
corrected.

[78 FR 16152, Mar. 14, 2013]



Sec. 58.18  Mandatory duty of approved agencies to obtain prior 
consent of the United States Trustee before taking certain actions.

    (a) By accepting the designation to act as an approved agency, an 
agency agrees to obtain approval from the United States Trustee, prior 
to making any of the following changes:
    (1) Cancellation or change in the amount of the surety bond or 
employee fidelity bond or insurance;
    (2) The engagement of an independent contractor to provide 
counseling services or to have access to, possession of, or control over 
client funds;
    (3) Any increase in the fees, contributions, or payments received 
from clients for counseling services or a change in the agency's fee 
policy;
    (4) Expansion into additional federal judicial districts;
    (5) Any changes to the method of delivery the approved agency 
employs to provide counseling services; or
    (6) Any changes in the approved agency's counseling services.
    (b) An agency applying to become an approved agency shall also 
obtain approval from the United States Trustee before taking any action 
specified in paragraph (a) of this section. It shall do so by submitting 
an amended application. The agency's amended application shall be 
accompanied by a contemporaneously executed writing, signed by the 
signatory of the application, that makes the certifications specified in 
Sec. 58.13(e).
    (c) An approved agency shall not transfer or assign its United 
States Trustee approval to act as an approved agency.

[78 FR 16153, Mar. 14, 2013]



Sec. 58.19  Continuing requirements for becoming and remaining 
approved agencies.

    (a) To become an approved agency, an agency must affirmatively 
establish, to the satisfaction of the United States Trustee, that the 
agency at the time of approval:
    (1) Satisfies every requirement of this part; and
    (2) Provides adequate counseling to its clients.
    (b) To remain an approved agency, an approved agency shall 
affirmatively establish, to the satisfaction of the United States 
Trustee, that the approved agency:
    (1) Has satisfied every requirement of this part;
    (2) Has provided adequate counseling to its clients; and
    (3) Would continue to satisfy both paragraphs (b)(1) and (2) of this 
section in the future.

[78 FR 16153, Mar. 14, 2013]

[[Page 157]]



Sec. 58.20  Minimum qualifications agencies shall meet to become
and remain approved agencies.

    To meet the minimum qualifications set forth in Sec. 58.19, and in 
addition to the other requirements set forth in this part, agencies and 
approved agencies shall comply with paragraphs (a) through (p) of this 
section on a continuing basis:
    (a) Compliance with all laws. An agency shall comply with all 
applicable laws and regulations of the United States and each state in 
which the agency provides counseling services including, without 
limitation, all laws governing licensing and registration.
    (b) Prohibition on legal advice. An agency shall not provide legal 
advice.
    (c) Structure and organization. An agency shall:
    (1) Be lawfully organized and operated as a nonprofit entity; and
    (2) Have a board of directors, the majority of which:
    (i) Are not relatives;
    (ii) Are not employed by such agency; and
    (iii) Will not directly or indirectly benefit financially from the 
outcome of the counseling services provided by such agency.
    (d) Ethical standards. An agency shall:
    (1) Not engage in any conduct or transaction, other than counseling 
services, that generates a direct or indirect financial benefit for any 
member of the board of directors or trustees, officer, supervisor, or 
any relative thereof;
    (2) Ensure no member of the board of directors or trustees, officer, 
or supervisor receives any commissions, incentives, bonuses, or benefits 
(monetary or non-monetary) of any kind that are directly or indirectly 
based on the financial or legal decisions any client makes after 
requesting counseling services;
    (3) Ensure no member of the board of directors or trustees, officer 
or supervisor is a relative of an employee of the United States Trustee, 
a trustee appointed under 28 U.S.C. 586(a)(1) or (b) for any federal 
judicial district where the agency is providing or is applying to 
provide counseling services, a federal judge in any federal judicial 
district where the agency is providing or is applying to provide 
counseling services, a federal court employee in any federal judicial 
district where the agency is providing or is applying to provide 
counseling services, or a certified public accountant that audits the 
agency's trust account;
    (4) Not enter into any referral agreement or receive any financial 
benefit that involves the agency paying to or receiving from any entity 
or person referral fees for the referral of clients to or by the agency, 
except payments under a fair share agreement;
    (5) Not enter into agreements involving counseling services that 
create a conflict of interest; and
    (6) Not provide counseling services to a client with whom the agency 
has a lender-borrower relationship.
    (e) Use of credit counselors. An agency shall have a credit 
counselor provide the counseling services to each of the agency's 
clients. The credit counselor shall interact with the client regarding 
the accuracy of the information obtained from the client and the 
alternatives available to the client for dealing with his or her current 
financial situation, including the plan developed to address such 
financial situation.
    (f) Credit counselor training, certification and experience. An 
agency shall:
    (1) Use only counselors who possess adequate experience providing 
credit counseling, which shall mean that each counselor either:
    (i) Holds a counselor certification and who has complied with all 
continuing education requirements necessary to maintain his or her 
counselor certification; or
    (ii) Has successfully completed a course of study and worked a 
minimum of six months in a related area such as personal finance, 
budgeting, or credit or debt management. A course of study shall include 
training in counseling skills, personal finance, budgeting, or credit or 
debt management. A counselor shall also receive annual continuing 
education in the areas of counseling skills, personal finance, 
budgeting, or credit or debt management;
    (2) Demonstrate adequate experience, background, and quality in 
providing credit counseling, which shall mean that, at a minimum, the 
agency shall either:

[[Page 158]]

    (i) Have experience in providing credit counseling for the two years 
immediately preceding the relevant application date; or
    (ii) For each office providing counseling services, employ at least 
one supervisor who has met the qualifications in paragraph (f)(2)(i) of 
this section for no fewer than two of the five years preceding the 
relevant application date;
    (3) If offering any component of counseling services by a telephone 
or Internet method of delivery, use only counselors who, in addition to 
all other requirements, demonstrate sufficient experience and 
proficiency in providing such counseling services by those methods of 
delivery, including proficiency in employing verification procedures to 
ensure the person receiving the counseling services is the client, and 
to determine whether the client has completely received counseling 
services.
    (g) No variation in services. An agency shall ensure that the type 
and quality of services do not vary based on a client's decision whether 
to obtain a certificate in lieu of other options that may or may not be 
suggested by the agency.
    (h) Use of the telephone and the Internet to deliver a component of 
client services. An agency shall:
    (1) Not provide any client diminished counseling services because 
the client receives any portion of those counseling services by 
telephone or Internet;
    (2) Confirm the identity of the client before receiving counseling 
services by telephone or Internet by:
    (i) Obtaining one or more unique personal identifiers from the 
client and assigning an individual access code, user ID, or password at 
the time of enrollment; and
    (ii) Requiring the client to provide the appropriate access code, 
user ID, or password, and also one or more of the unique personal 
identifiers during the course of delivery of the counseling services.
    (i) Services to hearing and hearing-impaired clients and potential 
clients. An agency shall furnish toll-free telephone numbers for both 
hearing and hearing-impaired clients and potential clients whenever 
telephone communication is required. The agency shall provide telephone 
amplification, sign language services, or other communication methods 
for hearing-impaired clients or potential clients.
    (j) [Reserved]
    (k) Services to clients and potential clients with special needs. An 
agency that provides any portion of its counseling in person shall 
comply with all federal, state and local laws governing facility 
accessibility. An agency shall also provide or arrange for communication 
assistance for clients or potential clients with special needs who have 
difficulty making their service needs known.
    (l) Mandatory disclosures to clients and potential clients. Prior to 
providing any information to or obtaining any information from a client 
or potential client, and prior to rendering any counseling service, an 
agency shall disclose:
    (1) The agency's fee policy, including any fees associated with 
generation of the certificate;
    (2) The agency's policies enabling clients to obtain counseling 
services for free or at reduced rates based upon the client's lack of 
ability to pay. To the extent an agency publishes information concerning 
its fees on the Internet, such fee information must include the agency's 
policies enabling clients to obtain counseling for free or at reduced 
rates based upon the client's lack of ability to pay;
    (3) The agency's policy to provide free bilingual counseling 
services or professional interpreter assistance to any limited English 
proficient client;
    (4) The agency's funding sources;
    (5) The counselors' qualifications;
    (6) The potential impacts on credit reports of all alternatives the 
agency may discuss with the client;
    (7) The agency's policy prohibiting it from paying or receiving 
referral fees for the referral of clients, except under a fair share 
agreement;
    (8) The agency's obligation to provide a certificate to the client 
promptly upon the completion of counseling services;
    (9) A statement that the client has the opportunity to negotiate an 
alternative payment schedule with regard to each unsecured consumer debt 
under terms as set forth in 11 U.S.C. 502(k), and a statement whether or 
not the

[[Page 159]]

agency will provide this service. If the agency does not provide this 
service, it shall disclose that it may refer the client to another 
approved agency, and shall disclose that clients may incur additional 
fees in connection with such a referral;
    (10) The fact that the agency might disclose client information to 
the United States Trustee in connection with the United States Trustee's 
oversight of the agency, or during the investigation of complaints, 
during on-site visits, or during quality of service reviews;
    (11) The fact that the United States Trustee has reviewed only the 
agency's credit counseling services (and, if applicable, its services as 
a provider of a personal financial management instructional course 
pursuant to 11 U.S.C. 111(d)), and the fact that the United States 
Trustee has neither reviewed nor approved any other services the agency 
provides to clients; and
    (12) The fact that a client will receive a certificate only if the 
client completes counseling services.
    (m) Complaint Procedures. An agency shall employ complaint 
procedures that adequately respond to clients' concerns.
    (n) Background checks. An agency shall:
    (1) Conduct a criminal background check at least every five years 
for each person providing credit counseling, and
    (2) Not employ anyone as a counselor who has been convicted of any 
felony, or any crime involving fraud, dishonesty, or false statements, 
unless the United States Trustee determines circumstances warrant a 
waiver of this prohibition against employment.
    (o) Agency records. An agency shall prepare and retain records that 
enable the United States Trustee to evaluate whether the agency is 
providing adequate counseling and acting in compliance with all 
applicable laws and this part. All records, including documents bearing 
original signatures, shall be maintained in either hard copy form or 
electronically in a format widely available commercially. Records that 
the agency shall prepare and retain for a minimum of two years, and 
permit review by the United States Trustee upon request, shall include:
    (1) Upon the filing of an application for probationary approval, all 
information requested by the United States Trustee as an estimate, 
projected to the end of the probationary period, in the form requested 
by the United States Trustee;
    (2) After probationary or annual approval, and for so long as the 
agency remains on the approved list, semi-annual reports of historical 
data (for the periods ending June 30 and December 31 of each year), of 
the type and in the form requested by the United States Trustee; these 
reports shall be submitted within 30 days of the end of the applicable 
periods specified in this paragraph;
    (3) Annual audited financial statements, including the audited 
balance sheet, statement of income and retained earnings, and statement 
of changes in financial condition;
    (4) Books, accounts, and records to provide a clear and readily 
understandable record of all business conducted by the agency, 
including, without limitation, copies of all correspondence with or on 
behalf of the client, including the contract between the agency and the 
client and any amendments thereto;
    (5) Records concerning the delivery of services to clients and 
potential clients with limited English proficiency and special needs, 
and to hearing-impaired clients and potential clients, including 
records:
    (i) Of the number of such clients and potential clients, and the 
methods of delivery used with respect to such clients and potential 
clients;
    (ii) Of which languages are offered or requested and the type of 
language support used or requested by such clients or potential clients 
(e.g., bilingual instructor, in-person or telephone interpreter, 
translated web instruction);
    (iii) Detailing the agency's provision of services to such clients 
and potential clients; and
    (iv) Supporting any justification if the agency did not provide 
services to such potential clients, including the number of potential 
clients not served, the languages involved, and the number of referrals 
provided;
    (6) Records concerning the delivery of counseling services to 
clients for free

[[Page 160]]

or at reduced rates based upon the client's lack of ability to pay, 
including records of the number of clients for whom the agency waived 
all of its fees under Sec. 58.21(b)(1)(i), the number of clients for 
whom the agency waived all or part of its fees under 
Sec. 58.21(b)(1)(ii), and the number of clients for whom the agency 
voluntarily waived all or part of its fees under Sec. 58.21(c);
    (7) Records of complaints and the agency's responses thereto;
    (8) Records that enable the agency to verify the authenticity of 
certificates their clients file in bankruptcy cases; and
    (9) Records that enable the agency to issue replacement 
certificates.
    (p) Additional minimum requirements. An agency shall:
    (1) Provide records to the United States Trustee upon request;
    (2) Cooperate with the United States Trustee by allowing scheduled 
and unscheduled on-site visits, complaint investigations, or other 
reviews of the agency's qualifications to be an approved agency;
    (3) Cooperate with the United States Trustee by promptly responding 
to questions or inquiries from the United States Trustee;
    (4) Assist the United States Trustee in identifying and 
investigating suspected fraud and abuse by any party participating in 
the credit counseling or bankruptcy process;
    (5) Not exclude any client or creditor from a debt repayment plan 
because the creditor declines to make a fair share contribution to the 
agency;
    (6) Take no action that would limit, inhibit, or prevent a client 
from bringing an action or claim for damages against an agency, as 
provided in 11 U.S.C. 111(g)(2);
    (7) Refer clients and prospective clients for counseling services 
only to agencies that have been approved by a United States Trustee to 
provide such services;
    (8) Comply with the United States Trustee's directions on approved 
advertising, including without limitation those set forth in Appendix A 
to the application;
    (9) Not disclose or provide to a credit reporting agency any 
information concerning whether a client has received or sought 
instruction concerning credit counseling or personal financial 
management from an agency;
    (10) Not expose the client to commercial advertising as part of or 
during the client's receipt of any counseling services, and never market 
or sell financial products or services during the counseling session 
provided, however, this provision does not prohibit an agency from 
generally discussing all available financial products and services;
    (11) Not sell information about any client or potential client to 
any third party without the client or potential client's prior written 
permission;
    (12) If the agency is tax-exempt, submit a completed and signed tax 
waiver permitting and directing the Internal Revenue Service to provide 
the United States Trustee with access to the Internal Revenue Service's 
files relating to the agency;
    (13) Comply with the requirements elsewhere in this part concerning 
fees for credit counseling services and fee waiver policies; and
    (14) Comply with the requirements elsewhere in this part concerning 
certificates.

[78 FR 16153, Mar. 14, 2013]



Sec. 58.21  Minimum requirements to become and remain approved 
agencies relating to fees.

    (a) If a fee for, or relating to, credit counseling services is 
charged by an agency, such fee shall be reasonable:
    (1) A fee of $50 or less for credit counseling services is presumed 
to be reasonable and an agency need not obtain prior approval of the 
United States Trustee to charge such a fee;
    (2) A fee exceeding $50 for credit counseling services is not 
presumed to be reasonable and an agency must obtain prior approval from 
the United States Trustee to charge such a fee. The agency bears the 
burden of establishing that its proposed fee is reasonable. At a 
minimum, the agency must demonstrate that its cost for delivering such 
services justify the fee. An agency that previously received permission 
to charge a higher fee need not reapply for permission to charge that 
fee during the agency's annual review. Any new requests for permission 
to charge

[[Page 161]]

more than previously approved, however, must be submitted to EOUST for 
approval; and
    (3) The United States Trustee shall review the amount of the fee set 
forth in paragraphs (a)(1) and (2) of this section one year after the 
effective date of this part and then periodically, but not less 
frequently than every four years, to determine the reasonableness of the 
fee. Fee amounts and any revisions thereto shall be determined by 
current costs, using a method of analysis consistent with widely 
accepted accounting principles and practices, and calculated in 
accordance with the provisions of federal law as applicable. Fee amounts 
and any revisions thereto shall be published in the Federal Register.
    (b)(1) An agency shall waive the fee in whole or in part whenever a 
client demonstrates a lack of ability to pay the fee.
    (i) A client presumptively lacks the ability to pay the fee if the 
client's household current income is less than 150 percent of the 
poverty guidelines updated periodically in the Federal Register by the 
U.S. Department of Health and Human Services under the authority of 42 
U.S.C. 9902(2), as adjusted from time to time, for a household or family 
of the size involved in the fee determination.
    (ii) The presumption shall be rebutted, and the agency may charge 
the client a reduced fee, if the agency determines, based on income 
information the client submits in connection with counseling services, 
that the client is able to pay the fee in a reduced amount. Nothing in 
this section requires an agency to charge a fee to clients whose 
household income exceeds the amount set forth in paragraph (b)(1)(i) of 
this section, or who are able to demonstrate ability to pay based on 
income as described in this section.
    (iii) An agency shall disclose its fee policy, including the 
criteria on which it relies in determining a client's eligibility for 
reduced fees, and the agency's policy for collecting fees pursuant to 
paragraph (b)(1)(ii) of this section, in accordance with 
Sec. 58.20(l)(2).
    (2) The United States Trustee shall review the basis for the 
mandatory fee waiver policy set forth in paragraph (b)(1) of this 
section one year after the effective date of this part and then 
periodically, but not less frequently than every four years, to 
determine the impact of that fee waiver policy on clients and agencies. 
Any revisions to the mandatory fee waiver policy set forth in paragraph 
(b)(1) of this section shall be published in the Federal Register.
    (c) Notwithstanding the requirements of paragraph (b) of this 
section, an agency may also waive fees based upon other considerations, 
including, but not limited to:
    (1) The client's net worth;
    (2) The percentage of the client's income from government assistance 
programs;
    (3) Whether the client is receiving pro bono legal services in 
connection with a filed or anticipated bankruptcy case; or
    (4) If the combined current monthly income, as defined in 11 U.S.C. 
101(10A), of the client and his or her spouse, when multiplied times 
twelve, is equal to or less than the amounts set forth in 11 U.S.C. 
707(b)(7).
    (d) An agency shall not require a client to purchase counseling 
services in connection with the purchase of any other service offered by 
the agency.

[78 FR 16153, Mar. 14, 2013]



Sec. 58.22  Minimum requirements to become and remain approved 
agencies relating to certificates.

    (a) An approved agency shall send a certificate only to the client 
who took and completed the counseling services, except that an approved 
agency shall instead send a certificate to the attorney of a client who 
took and completed counseling services if the client specifically 
directs the agency to do so. In the case of Internet counseling and 
automated telephone counseling, counseling is not complete until the 
client has engaged in interaction with a counselor, whether by 
electronic mail, live chat, or telephone, following the automated 
portion of the counseling session.
    (b) An approved agency shall attach to the certificate the client's 
debt repayment plan (if any).
    (c) An approved agency shall send a certificate to a client no later 
than one business day after the client completed

[[Page 162]]

counseling services. If a client has completed counseling services, an 
agency may not withhold certificate issuance for any reason. An agency 
may not consider counseling services incomplete based solely on the 
client's failure to pay the fee.
    (d) If an approved agency provides other financial counseling in 
addition to counseling services, and such other financial counseling 
satisfies the requirements for counseling services specified in 11 
U.S.C. 109(h) and 111, and this part, a person completing such other 
financial counseling is a client and the approved agency shall send a 
certificate to the client no later than one business day after the 
client's request. The approved agency shall not charge the client any 
additional fee except any separate fee charged for the issuance of the 
certificate, in accordance with Sec. 58.20(l)(1).
    (e) An approved agency shall issue certificates only in the form 
approved by the United States Trustee, and shall generate the form using 
the Certificate Generating System maintained by the United States 
Trustee, except under exigent circumstances with notice to the United 
States Trustee.
    (f) An approved agency shall have sufficient computer capabilities 
to issue certificates from the United States Trustee's Certificate 
Generating System.
    (g) An approved agency shall issue a certificate to each client who 
completes counseling services. Spouses receiving counseling services 
jointly shall each receive a certificate.
    (h) An approved agency shall issue a replacement certificate to a 
client who requests one.
    (i) An approved agency shall not file certificates with the court.
    (j) Only an authorized officer, supervisor or employee of an 
approved agency shall issue a certificate, and an approved agency shall 
not transfer or delegate authority to issue certificates to any other 
entity.
    (k) An approved agency shall implement internal controls sufficient 
to prevent unauthorized issuance of certificates.
    (l) An approved agency shall ensure the signature affixed to a 
certificate is that of an officer, supervisor or employee authorized to 
issue the certificate, in accordance with paragraph (j) of this section, 
which signature shall be either:
    (1) An original signature; or
    (2) In a format approved for electronic filing with the court (most 
typically in the form/s/name of counselor).
    (m) An approved agency shall affix to the certificate the exact name 
under which the approved agency is incorporated or organized.
    (n) An approved agency shall identify on the certificate:
    (1) The specific federal judicial district requested by the client;
    (2) Whether counseling services were provided in person, by 
telephone or via the Internet;
    (3) The date and time (including the time zone) on which counseling 
services were completed by the client; and
    (4) The name of the counselor that provided the counseling services.
    (o) An approved agency shall affix the client's full, accurate name 
to the certificate. If the counseling services are obtained by a client 
through a duly authorized representative, the certificate also shall set 
forth the name of the legal representative and legal capacity of that 
representative.
    (p) If an individual enters into a debt repayment plan after 
completing credit counseling, upon the client's request after the 
completion or termination of the debt repayment plan, the approved 
agency shall:
    (1) Provide such additional credit counseling as is necessary at 
such time to comply with the requirements specified in 11 U.S.C. 109(h) 
and 111, and this part, including reviewing the client's current 
financial condition and counseling the client regarding the alternatives 
to resolve the client's credit problems;
    (2) Send a certificate to the client no later than one business day 
after the client completed such additional counseling; and
    (3) Not charge the client any additional fee except any separate fee 
charged for the issuance of the certificate, in accordance with 
Sec. 58.20(l)(1).

[78 FR 16153, Mar. 14, 2013]

[[Page 163]]



Sec. 58.23  Minimum financial requirements and bonding and insurance
requirements for agencies offering debt repayment plans.

    If an agency offers or has offered debt repayment plans, an agency 
shall possess adequate financial resources to provide continuing support 
services for such plans over the life of any debt repayment plan, and 
provide for the safekeeping of client funds, which shall include:
    (a) Depositing all client funds into a deposit account, held in 
trust, at a federally insured depository institution. Each such trust 
account shall be established in a fiduciary capacity and shall be in 
full compliance with federal law such that each client's funds shall be 
protected by federal deposit insurance up to the maximum amount 
allowable by federal law.
    (b) Keeping and maintaining books, accounts, and records to provide 
a clear and readily understandable record of all business conducted by 
the agency, including without limitation, all of the following:
    (1) Separate files for each client's account that include copies of 
all correspondence with or on behalf of the client, including:
    (i) All agreements with all entities, including the contract between 
the agency and the client and any amendments thereto;
    (ii) The analysis of the client's budget;
    (iii) Correspondence between the agency and the client's creditors;
    (iv) The notice given to creditors of any debt repayment plan; and
    (v) All written statements of account provided to the client and 
subsidiary ledgers concerning any debt repayment plan;
    (2) A trust account general ledger reflecting all deposits to and 
disbursements from all trust accounts, which shall be kept current at 
all times;
    (3) A reconciliation of the trust accounts, prepared at least once a 
month; and
    (4) An operating account general ledger reflecting all of the 
agency's financial transactions involving the agency's operating 
account, which shall be kept current at least on a monthly basis.
    (c) Allowing an independent certified public accounting firm to 
audit the trust accounts annually in accordance with generally accepted 
accounting principles as defined by the American Institute of Certified 
Public Accountants and any Statement of Work prepared by the United 
States Trustee, which audit shall include:
    (1) A report of all trust account activity including:
    (i) The balance of each trust account at the beginning and end of 
the period;
    (ii) The total of all receipts from clients and disbursements to 
creditors during the reporting period;
    (iii) The total of all disbursements to the agency; and
    (iv) The reconciliation of each trust account;
    (2) A report of all exceptions (e.g., discrepancies, irregularities, 
and errors) found, regardless of materiality; and
    (3) An evaluation of the agency's trust account internal controls 
and its computer operations to determine whether it provides a 
reasonable assurance that the trust funds are safeguarded against loss 
from unauthorized use or disposition.
    (d) Obtaining a surety bond payable to the United States, as 
follows:
    (1) Subject to the minimum amount of $5,000, the amount of such 
surety bond shall be the lesser of:
    (i) Two percent of the agency's disbursements made during the twelve 
months immediately prior to submission of the application from all trust 
accounts attributable to the federal judicial districts (or, if not 
feasible to determine, the states) in which the agency seeks approval 
from the United States Trustee; or
    (ii) Equal to the average daily balance maintained for the six 
months immediately prior to submission of the application in all trust 
accounts attributable to the federal judicial districts (or, if not 
feasible to determine, the states) in which the agency seeks approval 
from the United States Trustee;
    (2) The agency may receive an offset or credit against the surety 
bond amount determined under paragraph (d)(1) of this section if:
    (i) The agency has previously obtained a surety bond, or similar 
cash,

[[Page 164]]

securities, insurance (other than employee fidelity insurance), or 
letter of credit in compliance with the licensing requirements of the 
state in which the agency seeks approval from the United States Trustee;
    (ii) Such surety bond, or similar cash, securities, insurance (other 
than employee fidelity insurance), or letter of credit provides 
protection for the clients of the agency;
    (iii) Such surety bond, or similar cash, securities, insurance 
(other than employee fidelity insurance), or letter of credit, is 
written in favor of the state or the appropriate state agency; and
    (iv) The amount of the offset or credit shall be the lesser of:
    (A) The principal amount of such surety bond, or similar cash, 
securities, insurance (other than employee fidelity insurance), or 
letter of credit; or
    (B) The surety bond amount determined under paragraph (d)(1) of this 
section;
    (3) If an agency has contracted with an independent contractor to 
administer any part of its debt repayment plans:
    (i) Except as provided in paragraphs (d)(3)(ii) and (d)(3)(iii) of 
this section, the independent contractor shall:
    (A) Be an approved agency; or
    (B) If the independent contractor is not an approved agency, then 
the independent contractor shall:
    (1) Be specifically covered under the agency's surety bond required 
under paragraph (d)(1) of this section; or
    (2) Have a surety bond that meets the requirements of paragraph 
(d)(1) of this section; and
    (3) Agree in writing to allow the United States Trustee to audit the 
independent contractor's trust accounts for the debt repayment plans 
administered on behalf of the agency and to review the independent 
contractor's internal controls and administrative procedures;
    (ii) If the independent contractor holds funds for transmission for 
five days or less, then the amount of the required surety bond under 
paragraph (d)(3)(i)(B) of this section shall be $500,000;
    (iii) If the independent contractor performs only electronic fund 
transfers on the agency's behalf, then the independent contractor need 
not satisfy the requirements of paragraph (d)(3)(i) of this section 
during such time as the independent contractor is authorized by the 
National Automated Clearing House Association to participate in the 
Automated Clearing House system.
    (e) Obtaining either adequate employee bonding or fidelity 
insurance, as follows:
    (1) Subject to the minimum amount set forth below, the amount of 
such bonding or fidelity insurance shall be 50 percent of the surety 
bond amount calculated under paragraph (d)(1) of this section, prior to 
any offset or credit that the agency may receive under paragraph (d)(2) 
of this section; provided, however, that at a minimum, the employee bond 
or fidelity insurance must be $5,000;
    (2) An agency may receive an offset or credit against the employee 
bond or fidelity insurance amount determined under paragraph (e)(1) of 
this section if:
    (i) The agency has previously obtained an employee bond or fidelity 
insurance in compliance with the requirements of a state in which the 
agency seeks approval from the United States Trustee; and
    (ii) The deductible does not exceed a reasonable amount considering 
the financial resources of the agency; and
    (iii) The amount of the offset or credit shall be the lesser of:
    (A) The principal amount of such employee bond or fidelity 
insurance; or
    (B) The employee bond or fidelity insurance amount determined under 
paragraph (e)(1) of this section.
    (f) An agency that ceases to offer debt repayment plans to 
individuals who receive counseling from such agency pursuant to 11 
U.S.C. 109(h) shall, concerning any debt repayment plans it services 
that remain in existence with respect to such individuals as of the date 
it ceases to offer debt repayment plans to new clients, continue to 
comply with all of the requirements of this section.
    (1) The agency may seek a waiver of the bonding and insurance 
requirements set forth in paragraphs (d) and (e) of this section if:
    (i) The agency has in effect, as of the date it ceases to offer debt 
repayment

[[Page 165]]

plans, a written agreement to transfer all such debt repayment plans to 
another approved agency for servicing, provided that:
    (A) Transfers to another approved agency pursuant to such agreements 
must be completed within 60 days of the date the agency ceases to offer 
debt repayment plans to individuals who receive counseling from such 
agency pursuant to 11 U.S.C. Sec. 109(h); and
    (B) The agency provides written notice to clients whose debt 
repayment plans it intends to transfer within the time described in 
paragraph (f)(1)(i)(A) of this section, identifying the approved agency 
to which the clients' plans will be transferred, any fees associated 
with servicing by the approved agency, and any fees associated with the 
transfer; or
    (ii) In the reasonable determination of the United States Trustee, 
taking into account the facts and circumstances surrounding the agency's 
business and the terms of the bond, compliance with the bonding and 
insurance requirements set forth in paragraphs (d) and (e) of this 
section would impose an undue hardship on the agency.

[78 FR 16153, Mar. 14, 2013]



Sec. 58.24  Procedures for obtaining final agency action on 
United States Trustees' decisions to deny agencies' applications 
and to remove approved agencies from the approved list.

    (a) The United States Trustee shall remove an approved agency from 
the approved list whenever an approved agency requests its removal in 
writing.
    (b) The United States Trustee may issue a decision to remove an 
approved agency from the approved list, and thereby terminate the 
approved agency's authorization to provide counseling services, at any 
time.
    (c) The United States Trustee may issue a decision to deny an 
agency's application or to remove an agency from the approved list 
whenever the United States Trustee determines that the agency has failed 
to comply with the standards or requirements specified in 11 U.S.C. 
109(h) or 111, this part, or the terms under which the United States 
Trustee designated it to act as an approved agency, including, but not 
limited to, finding any of the following:
    (1) The agency is not employing adequate procedures for safekeeping 
of client funds or paying client funds, which could result in a loss to 
a client;
    (2) The agency's surety bond has been canceled;
    (3) Any entity has revoked the agency's nonprofit status, even if 
that revocation is subject to further administrative or judicial 
litigation, review or appeal;
    (4) Any entity has suspended or revoked the agency's license to do 
business in any jurisdiction; or
    (5) Any United States district court has removed the agency under 11 
U.S.C. Sec. 111(e).
    (d) If the Internal Revenue Service revokes an agency's tax exempt 
status, the United States Trustee shall promptly commence an 
investigation to determine whether any of the factors set forth in 
paragraphs (c)(1) through (5) of this section exist.
    (e) The United States Trustee shall provide to the agency in writing 
a notice of any decision either to:
    (1) Deny the agency's application; or
    (2) Remove the agency from the approved list.
    (f) The notice shall state the reason(s) for the decision and shall 
reference any documents or communications relied upon in reaching the 
denial or removal decision. To the extent authorized by law, the United 
States Trustee shall provide to the agency copies of any such documents 
that were not supplied to the United States Trustee by the agency. The 
notice shall be sent to the agency by overnight courier, for delivery 
the next business day.
    (g) Except as provided in paragraph (i) of this section, the notice 
shall advise the agency that the denial or removal decision shall become 
final agency action, and unreviewable, unless the agency submits in 
writing a request for review by the Director no later than 21 calendar 
days from the date of the notice to the agency.
    (h) Except as provided in paragraph (i) of this section, the 
decision to deny an agency's application or remove an agency from the 
approved list shall take effect upon:

[[Page 166]]

    (1) The expiration of the agency's time to seek review from the 
Director, if the agency fails to timely seek review of a denial or 
removal decision; or
    (2) The issuance by the Director of a final decision, if the agency 
timely seeks such review.
    (i) The United States Trustee may provide that a decision to remove 
an agency from the approved list is effective immediately and deny the 
agency the right to provide counseling services whenever the United 
States Trustee finds any of the factors set forth in paragraphs (c)(1) 
through (5) of this section.
    (j) An agency's request for review shall be in writing and shall 
fully describe why the agency disagrees with the denial or removal 
decision, and shall be accompanied by all documents and materials the 
agency wants the Director to consider in reviewing the denial or removal 
decision. The agency shall send the original and one copy of the request 
for review, including all accompanying documents and materials, to the 
Office of the Director by overnight courier, for delivery the next 
business day. To be timely, a request for review shall be received at 
the Office of the Director no later than 21 calendar days from the date 
of the notice to the agency.
    (k) The United States Trustee shall have 21 calendar days from the 
date of the agency's request for review to submit to the Director a 
written response regarding the matters raised in the agency's request 
for review. The United States Trustee shall provide a copy of this 
response to the agency by overnight courier, for delivery the next 
business day.
    (l) The Director may seek additional information from any party in 
the manner and to the extent the Director deems appropriate.
    (m) In reviewing the decision to deny an agency's application or 
remove an agency from the approved list, the Director shall determine:
    (1) Whether the denial or removal decision is supported by the 
record; and
    (2) Whether the denial or removal decision constitutes an 
appropriate exercise of discretion.
    (n) Except as provided in paragraph (o) of this section, the 
Director shall issue a final decision no later than 60 calendar days 
from the receipt of the agency's request for review, unless the agency 
agrees to a longer period of time or the Director extends the deadline. 
The Director's final decision on the agency's request for review shall 
constitute final agency action.
    (o) Whenever the United States Trustee provides under paragraph (i) 
of this section that a decision to remove an agency from the approved 
list is effective immediately, the Director shall issue a written 
decision no later than 15 calendar days from the receipt of the agency's 
request for review, unless the agency agrees to a longer period of time. 
The decision shall:
    (1) Be limited to deciding whether the determination that the 
removal decision should take effect immediately was supported by the 
record and an appropriate exercise of discretion;
    (2) Constitute final agency action only on the issue of whether the 
removal decision should take effect immediately; and
    (3) Not constitute final agency action on the ultimate issue of 
whether the agency should be removed from the approved list; after 
issuing the decision, the Director shall issue a final decision by the 
deadline set forth in paragraph (n) of this section.
    (p) In reaching a decision under paragraphs (n) and (o) of this 
section, the Director may specify a person to act as a reviewing 
official. The reviewing official's duties shall be specified by the 
Director on a case-by-case basis, and may include reviewing the record, 
obtaining additional information from the participants, providing the 
Director with written recommendations, and such other duties as the 
Director shall prescribe in a particular case.
    (q) An agency that files a request for review shall bear its own 
costs and expenses, including counsel fees.
    (r) When a decision to remove an agency from the approved list takes 
effect, the agency shall:
    (1) Immediately cease providing counseling services to clients and 
shall not provide counseling services to potential clients;
    (2) No later than three business days after the date of removal, 
send all certificates to all clients who completed

[[Page 167]]

counseling services prior to the agency's removal from the approved 
list;
    (3) No later than three business days after the date of removal, 
return all fees to clients and potential clients who had paid for 
counseling services, but had not completely received them; and
    (4) Transfer any debt repayment plans that the agency is 
administering to another approved agency.
    (s) An agency must exhaust all administrative remedies before 
seeking redress in any court of competent jurisdiction.

[78 FR 16153, Mar. 14, 2013]



Sec. 58.25  Definitions.

    (a) The following definitions apply to Secs. 58.25 through and 
including 58.36 of this part, as well as the applications and other 
materials providers submit in an effort to establish they meet the 
requirements necessary to become an approved provider of a personal 
financial management instructional course.
    (b) These terms shall have these meanings:
    (1) The term ``accreditation'' means the recognition or endorsement 
that an accrediting organization bestows upon a provider because the 
accrediting organization has determined the provider meets or exceeds 
all the accrediting organization's standards;
    (2) The term ``accrediting organization'' means either an entity 
that provides accreditation to providers or provides certification to 
instructors, provided, however, that an accrediting organization shall:
    (i) Not be a provider or affiliate of any provider; and
    (ii) Be deemed acceptable by the United States Trustee;
    (3) The term ``affiliate'' means:
    (i) Every entity that is an affiliate of the provider, as the term 
``affiliate'' is defined in 11 U.S.C. 101(2), except that the word 
``provider'' shall be substituted for the word ``debtor'' in 11 U.S.C. 
101(2);
    (ii) Each of a provider's officers and each of a provider's 
directors; and
    (iii) Every relative of a provider's officers and every relative of 
a provider's directors;
    (4) The term ``application'' means the application and related 
forms, including appendices, approved by the Office of Management and 
Budget as form EOUST-DE1, Application for Approval as a Provider of a 
Personal Financial Management Instructional Course, as it shall be 
amended from time to time;
    (5) The term ``approved list'' means the list of providers currently 
approved by a United States Trustee under 11 U.S.C. 111 as currently 
published on the United States Trustee Program's Internet site, which is 
located on the United States Department of Justice's Internet site;
    (6) The term ``approved provider'' means a provider currently 
approved by a United States Trustee under 11 U.S.C. 111 as an approved 
provider of a personal financial management instructional course 
eligible to be included on one or more lists maintained under 11 U.S.C. 
111(a)(1);
    (7) The term ``certificate'' means the document an approved provider 
shall provide to a debtor after the debtor completes an instructional 
course, if the approved provider does not notify the appropriate 
bankruptcy court in accordance with the Federal Rules of Bankruptcy 
Procedure that a debtor has completed the instructional course;
    (8) The term ``debtor'' shall have the meaning given that term in 11 
U.S.C. 101(13), to the extent that individual has sought an 
instructional course from an approved provider;
    (9) The term ``Director'' means the person designated or acting as 
the Director of the Executive Office for United States Trustees;
    (10) The term ``effective instruction'' means the actual receipt of 
an instructional course by a debtor from an approved provider, and all 
other applicable services, rights, and protections specified in:
    (i) 11 U.S.C. 111; and
    (ii) this part;
    (11) The term ``entity'' shall have the meaning given that term in 
11 U.S.C. 101(15);
    (12) The terms ``fee'' and ``fee policy'' each mean the aggregate of 
all fees an approved provider charges debtors for providing an 
instructional course, including the fees for any materials; ``fee 
policy'' shall also mean the objective

[[Page 168]]

criteria the provider uses in determining whether to waive or reduce any 
fee, contribution, or payment;
    (13) The term ``final decision'' means the written determination 
issued by the Director based upon the review of the United States 
Trustee's decision either to deny a provider's application or to remove 
an approved provider from the approved list;
    (14) The term ``financial benefit'' means any interest equated with 
money or its equivalent, including, but not limited to, stocks, bonds, 
other investments, income, goods, services, or receivables;
    (15) The term ``governmental unit'' shall have the meaning given 
that term in 11 U.S.C. 101(27);
    (16) The term ``independent contractor'' means a person or entity 
who provides any goods or services to an approved provider other than as 
an employee and as to whom the approved provider does not:
    (i) Direct or control the means or methods of delivery of the goods 
or services being provided;
    (ii) Make financial decisions concerning the business aspects of the 
goods or services being provided; and
    (iii) Have any common employees;
    (17) The term ``instructional course'' means a course in personal 
financial management that is approved by the United States Trustee under 
11 U.S.C. 111 and this part, including the learning materials and 
methodologies in Sec. 58.33(f), which is to be taken and completed by 
the debtor after the filing of a bankruptcy petition and before 
receiving a discharge under 11 U.S.C. 727(a)(11), 1141(d)(3) or 
1328(g)(1);
    (18) The term ``instructor'' means an individual who teaches, 
presents or explains substantive instructional course materials to 
debtors, whether provided in person, by telephone, or through the 
Internet;
    (19) The term ``languages offered'' means every language other than 
English in which an approved provider offers an instructional course;
    (20) The term ``legal advice'' shall have the meaning given that 
term in 11 U.S.C. 110(e)(2);
    (21) The term ``limited English proficiency'' refers to individuals 
who:
    (i) Do not speak English as their primary language; and
    (ii) Have a limited ability to read, write, speak, or understand 
English;
    (22) The term ``material change'' means, alternatively, any change:
    (i) In the name, structure, principal contact, management, 
instructors, physical location, instructional course, fee policy, 
language services, or method of delivery of an approved provider; or
    (ii) That renders inapplicable, inaccurate, incomplete, or 
misleading any statement a provider previously made:
    (A) In its application or related materials; or
    (B) To the United States Trustee;
    (23) The term ``method of delivery'' means one or more of the three 
methods by which an approved provider can provide some component of an 
instructional course to debtors, including:
    (i) ``In person'' delivery, which applies when a debtor primarily 
receives an instructional course at a physical location with an 
instructor physically present in that location, and with the instructor 
providing oral and/or written communication to the debtor at the 
facility;
    (ii) ``Telephone'' delivery, which applies when a debtor primarily 
receives an instructional course by telephone; and
    (iii) ``Internet'' delivery, which applies when a debtor primarily 
receives an instructional course through an Internet Web site;
    (24) The term ``notice'' in Sec. 58.36 means the written 
communication from the United States Trustee to a provider that its 
application to become an approved provider has been denied or to an 
approved provider that it is being removed from the approved list;
    (25) The term ``provider'' shall mean any entity that is applying 
under this part for United States Trustee approval to be included on a 
publicly available list in one or more United States district courts, as 
authorized by 11 U.S.C. 111(a)(1), and shall also mean, whenever 
appropriate, an approved provider;
    (26) The term ``referral fees'' means money or any other valuable 
consideration paid or transferred between an approved provider and 
another entity

[[Page 169]]

in return for that entity, directly or indirectly, identifying, 
referring, securing, or in any other way encouraging any debtor to 
receive an instructional course from the approved provider;
    (27) The term ``relative'' shall have the meaning given that term in 
11 U.S.C. 101(45);
    (28) The term ``request for review'' means the written communication 
from a provider to the Director seeking review of the United States 
Trustee's decision either to deny the provider's application or to 
remove the provider from the approved list;
    (29) The term ``state'' means state, commonwealth, district, or 
territory of the United States;
    (30) The term ``United States Trustee'' means, alternatively:
    (i) The Executive Office for United States Trustees;
    (ii) A United States Trustee appointed under 28 U.S.C. 581;
    (iii) A person acting as a United States Trustee;
    (iv) An employee of a United States Trustee; or
    (v) Any other entity authorized by the Attorney General to act on 
behalf of the United States under this part.

[78 FR 16170, Mar. 14, 2013]



Sec. 58.26  Procedures all providers shall follow when applying
to become approved providers.

    (a) A provider applying to become an approved provider shall obtain 
an application, including appendices, from the United States Trustee.
    (b) The provider shall complete the application, including its 
appendices, and attach the required supporting documents requested in 
the application.
    (c) The provider shall submit the original of the completed 
application, including completed appendices and the required supporting 
documents, to the United States Trustee at the address specified on the 
application form.
    (d) The application shall be signed by a representative of the 
provider who is authorized under applicable law to sign on behalf of the 
applying provider.
    (e) The signed application, completed appendices, and required 
supporting documents shall be accompanied by a writing, signed by the 
signatory of the application and executed on behalf of the signatory and 
the provider, certifying the application does not:
    (1) Falsify, conceal, or cover up by any trick, scheme or device a 
material fact;
    (2) Make any materially false, fictitious, or fraudulent statement 
or representation; or
    (3) Make or use any false writing or document knowing the same to 
contain any materially false, fictitious, or fraudulent statement or 
entry.
    (f) The United States Trustee shall not consider an application, and 
it may be returned if:
    (1) It is incomplete;
    (2) It fails to include the completed appendices or all of the 
required supporting documents; or
    (3) It is not accompanied by the certification identified in the 
preceding subsection.
    (g) The United States Trustee shall not consider an application on 
behalf of a provider, and it shall be returned if:
    (1) It is submitted by any entity other than the provider; or
    (2) Either the application or the accompanying certification is 
executed by any entity other than a representative of the provider who 
is authorized under applicable law to sign on behalf of the provider.
    (h) By the act of submitting an application, a provider consents to 
the release and disclosure of its name, contact information, and non-
confidential business information relating to the services it provides 
on the approved list should its application be approved.

[78 FR 16170, Mar. 14, 2013]



Sec. 58.27  Automatic expiration of providers' status as approved
providers.

    (a) Except as provided in Sec. 58.28(c), if an approved provider was 
not an approved provider immediately prior to the date it last obtained 
approval to be an approved provider, such an approved provider shall 
cease to be an approved provider six months from the date on which it 
was approved unless the United States Trustee approves an additional one 
year period.
    (b) Except as provided in Sec. 58.28(c), if an approved provider was 
an approved provider immediately prior to the date

[[Page 170]]

it last obtained approval to be an approved provider, such a provider 
shall cease to be an approved provider one year from the date on which 
it was last approved to be an approved provider unless the United States 
Trustee approves an additional one year period.

[78 FR 16170, Mar. 14, 2013]



Sec. 58.28  Procedures all approved providers shall follow when 
applying for approval to act as an approved provider for an additional
one year period.

    (a) To be considered for approval to act as an approved provider for 
an additional one year term, an approved provider shall reapply by 
complying with all the requirements specified for providers under 11 
U.S.C. 111, and under this part.
    (b) Such a provider shall apply no later than 45 days prior to the 
expiration of its six month probationary period or annual period to be 
considered for approval for an additional one year period, unless a 
written extension is granted by the United States Trustee.
    (c) An approved provider that has complied with all prerequisites 
for applying to act as an approved provider for an additional one year 
period may continue to operate as an approved provider while its 
application is under review by the United States Trustee, so long as 
either the application for an additional one year period is timely 
submitted, or a provider receives a written extension from the United 
States Trustee.

[78 FR 16172, Mar. 14, 2013]



Sec. 58.29  Renewal for an additional one year period.

    If an approved provider's application for an additional one year 
period is approved, such renewal period shall begin to run from the 
later of:
    (a) The day after the expiration date of the immediately preceding 
approval period; or
    (b) The actual date of approval of such renewal by the United States 
Trustee.

[78 FR 16172, Mar. 14, 2013]



Sec. 58.30  Mandatory duty of approved providers to notify United States
Trustees of material changes.

    (a) An approved provider shall immediately notify the United States 
Trustee in writing of any material change.
    (b) An approved provider shall immediately notify the United States 
Trustee in writing of any failure by the approved provider to comply 
with any standard or requirement specified in 11 U.S.C. 111, this part, 
or the terms under which the United States Trustee approved it to act as 
an approved provider.
    (c) An approved provider shall immediately notify the United States 
Trustee in writing of any of the following events:
    (1) Cessation of business by the approved provider or by any office 
of the provider, or withdrawal from any federal judicial district(s) 
where the approved provider is approved;
    (2) Any investigation of, or any administrative or judicial action 
brought against, the approved provider by any governmental unit;
    (3) Any action by a governmental unit or a court to suspend or 
revoke the approved provider's articles of incorporation, or any license 
held by the approved provider, or any authorization necessary to engage 
in business; or
    (4) A suspension, or action to suspend, any accreditation held by 
the approved provider, or any withdrawal by the approved provider of any 
application for accreditation, or any denial of any application of the 
approved provider for accreditation; or
    (5) [Reserved]
    (d) A provider shall notify the United States Trustee in writing if 
any of the changes identified in paragraphs (a) through (c) of this 
section occur while its application to become an approved provider is 
pending before the United States Trustee.
    (e) An approved provider whose name or other information appears 
incorrectly on the approved list shall immediately submit a written 
request to the United States Trustee asking that the information be 
corrected.

[78 FR 16172, Mar. 14, 2013]

[[Page 171]]



Sec. 58.31  Mandatory duty of approved providers to obtain prior
consent of the United States Trustee before taking certain actions.

    (a) By accepting the designation to act as an approved provider, a 
provider agrees to obtain approval from the United States Trustee, prior 
to making any of the following changes:
    (1) The engagement of an independent contractor to provide an 
instructional course;
    (2) Any increase in the fees received from debtors for an 
instructional course or a change in the provider's fee policy;
    (3) Expansion into additional federal judicial districts;
    (4) Any changes to the method of delivery the approved provider 
employs to provide an instructional course; or
    (5) Any changes in the approved provider's instructional course.
    (b) A provider applying to become an approved provider shall also 
obtain approval from the United States Trustee before taking any action 
specified in paragraph (a) of this section. It shall do so by submitting 
an amended application. The provider's amended application shall be 
accompanied by a contemporaneously executed writing, signed by the 
signatory of the application, that makes the certifications specified in 
Sec. 58.26(e).
    (c) An approved provider shall not transfer or assign its United 
States Trustee approval to act as an approved provider.

[78 FR 16172, Mar. 14, 2013]



Sec. 58.32  Continuing requirements for becoming and remaining
approved providers.

    (a) To become an approved provider, a provider must affirmatively 
establish, to the satisfaction of the United States Trustee, that the 
provider at the time of approval:
    (1) Satisfies every requirement of this part; and
    (2) Provides effective instruction to its debtors.
    (b) To remain an approved provider, an approved provider shall 
affirmatively establish, to the satisfaction of the United States 
Trustee, that the approved provider:
    (1) Has satisfied every requirement of this part;
    (2) Has provided effective instruction to its debtors; and
    (3) Will continue to satisfy both paragraphs (b)(1) and (2) of this 
section in the future.

[78 FR 16172, Mar. 14, 2013]



Sec. 58.33  Minimum qualifications providers shall meet to become
and remain approved providers.

    To meet the minimum qualifications set forth in Sec. 58.32, and in 
addition to the other requirements set forth in this part, providers and 
approved providers shall comply with paragraphs (a) through (n) of this 
section on a continuing basis:
    (a) Compliance with all laws. A provider shall comply with all 
applicable laws and regulations of the United States and each state in 
which the provider provides an instructional course including, without 
limitation, all laws governing licensing and registration.
    (b) Prohibition on legal advice. A provider shall not provide legal 
advice.
    (c) Ethical standards. A provider shall:
    (1) Ensure no member of the board of directors or trustees, officer 
or supervisor is a relative of an employee of the United States Trustee, 
a trustee appointed under 28 U.S.C. 586(a)(1) for any federal judicial 
district where the provider is providing or is applying to provide an 
instructional course, a federal judge in any federal judicial district 
where the provider is providing or is applying to provide an 
instructional course, or a federal court employee in any federal 
judicial district where the provider is providing or is applying to 
provide an instructional course;
    (2) Not enter into any referral agreement or receive any financial 
benefit that involves the provider paying to or receiving from any 
entity or person referral fees for the referral of debtors to or by the 
provider; and
    (3) Not enter into agreements involving an instructional course that 
create a conflict of interest; and
    (4) Not contact any debtor utilizing the United States Postal 
Service, or other mail carrier, or electronic mail for the purpose of 
soliciting debtors to utilize the provider's instructional course, 
unless:

[[Page 172]]

    (i) Any such solicitations include the phrase ``This is an 
advertisement for services'' or ``This is a solicitation;''
    (ii) Prominently displayed at the beginning of each page of the 
solicitation;
    (iii) In a font size larger than or equal to the largest font size 
otherwise used in the solicitation;
    (iv) Any such solicitations include only logos, seals, or similar 
marks that are substantially dissimilar to the logo, seal, or similar 
mark of any agency or court of the United States government, including 
but not limited to the United States Trustee Program.
    (d) Instructor training, certification and experience. A provider 
shall:
    (1) Use only instructors who possess adequate experience providing 
an instructional course, which shall mean that each instructor either:
    (i) Holds one of the certifications listed below and who has 
complied with all continuing education requirements necessary to 
maintain that certification:
    (A) Certified as a Certified Financial Planner;
    (B) Certified as a credit counselor by an accrediting organization;
    (C) Registered as a Registered Financial Consultant; or
    (D) Certified as a Certified Public Accountant; or
    (ii) Has successfully completed a course of study or worked a 
minimum of six months in a related area such as personal finance, 
budgeting, or credit or debt management. A course of study must include 
training in personal finance, budgeting, or credit or debt management. 
An instructor shall also receive annual continuing education in the 
areas of personal finance, budgeting, or credit or debt management;
    (2) Demonstrate adequate experience, background, and quality in 
providing an instructional course, which shall mean that, at a minimum, 
the provider shall either:
    (i) Have experience in providing an instructional course for the two 
years immediately preceding the relevant application date; or
    (ii) For each office providing an instructional course, employ at 
least one supervisor who has met the qualifications in paragraph 
(d)(2)(i) of this section for no fewer than two of the five years 
preceding the relevant application date; and
    (iii) If offering any component of an instructional course by a 
telephone or Internet method of delivery, use only instructors who, in 
addition to all other requirements, demonstrate sufficient experience 
and proficiency in providing such an instructional course by those 
methods of delivery, including proficiency in employing verification 
procedures to ensure the person receiving the instructional course is 
the debtor, and to determine whether the debtor has completely received 
an instructional course.
    (e) Use of the telephone and the Internet to deliver a component of 
an instructional course. A provider shall:
    (1) Not provide any debtor a diminished instructional course because 
the debtor receives any portion of the instructional course by telephone 
or Internet;
    (2) Confirm the identity of the debtor before commencing an 
instructional course by telephone or Internet by:
    (i) Obtaining one or more unique personal identifiers from the 
debtor and assigning an individual access code, user ID, or password at 
the time of enrollment;
    (ii) Requiring the debtor to provide the appropriate access code, 
user ID, or password, and also one or more of the unique personal 
identifiers during the course of delivery of the instructional course; 
and
    (iii) Employing adequate means to measure the time spent by the 
debtor to complete the instructional course.
    (f) Learning materials and methodologies. A provider shall provide 
learning materials to assist debtors in understanding personal financial 
management and that are consistent with 11 U.S.C. 111, and this part, 
which include written information and instruction on all of the 
following topics:
    (1) Budget development, which consists of the following:
    (i) Setting short-term and long-term financial goals, as well as 
developing skills to assist in achieving these goals;
    (ii) Calculating gross monthly income and net monthly income; and

[[Page 173]]

    (iii) Identifying and classifying monthly expenses as fixed, 
variable, or periodic;
    (2) Money management, which consists of the following:
    (i) Keeping adequate financial records;
    (ii) Developing decision-making skills required to distinguish 
between wants and needs, and to comparison shop for goods and services;
    (iii) Maintaining appropriate levels of insurance coverage, taking 
into account the types and costs of insurance; and
    (iv) Saving for emergencies, for periodic payments, and for 
financial goals;
    (3) Wise use of credit, which consists of the following:
    (i) Identifying the types, sources, and costs of credit and loans;
    (ii) Identifying debt warning signs;
    (iii) Discussing appropriate use of credit and alternatives to 
credit use; and
    (iv) Checking a credit rating;
    (4) Consumer information, which consists of the following:
    (i) Identifying public and nonprofit resources for consumer 
assistance; and
    (ii) Identifying applicable consumer protection laws and 
regulations, such as those governing correction of a credit record and 
protection against consumer fraud; and
    (5) Coping with unexpected financial crisis, which consists of the 
following:
    (i) Identifying alternatives to additional borrowing in times of 
unanticipated events; and
    (ii) Seeking advice from public and private service agencies for 
assistance.
    (g) Course procedures. (1) Generally, a provider shall:
    (i) Ensure the instructional course contains sufficient learning 
materials and teaching methodologies so that the debtor receives a 
minimum of two hours of instruction, regardless of the method of 
delivery of the course;
    (ii) Use its best efforts to collect from each debtor a completed 
course evaluation at the end of the instructional course. At a minimum, 
the course evaluation shall include the information contained in 
Appendix E of the application to evaluate the effectiveness of the 
instructional course;
    (2) For an instructional course delivered in person, the provider 
shall:
    (i) Ensure that an instructor is present to instruct and interact 
with debtors; and
    (ii) Limit class size to ensure an effective presentation of the 
instructional course materials;
    (3) For instructional courses delivered by the telephone, the 
provider shall:
    (i) Ensure an instructor is telephonically present to instruct and 
interact with debtors;
    (ii) Provide learning materials to debtors before the telephone 
instructional course session;
    (iii) Incorporate tests into the curriculum that support the 
learning materials, ensure completion of the course, and measure 
comprehension;
    (iv) Ensure review of tests prior to the completion of the 
instructional course; and
    (v) Ensure direct oral communication from an instructor by telephone 
or in person with all debtors who fail to complete the test in a 
satisfactory manner or who receive less than a 70 percent score;
    (4) For instructional courses delivered through the Internet, the 
provider shall:
    (i) Comply with Sec. 58.33(g)(3)(iii), (iv), and (v); provided, 
however, that to the extent instruction takes place by Internet, the 
provider may comply with Sec. 58.33(g)(3)(v) by ensuring direct 
communication from an instructor by electronic mail, live chat, or 
telephone; and
    (ii) Respond to a debtor's questions or comments within one business 
day.
    (h) Services to hearing and hearing-impaired debtors. A provider 
shall furnish toll-free telephone numbers for both hearing and hearing-
impaired debtors whenever telephone communication is required. The 
provider shall provide telephone amplification, sign language services, 
or other communication methods for hearing-impaired debtors.
    (i) [Reserved]
    (j) Services to debtors with special needs. A provider that provides 
any portion of its instructional course in person shall comply with all 
federal, state and local laws governing facility

[[Page 174]]

accessibility. A provider shall also provide or arrange for 
communication assistance for debtors with special needs who have 
difficulty making their service needs known.
    (k) Mandatory disclosures to debtors. Prior to providing any 
information to or obtaining any information from a debtor, and prior to 
delivering an instructional course, a provider shall disclose:
    (1) The provider's fee policy, including any fees associated with 
generation of the certificate;
    (2) The provider's policies enabling debtors to obtain an 
instructional course for free or at reduced rates based upon the 
debtor's lack of ability to pay. To the extent an approved provider 
publishes information concerning its fees on the Internet, such fee 
information must include the provider's policies enabling debtors to 
obtain an instructional course for free or at reduced rates based upon 
the debtor's lack of ability to pay;
    (3) The provider's policy to provide free bilingual instruction or 
professional interpreter assistance to any limited English proficient 
debtor;
    (4) The instructors' qualifications;
    (5) The provider's policy prohibiting it from paying or receiving 
referral fees for the referral of debtors;
    (6) The provider's obligation to provide a certificate to the debtor 
promptly upon the completion of an instructional course;
    (7) The fact that the provider might disclose debtor information to 
the United States Trustee in connection with the United States Trustee's 
oversight of the provider, or during the investigation of complaints, 
during on-site visits, or during quality of service reviews;
    (8) The fact that the United States Trustee has reviewed only the 
provider's instructional course (and, if applicable, its services as a 
credit counseling agency pursuant to 11 U.S.C. 111(c)), and the fact 
that the United States Trustee has neither reviewed nor approved any 
other services the provider provides to debtors; and
    (9) The fact that a debtor will only receive a certificate if the 
debtor completes an instructional course.
    (l) Complaint Procedures. A provider shall employ complaint 
procedures that adequately respond to debtors' concerns.
    (m) Provider records. A provider shall prepare and retain records 
that enable the United States Trustee to evaluate whether the provider 
is providing effective instruction and acting in compliance with all 
applicable laws and this part. All records, including documents bearing 
original signatures, shall be maintained in either hard copy form or 
electronically in a format widely available commercially. Records that 
the provider shall prepare and retain for a minimum of two years, and 
permit review of by the United States Trustee upon request, shall 
include:
    (1) Upon the filing of an application for probationary approval, all 
information requested by the United States Trustee as an estimate, 
projected to the end of the probationary period, in the form requested 
by the United States Trustee;
    (2) After probationary or annual approval, and for so long as the 
provider remains on the approved list, semi-annual reports of historical 
data (for the periods ending June 30 and December 31 of each year), of 
the type and in the form requested by the United States Trustee; these 
reports shall be submitted within 30 days of the end of the applicable 
periods specified in this paragraph;
    (3) Records concerning the delivery of services to debtors with 
limited English proficiency and special needs, and to hearing-impaired 
debtors, including records:
    (i) Of the number of such debtors, and the methods of delivery used 
with respect to such debtors;
    (ii) Of which languages are offered or requested, and the type of 
language support used or requested by such debtors (e.g., bilingual 
instructor, in-person or telephone interpreter, translated Web 
instruction);
    (iii) Detailing the provider's provision of services to such 
debtors; and
    (iv) Supporting any justification if the provider did not provide 
services to such debtors, including the number of debtors not served, 
the languages involved, and the number of referrals provided;

[[Page 175]]

    (4) Records concerning the delivery of an instructional course to 
debtors for free or at reduced rates based upon the debtor's lack of 
ability to pay, including records of the number of debtors for whom the 
provider waived all of its fees under Sec. 58.34(b)(1)(i), the number of 
debtors for whom the provider waived all or part of its fees under 
Sec. 58.34(b)(1)(ii), and the number of debtors for whom the provider 
voluntarily waived all or part of its fees under Sec. 58.34(c);
    (5) Records of complaints and the provider's responses thereto;
    (6) Records that enable the provider to verify the authenticity of 
certificates their debtors file in bankruptcy cases; and
    (7) Records that enable the provider to issue replacement 
certificates.
    (n) Additional minimum requirements. A provider shall:
    (1) Provide records to the United States Trustee upon request;
    (2) Cooperate with the United States Trustee by allowing scheduled 
and unscheduled on-site visits, complaint investigations, or other 
reviews of the provider's qualifications to be an approved provider;
    (3) Cooperate with the United States Trustee by promptly responding 
to questions or inquiries from the United States Trustee;
    (4) Assist the United States Trustee in identifying and 
investigating suspected fraud and abuse by any party participating in 
the instructional course or bankruptcy process;
    (5) Take no action that would limit, inhibit, or prevent a debtor 
from bringing an action or claim for damages against a provider, as 
provided in 11 U.S.C. 111(g)(2);
    (6) Refer debtors seeking an instructional course only to providers 
that have been approved by a United States Trustee to provide such 
services;
    (7) Comply with the United States Trustee's directions on approved 
advertising, including without limitation those set forth in Appendix A 
to the application;
    (8) Not disclose or provide to a credit reporting agency any 
information concerning whether a debtor has received or sought 
instruction concerning personal financial management from a provider;
    (9) Not expose the debtor to commercial advertising as part of or 
during the debtor's receipt of an instructional course, and never market 
or sell financial products or services during the instructional course 
provided, however, this provision does not prohibit a provider from 
generally discussing all available financial products and services;
    (10) Not sell information about any debtor to any third party 
without the debtor's prior written permission;
    (11) Comply with the requirements elsewhere in this part concerning 
fees for the instructional course and fee waiver policies; and
    (12) Comply with the requirements elsewhere in this part concerning 
certificates.

[78 FR 16172, Mar. 14, 2013]



Sec. 58.34  Minimum requirements to become and remain approved 
providers relating to fees.

    (a) If a fee for, or relating to, an instructional course is charged 
by a provider, such fee shall be reasonable:
    (1) A fee of $50 or less for an instructional course is presumed to 
be reasonable and a provider need not obtain prior approval of the 
United States Trustee to charge such a fee;
    (2) A fee exceeding $50 for an instructional course is not presumed 
to be reasonable and a provider must obtain prior approval from the 
United States Trustee to charge such a fee. The provider bears the 
burden of establishing that its proposed fee is reasonable. At a 
minimum, the provider must demonstrate that its cost for delivering the 
instructional course justifies the fee. A provider that previously 
received permission to charge a higher fee need not reapply for 
permission to charge that fee during the provider's annual review. Any 
new requests for permission to charge more than previously approved, 
however, must be submitted to EOUST for approval; and
    (3) The United States Trustee shall review the amount of the fee set 
forth in paragraphs (a)(1) and (2) of this section one year after the 
effective date of this part and then periodically, but not less 
frequently than every four years,

[[Page 176]]

to determine the reasonableness of the fee. Fee amounts and any 
revisions thereto shall be determined by current costs, using a method 
of analysis consistent with widely accepted accounting principles and 
practices, and calculated in accordance with the provisions of federal 
law as applicable. Fee amounts and any revisions thereto shall be 
published in the Federal Register.
    (b)(1) A provider shall waive the fee in whole or in part whenever a 
debtor demonstrates a lack of ability to pay the fee.
    (i) A debtor presumptively lacks the ability to pay the fee if the 
debtor's household current income is less than 150 percent of the 
poverty guidelines updated periodically in the Federal Register by the 
U.S. Department of Health and Human Services under the authority of 42 
U.S.C. 9902(2), as adjusted from time to time, for a household or family 
of the size involved in the fee determination.
    (ii) The presumption shall be rebutted, and the provider may charge 
the debtor a reduced fee, if the provider determines, based on income 
information the debtor submits to the provider, that the debtor is able 
to pay the fee in a reduced amount. Nothing in this subsection requires 
an provider to charge a fee to debtors whose household income exceeds 
the amount set forth in paragraph (b)(1)(i) of this section, or who are 
able to demonstrate ability to pay based on income as described in this 
subsection.
    (iii) A provider shall disclose its fee policy, including the 
criteria on which it relies in determining a debtor's eligibility for 
reduced fees, and the provider's policy for collecting fees pursuant to 
paragraph (b)(1)(ii) of this section, in accordance with 
Sec. 58.33(k)(2).
    (2) The United States Trustee shall review the basis for the 
mandatory fee waiver policy set forth in paragraph (b)(1) of this 
section one year after the effective date of this part and then 
periodically, but not less frequently than every four years, to 
determine the impact of that fee waiver policy on debtors and providers. 
Any revisions to the mandatory fee waiver policy set forth in paragraph 
(b)(1) of this section shall be published in the Federal Register.
    (c) Notwithstanding the requirements of paragraph (b) of this 
section, a provider also may waive fees based upon other considerations, 
including, but not limited to:
    (1) The debtor's net worth;
    (2) The percentage of the debtor's income from government assistance 
programs;
    (3) Whether the debtor is receiving pro bono legal services in 
connection with a bankruptcy case; or
    (4) If the combined current monthly income, as defined in 11 U.S.C. 
101(10A), of the debtor and his or her spouse, when multiplied times 
twelve, is equal to or less than the amounts set forth in 11 U.S.C. 
707(b)(7).
    (d) A provider shall not require a debtor to purchase an 
instructional course in connection with the purchase of any other 
service offered by the provider.
    (e) A provider who is also a chapter 13 standing trustee may only 
provide the instructional course to debtors in cases in which the 
trustee is appointed to serve and may not charge any fee to those 
debtors for the instructional course. A standing chapter 13 trustee may 
not require debtors in cases administered by the trustee to obtain the 
instructional course from the trustee. Employees and affiliates of the 
standing trustee are also bound by the restrictions in this section.

[78 FR 16172, Mar. 14, 2013]



Sec. 58.35  Minimum requirements to become and remain approved
providers relating to certificates.

    (a) An approved provider shall send a certificate only to the debtor 
who took and completed the instructional course, except that an approved 
provider shall instead send a certificate to the attorney of a debtor 
who took and completed an instructional course if the debtor 
specifically directs the provider to do so. In lieu of sending a 
certificate to the debtor or the debtor's attorney, an approved provider 
may notify the appropriate bankruptcy court in accordance with the 
Federal Rules of Bankruptcy Procedure that a debtor has completed the 
instructional course.
    (b) An approved provider shall send a certificate to a debtor, or 
notify the

[[Page 177]]

appropriate bankruptcy court in accordance with the Federal Rules of 
Bankruptcy Procedure, that a debtor has completed the instructional 
course no later than three business days after the debtor completed an 
instructional course and after completion of a debtor course evaluation 
form that evaluates the effectiveness of the instructional course. The 
approved provider shall not withhold the issuance of a certificate or 
notice of course completion to the appropriate bankruptcy court because 
of a debtor's failure to submit an evaluation form, though the provider 
should make reasonable effort to ensure that debtors complete and submit 
course evaluation forms.
    (c) If a debtor has completed instruction, a provider may not 
withhold certificate issuance or notice of course completion to the 
appropriate bankruptcy court for any reason, including, without 
limitation, a debtor's failure to obtain a passing grade on a quiz, 
examination, or test. A provider may not consider instructional services 
incomplete based solely on the debtor's failure to pay the fee. Although 
a test may be incorporated into the curriculum to evaluate the 
effectiveness of the course and to ensure that the course has been 
completed, the approved provider cannot deny a certificate to a debtor 
or notice of course completion to the appropriate bankruptcy court if 
the debtor has completed the course as designed.
    (d) An approved provider shall issue certificates only in the form 
approved by the United States Trustee, and shall generate the form using 
the Certificate Generating System maintained by the United States 
Trustee, except under exigent circumstances with notice to the United 
States Trustee.
    (e) An approved provider shall have sufficient computer capabilities 
to issue certificates from the United States Trustee's Certificate 
Generating System.
    (f) An approved provider shall issue a certificate, or provide 
notice of course completion to the appropriate bankruptcy court in 
accordance with the Federal Rules of Bankruptcy Procedure, with respect 
to each debtor who completes an instructional course. Spouses receiving 
an instructional course jointly shall each receive a certificate or 
notice of course completion to the appropriate bankruptcy court shall be 
made for both individuals.
    (g) An approved provider shall issue a replacement certificate to a 
debtor who requests one.
    (h) Only an authorized officer, supervisor or employee of an 
approved provider shall issue a certificate, or provide notice of course 
completion to the appropriate bankruptcy court, and an approved provider 
shall not transfer or delegate authority to issue a certificate or 
provide notice of course completion to any other entity.
    (i) An approved provider shall implement internal controls 
sufficient to prevent unauthorized issuance of certificates.
    (j) An approved provider shall ensure the signature affixed to a 
certificate is that of an officer, supervisor or employee authorized to 
issue the certificate, in accordance with paragraph (h) of this section, 
which signature shall be either:
    (1) An original signature; or
    (2) In a format approved for electronic filing with the court (most 
typically in the form /s/ name of instructor).
    (k) An approved provider shall affix to the certificate the exact 
name under which the approved provider is incorporated or organized.
    (l) An approved provider shall identify on the certificate:
    (1) The specific federal judicial district requested by the debtor;
    (2) Whether an instructional course was provided in person, by 
telephone or via the Internet;
    (3) The date and time (including the time zone) when instructional 
services were completed by the debtor; and
    (4) The name of the instructor that provided the instructional 
course.
    (m) An approved provider shall affix the debtor's full, accurate 
name to the certificate. If the instructional course is obtained by a 
debtor through a duly authorized representative, the certificate shall 
also set forth the name of the legal representative and legal capacity 
of that representative.

[78 FR 16172, Mar. 14, 2013]

[[Page 178]]



Sec. 58.36  Procedures for obtaining final provider action on 
United States Trustees' decisions to deny providers' applications
and to remove approved providers from the approved list.

    (a) The United States Trustee shall remove an approved provider from 
the approved list whenever an approved provider requests its removal in 
writing.
    (b) The United States Trustee may issue a decision to remove an 
approved provider from the approved list, and thereby terminate the 
approved provider's authorization to provide an instructional course, at 
any time.
    (c) The United States Trustee may issue a decision to deny a 
provider's application or to remove a provider from the approved list 
whenever the United States Trustee determines that the provider has 
failed to comply with the standards or requirements specified in 11 
U.S.C. 111, this part, or the terms under which the United States 
Trustee designated it to act as an approved provider, including, but not 
limited to, finding any of the following:
    (1) If any entity has suspended or revoked the provider's license to 
do business in any jurisdiction; or
    (2) Any United States district court has removed the provider under 
11 U.S.C. 111(e).
    (d) The United States Trustee shall provide to the provider in 
writing a notice of any decision either to:
    (1) Deny the provider's application; or
    (2) Remove the provider from the approved list.
    (e) The notice shall state the reason(s) for the decision and shall 
reference any documents or communications relied upon in reaching the 
denial or removal decision. To the extent authorized by law, the United 
States Trustee shall provide to the provider copies of any such 
documents that were not supplied to the United States Trustee by the 
provider. The notice shall be sent to the provider by overnight courier, 
for delivery the next business day.
    (f) Except as provided in paragraph (h) of this section, the notice 
shall advise the provider that the denial or removal decision shall 
become final agency action, and unreviewable, unless the provider 
submits in writing a request for review by the Director no later than 21 
calendar days from the date of the notice to the provider.
    (g) Except as provided in paragraph (h) of this section, the 
decision to deny a provider's application or to remove a provider from 
the approved list shall take effect upon:
    (1) The expiration of the provider's time to seek review from the 
Director, if the provider fails to timely seek review of a denial or 
removal decision; or
    (2) The issuance by the Director of a final decision, if the 
provider timely seeks such review.
    (h) The United States Trustee may provide that a decision to remove 
a provider from the approved list is effective immediately and deny the 
provider the right to provide an instructional course whenever the 
United States Trustee finds any of the factors set forth in paragraphs 
(c)(1) or (2) of this section.
    (i) A provider's request for review shall be in writing and shall 
fully describe why the provider disagrees with the denial or removal 
decision, and shall be accompanied by all documents and materials the 
provider wants the Director to consider in reviewing the denial or 
removal decision. The provider shall send the original and one copy of 
the request for review, including all accompanying documents and 
materials, to the Office of the Director by overnight courier, for 
delivery the next business day. To be timely, a request for review shall 
be received at the Office of the Director no later than 21 calendar days 
from the date of the notice to the provider.
    (j) The United States Trustee shall have 21 calendar days from the 
date of the provider's request for review to submit to the Director a 
written response regarding the matters raised in the provider's request 
for review. The United States Trustee shall provide a copy of this 
response to the provider by overnight courier, for delivery the next 
business day.
    (k) The Director may seek additional information from any party in 
the manner and to the extent the Director deems appropriate.

[[Page 179]]

    (l) In reviewing the decision to deny a provider's application or to 
remove a provider from the approved list, the Director shall determine:
    (1) Whether the denial or removal decision is supported by the 
record; and
    (2) Whether the denial or removal decision constitutes an 
appropriate exercise of discretion.
    (m) Except as provided in paragraph (n) of this section, the 
Director shall issue a final decision no later than 60 calendar days 
from the receipt of the provider's request for review, unless the 
provider agrees to a longer period of time or the Director extends the 
deadline. The Director's final decision on the provider's request for 
review shall constitute final agency action.
    (n) Whenever the United States Trustee provides under paragraph (h) 
of this section that a decision to remove a provider from the approved 
list is effective immediately, the Director shall issue a written 
decision no later than 15 calendar days from the receipt of the 
provider's request for review, unless the provider agrees to a longer 
period of time. The decision shall:
    (1) Be limited to deciding whether the determination that the 
removal decision should take effect immediately was supported by the 
record and an appropriate exercise of discretion;
    (2) Constitute final agency action only on the issue of whether the 
removal decision should take effect immediately; and
    (3) Not constitute final agency action on the ultimate issue of 
whether the provider should be removed from the approved list; after 
issuing the decision, the Director shall issue a final decision by the 
deadline set forth in paragraph (m) of this section.
    (o) In reaching a decision under paragraphs (m) or (n) of this 
section, the Director may specify a person to act as a reviewing 
official. The reviewing official's duties shall be specified by the 
Director on a case-by-case basis, and may include reviewing the record, 
obtaining additional information from the participants, providing the 
Director with written recommendations, and such other duties as the 
Director shall prescribe in a particular case.
    (p) A provider that files a request for review shall bear its own 
costs and expenses, including counsel fees.
    (q) When a decision to remove a provider from the approved list 
takes effect, the provider shall:
    (1) Immediately cease providing an instructional course to debtors;
    (2) No later than three business days after the date of removal, 
send all certificates to all debtors who completed an instructional 
course prior to the provider's removal from the approved list; and
    (3) No later than three business days after the date of removal, 
return all fees to debtors who had paid for an instructional course, but 
had not completely received the instructional course.
    (r) A provider must exhaust all administrative remedies before 
seeking redress in any court of competent jurisdiction.

[78 FR 16172, Mar. 14, 2013]



 Sec. Appendix A to Part 58--Guidelines for Reviewing Applications for 
  Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330

    (a) General Information. (1) The Bankruptcy Reform Act of 1994 
amended the responsibilities of the United States Trustees under 28 
U.S.C. 586(a)(3)(A) to provide that, whenever they deem appropriate, 
United States Trustees will review applications for compensation and 
reimbursement of expenses under section 330 of the Bankruptcy Code, 11 
U.S.C. 101, et seq. (``Code''), in accordance with procedural guidelines 
(``Guidelines'') adopted by the Executive Office for United States 
Trustees (``Executive Office''). The following Guidelines have been 
adopted by the Executive Office and are to be uniformly applied by the 
United States Trustees except when circumstances warrant different 
treatment.
    (2) The United States Trustees shall use these Guidelines in all 
cases commenced on or after October 22, 1994.
    (3) The Guidelines are not intended to supersede local rules of 
court, but should be read as complementing the procedures set forth in 
local rules.
    (4) Nothing in the Guidelines should be construed:
    (i) To limit the United States Trustee's discretion to request 
additional information necessary for the review of a particular 
application or type of application or to refer any information provided 
to the United

[[Page 180]]

States Trustee to any investigatory or prosecutorial authority of the 
United States or a state;
    (ii) To limit the United States Trustee's discretion to determine 
whether to file comments or objections to applications; or
    (iii) To create any private right of action on the part of any 
person enforceable in litigation with the United States Trustee or the 
United States.
    (5) Recognizing that the final authority to award compensation and 
reimbursement under section 330 of the Code is vested in the Court, the 
Guidelines focus on the disclosure of information relevant to a proper 
award under the law. In evaluating fees for professional services, it is 
relevant to consider various factors including the following: the time 
spent; the rates charged; whether the services were necessary to the 
administration of, or beneficial towards the completion of, the case at 
the time they were rendered; whether services were performed within a 
reasonable time commensurate with the complexity, importance, and nature 
of the problem, issue, or task addressed; and whether compensation is 
reasonable based on the customary compensation charged by comparably 
skilled practitioners in non-bankruptcy cases. The Guidelines thus 
reflect standards and procedures articulated in section 330 of the Code 
and Rule 2016 of the Federal Rules of Bankruptcy Procedure for awarding 
compensation to trustees and to professionals employed under section 327 
or 1103. Applications that contain the information requested in these 
Guidelines will facilitate review by the Court, the parties, and the 
United States Trustee.
    (6) Fee applications submitted by trustees are subject to the same 
standard of review as are applications of other professionals and will 
be evaluated according to the principles articulated in these 
Guidelines. Each United States Trustee should establish whether and to 
what extent trustees can deviate from the format specified in these 
Guidelines without substantially affecting the ability of the United 
States Trustee to review and comment on their fee applications in a 
manner consistent with the requirements of the law.
    (b) Contents of Applications for Compensation and Reimbursement of 
Expenses. All applications should include sufficient detail to 
demonstrate compliance with the standards set forth in 11 U.S.C. 
Sec. 330. The fee application should also contain sufficient information 
about the case and the applicant so that the Court, the creditors, and 
the United States Trustee can review it without searching for relevant 
information in other documents. The following will facilitate review of 
the application.
    (1) Information about the Applicant and the Application. The 
following information should be provided in every fee application:
    (i) Date the bankruptcy petition was filed, date of the order 
approving employment, identity of the party represented, date services 
commenced, and whether the applicant is seeking compensation under a 
provision of the Bankruptcy Code other than section 330.
    (ii) Terms and conditions of employment and compensation, source of 
compensation, existence and terms controlling use of a retainer, and any 
budgetary or other limitations on fees.
    (iii) Names and hourly rates of all applicant's professionals and 
paraprofessionals who billed time, explanation of any changes in hourly 
rates from those previously charged, and statement of whether the 
compensation is based on the customary compensation charged by 
comparably skilled practitioners in cases other than cases under title 
11.
    (iv) Whether the application is interim or final, and the dates of 
previous orders on interim compensation or reimbursement of expenses 
along with the amounts requested and the amounts allowed or disallowed, 
amounts of all previous payments, and amount of any allowed fees and 
expenses remaining unpaid.
    (v) Whether the person on whose behalf the applicant is employed has 
been given the opportunity to review the application and whether that 
person has approved the requested amount.
    (vi) When an application is filed less than 120 days after the order 
for relief or after a prior application to the Court, the date and terms 
of the order allowing leave to file at shortened intervals.
    (vii) Time period of the services or expenses covered by the 
application.
    (2) Case Status. The following information should be provided to the 
extent that it is known to or can be reasonably ascertained by the 
applicant:
    (i) In a chapter 7 case, a summary of the administration of the case 
including all moneys received and disbursed in the case, when the case 
is expected to close, and, if applicant is seeking an interim award, 
whether it is feasible to make an interim distribution to creditors 
without prejudicing the rights of any creditor holding a claim of equal 
or higher priority.
    (ii) In a chapter 11 case, whether a plan and disclosure statement 
have been filed and, if not yet filed, when the plan and disclosure 
statement are expected to be filed; whether all quarterly fees have been 
paid to the United States Trustee; and whether all monthly operating 
reports have been filed.
    (iii) In every case, the amount of cash on hand or on deposit, the 
amount and nature of accrued unpaid administrative expenses, and the 
amount of unencumbered funds in the estate.
    (iv) Any material changes in the status of the case that occur after 
the filing of the fee application should be raised, orally or in

[[Page 181]]

writing, at the hearing on the application or, if a hearing is not 
required, prior to the expiration of the time period for objection.
    (3) Summary Sheet. All applications should contain a summary or 
cover sheet that provides a synopsis of the following information:
    (i) Total compensation and expenses requested and any amount(s) 
previously requested;
    (ii) Total compensation and expenses previously awarded by the 
court;
    (iii) Name and applicable billing rate for each person who billed 
time during the period, and date of bar admission for each attorney;
    (iv) Total hours billed and total amount of billing for each person 
who billed time during billing period; and
    (v) Computation of blended hourly rate for persons who billed time 
during period, excluding paralegal or other paraprofessional time.
    (4) Project Billing Format. (i) To facilitate effective review of 
the application, all time and service entries should be arranged by 
project categories. The project categories set forth in exhibit A should 
be used to the extent applicable. A separate project category should be 
used for administrative matters and, if payment is requested, for fee 
application preparation.
    (ii) The United States Trustee has discretion to determine that the 
project billing format is not necessary in a particular case or in a 
particular class of cases. Applicants should be encouraged to consult 
with the United States Trustee if there is a question as to the need for 
project billing in any particular case.
    (iii) Each project category should contain a narrative summary of 
the following information:
    (A) a description of the project, its necessity and benefit to the 
estate, and the status of the project including all pending litigation 
for which compensation and reimbursement are requested;
    (B) identification of each person providing services on the project; 
and
    (C) a statement of the number of hours spent and the amount of 
compensation requested for each professional and paraprofessional on the 
project.
    (iv) Time and service entries are to be reported in chronological 
order under the appropriate project category.
    (v) Time entries should be kept contemporaneously with the services 
rendered in time periods of tenths of an hour. Services should be noted 
in detail and not combined or ``lumped'' together, with each service 
showing a separate time entry; however, tasks performed in a project 
which total a de minimis amount of time can be combined or lumped 
together if they do not exceed .5 hours on a daily aggregate. Time 
entries for telephone calls, letters, and other communications should 
give sufficient detail to identify the parties to and the nature of the 
communication. Time entries for court hearings and conferences should 
identify the subject of the hearing or conference. If more than one 
professional from the applicant firm attends a hearing or conference, 
the applicant should explain the need for multiple attendees.
    (5) Reimbursement for Actual, Necessary Expenses. Any expense for 
which reimbursement is sought must be actual and necessary and supported 
by documentation as appropriate. Factors relevant to a determination 
that the expense is proper include the following:
    (i) Whether the expense is reasonable and economical. For example, 
first class and other luxurious travel mode or accommodations will 
normally be objectionable.
    (ii) Whether the requested expenses are customarily charged to non-
bankruptcy clients of the applicant.
    (iii) Whether applicant has provided a detailed itemization of all 
expenses including the date incurred, description of expense (e.g., type 
of travel, type of fare, rate, destination), method of computation, and, 
where relevant, name of the person incurring the expense and purpose of 
the expense. Itemized expenses should be identified by their nature 
(e.g., long distance telephone, copy costs, messengers, computer 
research, airline travel, etc,) and by the month incurred. Unusual items 
require more detailed explanations and should be allocated, where 
practicable, to specific projects.
    (iv) Whether applicant has prorated expenses where appropriate 
between the estate and other cases (e.g., travel expenses applicable to 
more than one case) and has adequately explained the basis for any such 
proration.
    (v) Whether expenses incurred by the applicant to third parties are 
limited to the actual amounts billed to, or paid by, the applicant on 
behalf of the estate.
    (vi) Whether applicant can demonstrate that the amount requested for 
expenses incurred in-house reflect the actual cost of such expenses to 
the applicant. The United States Trustee may establish an objection 
ceiling for any in-house expenses that are routinely incurred and for 
which the actual cost cannot easily be determined by most professionals 
(e.g., photocopies, facsimile charges, and mileage).
    (vii) Whether the expenses appear to be in the nature 
nonreimbursable overhead. Overhead consists of all continuous 
administrative or general costs incident to the operation of the 
applicant's office and not particularly attributable to an individual 
client or case. Overhead includes, but is not limited to, word 
processing, proofreading, secretarial

[[Page 182]]

and other clerical services, rent, utilities, office equipment and 
furnishings, insurance, taxes, local telephones and monthly car phone 
charges, lighting, heating and cooling, and library and publication 
charges.
    (viii) Whether applicant has adhered to allowable rates for expenses 
as fixed by local rule or order of the Court.

                      Exhibit A--Project Categories

    Here is a list of suggested project categories for use in most 
bankruptcy cases. Only one category should be used for a given activity. 
Professionals should make their best effort to be consistent in their 
use of categories, whether within a particular firm or by different 
firms working on the same case. It would be appropriate for all 
professionals to discuss the categories in advance and agree generally 
on how activities will be categorized. This list is not exclusive. The 
application may contain additional categories as the case requires. They 
are generally more applicable to attorneys in chapter 7 and chapter 11, 
but may be used by all professionals as appropriate.
    Asset Analysis and Recovery: Identification and review of potential 
assets including causes of action and non-litigation recoveries.
    Asset Disposition: Sales, leases (Sec. 365 matters), abandonment and 
related transaction work.
    Business Operations: Issues related to debtor-in-possession 
operating in chapter 11 such as employee, vendor, tenant issues and 
other similar problems.
    Case Administration: Coordination and compliance activities, 
including preparation of statement of financial affairs; schedules; list 
of contracts; United States Trustee interim statements and operating 
reports; contacts with the United States Trustee; general creditor 
inquiries.
    Claims Administration and Objections: Specific claim inquiries; bar 
date motions; analyses, objections and allowances of claims.
    Employee Benefits/Pensions: Review issues such as severance, 
retention, 401K coverage and continuance of pension plan.
    Fee/Employment Applicants: Preparation of employment and fee 
applications for self or others; motions to establish interim 
procedures.
    Fee/Employment Objections: Review of and objections to the 
employment and fee applications of others.
    Financing: Matters under Secs. 361, 363 and 364 including cash 
collateral and secured claims; loan document analysis.
    Litigation: There should be a separate category established for each 
matter (e.g., XYZ Litigation).
    Meetings of Creditors: Preparing for and attending the conference of 
creditors, the Sec. 341(a) meeting and other creditors' committee 
meetings.
    Plan and Disclosure Statement: Formulation, presentation and 
confirmation; compliance with the plan confirmation order, related 
orders and rules; disbursement and case closing activities, except those 
related to the allowance and objections to allowance of claims.
    Relief From Stay Proceedings: Matters relating to termination or 
continuation of automatic stay under Sec. 362.
    The following categories are generally more applicable to 
accountants and financial advisors, but may be used by all professionals 
as appropriate.
    Accounting/Auditing: Activities related to maintaining and auditing 
books of account, preparation of financial statements and account 
analysis.
    Business Analysis: Preparation and review of company business plan; 
development and review of strategies; preparation and review of cash 
flow forecasts and feasibility studies.
    Corporate Finance: Review financial aspects of potential mergers, 
acquisitions and disposition of company or subsidiaries.
    Data Analysis: Management information systems review, installation 
and analysis, construction, maintenance and reporting of significant 
case financial data, lease rejection, claims, etc.
    Litigation Consulting: Providing consulting and expert witness 
services relating to various bankruptcy matters such as insolvency, 
feasibility, avoiding actions, forensic accounting, etc.
    Reconstruction Accounting: Reconstructing books and records from 
past transactions and bringing accounting current.
    Tax Issues: Analysis of tax issues and preparation of state and 
federal tax returns.
    Valuation: Appraise or review appraisals of assets.

[61 FR 24890, May 17, 1996]



PART 59_GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS
HELD BY THIRD PARTIES--Table of Contents



Sec.
59.1  Introduction.
59.2  Definitions.
59.3  Applicability.
59.4  Procedures.
59.5  Functions and authorities of the Deputy Assistant Attorneys 
          General.
59.6  Sanctions.

    Authority: Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 
2000aa-11).

    Source: Order No. 942-81, 46 FR 22364, Apr. 17, 1981, unless 
otherwise noted.

[[Page 183]]



Sec. 59.1  Introduction.

    (a) A search for documentary materials necessarily involves 
intrusions into personal privacy. First, the privacy of a person's home 
or office may be breached. Second, the execution of such a search may 
require examination of private papers within the scope of the search 
warrant, but not themselves subject to seizure. In addition, where such 
a search involves intrusions into professional, confidential 
relationships, the privacy interests of other persons are also 
implicated.
    (b) It is the responsibility of federal officers and employees to 
recognize the importance of these personal privacy interests, and to 
protect against unnecessary intrusions. Generally, when documentary 
materials are held by a disinterested third party, a subpoena, 
administrative summons, or governmental request will be an effective 
alternative to the use of a search warrant and will be considerably less 
intrusive. The purpose of the guidelines set forth in this part is to 
assure that federal officers and employees do not use search and seizure 
to obtain documentary materials in the possession of disinterested third 
parties unless reliance on alternative means would substantially 
jeopardize their availability (e.g., by creating a risk of destruction, 
etc.) or usefulness (e.g., by detrimentally delaying the investigation, 
destroying a chain of custody, etc.). Therefore, the guidelines in this 
part establish certain criteria and procedural requirements which must 
be met before a search warrant may be used to obtain documentary 
materials held by disinterested third parties. The guidelines in this 
part are not intended to inhibit the use of less intrusive means of 
obtaining documentary materials such as the use of a subpoena, summons, 
or formal or informal request.



Sec. 59.2  Definitions.

    As used in this part--
    (a) The term attorney for the government shall have the same meaning 
as is given that term in Rule 54(c) of the Federal Rules of Criminal 
Procedure;
    (b) The term disinterested third party means a person or 
organization not reasonably believed to be--
    (1) A suspect in the criminal offense to which the materials sought 
under these guidelines relate; or
    (2) Related by blood or marriage to such a suspect;
    (c) The term documentary materials means any materials upon which 
information is recorded, and includes, but is not limited to, written or 
printed materials, photographs, films or negatives, audio or video 
tapes, or materials upon which information is electronically or 
magnetically recorded, but does not include materials which constitute 
contraband, the fruits or instrumentalities of a crime, or things 
otherwise criminally possessed;
    (d) The term law enforcement officer shall have the same meaning as 
the term ``federal law enforcement officer'' as defined in Rule 41(h) of 
the Federal Rules of Criminal Procedure; and
    (e) The term supervisory official of the Department of Justice means 
the supervising attorney for the section, office, or branch within the 
Department of Justice which is responsible for the investigation or 
prosecution of the offense at issue, or any of his superiors.



Sec. 59.3  Applicability.

    (a) The guidelines set forth in this part apply, pursuant to section 
201 of the Privacy Protection Act of 1980 (Sec. 201, Pub. L. 96-440, 94 
Stat. 1879, (42 U.S.C. 2000aa-11)), to the procedures used by any 
federal officer or employee, in connection with the investigation or 
prosecution of a criminal offense, to obtain documentary materials in 
the private possession of a disinterested third party.
    (b) The guidelines set forth in this part do not apply to:
    (1) Audits, examinations, or regulatory, compliance, or 
administrative inspections or searches pursuant to federal statute or 
the terms of a federal contract;
    (2) The conduct of foreign intelligence or counterintelligence 
activities by a government authority pursuant to otherwise applicable 
law;
    (3) The conduct, pursuant to otherwise applicable law, of searches 
and seizures at the borders of, or at international points of entry 
into, the United States in order to enforce the customs laws of the 
United States;

[[Page 184]]

    (4) Governmental access to documentary materials for which valid 
consent has been obtained; or
    (5) Methods of obtaining documentary materials whose location is 
known but which have been abandoned or which cannot be obtained through 
subpoena or request because they are in the possession of a person whose 
identity is unknown and cannot with reasonable effort be ascertained.
    (c) The use of search and seizure to obtain documentary materials 
which are believed to be possessed for the purpose of disseminating to 
the public a book, newspaper, broadcast, or other form of public 
communication is subject to title I of the Privacy Protection Act of 
1980 (Sec. 101, et seq., Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 
2000aa, et seq.)), which strictly prohibits the use of search and 
seizure to obtain such materials except under specified circumstances.
    (d) These guidelines are not intended to supersede any other 
statutory, regulatory, or policy limitations on access to, or the use or 
disclosure of particular types of documentary materials, including, but 
not limited to, the provisions of the Right to Financial Privacy Act of 
1978 (12 U.S.C. 3401, et seq.), the Drug Abuse Office and Treatment Act 
of 1972, as amended (21 U.S.C. 1101, et seq.), and the Comprehensive 
Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation 
Act of 1970, as amended (42 U.S.C. 4541, et seq.). For the use of a 
warrant to obtain information from, or records of, members of the news 
media, see the Department's statement of policy set forth in Sec. 50.10 
of this chapter.

[Order No. 942-81, 46 FR 22364, Apr. 17, 1981, as amended by AG Order 
No. 3420-2014, 79 FR 10994, Feb. 27, 2014]



Sec. 59.4  Procedures. \1\
---------------------------------------------------------------------------

    \1\ Notwithstanding the provisions of this section, any application 
for a warrant to search for evidence of a criminal tax offense under the 
jurisdiction of the Tax Division must be specifically approved in 
advance by the Tax Division pursuant to section 6-2.330 of the U.S. 
Attorneys' Manual.
---------------------------------------------------------------------------

    (a) Provisions governing the use of search warrants generally. (1) A 
search warrant should not be used to obtain documentary materials 
believed to be in the private possession of a disinterested third party 
unless it appears that the use of a subpoena, summons, request, or other 
less intrusive alternative means of obtaining the materials would 
substantially jeopardize the availability or usefulness of the materials 
sought, and the application for the warrant has been authorized as 
provided in paragraph (a)(2) of this section.
    (2) No federal officer or employee shall apply for a warrant to 
search for and seize documentary materials believed to be in the private 
possession of a disinterested third party unless the application for the 
warrant has been authorized by an attorney for the government. Provided, 
however, that in an emergency situation in which the immediacy of the 
need to seize the materials does not permit an opportunity to secure the 
authorization of an attorney for the government, the application may be 
authorized by a supervisory law enforcement officer in the applicant's 
department or agency, if the appropriate U.S. Attorney (or where the 
case is not being handled by a U.S. Attorney's Office, the appropriate 
supervisory official of the Department of Justice) is notified of the 
authorization and the basis for justifying such authorization under this 
part within 24 hours of the authorization.
    (b) Provisions governing the use of search warrants which may 
intrude upon professional, confidential relationships. (1) A search 
warrant should not be used to obtain documentary materials believed to 
be in the private possession of a disinterested third party physician, 
\2\ lawyer, or clergyman, under circumstances in which the materials 
sought, or other materials likely to be reviewed during the execution of 
the

[[Page 185]]

warrant, contain confidential information on patients, clients, or 
parishioners which was furnished or developed for the purposes of 
professional counseling or treatment, unless--
---------------------------------------------------------------------------

    \2\ Documentary materials created or compiled by a physician, but 
retained by the physician as a matter of practice at a hospital or 
clinic shall be deemed to be in the private possession of the physician, 
unless the clinic or hospital is a suspect in the offense.
---------------------------------------------------------------------------

    (i) It appears that the use of a subpoena, summons, request or other 
less intrusive alternative means of obtaining the materials would 
substantially jeopardize the availability or usefulness of the materials 
sought;
    (ii) Access to the documentary materials appears to be of 
substantial importance to the investigation or prosecution for which 
they are sought; and
    (iii) The application for the warrant has been approved as provided 
in paragraph (b)(2) of this section.
    (2) No federal officer or employee shall apply for a warrant to 
search for and seize documentary materials believed to be in the private 
possession of a disinterested third party physician, lawyer, or 
clergyman under the circumstances described in paragraph (b)(1) of this 
section, unless, upon the recommendation of the U.S. Attorney (or where 
a case is not being handled by a U.S. Attorney's Office, upon the 
recommendation of the appropriate supervisory official of the Department 
of Justice), an appropriate Deputy Assistant Attorney General has 
authorized the application for the warrant. Provided, however, that in 
an emergency situation in which the immediacy of the need to seize the 
materials does not permit an opportunity to secure the authorization of 
a Deputy Assistant Attorney General, the application may be authorized 
by the U.S. Attorney (or where the case is not being handled by a U.S. 
Attorney's Office, by the appropriate supervisory official of the 
Department of Justice) if an appropriate Deputy Assistant Attorney 
General is notified of the authorization and the basis for justifying 
such authorization under this part within 72 hours of the authorization.
    (3) Whenever possible, a request for authorization by an appropriate 
Deputy Assistant Attorney General of a search warrant application 
pursuant to paragraph (b)(2) of this section shall be made in writing 
and shall include:
    (i) The application for the warrant; and
    (ii) A brief description of the facts and circumstances advanced as 
the basis for recommending authorization of the application under this 
part.

If a request for authorization of the application is made orally or if, 
in an emergency situation, the application is authorized by the U.S. 
Attorney or a supervisory official of the Department of Justice as 
provided in paragraph (b)(2) of this section, a written record of the 
request including the materials specified in paragraphs (b)(3) (i) and 
(ii) of this section shall be transmitted to an appropriate Deputy 
Assistant Attorney General within 7 days. The Deputy Assistant Attorneys 
General shall keep a record of the disposition of all requests for 
authorizations of search warrant applications made under paragraph (b) 
of this section.
    (4) A search warrant authorized under paragraph (b)(2) of this 
section shall be executed in such a manner as to minimize, to the 
greatest extent practicable, scrutiny of confidential materials.
    (5) Although it is impossible to define the full range of additional 
doctor-like therapeutic relationships which involve the furnishing or 
development of private information, the U.S. Attorney (or where a case 
is not being handled by a U.S. Attorney's Office, the appropriate 
supervisory official of the Department of Justice) should determine 
whether a search for documentary materials held by other disinterested 
third party professionals involved in such relationships (e.g. 
psychologists or psychiatric social workers or nurses) would implicate 
the special privacy concerns which are addressed in paragraph (b) of 
this section. If the U.S. Attorney (or other supervisory official of the 
Department of Justice) determines that such a search would require 
review of extremely confidential information furnished or developed for 
the purposes of professional counseling or treatment, the provisions of 
this subsection should be applied. Otherwise, at a minimum, the 
requirements of paragraph (a) of this section must be met.
    (c) Considerations bearing on choice of methods. In determining 
whether, as an alternative to the use of a search warrant, the use of a 
subpoena or other

[[Page 186]]

less intrusive means of obtaining documentary materials would 
substantially jeopardize the availability or usefulness of the materials 
sought, the following factors, among others, should be considered:
    (1) Whether it appears that the use of a subpoena or other 
alternative which gives advance notice of the government's interest in 
obtaining the materials would be likely to result in the destruction, 
alteration, concealment, or transfer of the materials sought; 
considerations, among others, bearing on this issue may include:
    (i) Whether a suspect has access to the materials sought;
    (ii) Whether there is a close relationship of friendship, loyalty, 
or sympathy between the possessor of the materials and a suspect;
    (iii) Whether the possessor of the materials is under the domination 
or control of a suspect;
    (iv) Whether the possessor of the materials has an interest in 
preventing the disclosure of the materials to the government;
    (v) Whether the possessor's willingness to comply with a subpoena or 
request by the government would be likely to subject him to intimidation 
or threats of reprisal;
    (vi) Whether the possessor of the materials has previously acted to 
obstruct a criminal investigation or judicial proceeding or refused to 
comply with or acted in defiance of court orders; or
    (vii) Whether the possessor has expressed an intent to destroy, 
conceal, alter, or transfer the materials;
    (2) The immediacy of the government's need to obtain the materials; 
considerations, among others, bearing on this issue may include:
    (i) Whether the immediate seizure of the materials is necessary to 
prevent injury to persons or property;
    (ii) Whether the prompt seizure of the materials is necessary to 
preserve their evidentiary value;
    (iii) Whether delay in obtaining the materials would significantly 
jeopardize an ongoing investigation or prosecution; or
    (iv) Whether a legally enforceable form of process, other than a 
search warrant, is reasonably available as a means of obtaining the 
materials.

The fact that the disinterested third party possessing the materials may 
have grounds to challenge a subpoena or other legal process is not in 
itself a legitimate basis for the use of a search warrant.



Sec. 59.5  Functions and authorities of the Deputy Assistant
Attorneys General.

    The functions and authorities of the Deputy Assistant Attorneys 
General set out in this part may at any time be exercised by an 
Assistant Attorney General, the Associate Attorney General, the Deputy 
Attorney General, or the Attorney General.



Sec. 59.6  Sanctions.

    (a) Any federal officer or employee violating the guidelines set 
forth in this part shall be subject to appropriate disciplinary action 
by the agency or department by which he is employed.
    (b) Pursuant to section 202 of the Privacy Protection Act of 1980 
(sec. 202, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa-12)), an 
issue relating to the compliance, or the failure to comply, with the 
guidelines set forth in this part may not be litigated, and a court may 
not entertain such an issue as the basis for the suppression or 
exclusion of evidence.



PART 60_AUTHORIZATION OF FEDERAL LAW ENFORCEMENT OFFICERS TO REQUEST
THE ISSUANCE OF A SEARCH WARRANT--Table of Contents



Sec.
60.1  Purpose.
60.2  Authorized categories.
60.3  Agencies with authorized personnel.

    Authority: Rule 41(h), Fed. R. Crim. P (18 U.S.C. appendix).



Sec. 60.1  Purpose.

    This regulation authorizes certain categories of federal law 
enforcement officers to request the issuance of search warrants under 
Rule 41, Fed. R. Crim. P., and lists the agencies whose officers are so 
authorized. Rule 41(a) provides in part that a search warrant may be 
issued ``upon the request of a federal law enforcement officer,'' and 
defines that term in Rule 41(h) as ``any

[[Page 187]]

government agent, * * * who is engaged in the enforcement of the 
criminal laws and is within the category of officers authorized by the 
Attorney General to request the issuance of a search warrant.'' The 
publication of the categories and the listing of the agencies is 
intended to inform the courts of the personnel who are so authorized. It 
should be noted that only in the very rare and emergent case is the law 
enforcement officer permitted to seek a search warrant without the 
concurrence of the appropriate U.S. Attorney's office. Further, in all 
instances, military agents of the Department of Defense must obtain the 
concurrence of the appropriate U.S. Attorney's Office before seeking a 
search warrant.

[Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by Order No. 
1026-83, 48 FR 37377, Aug. 18, 1983]



Sec. 60.2  Authorized categories.

    The following categories of federal law enforcement officers are 
authorized to request the issuance of a search warrant:
    (a) Any person authorized to execute search warrants by a statute of 
the United States.
    (b) Any person who has been authorized to execute search warrants by 
the head of a department, bureau, or agency (or his delegate, if 
applicable) pursuant to any statute of the United States.
    (c) Any peace officer or customs officer of the Virgin Islands, 
Guam, or the Canal Zone.
    (d) Any officer of the Metropolitan Police Department, District of 
Columbia.
    (e) Any person authorized to execute search warrants by the 
President of the United States.
    (f) Any civilian agent of the Department of Defense not subject to 
military direction who is authorized by statute or other appropriate 
authority to enforce the criminal laws of the United States.
    (g) Any civilian agent of the Department of Defense who is 
authorized to enforce the Uniform Code of Military Justice.
    (h) Any military agent of the Department of Defense who is 
authorized to enforce the Uniform Code of Military Justice.
    (i) Any special agent of the Office of Inspector General, Department 
of Transportation.
    (j) Any special agent of the Investigations Division of the Office 
of Inspector General, Small Business Administration.
    (k) Any special agent of the Office of Investigations and the Office 
of Labor Racketeering of the Office of Inspector General, Department of 
Labor.
    (l) Any special agent of the Office of Investigations of the Office 
of Inspector General, General Services Administration.
    (m) Any special agent of the Office of Inspector General, Department 
of Housing and Urban Development.
    (n) Any special agent of the Office of Inspector General, Department 
of Interior.
    (o) Any special agent of the Office of Inspector General, Veterans 
Administration.
    (p) Any special agent of the Office of Inspector General, Social 
Security Administration.
    (q) Any special agent of the Office of Inspector General, Department 
of Health and Human Services.

[Order No. 826-79, 44 FR 21785, Apr. 12, 1979, as amended by Order No. 
1026-83, 48 FR 37377, Aug. 18, 1983; Order No. 1143-86, 51 FR 26878, 
July 28, 1986; Order No. 1188-87, 52 FR 19138, May 21, 1987; Order No. 
1327-89, 54 FR 9431, Mar. 7, 1989; Order No. 2000-95, 60 FR 62734, Dec. 
7, 1995]



Sec. 60.3  Agencies with authorized personnel.

    The following agencies have law enforcement officers within the 
categories listed in Sec. 60.2 of this part:
    (a) National Law Enforcement Agencies:
    (1) Department of Agriculture:
    National Forest Service
    Office of the Inspector General
    (2) Department of Defense:
    Defense Investigative Service Criminal Investigation Command, U.S. 
Army
    Naval Investigative Service, U.S. Navy
    Office of Assistant Inspector General for Investigations, Office of 
Defense Inspector General
    Office of Special Investigation, U.S. Air Force

[[Page 188]]

    (3) Department of Health and Human Services:
    Center for Disease Control
    Food and Drug Administration
    Office of Investigations, Office of the Inspector General
    (4) Department of the Interior:
    Bureau of Indian Affairs
    Bureau of Sport Fisheries and Wildlife
    National Park Service
    (5) Department of Justice:
    Drug Enforcement Administration
    Federal Bureau of Investigation
    Immigration and Naturalization Service
    U.S. Marshals Service
    (6) Department of Transportation:
    U.S. Coast Guard
    Office of Inspector General, Department of Transportation
    (7) Department of the Treasury:
    Bureau of Alcohol, Tobacco, and Firearms
    Executive Protective Service
    Internal Revenue Service
    Criminal Investigation Division
    Internal Security Division, Inspection Service
    U.S. Customs Service
    U.S. Secret Service
    (8) U.S. Postal Service:
    Inspection Service
    Office of Inspector General
    (9) Department of Commerce: Office of Export Enforcement
    (10) Small Business Administration: Investigations Division of the 
Office of Inspector General
    (11) Department of State: Diplomatic Security Service
    (12) Department of Labor: Office of Investigations and Office of 
Labor Racketeering of the Office of Inspector General
    (13) General Services Administration: Office of Inspector General
    (14) Department of Housing and Urban Development: Office of 
Inspector General
    (15) Department of the Interior: Office of Inspector General
    (16) Veterans Administration: Office of Inspector General
    (17) Environmental Protection Agency: Office of Criminal 
Investigations
    (18) Social Security Administration, Office of Inspector General
    (b) Local Law Enforcement Agencies:
    (1) District of Columbia Metropolitan Police Department
    (2) Law Enforcement Forces and Customs Agencies of Guam, The Virgin 
Islands, and the Canal Zone.

[Order No. 826-79, 44 FR 21785, Apr. 12, 1979]

    Editorial Note: For Federal Register citations affecting Sec. 60.3, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



PART 61_PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT--Table of Contents



                            Subpart A_General

Sec.
61.1  Background.
61.2  Purpose.
61.3  Applicability.
61.4  Major federal action.

                    Subpart B_Implementing Procedures

61.5  Typical classes of action.
61.6  Consideration of environmental documents in decisionmaking.
61.7  Legislative proposals.
61.8  Classified proposals.
61.9  Emergencies.
61.10  Ensuring Department NEPA compliance.
61.11  Environmental information.

Appendix A to Part 61--Bureau of Prisons Procedures Relating to the 
          Implementation of the National Environmental Policy Act
Appendix B to Part 61--Drug Enforcement Administration Procedures 
          Relating to the Implementation of the National Environmental 
          Policy Act
Appendix C to Part 61--Immigration and Naturalization Service Procedures 
          Relating to the Implementation of the National Environmental 
          Policy Act
Appendix D to Part 61--Office of Justice Assistance, Research, and 
          Statistics Procedures Relating to the Implementation of the 
          National Environmental Policy Act
Appendix E to Part 61--United States Marshals Service Procedures 
          Relating to the Implementation of the National Environmental 
          Policy Act

    Authority: 28 U.S.C. 509, 510; 5 U.S.C. 301; Executive Order No. 
11991.

    Source: Order No. 927-81, 46 FR 7953, Jan. 26, 1981, unless 
otherwise noted.

[[Page 189]]



                            Subpart A_General



Sec. 61.1  Background.

    (a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., establishes national policies and goals for the protection 
of the environment. Section 102(2) of NEPA contains certain procedural 
requirements directed toward the attainment of such goals. In 
particular, all federal agencies are required to give appropriate 
consideration to the environmental effects of their proposed actions in 
their decisionmaking and to prepare detailed environmental statements on 
proposals for legislation significantly affecting the quality of the 
human environment and on other major federal actions significantly 
affecting the quality of the human environment.
    (b) Executive Order No. 11991 of May 24, 1977, directed the Council 
on Environmental Quality (CEQ) to issue regulations to implement the 
procedural provisions of NEPA. Accordingly, CEQ issued final NEPA 
regulations, 40 CFR parts 1500-1508, (``The NEPA regulations''). These 
regulations provide that each federal agency shall, as necessary, adopt 
implementing procedures to supplement the regulations. The NEPA 
regulations identify those sections of the regulations which must be 
addressed in agency procedures.



Sec. 61.2  Purpose.

    The purpose of this part is to establish Department of Justice 
procedures which supplement the relevant provisions of the NEPA 
regulations and to provide for the implementation of those provisions 
identified in 40 CFR 1507.3(b).



Sec. 61.3  Applicability.

    The procedures set forth in this part, with the exception of the 
appendices, apply to all organizational elements of the Department of 
Justice. Internal procedures applicable, respectively, to the Bureau of 
Prisons, the Drug Enforcement Administration, the Immigration and 
Naturalization Service, and the Office of Justice Assistance, Research 
and Statistics are set forth in the appendices to this part, for 
informational purposes.



Sec. 61.4  Major federal action.

    The NEPA regulations define ``major federal action.'' ``Major 
federal action'' does not include action taken by the Department of 
Justice within the framework of judicial or administrative enforcement 
proceedings or civil or criminal litigation, including but not limited 
to the submission of consent or settlement agreements and 
investigations. Neither does ``major federal action'' include the 
rendering of legal advice.



                    Subpart B_Implementing Procedures



Sec. 61.5  Typical classes of action.

    (a) The NEPA regulations require agencies to establish three typical 
classes of action for similar treatment under NEPA. These classes are: 
actions normally requiring environmental impact statements (EIS), 
actions normally not requiring assessments or EIS, and actions normally 
requiring assessments but not necessarily EIS. Typical Department of 
Justice actions falling within each class have been identified as 
follows:
    (1) Actions normally requiring EIS. None, except as noted in the 
appendices to this part.
    (2) Actions normally not requiring assessments or EIS. Actions not 
significantly affecting the human environment.
    (3) Actions normally requiring assessments but not necessarily EIS. 
(i) Proposals for major federal action;
    (ii) Proposals for legislation developed by or with the significant 
cooperation and support of the Department of Justice and for which the 
Department has primary responsibility for the subject matter.
    (b) The Department of Justice shall independently determine whether 
an EIS or an environmental assessment is required where:
    (1) A proposal for agency action is not covered by one of the 
typical classes of action above; or
    (2) For actions which are covered, the presence of extraordinary 
circumstances indicates that some other level of environmental review 
may be appropriate.

[[Page 190]]



Sec. 61.6  Consideration of environmental documents in decisionmaking.

    The NEPA regulations contain requirements to ensure adequate 
consideration of environmental documents in agency decisionmaking. To 
implement these requirements, the Department of Justice shall:
    (a) Consider from the earliest possible point in the process all 
relevant environmental documents in evaluating proposals for Department 
action;
    (b) Ensure that all relevant environmental documents, comments and 
responses accompany the proposal through existing Department review 
processes;
    (c) Consider those alternatives encompassed by the range of 
alternatives discussed when evaluating proposals for Department action, 
or if it is desirable to consider substantially different alternatives, 
first supplement the environmental document to include analysis of the 
additional alternatives;
    (d) Where an EIS has been prepared, consider the specific 
alternatives analyzed in the EIS when evaluating the proposal which is 
the subject of the EIS.



Sec. 61.7  Legislative proposals.

    (a) Each subunit of the Department of Justice which develops or 
significantly cooperates and supports a bill or legislative proposal to 
Congress which may have an effect on the environment shall, in the early 
stages of development of the bill or proposal, undertake an assessment 
to determine whether the legislation will significantly affect the 
environment. The Office of Legislative Affairs shall monitor legislative 
proposals to assure that Department procedures for legislation are 
complied with. Requests for appropriations need not be so analyzed.
    (b) If the Department of Justice has primary responsibility for the 
subject matter involved and if the subunit affected finds that the bill 
or legislative proposal has a significant impact on the environment, 
that subunit shall prepare a legislative environmental impact statement 
in compliance with 40 CFR 1506.8.



Sec. 61.8  Classified proposals.

    If an environmental document includes classified matter, a version 
containing only unclassified material shall be prepared unless the head 
of the office, board, bureau or division determines that preparation of 
an unclassified version is not feasible.



Sec. 61.9  Emergencies.

    CEQ shall be consulted when emergency circumstances make it 
necessary to take a major federal action with significant environmental 
impact without following otherwise applicable procedural requirements 
under NEPA.



Sec. 61.10  Ensuring Department NEPA compliance.

    The Land and Natural Resources Division shall have final 
responsibility for ensuring compliance with the requirements of the 
procedures set forth in this part.



Sec. 61.11  Environmental information.

    Interested persons may contact the Land and Natural Resources 
Division for information regarding Department Justice compliance with 
NEPA.



Sec. Appendix A to Part 61--Bureau of Prisons Procedures Relating to the 
         Implementation of the National Environmental Policy Act

    1. Authority: (CEQ Regulations) NEPA, the Environmental Quality 
Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.) section 309 
of the Clean Air Act, as amended (42 U.S.C. 7609), and Executive Order 
11514, Protection and Enhancement of Environmental Quality (March 5, 
1970, as amended by Executive Order 11991, May 24, 1977.)
    2. Purpose: This guide shall apply to efforts associated with the 
leasing, purchase, design, construction, management, operation and 
maintenance of new and existing Bureau of Prisons facilities as well as 
the closing of existing Bureau of Prisons institutions. These procedures 
shall be used by the Regional Facilities Administration staff as well as 
the Central Office of Facilities Development and Operations staff. 
Activities concerning Bureau of Prisons compliance with NEPA shall be 
handled by and coordinated with these staff members and coordinated by 
Central Office Personnel. (Reference shall be made to Part 1507--Agency 
Compliance of the CEQ Regulations.)

[[Page 191]]

    3. Agency Description: The Bureau of Prisons, a component of the 
U.S. Department of Justice, is responsible for providing custody and 
care to committed Federal offenders in an integrated system of 
correctional institutions across the nation.
    The Bureau of Prisons performs its mission of protecting society by 
implementing the judgments of the Federal courts and safeguarding 
Federal offenders committed to the custody of the Attorney General.
    The administration of the Federal Prison System consists of six 
divisions. The central office in Washington, DC, is supplemented by five 
regional offices located in Atlanta, San Francisco, Dallas, Kansas City, 
and Philadelphia.
    4. (Reference: Sec. 1501.2(d)(1)--CEQ Regulations) The Bureau of 
Prisons shall make available the necessary technical staff to review 
proposals and prepare feasibility studies for facilities under 
consideration for possible use as Federal correctional institutions. 
(Reference: Sec. 1501.2(d)(2)--CEQ Regulations) At the appropriate time 
after project funding approval, the Bureau of Prisons, having identified 
a preferred general area for a new facility, will inform the members of 
Congress representing the affected locale of the intent to pursue the 
establishment of a Federal correctional institution in the area. This 
activation might include but not be limited to: (1) The construction of 
a new facility; (2) or Surplus Federal, state, or local facility to the 
Bureau of Prisons for prior use. The Bureau of Prisons shall advise and 
inform interested parties concerning proposed plans which might result 
in implementation of the NEPA regulations. After initial informal 
contacts have been made, the Bureau of Prisons will with the aid of 
local area officials, begin to identify desired locations for the 
proposed new facility. In the event of proposed activation of an 
existing facility for prison use, the Bureau of Prisons shall seek 
initial involvement among local officials and advice on alternative 
courses of action.
    In either case, if the issues appear significantly controversial, an 
informal public hearing will be held to present the issues to the 
community and seek their involvement in the planning process. Upon 
completion of the preliminary groundwork described above, the Bureau of 
Prisons will issue an A-95 letter of intent to (1) either file an EIS; 
(2) file an EIA; or (3) discontinue the efforts of locating a facility 
in the proposed area.
    5. Public Involvement: (Reference: Part 1506.6(3)--CEQ Regulations) 
Information regarding the policies of the Bureau of Prisons for 
implementing the NEPA process can be obtained from: Bureau of Prisons 
Facilities Development and Operations Office, 320 First Street, NW., 
Washington, DC 20534.
    6. Supplemental Statements: (Reference: Part 1502.9(c)(3)--CEQ 
Regulations) If it is necessary to prepare a supplement to a Draft or 
Final Environmental Impact Statement, the supplement shall be introduced 
into the project administrative record.
    7. Bureau of Prisons Decisionmaking Procedures: (Reference: Part 
1501.1 (a) through (e)--CEQ Regulations) Major decision points likely to 
involve the NEPA process:
    (1) Construction of a new Federal correctional institution.
    (2) Closing of an existing Federal correctional institution.
    (3) Activation of a surplus facility for conversion to a Federal 
correctional institution.
    (4) Significant change from the original mission of a Federal 
correctional institution.
    (5) New construction at an existing Federal correctional institution 
which might significantly impact upon the existing community 
environment.
    When the inclusion of certain voluminous data in environmental 
documents would prove impractical, the Bureau of Prisons will summarize 
the data and retain the original material as a part of its 
administrative record for the project. This material will be made 
available to the public in a central place to be designated in 
Environmental Impact Statements, and upon written request or court order 
copies of specified material will be provided. A charge may be made for 
copying, in accordance with current Department of Justice guidelines for 
reproduction of records.
    Decisionmakers shall verify the consideration of all available 
options in the EIS with a comparative analysis of the alternatives to be 
considered in the decisionmaking process.
    8. Those Actions Which Normally Do Require Environmental Impact 
Statements: (Reference: Sec. 1507.3(b)(2)(ii)--CEQ Regulations) (1) New 
Federal correctional institution construction projects.
    (2) Acquisition of surplus facilities for conversion to Federal 
correctional institutions, if the impact upon the quality of the human 
environment is likely to be significant.
    (3) The closing of an existing Federal correctional institution, if 
that is likely to have a significant impact upon the quality of the 
human environment.
    (4) Significant change from the original mission of a Federal 
correctional institution when the issue is likely to have an impact upon 
the quality of the human environment.
    (5) New construction at an existing Federal correctional institution 
which would significantly affect the physical capacity, when the action 
is likely to have an impact upon the quality of the human environment.
    (6) New construction at an existing Federal correctional institution 
which would significantly impact upon the quality of the community 
environment.

[[Page 192]]

    9. Those Actions Which Normally do not Require Either an 
Environmental Impact Statement or an Environmental Assessment: 
(Reference: Part 1507.3(b)(2)(ii) and Part 1508.4--CEQ Regulations) (1) 
Increase or decrease in population of a facility, above or below its 
physical capacity.
    (2) Construction projects for existing facilities, including but not 
limited to: additions and remodeling; replacement of building systems 
and components; maintenance and operations, repairs, and general 
improvements; when such projects do not significantly alter the program 
of the facility or significantly impact upon the quality of the 
environment in the community.
    (3) Contracts for halfway houses, community corrections centers, 
comprehensive sanction centers, community detention centers, or other 
similar facilities.
    10. Those Actions Which Normally Require Environmental Assessments 
but not Necessarily Environmental Impact Statements: (Reference: 
Sec. 1507.3(b)(2)(iii)--CEQ Regulations) (1) Acquisition of surplus 
facilities for conversion to Federal correctional institution.
    (2) Construction of additional facilities at an existing institution 
when the impact on the local environment is not seen to be significant, 
but when the alteration of programs or operations may be controversial.
    (3) The closing of an institution or significant reduction in 
population of an institution when the impact on the local environment is 
not seen to be significant.
    11. Emergency Actions: (Reference: Part 1506.11--CEQ Regulations). 
After consultation with the Council on Environmental Quality regarding 
alternative courses of action, the Bureau of Prisons may take action 
without observing the provisions of the CEQ Regulations and these Bureau 
of Prisons Procedures in the following cases:
    (1) When the replacement of suddenly unavailable local utilities 
services, and/or resources, due to circumstances beyond the control of 
the Bureau of Prisons, is vital to the lives and safety of inmates and 
staff or protection of U.S. Government property.
    (2) When unforeseen circumstances, such as greatly increased 
judicial commitments, suddenly dictate the activation of facilities to 
house increased numbers of Federal offenders and detainees significantly 
above the physical capacity of the combined Bureau of Prisons facilities 
in order to insure the lives and safety of inmates and staff or 
protection of U.S. Government property.
    (3) When the sudden destruction of or damage to institutions 
dictates immediate replacement in order to protect the lives and safety 
of inmates and staff and protection of U.S. Government property.
    12. Review.
    (1) If a proposed action is not covered by Sections 8 through 10 of 
this appendix, the Bureau of Prisons will independently determine 
whether to prepare either an environmental impact statement or an 
environmental assessment.
    (2) When a proposed action that could be classified as a categorical 
exclusion under Section 9 of this appendix involves extraordinary 
circumstances that may affect the environment, the Bureau shall conduct 
appropriate environmental studies to determine if the categorical 
exclusion classification is proper for that proposed action.

[Order No. 927-81, 46 FR 7953, Jan. 26, 1981, as amended by Order No. 
2142-98, 63 FR 11121, Mar. 6, 1998]



 Sec. Appendix B to Part 61--Drug Enforcement Administration Procedures 
 Relating to the Implementation of the National Environmental Policy Act

    1. Applicability.
    2. Typical Classes of Action Requiring Similar Treatment Under NEPA.
    3. Environmental Information.
    1. Applicability.
    This part applies to all organizational elements of the Drug 
Enforcement Administration [DEA].
    2. Typical Classes of Action Requiring Similar Treatment Under NEPA.
    (a) Section 1507.3(c)(2) in conjunction with Sec. 1508.4 requires 
agencies to establish three typical classes of action for similar 
treatment under NEPA. These typical classes of action are set forth 
below:

----------------------------------------------------------------------------------------------------------------
                                           (2) Actions normally not requiring    (3) Actions normally requiring
   (1) Actions normally requiring EIS       environmental assessments or EIS      environmental assessments but
                                                (Categorical exclusions)               not necessarily EIS
----------------------------------------------------------------------------------------------------------------
None....................................  Scheduling of drugs as controlled     Chemical eradication of plant
                                           substances.                           species from which controlled
                                                                                 substances may be extracted.
                                          Establishing quotas for controlled
                                           substances.
                                          Registration of persons authorized
                                           to handle controlled substances.
                                          Storage and destruction of
                                           controlled substances.
                                          Manual eradication of plant species
                                           from which controlled substances
                                           may be extracted.
----------------------------------------------------------------------------------------------------------------


[[Page 193]]

    (b) For the principal DEA program requiring environmental review, 
the following chart identifies the point at which the NEPA process 
begins, the point at which it ends, and the key agency officials or 
offices required to consider environmental documents in their 
decisionmaking.

----------------------------------------------------------------------------------------------------------------
                                                                                             Key officials or
                                                                   Completion of NEPA      offices required to
          Principal program             Start of NEPA process           process           consider environmental
                                                                                                documents
----------------------------------------------------------------------------------------------------------------
Eradication of plant species from      Prepare an               Final review of          Office of Science and
 which controlled substances may be     environmental            environmental            Technology.
 extracted.                             assessment.              assessment or
                                                                 Environmental Impact
                                                                 Statement.
----------------------------------------------------------------------------------------------------------------

    (c) The DEA shall independently determine whether an EIS or an 
environmental assessment is required where:
    (1) A proposal for agency action is not covered by one of the 
typical classes of action in (a) above; or
    (2) For actions which are covered, the presence of extraordinary 
circumstances indicates that some other level of environmental review 
may be appropriate.
    3. Environmental Information
    Interested persons may contact the Office of Science and Technology 
for information regarding the DEA compliance with NEPA.



   Sec. Appendix C to Part 61--Immigration and Naturalization Service 
Procedures Relating to the Implementation of the National Environmental 
                               Policy Act

    1. General. These procedures are published pursuant to the National 
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et 
seq.), the Environmental Quality Improvement Act of 1970, as amended (42 
U.S.C. 4371 et seq.). Section 309 of the Clean Air Act, as amended (42 
U.S.C. 7609), and Executive Order 11514, Protection and Enhancement of 
Environmental Quality (March 5, 1970, as amended by Executive Order 
11991, May 24, 1977).
    2. Purpose. These procedures shall apply to efforts associated with 
the leasing, purchase, design, construction, and maintenance of new and 
existing INS facilities. All activities concerning the Immigration and 
Naturalization Service's compliance with NEPA shall be coordinated with 
Central Office Engineering staff.
    3. Agency Description. The INS administers and enforces the 
immigration and nationality laws. This includes determining the 
admissibility of persons seeking entry into the United States and 
adjudicating requests for benefits and privileges under the immigration 
and nationality laws. The enforcement actions of INS involve the 
prevention of illegal entry of persons into the United States and the 
investigation and apprehension of aliens already in the country who 
because of inadmissibility at entry or misconduct committed following 
entry may be subject to deportation.
    In carrying out its statutory enforcement responsibilities. the INS 
is authorized to arrest and detain aliens believed to be deportable and 
to effectuate removal from the U.S. of aliens found deportable after 
hearing.
    4. Designation of Responsible Official. The Chief Engineer, 
Facilities and Engineering Branch shall be the liaison official for INS 
with the Council on Environmental Quality, the Environmental Protection 
Agency, and the other departments and agencies concerning environmental 
matters. Duties of the Chief Engineer include:
    (a) Insuring compliance with the requirements of NEPA and that the 
actions with respect to the fulfillment of NEPA are coordinated;
    (b) Providing for procedural and substantive training on 
environmental issues, policy, procedures and clearance requirements;
    (c) Providing guidance in the preparation and processing of 
Environmental Impact Statements; and
    (d) Participating in policy formulation, as necessary, in the 
application of the requirements of the National Environmental Policy Act 
of 1969.
    5. NEPA and INS Planning. (a) INS will make available to the public 
proposals and feasibility studies for facilities under consideration for 
possible use as INS facilities.
    (b) Interested parties identified as such by the local clearinghouse 
(as established by the Office of Management and Budget Circular No. A-
95) will be advised and informed concerning proposed plans which might 
involve NEPA regulations.
    (c) Upon completion of the preliminary groundwork described above, 
INS will issue an A-95 Letter of Intent to:
    (1) File an Environmental Impact Assessment (EIA);
    (2) File an Environmental Impact Statement (EIS). (Reference: 
1501.2--CEQ Regulations.)
    6. Public Involvement. Information regarding the policies of INS for 
implementing the NEPA process can be obtained from: Immigration and 
Naturalization Service, Facilities and Engineering Branch, 425 I Street

[[Page 194]]

NW., Washington, DC 20536. (Reference: Part 1506.6(3)--CEQ Regulations.)
    7. Supplemental Statements. If it is necessary to prepare a 
supplement to a draft or a Final Environmental Impact Statement, the 
supplement shall be introduced into the administrative record pertaining 
to the project. (Reference: Part 1502.9(c)(3)--CEQ Regulations.)
    8. INS Decisionmaking Procedure. (a) Policy--(1) The Chief Engineer 
will consider all practical means, including the ``no-action'' 
alternative and other alternatives to the proposed action, which will 
enhance, protect, and preserve the quality of the environment, restore 
environmental quality previously lost, and minimize and mitigate 
unavoidable adverse effects. He will analyze and study the environment 
together with engineering, economic, social and other considerations to 
insure balanced decisionmaking in the overall public interest.
    (2) During INS project planning and the related decisonmaking 
process, environmental effects will be weighed together with the 
engineering, economic and social and other considerations affecting the 
public interest.
    (b) Preparation of the environmental impact statements. (1) 
Situations where Environmental Impact Statements (EIS) are required are 
described in section 102(2)(C) of NEPA. EIS constitute an integral of 
the plan formulation process and serve as a summation and evaluation of 
the effects, both beneficial and adverse, that each alternative action 
would have on the environment, and as an explanation and objective 
evaluation of the plan which is finally recommended.
    (2) Should the Chief Engineer determine in assessing the impact of a 
minor action that an environmental statement is not required, the 
determination to that effect will be placed in the project file. This 
negative determination shall be made available to the public as required 
in Sec. 1506.6 of the CEQ regulations and shall include a statement of 
the facts and the basis for the decision.
    (3) When inclusion of certain voluminous data in an EIS would prove 
to be impractical, INS will summarize the data and retain the original 
material as a part of its administrative record for the project. This 
material will be made available to the public in a central place to be 
designated in the EIS, and upon written request or court order, copies 
of specified material will be provided. A charge for the reproduction of 
records may be made in accordance with current Department of Justice 
guidelines. (Reference: Part 1505 CEQ Regulations.)
    9. Actions Which Normally Do Require Environmental Impact 
Statements: (a) Construction of a new INS facility which would have a 
significant impact upon the environment.
    (b) Construction of a new addition to an existing INS facility which 
would significantly affect the physical capacity and which would have a 
significant impact upon the environment. (Reference: 
Sec. 1507.3(b)(2)(i)--CEQ Regulations.)
    10. Actions Which Normally Do Not Require Either An Environmental 
Impact Statement Or An Environmental Assessment: (a) Construction 
projects for existing facilities including but not limited to: 
Remodeling; replacement of building systems and components; maintenance 
and operations repairs and general improvements when such projects do 
not significantly alter the initial occupancy and program of the 
facility or significantly impact upon the environment.
    (b) Increase or decrease in population of a facility within its 
physical capacity. (Reference: Part 1507.3(b)(2)(ii) and Part 1508.4--
CEQ Regulations.)
    11. Actions Which Normally Require An Environmental Assessment But 
Not Necessarily Environmental Impact Statements:
    (a) Construction of a new addition to an existing INS facility which 
may affect the physical capacity and may have some impact upon the 
environment.
    (b) Closing of an INS facility which may have some impact on the 
environment. (Reference: Sec. 1507.3(b)(2)(iii)--CEQ Regulations.)



Sec. Appendix D to Part 61--Office of Justice Assistance, Research, and 
  Statistics Procedures Relating to the Implementation of the National 
                        Environmental Policy Act

                              1. Authority

    These procedures are issued pursuant to the National Environmental 
Policy Act (NEPA) of 1969, 42 U.S.C. 4321, et seq., Regulations of the 
Council on Environmental Quality, 40 CFR part 1500, et seq., the 
Environmental Quality Improvement Act of 1970, as amended, 42 U.S.C. 
4371, et seq., Section 309 of the Clean Air Act, as amended, 42 U.S.C. 
7609, and Executive Order 11514, ``Protection and Enhancement of 
Environmental Quality,'' March 5, 1970, as amended by Executive Order 
11991, March 24, 1977.

                               2. Purpose

    It is the purpose of these procedures to supplement the procedures 
of the Department of Justice so as to insure compliance with NEPA. These 
procedures supersede the regulations contained in 28 CFR part 19.

                          3. Agency description

    The Office of Justice Assistance, Research, and Statistics (OJARS) 
assists State and local units of government in strengthening and 
improving law enforcement and criminal justice by providing financial 
assistance and funding research and statistical programs. OJARS will 
coordinate the activities and

[[Page 195]]

provide the staff support for three Department of Justice Federal 
financial assistance offices: the Law Enforcement Assistance 
Administration, the National Institute of Justice, and the Bureau of 
Justice Statistics. Each of the assistance offices has the authority to 
award grants, contracts and cooperative agreements pursuant to the 
Justice System Improvement Act of 1979, Public Law 96-157 (December 27, 
1979).

                 4. Typical classes of action undertaken

    (a) Actions which normally require an environmental impact 
statement.
    (1) None.
    (b) Actions which normally do not require either an environmental 
impact statement or an environmental assessment.
    (1) The bulk of the funded efforts; training programs, court 
improvement projects, research, and gathering statistical data.
    (2) Minor renovation projects or remodeling.
    (c) Actions which normally require environmental assessments but not 
necessarily environmental impact statements.
    (1) Renovations which change the basic prior use of a facility or 
significantly change the size.
    (2) New construction.
    (3) Research and technology whose anticipated and future application 
could be expected to have an effect on the environment.
    (4) Implementation of programs involving the use of chemicals.
    (5) Other actions in which it is determined by the Administrator, 
Law Enforcement Assistance Administration; the Director, Bureau of 
Justice Statistics; or the Director, National Institute of Justice, to 
be necessary and appropriate.

                          5. Agency procedures

    An environmental coordinator shall be designated in the Bureau of 
Justice Statistics, the Law Enforcement Assistance Administration, and 
in the National Institute of Justice. Duties of the environmental 
coordinator shall include:
    (a) Insuring that adequate environmental assessments are prepared at 
the earliest possible time by applicants on all programs or projects 
that may have a significant impact on the environment. The assessments 
shall contain documentation from independent parties with expertise in 
the particular environmental matter when deemed appropriate. The 
coordinator shall return assessments that are found to be inadequate.
    (b) Reviewing the environmental assessments and determining whether 
an Environmental Impact Statement is required or preparing a ``Finding 
of No Significant Impact.''
    (c) Coordinating the efforts for the preparation of an Environmental 
Impact Statement consistent with the requirements of 40 CFR part 1502.
    (d) Cooperating and coordinating efforts with other Federal 
agencies.
    (e) Providing for agency training on environmental matters.

             6. Compliance with other environmental statutes

    To the extent possible an environmental assessment, as well as an 
environmental impact statement, shall include information necessary to 
assure compliance with the following:
    Fish and Wildlife Coordination Act, 16 U.S.C. 661, et seq.; the 
National Historic Preservation Act of 1966, 16 U.S.C. 470, et seq.; 
Flood Disaster Protection Act of 1973, 42 U.S.C. 400, et seq.; Clean Air 
Act and Federal Water Pollution Control Act, 42 U.S.C. 1857, et seq.; 33 
U.S.C. 1251, et seq.; Safe Drinking Water Act, 42 U.S.C. 300, et seq.; 
Wild and Scenic Rivers Act, 16 U.S.C. 1271, et seq.; the Coastal Zone 
Management Act of 1972, 16 U.S.C. 1451, et seq.; and other environmental 
review laws and executive orders.

 7. Actions planned by private applicants or other non-Federal entities

    Where actions are planned by private applicants or other non-Federal 
entities before Federal involvement:
    (a) The Policy and Management Planning Staff, Office of Criminal 
Justice Programs, LEAA, Room 1158B, 633 Indiana Ave., Washington, DC 
20531, Telephone: 202/724-7659, will be available to advise potential 
applicants of studies or other information foreseeably required for 
later Federal action;
    (b) OJARS will consult early with appropriate State and local 
agencies and with interested private persons and organizations when its 
own involvement is reasonably foreseeable;
    (c) OJARS will commence its NEPA process at the earliest possible 
time (Ref. Sec. 1501.2(d) CEQ Regulations).

                         8. Supplementing an EIS

    If it is necessary to prepare a supplement to a draft or a final 
EIS, the supplement shall be introduced into the administrative record 
pertaining to the project. (Ref. Sec. 1502.9(c)(3) CEQ Regulations).

                     9. Availability of information

    Information regarding status reports on EIS's and other elements of 
the NEPA process and policies of the agencies can be obtained from: 
Policy and Management Planning Staff, Office of Criminal Justice 
Programs, LEAA, Room 1158B, 633 Indiana Avenue, Washington, DC 20531, 
Telephone: 202/724-7659.

[[Page 196]]



 Sec. Appendix E to Part 61--United States Marshals Service Procedures 
 Relating to the Implementation of the National Environmental Policy Act

                              1. Authority

    These procedures are issued pursuant to the National Environmental 
Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., regulations of the 
Council on Environmental Quality (CEQ), 40 CFR part 1500, et seq., 
regulations of the Department of Justice (DOJ), 28 CFR part 61, et seq., 
the Environmental Quality Improvement Act of 1970, as amended, 42 U.S.C. 
4371, et seq., Section 309 of the Clean Air Act, as amended, 42 U.S.C. 
7609, and Executive Order 11514, ``Protection and Enhancement of 
Environmental Quality,'' March 5, 1970, as amended by Executive Order 
11991, May 24, 1977.

                               2. Purpose

    These provisions supplement existing DOJ and CEQ regulations and 
outline internal USMS procedures to ensure compliance with NEPA. Through 
these provisions, the USMS shall promote the environment by minimizing 
the use of natural resources, and by improving planning and decision-
making processes to avoid excess pollution and environmental 
degradation.
    The USMS' Environmental Assessments (EAs) and Environmental Impact 
Statements (EISs) shall be as concise as possible and EISs should be 
limited to approximately 150 pages in normal circumstances or 300 pages 
for proposals of unusual scope or complexity. The USMS shall, whenever 
possible, jointly prepare documents with State and local governments 
and, when appropriate, avoid duplicative work by adopting, or 
incorporating by reference, existing USMS and other agencies' analyses 
and documentation.
    In developing an EA or EIS, the USMS shall comply with CEQ 
regulations, observing that EAs and EISs should (1) Be analytic, rather 
than encyclopedic, (2) be written in plain language, (3) follow a clear, 
standard format in accordance with CEQ regulations, (4) follow a scoping 
process to distinguish the significant issues from the insignificant 
issues, (5) include a brief summary, (6) emphasize the more useful 
sections of the document, such as the discussions of alternatives and 
their environmental consequences, while minimizing the discussion of 
less useful background information, (7) scrutinize existing NEPA 
documentation for relevant analyses of programs, policies, or other 
proposals that guide future action to eliminate repetition, (8) where 
appropriate, incorporate material by reference, with citations and brief 
descriptions, to avoid excessive length, and (9) integrate NEPA 
requirements with other environmental review and consultation 
requirements mandated by law, Executive Order, Department of Justice 
policy, or USMS policy. When preparing an EA or EIS, the USMS shall 
request comments to be as specific as possible.
    To ensure compliance with NEPA, the USMS shall make efforts to 
prevent and reduce delay. The USMS will follow the procedures outlined 
in the CEQ regulations including, (1) Integrating the NEPA process in 
the early stages of planning to ensure that decisions reflect 
environmental values, and to head off potential conflicts and/or delays, 
(2) emphasizing inter-agency cooperation before the environmental 
analysis and documentation is prepared, (3) ensuring the swift and fair 
resolution of any dispute over the designation of the lead agency, (4) 
employing the scoping process to distinguish the significant issues 
requiring consideration in the NEPA analysis, (5) setting deadlines for 
the NEPA process as appropriate for individual proposed actions, (6) 
initiating the NEPA analysis as early as possible to coincide with the 
agency's consideration of a proposal by another party, and (7) using 
accelerated procedures, as described in the CEQ regulations, for 
legislative proposals.

                          3. Agency Description

    The USMS is a Federal law enforcement agency. The agency performs 
numerous law enforcement activities, including judicial security, 
warrant investigations, witness protection, custody of individuals 
arrested by Federal agencies, prisoner transportation, management of 
seized assets, and other law enforcement missions.

                   4. Typical Classes of USMS Actions

    (a) The general types of proposed actions and projects that the USMS 
undertakes are as follows:
    (1) Operational concepts and programs, including logistics 
procurement, personnel assignment, real property and facility 
management, and environmental programs,
    (2) Transfers or disposal of equipment or property,
    (3) Leases or entitlement for use, including donation or exchange,
    (4) Federal contracts, actions, or agreements for detentions 
services. A detention facility may be a facility (A) owned and/or 
operated by a contractor, or (B) owned and/or operated by a State or 
local government, and
    (5) General law enforcement activities that are exempt from NEPA 
analysis under CEQ regulation 40 CFR 1508.18 that involve bringing 
judicial, administrative, civil, or criminal enforcement actions.
    (b) Scope of Analysis.
    (1) Some USMS projects, contracts, and agreements may propose a USMS 
action that

[[Page 197]]

is one component of a larger project involving a private action or an 
action by a local or State government. The USMS' NEPA analysis and 
document (e.g., the EA or EIS) should address the impact of the specific 
USMS activity and those portions of the entire project over which the 
USMS has sufficient control and responsibility to warrant Federal 
review.
    (2) The USMS has control and responsibility for portions of a 
project beyond the limits of USMS jurisdiction where the environmental 
consequences of the larger project are essentially products of USMS 
specific action. This control turns an otherwise non-federal project 
into a Federal action.
    (3) Sufficient control and responsibility for a facility is a site-
specific determination based on the extent to which an entire project 
will be within the agency's jurisdiction and on other factors that 
determine the extent of Federal control and responsibility. For example, 
for construction of a facility, other factors would include, but not be 
limited to, the length of the contract for construction or use of the 
facility, the extent of government control and funding in the 
construction or use of the facility, whether the facility is being built 
solely for Federal requirements, the extent to which the costs of 
construction or use will be paid with Federal funds, the extent to which 
the facility will be used for non-Federal purposes, and whether the 
project should proceed without USMS action.
    (4) Some USMS projects, contracts, and agreements may propose a USMS 
action that is one component of a larger project involving actions by 
other Federal agencies. Federal control and responsibility determines 
whether the total Federal involvement of the USMS and other Federal 
agencies is sufficient to grant legal control over additional portions 
of the project. NEPA review would be extended to an entire project when 
the environmental consequences of the additional portions of the project 
are essentially products of Federal financing, assistance, direction, 
regulation, or approval. The USMS shall contact the other Federal 
agencies involved in the action to determine their respective roles 
(i.e., whether to be a lead or cooperating agency).
    (5) Once the scope of analysis has been defined, the NEPA analysis 
for an action should include direct, indirect, and cumulative impacts of 
all Federal proposals within the purview of NEPA. Whenever practicable, 
the USMS can incorporate by reference, and rely upon, the environmental 
analyses and reviews of other Federal, tribal, State, and local 
agencies.

                 5. Environmental Impact Statement (EIS)

    (a) An EIS is a document required of Federal agencies for proposals 
significantly affecting the quality of the human environment. EIS 
describes the positive and negative effects of the proposed action and 
any reasonable alternatives. A Notice of Intent (NOI) will be published 
in the Federal Register as soon a practicable after a decision to 
prepare an EIS is made and before the scoping process is initiated. An 
EIS shall describe how alternatives considered in it, and the decisions 
based on it, will or will not achieve the goals of NEPA to prevent 
damage to the environment and promote human health. Additionally, an EIS 
shall describe how the USMS will comply with relevant environmental laws 
and policies. The format and content of an EIS are set out at 40 CFR 
part 1502. The USMS may prepare an EIS without prior preparation of an 
EA.
    (b) A Record of Decision (ROD) will be prepared at the time a 
decision is made regarding a proposal that is analyzed and documented in 
an EIS. The ROD will state the decision, discuss the alternatives 
considered, and state whether all alternative practicable means to avoid 
or minimize environmental harms have been adopted, or if not, why they 
were not adopted. Where applicable, the ROD will also describe and adopt 
a monitoring and enforcement program for any mitigation.
    (c) Actions that normally require preparing an EIS include:
    (1) USMS actions that are likely to have a significant environmental 
impact on the human environment, or
    (2) Construction of a major facility on a previously undisturbed 
site.

                    6. Environmental Assessment (EA)

    (a) An EA is a concise public document that is prepared for actions 
that do not normally require preparation of an EIS, but do not meet the 
requirements of a Categorical Exclusion (CE). An EA serves to briefly 
provide sufficient evidence and analysis for determining whether to 
prepare an EIS or a Finding of No Significant Impact (FONSI), aid in 
complying with NEPA when an EIS is not necessary, and facilitate 
preparation of an EIS when one is required. The EA results in either a 
determination that a proposed action may have a significant impact on 
the human environment, and therefore, requires further study in an EIS, 
or the issuance of a FONSI. The contents of an EA are described at 40 
CFR 1508.9.
    (b) A FONSI will include the EA or a summary of the EA. The FONSI 
will be prepared and made available to the public through means 
described in paragraph 9 of this Appendix, including publication in 
local newspapers and in the Federal Register for matters of national 
concern. The FONSI will be available for review and comment for 30 days 
prior to signature and the initiation of the action, unless special 
circumstances warrant reducing the public comment period to

[[Page 198]]

15 days. Implementing the action can proceed after consideration of 
public comments and the decision-maker signs the FONSI.
    (c) Actions that normally require preparation of an EA include:
    (1) Proposals to conduct an expansion of an existing facility,
    (2) Awarding a contract or entering into an agreement for new 
construction at a previously developed site, or an expansion of an 
existing facility, or
    (3) Projects or other proposed actions that are activities described 
in categorical exclusions, but do not qualify for a categorical 
exclusion because they involve extraordinary circumstances.

                     7. Categorical Exclusions (CE)

    (a) CEs are certain categories of activities determined not to have 
individual or cumulative significant effects on the human environment, 
and absent extraordinary circumstances, are excluded from preparation of 
an EA, or EIS, under NEPA. Using CEs for such activities reduces 
unnecessary paperwork and delay. Such activities are not excluded from 
compliance with other applicable local, State, or Federal environmental 
laws.
    (b) Extraordinary circumstances must be considered before relying 
upon a CE to determine whether the proposed action may have a 
significant environmental effect. Any of the following circumstances 
preclude the use of a CE:
    (1) The project may have effects on the quality of the environment 
that are likely to be highly controversial;
    (2) The scope or size of the project is greater than normally 
experienced for a particular action described in subsection (c) below;
    (3) There is potential for degradation, even if slight, of already-
existing poor environmental conditions;
    (4) A degrading influence, activity, or effect is initiated in an 
area not already significantly modified from its natural condition;
    (5) There is a potential for adverse effects on areas of critical 
environmental concern or other protected resources including, but not 
limited to, threatened or endangered species or their habitats, 
significant archaeological materials, prime or unique agricultural 
lands, wetlands, coastal zones, sole source aquifers, 100-year-old flood 
plains, places listed, proposed, or eligible for listing on the National 
Register of Historic Places, natural landmarks listed, proposed, or 
eligible for listing on the National Registry of Natural Landmarks, 
Wilderness Areas or wilderness study areas, or Wild and Scenic River 
areas; or
    (6) Possible significant direct, indirect, or cumulative 
environmental impacts exist.
    (c) Actions that normally qualify for a CE include:
    (1) Minor renovations or repairs within an existing facility, unless 
the project would adversely affect a structure listed in the National 
Register of Historic Places or is eligible for listing in the register,
    (2) Facility expansion, or construction of a limited addition to an 
existing structure, or facility, and new construction or reconstruction 
of a small facility on a previously developed site. The exclusion 
applies only if:
    (i) The structure and proposed use comply with local planning and 
zoning and any applicable State or Federal requirements; and
    (ii) The site and the scale of construction are consistent with 
those of existing adjacent or nearby buildings.
    (3) Security upgrades of existing facility grounds and perimeter 
fences, not including such upgrades as adding lethal fences or major 
increases in height or lighting of a perimeter fence in a residential 
area or other area sensitive to the visual impacts resulting from height 
or lighting changes,
    (4) Federal contracts or agreements for detentions services, 
including actions such as procuring guards for detention services or 
leasing bed space (which may include operational costs) from an existing 
facility operated by a State or a local government or a private 
correctional corporation,
    (5) General administrative activities that involve a limited 
commitment of resources, such as personnel actions or policy related to 
personnel issues, organizational changes, procurement of office supplies 
and systems, and commitment or reallocation of funds for previously 
reviewed and approved programs or activities,
    (6) Change in contractor or Federal operators at an existing 
contractor-operated correctional or detention facility,
    (7) Transferring, leasing, maintaining, acquiring, or disposing of 
interests in land where there is no change in the current scope and 
intensity of land use, including management and disposal of seized 
assets pursuant to Federal laws,
    (8) Transferring, leasing, maintaining, acquiring, or disposing of 
equipment, personal property, or vessels that do not increase the 
current scope and intensity of USMS activities, including management and 
disposal of seized assets pursuant to Federal forfeiture laws,
    (9) Routine procurement of goods and services to support operations 
and infrastructure that are conducted in accordance with Department of 
Justice energy efficiency policies and applicable Executive Orders, such 
as E.O. 13148,
    (10) Routine transportation of prisoners or detainees between 
facilities and flying activities in compliance with Federal Aviation 
Administration Regulations, only applicable

[[Page 199]]

where the activity is in accordance with normal flight patterns and 
elevations for the facility and where the flight patterns/elevations 
have been addressed in an installation master plan or other planning 
document that has been the subject of a NEPA review, and
    (11) Lease extensions, renewals, or succeeding leases where there is 
no change in the intensity of the facility's use.

                           8. Responsibilities

    (a) The Director of the USMS, in conjunction with the Senior 
Environmental Advisor, possesses authority over the USMS NEPA 
compliance.
    (b) The Senior Environmental Advisor's duties include:
    (1) Advising the Director or other USMS decisionmakers on USMS NEPA 
procedures and compliance,
    (2) Supervising the Environmental Coordinator,
    (3) Acting as NEPA liaison to CEQ for the Director and other USMS 
decisionmakers on important decisions outside the authority of the 
Environmental Coordinator,
    (4) Consulting with CEQ regarding alternative NEPA procedures 
requiring the preparation of an EIS in emergency situations, and
    (5) Consulting with CEQ and officials of other Federal agencies to 
settle agency disputes over the NEPA process, including designating lead 
and cooperating agencies.
    (c) The USMS Environmental Coordinator will act as the agency's NEPA 
contact, and will be responsible for:
    (1) Ensuring that adequate EAs and EISs are prepared at the earliest 
possible time, ensuring that decisions are made in accordance with the 
general policies and purposes of NEPA, verifying information provided by 
applicants, evaluating environmental effects; assuring that, when 
appropriate, EAs and EISs contain documentation from independent parties 
with expertise in particular environmental matters, taking 
responsibility for the scope and content of EAs prepared by applicants, 
and returning EAs and EISs that are found to be inadequate,
    (2) Ensuring that the USMS conducts an independent evaluation, and 
where appropriate, prepares a FONSI, a NOI, and/or a ROD,
    (3) Coordinating the efforts for preparation of an EIS consistent 
with the requirements of the CEQ regulations at 40 CFR part 1500-1508,
    (4) Cooperating and coordinating planning efforts with other Federal 
agencies, and
    (5) Providing for agency training on environmental matters.
    (d) The agency shall ensure compliance with NEPA for cases where 
actions are planned by private applicants or other non-Federal entities 
before Federal involvement. The USMS, through the Environmental 
Coordinator shall:
    (1) Identify types of actions initiated by private parties, State 
and local agencies and other non-Federal entities for which agency 
involvement is reasonably foreseeable,
    (2) Provide (A) full public notice that agency advice on such 
matters is available, (B) detailed written publications containing that 
advice, and (C) early consultation in cases where agency involvement is 
reasonably foreseeable, and
    (3) Consult early with appropriate Indian tribes, State and local 
agencies, and interested private persons and organizations on those 
projects in which the USMS involvement is reasonably foreseeable.
    (e) To assist in ensuring that all Federal agencies' decisions are 
made in accordance with the general policies and purposes of NEPA, the 
USMS, through the Environmental Coordinator shall:
    (1) Comment within the specified time period on other Federal 
agencies' EISs, where the USMS has jurisdiction by law regarding a 
project, and make such comments as specific as possible with regard to 
adequacy of the document, the merits of the alternatives, or both,
    (2) Where the USMS is the lead agency on a project, coordinate with 
other Federal agencies and supervise the development of and retain 
responsibility for the EIS,
    (3) Where the USMS is a cooperating agency on a project, cooperate 
with any other Federal agency acting as lead agency through information 
sharing and staff support,
    (4) Independently evaluate, provide guidance on, and take 
responsibility for scope and contents of NEPA analyses performed by 
contractors or applicants used by USMS. When the USMS is the lead 
agency, USMS will choose the contractor to prepare an EIS, require the 
contractor to execute a disclosure statement stating that the contractor 
has no financial or other interest in the outcome of the project, and 
participate in the preparation of the EIS by providing guidance and an 
independent evaluation prior to approval,
    (5) Consider alternatives to a proposed action where it involves 
unresolved conflicts concerning available resources. The USMS shall make 
available to the public, prior to a final decision, any NEPA documents 
and additional decision documents, or parts thereof, addressing 
alternatives,
    (6) Conduct appropriate NEPA procedures for the proposed action as 
early as possible for consideration by the appropriate decision-maker, 
and ensure that all relevant environmental documents, comments, and 
responses accompany the proposal through the agency review process for 
the final decision,
    (7) Include, as part of the administrative record, relevant 
environmental documents,

[[Page 200]]

comments, and responses in formal rulemaking or adjudicatory 
proceedings, and
    (8) Where emergency circumstances require taking action that will 
result in a significant environmental impact, contact CEQ via the USMS 
Senior Environmental Advisor for consultation on alternative 
arrangements, which will be limited to those necessary to control the 
immediate impacts of the emergency.

                          9. Public Involvement

    (a) In accordance with NEPA and CEQ regulations and to ensure public 
involvement in decision-making regarding environmental impact on local 
communities, the USMS shall also engage in the following procedures 
during its NEPA process:
    (1) When preparing an EA, EIS, or FONSI, USMS personnel in charge of 
preparing the document will invite comment from affected Federal, 
tribal, State, local agencies, and other interested persons, as early as 
the scoping process;
    (2) The USMS will disseminate information to potentially interested 
or affected parties, such as local communities and Indian tribes, 
through such means as news releases to various local media, 
announcements to local citizens groups, public hearings, and posted 
signs near the affected area;
    (3) The USMS will mail notice to those individuals or groups who 
have requested one on a specific action or similar actions;
    (4) For matters of national concern, the USMS will publish 
notification in the Federal Register, and will send notification by mail 
to national organizations reasonably expected to be interested;
    (5) If a decision is made to develop an EIS, the USMS will publish a 
NOI in the Federal Register as soon as possible;
    (6) The personnel in charge of preparing the NEPA analysis and 
documentation will invite public comment and maintain two-way 
communication channels throughout the NEPA process, provide explanations 
of where interested parties can obtain information on status reports of 
the NEPA process and other relevant documents, and keep all public 
affairs officers informed;
    (7) The USMS will establish a Web site to keep the public informed; 
and
    (8) During the NEPA process, responsible personnel will consult with 
local government and tribal officials, leaders of citizen groups, and 
members of identifiable population segments within the potentially 
affected environment, such as farmers and ranchers, homeowners, small 
business owners, minority and disadvantaged communities, and tribal 
members.

                               10. Scoping

    Prior to starting the NEPA analysis, USMS personnel responsible for 
preparing either an EA or EIS, shall engage in an early scoping process 
to identify the significant issues to be examined in depth, and to 
identify and eliminate from detailed study those issues which are not 
significant or which have been adequately addressed by prior 
environmental review. The scoping process should identify any other 
environmental analyses being conducted relevant to the proposed action, 
address timing and set time limits with respect to the NEPA process, set 
page limits, designate respective responsibilities among the lead and 
cooperating agencies, identify any other environmental review and 
consultation requirements to allow for integration with the NEPA 
analysis, and hold an early scoping meeting that may be integrated with 
other initial planning meetings.

                      11. Mitigation and Monitoring

    USMS personnel, who are responsible for preparing NEPA analyses and 
documents, will consider mitigation measures to avoid or minimize 
environmental harm. EAs and EISs will consider reasonable mitigation 
measures relevant to the proposed action and alternatives. Paragraph 
5(b) of this Appendix describes the requirements for documenting 
mitigation measures in a ROD.

                     12. Supplementing an EA or EIS

    When substantial changes are made to a proposed action that is 
relevant to environmental concerns, a supplement will be prepared for an 
EA or a draft or a final EIS. A supplement will also be prepared when 
significant new circumstances arise or new relevant information surfaces 
concerning and bearing upon the proposed action or its impacts. Any 
necessary supplement shall be processed in the same way as an original 
EA or EIS, with the exception that new scoping is not required. Any 
supplement shall be added to the formal administrative record, if such 
record exists.

            13. Compliance With Other Environmental Statutes

    To the extent practicable, a NEPA document shall include information 
necessary to assure compliance with all applicable environmental 
statutes.

[71 FR 71048, Dec. 8, 2006]



PART 63_FLOODPLAIN MANAGEMENT AND WETLAND PROTECTION PROCEDURES--
Table of Contents



Sec.
63.1  Purpose.
63.2  Policy.
63.3  References.
63.4  Definitions.

[[Page 201]]

63.5  Responsibilities.
63.6  Procedures.
63.7  Determination of location.
63.8  Implementation.
63.9  Exception.

    Authority: 5 U.S.C. 301, Executive Order No. 11988 of May 24, 1977, 
and Executive Order No. 11990 of May 24, 1977.

    Source: Order No. 902-80, 45 FR 50565, July 30, 1980, unless 
otherwise noted.



Sec. 63.1  Purpose.

    These guidelines set forth procedures to be followed by the 
Department of Justice to implement Executive Order 11988 (Floodplain 
Management) and Executive Order 11990 (Protection of Wetlands). (The 
Orders.)



Sec. 63.2  Policy.

    (a) It is the Department of Justice's policy to avoid to the extent 
possible the long and short term adverse impacts associated with the 
destruction or modification of wetlands and floodplains and to avoid 
direct or indirect support of new construction in floodplains and 
wetlands whenever there is a practicable alternative. The Department 
will provide leadership and take affirmative action to carry out the 
Orders.
    (b) It is the Department of Justice's intention to integrate these 
procedures with those required under statutes protecting the 
environment, such as the National Environmental Policy Act (NEPA). 
Whenever possible, the procedures detailed herein should be coordinated 
with other required documents, such as the environmental impact 
statement (EIS) or environmental assessment required under NEPA, so that 
unnecessary paperwork can be eliminated.



Sec. 63.3  References.

    (a) Unified National Program for Floodplain Management, Water 
Resources Council, which is incorporated in these guidelines.
    (b) Water Resources Council Floodplain Management Guidelines, Water 
Resources Council, 1978 (43 FR 6030).
    (c) National Flood Insurance Act of 1968, as amended (42 U.S.C. 4001 
et seq.) and NFIP criteria (44 CFR part 59 et seq.).
    (d) Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 87 Stat. 
975).
    (e) National Environmental Policy Act of 1969, as amended (43 U.S.C. 
4321 et seq.) (NEPA).



Sec. 63.4  Definitions.

    Throughout this part, the following basic definitions shall apply:
    (a) Action--any Federal activity including:
    (1) Acquiring, managing and disposing of Federal lands and 
facilities;
    (2) Providing federally undertaken, financed, or assisted 
construction and improvements; and
    (3) Conducting Federal activities and program affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities.
    (b) Agency--an executive department, a government corporation, or an 
independent establishment and includes the military departments.
    (c) Base flood--that flood which has a one percent chance of 
occurrence in any given year (also known as a 100-year flood). (This 
term is used in the National Flood Insurance Program (NFIP) to indicate 
the minimum level of flooding to be used by a community in its 
floodplain management regulations.)
    (d) Base floodplain--the 100-year floodplain (one percent chance 
floodplain). Also see definition of floodplain.
    (e) Channel--a natural or artificial watercourse of perceptible 
extent, with a definite bed and banks to confine and conduct 
continuously or periodically flowing water.
    (f) Critical action--any activity for which even a slight chance of 
flooding would be too great.
    (g) Facility--any man-made or man-placed item other than a 
structure.
    (h) Flood or flooding--a general and temporary condition of partial 
or complete inundation of normally dry land areas from the overflow of 
inland and/or tidal waters, and/or the usual and rapid accumulation or 
runoff of surface waters from any source.
    (i) Flood fringe--that portion of the floodplain outside of the 
regulatory floodway (often referred to as ``floodway fringe'').

[[Page 202]]

    (j) Floodplain--the lowland and relatively flat areas adjoining 
inland and coastal waters including floodprone areas of offshore 
islands, including at a minimum, that area subject to a one percent or 
greater chance of flooding in any given year. The base floodplain shall 
be used to designate the 100-year floodplain (one percent chance 
floodplain). The critical action floodplain is defined as the 500-year 
floodplain (0.2 percent chance floodplain).
    (k) Floodproofing--the modification of individual structures and 
facilities, their sites, and their contents to protect against 
structural failure, to keep water out or to reduce effects of water 
entry.
    (l) Minimize--to reduce to the smallest possible amount or degree.
    (m) One percent chance flood--the flood having one chance in 100 of 
being exceeded in any one-year period (a large flood). The likelihood of 
exceeding this magnitude increases in a time period longer than one 
year. For example, there are two chances in three of a larger flood 
exceeding the one percent chance flood in a 100-year period.
    (n) Practicable--capable of being done within existing constraints. 
The test of what is practicable depends upon the situation and includes 
consideration of the pertinent factors, such as environment, cost or 
technology.
    (o) Preserve--to prevent modification to the natural floodplain 
environment or to maintain it as closely as possible to its natural 
state.
    (p) Regulatory floodway--the area regulated by Federal, State or 
local requirements; the channel of a river or other watercourse and the 
adjacent land areas that must be reserved in an open manner, i.e., 
unconfined or unobstructed either horizontally or vertically, to provide 
for the discharge of the base flood so the cumulative increase in water 
surface elevation is no more than a designated amount (not to exceed one 
foot as set by the NFIP).
    (q) Restore--to re-establish a setting or environment in which the 
natural functions of the floodplain can again operate.
    (r) Structures--walled or roofed buildings, including mobile homes 
and gas or liquid storage tanks that are primarily above ground (as set 
by the NFIP).
    (s) Wetlands--``those areas that are inundated by surface or ground 
water with a frequency sufficient to support and under normal 
circumstances does or would support a prevalence of vegetative or 
aquatic life that requires saturated or seasonally saturated soil 
conditions for growth and reproduction. Wetlands generally include 
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet 
meadows, river overflows, mud flats, and natural ponds'' (as defined in 
Executive Order 11990 (Protection of Wetlands)).



Sec. 63.5  Responsibilities.

    (a) The Assistant Attorney General, Land and Natural Resources 
Division,
    (1) Has overall responsibility for ensuring that the Department's 
responsibilities for complying with the Orders are carried out,
    (2) Will ensure that the Water Resources Council, the Council on 
Environmental Quality, and the Federal Insurance Agency (FIA) are kept 
informed of the Department's execution of the Orders, as necessary, and
    (3) Will determine, and revise on a continuing basis, which 
components of the Department should take further steps, such as the 
promulgation of program specific procedures, to comply with the Orders. 
Considerations for making this selection are whether a component:
    (i) Acquires, manages, and disposes of federal lands and facilities;
    (ii) Provides federally undertaken, financed or assisted 
construction and improvements;
    (iii) Conducts federal activities and programs affecting land use, 
including but not limited to water and related land resources planning, 
regulating, and licensing activities;
    (iv) Reviews and approves component procedures for complying with 
the Orders;
    (b) The heads of offices, boards, bureaus and divisions,
    (1) Are responsible for preparing program specific guidelines or 
procedures, where necessary, to comply with the Orders and for updating 
these procedures, as required,

[[Page 203]]

    (2) Will maintain general supervision over any new construction 
planning within the office, board, bureau, or division to see that the 
policy considerations and procedural requirements contained herein are 
followed in the planning process,
    (3) Will furnish, with all requests for new authorizations or 
appropriations for proposals to be located in floodplains or wetlands, a 
statement that the proposal is in accord with the Orders,
    (4) Will provide information to applicants for licenses, permits, 
loans or grants in areas in which floodplain and wetland requirements 
may have to be met,
    (5) Will provide conspicuous notice of past flood damage and 
potential flood hazard on structures under the component's control and 
used by the general public, and
    (6) If responsible for granting a lease, an easement, or right-of-
way, or for disposing of federal property in a floodplain or wetland to 
nonfederal public or private parties, will, unless otherwise directed by 
law.
    (i) Reference uses in the conveyance that are restricted under 
identified Federal, State or local floodplain regulations; and
    (ii) Attach other appropriate restrictions; or
    (iii) Refuse to convey.



Sec. 63.6  Procedures.

    Prior to taking any action, as defined in Sec. 63.4(a) of this part, 
an office, board, bureau or division shall:
    (a) Determine whether the proposed action is located in a wetland 
and/or the 100-year floodplain (or the 500-year floodplain for critical 
actions) and determine whether the proposed action has the potential to 
affect or be affected by a floodplain or wetland. The determination 
concerning location in a floodplain or wetland shall be performed in 
accordance with Sec. 63.7 of this part. For actions which are in both a 
floodplain and wetland, the wetland should be considered as one of the 
natural and beneficial values of the floodplain.
    (b) Notify the public at the earliest possible time of the intent to 
carry out the action affecting or affected by a floodplain or wetland, 
and involve the broadest affected and interested public in the 
decisionmaking process. At a minimum, all notices shall be published in 
the newspaper serving the project area that has the widest circulation 
and shall be distributed through the A-95 review process if subject to 
that process. In addition, notices of actions shall be published in the 
Federal Register, if so required by the Assistant Attorney General, Land 
and Natural Resources Division, or by law. For certain actions, notice 
may entail other audiences and means of distribution. All actions shall 
be reviewed according to the following criteria to determine the 
appropriate audience for and means of notification beyond those required 
above: Scale of action, potential for controversy, degree of public need 
for the action, number of affected persons, and anticipated potential 
impacts. Each notice shall include the following: A statement of the 
purpose of and a description of the proposed action, a map of the 
general area clearly delineating the action's locale and its 
relationship to its environs, a statement that it has been determined to 
be located in or that it affects a floodplain or wetland, a statement of 
intent to avoid the floodplain or wetland where practicable, and to 
mitigate impacts where avoidance cannot be achieved, and identification 
of the responsible official for receipt of comments and for further 
information.
    (c) Identify and evaluate practicable alternatives to locating in a 
floodplain or wetland (including alternative sites outside the 
floodplain or wetland; alternative actions which serve essentially the 
same purpose as the proposed action, but which have less potential to 
adversely affect the floodplain or wetland; and the ``no action'' 
option). The following factors shall be analyzed in determining the 
practicability of alternatives: Natural environment (topography, 
habitat, hazards, etc.); social concerns (aesthetics, historical and 
cultural values, land use patterns, etc.); economic aspects (costs of 
space, construction, services, and relocation); and legal constraints 
(deeds, leases, etc.). The component shall not locate the proposed 
action in the base floodplain (500-year floodplain for critical

[[Page 204]]

actions) or in a wetland if a practicable alternative exists outside the 
base floodplain (500-year floodplain for critical actions) or wetland.
    (d) Identify the full range of potential direct or indirect adverse 
impacts associated with the occupancy and modification of floodplains 
and wetlands and the direct and indirect support of floodplain and 
wetland development that could result from the proposed action. Flood 
hazard-related factors shall be analyzed for all actions. These include, 
for example, the following: Depth, velocity and rate of rise of flood 
water; duration of flooding, high hazard areas (riverine and coastal); 
available warning and evacuation time and routes; effects of special 
problems, e.g., levees and other protection works, erosion, subsidence, 
sink holes, ice jams, combinations of flood sources, etc. Natural 
values-related factors, shall be analyzed for all actions. These 
include, for example, the following: water resource values (natural 
moderation of floods, water quality maintenance, and ground water 
recharge); living resource values (fish and wildlife and biological 
productivity); cultural resource values (archeological and historic 
sites, and open space for recreation and green belts); and agricultural, 
aquacultural and forestry resource values. Factors relevant to a 
proposed action's effects on the survival and quality of wetlands, shall 
be analyzed for all actions. These include, for example, the following: 
Public health, safety, and welfare, including water supply, quality, 
recharge and discharge; pollution; flood and storm hazards, sediment and 
erosion; maintenance of natural systems, including conservation and long 
term productivity of existing flora and fauna, species and habitat 
diversity and stability, hydrologic utility, fish, wildlife, timber, and 
food and fiber resources; and other uses of wetlands in the public 
interest, including recreational, scientific, and cultural uses.
    (e) Where avoidance of floodplains or wetlands cannot be achieved, 
design or modify its actions so as to minimize harm to or within the 
floodplain, minimize the destruction, loss or degradation of wetlands, 
restore and preserve natural and beneficial floodplain values, and 
preserve and enhance natural and beneficial wetland values. The 
component shall minimize potential harm to lives and property from the 
100-year flood (500-year flood for critical actions), minimize potential 
adverse impacts the action may have on others, and minimize potential 
adverse impacts the action may have on floodplain and wetland values, 
Minimization of harm to property shall be performed in accord with the 
standards and criteria set out at 44 CFR part 59 et seq., (formerly 24 
CFR part 1901 et seq.), substituting the 500-year standard for critical 
actions and, where practicable, elevating structures on open works--
walls, columns, piers, piles, etc.--rather than on fill. Minimization of 
harm to lives shall include, but not be limited to, the provision for 
warning and evacuation procedures for all projects and shall emphasize 
adequacy of warning time and access and egress routes.
    (f) Re-evaluate the proposed action to determine, first, if it is 
still practicable in light of its exposure to flood hazards and its 
potential to disrupt floodplain and wetland values and, second, if 
alternatives rejected at paragraph (c) of this section are practicable, 
in light of the information gained in paragraphs (d) and (e) of this 
section. Unless required by law, the proposed action shall not be 
located in a floodplain or wetland unless the importance of the 
floodplain or wetland site clearly outweighs the requirements of E.O. 
11988 and E.O. 11990 to avoid direct or indirect support of floodplain 
and wetland development; reduce the risk of flood loss; minimize the 
impact of floods on human safety, health and welfare; restore and 
preserve floodplain values; and minimize the destruction, loss or 
degradation of wetlands. In addition, where there are no practicable 
alternative sites and actions, and where the potential adverse effects 
of using the floodplain or wetland site cannot be minimized, no action 
shall be taken, unless required by law.
    (g) Prepare, and circulate a finding and public explanation of any 
final decision that there is no practicable alternative to locating an 
action in, or affecting a floodplain or wetland. The

[[Page 205]]

same audience and means of distribution used in paragraph (b) of this 
section, shall be used to circulate this finding. The finding shall 
include the following: the reasons why the action is proposed to be 
located in a floodplain or wetland, a statement indicating whether the 
action conforms to applicable State or local floodplain management 
standards, a list of alternatives considered, and a map of the general 
area clearly delineating the project locale and its relationship to its 
environs. A brief comment period on the finding shall be provided 
wherever practicable prior to taking any action.
    (h) Review the implementation and post implementation phase of the 
proposed action to ensure that the provisions of paragraph (e) of this 
section, are fully implemented. This responsibility shall be fully 
integrated into existing review, audit, field oversight and other 
monitoring processes, and additional procedures shall be prepared where 
existing procedures may be inadequate to ensure that the Orders' goals 
are met.



Sec. 63.7  Determination of location.

    (a) In order to determine whether an action is located on or affects 
a floodplain, the component shall:
    (1) Consult the FIA Flood Insurance Rate Map (FIRM) and the Flood 
Insurance Study (FIS); or
    (2) If a detailed map (FIRM) is not available, consult an FIA Flood 
Hazard Boundary Map (FHBM); or
    (3) If data on flood elevations, floodways, or coastal high hazard 
areas are needed, or if none of the maps delineates the flood hazard 
boundaries in the vicinity of the proposed site, seek detailed 
information and assistance as necessary and appropriate from the 
Department of Agriculture's Soil Conservation Service, the Army Corps of 
Engineers, the National Oceanic and Atmospheric Administration, the 
Federal Emergency Management Agency's Regional Offices/Division of 
Insurance and Hazard Mitigation, the Department of the Interior's 
Geological Survey, Bureau of Land Management, and Bureau of Reclamation, 
the Tennessee Valley Authority, the Delaware River Basin Commission, the 
Susquehanna River Basin Commission, individual states and/or land 
administering agencies; or
    (4) If the sources listed above do not have or know of the 
information necessary to comply with the Orders' requirements, seek, as 
permitted by law, the services of a federal or other engineer 
experienced in this work to
    (i) Locate the site and the limits of the coastal high hazard area, 
floodway and of the applicable floodplain, and
    (ii) Determine base flood elevations.
    (b) In the absence of a finding to the contrary, the component shall 
assume that action involving a facility or structure that has been 
flooded in a major disaster or emergency is in the applicable floodplain 
for the site of the proposed action.
    (c) In order to determine whether an action is located on or affects 
a wetland, the component shall:
    (1) Consult with the United States Fish and Wildlife Service (FWS) 
for information concerning the location, scale and type of wetlands 
within the area which could be affected by the proposed action; or
    (2) If the FWS does not have adequate information upon which to base 
the determination, consult wetland inventories maintained by the Army 
Corps of Engineers, the Environmental Protection Agency, various states, 
communities and others; or
    (3) If state or other sources do not have adequate information upon 
which to base the determination, insure that an on-site analysis is 
performed by a representative of the FWS or other qualified individual 
for wetlands characteristics based on the performance definition of what 
constitutes a wetland.



Sec. 63.8  Implementation.

    Agencies and divisions within the Department of Justice shall amend 
existing regulations and procedures, as appropriate, to incorporate the 
policy and procedures set forth in these guidelines. Such amendments 
will be made within 6 months of final publication of these guidelines.

[[Page 206]]



Sec. 63.9  Exception.

    Nothing in these guidelines shall apply to assistance provided for 
emergency work essential to save lives and protect property and public 
health and safety performed pursuant to sections 305 and 306 of the 
Disaster Relief Act of 1974 (88 Stat. 148, 42 U.S.C. 5145 and 5146).



PART 64_DESIGNATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES
FOR COVERAGE UNDER SECTION 1114 OF TITLE 18 OF THE U.S. CODE--
Table of Contents



Sec.
64.1  Purpose.
64.2  Designated officers and employees.

    Authority: 18 U.S.C. 1114, 28 U.S.C. 509, 5 U.S.C. 301.



Sec. 64.1  Purpose.

    This regulation designates categories of federal officers and 
employees in addition to those already designated by the statute, who 
will be within the protective coverage of 18 U.S.C. 1114, which 
prohibits the killing or attempted killing of such designated officers 
and employees. The categories of federal officers and employees covered 
by section 1114 are also protected, while they are engaged in or on 
account of the performance of their official duties, from a conspiracy 
to kill, 18 U.S.C. 1117; kidnapping, 18 U.S.C. 1201(a)(5); forcible 
assault, intimidation, or interference, 18 U.S.C. 111; and threat of 
assault, kidnap or murder with intent to impede, intimidate, or 
retaliate against such officer or employee, 18 U.S.C. 115(a)(1)(B). In 
addition, the immediate family members of such officers and employees 
are protected against assault, kidnap, murder, attempt to kidnap or 
murder, and threat to assault, kidnap, or murder with intent to impede, 
intimidate, or retaliate against such officer or employee, 18 U.S.C. 
115(a)(1)(A). The protective coverage has been extended to those federal 
officers and employees whose jobs involve inspection, investigative or 
law enforcement responsibilities, or whose work involves a substantial 
degree of physical danger from the public that may not be adequately 
addressed by available state or local law enforcement resources.

[Order No. 1874-94, 59 FR 25816, May 18, 1994]



Sec. 64.2  Designated officers and employees.

    The following categories of federal officers and employees are 
designated for coverage under section 1114 of title 18 of the U.S. Code:
    (a) Judges and special trial judges of the U.S. Tax Court;
    (b) Commissioners and employees of the U.S. Parole Commission;
    (c) Attorneys of the Department of Justice;
    (d) Resettlement specialists and conciliators of the Community 
Relations Service of the Department of Justice;
    (e) Officers and employees of the Bureau of Prisons;
    (f) Criminal investigators employed by a U.S. Attorney's Office; and 
employees of a U.S. Attorney's Office assigned to perform debt 
collection functions;
    (g) U.S. Trustees and Assistant U.S. Trustees; bankruptcy analysts 
and other officers and employees of the U.S. Trustee System who have 
contact with creditors and debtors, perform audit functions, or perform 
other investigative or enforcement functions in administering the 
bankruptcy laws;
    (h) Attorneys and employees assigned to perform or to assist in 
performing investigative, inspection or audit functions of the Office of 
Inspector General of an ``establishment'' or a ``designated Federal 
entity'' as those terms are defined by section 11 and 8E, respectively, 
of the Inspector General Act of 1978, as amended, 5 U.S.C. app. 3 
section 11 and 8E, and of the Offices of the Inspector General of the 
U.S. Government Printing Office, the Merit Systems Protection Board, and 
the Selective Service System.
    (i) Employees of the Department of Agriculture at the State, 
district or county level assigned to perform loan making, loan servicing 
or loan collecting function;
    (j) Officers and employees of the Bureau of Alcohol, Tobacco and 
Firearms assigned to perform or to assist in performing investigative, 
inspection or law enforcement functions;

[[Page 207]]

    (k) Federal air marshals of the Federal Aviation Administration;
    (l) Employees of the Bureau of Census employed in field work 
conducting censuses and surveys;
    (m) Employees and members of the U.S. military services and 
employees of the Department of Defense who:
    (1) Are military police officers,
    (2) Have been assigned to guard and protect property of the United 
States, or persons, under the administration and control of a U.S. 
military service or the Department of Defense, or
    (3) Have otherwise been assigned to perform investigative, 
correction or other law enforcement functions;
    (n) The Director, Deputy Director for Supply Reduction, Deputy 
Director for Demand Reduction, Associate Director for State and Local 
Affairs, and Chief of Staff of the Office of National Drug Control 
Policy;
    (o) Officers and employees of the Department of Energy authorized to 
carry firearms in the performance of investigative, inspection, 
protective or law enforcement functions;
    (p) Officers and employees of the U.S. Environmental Protection 
Agency assigned to perform or to assist in performing investigative, 
inspection or law enforcement functions;
    (q) Biologists and technicians of the U.S. Fish and Wildlife Service 
who are participating in sea lamprey control operations;
    (r) Uniformed and nonuniformed special police of the General 
Services Administration; and officers and employees of the General 
Services Administration assigned to inspect property in the process of 
its acquisition by or on behalf of the U.S. Government;
    (s) Special Agents of the Security Office of the U.S. Information 
Agency;
    (t) Employees of the regional, subregional and resident offices of 
the National Labor Relations Board assigned to perform investigative and 
hearing functions or to supervise the performance of such functions; and 
auditors and Security Specialists of the Division of Administration of 
the National Labor Relations Board;
    (u) Officers and employees of the U.S. Nuclear Regulatory 
Commission:
    (1) Assigned to perform or to assist in performing investigative, 
inspection or law enforcement functions or
    (2) Engaged in activities related to the review of license 
applications and license amendments;
    (v) Investigators employed by the U.S. Office of Personnel 
Management;
    (w) Attorneys, accountants, investigators and other employees of the 
U.S. Securities and Exchange Commission assigned to perform or to assist 
in performing investigative, inspection or other law enforcement 
functions;
    (x) Employees of the Social Security Administration assigned to 
Administration field offices, hearing offices and field assessment 
offices;
    (y) Officers and employees of the Tennessee Valley Authority 
authorized by the Tennessee Valley Authority Board of Directors to carry 
firearms in the performance of investigative, inspection, protective or 
law enforcement functions;
    (z) Officers and employees of the Federal Aviation Administration, 
the Federal Highway Administration, the National Highway Traffic Safety 
Administration, the Research and Special Programs Administration and the 
Saint Lawrence Seaway Development Corporation of the U.S. Department of 
Transportation who are assigned to perform or assist in performing 
investigative, inspection or law enforcement functions;
    (aa) Federal administrative law judges appointed pursuant to 5 
U.S.C. 3105; and
    (bb) Employees of the Office of Workers' Compensation Programs of 
the Department of Labor who adjudicate and administer claims under the 
Federal Employees' Compensation Act, the Longshore and Harbor Workers' 
Compensation Act and its extension, or the Black Lung Benefits Act.

[Order No. 1874-94, 59 FR 25816, May 18, 1994]



PART 65_EMERGENCY FEDERAL LAW ENFORCEMENT ASSISTANCE--
Table of Contents



                      Subpart A_Eligible Applicants

Sec.
65.1  General.
65.2  State Government.

[[Page 208]]

           Subpart B_Allocation of Funds and Other Assistance

65.10  Fund availability.
65.11  Limitations on fund and other assistance use.
65.12  Other assistance.

    Subpart C_Purpose of Emergency Federal Law Enforcement Assistance

65.20  General.
65.21  Purpose of assistance.
65.22  Exclusions.

                  Subpart D_Application for Assistance

65.30  General.
65.31  Application content.

             Subpart E_Submission and Review of Applications

65.40  General.
65.41  Review of State applications.

                    Subpart F_Additional Requirements

65.50  General.
65.51  Recordkeeping.
65.52  Civil rights.
65.53  Confidentiality of information.

                      Subpart G_Repayment of Funds

65.60  Repayment of funds.

                          Subpart H_Definitions

65.70  Definitions.

                  Subpart I_Immigration Emergency Fund

65.80  General.
65.81  General definitions.
65.82  Procedure for requesting a Presidential determination of an 
          immigration emergency.
65.83  Assistance required by the Attorney General.
65.84  Procedures for the Attorney General when seeking State or local 
          assistance.
65.85  Procedures for State or local governments applying for funding.

    Authority: The Comprehensive Crime Control Act of 1984, Title II, 
Chap. VI, Div. I, Subdiv. B, Emergency Federal Law Enforcement 
Assistance, Pub. L. 98-473, 98 Stat. 1837, Oct. 12, 1984 (42 U.S.C. 
10501 et seq.); 8 U.S.C. 1101 note; Sec. 610, Pub. L. 102-140, 105 Stat. 
832.

    Source: 50 FR 51340, Dec. 16, 1985, unless otherwise noted.



                      Subpart A_Eligible Applicants



Sec. 65.1  General.

    This subject describes who may apply for emergency Federal law 
enforcement assistance under the Justice Assistance Act of 1984.



Sec. 65.2  State Government.

    In the event that a law enforcement emergency exists throughout a 
state or part of a state, a state (on behalf of itself or a local unit 
of government) may submit an application to the Attorney General, for 
emergency Federal law enforcement assistance. This application is to be 
submitted by the chief executive officer of the state, in writing, on 
Standard Form 424, and in accordance with these regulations.



           Subpart B_Allocation of Funds and Other Assistance



Sec. 65.10  Fund availability.

    For the previous fiscal year (FY '85), $800,000 was appropriated for 
emergency Federal law enforcement assistance for the entire country. In 
FY '86, $1.5 million has been requested. The FY '86 request has not yet 
been appropriated and is not currently available. The form and extent of 
assistance provided will be determined by the nature and scope of the 
emergency presented; but, in any event, no fund award may exceed the 
amount ultimately appropriated.



Sec. 65.11  Limitations on fund and other assistance use.

    (a) Land acquisition. No funds shall be used for the purpose of land 
acquisition.
    (b) Non-supplantation. No funds shall be used to supplant state or 
local funds that would otherwise be made available for such purposes.
    (c) Civil justice. No funds or other assistance shall be used with 
respect to civil justice matters except to the extent that such civil 
justice matters bear directly and substantially upon criminal justice 
matters or are inextricably intertwined with criminal justice matters.

[[Page 209]]

    (d) Federal law enforcement personnel. Nothing in the enabling 
legislation authorizes the use of Federal law enforcement personnel to 
investigate violations of criminal law other than violations with 
respect to which investigation is authorized by other provisions of law. 
(section 609O(a), of the Act).
    (e) Direction, supervision, control. Nothing in the enabling 
legislation shall be construed to authorize the Attorney General or the 
Federal law enforcement community to exercise any direction, 
supervision, or control over any police force or other criminal justice 
agency of an applicant for Federal law enforcement assistance. (section 
609O(b), of the Act).



Sec. 65.12  Other assistance.

    In accordance with the purposes and limitations of this subdivision, 
members of the Federal law enforcement community may provide needed 
assistance in the form of equipment, training, intelligence information, 
and personnel. The application may include requests for assistance of 
this nature.



    Subpart C_Purpose of Emergency Federal Law Enforcement Assistance



Sec. 65.20  General.

    The purpose of the Act is to assist state and/or local units of 
government which are experiencing law enforcement emergencies to respond 
to those emergencies through the provision of Federal law enforcement 
assistance. The authority and responsibility for implementation of this 
section is vested in the Attorney General of the United States.



Sec. 65.21  Purpose of assistance.

    The purpose of emergency Federal law enforcement assistance is to 
provide necessary assistance to (and through) a state government to 
provide an adequate response to an uncommon situation which requires law 
enforcement, which is or threatens to become of serious or epidemic 
proportions, and with respect to which state and local resources are 
inadequate to protect the lives and property of citizens, or to enforce 
the criminal law.



Sec. 65.22  Exclusions.

    Excluded from the situations for which this assistance is intended 
are:
    (a) The perceived need for planning or other activities related to 
crowd control for general public safety projects; and,
    (b) A situation requiring the enforcement of laws associated with 
scheduled public events, including political conventions and sports 
events.



                  Subpart D_Application for Assistance



Sec. 65.30  General.

    The Act requires that applications be submitted in writing, by the 
chief executive officer of a state, on Standard Form 424, in accordance 
with these regulations.



Sec. 65.31  Application content.

    The Act identifies six factors which the Attorney General will 
consider in approving or disapproving an application, and includes 
administrative requirements to ensure appropriate use of Federal 
assistance. Therefore, each application must be in writing and must 
include the following:
    (a) Problem. A description of the nature and extent of the law 
enforcement emergency, including the specific identification and 
description of the political and geographical subdivision(s) wherein the 
emergency exists;
    (b) Cause. A description of the situation or extraordinary 
circumstances which produced such emergency;
    (c) Resources. A description of the state and local criminal justice 
resources available to address the emergency, and a discussion of why 
and to what degree they are insufficient;
    (d) Assistance requested. A specific statement of the funds, 
equipment, training, intelligence information, or personnel requested, 
and a description of their intended use;
    (e) Other assistance. The identification of any other assistance the 
state or appropriate unit of government has received, or could receive, 
under any provision of the Act; and,
    (f) Other requirements. Assurance of compliance with other 
requirements of the Act, detailed in other parts of these

[[Page 210]]

regulations, including: Nonsupplantation; nondiscrimination; 
confidentiality of information; prohibition against land acquisition; 
recordkeeping and audit; limitation on civil justice matters.



             Subpart E_Submission and Review of Applications



Sec. 65.40  General.

    This subpart describes the process and criteria for the Attorney 
General's review and approval or disapproval of state applications. The 
original application, on Standard Form 424, signed by the chief 
executive officer of the state should be submitted directly to the 
Attorney General, U.S. Department of Justice, Washington, DC 20503. One 
copy of the application should be sent to the Director, Bureau of 
Justice Assistance, Office of Justice Programs, U.S. Department of 
Justice, Washington, DC 20531.

[67 FR 7270, Feb. 19, 2002]



Sec. 65.41  Review of State applications.

    (a) Review criteria. The Act provides the basis for review and 
approval or disapproval of state applications. Federal law enforcement 
assistance may be provided if such assistance is necessary to provide an 
adequate response to a law enforcement emergency. In determining whether 
to approve or disapprove an application for assistance under this 
section, the Attorney General shall consider:
    (1) The nature and extent of such emergency throughout a state or in 
any part of a state;
    (2) The situation or extraordinary circumstances which produced such 
emergency;
    (3) The availability of state and local criminal justice resources 
to resolve the problem;
    (4) The cost associated with the increased Federal presence;
    (5) The need to avoid unnecessary Federal involvement and 
intervention in matters primarily of state and local concern; and,
    (6) Any assistance which the state or other appropriate unit of 
government has received, or could receive, under any provision of title 
I of the Omnibus Crime Control and Safe Streets Act of 1968.
    (b) Review process. (1) The Attorney General shall consult with the 
Assistant Attorney General, Office of Justice Programs, and the 
Director, Bureau of Justice Assistance, on requests for grant 
assistance.
    (2) All requests for assistance of the Federal law enforcement 
community (e.g., equipment, training, information, or personnel) shall 
be reviewed by the Attorney General in consultation with appropriate 
members of the Federal law enforcement community, including the United 
States Attorney(s) in the affected District(s). Such requests will be 
subject to statutory restrictions, including section 609O on Federal 
agency activities.
    (3) The Attorney General will approve or disapprove each 
application, submitted in accordance with these regulations, no later 
than ten (10) days after receipt.



                    Subpart F_Additional Requirements



Sec. 65.50  General.

    This subpart sets forth additional requirements under the Justice 
Assistance Act. Applicants for assistance must assure compliance with 
each of these requirements.



Sec. 65.51  Recordkeeping.

    (a) The state must assure that it adheres to the recordkeeping 
requirements enumerated in OMB Circulars, Number A-102 and Number A-128. 
This requirement extends to participating units of local government, in 
that they are viewed as the state's subgrantees.
    (b) The Attorney General and the Comptroller of the United States 
shall have access, for the purpose of audit and examination, to any 
books, documents, and records of recipients of Federal law enforcement 
assistance provided under this subdivision which, in the opinion of the 
Attorney General or the Comptroller General, are related to the receipt 
or use of such assistance.



Sec. 65.52  Civil rights.

    The Act provides that ``no person in any state shall on the grounds 
of race, color, religion, national origin, or sex

[[Page 211]]

be excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under or denied employment in connection 
with any programs or activity funded in whole or in part with funds made 
available under this title.'' Recipients of funds under the Act are also 
subject to the provisions of title VI of the Civil Rights Act of 1964; 
section 504 of the Rehabilitation Act of 1973, as amended; title IX of 
the Education Amendments of 1972; the Age Discrimination Act of 1975; 
and the Department of Justice Non-Discrimination Regulations 28 CFR part 
42, subparts C, D, E, and G.



Sec. 65.53  Confidentiality of information.

    Section 812 of title I of the Omnibus Crime Control and Safe Streets 
Act of 1968 (as amended and implemented by 28 CFR part 20) shall apply 
with respect to information, including criminal history information and 
criminal intelligence systems operating with the support of Federal law 
enforcement assistance.



                      Subpart G_Repayment of Funds



Sec. 65.60  Repayment of funds.

    (a) If Federal law enforcement assistance provided under this 
subdivision is used by the recipient of such assistance in violation of 
these regulations, or for any purpose other than the purpose for which 
it is provided, then such recipient shall promptly repay to the Attorney 
General an amount equal to the value of such assistance.
    (b) The Attorney General may bring a civil action in an appropriate 
United States District Court to recover any amount authorized to be 
repaid under law.



                          Subpart H_Definitions



Sec. 65.70  Definitions.

    (a) Law enforcement emergency. The term law enforcement emergency is 
defined by the Act as an uncommon situation which requires law 
enforcement, which is or threatens to become of serious or epidemic 
proportions, and with respect to which state and local resources are 
inadequate to protect the lives and property of citizens, or to enforce 
the criminal law. The Act specifically excludes the following situations 
when defining ``law enforcement emergency'':
    (1) The perceived need for planning or other activities related to 
crowd control for general public safety projects; and,
    (2) A situation requiring the enforcement of laws associated with 
scheduled public events, including political convention and sports 
events.
    (b) Federal law enforcement assistance. The term Federal law 
enforcement assistance is defined by the Act to mean funds, equipment, 
training, intelligence information, and personnel.
    (c) Federal law enforcement community. The term Federal law 
enforcement community is defined by the Act as the heads of the 
following departments or agencies:
    (1) Federal Bureau of Investigation;
    (2) Drug Enforcement Administration;
    (3) Criminal Division of the Department of Justice;
    (4) Internal Revenue Service;
    (5) Customs Service;
    (6) Department of Homeland Security;
    (7) U.S. Marshals Service;
    (8) National Park Service;
    (9) U.S. Postal Service;
    (10) Secret Service;
    (11) U.S. Coast Guard;
    (12) Bureau of Alcohol, Tobacco, Firearms, and Explosives;
    (13) National Security Division of the Department of Justice; and
    (14) Other Federal agencies with specific statutory authority to 
investigate violations of Federal criminal law.
    (d) State. The term state is defined by the Act as any state of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory of 
the Pacific Islands, or the Commonwealth of the Northern Mariana 
Islands.

[50 FR 51340, Dec. 16, 1985, as amended by Order No. 2865-2007, 72 FR 
10069, Mar. 7, 2007]



                  Subpart I_Immigration Emergency Fund

    Source: Order No. 1892-94, 59 FR 30522, June 14, 1994, unless 
otherwise noted.

[[Page 212]]



Sec. 65.80  General.

    The regulations of this subpart set forth procedures for 
implementing section 404(b) of the Immigration and Nationality Act 
(``INA''), 8 U.S.C. 1101 note, by providing for Presidential 
determinations of the existence of an immigration emergency, and for 
payments from the Immigration Emergency Fund or other funding available 
for such purposes, to State and local governments for assistance 
provided in meeting an immigration emergency. The regulations of this 
subpart also establish procedures by which the Attorney General may draw 
upon the Immigration Emergency Fund, without a Presidential 
determination that an immigration emergency exists, to provide funding 
to State and local governments for assistance provided as required by 
the Attorney General in certain specified circumstances.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48359, July 24, 2002]



Sec. 65.81  General definitions.

    As used in this part:
    Assistance means any actions taken by a State or local government 
directly relating to aiding the Attorney General in the administration 
of the immigration laws of the United States and in meeting urgent 
demands arising from the presence of aliens in the State or local 
government's jurisdiction, when such actions are taken to assist in 
meeting an immigration emergency or under any of the circumstances 
specified in section 404(b)(2)(A) of the INA. Assistance may include, 
but need not be limited to, the provision of large shelter facilities 
for the housing and screening of aliens, and, in connection with these 
activities, the provision of such basic necessities as food, water 
clothing, and health care.
    Immigration emergency means an actual or imminent influx of aliens 
which either is of such magnitude or exhibits such other characteristics 
that effective administration of the immigration laws of the United 
States is beyond the existing capabilities of the Immigration and 
Naturalization Service (``INS'') in the affected area or areas. 
Characteristics of an influx of aliens, other than magnitude, which may 
be considered in determining whether an immigration emergency exists 
include: the likelihood of continued growth in the magnitude of the 
influx; an apparent connection between the influx and increases in 
criminal activity; the actual or imminent imposition of unusual and 
overwhelming demands on law enforcement agencies; and other similar 
characteristics.
    Other circumstances means a situation that, as determined by the 
Attorney General, requires the resources of a State or local government 
to ensure the proper administration of the immigration laws of the 
United States or to meet urgent demands arising from the presence of 
aliens in a State or local government's jurisdiction.



Sec. 65.82  Procedure for requesting a Presidential determination of 
an immigration emergency.

    (a) The President may make a determination concerning the existence 
of an immigration emergency after review of a request from either the 
Attorney General of the United States or the chief executive of a State 
or local government. Such a request shall include a description of the 
facts believed to constitute an immigration emergency and the types of 
assistance needed to meet that emergency. Except when a request is made 
by the Attorney General, the requestor shall file the original 
application with the Office of the President and shall file copies of 
the application with the Attorney General and with the Commissioner of 
INS.
    (b) If the President determines that an immigration emergency 
exists, the President shall certify that fact to the Judiciary 
Committees of the House of Representatives and of the Senate.



Sec. 65.83  Assistance required by the Attorney General.

    The Attorney General may request assistance from a State or local 
government in the administration of the immigration laws of the United 
States or in meeting urgent demands where the need for assistance arises 
because of the presence of aliens in that State or local jurisdiction, 
and may provide funding to a State or local government relating to such 
assistance from the

[[Page 213]]

Immigration Emergency Fund or other funding available for such purposes, 
without a Presidential determination of an immigration emergency, in any 
of the following circumstances:
    (a) An INS district director certifies to the Commissioner of INS, 
who shall, in turn, certify to the Attorney General, that the number of 
asylum applications filed in that INS district during the relevant 
calendar quarter exceeds by at least 1,000 the number of such 
applications filed in that district during the preceding calendar 
quarter. For purposes of this paragraph, providing parole at a point of 
entry in a district shall be deemed to constitute an application for 
asylum in the district.
    (b) The Attorney General determines that there exist circumstances 
involving the administration of the immigration laws of the United 
States that endanger the lives, property, safety, or welfare of the 
residents of a State or locality.
    (c) The Attorney General determines that there exist any other 
circumstances, as defined in Sec. 65.81 of this subpart, such that it is 
appropriate to seek assistance from a State or local government in 
administering the immigration laws of the United States or in meeting 
urgent demands arising from the presence of aliens in a State or local 
jurisdiction.
    (d)(1) If, in making a determination pursuant to paragraph (b) or 
(c) of this section, the Attorney General also determines that the 
situation involves an actual or imminent mass influx of aliens arriving 
off the coast or near a land border of the United States and presents 
urgent circumstances requiring an immediate Federal response, the 
Attorney General will formally declare that a mass influx of aliens is 
imminent or occurring. The determination that a mass influx of aliens is 
imminent or occurring will be based on the factors set forth in the 
definitions contained in Sec. 65.81 of this subpart. The Attorney 
General will determine and define the time period that encompasses a 
mass influx of aliens by declaring when such an event begins and when it 
ends. The Attorney General will initially define the geographic 
boundaries where the mass influx of aliens is imminent or occurring.
    (2) Based on evolving developments in the scope of the event, the 
Commissioner of the INS may, as necessary, amend and redefine the 
geographic area defined by the Attorney General to expand or decrease 
the boundaries. This authority shall not be further delegated.
    (3) The Attorney General, pursuant to section 103(a)(8) of the INA, 
8 U.S.C. 1103(a)(8), may authorize any State or local law enforcement 
officer to perform or exercise any of the powers, privileges, or duties 
conferred or imposed by the Act, or regulations issued thereunder, upon 
officers or employees of the Service. Such authorization must be with 
the consent of the head of the department, agency, or establishment 
under whose jurisdiction the officer is serving.
    (4) Authorization for State or local law enforcement officers to 
exercise Federal immigration law enforcement authority for transporting 
or guarding aliens in custody may be exercised as necessary beyond the 
defined geographic boundaries where the mass influx of aliens is 
imminent or occurring. Otherwise, Federal immigration law enforcement 
authority to be exercised by State or local law enforcement officers 
will be authorized only within the defined geographic boundaries where 
the mass influx of aliens is imminent or occurring.
    (5) State or local law enforcement officers will be authorized to 
exercise Federal immigration law enforcement authority only during the 
time period prescribed by the Attorney General in conjunction with the 
initiation and termination of a declared mass influx of aliens.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48360, July 24, 2002]



Sec. 65.84  Procedures for the Attorney General when seeking State
or local assistance.

    (a)(1) When the Attorney General determines to seek assistance from 
a State or local government under Sec. 65.83 of this subpart, or when 
the President has determined that an immigration emergency exists, the 
Attorney General shall negotiate the terms and conditions of that 
assistance with the

[[Page 214]]

State or local government. The Attorney General shall then execute a 
written agreement with appropriate State or local officials, which sets 
forth the terms and conditions of the assistance, including funding. 
Such written agreements can be reimbursement agreements, grants, or 
cooperative agreements.
    (2) The Commissioner may execute written contingency agreements 
regarding assistance under Sec. 65.83(d) of this subpart in advance of 
the Attorney General's determination pursuant to that section. However, 
such advance agreements shall not authorize State or local law 
enforcement officers to perform any functions of Service officers or 
employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until 
the Attorney General has made the necessary determinations and 
authorizes such performance. Any such advance agreements shall contain 
precise activation procedures.
    (3) Written agreements regarding assistance under Sec. 65.83(d) of 
this subpart, including contingency agreements, shall include the 
following minimum requirements:
    (i) A statement of the powers, privileges, or duties that State or 
local law enforcement officers will be authorized to exercise and the 
conditions under which they may be exercised;
    (ii) A statement of the types of assistance by State or local law 
enforcement officers for which the Attorney General shall be responsible 
for reimbursing the relevant parties in accordance with the procedures 
set forth in paragraph (b) of this section;
    (iii) A statement that the relevant State or local law enforcement 
officers are not authorized to exercise any functions of Service 
officers or employees under section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), until the Attorney General has made a determination pursuant 
to that section and authorizes such performance;
    (iv) A requirement that State or local law enforcement officers 
cannot exercise any authorized functions of Service officers or 
employees under section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), until 
they have successfully completed and been certified in a Service-
prescribed course of instruction in basic immigration law, immigration 
law enforcement fundamentals and procedures, civil rights law, and 
sensitivity and cultural awareness issues;
    (v) A description of the duration of the written agreement, and of 
the authority the Attorney General will confer upon State or local law 
enforcement officers pursuant to section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), along with a provision for amending, terminating, or 
extending the duration of the written agreement, or for terminating or 
amending the authority to be conferred pursuant to section 103(a)(8) of 
the INA, 8 U.S.C. 1103(a)(8);
    (vi) A requirement that the exercise of any Service officer 
functions by State or local law enforcement officers pursuant to section 
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be at the direction of the 
Service;
    (vii) A requirement that any State or local law enforcement officer 
performing Service officer or employee functions pursuant to section 
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), must adhere to the policies 
and standards set forth during the training, including applicable 
immigration law enforcement standards and procedures, civil rights law, 
and sensitivity and cultural awareness issues;
    (viii) A statement that the authority to perform Service officer or 
employee functions pursuant to section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), does not abrogate or abridge constitutional or civil rights 
protections;
    (ix) A requirement that a complaint reporting and resolution 
procedure for allegations of misconduct or wrongdoing by State or local 
officers designated, or activities undertaken, pursuant to section 
103(a)(8) of the INA, 8 U.S.C. 1103(a)(8), be in place;
    (x) A requirement that a mechanism to record and monitor complaints 
regarding the immigration enforcement activities of State or local law 
enforcement officers authorized to enforce immigration laws be in place;
    (xi) A listing by position (title and name when available) of the 
Service officers authorized to provide operational direction to State or 
local law enforcement officers assisting in a Federal response pursuant 
to section 103(a)(8) of the INA, 8 U.S.C. 1103(a)(8);

[[Page 215]]

    (xii) A requirement that a State or local law enforcement agency 
maintain records of operational expenditures incurred as a result of 
supporting the Federal response to a mass influx of aliens;
    (xiii) Provisions concerning State or local law enforcement officer 
use of Federal property or facilities, if any;
    (xiv) A requirement that any department, agency, or establishment 
whose State or local law enforcement officer is performing Service 
officer or employee functions shall cooperate fully in any Federal 
investigation related to allegations of misconduct or wrongdoing in 
conjunction with such functions, or to the written agreement; and
    (xv) A procedure by which the appropriate law enforcement agency, 
department, or establishment will be notified that the Attorney General 
has made a determination under section 103(a)(8) of the INA, 8 U.S.C. 
1103(a)(8), to authorize State or local law enforcement officers to 
exercise Federal immigration enforcement authority under the provisions 
of the respective agreements.
    (4) The Attorney General may abbreviate or waive any of the training 
required pursuant to a written agreement regarding assistance under 
Sec. 65.83(d) of this chapter, including contingency agreements, in the 
event that the number of State or local law enforcement officers 
available to respond in an expeditious manner to urgent and quickly 
developing events during a declared mass influx of aliens is 
insufficient to protect public safety, public health, or national 
security. Such officers still would be required to adhere to applicable 
policies and standards of the Immigration and Naturalization Service. 
The decision to abbreviate or waive these training requirements is at 
the sole discretion of the Attorney General.
    (b) A reimbursement agreement shall contain the procedures under 
which the State or local government is to obtain reimbursement for its 
assistance. A reimbursement agreement shall include the title of the 
official to whom claims are to be submitted, the intervals at which 
claims are to be submitted, a description of the supporting 
documentation to be submitted, and any limitations on the total amount 
of reimbursement that will be provided. Grants and cooperative 
agreements shall be made and administered in accordance with the uniform 
procedures in part 66 of this title.
    (c) In exigent circumstances, the Attorney General may agree to 
provide funding to a State or local government without a written 
agreement. A reimbursement agreement, grant, or cooperative agreement 
conforming to the specifications in this section shall be reduced to 
writing as soon as practicable.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48360, July 24, 2002; Order No. 2659-2003, 68 FR 8822, 
Feb. 26, 2003]



Sec. 65.85  Procedures for State or local governments applying 
for funding.

    (a) In the event that the chief executive of a State or local 
government determines that any of the circumstances set forth in 
Sec. 65.83 of this subpart exists, he or she may pursue the procedures 
in this section to submit to the Attorney General an application for a 
reimbursement agreement, grant, or cooperative agreement as described in 
Sec. 65.84 of this subpart.
    (b) The Department strongly encourages chief executives of States 
and local governments, if possible, to consult informally with the 
Attorney General and the Commissioner of INS prior to submitting a 
formal application. This informal consultation is intended to facilitate 
discussion of the nature of the assistance to be provided by the State 
or local government, the requirements of the Attorney General, if any, 
for such assistance, the costs associated with such assistance, and the 
Department's preliminary views on the appropriateness of the proposed 
funding.
    (c) The chief executive of a State or local government shall submit 
an application in writing to the Attorney General, and shall file a copy 
with the Commissioner of INS. The application shall set forth in detail 
the following information:
    (1) The name of the jurisdiction requesting reimbursement;
    (2) All facts supporting the application;

[[Page 216]]

    (3) The nature of the assistance which the State or local government 
has provided or will provide, as required by the Attorney General, for 
which funding is requested;
    (4) The dollar amount of the funding sought;
    (5) A justification for the amount of funding being sought;
    (6) The expected duration of the conditions requiring State or local 
assistance;
    (7) Information about whether funding is sought for past costs or 
for future costs;
    (8) The name, address, and telephone number of a contact person from 
the requesting jurisdiction.
    (d) If the Attorney General determines that the assistance for which 
funding is sought under paragraph (c) of this section is appropriate 
under the standards of this subpart, the Attorney General may enter into 
a reimbursement or cooperative agreement or may make a grant in the same 
manner as if the assistance had been requested by the Attorney General 
as described under Sec. 65.84 of this subpart.
    (e) The Attorney General will consider all applications from State 
or local governments until the Attorney General has obligated funding 
available for such purposes as determined by the Attorney General. The 
Attorney General will make a decision with respect to any application 
submitted under this section that contains the information described in 
paragraph (c) of this section within 15 calendar days of such 
application.
    (f) In exigent circumstances, the Attorney General may waive the 
requirements of this section concerning the form, contents, and order of 
consideration of applications, including the requirement in paragraph 
(c) of this section that applications be submitted in writing.

[Order No. 1892-94, 59 FR 30522, June 14, 1994, as amended by Order No. 
2601-2002, 67 FR 48361, July 24, 2002]



 PART 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--Table of Contents



Sec.
68.1  Scope of rules.
68.2  Definitions.
68.3  Service of complaint, notice of hearing, written orders, and 
          decisions.
68.4  Complaints regarding unfair immigration-related employment 
          practices.
68.5  Notice of date, time, and place of hearing.
68.6  Service and filing of documents.
68.7  Form of pleadings.
68.8  Time computations.
68.9  Responsive pleadings--answer.
68.10  Motion to dismiss for failure to state a claim upon which relief 
          can be granted.
68.11  Motions and requests.
68.12  Prehearing statements.
68.13  Conferences.
68.14  Consent findings or dismissal.
68.15  Intervenor in unfair immigration-related employment cases.
68.16  Consolidation of hearings.
68.17  Amicus curiae.
68.18  Discovery--general provisions.
68.19  Written interrogatories to parties.
68.20  Production of documents, things, and inspection of land.
68.21  Admissions.
68.22  Depositions.
68.23  Motion to compel response to discovery; sanctions.
68.24  Use of depositions at hearings.
68.25  Subpoenas.
68.26  Designation of Administrative Law Judge.
68.27  Continuances.
68.28  Authority of Administrative Law Judge.
68.29  Unavailability of Administrative Law Judge.
68.30  Disqualification.
68.31  Separation of functions.
68.32  Expedition.
68.33  Participation of parties and representation.
68.34  Legal assistance.
68.35  Standards of conduct.
68.36  Ex parte communications.
68.37  Waiver of right to appear and failure to participate or to 
          appear.
68.38  Motion for summary decision.
68.39  Formal hearings.
68.40  Evidence.
68.41  Official notice.

[[Page 217]]

68.42  In camera and protective orders.
68.43  Exhibits.
68.44  Records in other proceedings.
68.45  Designation of parts of documents.
68.46  Authenticity.
68.47  Stipulations.
68.48  Record of hearings.
68.49  Closing the record.
68.50  Receipt of documents after hearing.
68.51  Restricted access.
68.52  Final order of the Administrative Law Judge.
68.53  Review of an interlocutory order of an Administrative Law Judge 
          in cases arising under section 274A or 274C.
68.54  Administrative review of a final order of an Administrative Law 
          Judge in cases arising under section 274A or 274C.
68.55  Referral of cases arising under sections 274A or 274C to the 
          Attorney General for review.
68.56  Judicial review of a final agency order in cases arising under 
          section 274A or 274C.
68.57  Judicial review of the final agency order of an Administrative 
          Law Judge in cases arising under section 274B.
68.58  Filing of the official record.

    Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and 
1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 
110 Stat. 1321.



Sec. 68.1  Scope of rules.

    The rules of practice in this part are applicable to adjudicatory 
proceedings before Administrative Law Judges of the Executive Office for 
Immigration Review, United States Department of Justice, with regard to 
unlawful employment cases under section 274A of the INA, unfair 
immigration-related employment practice cases under section 274B of the 
INA, and document fraud cases under section 274C of the INA. Such 
proceedings shall be conducted expeditiously, and the parties shall make 
every effort at each stage of a proceeding to avoid delay. To the extent 
that these rules may be inconsistent with a rule of special application 
as provided by statute, executive order, or regulation, the latter is 
controlling. The Federal Rules of Civil Procedure may be used as a 
general guideline in any situation not provided for or controlled by 
these rules, by the Administrative Procedure Act, or by any other 
applicable statute, executive order, or regulation.

[Order No. 2203-99, 64 FR 7073, Feb. 12, 1999]



Sec. 68.2  Definitions.

    For purposes of this part:
    Adjudicatory proceeding means an administrative judicial-type 
proceeding, before the Office of the Chief Administrative Hearing 
Officer, commencing with the filing of a complaint and leading to the 
formulation of a final agency order;
    Administrative Law Judge means an Administrative Law Judge appointed 
pursuant to the provisions of 5 U.S.C. 3105;
    Administrative Procedure Act means those provisions of the 
Administrative Procedure Act, as codified, which are contained in 5 
U.S.C. 551 through 559;
    Certification means a formal assertion in writing of the specified 
fact(s), signed by the person(s) making the certification and thereby 
attesting to the truth of the content of the writing, except as follows:
    (1) Certified court reporter means a person who has been deemed by 
an appropriate body to be qualified to transcribe or record testimony 
during formal legal proceedings,
    (2) Certified mail means a form of mail similar to registered mail 
by which sender may require return receipt from addressee, and
    (3) Certified copy means a copy of a document or record, signed by 
the officer to whose custody the original is entrusted, thereby 
attesting that the copy is a true copy;
    Certify means the act of executing a certification;
    Chief Administrative Hearing Officer or an official who has been 
designated to act as the Chief Administrative Hearing Officer, is the 
official who, under the Director, Executive Office for Immigration 
Review, generally administers the Administrative Law Judge program, 
exercises administrative supervision over Administrative Law Judges and 
others assigned to the Office of the Chief Administrative Hearing 
Officer, and who, in accordance with sections 274A(e)(7) and 274C(d)(4) 
of the INA, exercises discretionary authority to review the decisions 
and orders of Administrative Law Judges adjudicated under sections 274A 
and 274C of the INA;
    Complainant means the Immigration and Naturalization Service in 
cases

[[Page 218]]

arising under sections 274A and 274C of the INA. In cases arising under 
section 274B of the INA, ``complainant'' means the Special Counsel (as 
defined in this section), and also includes the person or entity who has 
filed a charge with the Special Counsel, or, in private actions, an 
individual or private organization;
    Complaint means the formal document initiating an adjudicatory 
proceeding;
    Consent order means any written document containing a specified 
remedy or other relief agreed to by all parties and entered as an order 
by the Administrative Law Judge;
    Debt Collection Improvement Act means the Debt Collection 
Improvement Act of 1996, Pub. L. 104-134, Title III, 110 Stat. 1321 
(1996);
    Decision means any findings of fact or conclusions of law by an 
Administrative Law Judge or the Chief Administrative Hearing Officer;
    Document fraud cases means cases involving allegations under section 
274C of the INA.
    Entry means the date the Administrative Law Judge, Chief 
Administrative Hearing Officer, or the Attorney General signs the order; 
Entry as used in section 274B(i)(1) of the INA means the date the 
Administrative Law Judge signs the order;
    Final agency order is an Administrative Law Judge's final order, in 
cases arising under sections 274A and 274C of the INA, that has not been 
modified, vacated, or remanded by the Chief Administrative Hearing 
Officer pursuant to Sec. 68.54, referred to the Attorney General for 
review pursuant to Sec. 68.55(a), or accepted by the Attorney General 
for review pursuant to Sec. 68.55(b)(3). Alternatively, if the Chief 
Administrative Hearing Officer modifies or vacates the final order 
pursuant to Sec. 68.54, the modification or vacation becomes the final 
agency order if it has not been referred to the Attorney General for 
review pursuant to Sec. 68.55(a) or accepted by the Attorney General for 
review pursuant to Sec. 68.55(b)(3). If the Attorney General enters an 
order that modifies or vacates either the Chief Administrative Hearing 
Officer's or the Administrative Law Judge's order, the Attorney 
General's order is the final agency order. In cases arising under 
section 274B of the INA, an Administrative Law Judge's final order is 
also the final agency order;
    Final order is an order by an Administrative Law Judge that disposes 
of a particular proceeding or a distinct portion of a proceeding, 
thereby concluding the jurisdiction of the Administrative Law Judge over 
that proceeding or portion thereof;
    Hearing means that part of a proceeding that involves the submission 
of evidence, either by oral presentation or written submission;
    Interlocutory order means an order that decides some point or 
matter, but is not a final order or a final decision of the whole 
controversy; it decides some intervening matter pertaining to the cause 
of action and requires further steps to be taken in order for the 
Administrative Law Judge to adjudicate the cause on the full merits;
    INA means the Immigration and Nationality Act of 1952, ch. 477, Pub. 
L. 82-414, 66 Stat. 163, as amended;
    Issued as used in section 274A(e)(8) and section 274C(d)(5) of the 
INA means the date on which an Administrative Law Judge's final order, 
the Chief Administrative Hearing Officer's order, or an adoption, 
modification, or vacation by the Attorney General becomes a final agency 
order;
    Motion means an oral or written request, made by a person or a 
party, for some action by an Administrative Law Judge;
    Order means a determination or mandate by an Administrative Law 
Judge, the Chief Administrative Hearing Officer, or the Attorney General 
that resolves some point or directs some action in the proceeding;
    Ordinary mail refers to the mail service provided by the United 
States Postal Service using only standard postage fees, exclusive of 
special systems, electronic transfers, and other means that have the 
effect of providing expedited service;
    Party includes all persons or entities named or admitted as a 
complainant, respondent, or intervenor in a proceeding; or any person 
filing a charge with the Special Counsel under section 274B of the INA, 
resulting in the filing of a complaint, concerning an unfair

[[Page 219]]

immigration-related employment practice;
    Pleading means the complaint, motions, the answer thereto, any 
supplement or amendment thereto, and reply that may be permitted to any 
answer, supplement, or amendment submitted to the Administrative Law 
Judge or, when no judge is assigned, the Chief Administrative Hearing 
Officer;
    Prohibition of indemnity bond cases means cases involving 
allegations under section 274A(g) of the INA;
    Respondent means a party to an adjudicatory proceeding, other than a 
complainant, against whom findings may be made or who may be required to 
provide relief or take remedial action;
    Special Counsel means the Special Counsel for Unfair Immigration-
Related Employment Practices appointed by the President under section 
274B of the INA, or his or her designee or in the case of a vacancy in 
the Office of Special Counsel, the officer or employee designated by the 
President who shall act as Special Counsel during such vacancy;
    Unfair immigration-related employment practice cases means cases 
involving allegations under section 274B of the INA;
    Unlawful employment cases means cases involving allegations under 
section 274A of the INA, other than prohibition of indemnity bond cases.

[Order No. 2203-99, 64 FR 7073, Feb. 12, 1999, as amended by Order No. 
2255-99, 64 FR 49660, Sept. 14, 1999]



Sec. 68.3  Service of complaint, notice of hearing, written orders,
and decisions.

    (a) Service of complaint, notice of hearing, written orders, and 
decisions shall be made by the Office of the Chief Administrative 
Hearing Officer or the Administrative Law Judge to whom the case is 
assigned either:
    (1) By delivering a copy to the individual party, partner of a 
party, officer of a corporate party, registered agent for service of 
process of a corporate party, or attorney or representative of record of 
a party;
    (2) By leaving a copy at the principal office, place of business, or 
residence of a party; or
    (3) By mailing to the last known address of such individual, 
partner, officer, or attorney or representative of record.
    (b) Service of complaint and notice of hearing is complete upon 
receipt by addressee.
    (c) In circumstances where the Office of the Chief Administrative 
Hearing Officer or the Administrative Law Judge encounters difficulty 
with perfecting service, the Chief Administrative Hearing Officer or the 
Administrative Law Judge may direct that a party execute service of 
process.

[Order No. 2203-99, 64 FR 7074, Feb. 12, 1999]



Sec. 68.4  Complaints regarding unfair immigration-related employment
practices.

    (a) Generally. An individual must file a charge with the Special 
Counsel within one hundred and eighty (180) days of the date of the 
alleged unfair immigration-related employment practice.
    (b) The Special Counsel shall, within one hundred and twenty (120) 
days of the date of receipt of the charge:
    (1) Determine whether there is a reasonable cause to believe the 
charge is true and whether to bring a complaint respecting the charge 
with the Chief Administrative Hearing Officer within the 120-day period; 
or,
    (2) Notify the party within the 120-day period that the Special 
Counsel will not file a complaint with the Chief Administrative Hearing 
Officer within the 120-day period.
    (c) The charging individual may file a complaint directly with the 
Chief Administrative Hearing Officer within ninety (90) days after the 
date of receipt of notice that the Special Counsel will not be filing a 
complaint within the 120-day period. However, the Special Counsel's 
failure to file a complaint within the 120-day period will not affect 
the right of the Special Counsel to investigate the charge or bring a 
complaint within the 90-day period.

[Order No. 1534-91, 56 FR 50053, Oct. 3, 1991]

[[Page 220]]



Sec. 68.5  Notice of date, time, and place of hearing.

    (a) Generally. The Administrative Law Judge to whom the case is 
assigned shall notify the parties of a date, time, and place set for 
hearing thereon or for a prehearing conference, or both within thirty 
(30) days of receipt of respondent's answer to the complaint.
    (b) Place of hearing. In section 274B cases, pursuant to section 554 
of title 5, United States Code, due regard shall be given to the 
convenience of the parties and the witnesses in selecting a place for a 
hearing. Sections 274A(e)(3)(B) and 274C(d)(2)(B) of the INA require 
that hearings be held at the nearest practicable place to the place 
where the person or entity resides or to the place where the alleged 
violation occurred.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50054, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.6  Service and filing of documents.

    (a) Generally. An original and four copies of the complaint shall be 
filed with the Chief Administrative Hearing Officer. An original and two 
copies of all other pleadings, including any attachments, shall be filed 
with the Chief Administrative Hearing Officer by the parties presenting 
the pleadings until an Administrative Law Judge is assigned to a case. 
Thereafter, all pleadings shall be delivered or mailed for filing to the 
Administrative Law Judge assigned to the case, and shall be accompanied 
by a certification indicating service to all parties of record. When a 
party is represented by an attorney, service shall be made upon the 
attorney. Except as required by Sec. 68.54(c) and paragraph (c) of this 
section, service of any document upon any party may be made by personal 
delivery or by mailing a copy to the last known address. The person 
serving the document shall certify to the manner and date of service.
    (b) Discovery. The parties shall not file requests for discovery, 
answers, or responses thereto with the Administrative Law Judge. The 
Administrative Law Judge may, however, upon motion of a party or on his 
or her own initiative, order that such requests for discovery, answers, 
or responses thereto be filed.
    (c) Where a time limit is imposed by statute, regulation, or order. 
Pleadings and briefs may be filed by facsimile with either an 
Administrative Law Judge or, in the case of a complaint, with the Chief 
Administrative Hearing Officer, only to toll the running of a time 
limit. All original signed pleadings and other documents must be 
forwarded concurrently with the transmission of the facsimile. Any party 
filing documents by facsimile must include in the certification of 
service a certification that service on the opposing party has also been 
made by facsimile or by same-day hand delivery, or, if service by 
facsimile or same-day hand delivery cannot be made, a certification that 
the document has been served instead by overnight delivery service. In 
the case of requests for administrative review, briefs or other filings 
relating to review by the Chief Administrative Hearing Officer, filing, 
or service shall be made using the procedure set forth in this paragraph 
pursuant to Sec. 68.54(c).

[Order No. 2203-99, 64 FR 7074, Feb. 12, 1999]



Sec. 68.7  Form of pleadings.

    (a) Every pleading shall contain a caption setting forth the 
statutory provision under which the proceeding is instituted, the title 
of the proceeding, the docket number assigned by the Office of the Chief 
Administrative Hearing Officer, the names of all parties (or, after the 
complaint, at least the first party named as a complainant or 
respondent), and a designation of the type of pleading (e.g., complaint, 
motion to dismiss). The pleading shall be signed, dated, and shall 
contain the address and telephone number of the party or person 
representing the party. The pleading shall be on standard size (8\1/2\ 
x  11) paper and should also be typewritten when possible.
    (b) A complaint filed pursuant to section 274A, 274B, or 274C of the 
INA shall contain the following:
    (1) A clear and concise statement of facts, upon which an assertion 
of jurisdiction is predicated;

[[Page 221]]

    (2) The names and addresses of the respondents, agents, and/or their 
representatives who have been alleged to have committed the violation;
    (3) The alleged violations of law, with a clear and concise 
statement of facts for each violation alleged to have occurred; and,
    (4) A short statement containing the remedies and/or sanctions 
sought to be imposed against the respondent.
    (5) The complaint must be accompanied by a statement identifying the 
party or parties to be served by the Office of the Chief Administrative 
Hearing Officer with notice of the complaint pursuant to Sec. 68.3.
    (c) Complaints filed pursuant to sections 274A and 274C of the INA 
shall be signed by an attorney and shall be accompanied by a copy of the 
Notice of Intent to Fine and Request for Hearing. Complaints filed 
pursuant to section 274B of the INA shall be accompanied by a copy of 
the charge, previously filed with the Special Counsel pursuant to 
section 274B(b)(1), and a copy of the Special Counsel's letter of 
determination regarding the charges.
    (d) Illegible documents, whether handwritten, typewritten, 
photocopied, or otherwise, will not be accepted. Papers may be 
reproduced by any duplicating process, provided that all copies are 
clear and legible.
    (e) All documents presented by a party in a proceeding must be in 
the English language or, if in a foreign language, accompanied by a 
certified translation.

[Order No. 2203-99, 64 FR 7074, Feb. 12, 1999]



Sec. 68.8  Time computations.

    (a) Generally. In computing any period of time under these rules or 
in an order issued hereunder, the time begins with the day following the 
act, event, or default, and includes the last day of the period unless 
it is Saturday, Sunday, or legal holiday observed by the Federal 
Government in which case the time period includes the next business day. 
When the period of time prescribed is seven (7) days or less, 
intermediate Saturdays, Sundays, and holidays shall be excluded in the 
computation.
    (b) Computation of time for filing by mail. Pleadings are not deemed 
filed until received by the Office of the Chief Administrative Hearing 
Officer or Administrative Law Judge assigned to the case.
    (c) Computation of time for service by mail.
    (1) Service of all pleadings other than complaints is deemed 
effective at the time of mailing; and
    (2) Whenever a party has the right or is required to take some 
action within a prescribed period after the service upon such party of a 
pleading, notice, or other document (other than a complaint or a 
subpoena) and the pleading, notice, or document is served by ordinary 
mail, five (5) days shall be added to the prescribed period unless the 
compliance date is otherwise specified by the Chief Administrative 
Hearing Officer or the Administrative Law Judge.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50054, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.9  Responsive pleadings--answer.

    (a) Time for answer. Within thirty (30) days after the service of a 
complaint, each respondent shall file an answer.
    (b) Default. Failure of the respondent to file an answer within the 
time provided may be deemed to constitute a waiver of his or her right 
to appear and contest the allegations of the complaint. The 
Administrative Law Judge may enter a judgment by default.
    (c) Answer. Any respondent contesting any material fact alleged in a 
complaint, or contending that the amount of a proposed penalty or award 
is excessive or inappropriate, or contending that he or she is entitled 
to judgment as a matter of law, shall file an answer in writing. The 
answer shall include:
    (1) A statement that the respondent admits, denies, or does not have 
and is unable to obtain sufficient information to admit or deny each 
allegation; a statement of lack of information shall have the effect of 
a denial (any allegation not expressly denied shall be deemed to be 
admitted); and
    (2) A statement of the facts supporting each affirmative defense.

[[Page 222]]

    (d) Reply. Complainants may file a reply responding to each 
affirmative defense asserted.
    (e) Amendments and supplemental pleadings. If a determination of a 
controversy on the merits will be facilitated thereby, the 
Administrative Law Judge may, upon such conditions as are necessary to 
avoid prejudicing the public interest and the rights of the parties, 
allow appropriate amendments to complaints and other pleadings at any 
time prior to the issuance of the Administrative Law Judge's final order 
based on the complaint. When issues not raised by the pleadings are 
reasonably within the scope of the original complaint and are tried by 
express or implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings, and such 
amendments may be made as necessary to make the pleading conform to the 
evidence. The Administrative Law Judge may, upon reasonable notice and 
such terms as are just, permit supplemental pleadings setting forth 
transactions, occurrences, or events that have occurred or new law 
promulgated since the date of the pleadings and which are relevant to 
any of the issues involved.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]



Sec. 68.10  Motion to dismiss for failure to state a claim upon
which relief can be granted.

    (a) The respondent, without waiving the right to offer evidence in 
the event that the motion is not granted, may move for a dismissal of 
the complaint on the ground that the complainant has failed to state a 
claim upon which relief can be granted. The filing of a motion to 
dismiss does not affect the time period for filing an answer.
    (b) The Administrative Law Judge may dismiss the complaint, based on 
a motion by the respondent or without a motion from the respondent, if 
the Administrative Law Judge determines that the complainant has failed 
to state a claim upon which relief can be granted. However, in the 
prehearing phase of an adjudicatory proceeding brought under this part, 
the Administrative Law Judge shall not dismiss a complaint in its 
entirety for failure to state a claim upon which relief may be granted, 
upon his or her own motion, without affording the complainant an 
opportunity to show cause why the complaint should not be dismissed.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]



Sec. 68.11  Motions and requests.

    (a) Generally. The Chief Administrative Hearing Officer is 
authorized to act on non-adjudicatory matters relating to a proceeding 
prior to the appointment of an Administrative Law Judge. After the 
complaint is referred to an Administrative Law Judge, any application 
for an order or any other request shall be made by motion which shall be 
made in writing unless the Administrative Law Judge in the course of an 
oral hearing consents to accept such motion orally. The motion or 
request shall state with particularity the grounds therefor, and shall 
set forth the relief or order sought. Motions or requests made during 
the course of any oral hearing or appearance before an Administrative 
Law Judge shall be stated orally and made part of the transcript. 
Whether a motion is made orally or in writing, all parties shall be 
given reasonable opportunity to respond or to object to the motion or 
request.
    (b) Responses to motions. Within ten (10) days after a written 
motion is served, or within such other period as the Administrative Law 
Judge may fix, any party to the proceeding may file a response in 
support of, or in opposition to, the motion, accompanied by such 
affidavits or other evidence upon which he/she desires to rely. Unless 
the Administrative Law Judge provides otherwise, no reply to a response, 
counter-response to a reply, or any further responsive document shall be 
filed.
    (c) Oral arguments or briefs. No oral argument will be heard on 
motions unless the Administrative Law Judge otherwise directs. Written 
memoranda or briefs may be filed with motions or answers to motions, 
stating the points and authorities relied upon in support of the 
position taken.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]

[[Page 223]]



Sec. 68.12  Prehearing statements.

    (a) At any time prior to the commencement of the hearing, the 
Administrative Law Judge may order any party to file a prehearing 
statement of position.
    (b) A prehearing statement shall state the name of the party or 
parties on whose behalf it is presented and shall briefly set forth the 
following matters, unless otherwise ordered by the Administrative Law 
Judge:
    (1) Issues involved in the proceedings;
    (2) Facts stipulated to together with a statement that the party or 
parties have communicated or conferred in a good faith effort to reach 
stipulation to the fullest extent possible;
    (3) Facts in dispute;
    (4) Witnesses, except to the extent that disclosure would be 
privileged, and exhibits by which disputed facts will be litigated;
    (5) A brief statement of applicable law;
    (6) The conclusions to be drawn;
    (7) The estimated time required for presentation of the party's or 
parties' case; and
    (8) Any appropriate comments, suggestions, or information which 
might assist the parties or the Administrative Law Judge in preparing 
for the hearing or otherwise aid in the disposition of the proceeding.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.13  Conferences.

    (a) Purpose and scope. (1) Upon motion of a party or in the 
Administrative Law Judge's discretion, the judge may direct the parties 
or their counsel to participate in a prehearing conference at any 
reasonable time prior to the hearing, or in a conference during the 
course of the hearing, when the Administrative Law Judge finds that the 
proceeding would be expedited by such a conference. Prehearing 
conferences normally shall be conducted by conference telephonic 
communication unless, in the opinion of the Administrative Law Judge, 
such method would be impractical, or when such conferences can be 
conducted in a more expeditious or effective manner by correspondence or 
personal appearance. Reasonable notice of the time, place, and manner of 
the prehearing conference shall be given.
    (2) At the conference, the following matters may be considered:
    (i) The simplification of issues;
    (ii) The necessity of amendments to pleadings;
    (iii) The possibility of obtaining stipulations of facts and of the 
authenticity, accuracy, and admissibility of documents, which will avoid 
unnecessary proof;
    (iv) The limitations on the number of expert or other witnesses;
    (v) Negotiation, compromise, or settlement of issues;
    (vi) The exchange of copies of proposed exhibits;
    (vii) The identification of documents or matters of which official 
notice may be requested;
    (viii) A schedule to be followed by the parties for completion of 
the actions decided at the conference; and
    (ix) Such other matters, including the disposition of pending 
motions, as may expedite and aid in the disposition of the proceeding.
    (b) Reporting. A verbatim record of the conference will not be kept 
unless directed by the Administrative Law Judge.
    (c) Order. Actions taken as a result of a conference shall be 
reduced to a written order, unless the Administrative Law Judge 
concludes that a stenographic report shall suffice, or, if the 
conference takes place within seven (7) days of the beginning of the 
hearing, the Administrative Law Judge elects to make a statement on the 
record at the hearing summarizing the actions taken.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.14  Consent findings or dismissal.

    (a) Submission. Where the parties or their authorized 
representatives or their counsel have entered into a settlement 
agreement, they shall:
    (1) Submit to the presiding Administrative Law Judge:
    (i) The agreement containing consent findings; and
    (ii) A proposed decision and order; or
    (2) Notify the Administrative Law Judge that the parties have 
reached a

[[Page 224]]

full settlement and have agreed to dismissal of the action. Dismissal of 
the action shall be subject to the approval of the Administrative Law 
Judge, who may require the filing of the settlement agreement.
    (b) Content. Any agreement containing consent findings and a 
proposed decision and order disposing of a proceeding or any part 
thereof shall also provide:
    (1) That the decision and order based on consent findings shall have 
the same force and effect as a decision and order made after full 
hearing;
    (2) That the entire record on which any decision and order may be 
based shall consist solely of the complaint, notice of hearing, and any 
other such pleadings and documents as the Administrative Law Judge shall 
specify;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge; and
    (4) A waiver of any right to challenge or contest the validity of 
the decision and order entered into in accordance with the agreement.
    (c) Disposition. In the event an agreement containing consent 
findings and an interim decision and order is submitted, the 
Administrative Law Judge, within thirty (30) days or as soon as 
practicable thereafter, may, if satisfied with its timeliness, form, and 
substance, accept such agreement by entering a decision and order based 
upon the agreed findings. In his or her discretion, the Administrative 
Law Judge may conduct a hearing to determine the fairness of the 
agreement, consent findings, and proposed decision and order.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]



Sec. 68.15  Intervenor in unfair immigration-related employment cases.

    The Special Counsel, or any other interested person or private 
organization, other than an officer of the Immigration and 
Naturalization Service, may petition to intervene as a party in unfair 
immigration-related employment cases. The Administrative Law Judge, in 
his or her discretion, may grant or deny such a petition.

[Order No. 1534-91, 56 FR 50054, Oct. 3, 1991]



Sec. 68.16  Consolidation of hearings.

    When two or more hearings are to be held, and the same or 
substantially similar evidence is relevant and material to the matters 
at issue at each such hearing, the Administrative Law Judge assigned 
may, upon motion by any party, or on his or her own motion, order that a 
consolidated hearing be conducted. Where consolidated hearings are held, 
a single record of the proceedings may be made and the evidence 
introduced in one matter may be considered as introduced in the others, 
and a separate or joint decision shall be made at the discretion of the 
Administrative Law Judge.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.17  Amicus curiae.

    A brief of an amicus curiae may be filed by leave of the 
Administrative Law Judge upon motion or petition of the amicus curiae. 
The amicus curiae shall not participate in any way in the conduct of the 
hearing, including the presentation of evidence and the examination of 
witnesses.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.18  Discovery--general provisions.

    (a) General. Parties may obtain discovery by one or more of the 
following methods: depositions upon oral examination or written 
questions; written interrogatories; production of documents or things, 
or permission to enter upon land or other property, for inspection and 
other purposes; physical and mental examinations; and requests for 
admissions. The frequency or extent of these methods may be limited by 
the Administrative Law Judge upon his or her own initiative or pursuant 
to a motion under paragraph (c) of this section.
    (b) Scope of discovery. Unless otherwise limited by order of the 
Administrative Law Judge in accordance with the rules in this part, the 
parties may obtain discovery regarding any matter, not privileged, which 
is relevant to the subject matter involved in the proceeding, including 
the existence, description, nature, custody, condition, and location of 
any books, documents,

[[Page 225]]

or other tangible things, and the identity and location of persons 
having knowledge of any discoverable matter.
    (c) Protective orders. Upon motion by a party or the person from 
whom discovery is sought, and for good cause shown, the Administrative 
Law Judge may make any order that justice requires to protect a party or 
person from annoyance, harassment, embarrassment, oppression, or undue 
burden or expense, including one or more of the following:
    (1) The discovery not be had;
    (2) The discovery may be had only on specified terms and conditions, 
including a designation of the time, amount, duration, or place;
    (3) The discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery; or
    (4) Certain matters not relevant may not be inquired into, or that 
the scope of discovery be limited to certain matters.
    (d) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement his or her response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty to supplement timely his or her response 
with respect to any question directly addressed to:
    (i) The identity and location of persons having knowledge of 
discoverable matters; and
    (ii) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he or she is 
expected to testify, and the substance of his or her testimony.
    (2) A party is under a duty to amend timely a prior response if he 
or she later obtains information upon the basis of which:
    (i) He or she knows the response was incorrect when made; or
    (ii) He or she knows that the response, though correct when made, is 
no longer true and the circumstances are such that a failure to amend 
the response is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
Administrative Law Judge upon motion of a party or agreement of the 
parties.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]



Sec. 68.19  Written interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
to be answered in writing by the party served, or if the party served is 
a public or private corporation or a partnership or association or 
governmental agency, by any authorized officer or agent, who shall 
furnish such information as is available to the party. A copy of the 
interrogatories shall be served on all parties to the proceeding.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons of objection shall be stated in lieu of an answer. The 
answers and objections shall be signed by the person making them. The 
party upon whom the interrogatories were served shall serve a copy of 
the answer or objections upon all parties to the proceeding within 
thirty (30) days after service of the interrogatories, or within such 
shorter or longer period as the Administrative Law Judge upon motion may 
allow.
    (c) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the Administrative Law Judge may upon motion order that such 
an interrogatory need not be answered until after designated discovery 
has been completed or until a prehearing conference or other later time.
    (d) A person or entity upon whom interrogatories are served may 
respond by the submission of business records, indicating to which 
interrogatory the documents respond, if they are sufficient to answer 
said interrogatories.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.20  Production of documents, things, and inspection of land.

    (a) Any party may serve on any other party a request to:

[[Page 226]]

    (1) Produce and permit the party making the request, or a person 
acting on his/her behalf, to inspect and copy any designated documents 
or things or to inspect land, in the possession, custody, or control of 
the party upon whom the request is served; and
    (2) Permit the party making the request, or a person acting on his/
her behalf, to enter the premises of the party upon whom the request is 
served to accomplish the purposes stated in paragraph (1) of this 
section.
    (b) The request may be served on any party without leave of the 
Administrative Law Judge.
    (c) The request shall:
    (1) Set forth the items to be inspected either by individual item or 
by category;
    (2) Describe each item or category with reasonable particularity; 
and
    (3) Specify a reasonable time, place, and manner of making the 
inspection and performing the related acts.
    (d) The party upon whom the request is served shall serve on the 
party submitting the request a written response within thirty (30) days 
after service of the request.
    (e) The response shall state, with respect to each item or category:
    (1) That inspection and related activities will be permitted as 
requested; or
    (2) That objection is made in whole or in part, in which case the 
reasons for objection shall be stated.
    (f) A copy of each request for production and each written response 
shall be served on all parties.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.21  Admissions.

    (a) A party may serve upon any other party a written request for the 
admission, for purposes of the pending action only, of the genuineness 
and authenticity of any relevant document described in or attached to 
the request, or for the admission of the truth of any specified relevant 
matter of fact.
    (b) Each matter of which an admission is requested is admitted 
unless, within thirty (30) days after service of the request or such 
shorter or longer time as the Administrative Law Judge may allow, the 
party to whom the request is directed serves on the requesting party:
    (1) A written statement denying specifically the relevant matters of 
which an admission is requested;
    (2) A written statement setting forth in detail the reasons why he/
she can neither truthfully admit nor deny them; or
    (3) Written objections on the ground that some or all of the matters 
involved are privileged or irrelevant or that the request is otherwise 
improper in whole or in part.
    (c) An answering party may not give lack of information or knowledge 
as a reason for failure to admit or deny unless the party states that 
he/she has made reasonable inquiry and that the information known or 
readily obtainable by him/her is insufficient to enable the party to 
admit or deny.
    (d) Any matter admitted under this section is conclusively 
established unless the Administrative Law Judge upon motion permits 
withdrawal or amendment of the admission.
    (e) A copy of each request for admission and each written response 
shall be served on all parties.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.22  Depositions.

    (a) Notice. Any party desiring to take the deposition of a witness 
shall give notice in writing to the witness and other parties of the 
time and place of the deposition, and the name and address of each 
witness. If documents are requested, the notice shall include a written 
request for the production of documents. Not less than ten (10) days 
written notice shall be given when the deposition is to be taken within 
the continental United States, and not less then twenty (20) days 
written notice shall be given when the deposition is to be taken 
elsewhere, unless otherwise permitted by the Administrative Law Judge or 
agreed to by the parties.
    (b) When, how, and by whom taken. The following procedures shall 
apply to depositions:
    (1) Depositions may be taken by oral examination or upon written 
interrogatories before any person having power to administer oaths. The 
party taking a deposition upon oral examination

[[Page 227]]

shall state in the notice the method by which the testimony shall be 
recorded. Unless the Administrative Law Judge orders otherwise, it may 
be recorded by sound, sound-and-visual, or stenographic means, and the 
party taking the deposition shall bear the cost of the recording. Any 
party may arrange for a transcription to be made from the recording of a 
deposition taken by non-stenographic means.
    (2) Each witness testifying upon deposition shall testify under oath 
and any other party shall have the right to cross-examine. The questions 
asked and the answers thereto, together with all objections made, shall 
be recorded as provided by paragraph (b)(1) of this section. The person 
administering the oath shall certify in writing that the transcript or 
recording is a true record of the testimony given by the witness. The 
witness shall review the transcript or recording within thirty (30) days 
of notification that it is available and subscribe in writing to the 
deposition, indicating in writing any changes in form or substance, 
unless such review is waived by the witness and the parties by 
stipulation.
    (c) Motion to terminate or limit examination. During the taking of a 
deposition, a party or deponent may request suspension of the deposition 
on grounds of bad faith in the conduct of the examination, oppression of 
a deponent or party, or improper questions asked. The deposition will 
then be adjourned. However, the objecting party or deponent must 
immediately move the Administrative Law Judge for a ruling on his or her 
objections to the deposition conduct or proceedings.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]



Sec. 68.23  Motion to compel response to discovery; sanctions.

    (a) If a deponent fails to answer a question asked, or a party upon 
whom a discovery request is made pursuant to Secs. 68.18 through 68.22 
fails to respond adequately or objects to the request or to any part 
thereof, or fails to permit inspection as requested, the discovering 
party may move the Administrative Law Judge for an order compelling a 
response or inspection in accordance with the request. A party who has 
taken a deposition or has requested admissions or has served 
interrogatories may move to determine the sufficiency of the answers or 
objections thereto. Unless the objecting party sustains his or her 
burden of showing that the objection is justified, the Administrative 
Law Judge may order that an answer be served. If the Administrative Law 
Judge determines that an answer does not comply with the requirements of 
the rules in this part, he or she may order either that the matter is 
admitted or that an amended answer be served.
    (b) The motion shall set forth and include:
    (1) The nature of the questions or request;
    (2) The response or objections of the party upon whom the request 
was served;
    (3) Arguments in support of the motion; and
    (4) A certification that the movant has in good faith conferred or 
attempted to confer with the person or party failing to make the 
discovery in an effort to secure information or material without action 
by the Administrative Law Judge.
    (c) If a party, an officer or an agent of a party, or a witness, 
fails to comply with an order, including, but not limited to, an order 
for the taking of a deposition, the production of documents, the 
answering of interrogatories, a response to a request for admissions, or 
any other order of the Administrative Law Judge, the Administrative Law 
Judge may, for the purposes of permitting resolution of the relevant 
issues and disposition of the proceeding and to avoid unnecessary delay, 
take the following actions:
    (1) Infer and conclude that the admission, testimony, documents, or 
other evidence would have been adverse to the non-complying party;
    (2) Rule that for the purposes of the proceeding the matter or 
matters concerning which the order was issued be taken as established 
adversely to the non-complying party;
    (3) Rule that the non-complying party may not introduce into 
evidence or otherwise rely upon testimony by such party, officer, or 
agent, or the

[[Page 228]]

documents or other evidence, in support of or in opposition to any claim 
or defense;
    (4) Rule that the non-complying party may not be heard to object to 
introduction and use of secondary evidence to show what the withheld 
admission, testimony, documents, or other evidence would have shown;
    (5) Rule that a pleading, or part of a pleading, or a motion or 
other submission by the non-complying party, concerning which the order 
was issued, be stricken, or that a decision of the proceeding be 
rendered against the non-complying party, or both;
    (6) In the case of failure to comply with a subpoena, the 
Administrative Law Judge may also take the action provided in 
Sec. 68.25(e); and
    (7) In ruling on a motion made pursuant to this section, the 
Administrative Law Judge may make and enter a protective order such as 
he or she is authorized to enter on a motion made pursuant to 
Sec. 68.42.
    (d) Evasive or incomplete response. For the purposes of this 
section, an evasive or incomplete response to discovery may be treated 
as a failure to respond.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]



Sec. 68.24  Use of depositions at hearings.

    (a) Generally. At the hearing, any part or all of a deposition, so 
far as admissible, may be used against any party who was present or 
represented at the taking of the deposition or who had due notice 
thereof, in accordance with any one of the following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of the deponent as a witness;
    (2) The deposition of an expert witness may be used by any party for 
any purpose, unless the Administrative Law Judge rules that such use 
would be unfair or a violation of due process;
    (3) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or duly authorized agent of a 
public or private corporation, partnership, or association which is a 
party, may be used by any other party for any purpose;
    (4) The deposition of a witness, whether or not a party, may be used 
by any party for any purpose if the Administrative Law Judge finds:
    (i) That the witness is dead;
    (ii) That the witness is out of the United States or more than 100 
miles from the place of hearing unless it appears that the absence of 
the witness was procured by the party offering the deposition;
    (iii) That the witness is unable to attend to testify because of 
age, sickness, infirmity, or imprisonment;
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist to make it desirable, in the interest of justice, and with due 
regard to the importance of presenting the testimony of witnesses orally 
in open hearing, to allow the deposition to be used;
    (5) If only part of a deposition is offered in evidence by a party, 
any other party may require him or her to introduce all of it which is 
relevant to the part introduced, and any party may introduce any other 
parts; and
    (6) Substitution of parties does not affect the right to use 
depositions previously taken; and, when a proceeding in any hearing has 
been dismissed and another proceeding involving the parties or their 
representatives or successors in interest has been brought (or 
commenced), all depositions lawfully taken and duly filed in the former 
proceeding may be used in the latter if originally taken therefor.
    (7) A party offering deposition testimony may offer it in 
stenographic or nonstenographic form, but if in nonstenographic form, 
the party shall also be responsible for providing a transcript of the 
portions so offered.
    (b) Objections to admissibility. Except as provided in this 
paragraph, objections may be made at the hearing to receiving in 
evidence any deposition or part thereof for any reason that would 
require the exclusion of the evidence if the witness were then present 
and testifying.
    (1) Objections to the competency of a witness or to the competency, 
relevancy, or materiality of testimony are not waived by failure to make 
them

[[Page 229]]

before or during the taking of the deposition, unless the ground of the 
objection is one that might have been obviated or removed if presented 
at that time.
    (2) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless reasonable objection thereto is 
made at the taking of the deposition.

[Order No. 2203-99, 64 FR 7077, Feb. 12, 1999]



Sec. 68.25  Subpoenas.

    (a) An Administrative Law Judge, upon his or her own initiative or 
upon request of an individual or entity before a complaint is filed or 
by a party once a complaint has been filed, may issue subpoenas as 
authorized by statute, either prior to or subsequent to the filing of a 
complaint. Such subpoena may require attendance and testimony of 
witnesses and production of things including, but not limited to, 
papers, books, documents, records, correspondence, or tangible things in 
their possession and under their control and access to such things for 
the purposes of examination and copying. A subpoena may be served by 
overnight courier service or overnight mail, certified mail, or by any 
person who is not less than 18 years of age. A witness, other than a 
witness subpoenaed on behalf of the Federal Government, may not be 
required to attend a deposition or hearing unless the mileage and 
witness fee applicable to witnesses in courts of the United States for 
each date of attendance is paid in advance of the date of the 
proceeding. Mileage and witness fees need not be paid to a witness at 
the time of service of the subpoena if the witness is subpoenaed by the 
Federal Government.
    (b) The subpoena shall identify the person or things subpoenaed, the 
person to whom it is returnable and the place, date, and time at which 
it is returnable; or the subpoena shall identify the nature of the 
evidence to be examined and copied, and the date and time when access is 
requested. Where a non-party is subpoenaed, the requestor of the 
subpoena must give notice to all parties, or if no complaint has been 
filed, then notice shall be given to individuals or entities who have 
been charged with an unfair immigration-related employment practice 
under section 274B of the INA, the individual initiating the alleged 
unfair immigration-related employment practice, and the Office of 
Special Counsel. For purposes of this subsection, the receipt of the 
subpoena or a copy of the subpoena shall serve as the notice.
    (c) Any person served with a subpoena issued by an Administrative 
Law Judge who intends not to comply with it shall, within ten (10) days 
after the date of service of the subpoena upon such person or within 
such other time the Administrative Law Judge deems appropriate, petition 
the Administrative Law Judge to revoke or modify the subpoena. A copy of 
the petition shall be served on all parties. If a complaint has not been 
filed in the matter, a copy of the petition shall be served on the 
individual or entity that requested the subpoena. The petition shall 
separately identify each portion of the subpoena with which the 
petitioner does not intend to comply and shall state, with respect to 
each such portion, the grounds upon which the petitioner relies. A copy 
of the subpoena shall be attached to the petition. Within eight (8) days 
after receipt of the petition, the individual or entity that applied for 
the subpoena may respond to such petition, and the Administrative Law 
Judge shall then make a final determination upon the petition. The 
Administrative Law Judge shall cause a copy of the final determination 
of the petition to be served upon all parties, or, if a complaint has 
not been filed, upon the individuals or entities requesting and 
responding to the subpoena.
    (d) A party shall have standing to challenge a subpoena issued to a 
non-party if the party can claim a personal right or privilege in the 
discovery sought.
    (e) Failure to comply. Upon the failure of any person to comply with 
an order to testify or a subpoena issued under this section, the 
Administrative Law Judge may, where authorized by law, apply through 
appropriate counsel to the appropriate district court of the

[[Page 230]]

United States for an order requiring compliance with the order or 
subpoena.

[Order No. 1534-91, 56 FR 50055, Oct. 3, 1991, as amended by Order No. 
1635-92, 57 FR 57672, Dec. 7, 1992]



Sec. 68.26  Designation of Administrative Law Judge.

    Hearings shall be held before an Administrative Law Judge appointed 
under 5 U.S.C. 3105 and assigned to the Department of Justice. The 
presiding judge in any case shall be designated by the Chief 
Administrative Hearing Officer. The Chief Administrative Hearing Officer 
may reassign a case previously assigned to an Administrative Law Judge 
to promote administrative efficiency. In unfair immigration-related 
employment practice cases, only Administrative Law Judges specially 
designated by the Attorney General as having special training respecting 
employment discrimination may be chosen by the Chief Administrative 
Hearing Officer to preside.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991, as amended by Order No. 1635-92, 57 FR 57672, Dec. 
7, 1992]



Sec. 68.27  Continuances.

    (a) When granted. Continuances shall only be granted in cases where 
the requester has a prior judicial commitment or can demonstrate undue 
hardship, or a showing of other good cause.
    (b) Time limit for requesting. Except for good cause arising 
thereafter, requests for continuances must be filed not later than 
fourteen (14) days prior to the date of the scheduled proceeding.
    (c) How filed. Motions for continuances shall be in writing, unless 
made during the prehearing conference or the hearing. Copies shall be 
served on all parties. Any motions for continuances filed fewer than 
fourteen (14) days before the date of the scheduled proceeding shall, in 
addition to the written request, be telephonically communicated to the 
Administrative Law Judge or a member of the Judge's staff and to all 
other parties.
    (d) Ruling. Time permitting, the Administrative Law Judge shall 
enter a written order in advance of the scheduled proceeding date that 
either grants or denies the request. Otherwise, the ruling shall be made 
orally by telephonic communication to the party requesting the 
continuance, who shall be responsible for telephonically notifying all 
other parties. Oral orders shall be confirmed in writing by the 
Administrative Law Judge.

[Order No. 2203-99, 64 FR 7077, Feb. 12, 1999]



Sec. 68.28  Authority of Administrative Law Judge.

    (a) General powers. In any proceeding under this part, the 
Administrative Law Judge shall have all appropriate powers necessary to 
conduct fair and impartial hearings, including, but not limited to, the 
following:
    (1) Conduct formal hearings in accordance with the provisions of the 
Administrative Procedure Act and of this part;
    (2) Administer oaths and examine witnesses;
    (3) Compel the production of documents and appearance of witnesses 
in control of the parties;
    (4) Compel the appearance of witnesses by the issuance of subpoenas 
as authorized by law;
    (5) Issue decisions and orders;
    (6) Take any action authorized by the Administrative Procedure Act;
    (7) Exercise, for the purpose of the hearing and in regulating the 
conduct of the proceeding, such powers vested in the Attorney General as 
are necessary and appropriate therefore; and
    (8) Take other appropriate measures necessary to enable him or her 
to discharge the duties of the office.
    (b) Enforcement. If any person in proceedings before an 
Administrative Law Judge disobeys or resists any lawful order or 
process, or misbehaves during a hearing or so near the place thereof as 
to obstruct the same, or neglects to produce, after having been ordered 
to do so, any pertinent book, paper, or document, or refuses to appear 
after having been subpoenaed, or upon appearing refuses to take the oath 
as a witness, or after having taken the oath refuses to be examined 
according to law, the Administrative Law Judge responsible for the 
adjudication may, where authorized by statute or law, apply through 
appropriate counsel to the Federal District Court having jurisdiction in 
the place in which he/she

[[Page 231]]

is sitting to request appropriate remedies.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50055, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.29  Unavailability of Administrative Law Judge.

    In the event the Administrative Law Judge designated to conduct the 
hearing becomes unavailable, the Chief Administrative Hearing Officer 
may designate another Administrative Law Judge for the purpose of 
further hearing or other appropriate action.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.30  Disqualification.

    (a) When an Administrative Law Judge deems himself or herself 
disqualified to preside in a particular proceeding, such judge shall 
withdraw therefrom by notice on the record directed to the Chief 
Administrative Hearing Officer.
    (b) Whenever any party shall deem the Administrative Law Judge for 
any reason to be disqualified to preside, or to continue to preside, in 
a particular proceeding, that party shall file with the Administrative 
Law Judge a motion to recuse. The motion shall be supported by an 
affidavit setting forth the alleged grounds for disqualification. The 
Administrative Law Judge shall rule upon the motion.
    (c) In the event of disqualification or recusal of an Administrative 
Law Judge as provided in paragraph (a) or (b) of this section, the Chief 
Administrative Hearing Officer shall refer the matter to another 
Administrative Law Judge for further proceedings.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.31  Separation of functions.

    No officer, employee, or agent of the Federal Government engaged in 
the performance of investigative or prosecutorial functions in 
connection with any proceeding shall, in that proceeding or a factually 
related proceeding, participate or advise in the decision of the 
Administrative Law Judge, except as a witness or counsel in the 
proceedings.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.32  Expedition.

    Hearings shall proceed with all reasonable speed, insofar as 
practicable and with due regard to the convenience of the parties.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.33  Participation of parties and representation.

    (a) Participation of parties. Any party shall have the right to 
appear in a proceeding and may examine and cross-examine witnesses and 
introduce into the record documentary or other relevant evidence, except 
that the participation of any intervenor shall be limited to the extent 
prescribed by the Administrative Law Judge.
    (b) Person compelled to testify. Any person compelled to testify in 
a proceeding in response to a subpoena may be accompanied, represented, 
and advised by an individual meeting the requirements of paragraph (c) 
of this section.
    (c) Representation for parties other than the Department of Justice. 
Persons who may appear before the Administrative Law Judges on behalf of 
parties other than the Department of Justice include:
    (1) An attorney at law who is admitted to practice before the 
federal courts or before the highest court of any state, the District of 
Columbia, or any territory or commonwealth of the United States, may 
practice before the Administrative Law Judges. An attorney's own 
representation that the attorney is in good standing before any of such 
courts shall be sufficient proof thereof, unless otherwise ordered by 
the Administrative Law Judge.
    (2) A law student, enrolled in an accredited law school, may 
practice before an Administrative Law Judge. The law student must seek 
advance approval by filing a statement with the Administrative Law Judge 
proving current participation in a legal assistance program or clinic 
conducted by the law

[[Page 232]]

school. Practice before the Administrative Law Judge shall be under 
direct supervision of a faculty member or an attorney. An appearance by 
a law student shall be without direct or indirect remuneration. The 
Administrative Law Judge may determine the amount of supervision 
required of the supervising faculty member or attorney.
    (3) An individual who is neither an attorney nor a law student may 
be allowed to provide representation to a party upon a written order 
from the Administrative Law Judge assigned to the case granting approval 
of the representation. The individual must file a written application 
with the Administrative Law Judge demonstrating that the individual 
possesses the knowledge of administrative procedures, technical 
expertise, or other qualifications necessary to render valuable service 
in the proceedings and is otherwise competent to advise and assist in 
the presentation of matters in the proceedings.
    (i) Application. A written application by an individual who is 
neither an attorney nor a law student for admission to represent a party 
in proceedings shall be submitted to the Administrative Law Judge within 
ten (10) days from the receipt of the Notice of Hearing and complaint by 
the party on whose behalf the individual wishes to file the application. 
This period of time for filing the application may be extended upon 
approval of the Administrative Law Judge. The application shall set 
forth in detail the requesting individual's qualifications to represent 
the party.
    (ii) Inquiry on qualifications or ability. The Administrative Law 
Judge may, at any time, inquire as to the qualifications or ability of 
any non-attorney to render assistance in proceedings before the 
Administrative Law Judge.
    (iii) Denial of authority to appear. Except as provided in paragraph 
(c)(3)(iv) of this section, the Administrative Law Judge may enter an 
order denying the privilege of appearing to any individual who the Judge 
finds does not possess the requisite qualifications to represent others; 
is lacking in character or integrity; has engaged in unethical or 
improper professional conduct; or has engaged in an act involving moral 
turpitude.
    (iv) Exception. Any individual may represent him or herself or any 
corporation, partnership or unincorporated association of which that 
individual is a partner or general officer in proceedings before the 
Administrative Law Judge without prior approval of the Administrative 
Law Judge and without filing the written application required by this 
paragraph. Such individuals must, however, file a notice of appearance 
in the manner set forth in paragraph (e) of this section.
    (d) Representation for the Department of Justice. The Department of 
Justice may be represented by the appropriate counsel in these 
proceedings.
    (e) Proof of authority. Any individual acting in a representative 
capacity in any adjudicative proceeding may be required by the 
Administrative Law Judge to show his or her authority to act in such 
capacity. Representation of a respondent shall be at no expense to the 
Government.
    (f) Notice of appearance. Except for a government attorney filing a 
complaint pursuant to section 274A, 274B, or 274C of the INA, each 
attorney shall file a notice of appearance. Such notice shall indicate 
the name of the case or controversy, the case number if assigned, and 
the party on whose behalf the appearance is made. The notice of 
appearance shall be signed by the attorney, and shall be accompanied by 
a certification indicating that such notice was served on all parties of 
record. A request for a hearing signed by an attorney and filed with the 
Immigration and Naturalization Service pursuant to section 274A(e)(3)(A) 
or 274C(d)(2)(A) of the INA, and containing the same information as 
required by this section, shall be considered a notice of appearance on 
behalf of the respondent for whom the request was made.
    (g) Withdrawal or substitution of a representative. Withdrawal or 
substitution of an attorney or representative may be permitted by the 
Administrative Law Judge upon written motion. The Administrative Law 
Judge shall enter an order granting or denying such motion for 
withdrawal or substitution.

[Order No. 2203-99, 64 FR 7077, Feb. 12, 1999, as amended by Order No. 
2255-99, 64 FR 49660, Sept. 14, 1999]

[[Page 233]]



Sec. 68.34  Legal assistance.

    The Office of the Chief Administrative Hearing Officer does not have 
authority to appoint counsel.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.35  Standards of conduct.

    (a) All persons appearing in proceedings before an Administrative 
Law Judge are expected to act with integrity, and in an ethical manner.
    (b) The Administrative Law Judge may exclude from proceedings 
parties, witnesses, and their representatives for refusal to comply with 
directions, continued use of dilatory tactics, refusal to adhere to 
reasonable standards of orderly and ethical conduct, failure to act in 
good faith, or violation of the prohibition against ex parte 
communications. The Administrative Law Judge shall state in the record 
the cause for barring an attorney or other individual from participation 
in a particular proceeding. The Administrative Law Judge may suspend the 
proceeding for a reasonable time for the purpose of enabling a party to 
obtain another attorney or representative.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.36  Ex parte communications.

    (a) General. Except for other employees of the Executive Office for 
Immigration Review, the Administrative Law Judge shall not consult any 
person, or party, on any fact in issue unless upon notice and 
opportunity for all parties to participate. Communications by the Office 
of the Chief Administrative Hearing Officer, the assigned judge, or any 
party for the sole purpose of scheduling hearings, or requesting 
extensions of time are not considered ex parte communications, except 
that all other parties shall be notified of such request by the 
requesting party and be given an opportunity to respond thereto.
    (b) Sanctions. A party or participant who makes a prohibited ex 
parte communication, or who encourages or solicits another to make any 
such communication, may be subject to any appropriate sanction or 
sanctions, including but not limited to, exclusion from the proceedings 
and adverse ruling on the issue which is the subject of the prohibited 
communication.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.37  Waiver of right to appear and failure to participate
or to appear.

    (a) Waiver of right to appear. If all parties waive in writing their 
right to appear before the Administrative Law Judge or to present 
evidence or argument personally or by representative, it shall not be 
necessary to give notice of and conduct an oral hearing. A waiver of the 
right to appear and present evidence and allegations as to facts and law 
shall be made in writing and filed with the Chief Administrative Hearing 
Officer or the Administrative Law Judge. Where such a waiver has been 
filed by all parties and they do not appear before the Administrative 
Law Judge personally or by representative, the Administrative Law Judge 
shall make a record of the relevant written evidence submitted by the 
parties, together with any pleadings they may submit with respect to the 
issues in the case. Such documents shall be considered as all of the 
evidence in the case and decision shall be based on them.
    (b) Dismissal--Abandonment by party. A complaint or a request for 
hearing may be dismissed upon its abandonment by the party or parties 
who filed it. A party shall be deemed to have abandoned a complaint or a 
request for hearing if:
    (1) A party or his or her representative fails to respond to orders 
issued by the Administrative Law Judge; or
    (2) Neither the party nor his or her representative appears at the 
time and place fixed for the hearing and either
    (i) Prior to the time for hearing, such party does not show good 
cause as to why neither he or she nor his or her representative can 
appear; or
    (ii) Within ten (10) days after the time for hearing or within such 
other period as the Administrative Law Judge may allow, such party does 
not show good cause for such failure to appear.
    (c) Default--Failure to appear. A default decision, under 
Sec. 68.9(b), may be entered, with prejudice, against any

[[Page 234]]

party failing, without good cause, to appear at a hearing.

[54 FR 48596, Nov. 24, 1989. Redesignated and amended by Order No. 1534-
91, 56 FR 50053, 50056, Oct. 3, 1991; Order No. 1635-92, 57 FR 57672, 
Dec. 7, 1992]



Sec. 68.38  Motion for summary decision.

    (a) A complainant, not fewer than thirty (30) days after receipt by 
respondent of the complaint, may move with or without supporting 
affidavits for summary decision on all or any part of the complaint. 
Motions by any party for summary decision on all or any part of the 
complaint will not be entertained within the twenty (20) days prior to 
any hearing, unless the Administrative Law Judge decides otherwise. Any 
other party, within ten (10) days after service of a motion for summary 
decision, may respond to the motion by serving supporting or opposing 
papers with affidavits, if appropriate, or countermove for summary 
decision. The Administrative Law Judge may set the matter for argument 
and/or call for submission of briefs.
    (b) Any affidavits submitted with the motion shall set forth such 
facts as would be admissible in evidence in a proceeding subject to 5 
U.S.C. 556 and 557 and shall show affirmatively that the affiant is 
competent to testify to the matters stated therein. When a motion for 
summary decision is made and supported as provided in this section, a 
party opposing the motion may not rest upon the mere allegations or 
denials of such pleading. Such response must set forth specific facts 
showing that there is a genuine issue of fact for the hearing.
    (c) The Administrative Law Judge shall enter a summary decision for 
either party if the pleadings, affidavits, material obtained by 
discovery or otherwise, or matters officially noticed show that there is 
no genuine issue as to any material fact and that a party is entitled to 
summary decision.
    (d) Form of summary decisions. Any final order entered as a summary 
decision shall conform to the requirements for all final orders. A final 
order made under this section shall include a statement of:
    (1) Findings of fact and conclusions of law, and the reasons 
therefor, on all issues presented; and
    (2) Any terms and conditions of the final order.
    (e) Hearings on issue of fact. Where a genuine question of material 
fact is raised, the Administrative Law Judge shall set the case for an 
evidentiary hearing.

[Order No. 2203-99, 64 FR 7078, Feb. 12, 1999]



Sec. 68.39  Formal hearings.

    (a) Public. Hearings shall be open to the public. The Administrative 
Law Judge may order a hearing or any part thereof closed, where to do so 
would be in the best interests of the parties, a witness, the public, or 
other affected persons. Any order closing the hearing shall set forth 
the reasons for the decision. Any objections thereto shall be made a 
part of the record.
    (b) Jurisdiction. The Administrative Law Judge shall have 
jurisdiction to decide all issues of fact and related issues of law.
    (c) Rights of parties. Every party shall have the right of timely 
notice and all other rights essential to a fair hearing, including, but 
not limited to, the right to present evidence, to conduct such cross-
examination as may be necessary for a full and complete disclosure of 
the facts, and to be heard by objection, motion, and argument.
    (d) Rights of participation. Every party shall have the right to 
make a written or oral statement of position. At the discretion of the 
Administrative Law Judge, participants may file proposed findings of 
fact, conclusions of law, and a post hearing brief.
    (e) Amendments to conform to the evidence. When issues not raised by 
the request for hearing, prehearing stipulation, or prehearing order are 
tried by express or implied consent of the parties, they shall be 
treated in all respects as if they had been raised in the pleadings. 
Such amendment of the pleadings as may be necessary to cause them to 
conform to the evidence may be made on motion of any party at any time; 
but failure to so amend does not affect the result of the hearing of 
these issues. The Administrative Law Judge

[[Page 235]]

may grant a continuance to enable the objecting party to meet such 
evidence.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.40  Evidence.

    (a) Applicability of Federal rules of evidence. Unless otherwise 
provided by statute or these rules, the Federal Rules of Evidence will 
be a general guide to all proceedings held pursuant to these rules.
    (b) Admissibility. All relevant material and reliable evidence is 
admissible, but may be excluded if its probative value is substantially 
outweighed by unfair prejudice or confusion of the issues, or by 
considerations of undue delay, waste of time, immateriality, or needless 
presentation of cumulative evidence. Stipulations of fact may be 
introduced in evidence with respect to any issue. Every party shall have 
the right to present his/her case or defense by oral or documentary 
evidence, depositions, and duly authenticated copies of records and 
documents; to submit rebuttal evidence; and to conduct such reasonable 
cross-examination as may be required for a full and true disclosure of 
the facts. The Administrative Law Judge shall have the right in his/her 
discretion to limit the number of witnesses whose testimony may be 
merely cumulative and shall, as a matter of policy, not only exclude 
irrelevant, immaterial, or unduly repetitious evidence but shall also 
limit the cross-examination of witnesses to reasonable bounds so as not 
to prolong the hearing unnecessarily, and unduly burden the record. 
Material and relevant evidence shall not be excluded because it is not 
the best evidence, unless its authenticity is challenged, in which case 
reasonable time shall be given to establish its authenticity. When only 
portions of a document are to be relied upon, the offering party shall 
prepare the pertinent excerpts, adequately identified, and shall supply 
copies of such excerpts, together with a statement indicating the 
purpose for which such materials will be offered, to the Administrative 
Law Judge and to the other parties. Only the excerpts, so prepared and 
submitted, shall be received in the record. However, the original 
document should be made available for examination and for use by 
opposing counsel for purposes of cross-examination. Compilations, 
charts, summaries of data, and photostatic copies of documents may be 
admitted in evidence if the proceedings will thereby be expedited, and 
if the material upon which they are based is available for examination 
by the parties.
    (c) Objections to evidence. Objections to the admission or exclusion 
of evidence shall be in short form, stating the grounds of objections 
relied upon, and to the extent permitted by the Administrative Law 
Judge, the transcript shall include argument or debate thereon. Rulings 
on such objections shall be made at the time of objection or prior to 
the receipt of further evidence. Such ruling shall be a part of the 
record.
    (d) Exceptions. Formal exceptions to the rulings of the 
Administrative Law Judge made during the course of the hearing are 
unnecessary. For all purposes for which an exception otherwise would be 
taken, it is sufficient that a party, at the time the ruling of the 
Administrative Law Judge is made or sought, makes known the action he/
she desires the Administrative Law Judge to take or his/her objection to 
an action taken, and his/her grounds therefor.
    (e) Offers of proof. Any offer of proof made in connection with an 
objection taken to any ruling of the Administrative Law Judge rejecting 
or excluding proffered oral testimony shall consist of a statement of 
the substance of the evidence which counsel contends would be adduced by 
such testimony, and, if the excluded evidence consists of evidence in 
documentary or written form or of reference to documents or records, a 
copy of such evidence shall be marked for identification and shall 
constitute the offer of proof.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.41  Official notice.

    Official notice may be taken of any material fact, not appearing in 
evidence in the record, which is among the traditional matters of 
judicial notice. Provided, however, that the parties shall be given 
adequate notice, at the hearing or by reference in the Administrative 
Law Judge's decision, of

[[Page 236]]

the matters so noticed, and shall be given adequate opportunity to show 
the contrary.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.42  In camera and protective orders.

    (a) Privileged communications. Upon application of any person, the 
Administrative Law Judge may limit discovery or introduction of evidence 
or enter such protective or other orders as in the Judge's judgment may 
be consistent with the objective of protecting privileged communications 
and of protecting data and other material the disclosure of which would 
unreasonably prejudice a party, witness, or third party.
    (b) Classified or sensitive matter. (1) Without limiting the 
discretion of the Administrative Law Judge to give effect to any other 
applicable privilege, it shall be proper for the Administrative Law 
Judge to limit discovery or introduction of evidence or to enter such 
protective or other orders as in the Judge's judgment may be consistent 
with the objective of preventing undue disclosure of classified or 
sensitive matter. When the Administrative Law Judge determines that 
information in documents containing sensitive matter should be made 
available the Judge may direct the producing party to prepare an 
unclassified or nonsensitive summary or extract of the original. The 
summary or extract may be admitted as evidence in the record.
    (2) If the Administrative Law Judge determines that this procedure 
is inadequate and that classified or otherwise sensitive matter must 
form part of the record in order to avoid prejudice to any party, the 
Judge may so advise the parties and provide an opportunity for 
arrangements to permit a party or a representative to have access to 
such matter. Such arrangements may include obtaining security clearances 
or giving counsel for a party access to sensitive information and 
documents subject to assurances against further disclosure.

[Order No. 2203-99, 64 FR 7079, Feb. 12, 1999]



Sec. 68.43  Exhibits.

    (a) Identification. All exhibits offered in evidence shall be 
numbered and marked with a designation identifying the party or 
intervenor by whom the exhibit is offered.
    (b) Exchange of exhibits. When written exhibits are offered in 
evidence, one copy must be furnished to each of the parties at the 
hearing, and two copies to the Administrative Law Judge, unless the 
parties previously have been furnished with copies or the Administrative 
Law Judge directs otherwise. If the Administrative Law Judge has not 
fixed a time for the exchange of exhibits, the parties shall exchange 
copies of exhibits at the earliest practicable time, preferably before 
the hearing or, at the latest, at the commencement of the hearing.
    (c) Substitution of copies for original exhibits. The Administrative 
Law Judge may permit a party to withdraw original documents offered in 
evidence and substitute true copies in lieu thereof.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991, and amended by Order No. 1635-92, 57 FR 57672, Dec. 
7, 1992]



Sec. 68.44  Records in other proceedings.

    In case any portion of the record in any other proceeding or civil 
or criminal action is offered in evidence, a true copy of such portion 
shall be presented for the record in the form of an exhibit unless the 
Administrative Law Judge directs otherwise.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.45  Designation of parts of documents.

    Where relevant and material matter offered in evidence is embraced 
in a document containing other matter not material or relevant and not 
intended to be put in evidence, the participant offering the same shall 
plainly designate the matter so offered, segregating and excluding 
insofar as practicable the immaterial or irrelevant parts. If other 
matter in such document is in such bulk or extent as would necessarily 
encumber the record, such

[[Page 237]]

document will not be received in evidence, but may be marked for 
identification, and if properly authenticated, the relevant and material 
parts thereof may be read into the record, or if the Administrative Law 
Judge so directs, a true copy of such matter in proper form shall be 
received in evidence as an exhibit, and copies shall be delivered by the 
participant offering the same to the other parties or their attorneys 
appearing at the hearing, who shall be afforded an opportunity to 
examine the entire document and to offer in evidence in like manner 
other material and relevant portions thereof.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.46  Authenticity.

    The authenticity of all documents submitted as proposed exhibits in 
advance of the hearing shall be deemed admitted unless written objection 
therto is filed prior to the hearing, except that a party will be 
permitted to challenge such authenticity at a later time upon a clear 
showing of good cause for failure to have filed such written objection.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.47  Stipulations.

    The parties may by stipulation in writing at any stage of the 
proceeding, or by stipulation made orally at the hearing, agree upon any 
pertinent facts in the processing. It is desirable that the facts be 
thus agreed upon so far as and whenever practicable. Stipulations may be 
received in evidence at a hearing or prior thereto, and when received in 
evidence, shall be binding on the parties thereto.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.48  Record of hearings.

    (a) General. A verbatim written record of all hearings shall be 
kept, except in cases where the proceedings are terminated in accordance 
with Sec. 68.14. All evidence upon which the Administrative Law Judge 
relies for decision shall be contained in the transcript of testimony, 
either directly or by appropriate reference. All exhibits introduced as 
evidence shall be marked for identification and incorporated into the 
record. Transcripts may be obtained by the parties and the public from 
the official court reporter of record. Any fees in connection therewith 
shall be the responsibility of the parties.
    (b) Corrections. Corrections to the official transcript will be 
permitted upon motion. Motions for correction must be submitted within 
ten (10) days of the receipt of the transcript by the Administrative Law 
Judge or such other time as may be permitted by the Administrative Law 
Judge. Corrections of the official transcript will be permitted only 
when errors of substance are involved and only upon approval of the 
Administrative Law Judge.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991, and amended by Order No. 1635-92, 57 FR 57672, Dec. 
7, 1992]



Sec. 68.49  Closing the record.

    (a) When there is a hearing, the record shall be closed at the 
conclusion of the hearing unless the Administrative Law Judge directs 
otherwise.
    (b) If any party waives a hearing, the record shall be closed on the 
date set by the Administrative Law Judge as the final date for the 
receipt of submissions of the parties to the matter.
    (c) Once the record is closed, no additional evidence shall be 
accepted into the record except upon a showing that new and material 
evidence has become available which was not readily available prior to 
the closing of the record. However, the Administrative Law Judge shall 
make part of the record any motions for attorney's fees authorized by 
statutes, and any supporting documentation, any determinations thereon, 
and any approved correction to the transcript.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.50  Receipt of documents after hearing.

    Documents submitted for the record after the close of the hearing 
will not be received in evidence except upon ruling of the 
Administrative Law Judge. Such documents when submitted shall be 
accompanied by proof

[[Page 238]]

that copies have been served upon all parties, who shall have an 
opportunity to comment thereon. Copies shall be received not later than 
twenty (20) days after the close of the hearing except for good cause 
shown, and not less than ten (10) days prior to the date set for filing 
briefs. Exhibit numbers should be assigned by counsel or the party.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.51  Restricted access.

    On his/her own motion, or on the motion of any party, the 
Administrative Law Judge may direct that there be a restricted access 
portion of the record to contain any material in the record to which 
public access is restricted by law or by the terms of a protective order 
entered in the proceedings. This portion of the record shall be placed 
in a separate file and clearly marked to avoid improper disclosure and 
to identify it as a portion of the official record in the proceedings.

[54 FR 48596, Nov. 24, 1989. Redesignated by Order No. 1534-91, 56 FR 
50053, Oct. 3, 1991]



Sec. 68.52  Final order of the Administrative Law Judge.

    (a) Proposed final order. (1) Within twenty (20) days of filing of 
the transcript of the testimony, or within such additional time as the 
Administrative Law Judge may allow, the Administrative Law Judge may 
require the parties to file proposed findings of fact, conclusions of 
law, and orders, together with supporting briefs expressing the reasons 
for such proposals. Such proposals and briefs shall be served on all 
parties and shall refer to all portions of the record and to all 
authorities relied upon in support of each proposal.
    (2) The Administrative Law Judge may, by order, require that when a 
proposed order is filed for the Administrative Law Judge's 
consideration, the filing party shall submit to the Administrative Law 
Judge a copy of the proposed order on a 3.5" microdisk.
    (b) Entry of final order. Unless an extension of time is given by 
the Chief Administrative Hearing Officer for good cause, the 
Administrative Law Judge shall enter the final order within sixty (60) 
days after receipt of the hearing transcript or of post-hearing briefs, 
proposed findings of fact, and conclusions of law, if any, by the 
Administrati